Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources
[2023] FCA 809
•18 July 2023
FEDERAL COURT OF AUSTRALIA
Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809
File number: SAD 224 of 2021 Judgment of: CHARLESWORTH J Date of judgment: 18 July 2023 Catchwords: ADMINISTRATIVE LAW – two consolidated applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – decision under s 14 of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) to declare a parcel of land known as Napandee as the site for the establishment and operation of a facility for the management of radioactive waste and to declare certain rights in that land to be extinguished – where the decision-maker made statements in the course of promoting a policy for the amendment of the NRWM Act to repeal the decision making power and instead directly provide for the identification and acquisition of the site – where attempts to amend the legislation were ultimately unsuccessful – whether in the course of promoting the policy for reform the decision-maker made statements that might cause a fair-minded lay observer to apprehend that the decision-maker might not bring an open mind to bear on the issues to be decided in the later exercise of the statutory power – whether the decision-maker made errors of law in his conclusions as to the operation of the statute conferring the power and other legislation that continued to apply – where the rules of procedural fairness were expressly limited – whether the decision was affected by legal unreasonableness by reason of a failure to provide the applicants with an opportunity to comment on adverse material – interrelation between principles for the implication of an obligation to afford procedural fairness and the implication of a condition that a statutory power be exercised reasonably
CONSTITUTIONAL LAW – provisions of the NRWM Act supported by the legislative power of the Commonwealth to make laws with respect to defence and external affairs – allegation that the law was supported by neither power or alternatively that the law could not be read down so as to be supported by either of them – law having a stated object to implement Australia’s obligations under an international convention – whether the law was reasonably capable of being considered appropriate and adapted to that purpose – whether the radioactive waste management facility authorised by the decision under review could be supported by the defence power even if a very small proportion of the radioactive waste to be located there was related to military activities
Legislation: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16
Defence Act 1903 (Cth) s 63
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 21, 22, 67, 68, 75, 87, 133, 134, 136, 341C, 341S, 341Z, 341ZA, 528
Evidence Act 1995 (Cth) s 136
Judiciary Act 1903 (Cth) s 39B
Lands Acquisition Act 1989 (Cth)
Migration Act 1958 (Cth) s 501
National Radioactive Waste Management Act 2012 (Cth) ss 3, 4, 4A, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 23, 24, 25
National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) s 3
Native Title Act 1993 (Cth) s 57
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
Parliamentary Privileges Act 1987 (Cth) s 16
Racial Discrimination Act 1975 (Cth) s 10
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) regs 10.03A, 10.03E
National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020
Aboriginal Heritage Act 1988 (SA)
Charter of the United Nations
Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964)
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)
International Labour Organisation, Convention (No. 169) concerning indigenous and tribal peoples in independent countries, opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991)
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management done at Vienna on 5 September 1997
Statute of the International Court of Justice
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223
Amoco International Finance Corporation v Iran (Partial Award) (1987) 15 Iran-US CTR 189
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1
Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533
Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 290
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) (2013) 212 FCR 406
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) (2020) 275 FCR 669
Buchanan v Jennings [2005] 1 AC 115
Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1
Croft on behalf of the Barngarla Native Title Claim Group v South Australia (No 2) [2016] FCA 724
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Grand River Enterprises Six Nations, Ltd v United States of America (Award) (ICSID Arbitral Tribunal, 12 January 2011)
Guy v Crown Melbourne Ltd (ACN 006 973 262) (No 2) [2018] FCA 36; 355 ALR 420
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council (2015) 255 CLR 135
Laurance v Katter [2000] 1 Qd R 147
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16
Leyonhjelm v Hanson-Young (2021) 282 FCR 341
Li v Determining Authority [2022] FCA 1448
Mabo v Queensland (No 2) (1992) 175 CLR 1
McCloy v The Honourable Megan Latham [2015] NSWSC 1782
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2000) 205 CLR 507
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403
Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2) [2020] FCA 1749
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3
Prebble v Television New Zealand Ltd [1995] 1 AC 321
R v Theophanous [2003] VSCA 78
Rann v Olsen (2000) 76 SASR 450; 172 ALR 395
Richardson v Forestry Commission (1988) 164 CLR 261
Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825
Town of Gawler v Minister for Urban Development and Planning [2011] SASC 26
Ure v Commonwealth (2016) 236 FCR 458
Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416
Wik Peoples v Queensland (1996) 187 CLR 1
Wurridjal v The Commonwealth (2009) 237 CLR 309
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 457 Date of last submissions: SAD224/2021
Applicants: 23 March 2023
Respondents: 6 April 2023SAD80/2022:
Applicants: 31 March 2023
Respondents: 14 April 2023.Date of hearing: 6, 7, 8, 9 and 10 March 2023 Counsel for the Applicants: Mr M Roder SC with Mr D Billington (SAD224/2021)
Mr H Heuzenroeder with Ms K Grenfell and Mr N Llewellyn-Jones (SAD80/2022)Solicitor for the Applicants: Norman Waterhouse (SAD224/2021 and SAD80/2022) Counsel for the Respondents: Mr C Lenehan SC with Mr C Tran, Ms C Trahanas and Ms J Wang (SAD224/2021 and SAD80/2022) Solicitor for the Respondents: King & Wood Mallesons (SAD224/2021)
Australian Government Solicitor (SAD80/2022)ORDERS
SAD 224 of 2021 BETWEEN: BARNGARLA DETERMINATION ABORIGINAL CORPORATION RNTBC
First Applicant
BARNGARLA DETERMINATION ABORIGINAL CORPORATION RNTBC ON BEHALF OF THE COMMON LAW HOLDERS OF NATIVE TITLE
Second Applicant
JASON BILNEY (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR RESOURCES
First Respondent
THE COMMONWEALTH
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
18 JULY 2023
THE COURT ORDERS THAT:
1.Subject to these orders, the whole of the declaration made by the Hon Minister Keith Pitt MP on 26 November 2021 under s 14(2) of the National Radioactive Waste Management Act 2012 (Cth) is set aside.
2.On or before 25 July 2023, the respondents are to file and serve written submissions and any affidavit material on the question of whether the relief in paragraph 1 should specify that the declaration be set aside as and from 26 November 2021 (the temporal question) and in relation to any other ancillary orders.
3.On or before 1 August 2023, the applicants are to file and serve written submission and any affidavit material on the temporal question and any other ancillary orders.
4.The temporal question and any other ancillary issues (including as to costs) are set down for argument at not before 4.00pm (ACST) on 7 August 2023, such hearing to be conducted by way of web conference.
5.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
INTRODUCTION
This is an application for judicial review of a decision made on 26 November 2021 under s 14(2) of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) concerning a portion of a parcel of land situated on the Eyre Peninsula in South Australia known as “Napandee” (Decision). The then Minister for Resources and Water declared that a portion of Napandee was selected as the site for the establishment of a radioactive waste management facility. The Minister also specified interests in the land which, by force of s 19(1) of the NRWM Act, were acquired by the Commonwealth or extinguished.
The applicants commenced two applications for judicial review seeking (among other things) orders that the Decision be set aside: the first on 20 December 2022 (SAD224/2021) and the second on 18 May 2022 (SAD80/2022). A concurrent hearing of the two applications took place over five days in March 2023.
By an administrative order made on 8 May 2023, the two applications were consolidated into this proceeding. The Court made ancillary orders relating to the identity of the parties and the receipt of evidence in the consolidated action. In accordance with the ancillary orders, the applicants filed a Further Amended and Consolidated Originating Application for Judicial Review on 22 May 2023 (Consolidated OA). The Consolidated OA contains those grounds originally advanced in this proceeding and in SAD80/2022, omitting grounds that are no longer pressed.
The grounds in the Consolidated OA are numbered in a way that reflects the procedural origins of the two actions. By [1] to [19] (set out on pages 2 to 6), the applicants invoke the Court’s jurisdiction to review the Decision under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) on grounds I will refer to as the Constitution Grounds. By [1] to [11] (set out on pages 6 to 17), the applicants invoke the Court’s jurisdiction to review the Decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on grounds I will refer to as the ADJR Act Grounds. The ADJR Act Grounds include an allegation that the Decision was affected by apprehended bias.
Substantive relief is sought in the following terms:
1.A declaration that paragraph/s (a) and/or (b) of section 4A(3) of the National Radioactive Waste Management Act 2012 (Cth) as inserted by Item 4 of Schedule 3 of the National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) (No 59 of 2021) are ultra vires the legislative power of the Commonwealth under the Constitution.
2.A declaration that the decision, alternatively decisions, of the First Respondent made on 26 November 2021, to select land described in Attachment A to the document ‘STATEMENT OF REASONS’ and ‘To declare that the land in Attachment A is selected as the site for the National Radioactive Waste Management Facility’ was/were made in excess of jurisdiction, in that the Minister misapprehended the nature of, and rationale for, the ‘facility’ by taking into account a scope of the definition of ‘controlled material’ that was ultra vires.
3.Quash or set aside the Site Selection Decision identified in paragraph (1) under the heading ‘ADJR Grounds’.
4.Quash or set aside the Interests Specification Decision identified in paragraph (2) under the heading ‘ADJR Grounds’.
In the above paragraphs I have referred to there being a Decision in the singular. There is some disagreement as to whether the declaration made on 26 November 2021 involved the making of one decision or two. The respondents correctly described that as an arid dispute. The Decision under review is that described in the first paragraph of these reasons.
For the reasons that follow, the allegation of apprehended bias is established and the Consolidated OA will be allowed on that basis. All remaining grounds of review are rejected.
PARTIES
The first applicant is the Barngarla Determination Aboriginal Corporation RNTBC (BDAC). It is the agent of the holders of native title in land and waters determined by this Court in native title determinations made under the Native Title Act 1993 (Cth) (NT Act), namely: Croft on behalf of the Barngarla Native Title Claim Group v South Australia (No 2) [2016] FCA 724 (Croft 1) as amended in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552, and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132 (together, the Croft Determinations). BDAC does not hold the native title on trust for the native title holders. However, it is responsible for performing functions under s 57 of the NT Act in relation to native title rights and interests of the Barngarla people. BDAC is also named as the second applicant, apparently in a representative capacity “on behalf of the common law holders of native title”. The holders of native title determined to exist in the Croft Determinations include the third applicant, Mr Jason Bilney, and the fourth applicant, Ms Dawn Taylor.
The parties’ submissions at times referred to the applicants as the Barngarla people and I may do the same throughout these reasons.
Following amendments, the named respondents are the Minister for Resources and The Commonwealth.
At the time of the Decision, the Minister responsible for the administration of the NRWM Act was the Hon Keith Pitt MP. He is the relevant decision-maker. In due course it will be necessary to refer to other members of Parliament occupying the office of Minister from time to time. I will refer to the decision-maker as Minister Pitt and the other persons in a similar fashion by their surnames. It is otherwise convenient to refer to the respondents in the plural, notwithstanding that the Commonwealth did not make submissions on the ADJR Act Grounds.
The applicants’ standing
In the Croft Determinations this Court recognised that native title exists in large parts of an area of land and waters totalling about 44,500 square kilometres in and around the Eyre Peninsula. Native title was found not to exist within other parts of the land and waters subject to the Croft Determinations.
Napandee is a 210.3 hectare parcel of land located roughly west of the town of Kimba. It falls within the external boundaries of the area subject to the Croft Determinations. The effect of the Croft Determinations is that the ancestors of the Barngarla people held native title in the land comprising Napandee at sovereignty. However, that native title was extinguished by the grant of a freehold interest in the land. As a consequence, the native title determined to exist in the Croft Determinations did not include any native title in respect of Napandee.
It is common ground that but for that extinguishment the determination in Croft 1 would have included Napandee in the land and waters over which the Barngarla people hold native title rights and interests. The Barngarla people may, in that sense, be referred to as the traditional owners of the land. That is reflected in a statement of agreed facts prepared for the purposes of the Constitution Grounds, which includes the following:
6.Under the traditional laws and customs of the Barngarla People (being the people described in the determinations referred to in paragraph 4), the whole of the land covered by the said determinations was the country of the Barngarla People and, but for extinguishment, would have been subject to native title rights.
7.According to the traditional laws and customs of the Barngarla People, the Barngarla People are the traditional owners of the whole of the area covered by the said determinations.
8.According to the traditional laws and customs of the Barngarla People, the Barngarla People are the traditional owners of Napandee, and of all Aboriginal objects and sites within or partly within Napandee.
In Croft 1 the Barngarla people were recognised as the holders of native title in the Pinkawillinie Conservation Park, less than one kilometre south-west of Napandee. That is the most proximate land to Napandee in which the applicants hold native title.
As discussed below, the Barngarla people assert that they possess statutory rights relating to Napandee in accordance with State heritage laws, specifically the Aboriginal Heritage Act 1988 (SA) (SA Heritage Act). In light of those interests, the respondents acknowledge that one or more of the named applicants has standing to seek relief in respect of the Decision under the Judiciary Act, the ADJR Act or both. I would add that the act that extinguished native title in the subject land (the grant of freehold title) did not alter the traditional laws and customs of the Barngarla people. The spiritual connection asserted by the Barngarla people under their traditional laws and customs is sufficient to justify their standing to claim relief, in addition to their status as native title holders in nearby Pinkawillinie Conservation Park and their asserted rights under the SA Heritage Act.
There remains some dispute as to whether the interests asserted by the applicants amount to a “right or interest in the land” for the purposes of certain provisions of the NRWM Act. In light of what follows I have considered it unnecessary to resolve that dispute. Whether the applicants have a “right or interest in the land” in a proprietary sense is not determinative of the question of their standing.
THE NRWM ACT
The NRWM Act came into force on 4 April 2012. It was later amended by the National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) (Amending Act), commencing on 30 June 2021.
The object of the NRWM Act (as amended by the Amending Act) is expressed in s 3 as follows:
(1)The object of this Act is to ensure that controlled material is safely and securely managed by providing for:
(a)the selection of a site for a radioactive waste management facility on land in Australia; and
(b)the establishment and operation of such a facility on the selected site.
(2)By ensuring that controlled material is safely and securely managed, this Act, among other things, gives effect to certain obligations that Australia has as a party to the Joint Convention, in particular, Australia’s obligations under Chapters 3 and 4 of the Joint Convention.
The Joint Convention referred to in s 3(2) is defined in s 4 to mean the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management done at Vienna on 5 September 1997, as amended and in force in Australia from time to time.
The are other relevant definitions in s 4 as follows:
facility means a facility for the management of controlled material.
…
selected site means the site, or the specified part of a site, in relation to which a declaration by the Minister under subsection 14(2) is in effect.
site means a site approved by the Minister under section 9.
The phrase “controlled material” is defined in s 4A and will be considered at length later in these reasons.
The NRWM Act establishes a framework for a staged decision making process defined by its various Parts and Divisions.
Nomination stage
Part 2 of the NRWM Act is titled “Nomination of sites”. Relevantly, the Minister may declare in writing under s 6 that nominations of potential sites may be made under s 7. A person or persons may then nominate land as a potential site under s 7, subject to conditions contained in that section and s 8.
The power under s 6 is subject to Land Councils (as defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)) first having an opportunity to nominate a site: NRWM Act, s 5(1).
Nomination approval
Section 9(1) of the NRWM Act provides:
Subject to subsection 10(6), the Minister may, in his or her absolute discretion, approve in writing land, or a specified part of land, nominated as a site under section 5 or 7.
Division 4 of Pt 2 contains s 10. It specifies the procedural fairness requirements conditioning the powers conferred on the Minister under s 6 and s 9, and is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to those decision making powers: s 10(7). The exhaustive statement in connection with the power in s 6 is as follows:
Declaration under section 6
(1)Before the Minister decides to make a declaration under section 6, the Minister must:
(a)give a notice in writing to each Land Council; and
(b)publish a notice:
(i)in the Gazette; and
(ii)in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory.
(2) A notice under paragraph (1)(a) or (b) must:
(a)state that the Minister proposes to make a declaration under section 6; and
(b)invite comments on the proposed declaration; and
(c)specify the address to which comments may be sent; and
(d)specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.
(3)In deciding whether to make a declaration under section 6, the Minister must take into account any relevant comments in response to an invitation referred to in paragraph (2)(b).
The requirements in connection with an approval decision under s 9 are prescribed in s 10(4) to s 10(6), namely:
Approval under section 9
(4)Before the Minister decides to approve land, or a specified part of land, under section 9, the Minister must:
(a) give a notice in writing to each nominator of the land; and
(b) publish a notice:
(i)in the Gazette; and
(ii)in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory; and
(iii)in a local newspaper (if any) circulating in the area in which the land is situated.
(5) A notice under paragraph (4)(a) or (b) must:
(a)state that the Minister proposes to approve land, or a specified part of land, under section 9; and
(b)if the notice is given under paragraph (4)(a)—invite each nominator of the land to comment on the proposed approval; and
(c)if the notice is published under paragraph (4)(b)—invite persons with a right or interest in the land to comment on the proposed approval; and
(d)specify the address to which comments may be sent; and
(e)specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.
(6)In deciding whether to approve land, or a specified part of land, under section 9, the Minister must take into account any relevant comments given to the Minister, by a nominator of the land, or a person with a right or interest in the land, in response to an invitation referred to in paragraph (5)(b) or (c).
As can be seen, the obligations conditioning the power under s 9 are narrower than those conditioning the power under s 6. In respect of a decision under s 9, it is only the nominator(s) of the land and those persons with a “right or interest in the land” who must be invited to comment. The phrase “right or interest in the land” is not defined.
Site investigation stage
Part 3 of the NRWM Act is titled “Selecting the site for a facility”. It contains s 11 which authorises the Commonwealth, its entities, employees and agents to “do anything necessary for or incidental to the purpose of selecting a site on which to construct and operate a facility”. Subject to conditions in s 11(4), that authorisation includes (but is not limited to) activities specified in s 11(3), namely accessing the land, constructing bores, collecting samples of flora and fauna, conducting geological and seismic investigations, clearing of vegetation and conducting archaeological and heritage investigations. Section 12 and s 13 provide that certain laws have no effect to the extent that they would otherwise regulate, hinder or prevent the doing of a thing authorised by s 11. They include laws of a State or Territory relating to specified subject matter (s 12(1)) as well as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act): NRWM Act, s 13(1).
Site selection declaration stage
The Decision on review was made in the exercise of a power conferred by s 14 of the NRWM Act. It applies if land has been nominated as a site under (relevantly) s 7 and the Minister has approved the nominated land (or a specified part of it) under s 9. Section 14 relevantly provides:
(2)Subject to section 18, the Minister may, in his or her absolute discretion, declare in writing that the site approved by the Minister, or a specified part of the site, is selected as the site for a facility. The declaration may specify all or some of the rights or interests in the selected site.
…
(5)To avoid doubt, rights and interests specified in a declaration under subsection (2) or (4) may include the following:
(a)rights to minerals (if any);
(b)native title rights and interests (if any);
(c)an interest in the land, being an interest that did not previously exist;
(d)an easement in gross (if any).
Only one declaration under s 14(2) may be in effect at a particular time: s 16.
The Minister may, in his or her absolute discretion, revoke in writing a declaration made under s 14(2): s 17(1). A subsequent declaration is taken to revoke an earlier declaration: s 16(3).
Section 18 of the NRWM Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision as to whether to make a declaration under s 14: s 18(5). Like s 10(4), the hearing rule is limited to an invitation to comment extended only to each nominator of the land, and persons with a “right or interest in the land”.
Section 19(1) provides:
At the time a declaration under subsection 14(2) takes effect, any rights or interests in the selected site that are specified in the declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and
(b)freed and discharged from all other rights and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.
Section 19 has effect despite any other law of the Commonwealth, a State or a Territory, including the Lands Acquisition Act 1989 (Cth) and the NT Act: s 20. Part 7 contains provisions for the payment of compensation in respect of rights or interests acquired, extinguished or otherwise affected.
Post approval stage
Part 5 of the NRWM Act authorises the conduct of activities on and in relation to the site selected under s 14(2). It applies to the Commonwealth, its entities, contractors, employees and agents. Section 23(2) provides:
A person to whom this section applies may, in relation to the selected site, do anything necessary for or incidental to any or all of the following:
(a)gathering or preparing information for a Commonwealth regulatory scheme that relates to:
(i)the construction or operation of a facility; or
(ii)anything done in preparation for the construction or operation of a facility;
(b)conducting activities that relate to gathering or preparing information for such a regulatory scheme;
(c)preparing the selected site for a facility;
(d)preparing to construct and operate a facility;
(e)constructing a facility;
(f)constructing roads on, or grading, land in a State or Territory;
(g)erecting fences and other access controls on land specified in the declaration under subsection 14(4);
(h)operating a facility;
(i)maintaining a facility;
(j)keeping a facility safe;
(k)decommissioning a facility.
In addition, the named persons may do any of the things mentioned in s 11(3): s 23(3).
Subsection 24(1) displaces certain State and Territory laws to the extent that they would regulate, hinder or prevent the doing of a thing authorised by s 23. The displaced laws include those relating to:
(a)the use or proposed use of land or premises; or
(b)the environmental consequences of the use of land or premises; or
(c)the archaeological or heritage values of land, premises or objects (including the significance of land, premises or objects in the traditions of Indigenous people); or
(d)controlled material, radioactive material or dangerous goods; or
(e)licensing (however described) in relation to:
(i)employment; or
(ii)carrying on a particular kind of business or undertaking; or
(iii)conducting a particular kind of operation or activity;
Section 25 is titled “Application of Commonwealth laws”. It provides:
(1)The regulations may prescribe a law, or a provision of a law, of the Commonwealth for the purposes of this subsection. The prescribed law or provision has no effect to the extent that it would, apart from this subsection, regulate, hinder or prevent the doing of a thing authorised by section 23.
(2)The regulations must not prescribe any of the following laws, or any provision of the following laws:
(a) the Australian Radiation Protection and Nuclear Safety Act 1998;
(b) the Environment Protection and Biodiversity Conservation Act 1999;
(c) the Nuclear Non-Proliferation (Safeguards) Act 1987.
Deemed nominations and approvals
Section 3 of the Amending Act provides that legislation specified in a Schedule to that Act was amended or repealed as set out in the applicable items in the Schedule concerned and that “any other item in a Schedule to this Act has effect according to its terms”.
Schedule 1 is headed “Site selection”. It does not, in terms, make any amendment to any prior enactment and it is not otherwise contained in the most recent consolidated compilation of the NRWM Act. Item 1 in Sch 1 is titled “Certain land taken to have been nominated and approved”. It then provides that:
For the purposes of the National Radioactive Waste Management Act 2012 (the Act), the following table has effect:
…
There then appears a table and further provisions which together specify that certain land is taken to have been nominated as a site under s 7 of the NRWM Act by specified persons, and taken to have been approved by the Minister as a site under s 9. Dates are specified for each event that is “taken” to have occurred. The land specified in the table included Napandee, Wallerberdina and Lyndhurst (the latter two of which are discussed below).
The parties did not make submissions about the deeming effect of Sch 1 to the Amending Act. Its apparent purpose is to exclude any challenge by way of judicial review to decisions previously made under or purportedly under s 7 or s 9 of the NRWM Act in respect of the land to which it applies. These proceedings do not involve a challenge to those earlier steps in the statutory process with respect to Napandee and the submissions of both parties otherwise proceeded from the premise that they had been validly undertaken. The factual events leading to the passage of the Amending Act are nonetheless relevant in determining at least one of the grounds of judicial review.
EVIDENCE
My rulings as to the use of evidence included a ruling (by consent) that evidence adduced in SAD80/2022 (relating to the Constitution Grounds) before its consolidation into this action not be read in SAD224/2021 (relating to the ADJR Act Grounds), and vice versa. Some evidence in chief was adduced by affidavit, although none of the deponents was required to be cross-examined.
In the course of the hearing, I ruled inadmissible a significant quantity of evidentiary material on the basis that it was subject to parliamentary privilege. The parties written submissions and the court book were later redacted so as to ensure that they contained no reference to the excluded material. The parties requested that my oral reasons for that ruling be reduced to writing. Those reasons now appear at [206] to [221] below.
ADJR ACT GROUNDS
Broadly summarised, the ADJR Act Grounds (as amended) allege that the Decision:
(1)was affected by apprehended bias “arising from apparent pre-judgment” by reason of communications involving Minister Pitt prior to the exercise of the power (see [144] to [205] below);
(2)was affected by legal unreasonableness by reason of the Minister having regard to a report that was adverse to the applicants’ interests without first providing them with an opportunity to comment upon it (see [222] to [249] below);
(3)involved an error of law because the Minister proceeded on the erroneous assumption that following the selection and declaration of Napandee as the site for a low level radioactive waste facility, the NRWM Act would permit a further declaration to be made under s 14(2) selecting a facility for the permanent storage or disposal of intermediate radioactive waste (see [251] to [259] below); and
(4)involved a further error of law because the Minister proceeded on the wrong basis that the EPBC Act would mandate the protection of Aboriginal heritage on or under Napandee or the establishment of a management plan for that heritage as part of the establishment of the facility (see [260] to [291] below).
FACTS
Radioactivity and radioactive waste
Argument on the ADJR Act Grounds sensibly proceeded from a common factual assumption that, if not carefully managed, radioactive waste may be hazardous to human health and the environment. So much is apparent from the objects of the NRWM Act and the Joint Convention.
It is also common ground that the operation of a facility would involve the transport of radioactive waste from other places, and so may affect surrounding land.
The Minister and the Department
Minister Pitt became the Minister responsible for the administration of the NRWM Act on 6 February 2020. Prior to that time the responsible Minster was the Hon Matthew Canavan MP (2017 – 2020), before that the Hon Josh Frydenberg MP (2015 – 2016), and before that the Hon Ian MacFarlane MP (2012 – 2014).
Over the same period, the name of the government department under the relevant Minister’s supervision also changed. In these reasons it will be referred to simply as the “Department”. From a point in the narrative, the Department also included a division known as the “National Radioactive Waste Management Taskforce”. I will simply refer to it as the “Taskforce”.
Events preceding Minister Pitt’s appointment
The factual matters relied upon in support of this ground are expressed in particulars contained in the Consolidated OA, supplemented by a lengthy chronology of events in written closing submissions.
For the most part, the objective events are not disputed and are mostly evidenced from the content of documents. The narrative contained in this section of my reasons should be understood as a record of my findings based on the documentary and affidavit material (read subject to my earlier rulings). It includes some additional uncontroversial background to enable the key events to be understood in their broader context.
Nomination and “shortlisting” of Wallerberdina site
On 8 September 2014, Minister MacFarlane gave notice that he proposed to make a declaration under s 6 of the NRWM Act to open up a nationwide voluntary process for the nomination of land for the establishment of a facility. He stated in the notice that the Australian Government was “committed to ensuring Australia has an appropriate facility for the management of radioactive waste created within Australia”.
On 12 December 2014, Minister MacFarlane made a declaration pursuant to s 6 of the NRWM Act allowing nominations to be made under s 7 from March 2015. By 28 November 2015, 28 nominations had been received. They included a station located in Barndioota (known as Wallerberdina), situated near the South Australian town of Hawker. At that time the nominations did not include Napandee.
On 13 November 2015, Minister Frydenberg announced that six of the then nominated sites were to be shortlisted and subject to a 120 day community consultation process. Minister Frydenberg stated that “[t]he outcomes and feedback of the consultation process will help inform the Government’s consideration of the next phase of detailed assessment, which will involve a further shortlist of two to three sites with an expectation of a final site being identified before the end of next year”.
As part of that process, on 17 February 2016, Commonwealth officials visited the town of Kimba to hold discussions with the community about the process for selecting a facility. A representative of the Department is reported as saying that nothing would be built without broad community support.
On 29 April 2016 Minister Frydenberg announced that he had shortlisted Wallerberdina for the selection of a site for the facility, but he remained open to considering new site nominations.
Nomination of Napandee and Lyndhurst
On 2 February 2017, Minister Canavan announced that two further nominations had been received: Napandee and a site that will be referred to as “Lyndhurst”, also located near Kimba. He announced that both would be “subject to a comprehensive analysis”.
Community consultation and assessment
On 20 March 2017, Minister Canavan announced that there would be a 90 day community consultation process in relation to both Napandee and Lyndhurst, which would involve a community vote administered by the District Council of Kimba and the Australian Electoral Commission (AEC). He described that as an “early step in a process to determine if either of the newly-volunteered sites should be considered”. He said that “[i]f broad community support is demonstrated for either or both sites, the Australian Government may move to a second detailed technical and community assessment”.
By June 2017, Minister Canavan had moved to a further assessment of both the Napandee and Lyndhurst sites, including technical assessments. Minister Canavan stated that progression to that next phase did not constitute a final decision, “rather, we now know that across the community there is broad support for continuing this conversation, and that is what we will do”.
An office of the Department was established in Kimba and a committee named the Kimba Consultative Committee (KCC) was also established.
In August 2017, the Department wrote to the applicants’ legal representatives welcoming the “opportunity to discuss the heritage aspects of the sites that have been nominated near Kimba with the Barngarla People”. The Commonwealth committed funding for three Barngarla representatives to participate in a Barngarla Heritage Working Group.
In February 2018, BDAC’s legal representatives wrote to the Taskforce to advise that it had engaged Dr Dee Gorring to complete a cultural survey of the Kimba area, and requesting access to Napandee and Lyndhurst for that purpose. The Department responded that it did not have the power to facilitate access, and that any assessment by Dr Gorring would be premature.
In later correspondence, BDAC expressed concerns about the conduct of a community ballot and a reluctance to provide the report prepared by Dr Gorring (Gorring Report) to the Department. By letter dated 19 July 2018, the Department stated that if a site in Kimba was selected by the Minister, the government would meet with the board of BDAC to negotiate an agreement about how the facility could proceed in a manner that respected and mitigated impacts of the cultural heritage of the Barngarla people, and that “this may include a cultural heritage management plan”.
Also in July 2018, the Department received cultural reports in relation to Wallerberdina, Lyndhurst and Napandee. They included a report authored by RPS Australia East Pty Ltd titled “Kimba National Radioactive Waste Management Facility – Aboriginal Heritage Desktop Assessment Report” (RPS Report). It identified the risk that the facility and associated infrastructure would cause harm to tangible and intangible cultural heritage. The RPS Report contains a statement that its preparation did not involve consultation with traditional owners and that it was understood that the Department would consult with the traditional owners “for the purposes of the Aboriginal Cultural Heritage Assessment”. The RPS Report went on to recommend that before a decision is made to select Napandee or Lyndhurst that (as summarised in the applicants’ written submissions):
43.1consultation with Traditional Owners commence as soon as practicable. Aboriginal people are the primary determinants of their cultural heritage and should be given the opportunity to play an active role in shaping the management of that heritage; and
43.2a cultural heritage site visit with representatives and knowledge holders from the Traditional Owner community should be conduct [sic] in order to:
43.2.1Ground-truth the findings of desktop research;
43.2.2Identify significant unrecorded archaeological sites; and
43.2.3Identify unrecorded cultural heritage sites and discuss the cultural heritage values of the Study Area(s).
On 12 August 2018, the Department gave a presentation to BDAC’s board during which it was said that the facility would permanently dispose of low level radioactive waste and temporarily store intermediate level waste.
It is at this point in the chronology that there appears evidence of proposals to amend the NRWM Act, privately raised by the Department with Minister Canavan. The discussion of those proposals ran parallel with the community consultation processes then underway in connection with the selection of a site under the NRWM Act in its then current form.
Minister Canavan received a memorandum from the Department dated 31 July 2019 titled “APPROVAL TO PURSUE AMENDMENTS TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT ACT 2012”. The redacted version in evidence referred to the Minister’s power to declare in writing that a site is selected for a facility. It stated that three sites nominated and approved under the NRWM Act remained “under active consideration for selection as a site to host the facility”. The memorandum continued:
24.Once the amendments are finalised and agreed by you, you will be required to seek the Prime Minister’s agreement.
25.In the event that the amendments were not passed, you may still revoke nominations and undertake a new nomination process (as per Option 2 in Attachment C).
Sensitivities:
26.Introducing amendments is subject to Parliamentary priority and there is a risk that legislative amendments may not pass, or may not pass in timeframes that align with your site selection decision. This may increase the level of public criticism depending on timing.
(emphasis in original)
Attached was a draft proposed letter to the Prime Minister seeking “policy approval for a package of amendments”. It contains the following:
I seek your immediate consideration of this legislative amendment package. The timing acknowledges that it is my intent to make a Ministerial declaration of a site to locate the [facility] in late 2019 or early 2020 and that this declaration is likely to attract legal challenges.
On 4 September 2019, a representative of the Taskforce wrote to a director of BDAC referring to the connection of the Barngarla people to the area and acknowledging their “cultural heritage knowledge”.
The AEC conducted a postal ballot on behalf of the District Council of Kimba between 3 October 2019 and 7 November 2019.
Whilst the ballot was underway, Minister Canavan received a further memorandum from the Department dated 17 October 2019 titled “UPDATE ON LEGISLATIVE AMENDMENTS TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT ACT 2012”. The memo was marked urgent so as to enable “supplementary drafting instructions to be provided to the Office of Parliamentary Counsel to progress the National Radioactive Waste Management Amendment (Community Fund and Other Measures) Bill”. The memorandum notes that on 19 August 2019, Minister Canavan had agreed to proposing legislative amendments to the NRWM Act, the full scope of which cannot be directly ascertained from the redacted copy of the memorandum. The unredacted content refers principally to policy considerations and proposed amendments affecting the National Repository Capital Contribution Fund.
The memorandum contained the following statements:
5.This schedule will enable you to make a site selection declaration and acquire property by mid-2020 (pending resolution of current litigation), to enable the [facility] program of work to progress.
…
12.The proposed NRWM legislation package may be referred to a Senate committee for inquiry. If the Bill is referred it may unnecessarily delay the passage of the legislation, and delay the site declaration process. OPC have indicated that it may be advantageous for you to consider referral of the Bill to manage expectations regarding timeframes.
A document titled “Site specification decision and Bill consultation timeline” states (and I find) that on 31 October 2019, Minister Canavan “requested a brief that progresses the site specific legislation process”. Neither the request nor the response to it are in evidence. The “site specific legislation” is not detailed in the document, but the meaning of that phrase can be readily inferred from events and statements that follow. Broadly, the proposed amendments were intended to achieve the repeal of s 14 of the NRWM Act (so as to avoid the Minister making a reviewable administrative decision) and the introduction of provisions for the direct identification and acquisition of Napandee as the site for the facility, by force of the statute itself.
The same document stated that on 8 November 2019, Minister Canavan wrote to the Prime Minister “to develop legislative amendments”. It is reasonable to infer (and I find) that the amendments there referred to are those recommended in a memorandum from the Department to the Minister dated 4 November 2019 titled “ACTION – SITE SPECIFIC LEGISLATION RELATING TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT FACILITY”. The memorandum was marked “URGENT – to allow the development of legislative amendments for introduction in the Autumn 2020 sittings”. The memorandum commenced with “Key Points”, including a reference to litigation in this Court by which BDAC had challenged decisions relating to the community ballot, including an appeal to the Full Court which at the time of the memorandum was yet to be heard: see Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092 and Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) (2020) 275 FCR 669. Under the heading “Timing considerations” there appeared the following:
11.A category-T (critical) legislation bid is being pursued as a contingency in the event the currently proposed NRWM Act legislative amendment package is not introduced in the current sittings. If status is granted this could be used to introduce and pass the proposed site specific legislative amendments in the Autumn 2020 parliamentary sittings. Your decision on a site for inclusion in the legislative amendments will be required by mid-January 2020 to enable introduction of the Bill before 13 February, or it will automatically revert to a category-A Bill, which would not pass until the Winter 2020 sitting period.
The memorandum went on to state that subject to the passage of the amendments “it could be possible to acquire a site via site specific legislative amendments by July 2020” and that the legislation could include amendments relating to a “Community Fund” which were “well progressed”.
On 7 November 2019, Minister Canavan announced the results of the AEC ballot in a media release expressed as follows:
The ballot … took place over a five-week period from Thursday 3 October to Thursday 7 November, with the question posed to members of the community being as follows:
‘Do you support the proposed National Radioactive Waste Management Facility being located at one of the nominated sites in the community of Kimba?’
A total 745 ballot papers were returned for scrutiny from the District Council of Kimba, 734 of which were formal votes. Of those:
• 452 (61.58%) voted Yes.
• 282 (38.42%) voted No.
Minister for Resources and Northern Australia, Senator the Hon Matt Canavan, acknowledged the significant level of community support indicated in the ballot result, and thanked those who took part.
‘This ballot result shows a clear level of support for the proposal amongst eligible participants,’ Minister Canavan said.
‘I will consider these results alongside other indicators of community support and technical information about the site, once the Flinders Ranges Council ballot is complete later this year.
…
A decision on whether the facility will proceed in Kimba will not be made until the conclusion in December of the consultation process and ballot for communities near Wallerberdina Station.
Four days later, Minister Canavan participated in a radio interview on ABC Eyre Peninsula and West Coast concerning the selection of a site in the Kimba region, in which he mentioned the prospect of legislative amendments:
[PRESENTER]: The supporters of this facility in Kimba were out at the pub celebrating this result; 61 per cent. Is it a done deal?
[MINISTER CANAVAN]: No. It’s not a done deal at this stage. I’ve always said that the community ballot is an extremely important, of course, consideration for the Government but it is just one of the pieces of consultation we’re doing. I do welcome the significant support this result clearly shows and I thank all the members of the community for being involved in this process, 90 per cent participation as well. I thank them very much for that.
I do recognise there is a variety of different views; there always have. There’s never going to be a community that will support this a hundred per cent; I can completely understand those that maybe opposed to it and will respect those views. We are doing other consultations both in Kimba with neighbouring landowners and businesses and the broader Indigenous community in the region. So all of those factors need to come back before any decision is made and you’re probably aware-your listeners might be aware that there’ll be another ballot occurring before Christmas in the Hawker region, Hawker-Quorn and Flinders Ranges region looking at an alternative site there. So once all that information is in by the end of the year, I hope to early next year, look at that in detail and hopefully, make decisions very soon after that.
…
[PRESENTER]: Who has the final say?
[MINISTER CANAVAN]: Well ultimately it'll be the Parliament of Australia. I mean I will at some point, keeping in mind, if we meet all these hurdles, we’ll make a decision one way or another, but in a hypothetical situation, a decision [indistinct] made to proceed with one of the three sites currently under consideration, we have to go back to the Parliament to change the Act and that means we need the support of both the House of Representatives and the Senate. I’d imagine there may be a Senate Inquiry, there often is with legislation of this nature. So there’ll be the normal processes of the Parliament to look at that. Obviously I’ve been talking to the Labor Party, the Greens and Centre Alliance in South Australia as well, keeping them informed about the process and their views will be considered through that as well.
[PRESENTER]: You won’t go to that stage until a site is chosen?
[MINISTER CANAVAN]: Oh yes, that’s right. We may have some draft legislation out at some point before a decision is made, but there won’t be the laws passed until we’ve made those decisions.
The results of a community ballot undertaken in relation to Wallerberdina was announced by Minister Canavan in December 2019, together with a statement to the effect that the ballot did not demonstrate sufficient community support and that he no longer considered it an option for the facility.
On 3 December 2019, proposed amendments to the NRWM Act were described in a brief to Minister Canavan in relation to an upcoming meeting with the Shadow Minister, the Hon Brendan O’Connor MP. That document also highlighted that the amendments were necessary, at least in part, to respond to the potential legal challenges and their associated delays if the existing framework of requiring a s 14 declaration to be made were to remain. The brief included “talking points” expressed in the first person as follows:
Talking Points
Legislative amendments and site selection decision
• After more than three years of technical studies and community engagement my decision on a site for the Facility is imminent.
•I plan to consider all of the technical and community sentiment information available to me and make an ‘intention to declare’ the site early next year.
•A natural justice period then occurs, of around three months, before I can make my final declaration.
• There remains a risk that my decision may be further delayed by additional legal challenges.
•For example, there is a risk that the Barngarla Determination Aboriginal Corporation (BDAC) may seek an injunction on my decision until their appeal in the Federal Court is heard.
•There is also a risk that if the Federal Court dismissing BDAC’s appeal that they will then apply to the High Court for appeal, further delaying the process.
• These delays negatively impact the social cohesion of the regional communities who have engaged in good faith. There are also cost implications associated with the legal representations, investigating alternative interim waste storage solutions for waste producers and $9.76 million committed in community funding to manage the protracted site selection process.
• To provide greater certainty to the impacted communities and to give parliament a say in this important decision for nationally significant infrastructure, I propose to introduce amendments to the National Radioactive Waste Management Act 2012 that will prescribe a specific site for which the facility will be located.
BDAC wrote to Minster Canavan on 12 December 2019 making submissions with respect to both Napandee and Lyndhurst and enclosing a copy of the Gorring Report. By letter dated 22 December 2019 addressed to BDAC’s lawyers, a representative of the Taskforce stated:
4I have written to BDAC today … inviting them to meet with the department in early 2020. As stated in the letter, we are very keen to meet with BDAC to discuss BDAC’s submission and how we can work together moving forward.
5Notwithstanding the formal submission process has now formally closed, if BDAC would like to supplement its submission or provide any final comments that it considers the Minister should be aware of in relation to a site selection decision then please provide these … by 5pm on Wednesday 15 January 2020.
A draft Communications and Engagement Plan dated 8 January 2020 relating to the site specific legislation, stated that:
After significant technical assessments and community discussions we have selected X near Kimba in South Australia.
A document titled “Record of Minister’s assessment of preferred site (as of 21 January 2020)” was completed. Under the heading there appeared this statement:
This document sets out the factors considered in making an assessment of the preferred site for a facility for the safe and secure management of radioactive waste, in line with the objective of the National Radioactive Waste Management Act 2012.
The document then set out a “Determination” that “Radioactive waste can be safely and securely managed by the establishment and operation of the facility at Napandee”. The purpose of making the “determination” was not stated on the face of the document. The document did not purport to record a decision having been made under s 14(2) of the NRWM Act (as opposed to a decision made in line with the statute’s objectives).
The document contained a discussion of three sites (Wallerberdina, Lyndhurst and Napandee) against four criteria, then concluded with this statement:
Summary of assessment of preferred site
A facility at Napandee will safely and securely manage radioactive waste, and within Kimba, there is broad community support for the project and the economic benefits it will bring. For these reasons Napandee has been identified as the preferred site for the facility.
In his affidavit affirmed on 27 October 2022, Mr Jason Bilney deposed (at [77]) that:
In early 2020, Minister Canavan called me directly and advised me that he was going to declare Napandee the site. He said, he was giving me a courtesy call before he announced it. I remember he publicly announced it either later that day or the next day.
That evidence was unchallenged and I accept it.
On 1 February 2020, Minister Canavan made an announcement by media release. Key passages are extracted here:
After a consultation and technical assessment process spanning more than four years, Napandee in Kimba, South Australia has been identified to host Australia’s National Radioactive Waste Management Facility.
Minister for Resources and Northern Australia Matt Canavan announced the decision today.
‘I am satisfied a facility at Napandee will safely and securely manage radioactive waste and that the local community has shown broad community support for the project and economic benefits it will bring,’ Minister Canavan said.
…
Three volunteered sites in South Australia have been assessed in this detailed phase of the process: Wallerberdina Station, near Hawker, and two sites near Kimba, Napandee and Lyndhurst.
Technical studies … concluded that all sites could safely and securely store radioactive waste with appropriate mitigations.
It was found the complexity and costs associated with the mitigations would be greater at Wallerberdina than at the two Kimba sites, and of those, greater at Lyndhurst than Napandee.
A community ballot undertaken in December 2019 indicated that the majority of the community near Wallerberdina Station did not support the facility (47.33 per cent in favour).
In contrast, 61.6 per cent of voters in Kimba support the proposal. …
‘Based on these technical assessments and community sentiment indicators, I have identified 160 hectares at Napandee to host the facility,’ Minister Canavan said.
‘Napandee was volunteered by the landowner, is suitable from a technical perspective, and has broad community support from those who live and work nearby.
‘Compared to the other site in Kimba (Lyndhurst) establishing the facility at Napandee would be less technically complex, and has stronger support from direct neighbours.’
Minister Canavan said today's announcement concluded a significant step in a consultation and technical assessment process that would continue for years as the facility was designed and delivered.
‘This will include further site-specific technical and regulatory approvals, and close work with Aboriginal communities to identify and protect any heritage’ he said.
‘The facility has broad community support in Kimba but acknowledge there remains opposition, particularly amongst the Barngarla People and their representative group.
‘We will work with Traditional Owners to protect culture and heritage, and to maximise economic opportunities and outcomes for local Aboriginal communities near the future facility.
‘We’ll also work with the Barngarla People on an Aboriginal Cultural Heritage Management Plan to manage heritage values around the site, as well as an Aboriginal Economic and Heritage Participation Plan.
…
‘I will proceed with the project in a way that recognises and respects views of those who oppose the facility, including the Barngarla People and those with agricultural interests,’ he said.
‘I will ensure there is ongoing support for the community and that future planning and development for the facility proceeds in a respectful way.
‘In coming weeks, I will introduce legislation that declares Napandee to be the site of the facility, and establishes a community fund to support Kimba in hosting the facility.
‘Further information supporting my assessment, including submissions, will be publicly released along with the legislation, after privacy and commercial matters have been reviewed.
On the same day, the Member for Grey (the Federal electorate in which Napandee is situated), Mr Rowan Ramsey MP, issued a media release welcoming “the announcement” that Kimba had been selected to host the facility and stating that Napandee had been selected from three sites under consideration.
By email of the same date, BDAC sought reasons for the decision Minster Canavan had announced that day.
In an article published by The Advertiser on 2 February 2020, Minister Canavan was quoted as saying:
Federal Resources Minister Matt Canavan defended the process to choose the site, saying it had been done in a ‘thorough, diligent and inclusive way’.
‘It is in that same spirit that the Government will work through the legislative process,’ he said.
‘I understand some people will be disappointed in my decision but the site has been chosen on the basis of it having broad community support after much consultation and clear indicators of support.’
Events following Minister Pitt’s appointment
Minister Pitt succeeded Minister Canavan on 6 February 2020. A week following his appointment, Minister Pitt issued a media release titled “Radioactive Waste Management Facility a step closer to delivery”. It heralded the introduction of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020. It stated:
Radioactive Waste Management Facility a step closer to delivery
The Australian Government today introduced legislative amendments to support the delivery of a National Radioactive Waste Management Facility at Napandee, near Kimba in South Australia.
The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 will give the Parliament a say on this vital national infrastructure, and deliver on commitments to the community of Kimba, which broadly supports the facility.
Minister for Resources, Water and Northern Australia Keith Pitt said that the legislation would provide certainty, particularly to the nuclear medicine industry.
‘More than 80 per cent of Australia’s radioactive waste stream is associated with the production of nuclear medicine which, on average, one in two Australians will need during their lifetime,’ Minister Pitt said.
‘If we want the benefits of nuclear applications, which are used in the diagnosis of heart and lung conditions and the treatment of specific cancers, we have to deal responsibly with the waste produced and that is exactly what the Government is doing.
‘For more than 40 years, Australian Governments have sought a site for a facility to store Australia’s radioactive waste, which is spread over more than 100 locations like hospitals, universities and science facilities.
‘Under this Government, decisive action has been taken to finally provide a facility where we can consolidate existing and future radioactive waste stream.
‘The Bill delivers on the Government’s commitment to site the National Radioactive Waste Management Facility at Napandee, near Kimba and enables the establishment of a $20 million Community Fund.
‘This $20 million fund will support long-term infrastructure and development priorities for Kimba, delivering on our funding commitments to the Kimba community.
‘This Bill also provides certainty to all the communities who have engaged in constructive consultations for over four years.
‘I thank the people of Kimba, Hawker, Quorn and surrounds, Traditional Owner groups, the Kimba District and Flinders Ranges councils and the Outback Communities Authority for their participation in this process.
‘In particular I thank the Kimba community for their considered and constructive approach, and look forward to working with all community members to deliver this facility.’
Today’s announcement comes after Napandee was identified as the site for the facility on 1 February this year after a four-year technical and community assessment process.
The Bill will be referred to committee, which will give the Parliament and other interested stakeholders further opportunity to engage in the legislative process.
A document titled “SUMMARY NOTE FOR NEW MINISTER” contained “KEY MESAGES” relating to the Bill. It included the following under the heading “Background”:
• Successive governments have been searching for a site for a National Radioactive Waste Management Facility for over 40 years.
• The purpose of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the Bill) is to amend the National Radioactive Waste Management Act 2012 (the Act) to give effect to the Government’s commitment to establish a single, purpose built National Radioactive Waste Management Facility (the Facility).
• These amendments give certainty and clarity to communities involved in this effort, to allow them to resume their regular activities and look to new opportunities for the future.
• The Bill revises the approach to acquiring the site for the Facility from a ministerial declaration to acquiring the site through legislation. The site identified for the facility was considered from the sites that were nominated under the current legislative process.
• Legislation is required to progress the acquisition of the site and provide the Parliament with a say in the location of this national-interest infrastructure.
…
The summary also gave an overview of the Bill which, I find, reflected the effect of the proposed amendments:
OVERVIEW OF THE BILL
The Bill amends the National Radioactive Waste Management Act 2012 (the Act) to:
• repeal the existing site nomination and selection framework under the Act and insert provisions which specify the site on which the Facility will be located;
• enable additional land to be acquired for the purposes of expanding the specified site for the Facility and for all-weather road access to the Facility (if required);
• enable the establishment of a Community Fund to replace the National Repository Capital Contribution Fund in the Act; and
• make clear and objective links between the operation of the Act and the relevant constitutional heads of power.
(emphasis in original)
The summary also contained information concerning the impact on native title and “Aboriginal Consultation” which broadly reflected representations previously made by BDAC to Minister Canavan.
Minister Pitt was provided with a document titled “Draft Q&A – Site Specific Legislation” dated 11 February 2020. Its purpose appears to have been to suggest responses he may give to questions that may be asked of him in relation to the Bill. In response to a hypothesised question asking whether he would still “go ahead with Napandee” if the legislation did not pass, the proposed answer was:
Yes. I note that the existing legislation passed with bipartisan support in 2012.
That said, should the new legislation not pass for any reason, we would seek to deliver this facility and meet our commitments to the community, within the framework of the existing legislation, while also factoring in views expressed during the forthcoming Parliamentary process.
The Department also prepared a draft document titled “Site Specific Legislation – Talking Points”. It included this:
Site decision
• On 1 February, after a consultation and technical assessment process covering more than four years, the Government announced Napandee, in Kimba South Australia, as the site to host Australia’s National Radioactive Waste Management Facility.
• A facility at Napandee will safely and securely manage radioactive waste and the local community broadly supports the project and economic benefits it will bring.
•Economic benefits such as: the construction project that will be worth hundreds of millions of dollars, the 45 permanent jobs when completed, and the $31 million support package delivered alongside it.
• 61.6 per cent of voters in Kimba support the facility, 59.3 per cent of local businesses support it, 59.8 per cent of submissions from locals support it. Importantly, 100 per cent of direct neighbours that share a boundary with the site at Napandee support the facility.
• Based on a series of detailed technical assessments and a wide range community sentiment indicators, the 160 hectare site at Napandee has been identified as the preferred site to host the facility.
• The facility will bring together radioactive waste accumulated over about 60 years, which is currently spread across more than 100 storage facilities across Australia including science facilities, universities and hospital basements.
• I do acknowledge that there remains some opposition and division within the Kimba community, including from the Barngarla people and those with agricultural interests.
• I am confident that we can manage these concerns and I am committed that project [sic] should only proceed in a way that recognises and respects the views of those who oppose the facility.
• Support will continue to be provided to help provide a level of closure for the communities, and ensure that future planning and development for the facility proceeds in a respectful way
Why are we introducing legislation?
• I am introducing necessary amendments to the National Radioactive Waste Management Act 2012 (the Act) to achieve the following:
•repeal the existing site nomination and selection framework under the Act and insert provisions which specify the site on which the facility will be located
•enable additional land to be acquired for the purposes of expanding the specified site for the facility, and for all-weather road access to the facility, if required, and
•establish a $20 million Community Fund to replace the National Repository Capital Contribution Fund in the Act.
• The Bill also makes clear and objective links between the operation of the Act and the relevant constitutional heads of power.
Specifying the site
• The amendments provide certainty to the Australian public and impacted communities about the site and Community Fund; and provides the Australian Parliament with a say in this nationally significant piece of infrastructure.
• The Bill revises the approach to acquiring the site for the facility from a ministerial declaration to acquiring the site through legislation.
• The three shortlisted sites under consideration were voluntarily nominated by their owners. I now propose to seek the Parliament’s agreement to the preferred site for the facility.
• This will give Parliament a say in this historical decision and allow those who have an interest in the project another opportunity to make their views known.
• We expect that both the Greens and Centre Alliance will oppose these important amendments.
• I propose that this Bill is referred to the Senate Economic Legislative Committee for inquiry, ahead of introduction into the Senate.
• I have spoken to my Opposition counterpart, Brendan O’Connor who has indicated that the Labor party won’t hinder the introduction of the Bill.
• I propose to introduce the Bill this week.
On 26 February 2020, Minister Pitt wrote to BDAC stating a commitment to work with it “towards mutually beneficial outcomes” including the provision of information, the identification and management of Aboriginal cultural heritage that may exist, and “access to funding and other opportunities to support Barngarla economic development and aspirations”.
By letter dated 5 March 2020, BDAC received a response to the request it had made on 1 February 2020 for a statement of written reasons for the decision of Minister Canavan. The response stated:
… the [Minister Canavan] announced on 1 February that the facility would be established at land on ‘Napandee’, near Kimba in South Australia. … The [Minister Canavan] also announced that he would introduce legislation to declare Napandee as the site for the facility. The acquisition of land, and other matters relevant to the establishment of the facility will be effected by the passage of this legislation.
…
As a result neither [Minister Canavan] nor [Minister Pitt] have exercised the power under section 14 of the National Radioactive Waste Management Act 2012 to declare that the land at Napandee has been selected as the site for the facility. It follows that … there is no basis to provide a statement of reasons …
On 6 March 2020, Ms Sam Chard from the Taskforce met with the local Mayor of the Kimba Council and the owner of Napandee to brief them on the Bill. Ms Chard said words to the effect that parliamentary scrutiny would replace the mechanism for legal challenge under the NRWM Act.
A representative of the Taskforce wrote to BDAC on 12 March 2020, referring to Minister Pitt’s earlier letter and asserting an eagerness to meet with BDAC “to provide opportunities for input into the NRWM facility processes”.
A month later, it was recorded in the National Radioactive Waste Management Facility Newsletter for the Wallerberdina region that $2 million had been allocated to the communities around Wallerberdina “as part of the site selection process”.
On 9 May 2020 Minister Pitt received a brief to sign an attached letter to BDAC’s solicitor stating under the heading “Key Points”:
Passage of the Bill will replace the administrative site selection and acquisition processes in the Act, and insert amendments that would acquire land and establish Napandee (near Kimba in South Australia) to be the site for the National Radioactive Waste Management Facility once those amendments take effect.
On 13 May 2020, a draft document produced by the Department after the announcement of Napandee as the preferred site highlighted the grants that had been made under the NRWM Act from 2017 – 2019. The draft document stated that in 2017, Wallerberdina had received $2 million in grants and in both 2018 and 2019, the sites in Kimba and Wallerberdina had shared in $8 million in grants under the “Community Benefit Program”.
In evidence is a document titled “Draft Ministerial Opinion Piece A landmark for Kimba and the two in three Australians who need nuclear medicine”. Its provenance is not clear on its face, nor is its author identified. Counsel for the applicants could not explain its provenance, but submitted that the Court should infer that it was drafted by the Department and to infer that it fairly reflected the views of Minister Pitt. I accept that submission. The draft opinion stated:
If you’ve ever had a scan for a heart, lung, muscular or skeletal condition, or treatment for certain cancers, then chances are you have benefited from nuclear medicine.
Some two in three Australians will need nuclear medicine at one point in our lifetimes, and along with the benefits comes a need to manage its by-product: radioactive waste.
For more than 60 years, stores of Australia’s radioactive waste have built up in more than 100 locations around the country including hospital basements, science facilities and universities.
It is international best practice to consolidate this waste in a purpose-built facility. It is also common sense. That’s why governments of all colours have been pursuing the objective for 40 years.
I am the Minister on the end of a very long line of Ministers who have been involved with this process, and it’s far time we got on with it.
We have the right site, in the right community where there’s support. Now a Bill is before the Parliament to support delivery of this national piece of infrastructure.
Yesterday, Parliament delivered an important milestone, and helped secure the economic future of Kimba - a regional community in South Australia.
The passage of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill in the House of Representatives will support a waste facility being delivered near that town.
Let me very clear, Kimba was not just picked out of a hat.
The identification of Kimba was made after the local communities around a number of volunteered sites engaged in a very honest and open conversation with the government about hosting the facility, and it became clear that this community both broadly supported it and increasingly so.
They had good reason to.
Kimba, like many regional communities impacted by drought, has experienced population decline and economic challenges. Since 2006, its population has fallen by six per cent and the population of the district has fallen by five per cent. This stands in contrast with the state population growth in South Australia of 13 per cent over the same period.
The overall size of the workforce within Kimba has reduced by 30 people during the past five years – which does not sound significant until you compare that to the entire working age population of 243.
And according to a University of Queensland study, many Kimba families choose to send their children to boarding schools during high school years, and many of these kids don’t return to Kimba for employment after their education or training is complete.
Local people need an economic reason to stay in Kimba – the town they love – and the community decided to stand together, take control of their destiny and give them one.
I accept Professor Akande’s opinion that the decisions of treaty bodies will not be relevant unless they demonstrate the existence of customary international law rules (as distinct from treaty rules). I would not go so far as to say that the treaty-related decisions must expressly state that there exists a rule of customary international law to the same effect as that embodied in the treaty, as occurred in Nicaragua v United States of America. But it must at least be apparent that the subject matter of the decision has something to say on the topic of the existence and content of a co-extant or similar rule of customary international law. Accordingly, it is not sufficient for the experts to point to decisions related to treaties concerning rights or obligations on the same or similar flavour as one or more of the Right Categories. In that respect, there is a lack of analysis in the Otty/Clifford Report as to how and why the cited decisions are relevant. The Court does not require the assistance of an opposing expert to identify that (and other) deficiencies.
Similarly, the authors of the Otty/Clifford Report do not explain why they agree that the jurisprudence referred to confirms a “huge State practice” in the requisite sense. Attaching the adjective “huge” or “massive” to a thing does not make it so. Missing from the analysis is any reference by the authors to the legal and factual subject matter of the domestic cases to which they refer. The references to the work of the first ILA Committee does not remedy the defect, as the parts of those reports to which the authors refer do not contain the requisite analysis.
There is an assumption in most cases that the acts of nation states are explained by a belief in there being a legal obligation to so act. That assumption is not made good on the material before me. I accept that there may be cases where extensive and uniform state practice is demonstrated, its very existence may assist in demonstrating that the practice is explained by a sense of obligation. However, in the present case, little attention is given to the opinio juris requirement whether in a holistic way or by reference to any particular state practice.
The footnoted references to the judgments in Mabo, Wik Peoples v Queensland (1996) 187 CLR 1 and Santos are illustrative. This Court does not require the assistance of an expert to understand the reasons for those judgments and the factual and legal context in which they arose. It has not been shown how any of them assist in the proof of the requisite state practice or opinio juris with respect to the Right Categories, especially given how broadly the relevant rights are asserted. The High Court in Mabo declared the common law to recognise native title, unaffected by the assertion of sovereignty and the assumption of radical title in land by the British Crown. However, the High Court did not declare the common law by reference to there being a right and corresponding obligation under customary international law existing in 1992 to which Australia considered itself bound. More significantly, far from protecting native title recognised under the common law, the High Court said that acts of the sovereign following the assertion of sovereignty that were inconsistent with the maintenance of native title had the effect of extinguishing it for all time. An example of such an act is the grant of freehold title, as occurred at Napandee. And the legislature has since enacted provisions providing for the extinguishment of native title irrespective of the common law position, codified in the NT Act. The NT Act makes no provision for the restitution of lands previously occupied by Aboriginal and Torres Strait Islander people, in respect of which native title has been extinguished. I identify these issues not for the purpose of conclusively deciding them, but to illustrate that it is insufficient to merely point to a decided case or a statute as an instance of state practice without explanation or analysis, other than in instances where the supporting point is obvious. The authors’ reliance on the NT Act in support of Right Category 3 is lacking any accompanying argument as to how the enactment supports their opinion. It might be that such an argument could be formulated, but there is no attempt in the Otty/Clifford Report to do so and it is not the Court’s role to find a way for the pieces to fit together.
The decision in Santos was also put forward as part of relevant jurisprudence said to support the existence of Right Category 3. That case concerned the proper construction of regulations made under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Full Court found that the expression “functions, interests or activities” encompassed the interests of traditional owners in the area in which the proposed activities were to occur, such that the traditional owners had a statutory right to be consulted. The case was cited as part of “developing jurisprudence” without any summary of its subject matter or explanation as to how it evidenced state practice or opinio juris, as opposed to an instance of the interpretation and application of domestic law.
The authors’ unqualified reliance upon these materials undermines my confidence in the sufficiency of the whole of their analysis underpinning their ultimate opinions. I am not assisted by mere citations to source materials without any discussion as to how they are capable of supporting the opinion expressed. To establish the existence and content of a rule of customary international law, it is not enough to point to decisions that relate to Indigenous peoples and that touch on the subject matter of one or more of the asserted Right Categories. Their relevance to the issues to be determined should be either obvious or explained.
It is not otherwise necessary to comment on the sufficiency of the substantive opinions expressed by Professor Akande as to the non-existence of state practice and opinio juris. The respondents have no onus to prove the negative. Except where I have otherwise stated, I accept and agree with Professor Akande’s criticisms of the Otty/Clifford Report.
It is sufficient to state that on the evidentiary material and submissions presented in this case, I am not satisfied that the asserted Right Categories and corresponding obligations exist as rules of customary international law within the meaning of art 31.3(c) of the Vienna Convention. They therefore have no bearing on the interpretation of the Joint Convention.
Relevance of the asserted rights
The respondents submit that the rules of customary international law asserted by the applicants are not “relevant” within the meaning of art 31.3(c) of the Vienna Convention, even if they were shown to exist.
Their submission is based in part on the limited matters that a contracting state is obliged to take “appropriate steps” to “ensure”. As explained above, the appropriate steps are to ensure the establishment and implementation of procedures for certain evaluations. They are not steps to ensure that obligations owing under customary international law are discharged. Whether the rules (if established) may supply mandatory content to the evaluations themselves is a different question.
The respondents submit that to construe art 13.1(ii) as requiring a contracting state to evaluate the consistency of a decision to select a site for a facility with the asserted Right Categories would be to write an amendment to the obligation in art 13.1(ii). I accept that submission at a broad level, but it can only be taken so far. Obligations owing under customary international law from time to time may be capable of assisting in the construction of phrases such as “society” and “safety impact”. The respondents have accepted that “society” in art 13.1(ii) includes Indigenous peoples and that the procedures envisaged by that provision would include the evaluation of the likely cultural heritage impacts of a facility, if the “likely safety impact of such a facility on … society” includes a risk of harm to the cultural heritage of a society or part of it. That construction might well be available by implication from the text without resorting to rules of customary international law in accordance with art 31.3(c) of the Vienna Convention. However, in accordance with Applicant A, it is inappropriate to elevate any one interpretative method in priority over another.
It seems to me that if a binding obligation to protect the cultural heritage of Indigenous peoples (Right Category 2) were shown to exist under customary international law, that would be relevant to construing the scope and subject matter of the evaluations to which art 13.1(ii) of the Joint Convention refers. That might support a construction that otherwise arises from the text. I do not accept that Right Category 2 (if it were established) would be irrelevant to the proper construction of the Joint Convention. The respondents’ submission is rejected to that extent.
As to the remaining Right Categories, the applicants’ submissions did not adequately address the connection between the subject matter of the asserted rights (or correlative obligations) with the text of the Joint Convention, other than in an abstract way. There was little discrete attention given to each Right Category so as to explain how the construction of the Joint Convention should be approached discretely by reference to each of them. The submissions returned to an assertion that “appropriate steps” must mean steps that compel (at least) consideration of the rights or otherwise steps that “accord” with them. The latter submission seeks to directly translate the asserted rights into corresponding obligations not to infringe them in substance. Given my acceptance of the respondents’ first argument, I do not accept that art 31.3(1) of the Vienna Convention may be utilised to support any such construction of the Joint Convention.
The applicants did not state precisely what consequences should follow for the application of the test for validity of the NRWM Act should it be established that there exists a binding obligation under customary international law to (for example) recognise, respect, fulfil and promote the right of Indigenous peoples to self-determination, autonomy or self-government (Right Category 1). It remains unclear to the Court how proof of the existence of that obligation might aid in the construction of the text of the Joint Convention and hence the task of determining whether the NRWM Act is supported by the external affairs power. The connection between the Joint Convention and the asserted obligation to “cooperate in good faith with indigenous peoples in order to give full recognition and execution to treaties and agreements concluded with indigenous peoples” (Right Category 5) is just as ambiguous.
To the extent that it was submitted that the evaluations referred to in art 13.1 necessitated that only that Indigenous peoples be consulted in relation to matters affecting their rights, that argument does not find expression in the Consolidated OA or in the Particulars. For the purposes of Right Category 5, it has not been shown that there exists any treaty between Australia and Indigenous persons that could form the subject matter of any such consultation in any event.
All of that leads me to reject the applicants’ primary contention that the Joint Convention should be construed as strictly imposing a specific regime, departure from which would render the law unsupported by the external affairs power.
It follows that all of the grounds alleging s 4A(3)(a) of the NRWM Act to be invalid must be rejected.
Section 4A(3)(b) and the defence power
As acknowledged by the applicants, a law providing for the management of “controlled material” that has been or is to be used for military purposes is a law supported by the defence power in s 51(vi) of the Constitution.
They submit, however, that the amount of military radioactive waste to be stored at the facility proposed for Napandee will be “very small”. They submit that the NRWM Act provides for the construction and operation of only one facility, and that what is contemplated cannot “properly to be characterised as being with respect to the naval and military defence of the Commonwealth”. The applicants submit that s 4A(3)(b) and s 4A(3)(c) of the NRWM Act would “standing alone” be within the defence power. They submit that a “Constitutional problem” nonetheless arises because the types of controlled material mentioned in s 4A(3)(a) and s 4A(3)(d) to (3)(f) of the definition are not limited to waste that is merely incidental to defence purposes and cannot be read down.
The problem is said to arise from what Rich J said in Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 (Clothing Factory Case). The plurality (Gavan-Duffy CJ, Rich, Evatt and McTiernan JJ) upheld the validity of s 63 of the Defence Act 1903 (Cth) which authorised the establishment of a factory in Melbourne in 1911 for the manufacture of uniforms for the armed forces and its continued use in the 1930s for the supply of clothing to Departments of the Commonwealth other than the Department of Defence, as well as to Departments of the State of Victoria and Victorian local government authorities. The plurality did not consider the proportional question, namely whether a military factory could be used for predominantly civilian purposes. Rich J did consider the question. His Honour said this (at 562 – 563):
… does it extend to the use of the factory for requirements which are not strictly naval, military, civil or otherwise departmental? I have no doubt that to fulfil these requirements must be the primary purpose of the factory. But it must be remembered that they are of a fluctuating character. All things naval and military have the-possibility of war in view, and the nature of the factory cannot be determined by peace-time requirements. A doctrine exists in the case of trading corporations that, when for the purpose of their undertakings they must control property, premises or appliances, it is within their incidental powers to utilise them for purposes akin to and not inconsistent with the primary purpose of the corporation, and thus avoid the ill consequences of their being left vacant, idle and unemployed. … It illustrates an application of the general doctrine that things may be done which are fairly incidental or conducive to the purpose for which a power is enjoyed. On the whole I think we may apply it to the peculiar situation in which the Commonwealth Clothing Factory stands. …. In the present case, however, so far as I can see, there is no inversion of the main and incidental power, and the supply to outsiders is of a minor character, and subsidiary to the main purpose of keeping a factory in going order for naval and military purposes on a scale adequate for actual and potential demand.
(footnotes omitted)
The applicants say that the facility proposed for Napandee cannot be supported by the defence power because its primary purpose is not for the storage and management of radioactive waste related to military activities.
Consideration
There is no “Constitutional problem” of the kind asserted by the applicants.
As Gummow and Hayne JJ observed in Wurridjal v The Commonwealth (2009) 237 CLR 309 (at [187]), when considering the validity of a law passed by the Parliament it is neither necessary nor appropriate to characterise the law as one supported by a single head of legislative power.
The effect of s 4A(3)(b) is that the NRWM Act authorises the storage and management of material “generated as a result of activities that relate to the defence of Australia” (defence related material). To that extent, it is a law that falls within the scope of the defence power discussed in Australian Communist Party v Commonwealth (1951) 83 CLR 1. Fullagar J there said that the power has two aspects. His Honour said (at 253 – 255):
… The tendency of the decisions of this Court, given in the course of two great wars and during the aftermath of each, has been to hold up the two aspects in sharp contrast one to another, and the dividing line between them has hitherto been regarded as sharp and clear-perhaps as sharper and clearer than it will ultimately be found to be. In its first aspect, s 51(vi) authorizes the making of laws which have, as their direct and immediate object, the naval and military defence of the Commonwealth and of the several States. This power is clearly not confined to time of war: see, e.g., Farey v Burvett, per Isaacs J.; Adelaide Company of Jehovah’s Witnesses Inc. v The Commonwealth, per Latham C.J.; Hume v Higgins, per Dixon J.; and cf. the reference by Williams J. in Koon Wing Lau v Calwell to matters ‘which could reasonably be considered to be a threat to the safety of Australia in the event of some future war.’ It is obvious that such matters as the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications, fall within this primary aspect of the defence power. These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with ‘naval and military defence’. From any legitimate point of view of a court their only possible purpose or object is naval and military defence. An interesting (and perhaps border-line) example of this primary aspect of the defence power is to be found in Attorney-General (Vict.) v The Commonwealth. But (with or without the aid of s. 51(xxxix.)) the defence power in its primary aspect includes much more than the things I have mentioned.
…
… In its secondary aspect the power extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence. Examples now familiar are the prices of goods and the rationing of goods, rents and the eviction of tenants, the transfer of interests in land, and the conditions of employment in industry generally. It may be that, on its true analysis, this secondary aspect of the defence power depends wholly on s 51(xxxix) of the Constitution. …
(footnotes omitted)
The Clothing Factory Case was concerned with the scope of the secondary aspect of the power.
Properly construed, the NRWM Act authorises the construction and operation of a facility that may in fact store only a small proportion of defence related material in comparison to material that is not defence related. No finding of fact with respect to the amount of defence related material in fact to be stored there is necessary. Constitutional validity of the NRWM Act turns on what it does and does not authorise, not on what will or will not in fact occur. What is authorised is the construction of a facility having the predominant purpose of storing and managing radioactive waste that is not defence related.
The plurality in the Clothing Factory Case held that the defence power supported the law not only in its direct authorisation for the operation of the factory, but in its conferral on the Governor-General of a power to “do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State”. The maintenance of the factory in peace times met that description including because its continued operation involved the retention and training of fully engaged staff. The sale of clothing to bodies outside of the regular armed forces was not to be regarded as the main or essential purpose of the business, but as “incidents in the maintenance for war purposes of an essential part of the munitions branch of the defence arm” (at 558). Validity of the law depended on that finding because no additional or alternate source of power was relied upon by the Commonwealth.
If the principle identified by Rich J in the Clothing Factory Case were to be applied, it may be said that the defence power alone could not support the construction of a facility for the storage of predominantly civilian radioactive waste, and only a very small proportion of defence related waste. It may be that in such a case, an occasion for reading down or severance might arise so as to bring the law within the legislative power of the Commonwealth.
But the NRWM Act is not supported by the defence power alone. It is supported by the heads of power engaged by each paragraph of s 4A(3). As I have said, it is axiomatic that multiple heads of Commonwealth legislative power may support a single enactment. Therefore, the fact that a facility may be selected to store both controlled material falling within s 4A(3)(b) (supported by the defence power) and controlled material falling within other components of the definition of controlled material (supported by other heads of power) does not affect the validity of any provision of the NRWM Act.
All of the Constitution Grounds must therefore be rejected.
ORDERS
There will be an order under s 16 of the ADJR Act setting aside the Decision on the ground of apprehended bias.
The parties will be heard as to costs.
I certify that the preceding four hundred and fifty-seven (457) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 18 July 2023
SCHEDULE OF PARTIES
SAD 224 of 2021 Applicants
Fourth Applicant:
DAWN TAYLOR
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