The  National Radioactive Waste Management Bill 2010 (Cth)  is the latest attempt by the Australian Government to find a home for the much unloved radioactive waste from the medical industrial and research uses of radioactive material, and also spent research reactor fuel, which until now has been stored in multiple sites around Australia and abroad.

At present Australia does not have a long-term storage facility for the low-level and intermediate-level radioactive waste that it generates and the Australian Government has for some years tried to legislate to find a suitable site for this waste in Australia.

If the Bill is enacted, it will repeal the  Commonwealth Radioactive Waste Management Act 2005 (Cth)  and seek, by voluntary nomination, to locate a single site for a facility for the management ofradioactive waste.  The existing Act had four nominations for a site, three of which were on Defence land and one at Muckaty Station in the Northern Territory, but none were progressed.

The Bill passed in the House of Representatives on 18 March 2010 but has now been referred to a Senate Committee for inquiry and report by 30 April 2010.  Not surprisingly, the inquiry has generated plenty of interest and as at 14 April 2010 it had received 235 submissions plus four form submissions on behalf of 57 individuals.  The submission period officially closed on 15 March 2010.

What radioactive waste will be stored at the facility?

Australia has for some time produced low-level and intermediate-level radioactive waste from radioactive material.  Until now, the low-level waste has been stored in multiple sites around Australia, and some intermediate-level waste has been sent to France and the United Kingdom for reprocessing.

According to Minister Martin Ferguson, who is responsible for the Bill, low-level waste includes lightly contaminated laboratory waste, such as paper, plastic, glassware and protective clothing, contaminated soil, smoke detectors and emergency exit signs.  Intermediate-level waste arises from the production of nuclear medicines, the overseas reprocessing of spent research reactor fuel and disused medical and industrial sources such as radiotherapy and soil moisture meters.

The intermediate-level nuclear waste arising from the reprocessing in France and the United Kingdom of Australia's spent research reactor fuel is known as long-lived intermediate-level nuclear waste.  This material is scheduled to return to Australia between 2015 and 2016.

All three types of waste, which the Bill describes as controlled material, are intended to be stored in the proposed new facility built in Australia.  Of note is that high-level radioactive material and spent nuclear fuel are specifically excluded from being managed at the proposed new facility.

Types of radioactive waste set to be stored in Australia

 

Site selection and approval

The Australian Government wants to find a single site in Australia at which to manage radioactive waste.  To do this, it is seeking voluntary nominations from any person with an interest in land, including some leaseholders.  After a nominated site has been approved by the Minister, the chosen site has to then be declared by the Minister as the site for the facility.

Under the transitional provisions of the Bill, Muckaty Station near Tennant Creek in the Northern Territory, nominated under the existing Act, has been automatically nominated.  Also, a Land Council in the Northern Territory will be able to nominate land before the general start time for nominations.  Given the current discord about whether all of the traditional owners for Muckaty Station have been identified, nominations by a Land Council and others may be a long process.

Approved nominated sites and the declared site for the facility cannot be disallowed by Parliament because the approval and the declaration are not legislative instruments.

Some doubts exist over whether the Australian Government has sufficient power to exercise its constitutional external affairs and implied nationhood powers even if a facility site is voluntarily nominated within a State.  To avoid this problem, if it arises, the Bill allows it to operate only with respect to a Territory.

There are no details in the Bill about the size of the facility required, but according to Minister Ferguson, over the past 50 years Australia has amassed approximately 4,000 cubic metres of low-level and short-lived intermediate-level radioactive waste in multiple sites around Australia and 32 cubic metres of long-lived intermediate-level nuclear waste which is stored in France and the United Kingdom.  As an indication of the space required to hold this waste, an Olympic swimming pool, which is 50m long, 25m wide and 2m deep, has a capacity of 2,500 cubic metres.

Acquisition of rights and interests, interaction with other laws and government indemnities

Under the Bill, the Minister can declare a nominated site and access road and compulsorily acquire them on just terms, and extinguish rights such as rights to minerals, native title rights and interests in land.

There is an almost blanket prohibition on any Federal, State and Territory law (including planning and environmental laws and indigenous heritage laws) regulating, hindering or preventing the Australian Government and its agents from investigating, constructing and operating a facility, including the transporting of radioactive materials.  The only exclusion to this is that Federal radiation protection, nuclear safety, nuclear non-proliferation (safeguards) and some environmental laws cannot be excluded from applying to site selection activities.

Rights and interests in sites after a facility has been abandoned remain with the Australian Government, except if the site was:

• Aboriginal land; or
• nominated by a Land Council under the existing Act,

before the declaration, then the rights and interests can be returned to the original owners. However, given that long-lived intermediate-level radioactive waste may need to be managed for thousands of years, an approved site or acquired access road is a long-term situation.

The Northern Territory will be indemnified by the Australian Government for liability for damage caused by ionising radiation from any act or omission by the Australian Government from the chosen site if it was nominated by a Land Council.  Returned Aboriginal land will also be similarly indemnified by the Australian Government with respect to the transportation or management of the controlled material.

Few appeal rights exist for those affected by the proposed Bill.  Procedural fairness provisions (which didn't exist in the previous Act) have been introduced into the Bill, but they have limited application as some acts required to be done under the Bill are not invalid if not complied with.

Conclusion

The nomination and selection of new sites for the radioactive waste is likely to cause angst, whether they are on Aboriginal land in the Northern Territory or in the States.  Getting agreement amongst owners for the nomination of sites could be a long process.  Whilst the site itself may not be large, the land required for access roads to the site may concern numerous landowners.  And even with the current nominated site, Muckaty Station in the Northern Territory, issues have surfaced over whether all of the traditional owners of the Station have been identified and consulted.