Bills Digest No. 27  1998-99 Australian Radiation Protection and Nuclear Safety Bill 1998


Numerical Index | Alphabetical Index

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.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Australian Radiation Protection and Nuclear Safety Bill 1998

Date Introduced: 11 November 1998

House: House of Representatives

Portfolio: Health and Aged Care

Commencement: On a day to be fixed by Proclamation or within 6 months of Royal Assent, whichever is the earlier.

Purpose

The object of the Bill is to 'protect the health and safety of people, and to protect the environment, from the harmful effects of radiation'.(1)

To this end the Bill proposes to 'establish a scheme to regulate the operation of nuclear installations and the management of radiation sources, including ionising material and apparatus and non-ionising apparatus, where these activities are undertaken by the Commonwealth'.(2)

An aspect of this regulatory scheme is the power of a statutory officer to license the construction, operation and control of certain nuclear installations.

Background

An earlier version of this Bill was introduced into the 38th Parliament of Australia on 8 April 1998. That Bill was passed by the House of Representatives and although it was introduced into the Senate, the second reading debate was not concluded before Parliament was prorogued. Bill Digest No. 211 was prepared for the initial Bill by Susan Downing and James Prest. Although this Digest substantially reproduces that material, additional comment has been provided. For further assistance on the scientific and environmental aspects of the Bill, please contact Dr Rod Panter, Director, Science, Technology, Environment and Resources Group, Department of the Parliamentary Library.(3)

Ionising Radiation

In 1895, Wilhelm Röntgen discovered X-rays and a year later Henri Becquerel discovered radioactivity.(4) Becquerel's work was continued by Marie and Pierre Curie (who found the two radioactive elements polonium and radium) and Ernest Rutherford. Marie Curie is credited with coining the term 'radioactivity' to describe the 'phenomenon of spontaneous emission of invisible radiation'.(5)

Ionising radiation is released when the nucleus of an atom becomes unstable and disintegrates, releasing excess nuclear energy in the form of energetic radiation. The term ionising radiation describes X-rays and alpha, beta and gamma rays thereby distinguishing them from other more familiar types of radiation such as light, heat, radio waves and microwaves.(6) Ionising radiation is more hazardous because it can pass through matter, including of course human tissue. As a result of its ionisation it interacts with that matter as it is passing through. In the case of human cells, this interaction can cause damage as the deoxyribonucleic acid (DNA) can be damaged. Cells are capable of repairing damaged DNA but in a small percentage of cases the repairs can result in a change to the cell itself or to the DNA. One result of this can be a cancerous cell. Another result can be the changing of genetic material that is passed down to the next generation. Such genetic damage is not observed with non-ionising radiation such as microwaves, heat and light.

Is There a 'Safe' Level of Exposure

Whether there is a 'safe' level of exposure to ionising radiation is the subject of debate. The OECD report notes:

There is a threshold level of radiation exposure (or dose) below which no acute damage is observed. However, there is now a substantial body of evidence which shows that cancers can be caused by radiation even at dose levels that are below this threshold. There is no evidence of inherited damage in humans at any dose level, but the fact that such damage is found to occur in other life forms suggests that it could also occur in humans....the assumption that a dose, however small, carries with it an element of risk has become a key concept in radiation protection.(7)

The assertion by the OECD report that there is no evidence of inherited damage in humans is not supported by other reports.(8) For example, the United Nations Environment Programme report Radiation Doses, Effects, Risks suggests the opposite:

The damage done by high doses [of radiation] normally becomes evident within hours or days. Cancers, however, take many years - usually decades - to emerge. And, by definition, the hereditary malformations and diseases caused by genetic damage take generations to show; it is the children, grandchildren, or remoter descendants of the people originally irradiated who will be affected.(9)

There is currently a national standard for limiting occupational exposure to ionising radiation - the 1995 recommendations set by the National Health and Medical Research Council (the 'NHMRC Standards').(10) The NHMRC has also published a series of codes or recommendations dealing with various aspects of radiation safety. The Bill will allow the Commonwealth to impose licence conditions on Commonwealth employees and contractors dealing with controlled material or operating controlled apparatus. An example of a licence condition could be that the NHMRC Standards be complied with.

The Applications of Radiation

Radiation is an invaluable diagnostic tool in a variety of fields including medicine, archaeology and the construction industry (eg industrial radiography where joints and welds are X-rayed to see whether there are any cracks or fractures in the structure). Other applications include defence, the food industry (for the sterilisation of food) and scientific research.

Commonwealth workers who utilise radiation include, for example, customs workers (for X-raying imported goods), postal workers (for X-raying packages), Department of Defence medical and dental practitioners, employees of Telstra, CASA, Australian Nuclear Science & Technology Organisation (ANSTO), the Department of Foreign Affairs & Trade, the Australian Maritime Safety Authority and the CSIRO. Radiation also has defence applications and therefore employees of the Department of Defence and the Defence Science and Technology Organisation (DSTO) may also work with radioactive material. Whilst it is probably not possible to know exactly how many Commonwealth employees work with radiation, a reasonable estimate would be in the vicinity of 3, 500.(11)

The Existing Regulatory Framework

The laws controlling people's exposure to radiation in Australia come from a web of Commonwealth, State and Territory legislation.(12) However, the laws do not provide comprehensive coverage. The 1996 Report of the Senate Select Committee on the Dangers of Radioactive Waste entitled No Time To Waste identified that whilst radiation exposure was covered by State laws, there persisted a 'regulatory gap' because these laws often did not apply to the Commonwealth or its employees.(13)

Some Commonwealth laws did affect this area but their application is characterised by 'ad hoc' coverage. The relevant Commonwealth laws are:

  • Environment Protection (Nuclear Codes) Act 1978
  • Australian Nuclear Science and Technology Organisation Act 1987(14)
  • Environment Protection (Impact of Proposals) Act 1974
  • Commonwealth Places (Application of Laws) Act 1970

The Environment Protection and Biodiversity Conservation Bill 1998 proposes to significantly restructure this legislative coverage, including repealing the Environment Protection (Impact of Proposals) Act 1974. The Bill proposes to provide protection for the environment, especially aspects of national environmental significance. 'Protection of the environment from nuclear actions' is specifically covered.(15) The proposed provisions cover when approval from the Minister for a nuclear action is required. 'Nuclear action' covers a range of activities associated with establishing a nuclear installation or storage facility, transporting spent nuclear fuel or radioactive wastes or mining or milling uranium ore. There has been some question as to whether this definition includes low level nuclear waste.(16) This is significant because it may mean that the establishment of a low level nuclear waste storage facility in northern South Australia(17) is not covered by the Environment Protection and Biodiversity Conservation Bill, and may only be covered by the current Bill's system of licensing. However, the Explanatory Memorandum for the Environment Protection and Biodiversity Conservation Bill 1998 states that a National Radioactive Waste Depository would be considered a large scale disposal facility, and that regulations can define the meaning of 'large scale disposal facility'.

It is unclear whether the regulatory framework to be established by the complementary Commonwealth and State legislation for the making of NEPMs (National Environment Protection Measures) will have any effect on the operation of the Bill. It is not clear whether either the pollution or waste issues involved with nuclear technologies are to be regulated separately, or whether they will come within the ambit of NEPMs such as the air NEPM and the draft NEPM for the Movement of Controlled Wastes between States and Territories, or the National Pollutant Inventory NEPM.(18)

Recommendations 7 and 8 of the Senate Committee's No Time To Waste report state that:

7. The Committee recommends that Commonwealth together with the States and Territories should act to expedite revision of national codes and development of a nationally agreed regulatory scheme.

8. The Committee recommends that Commonwealth regulation of Commonwealth bodies under the proposed Australian Institute of Radiation Protection legislation should conform to a nationally agreed scheme.(19)

The Bill implements these two recommendations.

The Existing Administrative Regime

The Nuclear Safety Bureau (situated within the Department of Health and Family Services) is the independent corporate body responsible for regulating the reactor at Lucas Heights which is run by ANSTO. ANSTO falls within the Ministry for Industry, Science and Technology. This arrangement reflects international practice whereby the regulatory body is separate from the regulated industry although there has been a degree of overlap to date with the NSB having some responsibilities for the nuclear plant.(20) However, the NSB is not responsible for monitoring other ANSTO (or other bodies) activities that do not relate to Lucas Heights.

In addition to NSB and ANSTO, there is an Australian Radiation Laboratory (ARL) which has existed as a branch within the Therapeutic Goods Administration area (currently a branch of the Department of Health and Family Services) in various guises since 1929. The ARL's role is to advise the government on radiation protection, to conduct research on radiation protection and to develop codes of practice for dealing with radioactive material.

Proposed consequential amendments to the Bill(21) repeal the NSB. Its functions have been transferred to the Australian Radiation Protection and Nuclear Safety Agency ('ARPANSA'). The Minister for Health, the Hon. Dr Michael Woodridge, has also stated that the ARL will be transferred to ARPANSA(22) although this is not specifically stated in the Bill. ARPANSA will have much wider-ranging powers than the current NSB and the Bill intends that ARPANSA will fill the 'regulatory gap' currently left by activities involving radioactive material that are not performed at Lucas Heights. Proposed section 13 notes that ARPANSA is part of the Department of State (in this instance the Department of Health and Aged Care) and is currently staffed by Departmental officers. ARPANSA itself is not established by the Bill, however, the Bill provides for the establishment of a statutory office of the Chief Executive Officer of ARPANSA with specific functions.

ANSTO is Australia's national nuclear research organisation and is physically located at the Lucas Heights Research Laboratories (LHRL), on Commonwealth land approximately thirty kilometres south-west of Sydney. ANSTO operates HIFAR, which is a ten megawatt research reactor. A decision to replace the reactor was announced by the then Minister for Science and Technology, Mr McGauran MP, on 3 September 1997.(23) In addition, the issue of the reprocessing of spent nuclear fuel rods recently surfaced with a 1997 report in the Sydney Morning Herald that ANSTO proposed the building of a reprocessing plant at Lucas Heights.(24) Aside from this issue, the ANSTO facility also has an important role in the manufacturing of radio-isotopes which are used for medical research and medical-diagnosis within Australia.(25) Given the crucial role of radio-isotopes in these fields, if Australia did not have the Lucas Heights facility it would either have to import the material (thereby relying on other countries) or do without (thus compromising medical research and treatment).

Whilst all States and Territories have laws which control the use of radioactive materials, section 7A of the Australian Nuclear Science and Technology Act 1987 exempts ANSTO from 'State laws on environment, landuse planning, radioactive materials and dangerous goods, and licensing of business or employment'.(26)

Relevant Budget Measures

The 1998-99 Budget Papers announce that:

The Commonwealth is providing $500,000 in 1998-99 to the Nuclear Safety Bureau for protection of the environment from hazards arising from the operation of the ANSTO HIFAR Reactor. Commonwealth funding of nearly $700,000 in 1998-99 is being provided to ANSTO for projects assessing and managing air pollution.

The Commonwealth is also providing $1.5 million over the five-year period from 1997-98 for the environmental surveillance programme conducted by the Australian Radiation Laboratory (ARL). The programme involves an Australia-wide network of air and rainfall sampling stations for monitoring radioactive fallout.(27)

In addition, the Commonwealth announced in the 1997-98 Budget that it was:

Providing $820,000 over four years from 1997-98 for the development of national codes of practice to provide uniformity in the development of State legislation and work practice controlling the mining and milling of radioactive ores and the safe disposal of radioactive wastes from mining operations.(28)

Relevant International Law

Australia is contemplating signing the International Atomic Energy Agency's Joint Convention on the Safety of Spent Fuel Management & on the Safety of Radioactive Waste Management, 1997. This convention requires, among other things, each contracting party to establish a legislative and regulatory framework to govern the safety of spent fuel and radioactive waste management. Article 19 of the Convention requires national safety requirements and regulations to be in place and a system of licensing of spent fuel and radioactive waste management activities to be adopted with appropriate inspections and enforcement of the regime. The Bill addresses the requirements of Article 19 but it does not address specifically some of the other provisions in the Convention.

Other relevant treaties are: the 1996 Convention on Nuclear Safety,(29) the South Pacific Nuclear Free Zone Treaty 1985,(30) the Convention on Early Notification of a Nuclear Accident and the Treaty on the Non-Proliferation of Nuclear Weapons 1968.(31) In addition, there are treaties prohibiting the dumping of radioactive waste at sea and treaties controlling nuclear weapons. Environmental lawyer Dr Gerry Bates notes:

The passage of the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) enabled Australia to carry out its obligations in respect of the Treaty on the Non-Proliferation of Nuclear Weapons and other international agreements (see schs 1-5 of the Act), including the agreement signed in 1974 between Australia and the International Atomic Energy Agency, known as the Agreement for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons. The Act introduces a permit system covering the possession etc of nuclear material (ss13-16); and a wide range of offences for dealing with such material without a permit [footnote omitted]. Australia's international obligations under the South Pacific Nuclear Free Zone Treaty are met under the South Pacific Nuclear Free Zone Treaty Act 1986 (Cth). This Act prohibits the manufacture, production, and acquisition of nuclear explosive devises (s8); and their possession, control and testing: ss10 and 12.(32)

Uranium Mining and Milling

Uranium is the only naturally occurring fissile material making it indispensable for nuclear reactors. 'Uranium contains the fissile (with thermal neutrons) isotope 235U (99.3%) which is the 'fertile' material for the production of fissile plutonium-239(239Pu).(33) In about 1939, the scientific community discovered that a 'nuclear chain reaction was possible: one neutron splits a uranium nucleus, liberating nuclear energy and two neutrons, which in turn, can produce two new fission events with a release of more energy and four new neutrons, and so on'.(34)

The Senate Select Committee on Uranium Mining and Milling released its report in May 1997. Among the recommendations made by the majority of the Committee were the following:

  • on the basis of available evidence, the uranium mining and milling industry will be sufficiently viable financially to be able to meet its environmental, health and safety, and security responsibilities fully;

and on the topic of health and safety:

  • as a basis for ensuring employee health and safety, data collection and analysis needs to be standardised on a national basis in the development of the National Radiation Dose Register;
  • determination of appropriate career dose limits should be a research priority for government health authorities and mining companies; and
  • a uniform method of measuring, calculating and recording dose limits should be adopted and applied.

The Senate Committee No Time to Waste report also noted that Australia has a significant role in the nuclear fuel cycle and quoted the following extract of a paper by the Australian Science and Technology Council:

[Australia has a significant role in the nuclear fuel cycle as] a uranium producer, as a signatory to international and national agreements relating to the use of nuclear materials and the prevention of nuclear weapons proliferation, and as a nation carrying out research and development in nuclear science and technology.(35)

With recent proposals to expand the uranium mining industry, the role of nuclear codes of practice and radiation safety arrangements are of increasing importance.(36)

Main Provisions

Proposed section 4 states that the Crown in each of its capacities (ie Commonwealth and States) will be bound by the Bill. In addition, the Crown may not be prosecuted for any offence under the Bill. This is a significant limitation given that the aim of the Bill is to provide a regulatory licensing regime with criminal penalties and that one of the potential licensees is the Commonwealth. It is unclear how it is proposed that this section might interact with the enforcement provisions in proposed Part 5.

Proposed sections 7-8 contain exemptions such that the operation of the Bill can be varied or excluded if required by reasons of Australia's defence or national security. The phrase 'prejudicial to Australia's national security' is not defined in the Bill. There is little case law on the meaning of the phrase 'national security' either. In the case of matters that would prejudice Australia's defence, the Chief of the Defence Force may, after consulting the Minister, declare that part of the Bill does not apply, or must be modified in its application, to defence members. Proposed section 8 is similar in that for matters that would be prejudicial to Australia's national security, the Director-General of Security may, after consulting the Minister, exempt certain premises or employees under his or her control from the Bill. In either case, the declaration can only be made after the person has taken into account the need to promote the objects of the Bill and, once made, the declaration will be a disallowable instrument.

Given the lack of definitions of the terms 'Australia's defence' or 'national security' in the Bill, it is unclear how large this exemption may be. For instance, much of the work done at Lucas Heights, in the Department of Defence and in the DSTO would arguably fall within these definitions but if the activities done at or by these institutions were to be exempted then much of the comprehensive coverage of the Bill would be lost. Until such time as a declaration is made, however, the Bill will apply to Commonwealth employees or contractors of these departments.

Proposed section 9 states that the Bill will operate concurrently with the Nuclear Non-Proliferation (Safeguards) Act 1987 to the extent possible but, in the event of a conflict between the two pieces of legislation, the Bill is intended to prevail. The Nuclear Non-Proliferation (Safeguards) Act 1987 implements Australia's international obligations under the Non-Proliferation Treaty to prevent the diversion of nuclear materials for unauthorised purposes such as the making of nuclear weapons.

Proposed section 12 introduces the key definitions to be applied under the Bill. Included among the definitions are the locations ('controlled facilities'), people ('controlled person') and equipment ('controlled apparatus') that fall within the scope of the Bill. The definition of a Commonwealth entity is broad and includes, for example, companies controlled by or substantially by the Commonwealth or certain bodies corporate legislatively established for a public purpose. The Bill proposes wide definitions of the radioactive material to be controlled, the facilities to be controlled and the degree of contact with the radioactive material that triggers the operation of the Bill. A person who 'deals with' the radioactive material or apparatus includes anyone who possesses, has control of, uses, operates or disposes of the radioactive material or apparatus.

The proposed definition of 'controlled facility' is a 'nuclear installation' or a 'prescribed radiation facility'. 'Nuclear installation' specifically includes:

  1. a nuclear fuel fabrication plant, (although Australia currently does not make nuclear fuel);

  2. a nuclear reactor, (although Australia has no nuclear reactor that generates electricity);

  3. a research reactor;

  4. a nuclear power plant, (although Australia has none);

  5. a fuel storage facility;

  6. an enrichment plant, (although Australia has none); and

  7. a reprocessing facility, (although Australia has none).

This proposed definition is substantially the same as the one used by the International Atomic Energy Agency.(37) By drafting the Bill in this way, if Australia did build any of those facilities, they would be covered by the Bill without further amendments being required. Comment on the pre-emptive scope of this definition is provided in the conclusion.

'Prescribed radiation facility' is not specifically defined, but is left open for definition through regulation.

Although clause 3 states that the purpose of the Bill is to provide protection from the 'harmful effects' radiation, 'harmful' is not defined. This may be significant in view of previous discussion as to debate over 'safe' levels of radiation.

Proposed Part 3 of the Bill establishes a Chief Executive Officer of ARPANSA ('the CEO') as a statutory office with certain functions and powers. The CEO can be directed by the Minister if the Minister considers that it is in the public interest to do so (proposed section 15). The CEO may delegate any of the CEO's powers to a Senior Executive Service officer or a Senior Officer Grade A, B or C in the Department (proposed section 17).

Proposed Part 4 of the Bill establishes a Radiation Health and Safety Advisory Council. The Council has various functions such as identifying and examining matters of major concern relating to radiation protection and nuclear safety, and advising the CEO on the adoption of relevant standards. The Council consists of the CEO, 2 radiation control officers, a person to represent the interests of the general public and up to 8 other members, appointed by the Minister (proposed section 20).

The Senate Committee No Time to Waste report recommended that the structure of the 'Australian Institute of Radiation Protection', as the report called it, be such that persons having conflicts of interest between commercial activities in nuclear science and the setting of safety rules were not selected and that there was 'appropriate community representation' on any such council.(38)

Proposed sections 21-23 establish a Radiation Health Committee, with the functions of advising the CEO and the Council on radiation protection and developing policies and formulate standards. The Committee's functions are to be performed only on the request of the CEO or the Council. Membership of the Council is appointed by the Minister and includes a representative from each State and Territory and a person to represent the interests of the general public.

Proposed sections 24-26 establish the Nuclear Safety Council, with the functions of advising the CEO and the Council on nuclear safety issues and reviewing the effectiveness of standards and developing policies and draft publications in relation to the safety of controlled facilities. Membership of the Council includes a person to represent the interests of the general public, a person to represent the local government or local area of an area affected by a matter related to the safety of a controlled facility and up to 8 other members.

Proposed Part 5 provides for the regulation of controlled material, facilities and apparatus and prohibits the construction of, operation of or ownership of a controlled facility unless the person responsible either has a licence or is exempted under the regulations. The proposed penalties for acting in breach of this section (proposed section 29) or for acting in breach of any licence conditions are up to 2,000 penalty units. One penalty unit is currently $110.00 under section 4AA of the Crimes Act 1914.

Proposed section 30 puts the onus on 'a controlled person' (which includes a Commonwealth employee or a contractor of the Commonwealth) not to 'deal with' controlled material or an apparatus unless the dealing is covered by a licence or exempted under the regulations. The proposed penalty is 2,000 penalty units.

Part 5 Division 2 sets out the regime of licences under the Bill. The CEO may issue a licence to a controlled person who deals with controlled material or a controlled apparatus, with such conditions as the CEO determines in accordance with the regulations. A licence can either be given:

  • as a 'facility licence' (proposed section 29). This allows for a controlled person to:
  • prepare a site for a controlled facility;
  • construct a controlled facility;
  • have possession or control of a controlled facility;
  • operate a controlled facility;
  • de-commission, dispose of or abandon a controlled facility; or
  • as a 'source licence', that authorises persons to deal with a controlled apparatus or a controlled facility.

There are provisions in the Bill for the cancellation, suspension, surrender of and review of licences.

Part 5 Division 3 of the Bill deals with the enforcement provisions. Proposed section 40 allows the CEO to issue written directions to a controlled person, if the CEO has reasonable grounds for believing that the person is not complying with the proposed Act or its regulations and that it is necessary for the CEO to act to 'protect the health and safety of people or to avoid damage to the environment'. Proposed subsection 40(3) introduces a penalty of 30 penalty units for failure by a controlled person to comply with the written directions of the CEO. In addition to the penalty, the CEO can arrange for the Commonwealth to take the steps necessary to ensure compliance and recover the costs of doing that from the controlled person as a debt due to the Commonwealth (proposed subsections 40(4) and (5)).

Proposed section 41 allows a controlled person who receives written directions from the CEO to seek a review of those directions. In the first instance the review is by the Minister and if the controlled person is still dissatisfied with the decision they may apply to the Administrative Appeals Tribunal for a review of the decision.

Other enforcement options contained in the Bill include providing the CEO with a power to apply to the Federal Court for an injunction to prevent a breach of the Act. Only the CEO of ARPANSA will be able to apply. This is at variance with similar provisions in other environmental legislation which, generally speaking, either permit 'any person' or 'a person aggrieved' to take action to enforce a law.(39) In the event that a person is convicted under the proposed Act, it will be open to the Court to order the forfeiture to the Commonwealth of any 'substance or thing' used in the commission of the offence (proposed section 43).

Proposed sections 58 and 59 require the CEO to prepare and give to the Minister annual and quarterly reports, which the Minister must then table before each House of Parliament. In addition to this, proposed section 60 allows the CEO to cause a report to be made to either House of Parliament at any other time as long as the CEO provides the Minister with a copy of that report.

Part 7 of the Bill deals with the powers of inspection, search and seizure. The CEO may appoint inspectors (who can be either Commonwealth, State or Territory government employees or appointees) under proposed section 61 and they have the power to inspect premises either with the consent of the occupier or pursuant to a warrant. Proposed section 76 deals with the issue by a magistrate of a 'monitoring warrant'. The warrant may be issued if the magistrate is satisfied, after hearing information given on oath, that it is reasonably necessary for one or more inspectors to have access to the premises to discern whether any breaches of the proposed Act or regulations have occurred.

Warrants that allow inspectors to seize evidential material from the premises are also available from a magistrate under proposed section 77 and 78 (which relates to obtaining warrants by telephone). These 'offence related warrants' authorise the use of 'such force as is necessary and reasonable' to enter and search the premises and seize the evidential material. Offence related warrants are also available by telephone for urgent cases. Proposed section 79 makes it an offence punishable by up to 2 years imprisonment to knowingly give a 'false' or 'misleading in a material particular' statement in an application for a warrant under the Bill. The same penalty applies to anyone convicted of purporting to execute a warrant that has not been executed by a magistrate or that is not of the same type as the one that was executed by a magistrate.

The powers of search that are exercisable by an inspector are detailed in proposed sections 65 and 66. The Explanatory Memorandum mistakenly reports that the penalty for a breach of proposed section 66 is a maximum of $3,000 whereas the application of s4AA of the Crimes Act 1914 would make the maximum penalty $3,300. The powers of search include taking samples, taking photographs or videos, inspecting books or other records and asking 'any person in or on the premises' questions. Proposed section 69 authorises the inspector to operate electronic equipment at the premises and copy any computer files etc as long as this can be done without damaging the equipment. However, should such damage occur, compensation is payable under proposed section 70.

Proposed section 64 empowers an inspector to enter and search a premises and seize material without the consent of the owner or a warrant if the inspector has reasonable grounds for believing that it is necessary in the interests of public health to avoid an imminent risk of death, serious illness, serious injury or serious damage to the environment.

As stated above, the Bill intends that the Nuclear Non-Proliferation (Safeguards) Act 1987 operates, insofar as is possible, concurrently with the proposed provisions of the Bill. Proposed section 82 confirms that inspectors must still comply with sections 23, 25 and 26 of the Nuclear Non-Proliferation (Safeguards) Act 1987. Section 23 of that Act requires a person to have a permit under the Act in order to possess nuclear material or associated items. Section 25 requires that all conditions of the permit be adhered to and prescribes penalties for any breaches. Section 26 prohibits the unauthorised communication of information by a Commonwealth officer or prescribed authority of the Commonwealth about nuclear activities or disarmament.

Proposed section 82 operates to exclude (where set out or proclaimed by regulation) the operation of State and Territory laws with respect to controlled persons, facilities and apparatus. As a result, the Commonwealth will be able to exempt itself and its contractors from certain State or Territory laws which might apply a differing standard of protection or regulation. (Refer also to discussion above on proposed section 4).

Proposed section 83 relates to Australia's obligations under 'relevant international agreements'. It provides that:

  • where this Act confers a power, discretion, duty or function on a person, their exercise is authorised only to the extent that it is not inconsistent with Australia's obligations under international instruments;
  • where this Act confers a power or discretion on a person, the person must have regard to Australia's obligations under relevant international agreements.

It appears that neither of these provisions require a decision maker to act consistently with relevant international agreements.

Proposed section 84 allows the Governor-General to make regulations under the proposed Act. Included is the power to prescribe penalties in the regulations of up to 50 penalty units.

Concluding Comments

Although the object of the Bill is to 'protect the health and safety of people, and to protect the environment, from the harmful effects of radiation' by establishing a regulatory regime, the regulatory scope of the Bill has a wider public policy dimension, as it introduces a system of licensing for a wide range of nuclear and radiation facilities that are not currently established within Australia.

Health and Safety Aspects

The Bill aims to fill the regulatory gap that currently fails to comprehensively cover Commonwealth employees working with radiation sources or at nuclear installations. This is an important and overdue development. Much of the technical detail that the Bill will need to be effective will be contained in the regulations made under proposed section 84. Given the potential health risks associated with radiation it is important that the regulatory regime protecting the community is adequate. Relevant factors in making such an assessment might include:

  • The creation of ARPANSA as a regulatory body separate from the industry it is regulating (although it is still to be located within a Government Department);
  • Commonwealth immunity from various State or Territory laws (including planning laws) regarding nuclear installations;(40)
  • The choice made to exempt the Commonwealth from prosecution under the Bill; and
  • The extent to which the defence and/or national security exemptions might apply.

Scope of Licensing Regime

The Bill permits the CEO of ARPANSA to license controlled persons to do a wide range of things in relation to a 'nuclear installation' or a 'prescribed radiation facility'. As noted above, a 'nuclear installation' includes a wide range of operations that do not currently occur within Australia, including a nuclear fuel fabrication plant, a nuclear processing plant, an enrichment plant and a reprocessing facility.

Although the licensing arrangements will presumably focus on occupational health and safety matters this licensing power also encompasses a public policy dimension, as it facilitates the development of nuclear facilities that currently do not exist within Australia. Several concerns arise in relation to this public policy dimension.

  • Given the public significance of the decision whether the Commonwealth should establish, for example, a nuclear processing or enrichment plant, it seems appropriate that such a decision is taken by the Government in the context of an informed public and Parliamentary debate and possibly separate legislation. The scope of the licensing scheme pre-empts and potentially makes irrelevant such discussion.
  • The significance of this licensing regime is partially obscured from Parliamentary and public debate by being placed within a Bill the object of which is to regulate occupational health and safety issues.

Endnotes

 

  1. Australian Radiation Protection and Nuclear Safety Bill 1998, clause 3.

  2. Explanatory Memorandum, 1.

  3. Telephone 6277 2420.

  4. Draganic, Draganic and Adloff Radiation and Radioactivity on Earth and Beyond (1990), 3.

  5. Ibid.,5.

  6. Radiation in Perspective: Applications, Risks and Protection (1997) OECD Nuclear Energy Agency Publication at 12.

  7. Radiation in Perspective: Applications, Risks and Protection (1997) OECD Nuclear Energy Agency Publication at 17.

  8. The Weekend Australian, 3 January 1998, Graeme Leech, p 15 reported findings by Dundee University that the 'effects of exposure to nuclear radiation could be passed on to grandchildren'.

  9. Radiation: Doses, Effects, Risks (1985) UNEP, 49.

  10. Recommendations for limiting exposure to ionizing radiation (1995) Radiation Health Series No. 39, National Health and Medical Research Council.

  11. Interview, officers of the Department of Health, 8 May 1998.

  12. A convenient summary of the regulatory regimes in the States and Territories appears in Leigh, J. Occupational Health and Safety in Uranium Mining & Milling in the Report of the Senate Select Committee on Uranium Mining and Milling (May, 1997), 59-110 at 76-79. Also see Bates, G. Environmental Law in Australia (1995), 232-236.

  13. No Time To Waste (April 1996), Report of the Senate Select Committee on the Dangers of Radioactive Waste at 26.

  14. This act was substantially amended in 1992 by the Australian Nuclear Science and Technology Organisation Amendment Act 1992 so as to establish the Nuclear Safety Bureau as an independent corporate body.

  15. Environment Protection and Biodiversity Conservation Bill 1998, proposed clauses 21-22.

  16. Consultation Paper, Reform of Commonwealth Environmental Legislation (1998), 11.

  17. Senator Parer announced on 18 February 1998 that the Billa Kalina region in South Australia had been selected as a suitable area to house the proposed National Radioactive Waste Repository. Low level and short-lived intermediate level waste was expected to be stored at the site, if the site obtained the requisite approvals. This would raise issues of the transport of radioactive waste to the site and may fall within the regime proposed by the Bill.

  18. For more detail on the Bill and how NEPM's will operate see: Prest, J. 'National Environment Protection Measures (Implementation) Bill 1997', Department of the Parliamentary Library, Bills Digest No. 113 of 1997-98.

  19. No Time To Waste (April 1996), Report of the Senate Select Committee on the Dangers of Radioactive Waste, recommendations 1-3 inclusive at xviii.

  20. Nuclear Safety Bureau, Annual Report 1996-97, 3.

  21. Australian Radiation Protection and Nuclear Safety (Consequential Amendments) Bill 1998

  22. Media Release, the Hon. Michael Woodridge (Minister for Health), 14 May 1998.

  23. Media Release, Mr Peter McGauran MP, 3 September 1997. See also submissions to the Senate Economics References Committee Inquiry into Reactor at Lucas Heights.

  24. Sydney Morning Herald, 6 March 1997, by Murray Hogarth.

  25. Annual Report 1996-97, Australian Nuclear Science & Technology Organisation, 12.

  26. No Time To Waste (April 1996), Report of the Senate Select Committee on the Dangers of Radioactive Waste, 7.

  27. Investing in Our Natural Heritage, The Commonwealth's Environment Expenditure 1998-99, Statement by the Honourable Robert Hill, Minister for the Environment, 12 May 1998, at 106.

  28. Investing in Our Natural Heritage, The Commonwealth's Environment Expenditure 1997-98, Statement by the Honourable Robert Hill, Minister for the Environment, 13 May 1997, at 65.

  29. Under this Convention which entered into force in October 1996, the safety of nuclear power plants are scrutinised by an international peer review process. The first review for Australia is due to happen in 1999. See Nuclear Safety Bureau, Annual Report 1996-97, 3.

  30. Entered into force generally and for Australia on 11 December 1986.

  31. The Non-Proliferation Treaty entered into force generally on 5 March 1970 but for Australia, it entered into force on 23 January 1973.

  32. Bates, G. Environmental Law in Australia (1995), 234.

  33. International Atomic Energy Agency Publication No. 217 Guidebook on the Introduction of Nuclear Power (1982), 44.

  34. Draganic, Draganic and Adloff Radiation and Radioactivity on Earth and Beyond (1990), 15.

  35. Australian Science and Technology Council (1984) Australia's Role in the Nuclear Fuel Cycle, AGPS, Canberra, 1.

  36. Estimates for uranium mines and mills suggest that 'workers receive averages of 0.7 man-sievert of radiation for every gigawatt year of electrical energy eventually generated from their production. Mines are responsible for virtually all this dose, and, naturally, underground mines generally subject the people who work in them to greater doses than do open-cast ones.' Radiation: Doses, Effects, Risks (1991) UNEP, 59.

  37. International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources International Atomic Energy Agency Safety Series No. 115 (1996) at 308.

  38. No Time To Waste (April 1996), Report of the Senate Select Committee on the Dangers of Radioactive Waste, recommendations 1-3 inclusive at xvii.

  39. Bates, G. Environmental Law in Australia (1995) 469-471; and Glindemann, R. (1996) 24(3) Aust. Business Law Rev. 247 Standing To Sue For Environment Protection: A Look at Recent Changes.

  40. NSW Acting State Minister for the Environment, Mr Shaw, is reported has having condemned the Lucas Heights nuclear reactor site's total exemption from State planning and environmental scrutiny laws. Reported in Sydney Morning Herald, 6 March 1997, by Murray Hogarth.

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