It is a rare day indeed that the Commonwealth does not get its way over a state or territory once it puts its legal and financial mind to it.
So it was out of the ordinary this week for the Commonwealth to submit to South Australia’s efforts to block the national nuclear waste dump proposed near Woomera in that state’s far north. It was so out of the ordinary that you would have to conclude that the Commonwealth was not really trying. There is an election pending, and South Australia has too many marginal seats that might be affected by the Commonwealth forcing the issue on the dump. So why try when you can bow out gracefully on the moral high ground?
Even so, the power of the Commonwealth to acquire land in any of the six states is in such a hiatus that it would be perfectly reasonable for the Commonwealth to put the nuclear waste dump in the ACT. Shock. Horror.
It is worth revisiting last month’s Full Federal Court decision that led to the Commonwealth throwing in the towel.
The judge at first instance found for the Commonwealth, but the Full Court of three judges allowed South Australia’s appeal.
The history goes back to the mid 1980s. The Hawke Government and the states agreed that there should be a single national nuclear waste repository (a better word than “dump” because “dump” indicates throwing out and abandoning, whereas the nuclear repository will be constantly monitored and looked after).
There would be a scientific investigation to find the most suitable site. In May last year it settled upon a site near Woomera in the South Australian desert. The Commonwealth said it would then compulsorily acquire the land.
The Rann Labor Government vowed to fight against the plan, basically reneging on the earlier agreement.
But under the Land Acquisition Act the Commonwealth cannot acquire land without an independent review and it cannot acquire part of a public park unless there is a review under the Environment Protection (Impact of Proposals) Act 1974 and the state government agrees to the acquisition.
So South Australia, to put a spanner in the works, put up legislation to make that small area plus a little more a “public park”. It was a legal ploy. It was not a genuine public park. The legislation would go through while the Commonwealth went through the inquiry process.
But just before that legislation could be enacted the Commonwealth moved under another part of the Land Acquisition Act that allows the Minister to do away with independent and environmental views if “the Minister is satisfied that there is an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed”.
The Commonwealth moved for instant acquisition. That moved was challenged successfully by South Australia.
The Full Court asked, What did Parliament mean by “urgent necessity” and “contrary to the public interest”? Given that the Commonwealth Parliament had specifically stated that no public park was to be acquired without the state government’s consent, a ministerial desire to defeat a state government’s attempt to make a public park of land under threat of acquisition could not possibly be one of the reasons of “urgent necessity” that Parliament had in mind when granting the Minister the power to move for instant acquisition.
Similarly, it could not be contrary to the public interest to delay an acquisition just because it might be defeated by one of the things that Parliament had in mind when restricting the acquisition power.
In short, the Commonwealth Minister’s attempt to stymie South Australia’s clever public park ploy was not a proper exercise of the power to steamroll the acquisition.
On its face, it now means that whenever a state is faced with a hostile Commonwealth acquisition of land, all it has to do is declare the land a public park.
That might well be the conclusion the Commonwealth has drawn. If so, it means it is pointless for the Commonwealth to eye off any land in any state for the purposes of a nuclear waste repository. The state would declare the land a public park and that would be the end of it.
It leads one to the conclusion that the Commonwealth must turn to a place other than the six states – that is, the territories. Antarctica is out. Other overseas territories are small islands without much infrastructure. The Northern Territory is possible, but it, like South Australia, has marginal seats.
That leaves the ACT. The ACT Government cannot declare public parks whenever and wherever it likes. It is subject to federal authority, particularly that of the National Capital Authority which could stymie any public park declaration.
The Commonwealth could push ahead with a nuclear waste repository in the ACT. The ACT has the advantage of being close to Sydney – and Lucas Heights — so most of the stuff would not have to be carted far. More importantly, the ACT does not have any marginal electorates. The two Lower House seats will go to Labor, and the Senate seats will go one each to the majors, as they always do.
The Commonwealth could conveniently ignore the fact the Full Federal Court said that the South Australian “public park” stunt might not be legally watertight.
One judge noted that the Commonwealth had asserted that the enactment of the South Australian Public Park Bill would have had the effect of placing the Woomera site in a ‘public park’ within the meaning of the Lands Acquisition Act.
“The correctness of this assertion may be open to doubt,” she said. The court had to determine what a “public park” meant under Commonwealth law; the state legislation could not do that. She said, “Even today a question might arise as to the propriety of an exercise of the legislative power of South Australia for the purpose of restricting the exercise of power given to the Minister” to compulsorily acquire land.
It was almost an open invitation for the Commonwealth to challenge the South Australian “public park” stunt legally.
The Commonwealth chose not to do so. It allowed a perfectly good national scheme to deal with nuclear waste to go down the tubes so it could grandstand politically, so it could blame South Australia and the states – and save its neck in some marginal South Australian seats.
But then again, the Rann Labor Government behaved in exactly the same way for the same reason – stymied a good scheme to deal with nuclear waste for short-term advantage.