Stopping Aboriginal sAustralia’s National Radioactive Waste Management Amendment Bill aims to prevent indigenous people from taking legal action against the nuclear dump

Schedule 1 of the Bill is a blatant and indisputable attempt to prevent any judicial review proceedings which would have been initiated by the Barngarla people (and potentially other members of the Kimba Community)

There is clearly no broad community support and such material suggesting there is, was manufactured by gerrymandering the ballot to exclude the Barngarla.

The Barngarla Determination Aboriginal Corporation to Senate Committee on National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020  [Provisions]
Submission 25    The Barngarla Determination Aboriginal Corporation RNTBC ICN 8603 (BDAC) is the
registered native title body corporate for the Barngarla native title holders.1 As the determined native title holders for the Kimba area, which includes the site of Napandee, the Barngarla people seek to make a submission to the Senate Standing Committees on Economics (the Committee) as part of the Committee’s inquiry…….

………….., once the pandemic is resolved, BDAC consider it important that the Committee should attend on Country  and hear from the Barngarla people directly. BDAC would welcome this opportunity and may seek to provide supplementary submissions at this time.

4. The Committee would be aware that members of BDAC were excluded from participating in a community ballot, facilitated by the District Council of Kimba between 3 October 2019 and 7 November 2019, to gauge support for the nominated sites of Napandee and Lyndhurst at Kimba.2 As the First Peoples for the Kimba area, this exclusion was alarming to our community given the permanent impact that the National Radioactive Waste Management Facility (NRWMF) would have on Country.

The Barngarla people also hold many parcels of native title land very close to the NRWMF location, and have the right to live on and use this land. That native title land was, and is in many cases, closer to the proposed site than the town of Kimba to the site. To be excluded from the ballot on the technicality that the land was not rateable,
was terrible for the Barngarla community. The ballot returned a yes vote whilst excluding over 200 Barngarla persons who would likely have voted no. Clearly the entire legitimacy of the site selection process is, at best, highly questionable in these circumstances. It is Barngarla’s position that the site selection process has entirely miscarried. There is clearly no broad community support and such material suggesting there is, was manufactured by gerrymandering the ballot to exclude the Barngarla. We are also aware that community consultation was not consistent with processes used for the Wallerberdina site and, as a result, also excluded members of the farming
community living and working in the Kimba area from the community ballot.

However, we respectfully submit to the Committee that the introduction of this Bill (in particular Schedule 1 of the Bill) presents a significantly more disturbing issue which goes beyond the exclusion of voters, seeking to have a voice on the NRWMF, from a community ballot.

6. We respectfully state that the issues raised in our submission, outline such a significant matter of principle that it will become evident to the Committee that Schedule 1 of the Bill should not be passed. We understand that Schedule 1 of the Bill seeks to directly legislate Napandee, as the specified site for the NRWMF, following
the policy decision (which was mischaracterised as a declaration) of the former Minister for Resources and Northern Australia on 1 February 2020. BDAC make clear that the Bill is in no way supported by the Barngarla people and is of the greatest concern to us, not only as the First Peoples for the Kimba area but as Australians in general, given that it effectively removes our right to seek judicial review .

Summary of Submission
7. The process under the National Radioactive Waste Management Act 2012 (Cth)
(NRWMF Act) was set up by the Gillard Government, and was always meant to be a
fair and transparent administrative process. The Committee would be aware that the
existing administrative process provided under the NRWMF Act was followed by the
former Minsters given that a number of notices were issued under sections 9 and 10 of
the NRWMF Act between 2014 and 2017 in order to ‘shortlist’ the nominated and
approved sites for the NRWMF. The NRWMF Act then provides that, to finalise the
selection of the site from this shortlist, further notices are required under sections 14
and 18 of the NRWMF Act. The Government has always indicated that it would
continue with and finalise this process as per the existing legislation, namely by
making an administrative decision under section 14 of the NRWMF Act. At no point,
has this ever been anything but an administrative decision making process.

As Schedule 1 of the Bill will amend the NRWMF Act, Parliament is now being asked to directly legislate the selected site for the NRWMF. It is the Barngarla’s position that
Schedule 1 of the Bill is a blatant and indisputable attempt to prevent any judicial review proceedings which would have been initiated by the Barngarla people (and potentially other members of the Kimba Community, some of whom have indicated they were considering it) in relation to any declaration made by the Minister under Section 14 of the NRWMF Act.

Should the Government’s Bill proceed and the mandatory requirements under the NRWMF Act be abandoned, a removal of judicial review would ultimately deprive the Barngarla, along with others, of the fundamental legal right to such review of an administrative decision making process. The consequence of such legislative “sidestepping”
around the agreed process under the NRWMF Act is, in our view, in direct conflict with the very foundation that underpins Australia’s democratic principles of government. It would also allow the Minister not to comply with the process set down by Parliament in the NRWMF Act, and then legislate around this. BDAC believes this will clearly set a terrible precedent if the Government, through the introduction of Schedule 1 of the Bill, is now successful in having Parliament remove judicial oversight in respect of a decision which is in fact the culmination of a lengthy executive
Government decision-making process.


The Judicial Review Context
10. Judicial oversight of executive Government action is a fundamental right for all
Australians, and although it can sometimes be limited via legislation, it cannot be
entirely removed if the legislation targets the review itself (Plaintiff S157 /2002 v
Commonwealth of Australia (2003) 211 CLR 476). The NRWMF Act, as it presently
stands, does not purport to limit judicial review of any administrative decision made
under that Act, nor does the Administrative Decisions (Judicial Review) Act 1977
(ADJR Act) exclude decisions under the NRWMF Act from its application. Therefore,
Parliament has clearly determined that administrative processes under the NRWMF
Act should be fully amenable to judicial review in the same way as any other executive
decision-making process. However

10.1 The Minister has refused to make a declaration;
10.2 The Minister has made a policy decision instead, and presented it as a
declaration; and
10.3 The Government is now seeking to legislate directly, as an indirect but very
effective means to prevent judicial oversight.

11. Judicial review is also central to the separation of powers in the Australian
Constitutional framework, as it about ensuring that Ministers comply with the laws of

12. Given the fact that the next election is still two years away, we consider that Schedule
1 of the Bill could well be an indication that the Government does not feel confident
that it would succeed in any judicial review proceedings. Indeed, we consider that our
prospects of success against the Government would be good, given how badly
mishandled the NRWMF site selection process became towards its final stages.

13. The Government, of course, should have made a declaration as conceived by the
present NRWMF Act.
14. To be clear, what the Government is attempting to do is use Parliament to “make” the
“decision” and therefore exclude judicial review that would otherwise have applied if
the Government had made the declaration itself. It is doing so, at the end of the
process, after everyone has been operating on an understanding that the process in
the existing legislation would occur. This is highly concerning to the Barngarla people,
as it should be to all Australians.

Judicial Review Proceedings
15. Our legal representatives received correspondence from the new Minister Keith Pitt on
5 March 2020 which effectively confirms that the Government is, at this final step, now
refusing to make a declaration as intended under the NRWMF Act. Our lawyers
responded to this letter from Minister Pitt. That letter is attached as Annexure A.

16. Some of the following paragraphs are largely drawn from that correspondence, as it
clearly outlines the issues.
17.1 That the Minister appears to have determined to select Napandee as the site
for the NRWMF (i.e. the Minister either made a decision under section 14 of the
NRWMF Act or pre-determined what decision would be made under that
section) before carrying out the statutorily required procedural fairness process
under section 18 of the NRWMF Act;
17.2 That the incumbent Minister, who made this determination, resigned very
shortly thereafter (but not after first receiving a request for reasons from us),
and therefore no reasons could have been provided under section 13 of the
17.3 Failure to provide procedural fairness by virtue of the fact that the Minister
indicated that the proposed sites of Wallerberdina, Napandee and Lyndhurst
would be assessed similarly, but then in fact conducted different consultation
processes in respect of these proposed sites;
17.4 Failure to provide procedural fairness by virtue of the Minister never having
defined what was meant by “broad community support”, which the Minister said
was a precondition to the selection of any site;
17.5 Failure to take into account relevant considerations when assessing community
sentiment, including the following:

17.5.1 The Kimba community ballot conducted from 3 October 2019 to 7
November 2019 excluded a substantial portion of the surrounding
farming community, as well as our 209 members; both of these
communities were more likely to vote ‘no’ than ‘yes’ in any ballot;
17.5.2 The failure to consolidate the results of our separate ballot with the
Kimba community vote;
17.5.3 That farmers outside the Council area, but within 50km from the
proposed sites, were not able to express a position in the Kimba
community ballot;
17.5.4 That the Kimba community ballot occurred before various heritage and
other assessments which the Government said it would conduct were
completed, meaning that the community (or, more precisely, those
particular members of the community who were deemed eligible to
participate in the Kimba community ballot) did not have all the relevant
information to make an informed decision in the ballot; and
17.5.5 That our members were effectively prevented from engaging in the
separate ‘Neighbour Sentiment Survey’ due to the change of eligibility
at the end of that process (described further in the next paragraph);

17.6 Failure to provide procedural fairness by virtue of the fact that the Government
commenced its ‘Neighbour Sentiment Survey’ on 4 November 2019, and then,
after being contacted by our solicitors on 22 November 2019, advised of a
change of eligibility midway through the process, on 9 December 2019; this
change of eligibility meant that we had neither:
17.6.1 sufficient time to respond; nor
17.6.2 the same time to respond as other members of the community

18. We respectfully submit that the Government should not be attempting to legislate for
the sole purpose of preventing us, and other people (such as many famers) in Kimba,
from bringing judicial review. The NRWMF Act, passed under the previous Labor
Government, clearly meant for judicial oversight to apply to this decision. It should; it is
a massive decision which will affect people permanently. Further, the process
commenced as an administrative process, with notices being sent out in accordance
with sections 9 and 10 of the NRWMF Act. All interested parties and stakeholders
understood that the Minister would make a declaration under section 14 of the
NRWMF Act. Responses by the community were put in on this basis. It was only after
the event, that the Government changed its position. In summary, and in simple terms,
the Bill is an egregious attempt to remove people’s rights.

19. It is clear that the only purpose of legislating (via Schedule 1 of the Bill) to make
Napandee the site for the NRWMF, rather than making an administrative decision to
that effect under section 14 of the NRWMF Act, is to avoid judicial review in respect of
the administrative process being a process which we and other members of the Kimba
community consider has miscarried.

17. The Government would have been aware that both we and other members of the
Kimba community were seeking to bring judicial review proceedings once the
Government formally completed its administrative process under the NRWMF Act. The
issues in our judicial review case would have included:

That a Government would seek to remove the fundamental democratic safeguard of
judicial oversight specifically in circumstances where it knows that members of a
regional community, desperately concerned about long term impacts to their
community, were about to bring judicial review proceedings is, frankly, extraordinarily

21. We thank the Committee for its consideration of our submission. Please note that the
Barngarla consent to this submission being made publicly available and welcome the
opportunity to attend a public hearing on the Bill, should our attendance be required
(after the COVID-19 pandemic is over).
Barngarla Determination Aboriginal Corporation RNTBC ICN 8603

Attached is a letter to  Keith Pitt MPMinister for Resources, Water and Northern Australia  from Norman Waterhouse Lawyers Pty Ltd ACN 621 909 395


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