Nuclear Compromised Democracy – How BHP Billiton and the SA Gov denied Freedom of Information

http://markparnell.org.au/speech.php?speech=1102

Speech

Legislative Council

GOVERNMENT BILL: Roxby Indenture – Committee Debate Part 1

November 24th, 2011

On the 24th of November, Mark began debating in the committee stage of the Roxby Downs (Indenture Ratification) (Amendment to Indenture) Amendment Bill in the Upper House.

Partial quote. See original for full text.

Clause 6.

Over-riding of State Laws

The Hon. M. PARNELL: I have six amendments to this clause but before moving them, this particular provision of the original legislation as modified has been one of the most contentious because within this section is the list of acts which are specifically said not to apply to this project. That is not quite correct; it is not that they do not apply but they are to be read down so that they are consistent with the indenture. If there is anything in any of these acts that is more onerous than that required by the indenture, the act must be read down. The law of South Australia must be read down to be consistent with the indenture.

However, in this section that is being amended there are two provisions. The first provision talks about the whole of the laws of South Australia being subject to the indenture and then there is a specific list of legislation. Can the minister explain what the difference is between those two approaches? The first approach is to say that all laws of the state are to be read down, and then to go on to say, ‘But without limiting the generality of that, here is a list of ones in particular that have to be read down.’ What is the purpose of that structure? What is the difference between reading a law down generally and reading a specific act down because it is listed?

The Hon. G.E. GAGO: I have been advised that those listed specifically refer to the indenture or are ones that are most likely to impact on the indenture.

The Hon. M. PARNELL: Just so I understand the minister’s answer: what the previous act did and what this amending bill does is to extract the acts that are most likely to relate to the indenture but it does not purport to be an exclusive list, in which case I will proceed to identify one act that I think does have implications—it is not on the list—and that is the Freedom of Information Act.

My question is: if there is a dispute between an applicant for documents under the Freedom of Information Act and the company—and I say at the outset that I am not talking about people applying to the company under the act because we do not do that; we apply to government agencies—and let us say the company does not want a member of the public or a member of parliament to have access to a document, how does the Freedom of Information Act and this indenture read together resolve that dispute?

The Hon. G.E. GAGO: I have been advised that the Freedom of Information Act would apply normally, so in the same way it would elsewhere.

The Hon. M. PARNELL: I thank the minister for her answer. It would be nice if that was correct, yet the history of the last 20 years shows that people who seek documents in relation to the Olympic Dam mine under the Freedom of Information Act are told that they cannot have those documents, either because of one of the exemptions under the act itself, or, more likely, because of the confidentiality provisions that are in the indenture act itself. The minister says that the act would apply. Do the confidentiality provisions of the indenture become part of the considerations of the agency when determining whether to disclose documents?

The Hon. G.E. GAGO: I have been advised that commercially confidential information is relevant in the consideration of all FOI deliberations, and it also has to be considered here.

The Hon. M. PARNELL: I understand what the minister is saying. The big difference, of course, is that whether something is commercially confidential or not could be considered by the Ombudsman, for example, because it is a claim that is made all time and it is often not found to have any basis in fact. Yet if there is a special contract between the state and the company that says that something is confidential, then it certainly makes it harder.

The minister said the act applies, so I will just get her to clarify one other point in relation to that. If there was a dispute, if someone went to a government department seeking documents and they were refused, can the minister clarify that they could go to the Ombudsman on an external review and that the Ombudsman would make the determination, that it would not need to go through any other process by virtue of the indenture? For example, there is an arbitration process in here for disputes between the government and the company. Can you clarify that third parties seeking documents would not have to go through that process?

The Hon. G.E. GAGO: I am advised that the dispute mechanisms under the FOI Act would apply.

The Hon. M. PARNELL: Sorry, the dispute?

The Hon. G.E. GAGO: The dispute mechanisms.

The CHAIR: Would you like to move your amendments?

The Hon. M. PARNELL: Yes, if it is the will of the committee. My amendments Nos 1 to 6 all relate to clause 6, and, if it is possible, I am happy to move them en bloc if it suits the committee.

I move:

Page 4—

Line 6—Delete subparagraph (ii)

Line 8—Delete subparagraph (iv)

Line 16—Delete subparagraph (xii)

Line 17—Delete subparagraph (xiii)

Page 5—

Lines 20 and 21—Delete subclause (9)

After line 21—Insert:

(10)Section 7—after subsection (5) insert:

(6)Clause 7 of the Indenture does not apply to or in relation to any permit, consent, approval, authorisation, permission or determination of any kind whatever (including a determination that is required for obtaining the benefit of an exemption) under—

(a)the Development Act 1993;

(b)the Environment Protection Act 1993; or

(c)the Native Vegetation Act 1991; or

(d)the Natural Resources Management Act 2004; or

(e)the Radiation Protection and Control Act 1982.

I will just take a very brief moment to explain what these amendments would do. In this long list of acts that are to be read down in relation to the Roxby Downs (Indenture Ratification) Act, I have effectively picked out four or five of those acts to take them out of that list, to give extra attention to those particular statutes.

I have sought to remove the Development Act and the Environment Protection Act. Of course, the importance of removing that act is that there are a number of provisions that are important to the community. We have the public register under section 109; again, that would be caught by the confidentiality provisions of the indenture. The community will not have access to the same amount of information.

Notwithstanding the minister’s answer in relation to freedom of information, the public register is a regime where you do not have to ask for the documents; they are automatically published, and I have no doubt that the full scope of documents will not be published. For example, the public register includes fairly new provisions that relate to contamination of land. I can bet you that the EPA’s public register is not going to have details of the contaminated land around the tailings facility—for example, the eight million litres a day of toxic liquid waste that will escape from that facility that will not be recorded on the public register.

Similarly, in relation to the Native Vegetation Act, we know there will be a massive clearance of vegetation over many, many kilometres. According to the environment department’s submissions to the EIS, from memory up to 40 kilometres from the mine site the drawdown of local water will impact on vegetation, such as myall trees. The Natural Resources Management Act, of course, is the act primarily dealing with, amongst other things, allocation of water resources. So, I am proposing to remove those from the act.

Members will recall that I think on at least one or two occasions I have actually moved in this parliament to remove the entirety of section 7 of this act. It is a section that basically says that this project is so important that there is not one law of South Australia—other than its own law that it wrote—that takes precedence over the commercial considerations of the company, as expressed through this indenture. I think that this is an appalling section, and I think the whole thing needs to go.

I have moved a few tokenistic amendments, you might say, to draw attention to it, but really this particular section goes to the heart of what is wrong with this legislation: the fact that we have adequate laws to do with mining, water and vegetation and they are all to be read down in the interests of this company and this project. Whilst I did not declare this at the outset, it is my intention to move rapidly through the amendments. If I can do them in blocks, I will. I am not proposing to divide on the amendments, but I will be dividing on the clause.

The Hon. G.E. GAGO: The government opposes this series of amendments proposed by the Hon. Mark Parnell to remove the Development Act 1993 as being construed subject to the provisions of the indenture, which is to prevail to the extent of any inconsistency with the Development Act. This primarily relates to indenture clause 28—Major Development, which provides that only the major developments or project provisions of the Development Act are to apply to land areas for a special mining lease and for any infrastructure supporting the mine development. It is only appropriate that the process for the highest level of development assessment and associated public consultation available in South Australia apply to future applications for the development of the Olympic Dam and any other mining prospects.

The Hon. D.W. RIDGWAY: I rise on behalf of the opposition to indicate—as Mr Parnell and other honourable members would be well aware and as was indicated in the other place and here—that we will be supporting this bill without amendment. We had extensive briefings. We asked days and days of questions prior to this bill coming to the parliament, and the opposition will not be supporting this group of amendments or any other amendments.

Amendments negatived.

The committee divided on the clause:

AYES (16)

Brokenshire, R.L.

Darley, J.A.

Dawkins, J.S.L.

Finnigan, B.V.

Gago, G.E. (teller)

Gazzola, J.M.

Hunter, I.K.

Kandelaars, G.A.

Lee, J.S.

Lensink, J.M.A.

Lucas, R.I.

Ridgway, D.W.

Stephens, T.J.

Wade, S.G.

Wortley, R.P.

Zollo, C.

NOES (4)

Bressington, A.

Franks, T.A.

Parnell, M. (teller)

Vincent, K.L.

Majority of 12 for the ayes.

Clause thus passed.

Clause 7.

Protection for Workers

The Hon. M. PARNELL: I have a very simple amendment to delete the clause. The government’s amendment is fairly straightforward in that it changes the references from ‘joint ventures’ to ‘the company’. We canvassed that before. They have done that fairly diligently throughout the bill, but they missed the big one. They missed the one in the Radiation Protection and Control Act and now they are just on a wing and a prayer hoping that if it ever gets to court that the court will do some imaginative statutory interpretation.

In relation to the merits of this particular clause, it relates to licensing in respect of the mining and milling of radioactive ores. Both the current section 8 and this proposed section 8 requires the minister, or other body, to give licences in relation to radioactive material, such as under the Radiation Protection and Control Act, in respect of the mining and milling of radioactive ores. Presumably the licensing body would be able to attach conditions, but my understand of this is that they could not attach any conditions that had the effect of preventing the company from dealing with these materials. So, my question of the minister is: is that correct? Are they effectively obliged to licence?

The Hon. G.E. GAGO: I have been advised, yes.

The Hon. M. PARNELL: So, in relation to radiation, because that is the subject of the clause, I have a number of questions that relate to the safety of workers in the wider community, safety from exposure to radiation. Could the minister confirm that when there is a reference to the phrase ‘the minister’ in approval condition No. 34, which is headed, ‘Radiation’—this is a condition that requires a dose constraint for members of the public for radiation exposure and sets a limit of 0.3 millisieverts per year, and the words are ‘unless otherwise agreed by the relevant minister’—is the relevant minister the Minister for Sustainability, Environment and Conservation or is it the minister under the indenture act?

The Hon. G.E. GAGO: I have been advised that it would be the minister responsible for the radiation act.

The Hon. M. PARNELL: I thank the minister for her answer. I asked the task force earlier whether the 0.3 millisieverts per year exposure limit would also apply to non-designated uranium mine workers at the Olympic Dam site in the special mining lease area. I was told that the dose constraint of 0.3 millisieverts per year was specific to members of the public and that that level will not be applied to workers. My question of the minister is: how will this dose constraint be monitored and assessed, and by whom?

The Hon. G.E. GAGO: I have been advised that it will be monitored by BHP and regulated by the EPA.

The Hon. M. PARNELL: I asked the task force in relation to this about how the public would be notified of the results, and the minister has just said that BHP will do the monitoring but that the EPA will be responsible. I was told in relation to public notification, ‘As is current practice for the operating Olympic Dam mine, results of monitoring and compliance would be made publically available on the EPA website as part of the annual radiation protection report for Olympic Dam.’ My question of the minister is: first, how much of a time lag is there between the actual monitoring data being collected and its reporting; and, secondly, is there any reason why the data could not be published on the website either more frequently or in real time?

The Hon. G.E. GAGO: I have been advised that it is in fact the accumulation of an annual dose that is the standard and that therefore it would be reasonable to report on an annual basis. In terms of the time lag, I do not have the answer to that detail, except to say that the data is required to be available for that annual report.

The Hon. M. PARNELL: If we turn now to the radiation exposure of workers rather than the general public, the task force confirmed to me that all uranium mine workers are subject to the regulatory occupational dose limit of 20 millisieverts per year, rather than the current public exposure limit of one millisievert a year, and that this includes train drivers, who would be transporting the uranium-infused copper concentrate, and truck drivers, who would be transporting the uranium oxide.

I posed the question of the task force about why the workers at Roxby Downs are not protected by the higher standard, which is the standard set by the Independent European Committee on Radiation Risk. It recommends a total ionising radiation permissible dose standard of five millisieverts per year for designated nuclear and uranium mine workers, rather than the much higher current standard of 20 millisieverts. The response I got from the task force was that Australia does not base its regulatory standards on the Independent European Committee on Radiation Risk but, rather, on the recommendations of the International Commission of Radiological Protection.

The task force pointed out that the ICRP, in its latest recommendations, concluded that the existing dose limit that it had recommended was still appropriate. The question to which I did not get an answer was: what is the expected total ionising radiation dose for the population of designated workers at the proposed expanded new open pit Olympic Dam mine, or in the special mining lease, compared with that at existing operations—so, a comparison between exposure for existing workers and potential exposure for new workers?

The Hon. G.E. GAGO: I would just ask the honourable member to explain the question? I do not actually understand what he is asking me for.

end quote.

hmm, there’s the magic 20 mSv again. Maybe the people of Japan should ask Jay & BHP for back pay. (The Japanese Government has imposed the same exposure level to all Japanese civilians as those applied to adult uranium miners. In response to the Fukushima Nuclear Disaster. The entire population has been press-ganged into this exposure regime, for the disaster spewed fuel and fission products from that fuel, some or all of which was mined from the South Australian hole in the ground, to the alleged benefit of the people of SA and the world.

The allegation is looking very tenuous for the world economy will be paying for the Fukushima disaster for decades.

One Response to “Nuclear Compromised Democracy – How BHP Billiton and the SA Gov denied Freedom of Information”

  1. CaptD Says:

    Great fact filled “glimpse” into the way that everything gets “handled” when nuclear is discussed…

    Liked and Tweeted…

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