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2013 - 2014 - 2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY
AMENDMENT BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health, the Hon Sussan Ley MP)
AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY
AMENDMENT BILL 2015
OUTLINE
The Bill amends the Australian Radiation Protection and Nuclear Safety Act 1998
(the ARPANS Act) that establishes a scheme for licensing Commonwealth entities
using radiation.
The scheme is administered by the Australian Radiation Protection and Nuclear
Safety Agency (ARPANSA) that regulates a broad range of applications from
baggage x-ray units in airports to the Open Pool Australian Lightwater (OPAL)
research reactor at Lucas Heights.
The ARPANS Act has not been substantially updated since it was introduced in 1998.
Since that time:
there have been changes to international approaches to radiation and nuclear
safety;
there have been a number of reviews of the ARPANSA regulatory scheme. While
the reviews have confirmed that the scheme provides a reasonable framework for
the regulation of radiation sources and nuclear facilities, the reviews did identify
some areas for improvement. ARPANSA's experience administering the
legislation has also highlighted areas for improvement; and
there have been changes in practice which require an adjusted regulatory response.
To ensure that Australia's system for regulating Commonwealth controlled nuclear
facilities and radiation sources remains appropriate, this Bill introduces changes to the
legislation to address identified deficiencies and to replace outdated provisions.
The proposed amendments in the Bill update and improve the operation of the
ARPANS Act by:
making some adjustments to the licensing regime to expressly enable ARPANSA
to regulate remediation activities involving contaminated legacy sites, to clarify
that ARPANSA may issue single licences for multiple facilities and/ or sources
where this supports end-to end risk management and to enable ARPANSA to
issue time limited licences;
clarifying the application of the legislation to contractors and others working with
Commonwealth entities;
providing ARPANSA with greater capacity to respond to emergencies and to
adopt a graduated response to non-compliance by introducing a wider range of
monitoring and enforcement measures;
updating the language used in technical definitions to better reflect internationally
accepted terms and concepts; and
making minor, technical amendments to improve clarity, remove redundant
provisions and enhance administration of the regulatory regime.
Financial Impact Statement
The Bill has no direct or indirect financial impacts.
1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Australian Radiation Protection and Nuclear Safety Amendment Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Australian Radiation Protection and Nuclear Safety Amendment Bill 2015
amends the Australian Radiation Protection and Nuclear Safety Act 1998 (the
ARPANS Act) to improve the operation of the legislation and update the regulatory
scheme to better reflect international best practice. The Bill provides the Australian
Radiation Protection and Nuclear Safety Agency (ARPANSA) with the range of tools
that it requires to best manage risk and monitor and enforce compliance with the
legislation by Commonwealth entities.
Human Rights Implications
The proposed amendments are compatible with the right to an adequate standard of
living and the right to the enjoyment of the highest attainable standard of physical and
mental health as contained in article 11(1) and article 12(1) of the International
Covenant on Economic, Social and Cultural Rights.
The proposed amendments are designed to ensure that Australia's regulation of
radiation sources and nuclear facilities operated by Commonwealth entities is
appropriate and well adapted to the task of protecting public health and safety (and the
environment) from the harmful effects of radiation. Each of the changes proposed in
this Bill improves the operation of the legislation and better enables the achievement
of this objective.
Conclusion
This Bill is compatible with human rights as it promotes the human right to an
adequate standard of living and the highest attainable standard of physical and mental
health.
The Hon Sussan Ley MP, Minister for Health
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AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY
AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1 - Short title
This is a formal provision which provides that the Bill, once enacted, may be cited as
the Australian Radiation Protection and Nuclear Safety Amendment Act 2015.
Clause 2 - Commencement
This clause provides that each provision of the Bill commences in accordance with the
table. Provisions, Schedules and Parts of Schedules commence as follows:
The whole of the Act commences on the 28th day after the Act receives Royal
Assent.
The effect of these commencement provisions is that the substantive changes to the
ARPANS Act (as described in Schedule 1) will take effect 28 days after the Act
receives Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms.
Schedule 1 - Amendments
Part 1 - Amendments
Items 1, 2 and 3
The purpose of these amendments is to ensure that the ARPANS Act does not
inadvertently regulate contractors who should instead be regulated under the relevant
State or Territory law.
Subsection 11(2) currently provides that the ARPANS Act applies to a
Commonwealth contractor, in respect of a dealing by the Commonwealth contractor
with controlled material or controlled apparatus, only if, and in so far as, the dealing
is:
for or on behalf of a Commonwealth entity; and
under (or for the purposes of) a contract with the Commonwealth entity.
These items amend subsection 11(2) and add a new subsection 11(3) to make it clear
that it is only where the controlled material or controlled apparatus is owned or
controlled by a Commonwealth entity that this Act applies.
This amendment prevents the Act applying where a contractor is performing work for
a Commonwealth entity but is using his or her own equipment. Where a contractor is
using his or her own equipment, he or she should be licensed by the relevant State or
Territory authority.
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For example, if a contractor licensed by the NSW Environment Protection Authority
(EPA) comes on board a navy ship in Garden Island (Commonwealth premises) to
work on a gun using his/her own industrial radiography source, he or she is regulated
by the relevant State or Territory radiation laws. In this example, the contractor would
be regulated by the NSW EPA through the NSW Radiation Control Act 1990.
These amendments clarify this situation to ensure that such contractors are not also
captured by the ARPANS Act.
However, if a contractor to a Commonwealth entity is using controlled material or
apparatus that is owned or controlled by the Commonwealth entity, then the
contractor is subject to regulation by the ARPANS regulatory scheme and must
comply with any relevant licence conditions imposed by ARPANSA on the licence
holder (the Commonwealth entity).
The amendment proposed by Item 3 clarifies the situation where a person is not a
contractor to the Commonwealth but is nevertheless undertaking activities at facilities
owned or controlled by the Commonwealth, or using controlled apparatus or material
that is owned or operated by the Commonwealth.
Item 3 achieves this by adding a new section 11A to the Act. Section 11A provides
that a permitted person is one that is permitted under an arrangement with a licence
holder to:
undertake certain activities in relation to controlled facilities that are owned or
controlled by a licence holder; or
deal with a controlled material or controlled apparatus that is owned or controlled
by a licence holder.
If these circumstances exist, then the person (the permitted person) is covered by the
ARPANSA licence in respect of the particular activity or dealing to which the
arrangement with the licence holder applies. The permitted person (undertaking
activities at controlled facilities or with controlled material or apparatus that is owned
or controlled by the Commonwealth) must comply with any relevant conditions of
licence imposed by ARPANSA.
The effect is that if, for example, a scientist is visiting the Australian National
University (ANU) and using ANU owned equipment, the visiting scientist would be
subject to the conditions imposed by ARPANSA with respect to the controlled
facilities, apparatus or material.
This ensures that there is no disruption to proper risk management simply because the
person using the Commonwealth facilities is not actually employed or contracted by
the Commonwealth.
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To minimise any potential constitutional risk, a severability clause has been included
at subsection 11A(3) such that, if necessary, the Act may be read to apply to permitted
persons only to the extent that the permitted person undertaking an activity or dealing
for the purposes of a licence holder, or in a Territory, or in a Commonwealth place.
Items 4, 5, 6, 7, 8, 9, 10 and 11
Section 13 of the Act is a list of definitions of key terms used in the ARPANS Act.
Items 4, 6, 7 and 8 describe changes that have been made to existing definitions in
section 13. Specifically:
the definition of controlled facility is being amended to add a prescribed legacy
site as a type of controlled facility (item 4). 'Prescribed legacy site' is further
defined by item 11 (refer discussion below). The changes support the amendments
being made to section 30 that ensure that ARPANSA has the capacity to licence
legacy sites that require remediation.
the definition of nuclear installation is being amended to:
remove references to 'nuclear materials' and 'nuclear waste' and replace them
with more appropriate and technically correct references to 'radioactive
materials' and 'radioactive waste' (items 6 and 7);
include within the definition a plant for storing spent fuel that has been used in
a nuclear reactor (item 8). Currently the definition of nuclear installation
includes a plant for preparing or storing fuel before it goes into a nuclear
reactor, but does not cover a plant for storing spent fuel when it comes out of a
nuclear reactor. This inadvertent omission in the original ARPANS Act is
being addressed by including within the definition of nuclear installation, a
reference to a plant for storing spent fuel that has been used in a nuclear
reactor. This has no impact on existing licensing by ARPANSA because
ARPANSA already regulates storage of spent fuel through existing licensing
arrangements relating to nuclear installations. The amendment is purely
designed to address a technical omission in the definition.
Items 5, 9 and 11 insert new definitions into section 13:
item 5 inserts a new definition of improvement notice which refers the reader to
subsection 80A(2), which describes improvement notices. Improvement notices
are discussed in more detail in relation to item 36;
item 9 inserts a new definition of permitted person which refers the reader to
section 11A, which provides this definition. The concept of a permitted person is
described in more detail in relation to item 3;
item 11 inserts two new definitions into section 13, being:
prescribed legacy site which means a place (whether enclosed or built on or
not) that is prescribed by the regulations for the purposes of this definition.
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remediate which means, in relation to a prescribed legacy site, to apply
measures to the site to reduce the exposure of people or the environment to
radiation from contamination of the site with radioactive material.
Item 10 repeals the definition of person covered by a licence and substitutes it with a
new definition which captures the new category of permitted person (as defined in
section 11A). The new definition provides that a person covered by a licence is:
a controlled person who is authorised under the licence to deal with a controlled
apparatus or controlled material or to undertake an activity in relation to a
controlled facility; or
a permitted person in relation to the licence.
Items 12 and 13
Section 18 of the ARPANS Act describes how, and to whom, the CEO may delegate
powers and functions conferred by the Act.
Section 18 currently enables the CEO to delegate powers and functions to officers
holding certain positions in the Australian Public Service (APS). However, the Act
uses out-dated terms that are no longer used to describe the relevant positions in the
APS.
Item 12 therefore amends this provision to reflect the current nomenclature in the
Public Service Classification Rules 2000. Specifically, the reference to 'Senior
Officer Grade A, B or C' has been replaced with reference to 'an Executive Level 1 or
2 position'. This change is machinery only and has no impact on how the CEO may
delegate powers or functions, or the types of people to whom the CEO may delegate
powers or functions.
Item 13 makes an addition to section 18 to deal with the new power being given to the
CEO of ARPANSA to review improvement notice decisions made by inspectors
(Refer item 36 which inserts new improvement notice provisions).
Item 13 inserts a new subsection 18(1A) that provides that the CEO may only
delegate the power to review an inspector's decision to issue an improvement notice
to a person holding or performing the duties of a Senior Executive Service office, or
equivalent, in the Department. This ensures that decisions on review of improvement
notices may only be undertaken at an appropriately senior level.
Item 14
Section 23 describes the functions of the Radiation Health Committee, which are
principally to provide advice to the CEO and the Radiation Health and Safety
Advisory Council (the Council) on matters relating to radiation protection and to
develop and review policies, codes and standards.
Similarly section 26 describes the functions of the Nuclear Safety Committee which
are to provide advice to the CEO and the Council on matters relating to nuclear safety
and the safety of controlled facilities and to develop and review policies, codes and
standards in relation to the safety of controlled facilities.
6
Subsections 23(2) and 26(2) currently state that the Committees' functions are to be
performed only on the request of the CEO or the Council. This item amends each of
these subsections so that both the Radiation Health Committee and the Nuclear Safety
Committee may only perform functions at the request of the CEO. This amendment
has been necessary to ensure that the CEO has the capacity to manage the budget of
ARPANSA and to prioritise requests for advice and development and review of
policies, codes and standards. The Committees may still, however, provide advice to
both the Council and the CEO.
Item 15
Section 30 of the Act describes the activities that must not be undertaken without a
facility licence. Currently the heading of section 30 is entitled 'Construction,
operation etc. of nuclear installations or prescribed radiation facilities'. As a result of
the amendment proposed by item 4 (which adds a new type of controlled facility,
specifically a prescribed legacy site) the heading is no longer appropriate. This item
therefore repeals the heading and substitutes a new heading being 'Construction,
operation etc. of controlled facilities'. The term controlled facility captures nuclear
installations, prescribed radiation facilities and, as a result of the amendment at
item 4, prescribed legacy sites.
Item 16
Currently there is no clear way to license activities associated with the remediation of
sites that have been contaminated by radioactivity but where the contamination is
unrelated to, or did not arise from, a licensed facility, material or apparatus. This issue
was also identified by the International Atomic Energy Agency (IAEA) Integrated
Regulatory Review Service (IRRS) mission to ARPANSA in 2007 and the follow-up
IRRS mission in 2011. The IAEA noted the lack of a clear legal basis for regulating
existing exposure situations, remediation and clearance.
This item addresses this inadequacy by amending subsection 30(1).
Subsection 30(1) currently provides that unless a controlled person is authorised by an
ARPANSA licence or otherwise exempt, the controlled person must not:
prepare a site for a controlled facility;
construct a controlled facility;
have possession or control of a controlled facility;
operate a controlled facility; or
de-commission, dispose of or abandon a controlled facility.
This item adds to this list of activity a reference to remediating a prescribed legacy
site.
The effect of this amendment is that a person (specifically a Commonwealth entity)
cannot remediate a legacy site that has been prescribed in the Australian Radiation
Protection and Nuclear Safety Regulations 2000 (ARPANS Regulations), unless that
person is licensed to do so by ARPANSA or exempt by the ARPANS Regulations.
An example of a legacy site is the Little Forest Legacy Site (formerly known as Little
Forest Burial Ground) that was used by the Australian Atomic Energy Commission
7
during the 1960s to dispose of waste containing low levels of radioactivity and
beryllium oxide (non-radioactive) in a series of shallow trenches.
While the Australian Nuclear Science and Technology Organisation (ANSTO) has
monitored this site since 1966 (and the results have been reported publicly in
ANSTO's environmental monitoring reports) the ARPANS Act has not expressly
enabled the licensing of such a site, as it is not captured by the definition of a
controlled facility. This was also noted in an Australian National Audit Office
(ANAO) report on the ARPANSA regulatory scheme.
This amendment addresses this issue to ensure that any legacy sites may be prescribed
in the ARPANS Regulations and the remediation of such sites appropriately overseen
by ARPANSA through licensing arrangements.
This amendment is not intended to address the situation where contamination occurs
as the result of an accident at a facility that is already licensed by ARPANSA.
In such cases, regulation 46 of the ARPANS Regulations already provides that a
licence holder must take all reasonably practicable steps to prevent accidents
involving controlled materials, controlled apparatus or controlled facilities described
in the licence. If an accident happens, the holder of a licence must:
take all reasonably practicable steps to control the accident;
take all reasonably practicable steps to minimise the consequences of the accident,
including injury to any person and damage or harm to the environment; and
tell the CEO about the accident within 24 hours of it happening and give the CEO
a written report about the accident within 14 days of it happening.
This regulation remains unaffected by the amendment to section 30 that deals with the
very specific and distinct situation of remediation of legacy sites.
Items 17, 18 and 21
Currently ARPANSA may issue facility licences in respect of activities described in
section 30 and source licences in respect of dealings with controlled material and
controlled apparatus described in section 31.
In some cases a controlled facility will:
accommodate controlled material or controlled apparatus; or
be used in conjunction with controlled material or apparatus even if the materials
or apparatus are not part of the controlled facility.
In these cases it may be most appropriate for the dealings with the controlled material
and/or apparatus to be dealt with under the same licence as the operation of the
controlled facility. This is because the relationship between the controlled facility and
the controlled material or apparatus may mean that an integrated risk management
plan is the most appropriate way to mange the risk in its entirety.
In such circumstances it may be contrary to best practice regulation for ARPANSA to
separately licence the facility and the sources.
8
Similarly, there may be circumstances where there is more than one controlled facility
on a site and the activity is best regulated through one comprehensive risk
management plan and one ARPANSA licence rather than through separate facility
licences for each controlled facility.
Items 17 and 18 amend sections 31 and 32 to clarify that ARPANSA can issue
licences covering multiple controlled facilities and/or sources.
Item 17 amends subsection 31(1) to add a new paragraph to enable sources to be
licensed under a facility licence and item 18 adds a new subsection (subsection
32(1A)) to put it beyond doubt that a facility licence may relate to one or more
controlled facilities and may also authorise Commonwealth entities to deal with
controlled apparatus or controlled material.
Item 21 makes a consequential amendment to subsection 35(4) to replace the
reference to a source licence with a reference to a licence (any licences). The effect of
this is that a licence (either source or facility) is subject to the condition that any
person authorised by the licence to deal with a controlled apparatus or material must:
at any time when the person has possession or control of such apparatus or
material - allow the CEO, or a person authorised by the CEO, to inspect the
apparatus or material at reasonable times; and
comply with any requirements specified in the regulations in relation to such an
inspection.
Item 19
Section 35 provides that a licence is subject to the conditions set out in section 35,
conditions prescribed by regulations, conditions imposed by the CEO at the time of
issuing the licence and any conditions imposed by the CEO after the licence is issued.
This item amends this section so that a licence is also subject to the condition that if
an inspector has given an improvement notice to a licence holder, this must be
complied with by the time specified in the notice.
Item 20
This item makes a consequential change to subsection 35(3) to reflect the addition of
references to remediation of legacy sites in section 30.
Items 22 and 23
Section 37 currently provides that a licence continues in force until it is cancelled or
surrendered. This limits the capacity of ARPANSA to issue a licence for a defined
period, including where a Commonwealth entity wishes to trial new equipment and
therefore only requires a licence for a particular period of time.
Item 23 repeals section 37 and replaces it with a new section that enables the CEO to
issue a licence for an indefinite period, or for a period specified in the licence.
This change enables the CEO of ARPANSA, where appropriate, to limit the period of
a licence at the time that the licence is issued. This does not affect existing licences.
9
A licence continues in force until it is either cancelled or surrendered, or if the licence
was issued for a specified period, the end of that period (or that period as extended
under paragraph 36(2)(d)), unless earlier cancelled or surrendered.
Item 22 makes a consequential amendment to subsection 36(2) to provide that if the
CEO issues a licence for a specified period, the CEO also has the power to extend that
period by written notice given to the licence holder in accordance with section 36.
Items 24 and 28
Currently under section 40 of the Act an applicant for a licence or a licence holder (an
eligible person) may request reconsideration of certain licence decisions by the
Minister. This includes decisions made by the CEO of ARPANSA to refuse to grant a
licence, impose conditions on a licence, suspend, cancel or amend a licence or not to
approve the surrender of a licence.
Similarly under section 42, a controlled person to whom a direction is given by the
CEO may also seek reconsideration of that decision by the Minister.
In both cases the person has 90 days to request reconsideration by the Minister in
writing. Items 24 and 28 amend paragraphs 40(2)(b) and 42(2)(b) to require requests
for reconsideration by the Minister to be made within 28 days, rather than within 90
days.
This change:
aligns the request for review period with that allowed by the Administrative
Appeals Tribunal (in accordance with the Administrative Appeals Tribunal Act
1975);
better aligns the ARPANS Act with State and Territory radiation legislation that
also provides 28 days for affected entities to request review of similar decisions
made by State and Territory radiation regulators; and
provides greater regulatory certainty by ensuring that a decision is final and is
made within a reasonable period of time. This provides certainty for ARPANSA,
regulated Commonwealth entities and other stakeholders.
While a request for reconsideration must be made within 28 days, additional
information may be provided to the decision maker on review, at any time during the
period of reconsideration.
Item 25
This item amends subsection 40(6) of the Act to provide that a decision by the CEO to
issue a licence for a particular period (rather than for a longer period or indefinitely)
and a decision not to extend the period for which a licence was issued are decisions
that are subject to reconsideration by the Minister (and review by the AAT) in
accordance with section 40.
Item 26
Section 41 deals with the circumstances in which the CEO may give directions to
controlled persons.
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Item 26 makes a machinery change to section 41 to insert a new heading before
subsection 41(1) - When this section applies. This helps to make this section easier to
read, given that it has eight subsections.
Item 27
Currently under section 41 the CEO may give written directions to a licence holder
requiring them to take certain steps if the CEO believes, on reasonable grounds, that
they are not complying with the Act or Regulations and that it is necessary to exercise
powers in order to protect the health and safety of people or to avoid damage to the
environment.
Item 27 inserts a new subsection (section 41(1A)) that expands the operation of this
provision so that the CEO can also issue directions if, despite there being no non-
compliance with the legislation, there is still a risk of death, serious illness, serious
injury or serious damage to the environment arising from radiation in connection with
a controlled facility or controlled material/apparatus.
This is intended to deal with the situation where a controlled person may be
complying with the legislation but there may be, for example, an imminent weather
event that means that action must be taken immediately, in order to minimise risk to
people and the environment. In this circumstance, the CEO of ARPANSA should be
able to issue such a direction without needing to first establish that the licence holder
was non-compliant. The addition of subsection 41(1A) achieves this outcome.
Item 27 also inserts a revised subsection 41(2) that provides that the CEO may give
written directions to a controlled person requiring the controlled person to take such
steps as the CEO considers appropriate:
in relation to a hazardous thing - if the CEO believes, on reasonable grounds, that
a person is not complying with the Act or Regulations and that it is necessary to
give directions in order to protect the health and safety of people or to avoid
damage to the environment; and
in relation to the controlled facility, material or apparatus - if the CEO believes on
reasonable grounds that there is a risk of death, serious illness, serious injury or
serious damage to the environment arising from radiation in connection with a
controlled facility, material or apparatus.
It is important to note that these amendments in no way shift responsibility or liability
for safety - this continues to remain with the licence holders. The expanded directions
power is not intended to undermine operator responsibility. The amendments simply
expand the circumstances in which the CEO can issue directions to a licence holder
where the CEO believes on reasonable grounds that there is a risk of death, serious
illness, serious injury or serious damage to the environment arising from radiation in
connection with a controlled facility, material or apparatus. It is not envisaged that the
power would be exercised in other than exceptional circumstances, and its exercise
will not be inconsistent with the implementation of the licensee's approved
emergency plans and arrangements.
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Item 29
This item inserts a new Division 4 (Information-gathering) at the end of Part 5 of the
Act. This new Division consists of two sections.
Section 44A - CEO may require controlled person to provide information, produce
documents or appear before the CEO
Currently the CEO of ARPANSA has no power to compel controlled persons to
appear before the CEO to answer the CEO's questions about possible non-compliance
with the legislation or to provide documents to the CEO also regarding possible non-
compliance.
This has been identified in recent reviews of ARPANSA as being a power that would
be expected of like Regulators, but is absent from the suite of powers available to the
CEO of ARPANSA.
This section addresses this situation by providing that if the CEO believes, on
reasonable grounds, that a controlled person has information or a document that is
relevant for the purpose of finding out whether this Act, the regulations or the
conditions of a licence have been complied with, the CEO may, for that purpose,
require the controlled person, by written notice, to:
give information to the CEO or produce to the CEO documents in the person's
custody or control, or copies of such documents. The controlled person must
comply with this requirement within 28 days after the notice is given, or within
such shorter period specified in the notice. The provision enables a shorter period
of time to be specified in case the circumstances of the possible non-compliance
warrant this. For example, there may be potential risks to public health and safety
as a result of the possible non-compliance, and it may therefore be reasonable in
the circumstances for the CEO to require answers to questions or the provision of
information in timeframes shorter than 28 days;
answer questions specified in the notice. The time specified in the notice for
compliance with this request may be any reasonable time after the notice is given;
if the person is an individual - appear before the CEO at a time and place specified
in the notice to give information or answer questions, either orally or in writing, or
produce to the CEO documents in the person's custody or control, or copies of
such documents. The time specified in the notice for compliance with this request
may be any reasonable time after the notice is given; or
if the person is a body corporate - cause a competent officer of the body corporate
to appear before the CEO at a time and place specified in the notice to give
information or answer questions, either orally or in writing, or produce to the CEO
documents in the person's custody or control, or copies of such documents. The
time specified in the notice for compliance with this request may be any
reasonable time after the notice is given.
Subsections 44A(5) and 44A(6) describe two circumstances in which a person is
excused from giving information, answering questions or appearing before the CEO.
Subsection 44A(5) provides that if the controlled person is an individual, the
individual is excused from giving information, answering a question or producing a
document in accordance with the notice if the information, the answer or the
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production of the document might tend to incriminate the individual or to expose the
individual to a penalty. This provision ensures that the privilege against self-
incrimination is not abrogated by section 44A.
Subsection 44A(6) provides that the recipient of a notice under section 44A is excused
from giving information, answering a question or producing a document in
accordance with the notice if doing so would involve a contravention of an obligation
under an international agreement:
to which Australia, the recipient or another controlled person is a party; and
that relates specifically to the recipient of the notice or if the recipient is an officer
or an employee of a controlled person, that controlled person.
This subsection is designed to protect Commonwealth entities from disclosure to the
CEO of ARPANSA if such disclosure would be contrary to an international
agreement that expressly includes confidentiality provisions that would prohibit such
disclosure.
In a prosecution for an offence against section 44B (for failure to comply with a
notice under section 44A) a defendant bears an evidential burden in relation to the
matters described in subsections 44A(5) and (6). This is consistent with
subsection 13.3(3) of the Criminal Code. In the case of subsection 44A(6) this is
reasonable because the question of whether particular information is covered by an
international agreement is one that a defendant is in a better position to answer than
ARPANSA or the prosecution.
Section 44B - Offence - failure to comply with requirement
Section 44B provides that a controlled person commits an offence if the controlled
person is given a notice under section 44A and fails to comply with the notice. The
offence is punishable by a penalty of 30 penalty units.
Item 30
Section 59 describes the matters that must be included in an annual report prepared by
the CEO. The CEO's annual reports are given to the Minister, tabled in Parliament
and also published on the ARPANSA website.
This item amends section 59 to require the CEO to include in the annual report:
details of directions given by the CEO during the period under section 41 of the
Act; and
details of improvement notices given by inspectors during the period under
section 80A of the Act.
Item 31
Section 60 describes the matters that must be included in quarterly reports prepared by
the CEO. The CEO's quarterly reports are given to the Minister, tabled in Parliament
and also published on the ARPANSA website.
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This item amends section 60 to require that the CEO include in the quarterly reports:
directions given by the Minister during the quarter under section 16;
details of directions given by the CEO during the quarter under section 41 of the
Act; and
details of improvement notices given by inspectors during the quarter under
section 80A of the Act.
Item 32
This item inserts a new Division heading at the beginning of Part 7 (Division 1 -
Appointment and powers of inspectors). This enables the creation of a second
Division to deal with Improvement notices (Division 2 - Improvement notices) (refer
item 36).
Items 33 and 34
Section 65 gives certain powers to inspectors to deal with situations where the
inspector has reasonable grounds for suspecting that:
there may be on any premises a particular thing (the hazardous thing) in respect of
which this Act or the regulations have not been complied with; and
it is necessary in the interests of public health to exercise powers in order to avoid
an imminent risk of death, serious illness, serious injury or serious damage to the
environment.
These items amend paragraph 65(1)(b) and subsection 65(3) to change the threshold
regarding when inspectors may exercise the powers, such that they may exercise the
powers if it is necessary in order to protect the health and safety of people or to avoid
damage to the environment.
The reason that the requirement for imminent risk of death or injury has been
removed is because radiation hazards are unique in that the consequences of exposure
to low levels of radiation may not manifest until years later in the form of cancer. It is
not appropriate that inspectors cannot act without a person being likely to
immediately succumb to radiation poisoning. The expectation of the public is that
ARPANSA should be able to act in the interests of minimising the risk of a person
being exposed to radiation (such that they will suffer lifelong illness and a shortened
life). This approach is also consistent with international precedent.
Item 35
Section 74 provides that if a thing is seized under Part 7, the inspector must provide a
receipt for the thing, and if two or more things are seized or moved they may be
covered by the one receipt. Currently the heading of this section is 'Receipts for
things seized under warrant'. This heading is inaccurate because the section deals with
all of the circumstances in which things may be seized under the Part, not just things
seized under warrant. The opportunity is therefore being taken to amend the heading
so that it more accurately reflects the section. The heading of the section is being
changed to 'Receipts for things seized'.
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Item 36
This item inserts a new Division 2 (Improvement notices) in Part 7 and, as a
consequence, also inserts a new Division heading at the end of Division 2 (Division 3
- Miscellaneous).
A comparison of the ARPANS Act with other like Commonwealth and State/Territory
legislation demonstrates that ARPANSA lacks a range of graduated enforcement
powers that would be expected of a regulator charged with regulating radiation
sources and nuclear facilities. Specifically, ARPANSA has limited capacity to
identify non-compliance and require licence holders to address the non-compliance
within a certain timeframe (with consequences for failure to do so).
This item therefore inserts three new sections in the new Division 2 that relate to
improvement notices, including when inspectors may issue improvement notices,
compliance with improvement notices, and reviews of improvement notice decisions.
Division 2 - Improvement notices
Section 80A - Inspectors may give improvement notices
Section 80A provides that an inspector may give a licence holder an improvement
notice if he/she reasonably believes that:
a licence holder or a person covered by a licence is contravening, or is likely to
contravene, a provision of the Act or the regulations; or
a condition of a licence is being contravened or is likely to be contravened.
Subsection 80A(2) provides that an improvement notice must be in writing and may
require the licence holder to remedy the contravention, prevent a likely contravention
from occurring, remedy the matters or activities causing the contravention or likely
contravention or cease an activity causing the contravention or likely contravention.
Subsection 80A(3) describes the requirements for the contents of an improvement
notice. In summary, the improvement notice must state:
the licence to which the notice relates;
the provision or condition the inspector believes is being, or is likely to be,
contravened;
briefly how the provision or condition is being, or is likely to be, contravened;
the name of the inspector. An inspector may give an improvement notice at any
time, including when at premises for the purposes of exercising any power under
Division 1 of Part 7 or from his or her desk (either after an inspection or in the
absence of an inspection). For this reason, subsection 80A(5) provides that the
inspector does not need to present his or her identity card for the inspector to issue
an improvement notice. Instead, the improvement notice must state the name of
the inspector; and
the time by which the notice must be complied with. Subsection 80A(4) further
provides that the time stated for compliance must be reasonable in all the
circumstances. This does not, however, prevent the improvement notice requiring
immediate action if the circumstances are sufficiently serious.
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For example, an inspector inspecting a controlled apparatus may find that the safety
interlock is not working, posing immediate risk of radiation exposure to those using
the apparatus. In such circumstances the inspector may issue an improvement notice
requiring the licence holder to immediately cease using the apparatus until such time
as the safety interlock is fixed.
Section 80B - Compliance with improvement notices
This section provides that a licence is subject to the condition that an improvement
notice must be complied with by the time specified in the notice. This is in addition to
and does not limit any obligation that the licence holder has under any other provision
of the ARPANS Act, the ARPANS Regulations or the licence issued by ARPANSA.
A note to the section reminds the reader that it is an offence for the holder of a licence
to fail to comply with a condition of the licence (see subsection 30(2) for facility
licences and subsection 31(2) for source licences).
Section 80C - Review of improvement notice decisions
Section 80C explains how a licence holder may seek reconsideration or review of an
improvement notice decision. In summary:
the licence holder may request, in writing, that the CEO reconsider a decision
made by an inspector under section 80A in relation to the improvement notice;
the request must be given to the CEO within 28 days of the making of the
improvement notice decision;
the CEO must reconsider the improvement notice decision and confirm, vary or
set aside the improvement notice decision. Section 27A of the Administrative
Appeals Tribunal Act 1975 (AAT Act) requires the licence holder to be notified of
the licence holder's review rights. If the CEO does not give written notice of the
CEO's decision within 28 days of the request, the CEO is taken to have confirmed
the improvement notice decision. This proposed amendment is intended to
encourage a consistent approach across jurisdictions and to provide greater clarity
around the review of improvement notice decisions, by ensuring a decision is final
and made within a reasonable period of time; and
applications may be made to the Administrative Appeals Tribunal for review of a
decision of the CEO to confirm, vary or set aside the improvement notice
decision. The AAT Act also provides a further safeguard which requires a
regulator to provide a statement of reasons where requested by the applicant. The
licence holder is the only person who is likely to be affected by an improvement
notice decision.
These provisions relating to reconsideration and review of improvement notice
decisions are consistent with existing reconsideration and review provisions relating
to other licence decisions (as described in section 40). The key difference is that
inspectors give improvement notices so that the CEO is the appropriate decision
maker on reconsideration. By contrast, other licence decisions are made by the CEO
and the Minister is therefore the appropriate person to reconsider the CEO's decisions.
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Items 37 and 38
Subsection 83 provides that if a law of a State or Territory is prescribed by the
regulations, that law (or provision) does not apply in relation to an activity of a
controlled person in relation to a controlled apparatus, a controlled material, or a
controlled facility. Item 37 amends this section to that it refers to activities of
permitted persons as well as those of controlled persons.
Item 38 adds a new note to the end of section 83 that directs the reader to sections 11
and 11A for more information about the limits on the circumstances in which the
provisions of the ARPANS Act apply to Commonwealth contractors and permitted
persons.
Item 39
Section 84 provides that where the ARPANS Act confers a power, discretion, duty or
function on a person, the exercise of the power or discretion or the performance of the
duty or function is authorised by the ARPANS Act only to the extent that the exercise
or performance is not inconsistent with Australia's obligations under the relevant
international agreements.
Where the ARPANS Act confers a power or discretion on a person, the person must
have regard to Australia's obligations under the relevant international agreements in
exercising that power or discretion.
For the purposes of this provision subsection 84(3) provides that an agreement is a
relevant international agreement if immediately before the commencement of the
ARPANS Act, it was a relevant international agreement for the purposes of section 70
of the Nuclear Non-Proliferation (Safeguards) Act 1987 or it is an international
agreement prescribed by the regulations.
This item amends subsection 84(3) so that an agreement is a relevant international
agreement if it is prescribed in the ARPANS Regulations. While there is no intent to
change the legal effect (or the agreements that must be considered by ARPANSA) this
enables the list of relevant international agreements to be kept current, noting that the
ARPANS Regulations are more readily updated than the ARPANS Act.
It is proposed that all relevant international agreements (including those for the
purposes of section 7 of the Nuclear Non-Proliferation (Safeguards) Act 1987) will be
prescribed in the amending ARPANS Regulations. These will take effect at the same
time as the amendments made by this Bill.
Part 2 - Transitional provisions
Item 40
Item 40 describes definitions that are used in the transitional provisions described in
items 41 - 44. These include:
amended Act which means the ARPANS Act as in force after the commencement
of the Bill;
commencement time which means the commencement of the Bill; and
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old Act which means the ARPANS Act as in force immediately before the
commencement of the Bill.
Item 41
This item ensures that if a licence decision is made before this amending Act
commences, the licence decision is subject to the timeframes for request for
reconsideration that currently exist in the Act. It is only licence decisions that are
made after the commencement of this amending Act that are subject to the shorter
timeframes for requesting reconsideration.
Item 41 confirms that the amendment made by item 24 applies in relation to licence
decisions made after the commencement time. Likewise, the amendment made by
item 28 applies in relation to directions given after the commencement time.
Item 42
The purpose of this item is to ensure that despite the changes that are being made to
section 41 (relating to the circumstances in which directions may be issued by the
CEO) if a direction was in force immediately before the commencement of this
amending Act, the direction is unaffected by the amendments. The provision achieves
this result by clarifying that a direction that is in force before the commencement of
the amending Act continues as if it were a direction given under the new
paragraph 41(2)(a) of the ARPANS Act.
Item 43
This item provides that Division 2 of Part 7 of the amended Act, as inserted by
item 36, applies to licences issued before or after the commencement time. In other
words, an inspector may issue an improvement notice in respect of existing licences
or any new licences issued by the CEO.
While an improvement notice may only be issued after the commencement of these
amendments, it may be given in respect of a contravention that commenced occurring
before the commencement of the amendments.
Item 44
This item provides that despite the repeal of subsection 84(3) by item 39, the Physical
Protection Convention (within the meaning of the Nuclear Non-Proliferation
(Safeguards) Act 1987) continues to be a relevant international agreement for the
purposes of section 84 of the amended Act, until regulations made for the purposes of
subsection 84(3) of the amended Act commence.
This means that the Physical Protection Convention will continue to be a relevant
international agreement until new regulations are made for the purposes of subsection
84(3).
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