Bills Digest no. 6 2015–16
PDF version [614KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Dr Alexander St John
Science, Technology, Environment and Resources Section
11 August 2015
Contents
The Bills Digest at a glance
Purpose of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Identified
issues not addressed in this Bill
Other provisions
Concluding
comments
Date introduced: 18
June 2015
House: House of
Representatives
Portfolio: Health
Commencement: On the
28th day after Royal Assent
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
What does the Bill do?
The Australian Radiation Protection and Nuclear Safety
Amendment Bill 2015 makes relatively minor amendments to the Australian
Radiation Protection and Nuclear Safety Act 1998 (the ARPANS Act).
The Bill makes amendments in four main areas:
- extending
the enforcement powers of the Australian Radiation Protection and Nuclear
Safety Agency (ARPANSA) to improve ARPANSA’s ability to ensure regulated
entities are complying with the ARPANS Act, and providing ARPANSA with
emergency powers
- clarifying
the coverage of regulated entities by widening the definition of Commonwealth
contractors subject to the ARPANS Act
- making
refinements to the system of regulatory licencing of radiological facilities
and activities and
- miscellaneous
administrative amendments.
Legislative context
The ARPANS Act regulates the use of radiation by
the Commonwealth and its entities; the amendments proposed in the Bill make no
substantial change to the current regulatory policy. The ARPANS Act is
primarily administered by ARPANSA. Activities involving radiation outside of
Commonwealth entities or places remain regulated by separate state and
territory regulators.
Why has the Government introduced the Bill?
The Government says that it has introduced the Bill to
provide greater clarity on the application of the existing legislation and
implement recommendations from a number of reviews.[1]
What are the issues?
Some stakeholders have raised relatively minor concerns
about some of the new emergency and enforcement powers which the Bill proposes
to provide to ARPANSA.
The Australian Radiation Protection and Nuclear Safety
Amendment Bill 2015 (the Bill) makes a number of technical amendments to the Australian Radiation
Protection and Nuclear Safety Act 1998 (the ARPANS Act)
to refine the existing regulatory regime for the licencing and supervision of
radiological activities undertaken by, or on behalf of, the Australian
Government.[2]
The Bill is intended to make substantive amendments in
four general areas:
- extending
the enforcement powers of the Australian Radiation Protection and Nuclear
Safety Agency (ARPANSA) to improve ARPANSA’s ability to ensure regulated
entities are complying with the ARPANS Act, and providing ARPANSA with
emergency powers
- clarifying
the coverage of regulated entities by widening the definition of Commonwealth
contractors subject to the ARPANS Act
- making
refinements to the system of regulatory licencing of radiological facilities
and activities and
- miscellaneous
administrative amendments.[3]
Australia’s system for the regulation of radiological and
nuclear activities is comprised of both Commonwealth and state and territory
legislation, administered by ARPANSA and state and territory regulators. In
principle, the ARPANS Act regulates only radiation facilities and
sources owned or controlled by the Commonwealth, with state and territory
regulators responsible for regulation of all other sources and facilities
within their jurisdiction.[4]
Under the ARPANS Act, the provisions relating to
the regulation of radiation sources or facilities apply only to controlled
persons – defined as Commonwealth entities, Commonwealth contractors,
employees of Commonwealth contractors and persons in prescribed Commonwealth
places.[5]
Activities relating to radiation not involving a controlled person therefore
fall under the jurisdiction of state and territory regulators.
The use of radiological sources in Australia is relatively
limited. Australia does not presently operate a nuclear power or weapons program.[6]
The use of ionizing radiation in Australia is restricted generally to
scientific research at major facilities (such as at the Australian Synchrotron
in Victoria and the research reactor at Lucas Heights in New South Wales, both
operated by the Australian Nuclear Science and Technology Organisation (ANSTO)),
limited academic and industrial uses and nuclear and radiological medicine.[7]
Commonwealth radiation activities include the use of ionizing radiation sources
(such as radioactive isotopes used in nuclear medicine and science) and
non-ionizing radiation (such as powerful microwave, radiofrequency and
ultraviolet devices).[8]
Under the ARPANS Act, two types of licences
relating to radiological activities are issued. The first are source
licences, which permit the possession, operation or other dealings relating
to material that can emit ionizing radiation (‘controlled material’), or
apparatus that emit certain types of non-ionizing radiation (‘controlled
apparatus’).[9]
Examples of a licenced source could include a piece of cobalt-60, a radioactive
material used to irradiate foodstuffs, or an x-ray scanning machine. A facility
licence authorises the construction, possession, operation and
de-commissioning of a nuclear installation or prescribed radiation facility.[10]
The vast majority of the Commonwealth radiation source licences are issued to
the Department of Defence, mainly for tritium light sources that contain
radioactive isotopes to provide ‘permanent’, non-powered illumination.[11]
The majority of Commonwealth radiation facility licences are issued to ANSTO.[12]
The International Atomic Energy Agency (IAEA) conducts
international expert review missions to review the regulatory practices of
member countries. ARPANSA was reviewed by a team of international experts in
2007, with a follow-up review in 2011. That follow-up report contained a number
of recommendations for improving Australia’s regulatory practices for
radiological activities, concerning administrative improvements that ARPANSA
could make and potential areas for strengthening the ARPANS Act (such as
moving away from indefinite licencing of sources).[13]
This Bill implements some of the recommendations made in
that review, specifically:
- providing
for time-limited source and facility licences[14]
and
- introducing
a legal avenue for Commonwealth regulation of legacy radiation sites, which in
part responds to a suggestion made by the review that the regulatory framework
should deal more explicitly with ‘environmental chronic exposure situations and
interventions not linked with accidental situations of controlled facilities.’[15]
However, there are a number of recommendations made by the
review which are not implemented in this Bill. These are discussed after the
‘Key issues and provisions’ section.
In 2014, the Australian National Audit Office (ANAO)
audited ARPANSA’s regulatory activities, and found that ARPANSA has been generally
effective in performing its duties under the ARPANS Act of regulating
Commonwealth radiation use. It raised some concerns related to governance —
specifically that in some cases, ARPANSA was required to regulate itself as a
licence-holder, leading to a potential conflict of interest.[16]
This issue was also mentioned in the IAEA’s review, although the IAEA team
considered that an administrative arrangement of having Queensland state
regulatory inspectors co-supervise ARPANSA’s monitoring of its own compliance
was satisfactory.[17]
Most of the ANAO’s recommendations related to administrative improvements,
rather than legislative deficiencies. However, the current Bill does not take
steps to implement ANAO’s recommendations, and in particular, the ANAO’s
recommendation that provisions be made for the independent review of regulatory
decisions relating to ARPANSA’s own licence applications and approvals.[18]
Community Affairs Legislation
Committee
The Bill has been referred to the Community Affairs
Legislation Committee for inquiry and report by 17 August 2015. Details of the
inquiry are at the inquiry
webpage.[19]
The Committee had not reported at the time of writing.
Senate Scrutiny of Bills Committee
At the time of writing, the Senate Scrutiny of Bills
Committee had not considered the Bill.
At the time of writing, the Bill had not attracted
commentary from non-government parties or independents.
The Bill has attracted limited attention from interest
groups. The Community Affairs Legislation Committee inquiry had, at the time of
writing, attracted only five submissions.[20]
These five submissions were supportive of the Bill, but suggested certain
amendments. The Australian Nuclear Association and Engineers Australia
suggested that the Bill should be amended to repeal section 10 of the ARPANS
Act, which prevents ARPANSA from authorising a nuclear power station, fuel
enrichment or fabrication facility or reprocessing facility.[21]
Two principal stakeholders, ANSTO and CSIRO, both provided
submissions broadly approving the Bill, but raising concerns about new
provisions that allow the Chief Executive Officer (CEO) of ARPANSA to provide
directions to licence holders, and new powers to issue improvement notices.
CSIRO submitted that as written, a licence‑holder would be required to
comply with an improvement notice even in the event that the decision to issue
the improvement notice was being reviewed. It argued for a mechanism for a stay
of the improvement notice similar to that found in the Work Health and
Safety Act 2011.[22]
ANSTO also submitted that the new power for the CEO of
ARPANSA to issue emergency directions must be carefully reconciled with the
internationally recognised principle that facility operators bear the primary
responsibility for safety. ANSTO argued that any emergency directions would
need to be general in nature rather than specific, to avoid the transference of
responsibility from the facility operator to ARPANSA.[23]
The Government considers that the Bill will have no
financial impact.[24]
The activities of ARPANSA are subject to cost-recovery arrangements, so any changes
to its functions would have a financial impact on its stakeholders, rather than
the Australian Government.[25]
One specific mooted change, the introduction of facility licences for
prescribed legacy radiation sites, could have a direct financial impact for ANSTO,
which has indicated that it may need to apply for a licence to cover a certain
legacy site containing radioactive waste (see later section on licencing of
sites requiring remediation). However, the financial impact is currently
unascertainable, as licence fees are not currently prescribed in regulation for
this new class of facility licence.[26]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[27]
The Parliamentary Joint Committee on Human Rights considered that the Bill does
not require further comment as it ‘promotes human rights, or contains
justifiable limitations on human rights’.[28]
Interestingly, the Committee chose to issue no comment on the semi-coercive
information-gathering powers provided for in this Bill.
Additional information-gathering
and enforcement powers
A significant part of the amendments made by the Bill are
related to providing ARPANSA with additional compliance and enforcement powers.
Information-gathering powers
Item 29 would create a new section 44A in the ARPANS
Act, providing for new information-gathering powers for the purpose of
monitoring compliance with Commonwealth radiation licences. The provision may
be used if the CEO of ARPANSA reasonably believes that a controlled person
(Commonwealth entities, Commonwealth contractors and their employees and
persons in prescribed Commonwealth places) possesses information or documents
that are relevant to determining whether the ARPANS Act, regulations or
licence conditions have been complied with. The provision allows the CEO of
ARPANSA to require that a controlled person provide information or documents,
answer questions or appear before the CEO of ARPANSA to provide information,
answers or documents. Proposed subsection 44B creates an offence for
failing to comply with the ARPANSA CEO’s directions to provide information,
with a maximum penalty of 30 penalty units. This equates to a maximum fine of
$5,400 (as of 31 July 2015).[29]
Under proposed subsections 44A(5) and (6), a
controlled person is excused from giving the required information if giving
such information would:
- be
self-incriminating or expose the individual to a penalty or
- contravene
an obligation under an international agreement to which the Commonwealth or any
controlled person is a party and the obligation relates specifically to the
recipient of the direction to give information (or their employer if they are
an employee or officer of a controlled person).[30]
Comment
Given the potential consequences of non-compliance with
regulation or licence conditions (for example, radioactive material being
unaccounted for, or proper radiation protection measures not being utilised),
the requirement for information to be provided seems reasonable. The Bill
excuses individuals, under certain circumstances, from providing information when
directed to so, which guards against these powers being used coercively. Even
though the Bill provides that self-incriminating information may not be
gathered compulsorily, the common law would apply a protection against
self-incrimination anyway (as the legislation does not expressly override it).[31]
Similarly, sections 7 and 8 of the ARPANS Act provide that no action may
be taken under the ARPANS Act that would prejudice, or be reasonably
expected to prejudice, Australia’s defence or national security, which could
possibly excuse a person from providing information in some cases.
However, there might be legitimate cause for the excuse of
self-incrimination to be suspended in times of emergency. The Attorney
General’s Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers provides that the privilege of immunity from
self-incrimination may be overridden by legislation, but that a substantial
public benefit is required to justify the attendant loss of civil liberty.[32]
In the event of a serious emergency at a prescribed radiation or nuclear
facility (for example, a potential meltdown or explosion at the ANSTO Lucas
Heights research reactor), it might be considered that the public benefit of
avoiding a nuclear or radiological accident could represent sufficient policy
justification. Such a mechanism for emergency information gathering could be
limited by strict use immunity, preventing the prosecution of an individual
based on information so gathered. Although section 41 of the ARPANS Act currently
provides for the CEO to issue emergency directions (see next section), it is by
no means clear that the power to issue directions allows for emergency
information-gathering, as the power to issue directions deals with requiring ‘controlled
persons to take such steps in relation to [a] thing as the CEO considers
appropriate’.
Emergency directions
Section 41 of the ARPANS Act currently permits the
CEO of ARPANSA to issue emergency directions to controlled persons if the CEO
reasonably believes that a controlled person is not complying with the Act or
regulations and the direction is necessary in order to protect the health and
safety of people or to avoid damage to the environment. Item 27 extends
these provisions to enable the CEO of ARPANSA to issue directions even where
there is no non-compliance with the legislation if 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, controlled material or
apparatus. The Explanatory Memorandum suggests that 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 action must be taken immediately...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.[33]
The Explanatory Memorandum further states that ‘it is not
envisaged that the power would be exercised in other than exceptional
circumstances’.[34]
Note also that details of any directions given by the CEO under section 41
will need to be included in ARPANSA annual and quarterly reports under
amendments to the ARPANSA reporting requirements contained in items 30 and
31 of the Bill.
Powers of inspectors
Items 33 and 34 amend section 65 of the ARPANS
Act to allow authorised inspectors to exercise emergency entry, search,
seizure and direction powers in a wider set of circumstances. Currently,
inspectors may only exercise such powers where an inspector reasonably believes
there is an imminent risk of death, serious injury or serious environmental
damage. The Bill proposes to lower the test for the exercise of emergency
powers to situations where it is necessary to protect the health and safety of
people or avoid damage to the environment – removing the requirement for the
risk to be imminent and ‘serious’.
Item 36 provides for a new class of compliance
instrument to be available to ARPANSA — improvement notices. Proposed
section 80A provides that an inspector may issue an improvement notice in
writing if the inspector reasonably believes that the ARPANS Act, regulations,
or the conditions of a Commonwealth radiation licence are being contravened.
The notice may require a licence-holder to remedy the contravention, prevent a
contravention from reoccurring or remedy the cause of a contravention. Licence‑holders
that are issued with improvement notices must comply with the notice. Proposed
section 80B makes compliance with improvement notices a condition of
Commonwealth radiation licence.
Non-compliance with the conditions of a licence is an
offence under existing sections 30 and 31 of the ARPANS Act.
Additionally, non-compliance with conditions of a licence is grounds for
suspension or cancellation of the licence under existing section 38 of the Act.
Proposed section 80C provides for reconsideration of decisions to issue
improvement notices by the CEO of ARPANSA in the first instance. The CEO’s
reconsideration decision is, in turn, subject to review by the Administrative
Appeals Tribunal. Note also that details of any improvement notices given by
inspectors under section 80A will need to be included in the ARPANSA annual and
quarterly reports under an amendment to the ARPANSA reporting requirements
contained in items 30 and 31 of the Bill.
Comment – Improvement notices are a widely used
compliance instrument in safety regimes and their inclusion in the ARPANS
Act seems sensible. In this case, it seems that improvement notices
effectively provide for an intermediate step, or warning, before ARPANSA moves
to more serious enforcement actions, such as licence cancellation or
prosecution.
More generally, the Bill makes no effort to harmonise the
enforcement provisions of the ARPANS Act with the Regulatory Powers
(Standard Provisions) Act 2014.[35]
This is not addressed in the Explanatory Memorandum, and it is not clear why
the ARPANS Act should continue to sit outside the harmonised enforcement
framework.[36]
Similarly, none of the reviews of ARPANSA’s operation made a case for expanded
enforcement powers, so although the Explanatory Memorandum argues that ARPANSA
needs these powers,[37]
the basis for that claim is not clear.
Extending application of the
Australian Radiation Protection and Nuclear Safety Act 1998
Items 1–3 of Part 1 of Schedule 1 of the Bill
clarify the application of the ARPANS Act with respect to contractors taking
certain actions related to controlled facilities (nuclear or prescribed
radiation facilities) or controlled material or apparatus on behalf of the
Commonwealth.[38]
Section 11 of the ARPANS Act currently sets out how the Act applies to
Commonwealth contractors. Items 1 and 2 of the Bill amend section
11 to clarify that the ARPANS Act applies to contractors dealing with
controlled material or apparatus for a Commonwealth entity, but only when that
material or apparatus is owned, or controlled by, the Commonwealth. Currently,
the ARPANS Act could apply to Commonwealth contractors dealing with
controlled material or apparatus that was also regulated under state and
territory law. The Explanatory Memorandum suggests that the purpose of the
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... [39]
The Explanatory Memorandum gives the example of a
contractor performing work for a Commonwealth entity but using his or her own
equipment, and suggests that, in this situation, the contractor ‘should be
licensed by the relevant State or Territory authority’.[40]
However, where the Commonwealth contractor is using controlled material or
apparatus that is owned or controlled by the relevant Commonwealth entity, the ARPANS
Act will apply.[41]
Although the intent of providing a clear regulatory
boundary is sensible, it should be noted that the Bill does not contain a
saving provision to trigger the application of the ARPANS Act if a state
or territory law does not apply for any reason.
Item 3 of the Bill adds a new section 11A to
the ARPANS Act which creates a new concept of a ‘permitted person’. A
permitted person will be a person who is permitted, under an arrangement with
the holder of a Commonwealth nuclear or radiation facility or source licence,
to do certain things authorised by that licence, such as dealing with
controlled material or apparatus, or constructing, operating or decommissioning
a controlled facility. The Act will apply to those persons, even if they are
not contractors to the Commonwealth. The Explanatory Memorandum gives the
example of a scientist visiting the Australian National University (ANU) using
ANU owned equipment, and states that the visiting scientist would be subject to
the ARPANS Act.[42]
Proposed subsection 11A(3) contains a severability
clause in case any constitutional issues should arise in relation to the
application of the ARPANS Act to permitted persons. This clause proposes
that, in such a situation, the application of the ARPANS Act would
apply to an activity or a dealing for the purposes of a licence holder, or in territories
or Commonwealth places.
Comment
Despite the reasonable attempts of the Bill to ensure that
there is clear delineation of regulatory responsibilities for radiation
protection between the Commonwealth and state and territory regimes, the
lengths that the Bill goes to in ensuring clear delineation seem overly
complex. They invite the question as to whether having nine separate
regulators of activity involving radiation in Australia is the most effective
and efficient way of regulating these activities.[43]
The International Atomic Energy Agency, in its Safety Standard, Regulatory
Control of Radiation Sources, argues:
...enabling legislation should be
as straightforward as feasible, consistent with the national situation, so that
the need for its subsequent amendment is minimized... it is preferable for a
single body to have regulatory responsibilities for radiation safety,
especially in States with no nuclear power programme...[44]
The safety standard concedes that this is not always the
case, and directs that where responsibility is divided, regulatory gaps must be
avoided, responsibilities clearly specified and liaison between regulatory
agencies encouraged.[45]
However, in a country like Australia, where the use of radiation occurs on a
relatively limited scale, it is not clear that a substantial benefit is derived
from having nine separate regulatory regimes for largely similar activities
(such as the use of radiation in medicine, scientific research and limited
industrial applications). Given the risks associated with poor regulation of
radiation protection, there might be an argument that a single, well-resourced,
uniform national regulatory regime could achieve a superior outcome. Certainly,
a single regulatory regime has been the Commonwealth’s position in other areas
where safety is of paramount concern, such as aviation (the Civil Aviation Safety
Authority) and offshore petroleum activity (the National Offshore
Petroleum Safety and Environmental Management Authority).[46]
Licencing of sites requiring
remediation
Item 16 amends subsection 30(1) of the ARPANS Act
to include the remediation of a prescribed legacy site in the list of
activities that must not be performed without a facility licence issued by
ARPANSA.
Item 11 then adds definitions of ‘prescribed legacy
site’ and ‘remediate’ to the definitions in section 13 of the ARPANS Act.
Item 4 of the Bill extends the definition of a controlled facility in
section 13 to also include a ‘prescribed legacy site’.
The Explanatory Memorandum to the Bill argues that there is
currently:
... 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.[47]
An example is given of a site used by the former
Australian Atomic Energy Commission to bury material that is not covered by any
source or facility licence.[48]
Equally, this provision could be used to regulate remediation of a contaminated
lands discovered in the future. For example, if a former CSIRO or Defence site
was found to have radioactive contamination, but the contamination did not
result from a licenced activity, this provision would therefore unambiguously
permit ARPANSA to regulate remediation activities, provided the site was
properly prescribed.
Changes to duration and scope of
Commonwealth radiation licences
As noted in the Explanatory Memorandum, current Commonwealth
radiation licences are in force for an indefinite period (unless they are
cancelled or suspended).[49]
Item 23 of the Bill repeals and replaces section 37 of the ARPANS Act
to provide that licences may also be issued for a definite period of time. Item
25 amends section 40 of the ARPANS Act, which provides for the
review of licence decisions, to ensure that decisions by the CEO to issue a
licence for a particular period or not to extend a licence are subject to the
same review provisions as other licence decisions.
Comment
The move to introduce time-limited radiation licences seems
sensible. The Explanatory Memorandum envisages the use of temporary licences
for transient needs – such as where a controlled entity may be trialling new
equipment.[50]
However, the use of time-limited licences more generally
could be desirable. A core tenet of radiation safety is that exposure to
radiation should be minimised and kept as low as reasonably possible. This is
because the dose of radiation a person receives is proportional to the time
they are exposed to a source of radiation.[51]
An extension of this is that radiation exposure should be kept to what is
strictly necessary, and a requirement for licences to be renewed could be a
useful trigger for a periodic assessment of whether the continued existence of
the radiation source is necessary. Therefore, it might be prudent to consider
making all Commonwealth radiation licences time-limited.
Items 17 and 18 amend sections 31 and 32 of the ARPANS
Act to clarify that a facility licence may cover multiple facilities and
sources. This means that Commonwealth radiation licence may essentially combine
licences for controlled facilities and sources, which are currently regulated
under separate source and facility licences.
Requests for review of decisions
Item 24 of the Bill also amends section 40 of the ARPANS
Act to reduce the period within which a request for reconsideration of a
licence decision must be made to the Minister, reducing it from within 90 days
of the licence decision to within 28 days. Similarly, item 28 amends section
42 to reduce the period of time within which a controlled person may request
the Minister to reconsider the CEO’s decision to give an emergency direction
under section 41 (as discussed above).[52]
As the Explanatory Memorandum notes, these amendments would
align the ARPANS Act with relevant state and territory legislation, as
well as with the review period allowed by the Administrative Appeals Tribunal
under the Administrative Appeals Tribunal Act 1975. The Explanatory
Memorandum further suggests that this provides ‘greater regulatory certainty’
by ensuring that a decision is final and made within a reasonable period of
time.[53]
The Bill does not take action to address all the recommendations
raised in the reviews conducted by the IAEA and the ANAO.
The IAEA specifically recommended that an extensive review
of the ARPANS Act be conducted and that the Act should explicitly
reference and incorporate internationally recognised safety standards:
In the revision of the Australian Radiation Protection and
Nuclear Safety Act (ARPANS Act) to be undertaken in 2012, the
Australian Government should aim at ensuring full compliance of the Legal
framework with IAEA Safety Standards. In particular, the revised Act should
include explicit provisions and requirements for:
-
the prime responsibility for safety
to be placed on the operator;
-
the legal basis for ARPANSA to
regulate land transport [of] radioactive material;
-
the legal basis for regulating
existing exposure situations, remediation and clearance;
-
decommissioning plan and related
financial provisions;
-
assigning ARPANSA a clear role in
regulating the security of controlled material, controlled apparatus and
controlled facilities and promoting national uniformity;
-
clarifying ARPANSA’s role in the
establishment and operation of the national framework for nuclear and
radiological emergency preparedness and response;
-
introducing the concept of
clearance into the Australian regulatory framework.[54]
Little of this recommendation has been incorporated in the
Bill. Notably absent are any initiatives to affirm that the primary
responsibility for safety is placed on the operator, or any legislative efforts
to encourage national uniformity of radiation protection regimes.
The IAEA also recommended that the ARPANS Act be
amended to impose a requirement for facility operators to provide a
decommissioning plan after shutdown in a timely fashion.[55]
This is of particular relevance to ANSTO’s now shut-down HIFAR research reactor
at Lucas Heights, which has now been replaced by the OPAL reactor.[56]
Although the lack of a suitable national radioactive waste repository is
considered a significant barrier to full decommissioning of HIFAR,[57]
this would not prevent a suitable legislative amendment being made, contingent
upon a suitable repository being available.
Finally, the Bill makes no effort to resolve the conflict
highlighted by both the ANAO and IAEA review, of ARPANSA being both a regulator
and licence holder. This issue was highlighted in the 2007 IAEA review, its
2011 follow-up review and the 2014 ANAO audit.[58]
Although ARPANSA is reportedly attempting to ameliorate this conflict
administratively by using peer review of its self-regulation (by engaging
Queensland state inspectors to accompany ARPANSA inspectors when inspecting
ARPANSA’s compliance with its own licence conditions),[59]
further strengthening of this arrangement could be made through amending
legislation to require ARPANSA to maintain an effective regulatory supervision
arrangement with an independent body or other competent authority.
The Bill makes a small number of other relatively minor,
administrative amendments which are satisfactorily dealt with in the
Explanatory Memorandum.
The Bill makes relatively minor amendments to the current
framework for regulation of the Commonwealth’s radiation activities and does
not represent a policy shift. The Bill provides a number of important technical
amendments, but misses an opportunity to implement fully the recommendations of
two reviews, which would further strengthen the Commonwealth radiation
regulatory framework.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. S
Ley, ‘Second
reading speech: Australian Radiation Protection and Nuclear Safety Amendment
Bill 2015’, House of Representatives, Debates, 18 June 2015, pp.
6773–6774, accessed 24 June 2015.
[2]. Australian Radiation
Protection and Nuclear Safety Act (Cth), accessed 27 July 2015.
[3]. S
Ley, ‘Second
reading speech: Australian Radiation Protection and Nuclear Safety Amendment
Bill 2015’, House of Representatives, Debates, op. cit.
[4]. Australian
Radiation Protection and Nuclear Safety Agency (ARPANSA), ‘Regulatory
framework’, ARPANSA website, accessed 28 July 2015.
[5]. ARPANS
Act, sections 13, 30 and 31, accessed 27 July 2015.
[6]. Nuclear
Energy Agency / Organisation for Economic Co-Operation and Development
(OECD-NEA), Uranium
2014: resources, production and demand, report, OECD-NEA, Paris, 2014,
p. 156, accessed 29 July 2015.
[7]. Department
of Industry and Science, ‘Where
we use radioactive material,’ Department of Industry and Science website,
accessed 29 July 2015; Australian Nuclear Science and Technology Organisation
(ANSTO), ‘Managing
landmark infrastructure’, ANSTO website, accessed 29 July 2015.
[8]. For
an explanation of ionizing and non-ionizing radiation, see ARPANSA, ‘Ionizing
and non-ionizing radiation’, ARPANSA website, accessed 29 July
2015.
[9]. ARPANS
Act, sections 31 and 33, accessed 27 July 2015. ‘Controlled material’ and
‘controlled apparatus’ are defined in section 13.
[10]. Ibid.,
sections 30 and 32.
[11]. Australian
National Audit Office (ANAO), Audit
summary: regulation of Commonwealth radiation and nuclear activities,
Audit report summary, 29, 2014, ANAO, Barton, ACT, accessed 29 July 2015. See
also B Nelson (Minister for Defence), Tighter
measures for managing tritium, media release, 27 July 2007, accessed 29
July 2015.
[12]. ANAO,
Audit summary, op. cit.
[13]. International
Atomic Energy Agency (IAEA), Integrated
Regulatory Review Service follow–up mission to the Commonwealth Government of
Australia, follow-up report, IAEA, 2011, accessed 29 July 2015.
[14]. Ibid.,
p. 22.
[15]. Ibid.,
pp. 22–23.
[16]. ANAO,
Audit summary, op. cit.
[17]. IAEA,
Integrated Regulatory Review Service, op. cit., p. 18.
[18]. ANAO,
Audit summary, op. cit., recommendation 4(b).
[19]. Senate
Community Affairs Legislation Committee, Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, inquiry
webpage, The Senate, accessed 29 July 2015.
[20]. Senate
Community Affairs Legislation Committee, Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015,
submissions, The Senate, Canberra, 2015, accessed 29 July 2015.
[21]. Engineers
Australia, Submission
to the Community Affairs Legislation Committee, Inquiry into the Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, 24 July
2015, accessed 29 July 2015; Australian Nuclear Association, Submission
to the Community Affairs Legislation Committee, Inquiry into the Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, 23 July
2015, accessed 29 July 2015.
[22]. CSIRO,
Submission
to the Community Affairs Legislation Committee, Inquiry into the Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, 20
July 2015; see also Work
Health and Safety Act 2011 (Cth), section 228, both accessed 29
July 2015.
[23]. ANSTO,
Submission
to the Community Affairs Legislation Committee, Inquiry into the Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, 23
July 2015, pp. 2–3, accessed 29 July 2015.
[24]. Explanatory
Memorandum, Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, p. 1, accessed
25 July 2015.
[25]. P
Brandt, Cost
recovery policy, ARPANSA, 2006, accessed 29 July 2015; ARPANS Act,
section 54; Australian
Radiation Protection and Nuclear Safety (Licence Charges) Act 1998
(Cth), accessed 29 July 2015.
[26]. Australian Radiation
Protection and Nuclear Safety (Licence Charges) Regulations 2000, Schedules
1 and 2, accessed 4 August 2015.
[27]. The
Statement of Compatibility with Human Rights can be found at page 2 of the
Explanatory Memorandum to the Bill.
[28]. Parliamentary
Joint Committee on Human Rights, Twenty-fourth
report of the 44th Parliament, Canberra, June 2015, p. 1, accessed 29
July 2015.
[29]. Crimes Act 1914,
section 4AA as recently amended by the Crimes Legislation
Amendment (Penalty Unit) Act 2015 (Cth), Schedule 1, item 2, accessed
25 July 2015.
[30]. Australian
Radiation Protection and Nuclear Safety Amendment Bill 2015, Schedule 1, item
29.
[31]. See
section 9.5 of A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, Attorney-General’s Department, Canberra, 2011, p. 94, accessed
4 August 2015.
[32]. Ibid.,
pp. 95–96.
[33]. Explanatory
Memorandum, op. cit., p. 11.
[34]. Ibid.
[35]. Regulatory Powers
(Standard Provisions) Act 2014, accessed 3 August 2015.
[36]. However,
the Explanatory Memorandum to the Regulatory Powers (Standard Provisions) Bill
2014 recognised that the standardised regulatory powers would not be ‘appropriate
or sufficient for the requirements of particular regulatory agencies’:
Explanatory Memorandum, Regulatory
Powers (Standard Provisions) Bill 2014, accessed 11 August 2015. For more
information on the harmonised regulatory framework, see J Murphy, Regulatory
Powers (Standard Provisions) Bill 2014, Bills digest, 73, 2013–14, Parliamentary
Library, Canberra, 2014, accessed 6 August 2015.
[37]. Explanatory
Memorandum, op. cit., pp. 12–13.
[38]. Under
section 13 of the ARPANS Act, controlled material is ‘any natural or
artificial material, whether in solid or liquid form, or in the form of a gas
or vapour, which emits ionizing radiation spontaneously’. Controlled
apparatus means apparatus that either produces, or is capable of producing,
ionizing radiation when energised, or that produces ionizing radiation because
it contains radioactive material, or prescribed apparatus that produces harmful
non-ionizing radiation when energised.
[39]. Explanatory
Memorandum, Australian Radiation Protection
and Nuclear Safety Amendment Bill 2015, op. cit., p. 3.
[40]. Ibid.
[41]. Ibid.,
p. 4.
[42]. Ibid.,
p. 4.
[43]. Each
state and territory has its own regulator of radiation activities, and ARPANSA
regulates Commonwealth activities – see ARPANSA, ‘About regulatory
services’ and ‘State and
territory regulators’, ARPANSA website, accessed 25 July 2015.
In fact, given that nuclear actions are a matter of National Environmental
Significance under section 21 of the Environment Protection
and Biodiversity Conservation Act 1999 (Cth), which require the
approval of the Minister for the Environment, it might even be considered that
there are ten separate regulators.
[44]. IAEA,
Regulatory
control of radiation sources, safety standard, IAEA, Vienna, pp. 4–5,
accessed 25 July 2015.
[45]. Ibid.,
p. 5.
[46]. Civil
Aviation Safety Authority (CASA), ‘About CASA’,
CASA website, accessed 25 July 2015; National Offshore Petroleum Safety and
Environmental Management Authority (NOPSEMA), ‘History of NOPSEMA’,
NOPSEMA website, accessed 25 July 2015.
[47]. Explanatory
Memorandum, op. cit., p. 7.
[48]. Ibid.
[49]. Explanatory
Memorandum, op. cit., p. 9.
[50]. Ibid.,
p. 9.
[51]. United
States Nuclear Regulatory Commission (US NRC), ‘Minimize
your exposure’, US NRC website, accessed 25 July 2015.
[52]. Although
there appears to be a typographical error in item 28, which should
probably state under the heading paragraph 42(2)(b) ‘repeal the paragraph,
substitute:’.
[53]. Explanatory
Memorandum, op. cit., p. 10.
[54]. IAEA,
Integrated Regulatory Review Service report, op. cit., pp. 17–18.
[55]. Ibid.,
pp. 26–27.
[56]. ANSTO,
‘HIFAR’,
ANSTO website, accessed 4 August 2015.
[57]. IAEA,
Integrated Regulatory Review Service, op. cit., pp. 26–27.
[58]. Ibid.,
p. 18; ANAO, Regulation of Commonwealth radiation and nuclear activities,
op. cit.
[59]. Ibid.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.