Radiation Protection and Control Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

The ACTING SPEAKER (Mr Pederick): There are seven amendments to the Radiation Protection and Control Bill from the Legislative Council. Can the opposition indicate whether they want to deal with the amendments individually?

Dr CLOSE: I believe that the government and the opposition have an agreed position on the amendments made by the Legislative Council, so I am happy for the minister to take the lead.

The Hon. D.J. SPEIRS: Firstly, I would like to thank the Legislative Council for its due consideration of the bill. For a bill with the word 'radiation' in its title, it will come as no surprise that all nine amendments moved in the other place came from the South Australian Greens. Of the nine amendments proposed in the other house, of which seven were passed, the government was happy to support the passage of four of them. This was following productive negotiations to ensure that they were functional and did not hinder the excellent work of the EPA in regulating radiation use and radiation management across South Australia.

The amendments that were supported by the government in the other place and agreed with are: amendment No. 1 at clause 12; amendment No. 5 at clause 77; amendment No. 6 at clause 77; and amendment No. 7 at clause 78. I can also advise that, upon further consideration and discussions with colleagues, stakeholders and the opposition, the government has amended its position on two of the other amendments.

The government will agree to amendment No. 2 at clause 28, which removes the ability for the clause to be repealed by proclamation, and amendment No. 4 at clause 65, which allows the court to consider whether an applicant is furthering a wider group of interests or the public interest, or whether the proceedings raise significant issues relating to the administration of this act when determining orders for security for costs, undertakings as to damages, and compensation.

The government remains strongly opposed to amendment No. 3 at clause 49, which would allow the EPA to set regulatory obligations on the mining and mineral processing industry contrary to national and international standards. I am hopeful that the opposition will consider the government's strong views on the amendment and consider their position today.

Amendments Nos 1 and 2:

The Hon. D.J. SPEIRS: I move:

That the Legislative Council's amendments Nos 1 and 2 be agreed to.

Amendment No. 1 requires the Radiation Protection Committee to publish the minutes of its meetings on a website, determined by the minister, that is accessible by the public free of charge. The government agrees to this amendment.

Upon further consideration and discussions with colleagues and stakeholders, the government has amended its position on amendment No. 2 at clause 28 that removes the ability for the clause that prohibits enrichment of uranium in South Australia to be repealed by proclamation, and we agree to the amendment. It is noted that the provision being removed by this amendment has been in place since the inception of the 1982 act that the bill will replace, and has not been an issue to date.

Further, this government considers that, although made out to be much more, the amendment is a matter of style rather than substance, which I will briefly explain. The prohibition of enrichment or conversion of uranium is also prohibited by commonwealth law under clause 10 of the commonwealth Australian Radiation Protection and Nuclear Safety Act 1998. If commonwealth law were changed to allow for enrichment or conversion of uranium, it would be highly unusual if those laws would allow state laws to continue to apply. The National Radioactive Waste Management Facility is a case in point.

Further, section 109 of the Australian Constitution provides that when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid. The commencement of enrichment or conversion of uranium in Australia would be a national issue and decision, and the South Australian ban on enrichment would be redundant if that were to occur, for the reasons given. How we remove a redundant provision from statute is of no consequence to the general purpose of this bill, and hence the government will agree to amendment No. 2.

Motion carried.

Amendment No. 3:

The Hon. D.J. SPEIRS: I move:

That the Legislative Council's amendment No. 3 be disagreed to.

This amendment is largely reflective of the ideology of the Australian Greens, and it is their prerogative to move such amendments, as it is the government's and other parties' prerogative to inquire into and consider them. The government has considered the amendment further following its passage in the other place, and is still of the view that it is deficient and cannot be supported.

Amendment No. 3 allows the EPA to set regulatory obligations on the mining and mineral processing industry contrary to national and international standards that are based on internationally recognised best available science, recognised by the United Nations no less. In 2004, the then Labor South Australian government agreed, through the Australian Health Ministers Conference, to implement the National Directory for Radiation Protection, which establishes a nationally agreed and uniform approach to radiation protection and safety.

The adoption of national standards and codes of practice is a key part of national uniformity and radiation protection and will reflect the best available international science. I was surprised that this amendment passed the other place, given that it goes against a major commitment this state has made for national uniformity in radiation protection, provides for an uneven playing field in the mining sector, creates regulatory uncertainty for business and is contrary to international scientific knowledge.

The amended provision will not apply to Olympic Dam due to the Roxby Downs indenture, so for BHP the international standards will remain in place. I believe, from the second reading in the other place, that the intention of Mr Parnell's amendment was that it does apply to Olympic Dam, so this still does not achieve that objective.

Instead, it would create an uneven playing field in the mining industry, allowing the EPA to set different rules for each of the other mining companies licensed under the legislation, such as Heathgate, Boss Resources, Murray Zircon, Iluka and OZ Minerals, without any scientific basis or any certainty for business as to what those limits might be.

The EPA would unilaterally apply whatever limits it likes that are more stringent than international standards. This parliament should not be applying legislative schemes that create unnecessary and unwarranted uncertainty for business. However, in reality, I am advised that the EPA would simply not apply limits contrary to international best available science. Why? Because this amendment makes no sense.

The occupational standards that we are talking about are applied equally across all industries where there is occupational exposure to radiation. Radiation does not act differently on people in different mines or different occupations. These are standardised dose limits applicable across the spectrum of occupations exposed to radiation based on best available science on the potential for impacts of radiation on the human body.

The fact that the EPA have indicated that they would not apply stricter controls is unfortunately no remedy for the uncertainty for business that this amendment creates because it could be used, hence the residual uncertainty that may impact investment decisions. It is for these reasons that the government strongly opposes this amendment.

Dr CLOSE: The opposition will not continue to support this amendment and is therefore voting with the government in this chamber and in the other. I would just comment that I think often the term 'ideological' is used pejoratively and that this is an ideological perspective from the Greens. The Greens can speak for themselves, but the initial support that came from the Labor Party for this amendment was essentially based on an argument that South Australia ought to be able to set its own standards for the protection of workers. The piece of legislation that arrived at the Legislative Council indicated that those standards could not be below international or national standards and the proposition was that they could, in fact, be above.

That was, on first glance, appealing to the idea that South Australia ought to be able to have additional protections for its workers should it choose to. However, there is also a persuasive argument about the need for business to have certainty. A business that is operating in South Australia ought to know what the standards are that are being expected of it and that they ought to be consistent with at least national standards, rather than being a specialised standard in South Australia alone. That counterargument was taken seriously by Labor and has been accepted; therefore, we will be voting with the government in this chamber.

The Hon. S.J.R. PATTERSON: I would like to commend the minister for his opposition to this clause and I am thankful that the opposition has also agreed because, as the minister said, in 2004 national commitments were made at the Australian Health Ministers' Conference to implement uniform national frameworks.

Of course, as the minister said, radiation does not change from jurisdiction to jurisdiction. A lot of science has gone into it in terms of exposure limits. It should be noted that this says no more or no less, so it is not like we are going to lower them either in this legislation. It is important otherwise it introduces a lot of uncertainty into investment and, as the Minister for Trade and Investment, I know it is important that we have certainty so that we can have businesses investing here, especially in mining. It is very important for our exports and our economy here as well.

To touch on some of the unintended consequences by having our standards different to the national ones, even from a health perspective, with some of our X-ray equipment, it just incorporates additional costs. For example, some of our hospitals had to have concrete walls a lot thicker than they would otherwise have to be because our standards were out of line with what is best practice in the world, but then that causes costs in the build and infrastructure that are unnecessary. I am glad the opposition is supporting this government's opposition to this amendment.

Motion carried.

Amendments Nos 4 to 7:

The Hon. D.J. SPEIRS: I move:

That the Legislative Council's amendments Nos 4 to 7 be agreed to.

These amendments relate to considerations of the court in making orders for various securities, public register requirements and the requirement to public documents that form the national directory on a website. The government supported amendments Nos 5, 6 and 7 in the other place and has reconsidered its position on amendment No. 4. Amendment No. 4 relates to third-party enforcement of the act.

The bill allows the court to determine not to order legal costs against an unsuccessful third-party applicant provided they not stand to gain personally by the action (i.e., it was a public interest case) or the case raised important issues in relation to the administration of the act. Amendment No. 4 seeks to extend these criteria to applications for security for costs, undertakings as to damages and for compensation.

The current drafting of the clause aligns with a similar provision in the Environment Protection Act 1993. While the government still has some queries as to how such decisions can be made for matters of security before a case is duly presented, the government acknowledges that the court will not apply such protections without full and proper consideration. The government agrees with amendments Nos 4 through to 7.

Motion carried.