GOVERNMENT BILL: Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill
April 12th, 2016
On 12th April, Mark spoke to the Government's Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill 2016.
The Hon. M.C. PARNELL: If ever a bill was designed to arouse suspicion that the government is up to no good, then this is that bill. The bill has supposedly been introduced on legal advice that it is needed in order to protect genuine public debate about a matter of public interest. It is allegedly needed to enable a conversation with the South Australian people. It is said to be essential to having thorough consultation over whether or not a nuclear waste dump is a good idea for South Australia.
If we were to believe the government, its only intention is to ensure that the window for public debate about whether we have a nuclear waste dump is not barred or locked. They say that they only want to open the window a little to let in some light and also some of those sweet breezes of public discourse. However, this bill is not about chocking open a window for public debate: it is demolishing an entire wall of the house.
In the process, the government is trashing the multi-party consensus that has prevailed in this state for the last decade and a half. They are doing the opposite to what they have done before. They are doing the opposite to what they told the people of South Australia they stood for and they are treating this parliament with contempt by not openly sharing with us the legal advice that supposedly led to this bill being necessary.
If the government was open and transparent with the parliament and with the South Australian people, then they would show us the legal advice that says that this bill is necessary, but that is not the case. The advice is secret, and I will have more to say about that later. The Greens are not convinced that this bill is necessary to do any of the things that the government says it is needed for and, as such, unless the bill is amended, we will be voting against it.
I might just pause at this point. It will be no surprise to members that matters nuclear are a top priority for the Greens and I have a lengthy contribution planned for this bill. However, in recent minutes—and it is only minutes—I have been informed that the government does intend to support both of my amendments, the amendment to remove the retrospective clause and the amendment to clarify the meaning of section 13.
I know the risk that I run here is that continuing with my prepared remarks in their entirety with all of the criticism of the government that that entails may well be the straw that breaks the camel's back and they may then decide that, having agreed to support the amendments, they withdraw that consent.
While there are some important issues that I do want to put on the record, I will say at the outset that, if the advice that my staff have received from the Premier's office and the informal advice that I have received from government members here is that they will be supporting my amendments, then I am pleased that this bill will be disposed of in that way, because I think that is exactly the right outcome.
So, I will modify some of my remarks, but I want to put a number of things on the record because there are important principles in relation to retrospectivity in legislation. There are important principles in relation to what I think is often the myth of legal professional privilege as it applies to advice from the Solicitor-General to the government, and I want to explore some of those issues.
I also have a large number of questions to put on the agenda, so that the government can respond to them when we get to the committee stage, in relation to a number of issues, not the least of which is whether section 13 has in fact been breached in the past, because it is not unreasonable for any member of parliament faced with a retrospective clause to suspect, reasonably, that retrospectivity is put in for a reason, which is to protect people who have done the wrong thing. So, I want to give the government the opportunity to clear their name and answer those questions.
Whilst the Greens do not believe that the bill, as drafted, stands in the way of genuine public debate about the merits or otherwise of a nuclear waste dump, our position was always to assist the government by moving amendments that give them everything that they say they need. I will go through the items that both the Premier and the minister have said they need this bill for, and I will reflect on how my amendments actually provide what they want. Just to put on the record now exactly what that is, because not all readers of Hansard will have the amendments before them, my amendment retains section 13. Section 13, of course, is the section that reads:
Despite any other Act or law to the contrary, no public money may be appropriated, expended or advanced to any person for the purpose of encouraging or financing any activity associated with the construction or operation of a nuclear waste storage facility in this State.
The government's bill proposes to delete that section. My amendment, in fact, retains section 13 and adds the following words. It renames section 13 as subsection(1) and provides:
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 other words, it makes it clear that section 13 does not stand in the way of debate. I do not believe it ever did. I do not think section 13 ever stood in the way of debate but, when the government introduces a bill to delete it, you have to be suspicious.
What the Greens' amendment does is make it crystal clear that the Nuclear Waste Storage Facility (Prohibition) Act 2000 does not stand in the way of public consultation, debate, community conversations or the like around nuclear waste. What the act of 2000 does is prevent the construction or operation of nuclear waste facilities, the transport of nuclear waste into our state and the use of public money to encourage or finance activities associated with the construction or operation of nuclear waste storage facilities. Those prohibitions remain, and they need to remain.
At the conclusion of my remarks, as I said, I will put a number of questions on the record, and I look forward to the government's answers to those. The other thing I will say by way of introduction is that I am not proposing to explore all the reasons why turning South Australia into the world's high-level nuclear waste dump is a bad idea. That will certainly be the subject of other motions and other bills before parliament.
I think we will be talking about nuclear issues for a great deal of this year, so I am not going to explore the merits or otherwise of the nuclear waste dump as suggested by the royal commission other than to say it is a shocking idea. It does not stand up on any basis, whether it be economic, social or environmental. It is a shocker of an idea, and it needs to be put back in its box, but I am not going to explore why I believe that is the case. There is plenty of material in relation to the Greens' position that members can look at.
My intention in this debate is to focus on this bill, the government's purported rationale for the bill and the legal consequences that flow from the current operation of the act, including the role of the royal commission. For the benefit of old and new members, I think a trip down memory lane is in order to explore the origins of this legislation and the public campaign that saw it receive unanimous support in this parliament. I am indebted to the Hon. Rob Lucas for his excursion down memory lane with the remarks of the member for West Torrens in an earlier day. I will not repeat all of those as he read them out at some length.
I will, however, for the benefit of members, refer to the comments of other members, in particular Labor members, for the benefit of the Hon. John Darley we have some comments from the Hon. Nick Xenophon and for the benefit of the Hon. Dennis Hood, we have some comments from Pastor Andrew Evans on nuclear waste. My trip down memory lane starts in 1999, a motion that former environment minister John Hill put on the agenda. He said:
That this house expresses its total opposition to the use of any site or sites located in South Australia for the storage of Australian or international long-lived intermediate or high-level radioactive waste.
That was the position of Mr John Hill back in 1999, and I can tell you, as we go down memory lane, it did not change. If we look in the year 2000, again we have the Hon. John Hill introducing the Nuclear Waste Storage Facility Prohibition Bill and he says, concluding his second reading speech:
"I urge members opposite whose Premier has said that—
I should say this is the Labor Party in opposition, talking about the Liberal premier—
"I urge members opposite whose Premier has said that he opposes South Australia being the intermediate to high-level waste dump, to support this legislation, to show their constituents and Canberra that they are fair dinkum, and to show all South Australian s that we do not want South Australia to be Australia's or the world's nuclear waste dump."
There are dozens of contributions, and I will not go through them all, but Mrs Geraghty, the member for Torrens, again in October 2000 said:
"I am absolutely and totally opposed to South Australia being used as a national dumping ground for nuclear waste and I know that many of my colleagues share that view. People in South Australia are very concerned about that issue as well."
And she goes on. I mentioned various parties and there are plenty of contributions from the Liberal Party. The Hon. Iain Evans, who was my local member until he retired, again in May 2000, said:
"It is clear South Australians do not want their backyard to become the dumping ground for the nation's long-lived intermediate and high-level nuclear waste. The best way to send this message loudly and clearly to Canberra is for the Parliament of South Australia to pass legislation prohibiting the establishment of a national nuclear waste storage facility."
So there you have a Liberal position. I mentioned the Hon. John Hill, so fast forward to amendments to the act in the year 2002. The Hon. John Hill's position has not changed. He said:
"South Australia must not become the dumping ground for the world's high-level radioactive waste."
I mentioned the Hon. Nick Xenophon who was in this place from 1997, I think, onwards. His contribution, again in the year 2002, was to state:
"I do not want South Australia to be seen as a dumping ground, as the government puts it, or a repository for nuclear waste for all Australia. There is great concern about that, particularly in relation to medium-level waste."
The Hon. Nick Xenophon also talked about sending a political message to Canberra stating that 'We do not want a national low-level dump built in South Australia.' He talks about the South Australian parliament "passing legislation to send a strong message to Canberra".
We have, of course, the Hon. John Gazzola, who is still with us and who on 15 July 2002 posed the rhetorical question:
"Do we wish to become, by stealth, the dumping ground for the nuclear waste of the whole country as the commonwealth would like? And would it stop there? The proposed amendments to the bill , and the threat of a referendum, would send a strong message to companies such as Pan a gea Resource Company, a company that has identified Australia as the best place in the world to store international waste. Sites such as those in the Woomera and Roxby Downs area, for example, are seen as profitable dumping grounds.
If the amendments to the bill are denied, what resistance will future commonwealth governments have to lucrative offers from international holders of high-level nuclear waste? Are South Australians to have no further say in this?"
And he goes on in the same vein. I mentioned Family First. Pastor Andrew Evans, who was their first member in this place, in 2002 said:
"Part of our policy platform for the election was no nuclear dumps in South Australia. The party's reasoning against nuclear dumps was twofold. First, according to the polls, South Australia did not want this material in this state. The other reason for my party's position was based on discussions with various conservation groups. It seemed that a better option was for each state simply to look after its own."
It is good to see conservation groups being influential in Family First policy development, a trend that I hope will continue. So, there you have it, back from years gone by, members from all parties singing from the same hymn sheet that they do not want a nuclear waste dump in South Australia. As I have said, the act that is sought to be amended by this bill goes back to the Olsen Liberal government in the year 2000. It was strengthened by the subsequent Rann Labor government in 2003.
Long before that, if we are going down memory lane, if we go back to 1982 we see the important Labor Party document entitled, 'Uranium, Play it Safe', authored by a youthful Mike Rann, subsequently to become premier. In that paper the Labor Party railed against the nuclear industry. It railed against nuclear power and it railed against nuclear waste dumps because of the:
"…absence of procedures for the storage and disposal of radioactive waste to ensure that any danger posed by such waste s to human life and the environment is eliminated."
Mike Rann also noted that the assurances of the nuclear industry, in particular their much vaunted safeguards, were in fact worth very little. To quote the former premier, 34 years ago he said:
"Again and again it has been demonstrated, here and overseas, that when problems over safeguards prove difficult, commercial considerations will come first."
If we fast-forward to the year 2000, we see Mike Rann, as leader of the opposition, supporting a Liberal bill to prevent a nuclear waste dump being established in this state.
I mentioned a couple of the bills that have been introduced, but if you go back through the last several parliaments you will see that there are many bills and motions that were introduced to restrict nuclear facilities in South Australia, whether it be nuclear power plants, nuclear fuel processing facilities or nuclear waste dumps.
Just to give you a snapshot, in the 49th parliament there were four bills between 1999 and 2001. They were introduced by the Hon. Sandra Kanck, the Hon. John Hill and the Hon. Iain Evans. In the 50th parliament, there were three bills to restrict the nuclear industry between the years 2002 and 2003. The same members were involved in those, plus some new players. The Hon. Paul Holloway and the Hon. Terry Roberts introduced bills. In the 51st parliament, I introduced bills on two occasions in 2007, and now we have (nine years later) this current bill, which if it went through unamended would be winding back the clock.
The royal commission is obviously something that has changed the political environment in South Australia. As members know, there were four main terms of reference, that being the questions of whether South Australia should become more involved in uranium mining, in the processing of nuclear fuel or reprocessing in relation to nuclear power and in relation to nuclear waste.
From day one, conservation groups knew that this was all about the dump. It was only ever about the dump. In fact, the people of South Australia would have saved $9 million if the government had simply gone back to my 2007 speech on the nuclear industry, when the conclusions I reached in relation to uranium mining, processing and nuclear power were the same as the royal commission's: they are not viable. I had a few extra reasons why I thought they were a bad move for this state, but ultimately the result was the same: they are not goers.
I think the royal commission has been in a difficult position in relation to section 13 because the Premier told us so on radio—he said they were worried that the royal commission might have breached section 13. Ultimately, we do not know whether that is the case. I certainly spoke to a prominent QC from interstate and posed the question; the response was that whilst the royal commission is in investigation mode probably it has not infringed section 13, but if the royal commission or the royal commissioner moves away from an investigating mode into a sales mode, or an advocacy mode, then very likely section 13 will be a problem for them. However again, we do not know. That is an off-the-cuff, informal advice to me. We have not seen the government's formal advice.
There are questions about whether the royal commission has been biased, whether it has been selective in the evidence it has taken, whether it has been elitist. I will certainly put my hand up and say that I have accused the royal commission, publicly and in this place (I suppose that is the same thing, it is public when we speak in here); I think they have been elitist. I think the royal commission's attitude that only those South Australians who have their submissions sworn before a JP are eligible to participate in the process was an outrageous call on behalf of the royal commission. It was elitist, and I know that it stopped ordinary South Australians from making submissions.
My submission was rejected. I am a commissioner for taking affidavits in the Supreme Court, an admitted practitioner of the High Court of Australia, the Supreme Court of South Australia, and the Supreme Court of Victoria. I can witness anyone else's affidavit, anyone else's statutory declaration, but because I did not get mine witnessed before a JP it was rejected. I got a letter from the royal commission saying, 'Sorry, can't accept your submission.' I think that was outrageous, and I think it colours everything that came afterwards from the royal commission.
Regarding the cost of the royal commission, we know that the original allocation was about $6 million and then there was a further allocation of $3 million. I think the total is now about $9.1 million. As I said, I think most of that money was wasted, I think most of that money told us what we already knew. As I have said, the tentative findings dismissed three of the four broad terms of reference, leaving only the nuclear waste dump as a live issue.
The bill before us seeks to remove section 13 and, as I have said, the government's rationale for removing section 13 was about having a debate. However, in addition to the comments made by the minister, the Premier was certainly active in the media the day before the bill was introduced into parliament. He gave a number of news grabs, and it was largely those news grabs that I used to draft the amendments that I put before the bill.
For example the Premier said, on ABC radio on 7 March, 'Once the royal commission does hand down its final report, there will be a period of extensive community engagement.' On the same day, he also said that from May onwards there would be a discussion—the media transcript says 'really the rich debate'—about whether we do this or not, and then some decisions towards the end of the year. That was probably not quite verbatim, but that was how it was recorded.
He said, 'Once the royal commission does hand down its final report, there will be a period of extensive community engagement.' Then we got to the nitty-gritty, when he said on FIVEaa at 4 o'clock in the afternoon on the news bulletin:
"Our legal advice is that the legislation as it currently stands may prevent us from advancing this conversation with the community. Therefore it ' s important that we remove this barrier before taking the next step."
On the same radio station, in the next bulletin at 5 o'clock, he said:
"…there needs to be a rich public debate, there needs to be a community consensus developed around this, and that's what we're seeking to achieve."
On Mix and Cruise radio stations, again at 4 o'clock on that day, he said:
"We don't want to run into any unnecessary legal barriers. Of course it needs to be remembered that the rest the legislation which does prohibit a nuclear waste facility will remain in place and should there be a policy change in relation to that matter that can be dealt with in a further piece of legislation towards the end of the year."
So the only rational that was offered was one of debate. There was a more extensive interview that the Premier gave with Mr Ian Henschke of ABC radio 891. The Premier said to Mr Henschke and the listeners:
"Well, our legal advice is that if we don't change the law in this way it will be a barrier to the next stage in the process. Remembering that we've got a royal commission report which is in the first stage which is a tentative set of findings which are out there for public discussion. The next phase is we expect in early May to be given the final report and at that point we'll be really in more of a de liberation, a public discussion about what we should be doing and we're told, our legal advice is that presently the present Nuclear Waste Storage Prohibition Act of 2000 has a clause in it which stops us from potentially using public res ources to have that discussion so that's why we need to remove it."
He goes on to say:
"…it's a foundation if you like from which we can have our next phase of discussion but that next bit we can't really progress until we amend this legislation."
The Premier, also talking to Mr Ian Henschke, said that he was prepared to share the legal advice he had with me because I asked for it. I said that this is all about legal advice; if that is the only rationale the government has, can I see the legal advice? In fact, Mr Ian Henschke posed the question to me and said, 'Would you like the Premier to publish the legal advice?' to which my helpful response was, 'Yes, I would like to see it.' The Premier's response then was:
"I think it is reasonable for people to be concerned about us expending vast sums of money in essentially presenting the people with a fait accompli and we won't do that but I'm happy to share with Mark our legal advice about why we do need to change this Section to allow us to take the next step. So it really is about facilitating a debate so that the community can reach a sensible and wise judgment about whether we do want to take this next step. I fully appreciate it's a big decision."
I was delighted with the Premier's response that he would share his legal advice with me, so I whipped off a quick email:
I would be pleased to receive the Solicitor-General's advice on the repeal of s. 13 of the Nuclear Waste Storage Facility (Prohibition) Act 2000, as indicated by you on ABC radio on morning afternoon .
The following week the Premier's office was in contact, offering a briefing on the bill. I agreed that a briefing would be useful to me, but I said that I wanted to see the legal advice first. My email to the Premier's office said:
"I do have one pre-condition for the meeting — that is that you provide a copy of the Solicitor-General's legal advice beforehand so I can digest it and formulate any questions.
You will appreciate that the Premier promised me on ABC Radio to provide this document. The full media transcript is attached."
I highlighted the direct quote that 'I'm happy to share with Mark our legal advice about why we do need to change this section to allow us to take the next step'. My email went on:
"Let me know if this will be a problem. If I can't have this document beforehand, there is little point in meeting."
In response, the Premier's office emailed me back, saying:
"Due to legal privilege we are unable to provide you with a copy of the Solicitor-General's advice.
The Premier is happy to share the advice with you by way of a confidential briefing, whereby you will be taken through the advice in detail and a legal officer will be available to clarify any issues you may have.
Please let me know if this course of action is suitable."
Of course, if I did receive a confidential briefing, then I would not be able to talk about it in parliament; I would not be able to discuss it in public or get a second opinion, and without that ability I cannot do my job as a member of parliament, so I replied to the Premier's office, as follows:
"The proposed course of action is not acceptable, so unless the Premier has a change of heart I see no point in the briefing.
It is of no use to me to be given private confidential access to material that I cannot refer to in Parliament, cannot share with colleagues and cannot subject to any level of scrutiny.
Of course the Government is entitled to claim legal privilege, but where the only stakeholders are the Government and the taxpayers of South Australia it is a pretty bereft claim.
Can you please cancel the appointment."
In hindsight, I think I may have been premature in accepting the government's right to claim legal privilege. I have since taken it on myself to explore that issue a bit more. If you look at the Australian government solicitor's legal briefing document entitled 'Legal professional privilege and the government', it shows that privilege in situations such as this may in fact not apply. The commonwealth briefing says:
"At common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest; that is, where the communication is made in furtherance of an illegal or improper purpose, whether or not the legal adviser knows of that purpose."
It goes on to quote a number of authorities and then states:
"For the purposes of the illegal or improper purpose principle, the relevant distinction is between a communication made for the purpose of being guided or helped in achieving an illegal or improper purpose, which is a non-privileged communication, as compared with a communication made for the purpose of seeking advice in relation to past conduct, which may be privileged.
However, a communication in relation to past conduct will not be privileged if the communication is for the purpose of covering up a crime or fraud."
That, I think, goes to the crux of it because—again, this is long before I realised that the government had seen the wisdom of the Greens' approach—if a clause has been made retrospective, the obvious question is: who is being protected? Who might have broken the law and needs the benefit of a retrospective absolution?
My point—and I will not explore it too much further—is in relation to legal privilege. I do not think the government can just say that any legal communication from the Solicitor-General or the Crown Solicitor's office to the government is privileged just because of that relationship. I think they do need to explore each issue on its merits.
In relation to retrospective legislation, as members know, it is rare for legislation to be made retrospective. Most of the discussion, most of the academic discussion, even within government and legislative circles is about making something illegal and then backdating it to a time when it was legal. I might read a sentence from the Australian Law Reform Commission guide on the subject, which states:
"People should generally not be prosecuted for conduct that was not an offence at the time the conduct was committed. If on Wednesday it is not an offence to go fishing at Bondi Beach, then people will usually expect that a law will not be enacted on Thursday making it an offence to have gone fishing the day before."
The situation we are looking at here is the opposite of that. It is not a question of retrospectivity making something illegal that was previously legal; it is seeking to do the opposite. The retrospective clause is basically saying that if anyone did anything illegal we now legalise it. I think that was all the more reason why the government should have provided its legal advice. As I have said, the only justification the government had for the bill was its legal advice, so without that advice we are in the dark as to whether or not the bill is necessary.
Again, as I was chasing every rabbit down every burrow, I came across something that was a bit disturbing. Members might find this interesting because it relates to all of our conduct. It is in relation to the Independent Commissioner Against Corruption. If in the course of our work we suspect that laws might have been broken, it is not just an ability that we have to report something to the Office of Public Integrity: it is in fact an obligation.
The definition of maladministration in public administration comes from section 5 of the act and includes any conduct of a public officer that results in an irregular and unauthorised use of public money. The whole section we were being asked to repeal was the section that basically outlawed the improper use of public money. Therefore, when you make it retrospective, the question then arises: should a member of parliament have a reasonable suspicion that someone has broken the law, the question being, 'Why else would you make it retrospective?' Having formed a reasonable suspicion, we have an obligation to report it to the Office of Public Integrity.
The Hon. R.I. Lucas: And did you?
The Hon. M.C. PARNELL: The interjector asks, 'And did you?' My response is that I have not, having just formulated this view today.
The Hon. R.I. Lucas: A confession.
The Hon. M.C. PARNELL: I am in no different position to any other member of parliament who has been privy to the same information. I think the Hon. Rob Lucas, in his own style, has in the back of his mind section 56, the clause which basically prohibits anyone publishing or causing to be published an indication that they have or may or possibly might report someone. Of course, my defence to the Hon. Rob Lucas' unstated but, no doubt, well-formed attack in that regard is that parliamentary privilege trumps section 56 of the ICAC legislation.
I will say that the reasonable suspicion that I formed is evaporating and it is evaporating because the government is telling us that it no longer requires the legislation to be retrospective. Therefore, what was a weight on my shoulders, a heavy burden that I would have to be knocking on the door of the Office for Public Integrity, may well evaporate. We will see how the debate goes.
The Hon. R.I. Lucas interjecting:
The Hon. M.C. PARNELL: The Hon. Rob Lucas' interjection is that if the law is not going to be made retrospective my response is that that means the reasonable suspicion that someone might have broken the law might move into the realm of an unreasonable suspicion. Anyway, I will move on. I will not pursue that line of inquiry anymore, so there is a saving that the government has made certainly in terms of my contribution.
It is probably reasonable to say, for any member who has followed this debate in social media, that there has been a deal of speculation out there in the community as to who might have breached section 13 and that debate is fuelled by the fact that the government wanted to repeal it. Certainly, the commission itself has been the number one suspect. I have certainly copped a little bit of criticism for suggesting that I did not think the commission itself had necessarily breached section 13, but, again, I have not explored every aspect of that. Certainly, people are posing reasonable questions in relation to who else in government might have breached section 13.
People draw my attention to appointments to the Department of the Premier and Cabinet and that known nuclear advocates are being appointed to key roles. My suspicion is that there very likely is a covert unit working on the nuclear waste dump within the Premier's department. I have no evidence of that, but I would be very surprised if there is not an administrative group, formal or informal, that is investigating these issues. I would be surprised if there was not. I do not know what they are doing, what money they are spending and whether it is their only duty. The government is not making any admissions so it may well be that an outside investigation is appropriate.
Someone has pointed out the Economic Development Board to me as a body that might have breached section 13. In particular, they commissioned well-known nuclear advocate Ben Heard via his consultancy ThinkClimate to produce a business case for a spent fuel holding facility and reprocessing via Generation IV fast reactors. I was not aware of that report until the Economic Development Board decided to submit it to the royal commission as their submission. The chair of the Economic Development Board refers to it in his covering letter to the commission as a business case, so it has been put to me that the Economic Development Board might have breached section 13.
I think there are legitimate questions that have been raised and I am greatly encouraged that the government is no longer pursuing retrospectivity and is no longer seeking the complete removal of section 13 because the amendment, as I said before, that the Greens have put forward makes it clear that genuine debate and consultation are allowed. I think it always was, but we have made it clear that it is.
In terms of questions—
The Hon. R.I. Lucas: Didn't you allege the government did market research in a question?
The Hon. M.C. PARNELL: The Hon. Rob Lucas interjects that I had alleged that the government did market research and I will come to that.
The Hon. R.I. Lucas: But didn't you in question time?
The Hon. M.C. PARNELL: In fact, the Hon. Rob Lucas refers to questions that I asked in question time. It is as if he has had advance notice of the order of my contribution today because it was the very next thing that I was going to get to.
The Hon. R.I. Lucas: I have a source in your office.
The Hon. M.C. PARNELL: I did receive this morning, in fact, at 10:02am a letter from the Premier's office.
The Hon. R.I. Lucas interjecting:
The Hon. M.C. PARNELL: The letter from the Premier's office begins, 'Good morning, Mr Parnell—'
The ACTING PRESIDENT ( Hon. J.S.L. Dawkins ): And continual interjections are out of order. The Hon. Mr Parnell.
The Hon. M.C. PARNELL: It continues:
"Please find attached the answers for two of your questions without notice from the 8 and 1 0 March this year. It is unlikely these will be tabled in Parliament in time , but are being provided prior to debate of the Nuclear Waste Storage Facility (Prohibition) (Public Money) Amendment Bill as a courtesy."
I thank the Premier's office for that courtesy, but given that they are not yet on the Hansard, I now need to put them on the Hansard, so they can inform the debate on this bill. The response from the Premier to my questions asked on 8 March are as follows:
In reply to the Hon. M. Parnell MLC—
First of all, it sets out again the questions I asked—
1. If repealing section 13 is a prerequisite for public consultation on the question of a nuclear waste dump in South Australia, has the government already broken this law by spending public funds on this survey?
That was the telephone survey that the Hon. Rob Lucas referred to before. My question goes on:
If not, then why is the repeal of section 13 necessary?
2. Will the government be actively advocating for or encouraging the construction and operation of a nuclear waste dump in South Australia? If not, why is repeal of section 13 necessary?
3. Will the government release the results of the Colmar Brunton telephone survey?
The Hon. Jay Weatherill MP replies:
I have received the following advice :
The government has not broken the law. Section 13 of the Nuclear Waste Storage Facility (Prohibition) Act 2000 provides that no public money may be appropriated, expended or advanced to any person for the purpose of encouraging or financing any activity associated with the construction or operation of a nuclear waste storage facility in this State .
It is the government's position that until there is an identifiable proposal for the construction of a nuclear waste storage facility in South Australia, section 13 cannot be engaged. Whether section 13 is engaged by the Nuclear Fuel Cycle Rule Commission's report is not yet known. It will depend upon the report.
The repeal of section 13 is necessary because section 13 has the potential to prevent the government from consulting on the merits of a nuclear waste storage facility , once the Royal Commission hands down its final report on 6 May 2016 .
The repeal of section 13 does not signal a shift in the government's policy on nuclear waste storage.
On 15 February 2016, the Premier committed to deciding on next steps and embarking on the next stage of discussions with the South Australian community following the release of the final report.
The repeal of section 13 is to ensure barriers that prevent consultation with the community are removed.
The government awaits the release of the Royal Commission's final report and will then consult on the report's findings.
It will not release any public feedback prior to embarking on the next stage of the discussion with the South Australian community as part of the deliberative process.
I think that is in response to my question about releasing the result of the survey. The Premier has chosen to answer that by saying that they will not release any public feedback prior to embarking on the next stage. I think by 'public feedback' he is referring to the survey.
The next questions I asked were on 10 March. My questions were:
1. Which ministers or agencies have already breached section 13?
2. Which particular ministers or agencies is the repeal of section 13 designed to protect?
3. Which of his ministers is the Premier most afraid have already fallen foul of sectio n 13 or are likely to do so in coming months?
4. What will happen if the government's bill is not passed but ministers act as if it has? Will those ministers be prosecuted?
5. Will the Premier release the Solicitor - General's advice , as he promised to do during the interview on Monday evening?
The Hon. Jay Weatherill MP replies:
I have received the following advice :
No Minister or agency has breached section 13.
It is the South Australian Government's position that, until there is an identifiable proposal for the construction of a nuclear waste storage facility in South Australia , section 13 cannot be engaged.
The repeal of section 13 is not intended to protect any particular Minister or agency. It s repeal is necessary because section 13 has the potential to prevent the government from consulting on the merits of a nuclear waste storage facility once the Royal Commission hands down its final report t o the government on 6 May 2016.
No action will be taken by any minister in breach of section 13.
It is a very confident response from the Premier there.
Advice will be sought as to what action is open to the government in the event the Bill does not pass. This advice will guide the government's future action.
The Solicitor-General's advice will not be released as the advice is subject to legal professional privilege. The government's offer to brief members on the Bill stands.
I thought, given that I have now received those answers, they were not yet on Hansard, so they are now. I will just run through the additional questions I have. I already asked the government about whether ministers and agencies might have been in breach of section 13, but I think I also need to pose the same question about public servants. I will number these questions, just to make it very easy for the government to respond. There are 26 of them.
1.Has the government received legal advice that a state public servant or public servants have breached section 13 of the act?
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?
3.Has the government put the people of South Australia at risk of the government of this state being prosecuted? That is the question Vickie Chapman asked in the other place. A response has not been received, so I will put that back on the record.
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?
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.
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?
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.
8.Did the government obtain legal advice as to whether legal privilege was appropriately invoked in this case, or is it simply a case of the government assuming that all of the legal advice it receives is privileged and therefore protected from disclosure?
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?
10.Did the royal commissioner ask the government to introduce a bill with this content? Again, I acknowledge Vickie Chapman asked that question in another place.
11.Has the government or the commissioner, to your knowledge, received any correspondence from anyone threatening to pursue the question of breach of the act that we are currently attempting to repeal? Again, that is a Vickie Chapman 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? That was a question from Mr Dan van Holst Pellekaan in another place.
13.Another one of Mr van Holst Pellekaan's questions is: why is it necessary for the government to spend any money to encourage any further aspect of the royal commission until the commissioner gives his final report on 6 May?
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?
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 dump proposal?
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?
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?
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.
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 this cost.
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?
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?
For the benefit of members, Michels Warren specialises in building and protecting brands. They have a long history of working for the nuclear industry in South Australia, including being engaged by the commonwealth government between 1999 and 2004 to provide services related to supporting an affirmative case for the establishment of a nuclear waste repository in South Australia.
Again, by way of further background, an email dated September 2000, which was obtained by Environment Minister John Hill in the 2004 and written by Stephen Middleton from the firm of Michels Warren, talked about the need to 'soften up the community' and to 'sell' the repository. He also stated:
"We will lose ground once again unless we can soften up the community on the need for the repository and the reasons why South Australia has been identified as the best location. The prospect of the minister announcing the preferred site before we can get to the community with something that explains what it all means makes my head spin. The wider research into issues such as Lucas Heights, uranium mining, the nuclear fuel cycle, etc. etc. can be tackled as a separate issue. It should not hold up anything we are doing in terms of selling the repository to South Australians. The rest of the country probably doesn't care less about the repository, but it is a big issue in SA. Further delays could be potentially disastrous."
Interesting—so question 21 was whether any of that money has gone to that particular firm.
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?
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?
24.How much did the royal commission pay Parsons Brinckerhoff for their quantitative analysis and initial business case - establishing a nuclear power plant and systems in South Australia?
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?
26.What other public money was involved in the Economic Development Board's research into nuclear waste?
It was a lengthy contribution which perhaps would have been a bit briefer had I known more than an hour or so ago that the government was in fact intending to support key amendments that in fact undo most of the harm this bill held, in my view.
I still maintain that the bill itself is unnecessary but, in the spirit of not wanting to stand in the way of genuine and open public debate, the Greens' amendment in fact gives the government everything that they say they want. If they want to go further, they must come back to parliament with new legislation. They cannot get into spruiking mode; they cannot get into the planning and design of a nuclear waste facility without coming back to parliament—and that is exactly as it should be.
HANSARD 13th April 2016
Clause 1 passed.
The Hon. R.I. LUCAS: I move:
Amendment No 1 [Lucas–1]—
P age 2, lines 6 to 8—Delete the clause and substitute:
(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]—
P age 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.
The Hon. M.C. PARNELL: I move:
Amendment No 2 [Parnell–1]—
P age 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]—
P age 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.
Bill reported with amendment.
The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 18:22 :15 ): I move:
That this bill be now read a third time.
Bill read a third time and passed.
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