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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-04-13 Daily Xml
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Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 April 2016.)

The Hon. A.L. McLACHLAN (17:49): I rise to speak to the Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill 2016. This bill amends the Nuclear Waste Storage Facility (Prohibition) Act, which was passed to protect the environment and the people of South Australia by prohibiting nuclear waste storage facilities. The government seeks to remove a clause in the act that will allow consultation with community regarding the findings of the Nuclear Fuel Cycle Royal Commission.

The government loudly protests that it is yet to change its policy on nuclear storage. Like the Premier, I am on my own journey on the nuclear road and, whilst the Premier indicates that he remains undecided, one cannot help feel with the bill before us that we are being drawn inextricably to the conclusion that we need to have a global waste dump cut into the soil of South Australia. The public statements of the commissioner have not assisted in easing my underlying reservations.

I have not reached my figurative destination and I am keeping an open mind on the issue. I will not be opposing the passing of the bill, as it is designed to facilitate debate and the formation of community understanding and consent. I do, however, have reservations about the clause providing for retrospective effect. No substantive reason for the retrospectivity has been forthcoming to blunt the calls for amendment of the offending provisions. However, I now understand that there may be some movement by the government on this matter.

I approach environmental issues such as these from two perspectives: my beliefs concerning our place in the world and our role in ensuring its health as well as the economics of the proposed endeavour—the heart and the mind. A former Archbishop of Canterbury, Dr Rowan Williams, expressed a view with which I have great sympathy, that without a radical rethink of the relationship between environmental and economic challenges, the world faces the spectre of social collapse.

He warned that economy and ecology cannot be separated. The loss of sustainable environment leads not only to the loss of spiritual depth but also to material instability, and economics that ignores environmental degradation invites social degradation. We are best served by the environment when we stop thinking of it as there to serve us. Dr Williams questions whether we have the energy and imagination to say no to the non-future, the paralysing dream of endless manipulation that currently has us captive. These words and concepts press heavily upon me.

My family line originated from the west of Scotland and the east of Ireland. Before Christianity was gifted to us, we were one in our pagan simplicity with the natural world. Over time and the creation of the material world, like most other western communities, we were slowly separated from our connection, understanding and sympathies with nature. The call by Dr Williams is that we should reconnect and reject notions of ownership and replace them with stewardship—be the shepherd rather than the sovereign. I agree with him.

If the state were to accept the nuclear waste of other nations, we would be seeking payment and profit for destroying our own lands that sustain us. These appear to be the actions of an owner, not a steward. It will be difficult, if not impossible, to put a real price on degrading our own lands. Even John Stuart Mill acknowledged that the unlimited increase of wealth and population is not a good thing. In other words, growth for growth's sake is not a fundamental imperative to underpin the happiness of a state's citizens. Yet the public debate on the waste dump is populated by claims that the wealth created will be of such magnitude that it will not only compensate us for the risk but also underpin our lifestyles.

I suggest that we pay close attention to the voice of our Aboriginal communities about whether we should accept the waste that others create in lands far away from our shores. When I was a junior lawyer with Johnston Withers, I assisted in a minor way with the preparation of claims in respect of Maralinga. The plight of these people made a lasting impression upon me. I suspect that their connection to the land will serve as a guide as to the best path to take, rather than the loose assumptions contained in the business case.

I will need to be convinced before we allow further destruction of our lands in this way without Aboriginal community consent. I have previously enjoyed a career in financial services so I am well versed in business cases. They are important in facilitating informed decision-making. They tend, however, to have inherent weaknesses as they so often reflect the author's heuristics and bias. With the benefit of hindsight, assumptions that are claimed to be well grounded were often at best overstated and at worst pure fantasy.

Much work needs to be done to allow South Australians to give informed consent, assuming that they are comfortable with the ethical considerations I have alluded to earlier. The risks are great. The market for nuclear waste is very difficult to predict and the time lines are extremely long. As a consequence, it is extremely difficult to price risk and forecast profit margins.

I wish to stress to the honourable members of this chamber that the markets are not static. Business cases often fail to deliver upon a successful venture because markets are fluid and the predictions are one dimensional and do not provide for changes in operating conditions. If storing waste is perceived as profitable, then other nations will be encouraged to enter the marketplace and put pressure on margins. Further, the nature of this type of service is that you cannot easily withdraw from the market should profits prove slim.

Our entry into the market could also encourage the production of more nuclear waste, rather than encourage the development of more efficient reactors producing a less toxic by-product. We therefore risk our beautiful lands for an unknown price and cost of operation that may change over time. There is little prospect of going back once we have commenced a storage undertaking.

I am unsettled by the politics surrounding the project. If we are to embark on this project, we will need considerable community will as well as agreed policy and regulatory settings. Yet it is not so long ago that the Labor government sought political advantage by opposing the storage of nuclear waste being then considered by the federal government. My honourable friend Mr Lucas amply illustrated this point in his second reading speech.

The rhetoric used by the Labor members—many of whom are still in the parliament today—was extreme. I quote the then premier, the member for Ramsay, who said:

This government made a pledge to South Australians that we would do everything within our power to stop this nuclear waste dump being built, and we are keeping our word.

The then premier emphasised our reputation for a clean green image that bolsters our food and wine exports. The Labor Party has come a long way. I suspect that its failure to manage our economy and plan for the future has led to this desperation, intellectual gymnastics and moral contortions.

How can a government that has failed in assisting its people with transitioning in a global economy be entrusted with a complex project that has extremely long lead times and requires the tightest of regulation as well as transparency of operation? The idea may prove to be worthy, but the execution is beyond this government and, I suspect, the bureaucracy that supports it. Day in and day out we in the opposition seek answers on a variety of matters from the government benches and all we get in return are indignant responses laced with half-truths.

If we were to have a waste dump on our lands, we would receive the same disregard for transparency in relation to the regulation of the operations. A dramatic change in culture is required. I am not confident that this is achievable in the near term. The community will need comfort and reassurance that there is a new maturity in our political system, perhaps even a reworking of our political system to support the governance of this endeavour. Yet, in the very bill that purports to provide for community consultation, there is a mechanism that delivers retrospective effect. No coherent explanation has been forthcoming as to why this was needed.

By acting in this way the government has failed before it has begun to reassure the parliament of its good faith in respect of this issue. The government benches should be seeking to assure us all that they can manage the risk, not demonstrate that they are a key risk in themselves. I finish with a quote from Dr Williams:

All the great religious traditions—in their several ways—insist that personal wealth is not to be seen in terms of reducing the world to what the individual can control and manipulate for whatever exclusively human purposes may be most pressing.

The ethics of storing the toxic waste of others is as important as the economics; they are not mutually exclusive concepts but co-dependent.

The Hon. J.A. DARLEY (17:58): I rise to speak very briefly on the Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill. The purpose of the bill has been well canvassed by other honourable members; suffice to say that, based on legal advice obtained by the government, the bill is considered necessary to ensure that section 13 of the current act, which prevents public money from being spent on encouraging or financing any activity associated with the construction or operation of a nuclear waste storage facility in this state, is not contravened as a result of community conversation.

The Hon. Rob Lucas and the Hon. Mark Parnell have already flagged quite appropriately the need for this legislation to operate retrospectively if indeed the government has not acted contrary to section 13 of the act as it currently stands. I too share those concerns and ask the minister to clarify the government's position with respect to this issue during the committee stage debate.

As we know, there are amendments now on file regarding the bill, and, as I understand it, the government has indicated that it is willing to support those amendments proposed by the Hon. Mark Parnell. I am not sure exactly what the government's final position is with respect to the opposition's amendments at this stage, but I will certainly give due consideration to all of the proposed changes. I look forward to particularly hearing from the Hon. Rob Lucas with respect to the reasoning behind the proposed amendments.

In closing, as alluded to by other honourable members, this bill is not about whether or not we support the establishment of a nuclear-storage facility and, as such, I will not get into the merits of that debate at this point in time. Indeed, I am sure that there will be ample opportunity to explore that issue in the detail that it deserves through informed debate in due course. That said, I am willing to support the second reading of the current bill today, and I certainly look forward to hearing from the minister in relation to all of the questions that have been placed on the public record. With that, I support the second reading of the bill.

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:00): I thank honourable members for their second reading contributions on this bill. I flag from the outset that whilst the government does not consider that the proposed bill had any significant issues, it intends to support the amendments that have been placed on file by the Hon. Mr Parnell, and the Hon. Mr Lucas.

I will speak to each amendment at the committee stage. At the end of his second reading contribution, the Hon. Mr Parnell asked some 26 questions of the government, some of which had been asked by opposition members in the other place. I believe the government's answers to these questions have been circulated to the honourable members. For the record, these are the questions and the government's response. Forgive me for seeking the indulgence of the chamber as I read through some of these key questions.

Question 1: Has the government received legal advice that a state public servant or public servants have breached section 13 of the act? No is the answer to that.

Question 2: Has the DPP received any request from any person to prosecute any part of the executive, such as ministers, agencies or public servants, for any alleged breach of section 13 of the act? Not to my knowledge and, for clarification, breach of section 13 is not an offence.

Question 3: Has the government put the people of South Australia at risk of the government of this state being prosecuted? The answer to that question is no.

Question 4: On 22 March during debate on this bill in the other place, minister Koutsantonis said 'that is why retrospectivity is in place, to protect people on the passage of this bill in the upper house'. My question is: who exactly are these people the government is protecting? Is the minister saying that any member of the upper house who is in receipt of a public salary or taxpayer-funded staffing entitlements or is using a taxpayer-funded computer paper or biros, and actively promotes a nuclear waste dump, is in breach of section 13? The answer to that, Mr Parnell, is no.

Question 5: If no breaches of section 13 of the current act have occurred, why does the bill need to be backdated? I note again that the Premier has responded to me today saying he does not believe anyone has broken the law and, apparently, the government is agreeing that the bill should not be backdated, so that question might be redundant.

The answer to that, Mr Parnell, is the government accepts that the bill does not need to be backdated, and we will support the amendments of the Hon. Mr Parnell to this effect.

Question 6: Why did the government seek advice from the Crown Solicitor as to the need for this legislation and for it to be retrospective? In other words, what triggered that request for advice?

The answer is I think the advice to which the honourable Mr Parnell is referring is both the Solicitor-General and Crown Solicitor's advice. The government sought the Crown Solicitor's advice on the need for this legislation out of concern that section 13 would inhibit the rollout of the government's community engagement strategy.

The government also sought advice from the Crown Solicitor as to whether the legislation could be made retrospective as, at the time, the government was considering whether to commence preparatory work on the community engagement strategy. Given that the preparatory work that has been undertaken has not been inhibited by section 13, the government accepts there is no need to make the amendments retrospective and has agreed to amendments to remove the retrospectivity.

Question 7: When did the government first seek advice from the Crown Solicitor as to the need for this legislation and for it to be retrospective? Again, that is a question Vickie Chapman asked in another place.

The answer is that advice was sought from the Solicitor-General as to the need for this legislation in February this year. The government sought advice from the Crown Solicitor as to whether the legislation could be made respective in March this year.

Question 8: Did the government obtain legal advice as to whether legal privilege was appropriately invoked in this case, or was it simply a case of the government assuming that all of the legal advice it receives is privileged and therefore protected from disclosure?

The answer is that the government generally asserts legal professional privilege over the legal advice it receives. The government did not obtain legal advice about whether legal professional privilege was appropriately invoked in this case.

Question 9: Regardless of whether legal professional privilege applies, given that it can be waived by the client, why will the government not release the legal advice?

The answer is that it is a longstanding policy of government that legal advice will not be released, as to do so will amount to a waiver of privilege. This remains the policy of the government. The government will not release the advice in relation to this matter for this reason.

Question 10: Did the royal commissioner ask the government to introduce a bill with this content? The answer is no.

Question 11: Has the government or the commissioner to your knowledge received any correspondence from anyone threatening to pursue the question of a breach of the act we are currently attempting to repeal? The answer is that to my knowledge the government has not received any correspondence of this nature. The government is unable to comment on whether the royal commissioner has received such correspondence.

Question 12: Why is it necessary for the government to have the permission backdated to spend public money if it has not already spent the public money? The answer is that the government does not assert that it is necessary to have the permission backdated. The government has agreed to support the Hon. Mr Parnell's amendments for this reason.

Question 13: Why is it necessary for the government to spend any money to encourage any further aspect of the royal commission until the commissioner gives the final report on 6 May?

I am not sure I understand the question. However, I can advise the Hon. Mr Parnell that no money is intended to be spent regarding any aspect of the royal commission's findings until they are delivered. There is general preparation being undertaken for the community engagement process that will be undertaken after the release of the royal commission's findings.

Question 14: Is the government intending to spend public money on financing an activity associated with the construction or operation of a nuclear waste facility in this state, including but not limited to investigating, analysing, researching or planning? The answer is yes, the government intends spending public money on a community engagement process. This is why the government is seeking the repeal of section 13.

Question 15: Is there already an administrative unit, whether formal or informal, working within the Department of the Premier and Cabinet or any other department to advance the nuclear waste proposal?

The answer is no. There are public servants in DPC and in other departments who are advising the government on the royal commission, including its tentative findings, and there are also public servants within DPC working on the development of the government's community engagement strategy.

Question 16: How much public money was paid to the market research company Colmar Brunton, who were commissioned by the Department of the Premier and Cabinet to conduct telephone research into the public opinion of South Australians regarding the tentative findings of the royal commission?

The answer is that on 15 February 2016 the Premier committed to deciding on the next steps and embarking on the next stage of discussions with the South Australian community about South Australia's future role in the nuclear fuel cycle. To date, a total of $174,300, GST exclusive, has been spent by DPC with Colmar Brunton, and the market research has involved qualitative and quantitative methods to inform development of the community engagement process.

Question 17: Given the format and nature of the questions asked of the South Australian public, which I would add could easily be viewed as push polling, has the Department of the Premier and Cabinet breached clause 13 of the current act by using public money to encourage public support for a nuclear waste storage facility in this state?

The answer, Mr Parnell, is no; DPC has not breached section 13. At the time the commission was announced, the government stated that South Australians should be given the opportunity to explore practical, financial and ethical issues raised by a deeper involvement in the nuclear industries. Any questions that have been asked of South Australians have been to seek public feedback on the commission's activities in a broad sense, and have not sought feedback of an identifiable proposal for the construction of a nuclear waste storage facility.

Question 18: Is the government intending to extend the role of Commissioner Scarce once he has given his final report on 6 May and, if so, will he be paid additional public money to promote the benefits of South Australia becoming the world's nuclear waste dump?

As I pointed out, my initial reaction is that, once the commissioner goes beyond an investigative role into an encouragement or promotional role, then section 13, until it is amended at least, may have been invoked. The answer is that commissioner Scarce will cease to be a royal commissioner and the royal commission will cease to exist upon the presentation by commissioner Scarce of his report to the Governor. There may be a requirement for Mr Scarce to play a further role in explaining the commission's finding, but no arrangements around this have been finalised at this point in time.

Question 19: Can you outline the government's proposed public consultation or engagement process that we have been advised will occur between May and August this year, and what the cost of this exercise will be to taxpayers, and which agency's budget will cover the cost? The answer is that the budget for engagement on a mature and robust conversation about South Australia's future in the nuclear fuel cycle is not yet known, as the commission's final report has not yet been received.

On 15 February 2015, the Premier committed to deciding on the next steps and embarking on the next stage of discussions with the South Australian community following the release of the final report. Prior to this response the government wants to hear the views of the South Australian community. During this time all South Australians will be invited to discuss and debate whether South Australia should become further involved in the nuclear fuel cycle. The government's response to the recommendations, by the last sitting week of parliament 2016, will draw on the findings of both the commission's report and the views of South Australians via the engagement process.

Question 20: Will the government be spending further public money on public opinion polling; if so, what will be involved in that polling and how much will it cost? The answer to that question is that the budget for further engagement about South Australia's future in the nuclear fuel cycle is not yet known, given that the commission's final report has not yet been received.

Question 21: Has any of the $9.1 million of taxpayers' money spent so far on the royal commission been used to pay for the services of public relations firm Michels Warren or any of its staff?

Question 22: How much of the $9.1 million of taxpayers' money spent so far on the royal commission was paid to consultants or contractors to undertake analysis and prepare reports and business cases for the royal commission?

Question 23: In particular, how much did the royal commission pay Jacobs MCM for their quantitative cost analysis and business case of radioactive waste storage and disposal facilities in South Australia?

Question 24: How much did the royal commission pay Parsons Brinckerhoff for their quantitative analysis and initial business case of radioactive waste storage and disposal facilities in South Australia?

The answer to those questions is that I am advised that approximately $6.7 million has been spent by the royal commission to the end of March 2016, and the $9.1 million figure represents the total budget allocated to the royal commission. The government is concerned that the specifics of what the royal commission has paid, particularly to consultants, could be commercially sensitive. The government will consult the royal commission as to whether this information can be made public and, if it can, I will provide it to honourable members.

Question 25: What was the Economic Development Board's brief as issued to ThinkClimate Consulting in 2014 and what was the fee paid for that work? The answer is that I am advised that the amount paid to ThinkClimate Consulting in 2014 was $55,593. In terms of the brief, the following is a direct quote from the extract from the report's scope:

In response to recent and potential future declines economic and industrial conditions in South Australia, the Economic Development Board is interested in exploring new opportunities for economic development, wealth creation and job creation for South Australia. Included in these considerations is a desire to revisit the potential for creating further value in the state through expanding our role in the nuclear industry.

These considerations are preliminary and high-level, and untied to any governmental or ministerial direction. A colloquial understanding exists in South Australia that much wealth and opportunity remains in the nuclear industry and this could be exploited for reasonably easy and large wealth-creation. Evidence for this proposition is sparse, out of date and, with the passage of time, has become largely anecdotal. The Economic Development Board therefore requires an opening discussion paper to assess, at a high level, the entire value chain of the nuclear fuel cycle in both civilian power generation and medical and other research purposes. The discussion paper must review the evidence that may support or contraindicate further involvement from South Australia and illustrate the potential impact with preliminary economic analysis. A rigorously researched discussion paper will inform any decisions regarding further, more detailed studies in future.

Question 26: What other public money was involved in the Economic Development Board for the Economic Development Board's research into nuclear waste? The answer is that in late 2015 the EDB assisted the royal commission in the facilitation of three business stakeholding engagement workshops.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Lucas–1]—

Page 2, lines 6 to 8—Delete the clause and substitute:

2—Commencement

(1) Subject to subsection (2), this Act will come into operation on the day on which it is assented to by the Governor.

(2) Section 4 will come into operation on a day to be fixed by proclamation.

(3) A proclamation may not be made under subsection (2) unless the Governor is satisfied that the Commission has, in its final report on the matters referred to it by the Governor, recommended the undertaking of—

(a) public consultation in relation to the establishment of a nuclear waste storage facility in this State; or

(b) any activity associated with the construction or operation of a nuclear waste storage facility in this State.

(4) In this section—

Commission means the Nuclear Fuel Cycle Royal Commission constituted of Rear Admiral The Honourable Kevin John Scarce, AC, CSC, RANR and established on 19 March 2015;

nuclear waste storage facility has the same meaning as in the Nuclear Waste Storage Facility (Prohibition) Act 2000.

The minister has indicated that the government's intention is to support both the amendments from the opposition and the Australian Greens, which is an interesting position for them to adopt. I do not intend to speak at length.

To briefly explain, this amendment being moved by the opposition removes the retrospectivity element obviously, but it proposes that this bill will only be enacted when the final report of the nuclear royal commission is released. If it recommends public consultation in relation to the establishment of a nuclear waste storage facility or any activity associated with the construction or operation of a nuclear waste storage facility in this state, this will give the government the authority to spend money on public consultation when and if the nuclear royal commission recommends it be done.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 2, lines 6 to 8—Delete the clause

This amendment, I note, precedes the opposition's amendment in time. My amendment quite simply removes the retrospectivity clause altogether, which means that the bill would come into operation in the usual fashion, which would be on royal assent, which presumably would be next week. I accept the Hon. Rob Lucas's analysis, that it might seem difficult for the government to be supporting both amendments, but I think at the end of the day that an amended bill will come into effect and, to be honest, under either the Hon. Rob Lucas' proposal or mine, it is coming into effect next week. It is based on the assumption that the royal commission will probably confirm its tentative findings and probably will recommend further investigation into a nuclear waste storage facility, but I move my amendment anyway.

The Hon. P. MALINAUSKAS: The government supports the amendments.

Clause deleted; the Hon. R.I. Lucas' amendment carried; clause as amended passed.

Clause 3 passed.

Clause 4.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 2, lines 14 and 15—Delete the clause and substitute:

4—Amendment of section 13—No public money to be used to encourage or finance construction or operation of nuclear waste storage facility

Section 13—after its present contents (now to be designated as subsection (1)) insert:

(2) Subsection (1) does not prohibit the appropriation, expenditure or advancement to a person of public money for the purpose of encouraging or financing community consultation or debate on the desirability or otherwise of constructing or operating a nuclear waste storage facility in this State.

I explained this amendment in my lengthy second reading contribution, but I just need to say a few words. Basically, it retains clause 13. It re-numbers the existing section 13 as section 13(1) and adds the following:

(2) Subsection (1) does not prohibit the appropriation, expenditure or advancement to a person of public money for the purpose of encouraging or financing community consultation or debate on the desirability or otherwise of constructing or operating a nuclear waste storage facility in this State.

In short, it delivers to the government what they said they needed in terms of reform of this act. I understand they are supporting this amendment, so I do not need to speak to it any further.

The Hon. P. MALINAUSKAS: The Hon. Mr Parnell is right: we are supporting his amendment.

Amendment carried; clause as amended passed.

New part 3.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Lucas–1]—

Page 2, after line 15—Insert:

Part 3—Expiry of Act

5—Expiry of Act

This Act will expire on the day falling 6 weeks after the day on which this Part commences unless section 4 comes into operation before that day.

The Hon. P. MALINAUSKAS: The government supports the amendment.

New part 3 inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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