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RADIATION PROTECTION (TANNING UNITS) AMENDMENT REGULATION 2010 (NO 1) (NO 29 OF 2010)
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL TERRITORY
RADIATION
PROTECTION (TANNING UNITS) AMENDMENT REGULATION 2010 (No
1)
EXPLANATORY
STATEMENT
Minister for Health
RADIATION PROTECTION (TANNING UNITS) AMENDMENT REGULATION 2010 (No 1)
The Radiation Protection Act 2006 and supporting Radiation
Protection Regulation 2007 regulate the use of ionising radiation in
the Territory. The Radiation Protection legislation was also constructed to
allow for the future regulation of non-ionising radiation.
The approach
taken in the Radiation Protection legislation is based on the National Directory
for Radiation Protection (the National Directory) published by the Australian
Radiation Protection and Nuclear Safety Agency (ARPANSA). The Directory was
developed by the National Radiation Health Committee (the Committee), which was
established under the auspices of ARPANSA with representatives from the States
and Territories. The establishment of the Committee was in response to the
recommendations of a national competition policy review of the radiation
protection legislation across Australian jurisdictions. The Directory is a
statement of a nationally agreed approach to regulating the use of radiation in
Australia.
Australia has among the highest skin cancer rates in the
world, and its associated health and financial costs are substantial. This led
to concerted efforts to better educate the Australian public about the problem
of skin cancer. This has resulted in a significant increase in the level of
awareness in recent decades. For this reason, important facts and information
about skin cancer are so widely known and accepted in Australia that the need to
act to reduce the incidence of skin cancers is indisputable.
Exposure to
ultraviolet radiation is known to be the single major risk factor in relation to
skin cancer, and the vast majority of this exposure is still derived from direct
exposure to sunlight. Furthermore, it is also well known that exposure to
ultraviolet light during adolescence is strongly associated with later
development of melanoma.
It is now also well accepted that a significant
level of increased risk of melanoma arises from the use of tanning units. As a
consequence, it can be expected that adolescents using tanning units are placing
themselves at a very high risk of developing melanoma.
Nevertheless,
despite these well known truths about skin cancer, and the ever growing evidence
about the hazards that are tanning units, the use of tanning units by the
Australian population had actually been increasing. The reasons for the
increased use of tanning units are not entirely clear. However, there have been
concerns that consumers were potentially being misled or deceived into believing
that the use of tanning units is safe, or could even have health benefits.
There has even been a successful action in the Federal Court concerning
misleading and deceptive claims of this nature by solaria.
Ultraviolet
light is a form of non-ionising radiation, and tanning units therefore a source
of non-ionising radiation. As such, amendments have been proposed to the
National Directory that would set nationally agreed regulatory standards
relating to the use of solaria.
At the time that Executive approval of
this Regulation was received the proposed amendments to the National Directory
had not yet been approved by all States and Territories. Nevertheless, the ACT
Government is convinced of the need to regulate solaria and the associated use
of tanning units. Accordingly, the provisions contained in this Regulation have
been modelled on the proposed amendments to the National
Directory.
APPLICATION OF STRICT LIABILITY
This Regulation
contains strict liability offences. Strict liability is usually employed where
it is necessary to ensure the integrity of a regulatory scheme, such as those
relating to public health and safety, the environment and the protection of the
revenue. The control of non-ionising radiation sources requires offences that
are generally at the lower end of the range of criminal conduct. These offences
are contained in Division 4.4.
Professionals that deal with
regulated radiation sources, be it ionising or non-ionising, can reasonably be
expected to be aware of their duties and obligations. As such, strict liability
offences are more readily justified when a defendant can reasonably be expected,
because of his or her professional involvement, to be aware of the requirements
of the law. A defendant’s frame of mind for some regulatory offences is
irrelevant, unless some knowledge or intention ought to be required to commit a
particular offence. The mistake of fact defence expressly applies to strict
liability as do other defences in part 2.3 of the Criminal
Code 2002.
Penalties for strict liability offences should not
exceed more than 50 penalty units or include a term of imprisonment. The
offences in Division 4.4 have a maximum penalty of 10 penalty units.
This is the highest penalty level that section 122(3) of Radiation
Protection Act 2006 permits to be included in the Regulation.
A detailed explanation of each clause of the Regulation follows.
This specifies that the name of the regulation is the Radiation Protection
(Tanning Units) Amendment Regulation 2010 (No 1). The Regulation amends
the Radiation Protection Regulation 2007, which is subordinate law to the
Radiation Protection Act 2006.
This provision of the Regulation sets out the commencement of the Regulation.
Due to the operation of section 75(1) of the Legislation
Act 2001 the naming and commencement provisions of this Regulation,
clauses 1 and 2, commence automatically on the day the Regulation is
notified. A note to that effect is included in the provision.
All other
provisions of this Regulation will commence on a date fixed by the Minister by
written notice. Again, notes are included in the provision to alert the reader
to the application of the Legislation Act 2001. Section 77(1)
of the Legislation Act 2001 allows for a single date or time to be
fixed for commencement, or different dates and times may be fixed for different
provisions of the Regulation. This enables the Minister to stagger commencement
of certain provisions. This may be necessary where some provisions need to
start soon, or even immediately, but it is desirable for other provisions to
commence later, possibly to allow affected persons or businesses time to prepare
for the operation of the Regulation.
However, if a provision has not
commenced within six months of the date the Regulation is notified,
section 79 of the Legislation Act 2001 will operate to make the
Regulation commence on the first day after that period.
An exception is
specifically provided in regard to clause 9 of this Regulation. For
clause 9, the operation of section 79 of the Legislation
Act 2001 is expressly displaced. Accordingly, clause 9 will
instead automatically commence one year after the Regulation is notified, unless
an earlier date is fixed by the Minister by written notice.
This provision alerts the reader that this Regulation amends the Radiation
Protection Regulation 2007. Upon commencement this Regulation will alter
the Radiation Protection Regulation 2007 in accordance with the provisions
that this Regulation contains. This Regulation will then be immediately
repealed. Consequentially, from the date that this Regulation commences a new
republication of the Radiation Protection Regulation 2007 will be
available. That new republication will feature the alterations made by this
Regulation.
This clause establishes that other legislation applies to offences against
the Radiation Protection Regulation 2007. This includes, but is not limited
to, the Criminal Code 2002 and section 133 of the
Legislation Act 2001, which deals with the meaning of offence
penalties that are expressed in penalty units.
What constitutes a regulated radiation source is the subject of
section 10(2) of the Radiation Protection Act 2006. Through
section 10(2)(a), a radiation source that emits or is capable of emitting
ionising radiation above a level prescribed in the Radiation Protection
Regulation 2007 is a regulated radiation source. Furthermore, under
section 10(2)(b) of the Radiation Protection Act 2006,
radiation sources that emit or are capable of emitting non-ionising radiation
are also regulated, if they are prescribed in the Radiation Protection
Regulation 2007.
Prior to this amendment, section 7 of the
Regulation simply instructed that a radiation source is a regulated radiation
source if it emits, or is capable of emitting, ionising radiation above the
exemption levels contained in the National Directory. The National Directory
contains an extensive list of radionuclide, with corresponding exempt activity
concentrations and exempt activity levels. No radiation sources for the
purposes of section 10(2)(b) had yet been prescribed.
The effect
of this provision is to replace the existing section 7 with a new version
that contains two subsections; one addressing ionising radiation and the other
addressing non-ionising radiation.
For the purposes of
section 10(2)(a) of the Radiation Protection Act 2006
section 7(1) provides that the exemption level for a radiation source
under the National Directory is prescribed. The term National Directory
is defined in the dictionary of the Radiation Protection Act 2006 as
meaning the National Directory for Radiation Protection, as in force from time
to time, as published by the Australian Radiation and Nuclear Protection
Agency.
Accordingly, a radiation source that emits or is capable of
emitting ionising radiation above the exemption levels set out in the National
Directory will be regulated by the Radiation Protection
Act 2006.
Section 10(2)(b) instructs that a tanning unit
used for cosmetic purposes in a solarium is prescribed as a radiation source
that emits or is capable of emitting non-ionising radiation, and as such is
regulated by the Radiation Protection Act 2006.
It is
important to note that only tanning units used for cosmetic purposes in a
solarium will be regulated. If a person possesses a tanning unit for their own
home use, the provisions being inserted into the Protection Regulation 2007
by this Regulation will not apply. Similarly, there are tanning units that are
used for legitimate medical purposes which will not be affected by this
Regulation.
The effect of this provision is to renumber the existing Part 4 of the
Radiation Protection Regulation 2007 as Part 10. Part 4 contains
miscellaneous matters which would ordinarily be located at the end of a
Regulation. By renumbering Part 4 as Part 10, allowances are made for
the Radiation Protection Regulation 2007 to expand with the addition of new
parts, whilst still retaining miscellaneous matters at the end of the
Regulation. As further regulation of radiation sources is expected in the next
few years, particularly in regard to non-ionising radiation, making
miscellaneous matters Part 10 allows for a number of new parts to be
inserted in the future.
The purpose of this amendment is to provide for
the regulation of the use and operation of tanning units. The provisions that
achieve that purpose will become Part 4 by virtue of the operation of
clause 8 of this Regulation.
Renumbering the current Part 4 of the Radiation Protection
Regulation 2007 to be Part 10 to allow for future expansion of the
Regulation would be pointless unless the sections within that part were also
renumbered. Accordingly, this provision renumbers existing sections 10, 11
and 12 to be sections 100, 101 and 102, respectively. Other than the
sections being renumbered, no other changes are made to the
provisions.
Changing sections 10, 11 and 12 to sections 100,
101 and 102 allows for sections in any new parts inserted in the future to be
numbered sequentially in a purely numeric fashion.
This provision inserts into the Radiation Protection Regulation 2007 a
new Part 4. It is this new part that contains the provisions that are
specific to the regulation of tanning units and solaria.
Part 4 is
divided into four Divisions. The first Division specifies the sources and
facilities to which Part 4 applies. The fourth Division contains offences
that will apply solely to solarium operators, and relates specifically to the
making of claims or representations about the use of tanning units or about the
operation of the solarium.
The bulk of the provisions that regulate
solaria and the use of tanning units are contained within Divisions 4.2 and
Division 4.3.
Tanning units are a source of non-ionising radiation,
and by virtue of section 7(2) as inserted by clause 5 of this
Regulation, are a regulated source of radiation. As a regulated source, all
tanning units used for cosmetic purposes must be registered in accordance with
Division 3.3 of the Radiation Protection Act 2006.
Furthermore, any person that deals with a regulated source must hold a radiation
licence under Division 3.2 of the Radiation Protection Act 2006.
What constitutes dealing is detailed in section 11 of the
Radiation Protection Act 2006, and includes possession and use.
Licences can be subject to conditions which can impose additional
requirements or obligations on a licence-holder, or restrictions on what the
licence-holder is permitted to do. Licence conditions can be imposed by the
licensing body, the ACT Radiation Council. The Radiation Council can impose
conditions either on a case by case basis, or conditions can be imposed
universally to all licences or a class of licence.
Pursuant to
section 19(a) of the Radiation Protection Act 2006 licence
conditions can also be prescribed by Regulation. This is what
Divisions 4.2 and 4.3 do in regard to licences authorising the use or
possession of tanning units.
Operating a tanning unit amounts to using
that radiation source, and to be lawfully using that source a person must hold a
licence. Accordingly, they must hold a radiation licence to lawfully use a
tanning unit. Division 4.2 contains licence conditions that are prescribed
for all licences that authorise the use of a tanning unit. For ease of use such
licences are referred to in the Regulation as a tanning unit licence.
A solarium, by its very nature, possesses tanning units. The tanning
units possessed may also be owned by the solarium, but it is also possible for
the tanning units that are possessed to be leased from the actual owner. As
tanning units are now a regulated radiation source, the owner of a solarium will
require a radiation licence that authorises the possession of a tanning unit, or
units. Division 4.3 contains licence conditions that are prescribed for all
licences that authorise the possession of a tanning unit. For ease of use, such
licences are referred to in the Regulation as a solarium licence.
It is important to recognise that depending on whether or not a solarium
owner is actually involved in the operation and running of the solarium, it is
possible for a solarium owner to be granted a licence that authorises both the
possession and use of tanning units. Where this is the case, the licence issued
will amount to both a solarium licence and a tanning unit licence.
Nevertheless, the conditions that apply to a tanning unit licence will
only apply when the licence-holder is operating a tanning unit.
A
detailed explanation of each section within clause 8 of the Regulation
follows:
Definitions of terminology employed in Part 4 are contained in
section 10.
A key definition that is included is AS/NZS 2635,
which is the national standard on solaria for cosmetic purposes in Australia and
New Zealand; AS/NZS 2635:2008.
Many of the other definitions are
connected to AS/NZS 2635. A notable example is the Fitzpatrick skin photo type
classification system. The Fitzpatrick skin photo type classification system
was developed in 1975 by Harvard University dermatologist Dr Thomas
Fitzpatrick MD, PHD. The system classifies a person's complexion and their
tolerance of sunlight, and is used for determining the risk of sunburn and some
skin conditions.
There are 6 different skin photo types under the
Fitzpatrick skin photo type classification system, each with a different
predisposition to burning and tanning from ultraviolet radiation exposure. The
skin photo types, which are defined in section 10, escalate from skin photo
type 1, which never tans and always burns, to its opposite, skin photo
type 6, which never burns.
Within Part 4 the minimum erythemal
dose, or MED, for each skin type is listed. The definition in section 10
explains that the MED is the minimum dose of ultraviolet radiation that is
required to cause sunburn. Accordingly, in any given tanning session the
exposure should not be allowed to reach the MED for that skin photo type. The
term tanning session is also defined in section 10.
As
section 10(2) explains, a dose of ultraviolet radiation is measured in
Joules per square metre, which can be expressed as either J/m2 or
J.m-2.
What constitutes a solarium is defined in
section 10, with the principal characteristics being a commercial
establishment at which tanning units are used for cosmetic purposes.
This section expressly provides that section 47(6) of the Legislation
Act 2001 does not apply to AS/NZS 2635:2008, which is the national
standard on solaria for cosmetic purposes in Australia and New
Zealand.
AS/NZS 2635:2008 is an Australian and New Zealand national
standard, jointly published by Standards Australia and Standards New Zealand.
Australian and New Zealand standards are routinely cited by legislation in all
Australian jurisdictions, and are invaluable in aiding national consistency for
minimum standards and best practice.
Ordinarily the text of AS/NZS
2635:2008, and every subsequent republication, would need to be included on the
ACT Legislation Register by way of a notifiable instrument. However, this would
be inappropriate for Australian and New Zealand standards for several reasons,
not the least of which is the frequency of their republication and the
application of copyright protection. However, it is also not particularly
necessary due to their national acceptance, ease of access and strong version
control.
Section 19(a) of the Radiation Protection Act 2006 empowers
the Regulation to prescribe licence conditions. Section 12(1) establishes
that the conditions contained in Division 4.2 are prescribed for licences
that authorise the use of tanning units. For the purposes of the
Regulation, such licences are referred to as tanning unit
licences.
Section 12(2) clarifies that for the purposes of the
legislation a person is not considered to be using a tanning unit by virtue of
receiving exposure to ultraviolet radiation as a client of a solarium. This
provision is designed to ensure that a person paying a solarium to get a tan
from a tanning unit is not taken to be using the tanning unit, for the purposes
of the Radiation Protection Act 2006. Even if the customer has some
element of control of the tanning unit that enables the person to stop or
suspend the tanning session, the customer will not be legally considered to
using the tanning unit such as to require a radiation
licence.
Furthermore, the section also clarifies that a person who uses a
tanning unit at a place other than a solarium is not taken to be using a tanning
unit for the purposes of the Radiation Protection Act 2006. This
means that where a person possesses and uses a tanning unit in their own home
for private use, the Radiation Protection Act 2006 will not apply.
Similarly, if a person uses a tanning unit in a health care facility as part of
a form of medical treatment the person the Radiation Protection Act 2006
also will not apply.
Pursuant to section 13(1), a tanning unit licensee must not allow a
person to be exposed to ultraviolet radiation from a tanning unit unless the
person’s skin photo type has been assessed. That assessment must be
conducted by the licensee in accordance with the Fitzpatrick skin photo type
classification system, and a record made of that assessment.
The
Fitzpatrick skin photo type classification system was developed in 1975 by
Harvard University dermatologist Dr Thomas Fitzpatrick MD, PHD. The
system classifies a person's complexion and their tolerance of sunlight, and is
used for determining the risk of sunburn and some skin conditions. The
Fitzpatrick skin photo type classification system is integral to the national
standard on solaria for cosmetic purposes in Australia and New Zealand; AS/NZS
2635:2008.
The only exception to this rule is if the client can present a
certificate from a medical practitioner about the client’s skin photo
type. For such a certificate to be valid and acceptable it must certify the
medical practitioner has assessed the person’s skin photo type in
accordance with the Fitzpatrick skin photo type classification system. The
result of that assessment must be clearly stated on the certificate.
If a
valid certificate from a medical practitioner is presented, the licensee is not
required to assess the client, but a copy of the certificate must be retained.
The ACT Legislation Act 2001 defines a medical practitioner to be a
doctor. Medical practitioners are registered under the Health Professionals
Act 2004.
Perhaps the most critical licensing conditions
imposed on tanning unit licences are contained in section 13(2). That
section establishes that a licensee must not, under any circumstances, permit a
person assessed as having skin photo type 1 to receive exposure to
ultraviolet radiation from a tanning unit. A similar prohibition is imposed on
persons under 18 years of age, who must also not be allowed to be exposed
to ultraviolet radiation from a tanning unit.
Under this provision it is a condition on a tanning unit licence to only
expose a person to ultraviolet radiation from a tanning unit if the person has
consented to the exposure. The provision does not expressly require that the
consent be provided in writing. Nevertheless, it would be prudent for the
licensee and the solarium to require that the consent be in writing. Doing so
will not only provide documented evidence of compliance with this licence
condition, but may well be necessary to adequate satisfy other licence
conditions, such as that in section 16.
It is important to note that
under section 121 of the Radiation Protection Act 2006 the
Minister can approve a form for this provision. If an Approved Form is made by
the Minister, all licensees must use that form to record a customer’s
consent.
Section 14 also stipulates that any consent given is not
valid unless it specifically relates to exposure to ultraviolet radiation on the
particular occasion concerned. As such, a client cannot provide a generic, all
encompassing consent. Nor can consent to multiple sessions be accepted.
Additionally, the section requires that the holder of a tanning unit
licence must be satisfied that, having taken reasonable steps, the person has
been given a reasonable opportunity to understand the consent given.
What amounts to a reasonable opportunity to understand the consent is
likely to differ from customer to customer. For customers to whom English is a
second language understanding the consent may taken longer. It is possible it
may even be more difficult for the licensee to satisfy themselves in such
circumstances that the consent is understood. In contrast, it should be easy
for a licensee to be satisfied that consent is understood by a regular customer,
who is aware of the warning notices, procedures at the solarium, and the risks
involved.
Within this section is a table that sets out the minimum erythemal dose, or
MED, associated with skin photo types 2 to 6. An MED for skin photo
type 1 is not provided as persons of this skin type are prohibited from
using tanning units at a solarium.
As the dictionary in section 10
explains, the MED is the minimum dose of ultraviolet radiation needed to cause
erythema, more commonly known as sunburn. The MED figure in the Table is
measured in Joules per square metre, which is generally expressed as
J/m2. For example, the MED for skin photo type 3 is
300 J/m2.
The condition imposed on tanning unit licensees
by section 15 is that a person must not be exposed to greater than 0.9 of
the MED for their skin photo type on any single occasion. As the MED is the
amount at which sunburn will result, the maximum exposure permissible is set
below that figure, being 0.9 of the MED.
The objective of this section is to prevent a person from being exposed to
ultraviolet radiation from tanning units more than once in a 48 hour
period.
Subsection 1 makes it a condition on a tanning unit
licence that the licensee not even operate a tanning unit unless there are
procedures in place at a solarium to prevent this from occurring. Furthermore,
those procedures must also be implemented and followed.
Precisely what is
included in the procedures at a solarium is a matter for a solarium
licence-holder, but will be guided by the national standard on solaria for
cosmetic purposes in Australia and New Zealand; AS/NZS 2635:2008. At the very
least there needs to be a mechanism that prevents a customer from making
appointments for a tanning session at the solarium on consecutive days. A
signed declaration from the customer may also be appropriate.
The
condition on a tanning unit licence in the following subsection goes further
again. It obligates a licensee to ensure a person does not receive exposure to
ultraviolet radiation from a tanning unit if the licensee knows, or ought
reasonably to know, that the person has had such exposure within the preceding
48 hours.
Extending the obligation beyond actual knowledge to what
the licensee ought to know is deliberate. It is ensures the licensee cannot
circumvent the obligation through laziness, incompetence or ignorance, wilful or
otherwise. The circumstances in which a licensee ought reasonably to know a
person has been exposed to ultraviolet radiation from a tanning unit within the
last 48 hours will be varied, and will differ on a case by case basis.
Certainly, the solarium’s own appointment register and consent forms
collected would inform the licensee. Certain statements or declarations from
the customer could also contribute to what the licensee ought to know.
The condition imposed on tanning unit licences by this section is for the
licensee to ensure that a person who is exposed to ultraviolet radiation from a
tanning unit is wearing protective eyewear. The protective eyewear must comply
with the requirements detailed in clause 3.2 of AS/NZS 2635.
AS/NZS
2635 is the national standard on solaria for cosmetic purposes in Australia and
New Zealand; AS/NZS 2635:2008.
Clause 3.2 of AS/NZS 2635 imposes a
number of technical requirements for protective eyewear. The protective eyewear
must form a tight seal against the skin surrounding the eyes, thereby ensuring
the eyes are protected from exposure to light from all directions. Furthermore,
the protective eyewear must have be able to be secured over the eyes in a way
that is effective for use in horizontal, bed-style units, as well as vertical,
booth-style units.
It is important for licence-holders to recognise that
this licence condition requires the licence-holder to ensure that all
persons exposed to ultraviolet radiation from a tanning unit are wearing
protective eyewear. Who might be exposed can extend beyond the customer
actually within the tanning unit to persons in the immediate vicinity of the
tanning unit. In many instances this will also include the licence-holder
themselves.
Accordingly, if the holder of a tanning unit licence is not
wearing protective eyewear when necessary this could constitute a contravention
of this licence condition, and possibly even amount to a breach of the Work
Safety legislation.
This provision makes it a condition on tanning unit licences to ensure that
only one person is exposed to ultraviolet radiation from a tanning unit at any
one time. Despite the heading to this section, this condition is more than just
ensuring two people are not in the same tanning unit at the same time.
Although there may be many different makes and models of tanning units,
tanning units are generally either a horizontal, bed-style unit, or vertical,
booth-style unit. Whatever their form, tanning units emit radiation in the form
of UV light. As such, persons who are not in the unit, but are positioned very
close to it could be exposed. It is for this reason that the licence condition
requires the licensee to ensure that only one person, the customer in the unit,
is exposed to ultraviolet radiation from the unit. It would not be permissible,
for this reason, for a person to sit in a chair or stand next to an operating
tanning unit.
It is important for the holder of tanning unit licence to
remember that the obligation to ensure no one is exposed, other than the client
in the unit, includes the licensee themself, and any other person working in the
solarium. Carrying on other work tasks next to an operating tanning unit will
not only amount to a contravention of this licence condition, but it is likely
to amount to a breach of the Work Safety legislation.
Section 19(a) of the Radiation Protection Act 2006 empowers
the Regulation to prescribe licence conditions. This section establishes that
the conditions contained in Division 4.3 are prescribed for licences that
authorise the possession of a tanning unit to be used in a solarium. The
possession can be either as the owner or as the lessee of the tanning unit. For
the purposes of the Regulation, such licences are referred to as solarium
licences.
The section also clarifies who must hold a solarium licence in
circumstances where a tanning unit is leased by the owner of the tanning unit to
the operator of a solarium, for use in that solarium. In such circumstances the
owner of the tanning unit is not, for the purposes of Division 4.3 ,
taken to possess the tanning unit. Accordingly, it will only be the
operator of the solarium who will be considered to be in possession of the
tanning unit, and who will therefore require a solarium licence.
The condition imposed on solarium licences by this section is for the
licensee to ensure that warning notices are displayed at the solarium. The
condition requires that the warning notices and their display comply with the
requirements detailed in clause 3.6.1 of AS/NZS 2635.
AS/NZS 2635 is
the national standard on solaria for cosmetic purposes in Australia and New
Zealand; AS/NZS 2635:2008.
Clause 3.6.1 of AS/NZS 2635 dictates that
warning notices be at a minimum A4 paper size, which equates to dimensions of
21 cm by 30 cm. It also requires that the information in the warning
notice is in legible print, using the Arial font. The text of the warning
notice must not be less than 32 point font, with the heading of the notice
not less than 36 point font.
As a specific font and font size is
dictated, the implication is that handwritten notices are not acceptable. The
requirement that the notice be in “legible print” ensures that font
and paper colour choice is appropriate and effective. Yellow font on white
paper will not comply. A dark font on a dark coloured paper is also unlikely to
comply. Licensee’s should also be mindful that lighting can impact on the
legibility of the print on a warning notice. A warning notice positioned in a
location of a tanning unit cubicle that receives little or no light will not
comply. Conversely, if glare from lighting on a warning notice makes it
difficult or impossible to read, it will not comply. This could arise if the
warning notice is laminated or framed.
Clause 3.6.1 of AS/NZS 2635
also directs where warning notices must be displayed. A warning notice must be
displayed in the entry and/or reception of the solarium, as well as in each
tanning unit cubicle. The positioning of the warning notice in those locations
must be within the immediate view of the client. Accordingly, warning notices
need to be at eye level, and unobscured.
A solarium licensee is required, under this provision, to ensure every client
of the solarium is directly supervised during any period when the client is
using a tanning unit. The supervision of the client can only be performed by
the holder of a tanning unit licence.
How the solarium licensee ensures
the direct supervision of clients using a tanning unit will be a matter for the
licensee. Other sections in Part 4 will apply, however, so that at a
minimum a solarium licensee will need to have developed procedures, and those
procedures must be both implemented and followed. In order for a solarium
licensee to be satisfied that procedures are followed it may be necessary to
test the procedures, or conduct regular refresher training. Furthermore, the
solarium licensee may need to periodically review and update the procedures,
especially if it is found that mistakes have been made, or contraventions of
Part 4 have occurred.
The section further details what the
supervision must involve. The client must be directly supervised by a tanning
unit licensee. This means the licensee cannot delegate the supervision to a
person that is not a tanning unit licensee, nor can the supervision be via a
third person. The section also expressly imposes the requirement that the
licensee be physically on the premises. As such, supervision by way of video or
internet connection is unacceptable.
This recognises that the
pre-exposure requirements, such as the skin photo type assessment, cannot be
adequately performed unless the licensee is physically in the same location as
the client. Furthermore, the ability of the licensee to ensure that the
exposure session is terminated at the appropriate time would also be compromised
if the licensee were not physically present.
A number of important conditions are imposed on a solarium licensee by this
section.
Timing devices must be installed on each tanning unit.
Furthermore, the timing devices must be able to be set to automatically switch
off the unit when the maximum amount of exposure to ultraviolet radiation
determined for the client’s skin photo type is reached.
However,
a solarium licensee must also ensure that the timing device on the tanning unit
cannot be interfered with or operated by the client. Tanning units must not be
able to be operated by a client of the solarium, other than to suspend or end a
tanning session. This is an important condition. The assessment of skin photo
types, and the associated limitations on ultraviolet radiation exposure in any
given tanning session, would be pointless if a client of the solarium were able
to extend the length of their exposure, or its intensity.
A client of
the solarium should be able, however, to end a tanning session early, for any
reason. It is also appropriate for a client to be able to suspend a tanning
session, provided that the suspension of the session cannot result in the
overall duration of exposure to ultraviolet radiation being extended, or the
intensity of the exposure increased. The solarium licensee must also ensure
that the means by which a client can stop or suspend the session is within the
client’s reach.
Further requirements are that the operator of a
tanning unit has the ability to remotely terminate a tanning session, and that
ultraviolet radiation emitted by a tanning unit is restricted to the area
normally occupied by a client using the tanning unit.
Tanning units are
generally either a horizontal, bed-style unit, or vertical, booth-style unit.
For vertical, booth-style units, solarium licensees must ensure that at least
one mechanism is provided to support the person in that position. This is an
important safety requirement aimed at ensuring the client has a means of
preventing themselves from falling or collapsing.
By virtue of this section, it is a condition on a solarium licence that
certain records be kept, or caused to be kept, and also retained for a period of
two years from the date of the record.
Copies of all skin
assessments must be kept, as must copies of any certificates from a medical
professional. Keeping copies of all written consent forms is also mandated by
this licence condition.
It is also mandatory for records of every tanning
session conducted at the solarium to be kept, which must reflect the date of the
tanning session, the name of the client, the duration of the session, and a
description of the tanning unit. The description of the tanning unit must also
include the model number or serial number of the unit.
The keeping of
these records enables audits of these documents, the production of which is
required by other sections within Part 4, and comparisons made.
Inconsistencies and discrepancies could indicate that breaches of other licence
conditions have taken place. For example, a consent form without a
corresponding skin assessment or medical certificate may indicate a customer was
allowed to receive ultraviolet radiation exposure without their skin photo type
having been assessed. Similarly, a record of a tanning session for which there
is not a corresponding consent form may indicate consent was not properly
obtained, if obtained at all.
The training of persons employed as
operators of tanning units is a core licence condition for a solarium licensee.
This section builds on that requirement by requiring that records be kept of all
training providing, thereby providing proof that this key licence condition has
been fulfilled.
Ensuring skin types are assessed, consent is obtained,
and exposure is limited are vital to protecting clients from the health risks
associated with tanning units. However, these important measures can be
seriously undermined if tanning units are not serviced and maintained. For this
reason, section 24 also requires that records of maintenance and service of
tanning units be kept.
Whenever a tanning unit is sold a record also
needs to be kept. Similarly, a record must be kept if a tanning unit is
transferred. The transfer of a tanning unit will include the return of a leased
tanning unit to the lessor that owns the unit, just as it would include the
transfer of the unit to another solarium. The record to be kept must reflect
the date of sale or transfer, and the name and address of the person to whom it
was sold or transferred. As this record concerns the sale or transfer of a
tanning unit, it is implied that accurate information about the tanning unit
also be kept as part of the record. This should include the model number, and
even the serial number of the unit.
It is permissible for records to be
kept in an electronic format. This may include database entries, electronic
diaries, or scanned copies of original records.
Pursuant to this provision, it is a condition on all solarium licences that a
copy of the Radiation Protection Regulation 2007, as well as AS/NZS
2635:2008, can be accessed by persons working at the licensee’s premises.
The documents can be made available to access by physically keeping hard copies
at the licensee’s solarium. The provision also expressly permits the
documents to be accessible electronically. This could be achieved by saving an
electronic version of the documents to a computer hard drive, CD, disc or USB
“thumb drive”. It would also be permissible for a weblink to be
saved to a computer that connects directly to a website or webpage at which the
documents can be accessed.
Irrespective of which method, or methods, that
the licensee elects to use to make the documents accessible to staff, the
licensee needs to ensure that the most recent republication or edition is what
is being accessed. Both the Radiation Protection Regulation 2007 and the
AS/NZS 2635:2008 can be modified and updated from time to time. In many
instances the effect of the amendments will be minor. However, on occasion the
changes could be significant, such that following an older version could mean
best practice is not being adhered to, or possibly even the legislation is being
contravened.
AS/NZS 2635:2008 is the national standard on solaria for
cosmetic purposes in Australia and New Zealand, as defined in
section 10.
This provision contains an offence that prohibits the operator of a solarium
from making a claim or representation that the use of a tanning unit will result
in any non-cosmetic health benefit. The operator of a solarium is also
prohibited from making a claim or representation that the use of a tanning unit
is free from risk to health. Such claims and representations are prohibited as
they either cannot be medically supported, or are simply false and misleading.
Strict liability applies to the offence in section 26. Strict
liability is usually employed where it is necessary to ensure the integrity of a
regulatory scheme, such as those relating to public health and safety, the
environment and the protection of the revenue.
Pursuant to Part 4
of the Radiation Protection Regulation 2007, to be inserted by this
Regulation, the operator of a solarium will be dealing with a regulated source
of non-ionising radiation, and will be required to hold a licence. As such, a
solarium operator should reasonably be expected to be aware of their duties and
obligations. For this reason strict liability offences are justifiable as a
solarium operator will be reasonably expected to be aware of the requirements of
the Radiation Protection legislation.
As a strict liability offence,
the mistake of fact defence expressly applies to this offence, as do other
defences in part 2.3 of the Criminal
Code 2002.
The offence in section 26 has a maximum penalty
of 10 penalty units. This is the highest penalty level that
section 122(3) of Radiation Protection Act 2006 permits to be
included in the Regulation.
Section 16 of this Regulation imposes restrictions on the frequency in
which persons can be exposed to ultraviolet radiation from tanning units. The
section aims to ensure a person does not receive exposure to ultraviolet
radiation from a tanning unit within 48 hours of previously receiving
exposure to ultraviolet radiation from a tanning unit.
Under this
provision, it is an offence for the operator of a solarium to make a claim or
representation that would cause a reasonable person to believe that the solarium
provides tanning sessions greater than that permitted under
section 16.
Similarly, claims or representations that a solarium
provides tanning sessions that would expose a client to a greater amount of
ultraviolet radiation than the Radiation Protection Regulation 2007 could
constitute an offence. If it can be proved that a reasonable person would
believe such a claim or representation, the solarium operator will have
committed an offence
Such claims and representations are prohibited as
they are misleading, as honouring the claim or representation would be unlawful
as it would contradict licence conditions imposed by Part 4.
Strict
liability applies to the offence in section 27. Strict liability is
usually employed where it is necessary to ensure the integrity of a regulatory
scheme, such as those relating to public health and safety, the environment and
the protection of the revenue. The control of non-ionising radiation sources
requires offences that are generally at the lower end of the range of criminal
conduct. These offences are contained in Division 4.4.
Pursuant to
Part 4 of the Radiation Protection Regulation 2007, to be inserted by
this Regulation, the operator of a solarium will be dealing with a regulated
source of non-ionising radiation, and will be required to hold a licence. As
such, a solarium operator should reasonably be expected to be aware of their
duties and obligations. For this reason strict liability offences are
justifiable as a solarium operator will be reasonably expected to be aware of
the requirements of the Radiation Protection legislation.
As a strict
liability offence, the mistake of fact defence expressly applies to this
offence, as do other defences in part 2.3 of the Criminal
Code 2002.
The offence in section 27 has a maximum penalty
of 10 penalty units. This is the highest penalty level that
section 122(3) of Radiation Protection Act 2006 permits to be
included in the Regulation.
Clause 8 of this Regulation will insert new sections 10 to 20, and
sections 22 to 26 into the Radiation Protection Regulation 2006, but a
new section 21 is deliberately excluded from clause 8.
Instead, a new section 21 is inserted into the Radiation Protection
Regulation 2007 by this clause. Section 21 imposes a condition on
those who hold a solarium licence to ensure that anyone who works as an operator
of a tanning unit at the solarium has been properly trained. The section
details the topics and fundamentals that the training must address, which
includes the determination of skin types, how to safely use and operate tanning
units, and the requirements of the national standard on solaria for cosmetic
purposes; AS/NZS 2635:2008.
It is recognised that the requirement to
ensure every person at a solarium that will operate tanning units is
appropriately trained will have cost implications for a solarium. It is also
possible that of the new requirements to be imposed on solarium licence-holders,
compliance with this condition could take greater than six months. This
may depend on the availability and cost of training programs, and the number of
staff at a solarium that will require training.
For this reason,
section 21 is not included in clause 8 of this Regulation because
section 79 of the Legislation Act 2001 applies to
clause 8. Section 79 of the Legislation Act 2001 provides
that if a provision has not commenced within six months of the date the
Regulation is notified, the provision automatically commences.
Instead,
section 21 has been included in a separate clause, clause 9, to which
the application of section 79 of the Legislation Act 2001 has
been displaced. As such, the commencement provisions contained in clause 2
of this Regulation instruct that clause 9 will instead automatically
commence one year after the Regulation is notified, unless an earlier date is
fixed by the Minister by written notice.
Essentially, this enables the
obligation of solarium licence-holders, to ensure that anyone who works as an
operator of a tanning unit at the solarium has been properly trained, to be
delayed by as much as a year after this Regulation is notified.
This clause amends the Dictionary in the Radiation Protection Regulation 2007 to insert new definitions relating to solaria and tanning units. With the exception of the definition of a tanning unit, all the definitions are actually contained in Part 4.