National Radioactive Waste Management Act 2012

The object of this Act is to ensure that controlled material is safely and securely managed by providing for:

the selection of a site for a radioactive waste management facility on land in Australia; and

the establishment and operation of such a facility on the selected site.

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.

in relation to a State:

a body corporate established for a public purpose by or under a law of the State; or

an incorporated company in which the State, or a body corporate mentioned in subparagraph (a)(i), has a controlling interest; or

in relation to a Territory:

a body corporate established for a public purpose by or under a law of the Territory; or

an incorporated company in which the Territory, or a body corporate mentioned in subparagraph (b)(i), has a controlling interest.

a person who is a party to a contract with the Commonwealth or a Commonwealth entity; or

a person who is a subcontractor for a contract with the Commonwealth or a Commonwealth entity.

a body corporate established for a public purpose by or under an Act; or

a company in which a controlling interest is held by any one of the following persons, or any 2 or more of the following persons together:

the Commonwealth;

a body covered by paragraph (a).

The Joint Convention is in Australian Treaty Series 2003 No. 21 ([2003] ATS 21)] and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

a Land Council that nominated the land as a potential site under subsection 5(1);

a person who nominated the land as a potential site under subsection 7(2) or (3).

NRWMF is short for National Radioactive Waste Management Facility.

is or was capable of producing energy by a self‑sustaining chain process of nuclear fission; and

has been irradiated in, and permanently removed from, a nuclear reactor (which is a structure containing material to which paragraph (a) applies in such an arrangement that a self‑sustaining chain process of nuclear fission can occur in the structure without an additional source of neutrons).

a contract with a Commonwealth contractor (within the meaning of paragraph (a) of the definition of Commonwealth contractor); or

a contract with another subcontractor (under a previous application of this definition).

Controlled material means controlled material within the meaning of the Australian Radiation Protection and Nuclear Safety Act 1998 that is controlled material to which subsections (2) and (3) apply.

This subsection applies to controlled material if:

it has been used in Australia, generated by activities in Australia, or sent to Australia under contractual arrangements relating to the conditioning or reprocessing of ANSTO spent nuclear fuel (within the meaning of the Australian Nuclear Science and Technology Organisation Act 1987); and

it is not high level radioactive material or spent nuclear fuel.

This subsection applies to controlled material if it is one or more of the following:

controlled material that is radioactive waste (within the meaning of the Joint Convention);

controlled material that is generated as a result of activities that relate to the defence of Australia;

controlled material that needs to be securely managed to prevent its use in the commission of a terrorist act (within the meaning of the Crimes Act 1914);

controlled material that is generated, possessed or controlled by the Commonwealth or by a Commonwealth entity in the performance of its functions;

controlled material that is generated by a State or an authority of a State;

controlled material that is generated by a Territory or an authority of a Territory, or within a Territory.

A Land Council may, before the general nomination start time, nominate Aboriginal land in the area of the Land Council as a potential site.

After the general nomination start time, certain persons may nominate land in a State or Territory as a potential site—see Division 2 of this Part.

A nomination must:

be in writing; and

be made to the Minister; and

specify the land nominated by reference to portion number (if any), survey points (if available) and geographical coordinates; and

contain evidence of all interests in the land; and

if there is a sacred site within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 on or near the land—contain evidence that the persons for whom the site is sacred or is otherwise of significance are satisfied that there is no substantial risk of damage to or interference with the sacred site as a result of the nomination or subsequent action under this Act; and

contain evidence that:

the Land Council has consulted with the traditional Aboriginal owners of the land; and

the traditional Aboriginal owners understand the nature and effect of the proposed nomination and the things that might be done on or in relation to the land under this Act if the Minister approves the nomination; and

the traditional Aboriginal owners as a group have consented to the proposed nomination being made (that consent as a group being determined in accordance with section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976); and

any Aboriginal community or group that may be affected by the proposed nomination has been consulted and has had adequate opportunity to express its view to the Land Council.

The Minister may request further information from the Land Council.

Failure to comply with subsection (2) does not invalidate a nomination.

A nomination is not a legislative instrument.

The Minister may make a declaration in writing that nominations of potential sites may be made under section 7.

After a declaration is made:

a nomination cannot be made under section 5 (see subsection 5(1)); and

the Minister must not approve land nominated under section 5, or declare land so nominated to be the selected site for a facility (see subsections 9(2) and 14(3)).

In deciding whether to make a declaration, the Minister must have regard to whether it is unlikely that a facility will be able to be constructed and operated on Aboriginal land that has been nominated as a potential site under section 5 (whether or not that land has been approved as a site under section 9).

A declaration takes effect at the time specified in the declaration, which must not be earlier than the time the declaration is made.

A copy of a declaration must be published in the Gazette within 7 days of the declaration being made.

Failure to comply with subsection (4) does not invalidate a declaration.

A declaration is not a legislative instrument.

If a declaration under section 6 is in effect, a person or persons may, in accordance with this section, nominate land in a State, the Australian Capital Territory or the Northern Territory as a potential site.

A person may nominate land under this subsection as a potential site if:

the person holds an interest in the land; and

the interest is:

an estate in fee simple; or

a lease of land granted by or on behalf of the Crown, a Minister of the Crown, a statutory authority or any other prescribed person, under a law of the Commonwealth, a State or a Territory; and

the person does not hold the interest as a joint tenant or a tenant in common.

The persons who, as joint tenants or tenants in common, hold one of the following interests in land may jointly nominate the land under this subsection as a potential site:

an estate in fee simple;

a lease of the land granted by or on behalf of the Crown, a Minister of the Crown, a statutory authority or any other prescribed person, under a law of the Commonwealth, a State or a Territory.

A person may nominate land under this subsection as a potential site if:

an approved determination of native title covers an area containing the land; and

the approved determination of native title determines that:

native title exists in relation to the land; and

the native title rights and interests confer possession, occupation, use and enjoyment of the land on the native title holders to the exclusion of all others; and

one of the following applies:

in the case of an approved determination of native title by the Federal Court—the person is a prescribed body corporate that holds the native title rights and interests concerned on trust, or is an agent prescribed body corporate in relation to the native title rights and interests concerned;

in the case of an approved determination of native title by a recognised State/Territory body—the person is a body corporate that holds the native title rights and interests concerned on trust, or that is determined in relation to the native title under a provision of a law of the State or Territory concerned that corresponds to section 57 of the Native Title Act 1993.

In this section:

A nomination made under section 7 must:

be in writing; and

be made to the Minister; and

specify the land nominated in accordance with subsection (2); and

in the case of a nomination under subsection 7(2) or (3)—contain evidence that the interest in the land held by the nominator or nominators of the land is an interest referred to in subparagraph 7(2)(b)(i) or (ii) or subsection 7(3); and

in the case of a nomination under subsection 7(4)—contain evidence of the matters specified in that subsection; and

contain such other evidence (if any) as is prescribed by the regulations, including, but not limited to, the following:

evidence that one or more specified groups of persons have been consulted in relation to the nomination;

evidence that one or more specified groups of persons are satisfied of specified matters in relation to the nomination;

evidence that one or more specified groups of persons have consented to the making of the nomination.

For the purposes of paragraph (1)(c), land must be specified by reference to:

survey points (if available); and

geographical coordinates; and

whichever of the following is appropriate:

portion number;

district, division, section and block;

certificate of title;

plan and lot number;

volume and folio number;

lot on plan;

title identifier;

parcel identifier;

deposited plan;

title diagram;

registered plan;

a descriptor of a kind similar to a descriptor referred to in this paragraph.

The Minister may request further information from a nominator of the land.

Failure to comply with subsection (1) does not invalidate a nomination made under section 7.

A nomination made under section 7 is not a legislative instrument.

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.

Despite subsection (1), the Minister must not, after the general nomination start time, approve land nominated as a site under section 5.

The Minister does not have a duty to consider a nomination.

An approval takes effect at the time specified in the approval, which must not be earlier than the time the approval is made.

A copy of an approval must be published in the Gazette within 7 days of the approval being made.

Failure to comply with subsection (5) of this section, or subsection 5(2), 6(4) or 8(1), does not invalidate an approval.

An approval is not a legislative instrument.

Before the Minister decides to make a declaration under section 6, the Minister must:

give a notice in writing to each Land Council; and

publish a notice:

in the Gazette; and

in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory.

A notice under paragraph (1)(a) or (b) must:

state that the Minister proposes to make a declaration under section 6; and

invite comments on the proposed declaration; and

specify the address to which comments may be sent; and

specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.

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).

Before the Minister decides to approve land, or a specified part of land, under section 9, the Minister must:

give a notice in writing to each nominator of the land; and

publish a notice:

in the Gazette; and

in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory; and

in a local newspaper (if any) circulating in the area in which the land is situated.

A notice under paragraph (4)(a) or (b) must:

state that the Minister proposes to approve land, or a specified part of land, under section 9; and

if the notice is given under paragraph (4)(a)—invite each nominator of the land to comment on the proposed approval; and

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

specify the address to which comments may be sent; and

specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.

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).

This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to:

the Minister’s decision whether to make a declaration under section 6; and

the Minister’s decision whether to approve land, or a specified part of land, under section 9.

This section applies to:

the Commonwealth; and

a Commonwealth entity; and

a Commonwealth contractor; and

an employee or agent of a person mentioned in paragraph (a), (b) or (c).

A person to whom this section applies may, in a State or Territory, do anything necessary for or incidental to the purposes of selecting a site on which to construct and operate a facility.

Without limiting subsection (2), the person may do any or all of the following under that subsection (whether or not on a site):

gain access to and enter land and drive vehicles or fly aircraft to and from it;

in order to drive vehicles to and from land—use existing roads or construct roads on, or grade, land;

construct or rehabilitate bores;

operate drilling equipment;

extract water;

collect samples of flora and fauna;

place monitoring equipment (including meteorological and hydrological measuring equipment);

build structures to protect bores, monitoring equipment or other things;

move or extract sand, gravel, soil, mineral and rock samples;

conduct seismic or geological investigations;

conduct archaeological or heritage investigations;

clear vegetation.

A person doing a thing under this Part must:

take all reasonable steps to ensure that the doing of the thing causes as little detriment and inconvenience, and does as little damage, as is practicable to the land and to anything on, or growing or living on, the land; and

remain on the land only for such period as is reasonably necessary; and

leave the land, as nearly as practicable, in the condition in which it was immediately before the thing was done.