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Australian Radiation Protection and Nuclear Safety Amendment Bill 2015

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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remains appropriate, this Bill introduces changes to the legislation to address identified deficiencies and to replace outdated provisions.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 t he licensing regime to expressly enab le 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 enabl e 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.



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



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 28 th 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.

 

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. 

 

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.

 

-         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.  

 

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 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.

 

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.

 

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.

 

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.

 

 

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 info rmation, 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 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.





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’.

 

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.

 

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.

 

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

·          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).