How courts killed nuclear waste facilities in Australia
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- Опубліковано 20 сер 2024
- While the Commonwealth Parliament may well have the constitutional power to enact laws that authorise the construction and operation of nuclear power plants in Australia and to override conflicting State laws, such projects can still come undone in the courts.
This video explores how efforts to create a national nuclear waste storage facility in Australia have been overturned by the courts on a number of occasions. This is because of flaws in the government's decision-making process, triggering administrative law challenges, or a failure to comply with the conditions of legislation. These problems could ordinarily be solved by amendments to the relevant legislation, but this is often not politically feasible. Hence, having constitutional power to act is often insufficient. Compliance with, or alteration of, relevant legislation will also be necessary, as will procedurally fair government decision-making.
"Politicians need discipline...." in my 20 plus years of working with politicians, never ever has a truer sentiment been expressed! 😂
"Politicians need discipline...." quite true but it will never happen. Their lack of discipline increases exponentially the closer they get to the next election and the poorer their polling results are in the popular media.
And intelligence. And a spine.
Thank you for this detailed and very well researched video, and the prior one on laws governing building reactors. They should be mandatory viewing. It's a reminder of why we need a constition and courts to balance out government excess, or just blind rushing into anything. Applies regardless of what government is in power.
You are welcome.
Red tape not always the demon. Another honest & informative insight. Thank you 👍👍
I just discovered Constitutional Clarion. I'll be watching more. Thank you for providing information not readily available elsewhere.
Oooooh you are now my new favourite channel 👍what a privilege to get access to such matters🙏🙏🙏🙏 really appreciate it.
Thank you for another fascinating journey into the interface between politics and the law. From your comments it seems that we’ll get nuclear power when there is broad community and bipartisan support, which is not something we’re likely to see anytime soon on this issue.
If the government of the day can meet the standards put down in legislation that Anne mentioned, their efforts will survive legal challenge. If a competent government were to try this they could achieve it, even without broad community support. Bipartisan support means there is no challenge, which is a much easier standard to meet.
I know this is only tangentially related to the topic of constitutional law but I think the biggest hindrance to the development of nuclear power in Aus is that the requirements for community consultation that are currently holding up renewable developments would equally hinder nuclear ones. If those requirements are waived, the renewable generation projects will succeed long before the nuclear ones can be constructed. Nuclear's only chance is if a different set of laws are applied to its construction and planning. I suspect this is the reason that the Coalition wants the reactors to be state owned - this means they can support their construction with a different set of laws than those used to manage renewable generation projects.
Fundamentally disagree. I'd suggest that most Australians do not want a command economy.... and with democracy its encumbant on our leaders to sellto/ persuade us what we need is in our best interest.
They would just put the dumps near the most vulnerable people. They are going to be in rich areas are they?
Case and point: They tried to get one in Leonora, WA. Aboriginal community of course. It had 'community approval...' In that the shire president, white bloke, said that Aboriginal community wanted it. He then resigned so that he wouldn't have a conflict of interest because the site was going to be on his land and he was going to make a ton of money. His mates on council than tried to get it through.
Turns out none of the Aboriginal community want it there.... Hasn't been as popular since the shire president's mates weren't elected again.
@@anthonywatts2033 I would have agreed with you last month, but in the last week I have seen the strongest voices that typically speak out against a command economy enthusiastically support Dutton's plan, and the people who rely on those voices haven't batted an eye. I'm very interested to see how the rest of the electorate responds, not just the noisy bit.
Thanks. The real issue is national interest. Politicians mainly act in terms of what they see to be the national interest. However, ideology and venality sometimes gets in the way.
Courts mainly act in terms of what they see as the law, but not unusually venality gets in the way, the lawyers picnic is a reality.
The final section really reveals how much the political side of government needs to get its sh*t together. Too much media fondling perhaps, and of course the truth that the representative system has been broken by party policy and factional shenanigans.
Probably time for an overall fix.
Totally agree. We just need more Australians to realise it
God yes. 100% broken. I was a union delegate for years and was historically a Labor voter. Your representative is forbidden by Labor party policy to represent you unless it agrees with the Labor party direction as a whole. If your community strongly opposes something Labor is doing they still have to vote in favour of it and support it. If they cross the floor they will get kicked out of the Labor party so they never do. If your politician isn't on the front bench they have no ability to make change.
Remember back in the day Judy Molan, Liberal, would cross the floor regularly and was hated by John Howard. But she was super popular with our community because she would do what we wanted her to do... not what her party wanted.
Labor has only crossed the floor a total of 28 times in it's history. 3% of all floor crossings. Coalition MPs make up 90% of floor crossings because their party policy allows it.. though it will torpedo their career.
Still won't vote Liberal though.
NIMBY problem. I remember when a high tech incinerator was to be situated at Corowa, there will be no odour but the locals didn’t want it. In Melbourne, the government wanted to build a new mortuary. Mortuaries are essential but nobody wanted one in their municipality.
Thank you again for another timely and politics-free explanation of the law relevant to an important issue of the day. This is something we don’t get from most media (not even in your 30 second sound bites), as they are trained from birth to focus on conflict.
I look forward to seeing and learning from many more of these.
Thanks. Glad to be helpful.
I’ve always wondered which companies are going to service and provide security to radioactive waste that is toxic for the next 1,500 years. Perhaps you might point to any currently operating company at all that has currently lasted 1,500 years yet alone any nation.
Anne, thank you for your videos! I've just found your channel and find it very interesting!
For anyone who is interested in nuclear and waste solutions, I'd highly recommend doing the public tour of the facility at Lucas Heights and grasping some of the amazing things coming out of there. In particular from some of the comments, the CSIRO synthetic rock for nuclear waste disposal (and yes, the science shows it will last longer than the nuclear material encapsulated within). This is another technology that we Australians will sell to someone else and have to pay to use into the future.
Fabulous as always from you Anne
Thanks so much 😊
Jesus Christ. This country is doomed. Trying to get anything done is nigh on impossible. Not for nothing did Tacitus say that 'the more numerous the laws, the more degenerate the State'. Australia proves it.
Too many laws, too many layers of bureaucracy, far too much regulation... buckley's chance for almost anything to happen.
@@AximandTheCursedIn this case, that is a good thing.
How is it that under the AUKUS agreements we can take US nuclear subs waste>?
Another great video, it appears that a loophole is the holy grail to many ministers
Thanks.
the trick is to make the problem a shared problem, then maybe you can get a shared solution
Perhaps the waste could be buried right next to the generating plant. Modern disposal of nuc waste has been incredibly improved, and there is not that much of it as there was decades ago, due to a far more efficient operating methods, most of the pellets are burned up.
This video made me smile & reminded me of a personal experience which (sort of) illustrates your point: Many years ago I applied for permanent residence for my wife to migrate to Oz. Having dealt with govt for many business projects I obsessed over the required details, dotting every 'i' etc and, bingo, was successful with my first attempt.
My mate did the same for his partner. He was more 'slap-dash' and took 4 attempts (and significant $$) before succeeding. His approach was "ministerial" where mine was "bureaucratic". 😀 Details matter!
Yes, details really do matter.
I have no idea why I automatically read your final statement as ‘metails datter’ on my first reading!
Economic investigator Frank G Melbourne Australia is following following this very compelling decision making in our constutional frame work and have shared it on my "Public UA-cam channel" great content ! cheers Frank 😊 14:40
I'm not sure Australia is able to build anything today - judicial and political constipation.
We had a small radioactive source lost off the back of a truck in WA and it caused absolute mayhem here ...
Imagine a whole truck full of waste falling off the road ?
Chaos !
No thanks , keep youre waste in Canberra ...
Duttons office to be specific ...
Did you know that radioactive material has been transported everyday via road and rail for years. I don't think it can be avoided.
@@karenm7449 yes that's true and I have worked in fields that used rad sources but my point was we are not equipped for a disaster , major or minor in Australia because we dont have a nuclear industry to speak of ...
A 1 gram rad source caused mayhem , imagine a 1 tonn rad source rolling around in the bush ?
I can ...
Im also not alone not wanting this to happen ...
In 86 we voted this industry into oblivion , now we do it all again ...
I also know Duttons plans are unconstitutional ...
Damn! I was at the water cooler last week and started spouting off about federal law overriding state law and everybody was impressed. But now......
You were still right, but now you can give a more nuanced addition next time!
The Commonwealth has no power to override the States "residual powers". S109 only applies to the shared or concurrent powers and only to the extent of any "inconsistency" between Commonwealth and State statutes.
@@mjguerin63 Section 109 applies to all 'valid' laws of the Commonwealth. This means that they need the support of a constitutional head of power (as explained in the video). They must also not breach any other constitutional requirement - express or implied.
The Commonwealth Parliament can override State residual power when its laws are valid - eg ratification of a treaty expands the scope of Commonwealth legislative power by allowing it to implement treaty obligations, allowing it to override State laws based on their residual powers. But of course the Commonwealth can only do this as long as it doesn't breach other constitutional requirements, such as the Melbourne Corporation doctrine.
@constitutionalclarion1901 thanks.
Thanks
Very interesting. Not all judicial activism is actually judicial activism, especiallywhen governments lack patience or political will.
Your opening titles seem to overlay the view from Kirribilli House, and/or Admiralty house is this significant ?
It's actually footage from the lighthouse at Cremorne Point. The constitutional joke was going to be that the Constitutional Clarion is a section 51(vii) 'lighthouse' in a sea of constitutional confusion. But as this resulted in too many words to put on the banner, I had to abandon it.
"Liked" another shrewd analysis of Constitutional function. I also liked the idea that indigenous owners are defending the general community from "back room" agendas. It should be compulsory for the Federal Government to meet and consult members of the general public so political parties and lobby groups cannot cannot hijack the discovery & decision process.
What doesn’t seem to be mentioned is the amount of water required for any nuclear power station to exist. Also imagine the potential poison which potentially contaminate the Coxes River near Mt Piper at Lithgow . This river feeds Warragamba dam, Sydney's water supply !!!!!
On an unrelated question I was having a discussion with a couple of friends on section 122, essentially the argument was that if a government had favourable electoral results in either of the territories, such that increasing the number of senators in both ACT and NT to a ridiculous number like 38 senators each, do you think the High Court could deem such an action unconstitutional given that a Prima facie interpretation of section 122 seems to indicate that parliament has the power to determine representation of territories in both houses “to the extent and on the terms which it thinks fit.” I wonder what your interpretation of section 122 would be if a political party tried to do this. In addition to this do you think that such a move would be irreversible since by “stacking” the senate the opposition party would be unable to restore the status quo. Or do you think this argument is redundant since in this hypothetical scenario if the ACT and NT had 38 senators each plus 12 senators for each state, then that would be 148 senators however surely the House of Representatives would have 296 members and surely the opposition party could deal with this clearly anti Democratic policy by using section 57 to resolve this matter?
Quite a few difficult questions there. Off the top of my head (as I don't have time right now to look into it), I'd say that such an attempt would not survive a constitutional challenge. From recollection, the jurisprudence on territory senators is pretty dodgy, and any attempt to exploit the position would push it off the 'spectrum' of constitutionally permissible action.
Maybe one day, when I get time, I'll do a video about it (and territory representation in the Senate generally), as it is quite interesting.
@@constitutionalclarion1901 Thanks so much for your response, the principle of epistemic humility means i should admit that I was wrong, i have however always been interested in possible "constitutional holes" that might be exploited and how future referendums could be used to plug those holes, I have never heard the term of "the 'spectrum' of constitutionally permissible action." used before but that makes a lot of sense. I'm also glad that such an action would be viewed as unconstitutional. Once again thanks for your excellent response and an equally as amazing video, I love how many of your videos remain relevant to political topics in Australia whilst also identifying connections to Australia's Legal, Constitutional and Judicial System.
Very informative and much needed content. Thank you!
You are most welcome.
That is one admirable kerchief!
Indeed, I'm quite enamoured of it.
many thanks !
You are most welcome.
I don’t really get the apprehended bias objection. The government’s objective was clear. The Minister was leading efforts to acquire the site.
Build the reactors in Vaucluse, Toorak, Peppermint Grove etc.....
If the States and traditional owners do not permit these low level waste facilities on their land, then perhaps they should also give up their right to use the radioactive substances for medical and other such purposes. This smacks of hypocrisy. We are happy to use the radiation but then ship it overseas when it becomes waste.
What a ridiculous statement, as if anyone wants this garbage on their land?
@@bradleywillis9586 Without radiation we die.
As a beneficiary of nuclear medicine, I find it particularly disappointing that after two decades or more of political machinations, Australia does not have a purpose-built site to store nuclear waste securely. In quasi-medical terms - you've hit a nerve!
What you've also highlighted for me is the failing talent within government for "statecraft" - tellingly, a term not used much these days.
Statecraft encompasses much of what you said about the need to for care, discipline, time management and attention to detail in government processes. The term itself probably travels a bit further. It involves juggling priorities but critically involves not messing the rules and conventions of government.
Amongst many other things, statecraft also relies on rules and conventions and the co-ordination arrangements within executive government to curb the enthusiasm of the dull and the reckless. The flip-side of that is that, the courts only get involved where statecraft has failed or has reached the end of its tether.
In Australia, good statecraft might pre-suppose a working knowledge of the extent and limits of the Commonwealths powers. But the use of that that knowledge would be tempered by an understanding that the existence of a power does not mean that it must be exercised or, for that matter, determine how the relevant politics plays out.
A purported advantage of the political Executive being drawn from parliament was that it gave MPs a better grasp of what was needed to run an effective and consensual government. Parliamentary service would provide a practical grounding in law-making and deepen each legislator's understanding of the limits of the possible and of things that are negotiable and things that aren't - aka 'statecraft AO1', (also possibly also a distant cousin of 'proportionality".)
Is a ministry drawn from the parliament more aware of the political eco-system than one that has none or little legislative experience, as in the US? I'd like to think that it is and that statecraft still matters even if some of those elevated to ministerial office just "don't get it".
Sadly, the Robodebt and the multiple secret prime ministerial ministries scandals here, and the 'just get it done' mantra of recent UK governments, reveal an enhanced appetite for rule 'bending' and for verbal 'misfeasance' in government.
And so . . . several hundred words and one giant tangent later - yes, I agree. Excellent - both talks. You definitely got me thinking. Many thanks.
As to the politics of Dutton's 'seven sites' . . . what's that line in Shakespeare's 'Richard III'? Something about a thing brought into the world, unfinished and before its time? We'll see.
Thanks Bob. Yes, I think there is a failure of statecraft these days. Politicians do need to be better educated about matters such as administrative law and the constraints on decision-making. Perhaps even more importantly, their staff in their ministerial offices desperately need to be educated in these things, rather than the dark arts of spin and manipulation.
My impression is that public servants hit a brick wall in ministerial offices when trying to secure proper decision-making, and in many cases seem to have given up altogether.
@@constitutionalclarion1901My own experiences were better than 'mixed'. But that was nearly two decades back. I recall Senator Robert Ray telling all incoming Labor staffers in late 2007 that "[p]ublic servants are your friends, they will you when you are wrong and try to save you from yourself". (That was when I was out-posted to Gillard's office where I was treated particularly well.) I can't think of a Coalition elder who would or could make that sort of speech to new staffers now. In the 1980s, there would have been a good many who would not have struggled to do so.
During the Howard years, my rare direct dealings with Coalition Ministers had been fine too. If there was friction, it was invariably with a particular staffer or an over-zealous officer in a coordinating agency. Back then, strong agency heads were still pretty thick on the ground too. And what that great political thinker, Hercule Poirot, would refer to as "order and method", was still the norm and not the exception.
What's happened post 2010 in the main represents an acceleration of trends that announced themselves many years earlier.
Government and parliamentary politics is always rushed. Politics is hard fought. And problem-solving no easier, even with all the advances in technology and the general lift in education standards.
A great many ministerial staffers don't last long. And that's not good news for statecraft either.
A rapid turn-over of ministers and party in-fighting can't help but disrupt or strain relations between the two arms of executive government. And there's been a lot of that post 2010. The 'climate wars' within the federal Coalition would have been a particularly difficult time for departmental advisers. UK Governments post-Cameron have plotted a similar path.
Most interesting…, lol … I enjoy engineering…, but law, medicine so many incredibly important aspects of our societies & nations..🙏
Would it be open for Parliament to make all ministerial decisions subject simply to the minister's absolute discretion?
Would the High Court be likely to accept that, or would they be more likely (at least under current practice) to say removing such barriers to unfair devisions is unconstitutional?
It would raise constitutional issues to the extent that s 75 of the Constitution guarantees a right to judicial review of certain decisions made by an 'officer of the Commonwealth'. There is a lot of law about the minimal requirements for decision-making - but an administrative lawyer would be a better person to ask about this.
What about a Nuclear Waste Facility on Commonwealth Land?
Yes, one of the plans was to put it on defence land in the Northern Territory. There are still issues about getting it to and from, and also challenges to decision-making processes.
Brilliant as expected Anne. My mind brings me to asking with respect to this political v's Constitutional obligation whether given our current political bias whether in the circumstances section 123 could be interpreted to play a roll in the decision making process on the subject at hand?
In regard to the huge amount of detail required for the legislation to put in place a nuclear power industry from scratch i just cant see it happening. Its akin to creating an aviation industry but without community support !
I would have thought Mukaty was a sexist land grab by Federal government, they consulted the Men, and not the Women, on Womens country, isn't that what happened? I've only come to have an understanding through, Kylie Sambo and the song.
So they already have trouble with ONE nuclear station's waste but are talking going nuclear???? How will that help the environment long term??? ABSOLUTELY NOT I would suggest 😡😡😡☠️☠️
Fascinating. Do please share your thoughts on the LNP's proposals to compulsorily acquire nuclear sites.
Simply by using the term LNP you are either showing that you are a Queenslander or betraying that you are strongly against the Liberals and Nationals because lumping them together with that term is a favourite tactic of those opposed to them. Swinging voters very rarely use that term outside Queensland.
@@Dave_Sisson I am indeed a Queenslander. Now may we proceed?
@@gibbonsdp Sorry, I withdraw and apologise. I'm just tired of people from the southern states using the term to conflate anything the Libs with the Nats.
@@Dave_Sissonthe LNP call themselves the LNP. And... since the LNP always join forces to form government, then it makes the most sense to refer to them as the LNP.
the topic, in terms of the constitution, has already been covered in the previous 2 videos
I have a better idea we send our nuclear waste to mars.
Section 4 of crimes against the crown says any act causing government, claw, constitution, sovereign to be held in hatred and contempt is a Seditious Act. Such acts would therefore include acts of Government, Law, Constitution, and Sovereign causing Government, Law, Constitution, Sovereign to be held in hatred and contempt. So consensus of the whole populace is required.
At an acre per person world wide, Australia by population constitutes Tasmania. China on the otherhand have a territorial shortfall equal to mainland Australia.
I'm afraid your interpretation of the meaning of sedition goes too far. It is far more limited in its scope. It certainly does not require a consensus of the community in relation to political matters. The Constitution instead requires the holding of regular elections so that the people can have their say then.
@@constitutionalclarion1901 it does require my consent or I find it to be an act causing me to hold government, law, constitution, sovereign in hatred and contempt as is any conspiracy to sedition by those in government to remove that right. Just because the rest have been told their approval is not required doesnt mean their approval is not required. It has always been required.
@@SMunro No - criminal law is not based upon your consent or your opinion about whether something causes you to hold the government in contempt. Otherwise, we would not have a system based on the rule of law, but one based on anarchy.
@@constitutionalclarion1901 you think any form of government other than of the many by the few is anarchy and the government has the right to interpret laws guaranteeing human rights to consensus of every citizen in a way that revokes those rights? And yet you think the federal government cannot treat the state governments in precisely the same way. Feel free to take that to an election.
@@SMunro But that's not what the law says. It does not guarantee rights by way of the consensus of every citizen.
SO; YOU BETTER FIGURE OUT WERE TO STORE THE NUCLEAR WASTE BEFORE YOU BUILD SEVEN ! NUCLEAR POWER STATIONS ! IF YOU CAN´T STORE IT IN AUSTRALIA-
NO OTHER COUNTRY WILL TAKE YOUR WASTE !
At the moment we store nuclear waste in hundreds of locations around the country including many hospitals. Governments have been trying to arrange suitable national storage site but those who oppose IPCC climate solutions (aka anti-nuclear) continue to oppose and litigate every attempt.
@@kevinpaine7893 THAT´S WHY I´M SUGGESTING TO FIGIRE OUT WHERE TO STORE THE NUCLEAR WASTE OF SEVEN NPP BEFORE BUILDING THEM !
@@ChristianDominicWindsor We know where to put them, just have to stop those opposed to climate change solutions from constantly preventing them being approved. The Napandee site is the best option.
We can dump it in the ocean like everyone else does@@ChristianDominicWindsor
@@ConstableRinkels THE NEXT GENERATIONS WILL BE VERY GRATEFUL ?!
Hello, I enjoy your posts. This is a suggestion unrelated to this current post. I'm a bit obsessed by the politisised US judicial system. It seems to my untrained eye that rabid political bias, if not corruption at some levels produces a rancid system that delivers anything but blind justice. I reckon that our system is better, but I am sure not entirely free of susceptibility to corruption. Would a vlog from you on corruption in the Australian judicial system be interesting and possibly a separate vlog on comparison between our system and that in the USA. This seems important to me as many Australians pick up all sorts of misunderstandings of the law and its operation through the TV we watch. One simple thing is people saying something is contrary to the Official Secrets Act. Which Australia does not have, this stuff being picked up in the Public Service Act, if things have not changed. Sincerely, Ian
People insisting the constitution gives them the right to a phone call if arrested - no, that's TV. The best one I know is that phone carriers have to have in place a system that automatically diverts a 911 call to 000, because so many people think 911 is our emergency number.
'They need the discipline to implement fair decision making processes.' Wrong. This misses the fundamental point. The legislation, the National Radioactive Waste Management Act, goes out of its way to undermine the rights and interests of all Australians, in particular Traditional Owners. Even in Labor's 2012 version of even more draconian Howard-era legislation, failure to consult does not invalidate a dump site nomination. Overall, community campaigns plus strategic litigation stopped these dump sites. A government that wanted to establish a waste facility should first amend or repeal the racist, undemocratic NRWMA so it is negotiating with interested parties in good faith ... not just be 'disciplined' in following the letter of the racist, anti-democratic law.
I hope you are advising the States with proposed sites for Dutton's folly on the need to convert the seven proposed sites into public parks 😆😁😁.
Your comments about public servants advising ministers of the "safe and sure" way to implement the minister's policy being overruled by the minister in his haste to implement the policy (or his haste to have him and his policy in the headlines) in my experience happens very many times. Again, in my experience, it happens more with ministers from the conservative side of politics more than it does (did) from the progressive side. It's easy to see why "Yes Minister" was so popular with public servants 😃😆😍🤔😵💫😬
Looks like my comment has been censored again. Our censorship in Australia is out of control
Nothing to do with the government
Its All down to UA-cam 🤷
@@Noddy2750 It our Govt. censor in Australia, youtube has given them tools to censor Australians
I have set the level of UA-cam review of comments to 'strict' for my videos to weed out inappropriate ones, as I don't always have time to review the comments myself and don't want to be responsible for abusive material lingering here.
I concede I don't often get around to checking what got put in the 'hold' box for potentially inappropriate material, so things can linger there for a while. Mostly the algorithm for picking them up is pretty good, but sometimes its choices are rather odd!
@@constitutionalclarion1901 It doesn't seem to be just your videos. I'm trying to learn about and get involved with our political system so I've been asking a lot of political questions on a lot of Australian political channels and I seem to get more than half my questions deleted.
Thank you for taking the time to reply
@@TheAbeKane I'm afraid I can't explain why, because I don't really understand how the system works either. Sometimes I see questions come up, and when I click on them to reply, I get sent to the comments section for that particular video, but the question has disappeared. It has happened to me a few times (and there was nothing wrong with the question either). It's a bit frustrating.