EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2008 No. 234

 

Australian Radiation Protection and Nuclear Safety Act 1998

 

Australian Radiation Protection and Nuclear Safety Amendment Regulations 2008 (No. 1)

 

Subsection 85(1) of the Australian Radiation Protection and Nuclear Safety Act 1998 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Regulations amend the Australian Radiation Protection and Nuclear Safety Regulations 1999 (the Principal Regulations) to update a number of references to Australian and international codes of practice and standards for handling radioactive material. The Regulations also update references to State and Territory legislation which are excluded from operation under the Act.

 

The Act establishes a framework for regulating activities including radiation and defines the following terms:

‘Controlled apparatus’ being any of the following:

-          an apparatus that produces ionizing radiation when energised or that would, if assembled or repaired, be capable of producing ionizing radiation when energised;

-          an apparatus that produces ionizing radiation because it contains radioactive material;

-          an apparatus prescribed by the regulations that produces harmful non-ionizing radiation when energised.

‘Controlled facility’ means:

-          a nuclear installation; or

-          a prescribed radiation facility. (A ‘prescribed radiation facility’ is defined in the Regulations and includes certain particle accelerators, irradiators and facilities (other than a nuclear installation) used for the production, processing, use, storage, management or disposal of sealed and unsealed radioactive sources).

‘Controlled material’ means:

- any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously.

‘Controlled person’ means any of the following:

-          a Commonwealth entity,

-          a Commonwealth contractor,

-          a person in the capacity of an employee of a Commonwealth contractor

-          a person in a prescribed Commonwealth place.

 

Section 14 of the Act establishes the position of the CEO of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and requires the CEO of ARPANSA to take into account the matters (if any) specified in the Principal Regulations and also international best practice in radiation protection and nuclear safety before issuing a licence to a controlled person to deal with a controlled apparatus or controlled material or to undertake certain activities in relation to a controlled facility.

 

Subsection 85(2) of the Act provides in part that the regulations may require specific standards to be observed, practices to be followed and measures to be taken by controlled persons in relation to activities relating to controlled facilities and in relation to dealings with controlled apparatus or controlled material.

 

The Principal Regulations contain references to Australian and international codes of practice and standards that provide for the safe handling of, dealing with or operation of controlled material, controlled apparatus and prescribed radiation facilities. However, many of these references are out of date as the codes of practice or standards have, since 1998, been reviewed and republished as newer editions. There is therefore a need to update the references in the Principal Regulations.

 

Section 83 of the Act provides that if a law of a State or Territory is prescribed by the regulations, that law does not apply in relation to an activity of a controlled person in relation to a controlled apparatus, controlled material or controlled facility. The laws currently prescribed by the Principal Regulations include legislation that has been reviewed and replaced by the respective jurisdictions. The references to this legislation need to be updated in the Principal Regulations to reflect those changes.

 

The Regulations also prescribe a new code called the Code of Practice for the Security of Radioactive Sources as a general condition of licence. ARPANSA published this code in 2007 following agreement by all jurisdictions. It specifies a national set of physical and procedural security requirements, including identity and security background checks that must be put in place by persons dealing with sealed radioactive sources to decrease the likelihood of unauthorised access to, or acquisition of, any sealed radioactive source by terrorists or persons with malicious intent. The Council of Australian Governments (COAG) has recommended that this Code be implemented by all jurisdictions on an expedited basis.

 

In addition, the Regulations also correct a number typographical errors.

 

Details of the Regulations are in the Attachment.

 

The standards, codes of practice and recommendations included as new or updated references through the Regulations were published after the requisite Council of Australian Government (COAG) consultative processes, including, where applicable, a regulatory impact assessment process to the satisfaction of the Office of Best Practice Regulation (or its predecessor, the Office of Regulation Review). This included public consultation for a minimum of one month on the drafts of each publication along with a regulation impact statement (RIS). Publications that did not require a RIS were also released for a period of public comment.

 

The Act does not specify any condition that needs to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

ATTACHMENT

 

 

Details of the Australian Radiation Protection and Nuclear Safety Amendment Regulations 2008 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations are the Australian Radiation Protection and Nuclear Safety Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Australian Radiation Protection and Nuclear Safety Regulations 1999

 

This regulation provides that the Australian Radiation Protection and Nuclear Safety Regulations 1999 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Subparagraphs 4(2)(a)(viii) and (ix)

 

Regulation 4 of the Principal Regulations provides for the kinds of apparatus that are controlled apparatus. Subparagraphs 4(2)(a)(viii) and (ix) specify which laser products and optical fibre communications systems are controlled apparatus, and this is done in relation to emission and hazard levels respectively that are specified in two Australian/New Zealand Standards. This item replaces the existing references to Australian/New Zealand Standards that were published in 1997 to the updated Australian/New Zealand Standards that were published in 2004 and 2006 respectively.

 

Item [2] – Regulation 36

 

Subregulation 36(1) provides for certain notification requirements to be met in respect of the amendment of three specific codes of practice listed in subregulation 36(2). This item removes regulation 36 as the two codes referred to in paragraphs 36(2)(a) and (b), namely, the Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores and the Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores have been reviewed and republished as a single code, namely, the Code of Practice and Safety Guide for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (2005) (Radiation Protection Series No. 9), which are inserted by item [9]. The remaining code referred to in paragraph 36(2)(c), namely, the Code of Practice for the Safe Transport of Radioactive Substances, is not in use anymore.

 

Item [3] – Paragraph 38(3)(b)

 

The reference in paragraph 38(3)(b) to regulation ‘55 or 58’ is an error. This item corrects that error by amending the references to regulation ‘59 or 60’.

 

Item [4] – Regulation 47

 

Regulation 47 requires the holder of a source or facility licence to comply with the National Standard for Limiting Occupational Exposure to Ionizing Radiation in respect of any conduct or dealing with controlled materials, controlled apparatus and controlled facilities. The requirement to comply with this Standard (under item [5] below) is included under regulation 48. This item removes regulation 47 to avoid repetition.

 

Item [5] – Paragraphs 48(2)(a) and (b)

 

Subregulation 48(2) requires the holder of a source or facility licence to comply with certain recommendations and codes of practice as a general condition of the licence in respect of any conduct or dealing with controlled material, controlled apparatus and controlled facilities. This item updates the subregulation to include the Code of Practice for the Security of Radioactive Sources (2007) (Radiation Protection Series No. 11) and the National Standard for Limiting Occupational Exposure to Ionizing Radiation and also amend the reference to the Code of Practice for the Safe Transport of Radioactive Material to the 2008 edition of the Code.

 

Item [6] – Paragraph 48(3)(c)

 

Subregulation 48(3) requires the holder of a source or facility licence to comply with certain recommendations and codes of practice as a general condition of the licence in respect of any conduct or dealing with the disposal of controlled material, controlled apparatus and controlled facilities. This item updates the subregulation to include the Code of Practice for the Security of Radioactive Sources (2007) (Radiation Protection Series No. 11) and amend the reference to the Code of Practice for the Safe Transport of Radioactive Material to the 2008 edition of the Code.

 

Item [7] – Subregulation 58(5)

 

Subregulation 58(5) requires the holder of a source or facility licence to optimise radiation protection and safety in accordance with the Recommendations for limiting exposure to ionising radiation. This item includes a reference to the National Standard for Limiting Occupational Exposure to Ionizing Radiation. The Recommendations and the National Standard are complementary documents and are part of the same document that was republished in 2002 as ARPANSA’s Radiation Protection Series No. 1.

 

Item [8] – Regulation 59, note

 

Regulation 59 provides for effective dose limits for occupational and public exposure. The note to regulation 59 refers holders of source or facility licences to the National Standard for Limiting Occupational Exposure to Ionizing Radiation in respect of their obligations to female employees who are pregnant. This item removes the phrase, ‘which is a prescribed standard for regulation 62’ as the phrase is not necessary for the note.

 

Item [9] – Paragraphs 62A(2)(a), (b) and (c)

 

Regulation 62A requires all controlled persons to comply with the codes of practice listed in subregulation 62A(2). This item updates the subregulation to include the Code of Practice for the Security of Radioactive Sources (2007) (Radiation Protection Series No. 11) and update the existing references to the three codes of practice to more recent versions. The Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores and the Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores have been republished as the Code of Practice and Safety Guide for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (2005) (Radiation Protection Series No. 9) and a new edition of the Code of Practice for the Safe Transport of Radioactive Material was published in 2008.

 

Item [10] – Regulation 66, note

 

The note to regulation 66 includes a reference to an outdated Internet website for Commonwealth legislation. This item updates the reference with the current web address, namely, http://www.comlaw.gov.au.

 

Item [11] – Schedule 1, items 3 and 4

 

Schedule 1, item 3 provides the relevant Australian standard for maximum exposure levels for non-ionising radiation from radiofrequency fields between 3kHz and 300GHz. This standard has since been republished as ARPANSA’s Radiation Protection Series No. 3. This item amends Schedule 1, Item 3 with the updated reference to the standard.

 

Schedule 1, item 4 provides the relevant Australian/New Zealand (AS/NZS) standard for maximum permissible exposure limits for non-ionising radiation from laser products. This standard has since been revised and republished. This item amends Schedule 1, Item 4 with the updated reference to the standard.

 

Item [12] – Schedule 1, item 6

 

Schedule 1, item 6 provides the relevant Australian standard for exposure limits for non-ionising radiation from occupational exposure to ultraviolet radiation. This standard has since been republished as ARPANSA’s Radiation Protection Series No. 12. This item amends Schedule 1, Item 6 with the updated reference to the standard.

 

Item [13] – Schedule 2, Part 1, item 4, paragraph (c)

 

Schedule 2, Part 1 provides for exempt dealings, which are dealings exempted from the requirements of the Act and the Principal Regulations. Item 4 exempts a dealing with depleted uranium provided certain conditions in paragraphs (a), (b) and (c) are met. Paragraph (c) requires the depleted uranium to be in a container for controlled materials that complies with the requirements of the Code of Practice for the Safe Transport of Radioactive Material. This item amends the reference to the Code of Practice for the Safe Transport of Radioactive Material to the 2008 edition of the Code.

 

Item [14] – Schedule 2, Part 1, item 6

 

Schedule 2, Part 1 provides for exempt dealings. Item 6 exempts “dealing with” a smoke detector provided the smoke detector is designed and made in accordance with Australian Standard AS3786 as in force when the Principal Regulations commenced. This item amends the reference to the Australian Standard to the most recent version incorporating all amendments to-date.

 

Item [15] – Schedule 3C, Part 1, items 23 and 24

 

Schedule 3C categorises the different kinds of controlled apparatus and controlled material for purposes of licence application fees. Items 23 and 24 describe laser products and optical fibre communication systems in relation to two Australian/New Zealand Standards that were published in 1997. This item replaces those references to updated Standards that were published in 2004 and 2006 respectively.

 

Item [16] – Schedule 6, item 2

 

Schedule 6 prescribes the State and Territory laws that do not apply to controlled persons or the controlled material, apparatus or facilities regulated by ARPANSA. The existing item 2 of Schedule 6 has been replaced in Victoria with the Radiation Act 2005 (Vic). This item amends Schedule 6, item 2 to provide the new title of the legislation.

 

Item [17] – Schedule 6, items 6 and 7

 

Schedule 6 prescribes the State and Territory laws that do not apply to controlled persons or the controlled material, apparatus or facilities regulated by ARPANSA. The existing items 6 and 7 of Schedule 6 have been replaced in Tasmania and the ACT with the Radiation Protection Act 2005 (Tas) and the Radiation Protection Act 2006 (ACT) respectively. This item amends Schedule 6, items 6 and 7 to provide the new titles of the legislation.

 

Item [18] – Dictionary, definition of absorbed dose, note

 

The note to the dictionary definition of ‘absorbed dose’ refers to Annex B to the Recommendations for Limiting Exposure to Ionizing Radiation (1995) (Guidance Note [NOHSC:3022(1995)]). This item replaces the reference to the Recommendations with a shorter version of the title of the Recommendations in order to be consistent with the other references to the Recommendations in the rest of the Principal Regulations.

 

Item [19] – Dictionary, after definition of CEO

 

References in the Principal Regulations to the Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores and the Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores have been changed to the new publication, Code of Practice and Safety Guide for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (2005) (Radiation Protection Series No. 9). This item inserts a definition of the new publication.

 

Item [20] – Dictionary, definitions of Code of Practice for the Safe Transport of Radioactive Material and Code of Practice for the Safe Transport of Radioactive Substances

 

All references in the Principal Regulations to the Code of Practice for the Safe Transport of Radioactive Material have been replaced with the recent 2008 edition of the Code. All references to the Code of Practice for the Safe Transport of Radioactive Substances have been deleted as this Code has expired and is not in use any more. The Code of Practice for the Security of Radioactive Sources (2007) (Radiation Protection Series No. 11) has been included in the Principal Regulations through this amending regulation. This item replaces the dictionary definitions of the Code of Practice for the Safe Transport of Radioactive Material and the Code of Practice for the Safe Transport of Radioactive Substances with the definition of the 2008 edition of the Code of Practice for the Safe Transport of Radioactive Material and the definition of the Code of Practice for the Security of Radioactive Sources (2007) (Radiation Protection Series No. 11) respectively.

 

Item [21] – Dictionary, definitions of Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores and Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores

 

References in the Principal Regulations to the Code of Practice on the Management of Radioactive Wastes from the Mining and Milling of Radioactive Ores and the Code of Practice on Radiation Protection in the Mining and Milling of Radioactive Ores have been changed to the new publication, Code of Practice and Safety Guide for Radiation Protection and Radioactive Waste Management in Mining and Mineral Processing (2005) (Radiation Protection Series No. 9). This item deletes the existing definitions of the previous two codes.

 

Item [22] – Dictionary, definition of committed effective doses, note

 

The note to the dictionary definition of ‘committed effective doses’ refers to Annex B to the Recommendations for Limiting Exposure to Ionizing Radiation (1995) (Guidance Note [NOHSC:3022(1995)]). This item replaces the reference to the Recommendations with a shorter version of the title of the Recommendations in order to be consistent with the other references to the Recommendations in the rest of the Principal Regulations.

 

Item [23] – Dictionary, definition of dose, note

 

The note to the dictionary definition of ‘dose’ refers to Annex B to the Recommendations for Limiting Exposure to Ionizing Radiation (1995) (Guidance Note [NOHSC:3022(1995)]). This item replaces the reference to the Recommendations with a shorter version of the title of the Recommendations in order to be consistent with the other references to the Recommendations in the rest of the Principal Regulations.

 

Item [24] – Dictionary, definition of effective dose, note

 

The note to the dictionary definition of ‘effective dose’ refers to Annex B to the Recommendations for Limiting Exposure to Ionizing Radiation (1995) (Guidance Note [NOHSC:3022(1995)]). This item replaces the reference to the Recommendations with a shorter version of the title of the Recommendations in order to be consistent with the other references to the Recommendations in the rest of the Principal Regulations.

 

Item [25] – Dictionary, definition of equivalent dose, note

 

The note to the dictionary definition of ‘equivalent dose’ refers to Annex B to the Recommendations for Limiting Exposure to Ionizing Radiation (1995) (Guidance Note [NOHSC:3022(1995)]). This item replaces the reference to the Recommendations with a shorter version of the title of the Recommendations in order to be consistent with the other references to the Recommendations in the rest of the Principal Regulations.

Item [26] – Dictionary, definition of National Standard for Limiting Occupational Exposure to Ionizing Radiation

 

The National Standard for Limiting Occupational Exposure to Ionizing Radiation has been republished as part of ARPANSA’s Radiation Protection Series No. 1. This item amends the dictionary definition of the National Standard for Limiting Occupational Exposure to Ionizing Radiation in relation to the full citation for Radiation Protection Series No. 1.

 

Item [27] – Dictionary, definition of Occupational standard for exposure to ultraviolet radiation (1989)

 

References in the Principal Regulations to the Occupational standard for exposure to ultraviolet radiation (1989) have been amended to the Radiation Protection Standard for Occupational Exposure to Ultraviolet Radiation (2006) (Radiation Protection Series No. 12). This item deletes the dictionary definition of the 1989 version of the standard.

 

Item [28] – Dictionary, after definition of Radiation Health Committee

 

References in the Principal Regulations to the Occupational standard for exposure to ultraviolet radiation (1989) have been amended to the Radiation Protection Standard for Occupational Exposure to Ultraviolet Radiation (2006) (Radiation Protection Series No. 12). This item inserts a definition of the new standard.

 

Item [29] – Dictionary, definition of Recommendations for limiting exposure to ionizing radiation

 

The Recommendations for limiting exposure to ionizing radiation has been republished as part of ARPANSA’s Radiation Protection Series No. 1. This item amends the dictionary definition of the Recommendations for limiting exposure to ionizing radiation in relation to the full citation for Radiation Protection Series No. 1.