Transparency wins as Tribunal rebukes government secrecy

The Administrative Review Tribunal has scolded the Government for the premise it wrapped around its AUKUS Nuclear Waste Storage and Disposal plans. Transparency Warrior Rex Patrick reports.

The Administrative Review Tribunal slapped the Government with an order to hand over documents on how and where the AUKUS Nuclear Waste will be stored and disposed of.

As Deputy Britten-Jones wrote in his reasoning for the decision, “There is some power in establishing social license and trust in the public in the applicant’s submission in response:

The best way to achieve social license and trust is through transparency, not secrecy.

MWM He had requested access to advice provided by Geoscience Australia and the Australian Radioactive Waste Agency (ARWA) to the Australian Submarine Agency.

Britten-Jones concluded her decision by saying: “I consider that the release of the documents will inform the debate on an issue of public importance. There is a significant public interest in understanding the policy decisions taken by the Government in relation to nuclear waste management.”

Nuclear waste review

In November 2023, the Submarine Agency submitted a report to Defense Minister Richard Males on the process by which the government would identify locations that would be suitable to store and dispose of spent nuclear fuel and nuclear waste produced by AUKUS submarines.

When the report was delivered to the Minister, the cover note warned that it would be in the public interest.

Considering the combination of public interest and sentiment, the Government had only one thing to do: declare the report a Cabinet document.

Whether this is in fact a Cabinet document is a question currently before the Federal Court. The government resists the release of the report while the public pays for its pro-secrecy lawyers. MWM He considered requesting material that Geoscience Australia and ARWA had provided to the Submarine Agency to develop its policies.

This brought about another transparency challenge that led to a rebuke from the Court.

nuclear literacy

Struggling to keep everything secret, the Government brought in the big guns to present evidence. ARWA’s chief executive, Mr Sam Usher, informed the Court of the dangers of allowing what he called the “nuclear illiterate” Australian public to know what was going on.

Submarine boasts but nuclear waste storage sites shrouded in secrecy

The court rejected his confidentiality observation, stating in response:

“Mr Usher thought there was less nuclear literacy in Australia compared to, for example, the UK, but it is clear from the contents of the media release attached to his affidavit that the Australian public will be aware that Australia’s radioactive waste will increase in the future and that long-term management of waste at existing sites is unsustainable and that ‘alternative proposals for the storage and disposal of waste’ are being actively considered.”

“Information on factors relevant to the site selection process for storage and disposal has been made publicly available, as have the Applicant’s proposed CSIRO reports. I do not accept the defendant’s concerns about the disclosure of certain geological or technical information. Qualified people at Geoscience Australia or ARWA will derail the Government’s decision making in this area.”

“On the contrary, the public will likely be pleased to have suitably qualified individuals consider these important issues and will be given the opportunity to contribute to the process; “Both of these can assist the Government in its decision-making process.”

Submarine Agency radioactive bulldog

Submarine Agency Deputy Director General of Strategy Alex Kelton gave similar evidence to ARWA. The public must not know; This is very dangerous for the government! He stated that transparency would “invite” diversion of Government resources. [public] Discussion about early reflection on an issue on which Australia has no long-standing policy position”.

However, the Court did not accept any of Ms. Kelton’s claims of confidentiality and narrative control. The Vice President said this about privacy:

“In my view, Ms Kelton’s confidentiality-undermining concerns about its disclosure cannot reasonably apply to this information. Moreover, disclosing this information would not interfere with consultation processes or the establishment of social license because it is public information that the public could reasonably expect to be the subject of consideration by the Project Team. Indeed, disclosure of this information is likely to result in more benefit than harm because the public will be relieved to know that these important issues form part of the assessment in relation to nuclear waste management.”

On the issue of narrative control, Britten-Jones chided him:

“I can understand the defendant’s preference for the information to be released in an orderly manner, but if the material is released the Government will be able to provide its context and the public will benefit from a better understanding of the process being undertaken.”

“While there may have been some inappropriate responses to the disclosure of information that required Government action, such disclosure would provoke debate on a matter of public importance and increase scrutiny, discussion, interpretation and scrutiny of the Government’s activities. These are factors in the public interest that support granting the Applicant access to the material at issue. In my view, these factors outweigh the concerns expressed by the witnesses on behalf of the Respondent.”

Technical specifications

Much of the material provided by Geoscience Australia and ARWA was scientific and technical in nature; they are not exempt under the claims the Commonwealth asserts in the case.

Britten-Jones was unimpressed by their radioactive explanations, instead stating:

“Opinions, including those on a particular subject, are expressed on a scientific basis, which may well be controversial and give rise to sensitivities, but are nevertheless part of the opinion expressed by an expert on a scientific subject. [but it is not exempt from release]”

Regarding geological information that may or may not reveal a location under investigation, the Vice President said:

“I do not think there would be serious harm in disclosing geological information about a particular site, even if it were to conclude that the site was not considered a site for the storage or disposal of nuclear waste or was excluded from further consideration of that site.”

End secrecy!

Britten-Jones, although polite in his writings, was harsh on the approach to secrecy adopted. We can only hope that both ARWA and the Submarine Corps take heed of what he says.

He concluded his decision as follows: “There is no harm in disclosing this material. On the contrary, it is in the public interest to disclose it as it will shed light on the debate on a matter of public importance and

Examination, discussion, interpretation and review of government activities will be increased.

Tens of thousands of taxpayer dollars have been spent to date to hide AUKUS’s nuclear waste information from the public. The government has 28 days to appeal the Federal Court’s decision and can do so. The cost of this will likely run into the hundreds of thousands; but it’s just more money they’ll spend on pointless secrecy.

Where are AUKUS’ nuclear waste costs (landfills aside)?

Rex Patrick is a former South Australian Senator and formerly a submariner in the armed forces. Known as an anti-corruption and transparency warrior, Rex is also known as “Transparency Warrior“