FEDERAL COURT OF AUSTRALIA

 

Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection & Nuclear Safety Agency [2002] FCA 1144

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for judicial review of decision under s 32 Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) to issue licence to ANSTO to construct nuclear research reactor – whether procedures required to be observed in making the decision were not observed (ADJR Act s 5(1)(b)) – whether the decision involved a failure to take into account a relevant consideration (ADJR Act s 5(1)(e) & s 5(2)(b)) – whether the decision involved an error of law (ADJR Act s 5(1)(f))

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Radiation Protection and Nuclear Safety Act 1998 (Cth)

Australian Nuclear Science and Technology Organisation Act 1987 (Cth)

Environment Protection (Impact of Proposals) Act 1974 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321  applied

Botany Bay City Council v Minister for Transport & Regional Development (1999) 58 ALD 628  referred to

Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867  cited

Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291  cited

Mendoza v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 405 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24  applied

Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478  applied

Minister for Local Government v South Sydney City Council [2002] NSWCA 288  cited

NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 cited

Parramatta City Council v Hale (1982) 47 LGRA 319  distinguished

Price v Elder (2000) 97 FCR 218  applied

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363  applied

Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388  applied

GREENPEACE AUSTRALIA PACIFIC LIMITED v THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY AGENCY AND AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION AND INVAP SE

 

NO. N 293 OF 2002

 

 

BEAUMONT J

13 SEPTEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 293 OF 2002

 

BETWEEN:	GREENPEACE AUSTRALIA PACIFIC LIMITED APPLICANT
AND:	THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY AGENCY FIRST RESPONDENT   AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION SECOND RESPONDENT   INVAP SE THIRD RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	13 SEPTEMBER 2002
WHERE MADE:	SYDNEY

 

 

THE COURT ORDERS THAT:

 

1.      The application be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 293 OF 2002

 

BETWEEN:	GREENPEACE AUSTRALIA PACIFIC LIMITED APPLICANT
AND:	THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY AGENCY FIRST RESPONDENT   AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION SECOND RESPONDENT   INVAP SE THIRD RESPONDENT

 

JUDGE:	BEAUMONT J
DATE:	13 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1                     This is an application for an order of review brought by Greenpeace Australia Pacific Limited (“Greenpeace”), applying for an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) for review of the decision (“the Decision”) of the first respondent, the Chief Executive Officer (“the CEO”) of the Australian Radiation Protection and Nuclear Safety Agency (“ARPANSA”). The Decision, made on 4 April 2002, was to issue Facility Licence FO0118-Construction (“the Licence”) to the second respondent, the Australian Nuclear Science and Technology Organisation (“ANSTO”), under s 32(1) of the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) (“the Act”), authorising the construction of a replacement nuclear research reactor (“the Reactor”) at the Lucas Heights Science and Technology Centre.

2                     The Decision itself was made upon receipt of an application by ANSTO in May 2001 for a licence to construct the Reactor as a reactor facility proposed to be built on land owned by ANSTO at Lucas Heights, adjacent to the existing “HIFAR” research reactor.

3                     Greenpeace is a company limited by guarantee whose objects include the protection, preservation and enhancement of the natural environment and the promotion of nuclear disarmament.  It has been regularly consulted, in relation to ANSTO’s activities at its Lucas Heights facility, by the Commonwealth of Australia, the State of New South Wales and Sutherland Shire Council.  Greenpeace was invited to make, and did make, submissions, in relation to the application by ANSTO to ARPANSA, the subject of the Decision.  Greenpeace claims that it is adversely affected by the Decision to a greater degree than ordinary members of the public.  At all events, its standing to bring this proceeding is not disputed.

4                     In order to understand the issues for determination in the proceedings, it will be necessary to explain the relevant legislative scheme. 

THE LEGISLATIVE SCHEME

5                     The object of the Act is stated (s 3) to be “to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation”.

6                     The Act binds the Crown in each of its capacities (s 4(1)), and applies in and out of Australia (s 6).

7                     The CEO’s functions are specified (s 15) as follows:

“15      Functions of the CEO

(1)               The CEO has the following functions:

(a)               to promote uniformity of radiation protection and nuclear safety policy and practices across jurisdictions of the Commonwealth, the States and the Territories;

(b)               to provide advice on radiation protection, nuclear safety and related issues;

(c)                to undertake research in relation to radiation protection, nuclear safety and medical exposures to radiation;

(d)               to provide services relating to radiation protection, nuclear safety and medical exposures to radiation;

(e)                to accredit persons with technical expertise for the purposes of this Act;

(f)                 to monitor the operations of ARPANSA, the Council, the Radiation Health Committee and the Nuclear Safety Committee;

(g)               to report on the operations of ARPANSA, the Council, the Radiation Health Committee and the Nuclear Safety Committee;…”

8                     The Nuclear Safety Committee consists (s 27) of:

(a)                the CEO;

(b)               a person to represent the interests of the general public;

(c)                a representative of the Radiation Health Committee;

(d)               a person to represent the local government or the local administration of an area affected by a matter related to the safety of a controlled facility;

(e)                up to eight other members.

9                     The Committee’s functions are specified (s 26(1)) as follows:

“26      Functions of the Nuclear Safety Committee

(1)               The Nuclear Safety Committee has the following functions:

(a)               to advise the CEO and the Council on matters relating to nuclear safety and the safety of controlled facilities;

(b)               to review and assess the effectiveness of standards, codes, practices and procedures in relation to the safety of controlled facilities;

(c)                to develop detailed policies and to prepare draft publications for the promotion of uniform national standards in relation to the safety of controlled facilities;

(d)               to report to the CEO on matters relating to nuclear safety and the safety of controlled facilities.

(2)               The Committee’s functions are to be performed only on the request of the CEO or the Council.”

10                  Part 5 of the Act (ss 30 – 40) is material here.  It provides, inter alia, for the regulation of “controlled facilities”.

11                  A “controlled facility” is defined (s 13) so as to include (inter alia) – a “nuclear installation”, which is itself defined so as to include (inter alia) – “a nuclear reactor for research or production of nuclear materials for industrial or medical use…”. (It is common ground that the Reactor is a “controlled facility”.)

12                  Division 1 of Part 5 (ss 30 – 31) provides for “Prohibitions”.

13                  Section 30 of the Act provides:

“30      Construction, operation etc. of nuclear installations or prescribed radiation facilities

(1)               A controlled person must not do any of the following:

(a)               prepare a site for a controlled facility;

(b)               construct a controlled facility;

(c)                have possession or control of a controlled facility;

(d)               operate a controlled facility;

(e)                de-commission, dispose of or abandon a controlled facility;

unless:

(f)                 the person is authorised to do so by a facility licence; or

(g)                the person is exempted in relation to the conduct concerned by regulations made for the purposes of this section. (Emphasis added.)

Maximum penalty:      2,000 penalty units.

(2)               The holder of a facility licence must comply with the conditions of the licence.

Maximum penalty:      2,000 penalty units or such lower amount as is prescribed by the regulations.

(3)               A person covered by a facility licence must comply with the conditions of the licence that are applicable to the person.”

14                  A “controlled person” is defined (s 13) so as to include (inter alia) – (a) a “Commonwealth entity” (i.e. ANSTO) and (b) a “Commonwealth contractor” (defined (s 13) to mean a person (other than a Commonwealth entity) who is a party to a contract with a Commonwealth entity).

15                  Division 2 of Part 5 (ss 32 – 40) provides for “Licences”.

16                  Section 32, which is central to the issues in the litigation, provides:

“32      Issue of facility licence

(1)               The CEO may issue a licence to a controlled person that authorises persons to do some or all of the things referred to in subsection 30(1).

(2)               A licence issued to the Commonwealth may be issued in the name of a Department of State.

(3)               In deciding whether to issue a licence under subsection (1), the CEO must take into account the matters (if any) specified in the regulations, and must also take into account international best practice in relation to radiation protection and nuclear safety.” (Emphasis added.)

17                  Regulation 41 of the Australian Radiation Protection and Nuclear Safety Regulations 1999 (Cth) (“the Regulations”) provides:

“41      Issue of facility licence — matters to be taken into account by CEO

(1)               The CEO may issue a facility licence to a controlled person.

 

(2)               In deciding whether to issue the licence, the CEO must take into account the matters (if any) specified in the regulations.

            (3)        The matters are:

(a)        whether the application includes the information asked for by the CEO; and

(b)        whether the information establishes that the proposed conduct can be carried out without undue risk to the health and safety of people, and to the environment; and

(c)        whether the applicant has shown that there is a net benefit from carrying out the conduct relating to the controlled facility; and

(d)        whether the applicant has shown that the magnitude of individual doses, the number of people exposed, and the likelihood that exposure will happen, are as low as reasonably achievable, having regard to economic and social factors; and

(e)        whether the applicant has shown a capacity for complying with these regulations and the licence conditions that would be imposed under section 35 of the Act; and

(f)        whether the application has been signed by an office holder of the applicant, or a person authorised by an office holder of the applicant; and

(g)        if the application is for a facility licence for a nuclear installation — the content of any submissions made by members of the public about the application.” (Emphasis added.)

 

18                  Section 35(1) and (3) of the Act provide:

“35      Licence conditions

(1)               A licence is subject to the following conditions:

(a)               the conditions set out in this section;

(b)               the conditions prescribed by the regulations;

(c)                conditions imposed by the CEO at the time of issuing the licence;

(d)               any conditions imposed by the CEO under subsection 36(2) after the licence is issued.

…

(3)        A facility licence is subject to the condition that any person authorised by the licence to prepare a site for a controlled facility or to construct, have possession or control of, operate, de-commission, dispose of or abandon a controlled facility must:

(a)               at any time when the person has possession or control of such a site or facility – allow the CEO, or a person authorised by the CEO, to enter and inspect the site or facility at reasonable times; and

(b)               comply with any requirements specified in the regulations in relation to such an inspection. …”

THE grounds OF THE APPLICATION FOR JUDICIAL REVIEW

19                  The grounds relied on by Greenpeace, as stated in its application, are:

(1)               The CEO was empowered under s 32(1) of the Act to issue a licence to a “controlled person” that authorises persons to do some or all of the things referred to in s 30(1) of the Act.  (This is common ground.)

(2)               ANSTO is and was at all material times: (a) a body corporate continued in existence by force of s 4(1) of the Australian Nuclear Science and Technology Organisation Act 1987 (Cth) (“the ANSTO Act”); and (b) a “controlled person” within the meaning of s 32(1) the Act.  (This is common ground.)

(3)               On 21 May 2001, ANSTO applied to the CEO to construct the Reactor.  (This is common ground.)

(4)               The construction of the Reactor is and was at all material times a thing referred to in s 30(1) of the Act, in that it is, and was, a “controlled facility” within the meaning of the Act.  (This is common ground.)

(5)               On 4 April 2002, the CEO made the Decision to issue a licence to ANSTO under s 32(1) of the Act authorising the construction of the Reactor.  (This is common ground.)

(6)               By s 32(3) of the Act, in making the Decision, the CEO was required to take into account “international best practice in relation to radiation protection and nuclear safety”.  (This is common ground.)

(7)               A consideration of radiation protection and nuclear safety for the purposes of s 32(3) of the Act relevant to the making of the Decision is and was the management, handling, transport, processing and storage of spent nuclear fuel and radioactive “waste”, i.e. “waste” in the form of spent nuclear fuel and related reprocessed or conditioned spent nuclear fuel.  (Emphasis added.)

(8)               Alternatively to paragraph (7) above, in his Reasons for Decision, the CEO identified the management, handling, transport, processing and storage of spent nuclear fuel and radioactive waste as an aspect of radiation protection and nuclear safety for the purposes of s 32(3) of the Act relevant to the making of the Decision. (Emphasis added.)

(9)               In making the Decision, the CEO failed to identify, ascertain or take into account international best practice in relation to the management, handling, transport, processing and storage of spent nuclear fuel and radioactive waste. (Emphasis added.)

(10)           By reason of the matters set out (in pars (1)-(9)) above:

a)             the procedures required by law to be observed in connection with the making of the Decision were not observed (see the AD(JR) Act, s 5(1)(b));

b)             the making of the Decision was an improper exercise of the power conferred by s 32(1) of the Act, in that the CEO failed to take into account a relevant consideration (see the AD(JR) Act, s 5(1)(e) and s 5(2)(b));

c)             the Decision involved an error of law (see the AD(JR) Act, s 5(1)(f)).

THE RELIEF SOUGHT BY Greenpeace

20                  Greenpeace seeks an order that the Decision be set aside; a declaration that the Facility Licence is invalid; an order that ANSTO be prohibited from constructing a nuclear installation at the Lucas Heights Centre; and an order that, before making any decision to approve the construction of a nuclear installation at Lucas Heights, the CEO “determine what constitutes international best practice in radiation protection and nuclear safety in relation to spent nuclear fuel and nuclear waste”, and take that determination into account.

Greenpeace’S CASE outlined

21                  In summary, Greenpeace identifies the “central issue” as the failure by the CEO to take into account “international best practice in relation to radiation protection and nuclear safety” in relation to the management of spent nuclear fuel and radioactive waste to be generated by the Reactor.  Greenpeace submits that this failure breaches s 32(3) of the Act.

22                  Greenpeace says that it appears from the CEO’s Reasons for Decision (“the Reasons”) that the CEO regarded the consideration of the management of spent nuclear fuel and radioactive waste to be generated by the Reactor once completed, as irrelevant to carrying out the obligation to take into account “international best practice in relation to radiation protection and nuclear safety” imposed by s 32; and that, consistently with this, ANSTO, in its Points of Defence, contends that consideration of the management of spent nuclear fuel and radioactive waste is, in law, not necessary in the performance of the duty imposed by s 32 of the Act.

23                  Greenpeace says that, whilst the CEO made findings as to what constitutes “international best practice” in relation to the consequences of the “operation” of the Reactor (cf. s 30(1)(d) of the Act), he made no such finding in relation to “management of spent nuclear fuel and radioactive waste”.  Yet, it is submitted, in making his findings in relation to the “operation” of the Reactor, the CEO specifically found that he was required to consider the “matters required to be taken into account when deciding to issue a facility licence” (as prescribed in cl 41 of the Regulations) in relation to each of the licensing stages set out in s 30 of the Act, that is to say – “prepare a site” (s 30(1)(a));  “construct” (s 30(1)(b)); “have possession or control”(s 30(1)(c)); “operate” (s 30(1)(d)); and “de-commission, dispose of or abandon” (s 30(1)(e)).  In this regard, Greenpeace says, the CEO found, for example, that in relation to “undue risk” (ie one of the matters to be taken into account by the CEO in deciding whether to issue a licence, as set out in cl 41(3)(b) of the Regulations) he should not limit his consideration merely to the risks posed by the “construction” of the reactor (cf. s 30(1)(b)), but also should consider those posed by the “operation” of the reactor (cf. s 30(1)(d)).

THE CEO’S REASONS

24                  In order to place Greenpeace’s contentions in context, it will next be necessary to explain the CEO’s process of reasoning. 

25                  In describing the process of assessment of the application, the CEO said that he had referred it to the ARPANSA Regulatory Branch for its review in detail, which Branch:-

“…is made up of officers with a wide range of expertise in radiation protection and nuclear safety, the officers leading the review being of international standing and highly experienced in assessing the safety of ANSTO’s nuclear facilities. …  An international expert was engaged to advise the staff and assist in the assessment of seismic design.  The Canadian Nuclear Safety Commission provided an expert to work on thermal-hydraulic and transient analysis. …[T]he Argentine Nuclear Regulatory Authority (ARN) undertook a review of the PSAR [Preliminary Safety Analysis Report] against its regulatory standards and the leader of the ARN Review team … advise[d]….”

26                  In considering the matters to be taken into account under s 32, the CEO, noting that the Act does not define the phrase “international best practice in radiation protection and nuclear safety”, stated that he had “tried to find the plain meaning of the term, having regard to the context of the Act as a whole and especially the object of the Act”.  The term “best practice”, to his knowledge, is not one used in the nuclear industry internationally as a particular term of art. However, in a foreward to a recent publication by the International Nuclear Safety Advisory Group (“INSAG”) - Basic Safety Principles for Nuclear Power Plants INSAG (1999) - the Director-General of the International Atomic Energy Agency referred to the publication as presenting the “principles underlying the best current safety policies and practices of the nuclear power industry”.  The CEO explained that he had dealt with the notion of “international best practice in radiation protection and nuclear safety” from “first principles”, bearing in mind that he was dealing with the proposed construction of a research reactor.

27                  The CEO explained that the process involving designing, constructing, and then operating, a research reactor has several aspects:-

28                  First, there are the “higher-level” decisions about the approach to be taken in the design to radiation protection and nuclear safety, and about how those approaches are to be “analysed and reviewed”.  The CEO refers to Annex 2, a summary of a “very well-established international safety framework” for these activities set up through the International Atomic Energy Agency (“IAEA”) and associated bodies and through International Conventions.  (Annex 2 is annexed also to these reasons for judgment for ease of reference.)  This safety framework “strives” to be a description of how things “should” be done, rather than “merely a summary of how they are done”.  The CEO said:

“I accept that they represent international best practice [(“IBP”)] for the conceptual and analytical aspects of a design and construction project.  Certainly, there are no competing approaches in respect of design and construction of research reactors even claiming to be [IBP] in radiation protection and nuclear safety.”

29                  Secondly, a specific reactor design will include a number of safety features – systems to detect problems and to shutdown the reactor, to cool the core after shutdown in various circumstances and to contain and control any released radioactivity. There is “increasing international agreement” about the desirable approach to such safety features – both within the general safety framework in Annex 2 and in discussions of future reactor systems. It is also a matter that can be addressed by comparing proposed safety features with those built into recently designed and constructed reactors in other countries.

30                  Thirdly, in the construction phase itself, there are issues about management of construction, quality assurance approaches, and the codes of practice and standards for the construction of items important to safety.  The CEO said: “[a]t this more detailed level, the international safety framework can only point to [IBP] in the broad sense”.  The codes of practice and standards should be consistent and chosen from those used internationally, “though there may not be a single set of such codes and standards that alone constitute [IBP]”.  IBP in radiation protection and nuclear safety may capture “more than one way” of doing things at this detailed level.

31                  Fourthly, there are the radiation protection and nuclear safety outcomes that are actually achieved.  These “can only be estimated” from the design at this time, yet it would nonetheless be “appropriate to benchmark these outcomes against those achieved in recent, modern research reactors in other countries, where these are available.”

32                  The CEO then expressed the view that “taking into account” IBP relating to radiation protection and nuclear safety “involves the following being considered”:

·                    The radiation protection and nuclear safety objectives included as a part of the design, compared with those laid out in the international safety framework that is found to be IBP.

·                    The specific safety features of the design compared with those recommended in the international safety framework and most successfully applied in recent research reactor designs.

·                    The management of the design and construction project, the codes and standards applied to the design and construction of systems important to safety, compared with management approaches and the codes and standards used for similar systems in reactors designed in other countries with best practice safety systems.

·                    the design outcomes for occupational radiation doses, discharges to the environment and consequent radiation doses to the public, and the likelihood of core damage, compared with those achieved in recent research reactors in advanced countries.

33                  The CEO said that he had also considered the issue of defining “[IBP] in radiation protection and nuclear safety” with regard to the protection of the environment from the harmful effects of radiation.  He said:

“I have construed my role, derived from the object of the Act, as being in relation to the protection of environment from the harmful effects of radiation.  Other harms to the environment that may arise from the construction and operation of the [Reactor] were assessed in the EIS [Environmental Impact Statement] process.”

34                  The CEO noted that “[IBP] in relation to radiation protection and nuclear safety and protection of the environment” is changing.  Although the International Commission on Radiological Protection (“ICRP”) took the view that measures to protect humans from radiation also protected the environment, this view is currently coming under challenge.  The CEO said:

“I consider that there is not yet an established radiation protection system for non-human species that can be regarded as [IBP] and for application in the context of a research reactor, other than focussing on the protection of humans.”

35                  Noting that the application was for a licence to construct the Reactor, the CEO adopted “the plain meaning” of the words “construct a controlled facility” in s 30(1)(b) to be:-

“[The] manufacturing, assembling and installing structures, systems and components of the reactor; carrying out civil works commencing with bulk excavation for foundations; and performing tests, inspections and commissioning of any of these items, up to but not including the loading of nuclear fuel.”

36                  Observing that s 30 of the Act “divides the conducts” relating to a “controlled facility” into these:  prepare a site; construct; have possession or control; operate; and de-commission, dispose of or abandon; the CEO stated:

“Several of the matters to be taken into account by the CEO in making a decision about a facility licence refer to the conduct proposed to be covered by the licence.  Taken literally, this might mean that, for example, in relation to the matter of undue risk, I need only consider the risks posed by the construction of the reactor, not by its operation, as that would be covered by another licence application.  I do not interpret the Act and Regulations in this manner.  To do so would empty the assessment of undue risk of meaning, as there are very few, if any, radiological risks involved in the construction phase, per se.  My view is that Parliament divided the life of a nuclear installation or other controlled facility into the phases described above to reflect the complexity of such major projects and to ensure that they are properly assessed at each stage as they are developed.”

37                  The CEO went on to say:

“In assessing whether to issue a licence to allow the preparation of a site for the [Reactor] at Lucas Heights, I did make an assessment as to its operation on that site, as best as could be judged at that conceptual stage of the design.  Similarly, I have taken into account any operation of the [Reactor] in my assessment as to whether ANSTO should be issued a licence to construct it, in the light of the greater amount of information now available from the design of the reactor.  Satisfaction at this stage would not prevent me refusing a licence to operate if it were that significant siting or construction issues arose in the intervening period.  That is, should the project proceed to seeking a licence to operate, then the safety will again be assessed, this time with the ‘as built’ reactor to review.  This would seem to me to be Parliament’s intention and consistent with the object of the Act.  I consider that it also meets [IBP] in nuclear safety – for example, the IAEA safety guide on safety assessment of research reactors states that:

‘To obtain a construction licence or an agreement for the start of construction, the operating organization shall submit information which demonstrates that the design will result in a safe facility and that construction will achieve the design intent.’ ”

38                  In considering “Design for Radiation Protection”, the CEO considered several waste management issues, noting that the Preliminary Safety Analysis Report (“PSAR”) described the proposed waste management system for the Reactor, and the proposed arrangements for monitoring, control, segregation and classification of wastes.  The CEO stated that the ARPANSA staff was satisfied with the on-site management of wastes proposed, noting the continuing progress with the ANSTO waste management action plan and the special licence conditions imposed on the existing waste operations licence, and that the CEO accepted this assessment.

39                 The CEO also noted that ANSTO’s application is predicated on low level wastes finally being sent for disposal to the national low level waste (“LLW”) repository; and that ANSTO was designing a facility on the site to condition waste for transfer to this facility, which is being planned by the Federal Government as a national facility for use by all jurisdictions and will represent the route for final disposal of the LLW by ANSTO.

40                 The CEO dealt separately (in Part 7) with the management of spent fuel and the resulting waste form after it is reprocessed or conditioned. Other radioactive waste management issues were, as has been noted, dealt with earlier (Part 4) in the Reasons. 

41                 The CEO stated:

“This issue is different from the other assessments I have undertaken. ANSTO can be held to be accountable and to be assessed in its proposals for management of spent fuel and radioactive waste until it is sent for disposal or long-term storage at national facilities. The development of these facilities is the responsibility of another agency and subject to Government policy.”

42                 In considering options for the management of “spent fuel” (fuel that has been used in a reactor for the period of time for which it was designed), the CEO noted that the key features of ANSTO’s spent fuel management strategy are captured by a diagram showing three possible routes, as follows:

1.                  Reprocessing by COGEMA in France;

2.                  INVAP (an Argentine company, the contractor for the design and construction of the Reactor) to arrange processing in Argentina; or

3.                  INVAP to provide an alternative solution (presumably involving processing in another country).

43                 After explaining the meaning of “spent fuel”, the CEO stated:

“Spent fuel is highly radioactive as a result of the presence of fission products. It must be treated very carefully to ensure the safety of the operators who deal with it and to ensure that there is no release to the environment.”

44                  The CEO observed:

“Not all countries that operate nuclear power plants have decided that they should reprocess their spent fuel.  The reasons for not proceeding with reprocessing are broadly two fold: one is that the economics of the reprocessing may not be regarded as favourable, given the ready availability of uranium on the world market; the second is that reprocessing does result in the separation, particularly, of plutonium and gives rise to concerns about nuclear proliferation.  So, for example, the United States has a policy of not seeking to reprocess fuel from its nuclear power plants; Germany has decided that it will not continue reprocessing after 2005; and other countries such as Canada and Sweden have decided they will not use reprocessing. Yet other countries have not made a decision either way at this stage.”

45                  The CEO went on to say:

“… in the case of the [Reactor], the issue of reprocessing is not one that is contemplated primarily on the basis of seeking to recover materials for further nuclear fuel…. Rather, what ANSTO is seeking, I believe, is a way of conditioning the spent fuel such that it is in a form whereby it can be stored and ultimately disposed of. The reprocessing process adopted by COGEMA La Hague produces a satisfactory vitrified waste form. The general waste form produced by La Hague is known to me and I regard it as likely to be able to be safely stored for a significant period of time in Australia. There has not been a full assessment of this carried out by ARPANSA nor has ARPANSA made any assessment of the suitability of the COGEMA vitrified waste product for final disposal in a geological repository.”

46                  The CEO then stated:

“For the [Reactor], an alternative approach to the reprocessing of spent [Reactor] fuel is a form of conditioning. … It may also be possible for conditioning to be a physical process and for the spent fuel to be included in physical containment for direct disposal.…”

47                  After explaining the estimated volume of vitrified fuel waste and associated compacted waste after 40 years of operation of the Reactor, the CEO stated:

“I do not foresee any major technical obstacle to the storage of this volume of material and quantity of radioactivity in a secure manner for a long period.”

48                  The CEO observed that it had been vigorously argued in very many of the public submissions that the construction of the Reactor should not be permitted on the grounds that the arrangements proposed by ANSTO for the management of spent fuel would not be effective.  The option of reprocessing by COGEMA in France was objected to on the footing that:-  (i) the type of fuel proposed for the Reactor is said not to be suitable for reprocessing in the La Hague plant; (ii) there is a legal challenge on foot in France to the processing of Australian spent fuel in La Hague; (iii) the existence of the La Hague plant and other similar facilities in Europe is becoming a matter of political and environmental controversy, with pressure to close down such plants.  In respect of the other options, including INVAP’s arranging processing in Argentina or another country, it was objected that such strategies require international transport of spent fuel and radioactive waste and that this is unsafe.

49                  The CEO was aware that the particular process adopted at La Hague is not suitable for dealing with uranium silicide fuels in bulk (as will be generated here).  However, referring to a letter sent from COGEMA to ANSTO in September 2000, the CEO said:

“I judge that it is reasonable to expect that …[a technical]… changeover will occur in a time period that will allow reprocessing to occur via COGEMA, or at worst for there to be a small quantity of U Si fuel remaining requiring a different approach.”

50                  In relation to the possibility of reprocessing Australian spent fuel in France, the CEO found –

“…there are paths available for the authorisation for reprocessing of the Australian fuel, including the [Reactor] fuel, but a political decision [in France] may be required. In the application, ANSTO refers to an agreement at inter-Governmental level to support the contractual arrangements.”

51                  Observing that opposition to Sellafield (UK) and La Hague turns largely on the OSPAR Commission (being an agreement of north-east Atlantic countries regarding reduction in discharge of pollutants in those waters), the CEO concluded:

“[T]here is no doubt that the other decisions made by the OSPAR Commission, albeit not supported by the UK and France, shows that there are substantial political pressures in Europe to end reprocessing and it might well be that these succeed sometime during the life of the [Reactor].”

52                  As to reprocessing in Argentina or a third country, the CEO said:

“I do not find that this fall back option is less developed than that offered by the COGEMA option. I expect ANSTO and INVAP, as part of any application to operate the reactor, to develop the proposals further.

The final option of arranging for processing in another country has not been addressed in any serious way at this time and I have not relied upon it in my assessment.”

53                  With respect to international transportation, the CEO considered that, while the international system “is not beyond criticism”, international transport of Reactor spent fuel and resulting wastes “could be conducted safely”.  The Greenpeace report makes “a valid point” about Australia’s emergency planning, and the CEO was aware that this is being addressed.

54                  The CEO noted that the Australian government proposes to build a store for intermediate level radioactive waste; that an advisory group has been established and is preparing advice on the criteria for such a store; and that the group, which includes an ARPANSA officer, has produced a discussion paper that has been released for public comment.  The proposal is for a store designed for safe storage “for a period of up to at least fifty years until a suitable geological repository is established”.  In the CEO’s view, it would be “foolish” to design a store for a life of only fifty years. The issue of final repository may take a considerable amount of time.  The CEO considered that there is no difficulty with safe storage well beyond 100 years.

55                  The CEO stated:

“I earlier offered the opinion that at the time of the construction licence, I would expect to see progress in moving to establish a store and the above is progress.”

56                  The CEO went on to identify the following as issues raised in the public submissions in relation to “spent fuel and waste management”. 

·                    Whether ANSTO has demonstrated that molybdenum fuel will soon be available, or that silicide spent fuel will be able to be managed.

·                    Whether there should be an option for the handling of spent fuel entirely within Australia.

·                    The degree of progress with the national waste repository and national waste store before construction and operating licences may be granted.

·                    Adequacy of any strategies to monitor and control radioactive discharges to ensure that radiation doses to the public would be as low as reasonably achievable, social and economic factors being taken into account.

57                  The CEO said that he had “taken all these issues into account and discussed them where appropriate [in the Reasons]”.

58                  The CEO noted that the issue of spent fuel and radioactive waste management, which had been discussed at Part 7 of the Reasons, was also considered in the Report of the Nuclear Safety Committee, in addressing the implications of uranium silicide fuel and the changeover to uranium molybdenum fuel.  The CEO stated:

“The working group suggests that it appears that the earliest that U-Mo fuel will be qualified internationally for use will be 2005, and that there will be a further period of consideration by ARPANSA before approval could be given for the loading of the new fuel. The working group points out that this may have implications for the amount of spent U-Si fuel that will be generated by the [Reactor], and therefore the capacity of COGEMA to reprocess the fuel and return the waste to Australia in vitrified form.

The working group recommends that ARPANSA monitors the situation and establishes appropriate advisory mechanisms at the time ANSTO applies for a licence to operate the [Reactor]. The working group requests that progress reports on this matter are tabled twice yearly at NSC [Nuclear Safety Committee] meetings.

The discussion at Part Seven is not inconsistent with the position taken by the working group. The points made are appropriate and I have no difficulty in accepting the recommendation.”

59                 The CEO noted, further, that the working group identified a number of problems with the management of spent nuclear fuel.  The CEO said:

“I found the working group’s discussion to be informative and challenging.  It is not inconsistent with my discussion of the issues at Part Seven.  The working group, however, reaches the conclusion that it ‘is not able to conclude that the Applicant has, to date, demonstrated the overall strategy for managing spent nuclear fuel… is adequate’.  I do not agree with this conclusion – my own view is that the strategy for reprocessing in France and return of the vitrified waste is safe and acceptable.  The alternative of reconditioning in Argentina is reasonable, though I concede that it is underdeveloped at this point and subject to more stringent reservations.”

60                  In his conclusion (Part 13 – “Assessment and Decision”) the CEO observed:

“The Act requires me to take into account ‘international best practice in relation to radiation protection and nuclear safety’.  During the assessment, the applicant has demonstrated that the radiation protection and nuclear safety objectives included as a part of the design meet those laid out in the guidance provided by the international authorities.  The specific safety features of the design comply with those recommended in international guidance and applied in resent research reactor designs.  The management of the design and construction project, including the codes and standards applied to the design and construction of systems important to safety, is consistent with management approaches and the codes and standards used for similar systems in reactors designed in other countries with strong safety systems.  Finally, the designed outcomes for occupational radiation doses, discharges to the environment and consequent radiation doses to the public, and the likelihood of core damage are at least as good as those achieved in the design of modern research reactors.”

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

61                  It will be convenient to consider the several grounds for review propounded by Greenpeace in turn.

Were procedures required to be observed in connection with the making of the Decision not observed (Application par10(a))?

62                  In this connection, Greenpeace submits that s 32 of the Act required the CEO, in effect, to determine what constitutes IBP in relation to the management of spent nuclear fuel and radioactive waste.  Whether this be an objective determination or a subjective one, the CEO was required by s 32 to make that determination, and to have regard to IBP in making the Decision.  The CEO did not do so, and this was an error of law.  In considering the reprocessing process adopted by COGEMA La Hague, the CEO found that it was “likely” that such waste could be safely stored for a significant period of time in Australia; but that ARPANSA had not fully assessed this.  ANSTO has no certain proposal for the removal of waste from Australia and treatment of the waste overseas.  The CEO expressly did not consider retention of the waste within Australia.  On the material before the CEO, there appears to be no answer to the question:  what will happen if ANSTO’s proposals do not reach fruition?  The CEO failed to consider whether ANSTO’s proposals (or any of the alternatives to them), constitute IBP in relation to radiation protection and nuclear safety, specifically in relation to the transportation of such spent nuclear fuel and radioactive waste, when its transportation involves safety questions for persons in the vicinity of domestic and international routes, including sea lanes, and a risk of harm to the environment.  In short, it is contended that although s 32(3) required the CEO to consider IBP in this connection, in failing to do so, the CEO did not, for these reasons, in the terms of s 5(1)(b) of the AD(JR) Act, observe “procedures that were required by law to be observed in connection with the making of the [D]ecision.”

63                  I cannot accept Greenpeace’s contention.

64                  Although Greenpeace claims, in this connection, and in par 10(c) of its application (dealt with below) that the CEO erred in law in his interpretation of s 32(3), the ground of review described in s 5(1)(b) is available only in a procedural context (see, e.g. Minister for Health and Family Services v Jadwan Pty Ltd (1998) 89 FCR 478 at 494). 

65                  In Jadwan, the Full Court (Burchett, Drummond and Sackville JJ) said (at [494]):

“The mere fact that the delegate mistakenly assumed that such directions could be given to a Panel, does not mean that there was a failure to observe procedures that were required by law to be observed in connection with the making of the revocation decision.  Doubtless the words “in connection with”, as used in s 5(1)(b) of the ADJR Act, are to be read widely: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480 per Wilcox J.  But there could be no contravention of s 5(1)(b) in this case unless the delegate failed to observe procedures she was required to observe in connection with the decision to revoke Derwent Court’s approval. 

Neither the National Health Act nor the National Health Regulations required that a Panel should be established and should make a valid report before a decision to revoke Derwent Court’s approval could be made: cf Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415 at 428 per Wilcox J.  The failure to establish a Panel in accordance with the National Health Regulations did not constitute a failure to observe any procedure required by law in connection with the revocation decision.  Whatever other consequences might flow from the delegate’s reliance on an improperly constituted Panel, the ground of review specified in s 5(1)(b) is not made out.” 

66                  Whether the CEO erred in law in his understanding of the meaning and operation of s 32(3) is a question arising, if at all, under either s 5(1)(f) or s 5(2)(b) of the AD(JR) Act, and not an adjectival or procedural issue.  (The possible application of s 5(2)(b) or s 5(1)(f) are, in fact, raised by pars 10(b) and (c) of Greenpeace’s application and are dealt with below.)

67                  Greenpeace’s point here can be quickly disposed of.  There was simply nothing, in my view, in the CEO’s process, described earlier, that could be said to be procedurally irregular or defective. 

Did the CEO fail to take into account a relevant consideration (Application par 10(b))?

68                  In making this claim, Greenpeace essentially relies upon the submission it made under par 10(a) of its application (see immediately above).

69                  I have difficulty accepting Greenpeace’s argument, in essence for the reasons advanced in ANSTO’s submission; that is to say, I accept ANSTO’s arguments to the following effect:

·               The allegation that the CEO failed to take into account a relevant consideration will only be made out as a ground of review if the CEO failed to take into account a consideration which he was bound to take into account in making the decision:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; Price v Elder (2000) 97 FCR 218 at 221, [13].

·               In Botany Bay City Council v Minister for Transport and Regional Development (1999) 58 ALD 628, the Full Court (Black CJ, Lee and Weinberg JJ) said (at 633, [16]): 

“In these circumstances, having regard to the material that the Minister for the Environment stated that he did consider, to his statement of reasons for his decision and to his statement that he took into account the very matter that it is claimed he did not take into account, we agree with Finn J that the appellant did not make out its case that the minister failed to take into account the matters that para 3.1.2(a) of the Administrative Procedures required him to take into account.  The first ground of appeal must be rejected. 

It seems to us that what the appellant is really arguing is that this was a case so extreme as to involve a constructive failure on the part of the minister to perform his duty to take into account a particular matter: see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; 5 ALR 513 per Barwick CJ at CLR 480 and per Gibbs J at CLR 483; Turner v Minister for Immigration and Ethnic Affairs v Maitan (1988) 14 ALD 589; 78 ALR 419 at 429 per Beaumont and Gummow JJ; and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 201.  But reliance on evidence led in judicial review proceedings that there are ways (not yet fully developed) of measuring and analysing environmental impact brought about by first-time exposure falls far short of demonstrating that there was a constructive failure on the part of the Minister for the Environment to perform his duty to take into account a particular matter that the Administrative Procedures required him to take into account.  It is not necessary for us to consider whether, and if so where, a point might be reached at which a failure to act in accordance with an established scientific fundamental would, on such a ground, vitiate an administrative decision.  We observe, though, that a consideration of these questions highlights, as it did for the primary judge, that what was in effect being attempted here was a review on the merits of the fairness of the redistribution.  That is not a matter for the court in an application for judicial review.”

·               The same may be said of Greenpeace’s contentions.

·               (As noted), it is accepted that s 32(3) of the Act requires the CEO to take into account “international best practice in radiation protection and nuclear safety”, in addition to the specific matters identified in Reg 41. 

·               It is also accepted by ANSTO that the CEO’s obligation to take into account these matters requires him to give proper, genuine and realistic consideration to any relevant international best practice: Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 per Gummow J at 292 and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 per Allsop J at [155].  However, it is for a decision-maker, and not for the Court, to decide the appropriate weight to be given to a matter that is required to be taken into account.

·               The nature of the CEO’s obligations under s 32(3) must be considered in two steps.  First, “[IBP] in radiation protection and nuclear safety” must be construed in the context of the application before the CEO, i.e. for a construction licence.  Secondly, any IBP in relation to radiation protection and nuclear safety relevant to the issue of a construction licence must be identified as a matter of fact.  The Act does not assume that there will be an IBP in relation to each specific (potential) activity. It follows that

          where there is no IBP established in relation to certain aspects of radiation protection and nuclear safety, there will be no IBP which could be taken into account. 

·               The CEO observed that “[IBP] in relation to radiation protection and nuclear safety” is not a phrase defined by the Act.  He also noted that “[IBP]” is not a term of art used at the international level.  Against this background, the CEO identified the relevant IBP by having regard to the ordinary meaning of these terms and the object of the Act.  He also noted that his consideration of IBP occurred in the context of issuing a construction licence. 

·               The CEO’s consideration of IBP in relation to nuclear safety was addressed in Parts 3, 5 and 6 of the Reasons.  Reference was made to two international conventions, the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.  The CEO noted that the Joint Convention is modelled on the Convention on Nuclear Safety in that it is an “incentive convention that sets out the ‘gold standard’ for the safety of the management of spent fuel and radioactive waste”.  He also referred to the work of the IAEA and to INSAG, a group established to advise the Director-General of the IAEA. 

·               The Convention on Nuclear Safety makes a distinction between the design and construction of a nuclear installation and the operation of a nuclear facility.  The Joint Convention also makes a distinction between the safety standards for existing facilities, the siting of proposed facilities and (importantly), the design and construction of facilities.  The issue of safe operation of facilities is treated separately. 

·               Having regard to the relevant international conventions, it was appropriate and proper for the CEO to have regard to IBP in the context of the design and construction of a research facility, as something different from IBP as it concerns the operation of a research facility.

·               There was no error on the part of the CEO in construing IBP consistently with international conventions specifically addressing the issues of nuclear safety and radiation protection. 

·               Having properly defined “[IBP] in relation to radiation protection and nuclear safety” for the purpose of s 32(3) and then established as matter a fact the content of that international practice, the CEO did not err because he did not treat the management, handling, transport, processing and storage of spent nuclear fuel and radioactive waste as an aspect of IBP in relation to the design and construction of the Reactor.  Greenpeace’s submissions proceed on an incorrect assumption as to the meaning of IBP in relation to radiation protection and nuclear safety:  neither the Act nor the material before the CEO required – for the purpose of applying s 32(3) in relation to the grant of a licence to construct a controlled facility – the identification and consideration of IBP in relation to (in their own right and to be separately considered), the management, handling, transport, processing and storage of spent nuclear fuel and radioactive waste.  Greenpeace’s assumption rests in assertion and is not supported by any of the material before the decision-maker.  Greenpeace has not adduced any evidence to support a construction of s 32(3) extending so as to require that each of these matters, in their own right and separately considered, is relevant to IBP in the context of the design and construction of a research reactor; or, alternatively, to demonstrate that the CEO erred in his interpretation of IBP in relation to radiation protection and nuclear safety for the purposes of s 32(3). 

·               The results of the operation of the Reactor were considered by the CEO, properly, in the context of, and in the course of, assessing the construction of the proposed Reactor. 

·               In analysing an administrative decision for the purposes of assessing a claim under s 5(2)(b) of the AD(JR) Act, the considerations may come within three categories – obligatory, forbidden or permissible: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 per Deane J at 375. The obligatory relevant considerations are those mandated by the Act, in this case the matters set out in Reg 41, together with IBP in relation to radiation protection and nuclear safety.  Forbidden considerations, or legally irrelevant considerations, are those that the statute expressly or impliedly prohibits any consideration: Peko-Wallsend at 40.  ANSTO does not contend that safety issues or the “generation of nuclear waste” are “legally irrelevant” in the sense that the CEO may not have regard to these matters. 

·               The CEO’s consideration, in his Reasons, of radiation protection and nuclear safety (even assuming that it did include the “management, handling, transport, processing and storage” of spent nuclear fuel and radioactive waste (see par 9 of the Application for Review), falls into the class of “permissible” considerations.  These are matters which may be taken into account in assessing the design of a research reactor, and how that reactor may operate at some future time based on the design.  However, the CEO is not required by s 32, or otherwise, to consider these matters as if he were issuing an operating licence, and in a manner that would bind him in relation to any future consideration of an application to issue an operating licence for the purpose of s 30(1)(d).

·               Because these considerations fall within the class of “permissible”, rather than “legally relevant”, considerations, the CEO’s treatment of them is not amenable to review under s 5(2)(b) of the AD(JR) Act.

·               Greenpeace’s contention that the absence of a stated finding in relation to management of spent nuclear fuel and radioactive waste somehow shows that there has been a failure to take these matters into account is unsound:  first, the CEO identified a statement of IBP in relation to spent nuclear fuel and radioactive waste to the extent that, as at 4 April 2002, there was a consensus with respect to IBP for spent nuclear fuel and radioactive waste.  Second, the absence of a statement in the Reasons does not mean that the CEO did not take these matters into account: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 per Toohey J at 393, applied in Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 at [15].  That the CEO considered a matter differently to the way in which it has been presented by a party or by a person making a public submission does not establish that there has been a failure to consider a matter: Mendoza v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 405.  Thirdly, the obligation to take these matters into account does not require there to be a specific finding in relation to whether or not there will be conformance or strict compliance with that relevant practice in all cases. 

·               ANSTO concedes that management of spent fuel arising from the operation of the Reactor is, as an abstract proposition, a matter capable of affecting “radiation protection and nuclear safety”, but it is not a matter which is a “mandatory” relevant consideration in respect of a construction licence.  Likewise, ANSTO does not contend that the spent fuel management issue was legally irrelevant at this stage.  However, the consideration of this issue arose, not because of the consideration of any relevant IBP but because of an independent consideration, being the condition in the Minister for the Environment’s approval that “[R]eactor construction should not be authorised until arrangements for the management of spent fuel rods have been demonstrated to the satisfaction of ARPANSA and the Minister for the Environment and Heritage”.  This raises a different issue to the question of IBP for the purposes of s 32(3).  The issues which are required to be addressed under the Environment Protection (Impact of Proposals) Act 1974 (Cth) differ from those required to be considered as part of IBP in relation to radiation protection and nuclear safety.  Moreover, the CEO’s reference  (in Part 7.2) to “concerns about nuclear proliferation” (cited earlier) should not be taken out of context.  “Nuclear proliferation” is not to be equated with nuclear safety.

·               Further, the fact that the management of spent nuclear fuel and radioactive waste was the subject of a large number of public submissions and was the subject of consideration cannot, of itself, make the consideration of the issue a “legally” relevant consideration for the purposes of the AD(JR) Act: Price v Elder (2000) 97 FCR 218 at 221, [13].  The Act and Regulations are silent about the weight the CEO should give to the public submissions although he must consider them: see Reg 41(3)(g). 

·               Greenpeace’s submission, that none of the strategies proposed by ANSTO for dealing with waste is certain; and that because the CEO did not consider retention of waste in Australia, he failed to give consideration to IBP in relation to radiation protection and nuclear safety, should not be accepted.  In the first place, there is no evidence that reprocessing is contrary to IBP.  The Joint Convention implicitly acknowledges that it is part of good international practice.  Next, the CEO did not, as Greenpeace contends, acknowledge “that the fuels proposed for use in the proposed [R]eactor are not suitable for the COGEMA La Hague plant as that plant presently operates.”  The CEO said: “I am aware that the particular process adopted at La Hague is not suitable for dealing with uranium silicide fuels in bulk.”  He then went on to record COGEMA’s commitment to process up to two years’ arising of uranium silicide fuel. 

·               Further, contrary to Greenpeace’s contention (irrelevant in any event in the absence of facts found), the French regulator has described its process for issuing authorisations for the reprocessing of spent fuel by COGEMA:

“In the more general case where a significant time period elapses between the fuel being receipted in the La Hague pools and its effective reprocessing, the current practice is that the operational authorisation is split into two successive authorisations: one authorisation for the receipt, unloading and storage of the fuel, followed by an authorisation for actual reprocessing.  Each of the authorisations is issued after review of the nuclear safety plan submitted by industry for the corresponding operations.  The presentation of the safety plan regarding the reprocessing itself occurring shortly before its planned date allows to take into account the precise characteristics of the nuclear fuel and the technical status at that moment.” 

(French Nuclear Safety Authority, Statement, 16 March 2001.)

 

·               Given that ANSTO’s spent fuel (from the present Reactor) is not scheduled to be reprocessed until 2005, it is therefore not to be expected that the French regulator has already issued a specific authorisation for its reprocessing. 

·               In this connection, the CEO found that no shipment would be made from the Reactor before 2013, and nothing would return before 2025. 

·               Further, there is no evidence of an injunction being in force in France restraining the French authorities from accepting Australian waste.  In fact, contrary to Greenpeace’s submissions, there was no injunction actually in force at the time of the decision.  (Court of Appeal in Caen overturning the injunction against COGEMA re the unloading of ANSTO spent fuel was made on 3 April 2001 – Affaire No RG01/00800.)

·               There is nothing in the language of s 32(3) that requires the CEO to assess and consider options in relation to spent fuel management; and his obligations under the Act did not require him not to issue a construction licence unless he was satisfied that the ANSTO options for dealing with spent fuel were certain.  Parramatta City Council v Hale (1982) 47 LGRA 319 does not assist Greenpeace’s argument.  The issue in Hale was not whether the Council had erred by taking into account matters which were not certain.  The issue in that case concerned “mandatory” provisions of s 90 of the Environmental Planning and Assessment Act 1979 (NSW) and the conclusion that, on the facts, the Parramatta City Council had failed to give consideration to those matters.  One of the facts (addressed by Street CJ at 334-335), was the extent of the departure made by the Council from the recommendations of its expert officers.  In some respects the chief town planner’s recommended conditions were replaced with far less stringent recommended conditions.  In other respects the recommended conditions were replaced with what were referred to during the course of argument as little more than “pious hopes”.  In his Honour’s view, this supported the conclusion that the tactics adopted by a group of aldermen tended to show that the Council had failed to give such consideration to the matters of parking, traffic and access, as was required by s 90(1).  (See now also Minister for Local Government v South Sydney City Council [2002] NSWCA 288, reversing South Sydney City Council v Minister for Local Government [2002] NSWLEC 74.)

·               In relation to the transport of waste, Greenpeace submits that the CEO “made no attempt to identify [IBP] in relation to the transportation of spent nuclear fuel and radioactive waste”.  Even if this was a “mandatory” relevant consideration, to be taken into account in determining a construction licence, the CEO did note the IAEA Regulations for the Safe Transport of Radioactive Material and did refer to a recent IAEA study.  There is no evidence that these Regulations and this study do not represent IBP. 

·               In relation to the storage of waste, Greenpeace accepts that if a suitable form for a repository could be developed, it may become IBP.  However, this is not a “mandatory” relevant consideration in connection with the grant of a construction licence.

70                  For these reasons, it follows, in my view, that Greenpeace has not shown that there has been a failure on the part of the CEO to take into account IBP in relation to radiation protection and nuclear safety for the purposes of s 32(3) of the Act; nor that he failed to correctly identify and consider the relevant IBP in relation to the construction of the Reactor.  Further, even though the CEO was not specifically required to have regard to the management of spent nuclear fuel and radioactive waste which would arise as a direct issue in relation to the operation of the Reactor, he did in fact take into account the public submissions and other material before him and concluded (in Part 13 – see above) that:

“… the applicant has demonstrated that the radiation protection and nuclear safety objectives included as a part of the design meet those laid out in the guidance provided by the international authorities.”

(The international authorities referred to are the IAEA and the international conventions and guidelines.)

Did the CEO’s decision involve an error of law (Application par 10(c))?

71                  To establish, within the meaning of s 5(1)(f) of the AD(JR) Act, that the Decision “involved an error of law”, Greenpeace must first show that the CEO erred in his understanding of s 32(3).  Moreover, as Mason CJ observed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353:

“A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.  The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.”

72                  To similar effect were the observations of Toohey and Gaudron JJ (at 384):

“For an error of law to constitute a ground of review under s 5(1) of the A.D.(J.R.) Act it is necessary that ‘the decision [involve] an error of law’: s 5(1)(f).  For an error of law to be involved in a decision something more than the mere occurrence of error is necessary.  The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute.  Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error.  Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.” 

73                  As has been said in considering par 10(b) of the application, in my view, the CEO did not err in law in his understanding of s 32(3).  The phrase “[IBP] in relation to radiation protection and nuclear safety”, is not a term of art or a technical term.  The language has its ordinary dictionary meaning; it involves an essentially factual enquiry of the kind in fact undertaken by the CEO here in his process of reasoning in the appropriate context, that is to say, the grant of a licence to construct.  In my opinion, no legal error is indicated, let alone a

mistake of law which may have meant that, properly instructed, the decision may have been different.

orders

74                  It must follow that the application should be dismissed, with costs.

 

I certify that the preceding seventy four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

 

 

Associate:

 

Dated:              13 September 2002

 

 

Counsel for the Applicant:	Mr P Larkin and Mr C Dimitriadis
Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the 2nd Respondent:	Mr A Robertson SC and Ms K Eastman
Solicitor for the 2nd Respondent:	Australian Government Solicitor
Date of Hearing:	22 & 23 May 2002
Date of Judgment:	13 September 2002

 

Annex 2 – The international safety framework

 

The International background

The international safety framework for nuclear facilities has developed over the past 45 or so years from the time non-military applications of nuclear energy began to arise.  Much of the framework has been developed with nuclear power reactors in mind and it might be argued that it is not applicable to a ‘research reactor’.23  It is true that even a quite powerful research reactor like the [Reactor] is two orders of magnitude below the power of a large power reactor and it operates at much milder temperatures and pressures.  Nevertheless, it has the potential, if not safely constructed and operated, to cause radiation doses off-site.  In addition, the RRR as proposed is a quite complex reactor system, involving large number of irradiations for commercial purposes and operating neutron beam facilities for experimental purposes.  For these reasons, it seems appropriate that at least the basic safety framework adopted should be as far as possible consistent with international best practice for power reactors. 

As nuclear power developed during the 50’s, 60’s and 70’s, western countries progressively developed their safety rules – sometimes as a result of systematic study of a generic issue, sometimes in response to a specific siting or construction proposal for a certain type of reactor.  The major countries took somewhat different paths in terms of the favoured reactor type – generally light water reactors in the US, gas-cooled reactors in the UK, and the Canadian deuterium-uranium reactors (CANDU).  One important early decision made in the United States, applicable to its light-water reactors, was that the reactors should be housed in a containment that would act as a final barrier to release of radiation, should other systems fail.  Generally, the 50s and 60s saw a focus on the technical issues – how to prevent loss of coolant accidents (LOCAs) from happening and preventing core damage if they did happen.  The accidents at Three Mile Island (which vindicated the containment requirement) and then at Chernobyl (albeit to a reactor with great weaknesses in western eyes) focussed attention back on human factors and to the notion of ‘safety culture’. 

Over these years, the structure of safety regulation system in most countries changed.  Initially, safety was handled within an ‘Atomic Energy Commission’ that had the role of developing and supporting nuclear power, either directly or through R&D support for a commercial industry.  Over time, it was seen as necessary to separate the function of safety oversight from that of the advocate and supporter of nuclear power. 

The International Atomic Energy Agency (IAEA) was founded in 1957 in the context of ‘Atoms for Peace’ initiatives.  Its role was to support the benefits of the applications of nuclear energy through the world.  Subsequently, it assumed the role of overseeing nuclear non-proliferation safeguards flowing from the Non Proliferation Treaty (NPT).  That was consistent with the Agency role as a supporter for nuclear energy applications – the basic bargain of the NPT was that states would commit themselves not to develop nuclear weapons, but would be supported to use peaceful applications of nuclear technology. 

The IAEA undertook work on safety principles and guidance for nuclear safety from around 1974.  The Agency now has a quite elaborate system for drawing up documents relating to radiation protection and nuclear safety.  The work is undertaken by four committees: nuclear safety, radiation protection, waste safety, and transport.  An advisory commission that reports to the Director-General of the Agency oversees it.  The membership of the committees and the commission – and indeed the numerous working parties that address specific topics – comprises strong technical expertise from throughout the world.  It is not possible to characterise the advice and requirements produced through this system as ‘lowest common denominator’.  The Basic Safety Standards for radiation protection form the basis for the regulation of the safe use of radiation through the world; the transport code similarly is used universally to regulate the transport of radioactive substance; and there is a large set of safety guidance and safety standards applicable to nuclear safety. 

The Convention on Nuclear Safety, the Joint Convention and INSAG

Nuclear safety as an international issue became highly significant after the Chernobyl accident in 1986.  Given the cross-border effects of that disaster, it was no longer possible to view nuclear safety as a solely national concern.  The IAEA had previously been involved in nuclear safety issues, but its efforts were now redoubled – and safety became the third pillar of the Agency – the other two being safeguards and nuclear technology.  Countries also negotiated the Convention on Nuclear Safety (which came into force in 1996) and subsequently the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (which came into force in 2001).  The IAEA is the secretariat for these two conventions. 

The Convention on Nuclear Safety is important in establishing a framework for nuclear safety – it is deliberately set up as an ‘incentive’ convention whereby it describes what might be characterised as the ‘gold standard’ for nuclear safety.  States signing the Convention are agreeing that they will seek to meet that standard and are opening themselves to review by other countries of their safety framework and activities.  Every three years, there is a review meeting where states review and discuss reports on nuclear safety from other states party to the Convention. 

The nuclear safety framework proposed under the Convention is made up of the following elements: 

·               a legislative and regulatory framework including licensing, inspection, assessment and enforcement

·               a regulatory body, separated from nuclear operational bodies and provided with adequate authority, competence and resources but the prime responsibility for safety rests with the licence holder

·               adequate financial and human resources are to be available to support the safety of each nuclear installation throughout its life

·               the capabilities and limitations of human performance are to be taken into account

·               quality assurance programs are to be established and implemented for all safety-important activities

·               safety assessments are to be carried out before the construction and commissioning of a nuclear installation and throughout its life

·               radiation exposures to be kept as low as reasonably achievable to workers and the public and no individual to receive a radiation dose greater than national dose limits

·               on-site and off-site emergency plans are routinely tested and cover the activities to be carried out in the event of an emergency 

·               there be appropriate mechanisms and steps taken to ensure that:

Ø             all relevant site-related factors likely to affect the safety of a nuclear installation are evaluated over its projected lifetime; 

Ø             the design and construction of a nuclear installation provides defence in depth against the release of radioactive materials, with a view to preventing the occurrence of accidents and to mitigating their radiological consequences should they occur

Ø             the technologies in the design and construction of a nuclear installation are proven by experience or qualified by testing or analysis

Ø             the design of a nuclear installation allows for reliable, stable and easily manageable operation, with specific consideration of human factors and the man-machine interface 

Ø             operational limits and conditions derived from the safety analysis, tests and operational experience are defined and revised as necessary for identifying safe boundaries for operation 

Ø             operation, maintenance, inspection and testing of a nuclear installation are conducted in accordance with approved procedures

·               the generation of radioactive waste resulting from the operation of a nuclear installation is kept to the minimum practicable both in activity and in volume. 

Australia has reported in detail against these criteria in 1999 and 2002.  The reports are publicly available and establish that Australia’s structures and approaches are consistent with this statement of international best practice. 

The Joint Convention (which Australia has signed, but not yet ratified) is modelled on the Convention on Nuclear Safety in that it is an incentive convention that sets out the

‘gold standard’ for the safety of the management of spent fuel and radioactive waste24 and establishes a reporting and review mechanism.  The general safety provisions are similar to those in the Convention on Nuclear Safety and there are provisions addressing the siting, design, construction and operation of facilities dealing with spent fuel and radioactive waste.

Another authoritative statement of international best practice with regard to nuclear safety is that made by the International Nuclear Safety Advisory Group (INSAG), a group established to advise the Director-General of the IAEA.  INSAG, which was first established in 1985 and first reported on the Chernobyl accident, has published a number of authoritative publications on aspects of nuclear safety.  In its ‘Basic Safety Principles for Nuclear Power Plants’ (INSAG-12) they state three objectives:

General Nuclear Safety Objective

To protect individuals, society and the environment by establishing and maintaining in nuclear power plants an effective defence against radiological hazard. 

 

Radiation Protection Objective

To ensure in normal operation that radiation exposure within the plant and due to any release of radioactive material from the plant is as low as reasonably achievable, economic and social factors being taken into account, and below prescribed limits, and to ensure mitigation of the extent of radiation exposure due to accidents. 

 

Technical Safety Objective

To prevent with high confidence accidents in nuclear plants; to ensure that for all accidents taken into account in the design of the plant, even those of very low probability, radiological consequences, if any, would be minor; and to ensure that the likelihood of severe accidents with radiological consequences is extremely small. 

 

INSAG then goes on to list three ‘fundamental principles’ that apply to meeting these objectives: 

Management Responsibilities: safety culture, responsibility of the operating organisation, and regulatory control and independent verification

 

Strategy of Defence in Depth: defence in depth, accident prevention, and accident mitigation 

 

General Technical Principles: proven engineering practices, quality assurance, self-assessment, peer reviews, human factors, safety assessment and verification, radiation protection, operating experience and safety research, and operational excellence.