Legislative Council: Thursday, November 03, 2022


Australian Radioactive Waste Agency

The Hon. T.A. FRANKS (14:29): I seek leave to make a brief explanation before addressing a question to the Attorney-General on the topic of the powers of the Australian Radioactive Waste Agency to override South Australian laws.

Leave granted.

The Hon. T.A. FRANKS: As members of this council would be well aware, there are currently plans by the federal government to establish a nuclear waste storage facility here in South Australia. Members would also be aware that in South Australia we have the Nuclear Waste Storage Facility (Prohibition) Act 2000, which prohibits the construction or operation of a nuclear waste storage facility in our state.

On Monday, the Environment, Resources and Development Committee heard evidence from the Australian Radioactive Waste Agency (ARWA) regarding their ability or their claimed ability to override our state laws, plural, including our state law that prohibits nuclear waste facilities being built in South Australia. The CEO, Sam Usher, stated:

Under our legislation it does say that—it is complex—if state or territory legislation regulates, hinders or prevents us from doing something we need to do, there are certain rules around how we can override that so that it doesn't apply to us.

Looking at the National Radioactive Waste Management Act 2012, I assume they are referring to clause 12 relating to the application of state and territory laws. I note that in the past, states have fought for their rights and against such legislation being overridden by the federal government, with famous cases such as Williams v Commonwealth and Henderson v Defence Housing Authority serving as some examples.

I further note that the Malinauskas government have committed to protecting the right of veto for the traditional owners of the land, the Barngarla people, who are of course currently seeking a judicial review of that decision to build a nuclear waste storage facility on their land, and clearly wish to exercise their right of veto.

My questions to the minister are: given that ARWA believes that they have the power to override state laws on any matter that 'regulates, hinders or prevents us from doing something we need to do', has the South Australian government sought legal advice on the matter, and how will they ensure the veto rights of the Barngarla people?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (14:31): I thank the honourable member for her question and her longstanding advocacy in this area, and particularly for and on behalf of the Barngarla people. I don't have detailed advice in front of me at the moment, but I am happy to go away and make further inquiries, but I do know from initial inquiries that were made some time ago the general principle I think that had been provided to us was that the commonwealth could override much of state law in terms of their ambitions for a nuclear waste facility, I think including the Aboriginal Heritage Act amongst other laws in their pursuit of the facility.

In terms of other bits of legislation, I am happy to go away and have a look at what the interaction might be between commonwealth legislation, commonwealth constitutional powers and different aspects of state legislation but, as I have said, we have asked this question some time ago and the commonwealth powers appear to be far-reaching and broad-ranging in terms of their application to state law.

The honourable member is correct. It was a position that I think the then Premier Jay Weatherill initially provided—that we have not deviated from in opposition and now in government—that in terms of a nuclear waste storage facility, something that will have such a long-lasting impact on country, country that Aboriginal people have been custodians of for tens of thousands of years, our position is, and has been, and will continue to be that we view that traditional owners should have that last right of refusal. It is something that in the past I have made my colleagues—both in Liberal and Labor—in federal parliament aware of, and I will continue to do so.