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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-15 Daily Xml
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Radiation Protection and Control Bill

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: To assist with the speedy resolution of this bill, I had two sets of amendments filed: a set 1 and a set 2. Following some concerns that were raised by the government, I have rewritten two of those amendments. In my set 1, I will not be moving amendments Nos 1 or 5, and in their place I will be moving amendments Nos 1 and 2 in my second set. The first amendment on file according to me—and I hope the Chair's notes are the same—is to clause 12.

The Hon. K.J. MAHER: For the sake of doing this efficiently, I might indicate the opposition's view about the amendments foreshadowed before we get there, to give some clarity. It might be easier to indicate that the opposition will be supporting the majority of the Greens' amendments. With amendment No. 1 and amendment No. 5, as the Hon. Mark Parnell has outlined, being replaced by the second set of amendments, I can indicate that the opposition will be supporting both of the amendments in the second set. In the first set, we will be supporting amendments Nos 2, 3, 4, 6 and 8 and opposing amendments Nos 7 and 9. Just for clarity, I will say a little bit more about some of these amendments when we get there.

The Hon. J.M.A. LENSINK: In relation to the Hon. Mr Parnell's second set, the government is supporting both of those. I understand that his first one in that set, amendment No. 1 [Parnell-2], supersedes amendment No. 1 [Parnell-1] in his first set. I indicate, for the benefit of others, that he is nodding in agreement. His amendment No. 2 [Parnell-2] supersedes, in his first set, amendment No. 5 [Parnell-1]. He is indicating that is also correct. The government is opposing in [Parnell-1] amendments Nos 2, 3 and 4, supporting No. 6, opposing No. 7, supporting No. 8 and opposing No. 9.

Clause passed.

Clauses 2 to 11 passed.

Clause 12.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–2]—

Page 14, after line 7—After subclause (7) insert:

(7a) Subject to subsection (7b), the Committee must publish the minutes of its meetings on a website determined by the Minister that is accessible by the public free of charge.

(7b) The Committee may omit, redact or delete, from minutes published under subsection (7a), any information that would make the minutes an exempt document under the Freedom of Information Act 1991.

This is a very simple amendment that requires the Radiation Protection Committee to publish its minutes. The change that was made to the original version of this amendment is that I have acknowledged that there may well be some parts of those minutes that would be exempt documents under the Freedom of Information Act. This amendment acknowledges that in those circumstances they may be redacted from the minutes. Otherwise, this is an amendment that goes to openness and transparency, and I am pleased that both the major parties are supporting it.

The Hon. J.M.A. LENSINK: I will provide some remarks in relation to this particular clause. As previously advised, the government is supporting this amendment, which seeks to make the minutes of the Radiation Protection Committee, established under the bill, publicly available on a website determined by the minister. The amendment further provides that the committee may omit, redact or delete from the minutes any information that would make the minutes an exempt document under freedom of information laws.

The functions of the Radiation Protection Committee are established in clause 10 of the bill and include advising the minister responsible for the act on various matters, including the formulation of regulations, regulatory codes and standards and technical matters regarding radiation protection and safety relating to human health and the environment. It also may investigate and report on matters relevant to the administration of the act.

A further function is to provide technical advice to the Minister for Health on matters related to the application or use of radiation for medical purposes. The minister may also refer any application to the Radiation Protection Committee for advice. The functions of the committee are such that there is a reasonable expectation that the minutes of its meetings will on occasion contain information that would otherwise be protected or require consultation with affected parties under the Freedom of Information Act 1991.

This includes cabinet documents, such as draft regulations yet to be considered by cabinet; documents affecting law enforcement and public safety, such as investigations of offences and details of security-enhanced radioactive sources; documents affecting personal affairs, such as allegations of improper conduct yet to be established by the judicial process; documents affecting business affairs, such as information of commercial value; and documents affecting the conduct of research, such as consideration of applications for use of radiation in research or updates on research being undertaken.

Given that the minutes of the Radiation Protection Committee will at times contain material that would otherwise be protected under freedom of information laws, it would be inappropriate to disclose the minutes publicly without due consideration of these matters. The Hon. Mark Parnell's original proposed amendment did not consider these issues. I commend the honourable member and the opposition on working with the government towards a more workable proposal through application of a freedom of information lens when disclosing the minutes of the committee.

Amendment carried; clause as amended passed.

Clauses 13 to 27 passed.

Clause 28.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 21, lines 15 to 18 [Clause 28(2) and (3)]—Delete subclauses (2) and (3)

This is a most interesting provision. When I think of the precedent that it creates, it suggests to me that we had better amend this clause because in a whole lot of other areas of law a precedent may be set that we would rue. In a nutshell, clause 28 of the bill provides, 'A person must not carry on an operation for the conversion or enrichment of uranium.' In other words, it is a criminal offence. It is a criminal offence of such significance that the maximum penalty is a $1 million fine for breaching this provision of the act, but then the clause goes on to say that this section will expire 'on a date to be fixed by proclamation'.

In other words, the parliament, after having decided that an offence is so egregious that it will attract a $1 million fine, goes on to say that when the executive government of the day decides that it is no longer an offence, they can effectively just remove it from the statute books. What a remarkable way to handle criminal offences!

My amendment is very straightforward. It basically removes the section of the clause that allows the section to expire on a date to be fixed by proclamation. If my amendment is successful, we revert back to the normal principle, which is that parliament, having decided that something is a criminal defence with a $1 million fine, should also get to decide when it is no longer a criminal offence. It is a really straightforward matter of principle, and I am surprised that it got through as far as it did in the drafting this bill. I would urge members to support my amendment, which provides that any change to the criminal offence and penalty will be a matter for parliament, not for the executive by proclamation.

The Hon. J.M.A. LENSINK: The Hon. Mr Parnell is a very learned colleague, and we often listen to his advice because of his great wisdom and experience, but on this occasion he is referring to a precedent that was set in 1982, so the honourable member doth protest a little much.

The government, as I have previously indicated, is opposing this amendment which removes provisions that allow the section that prohibits enrichment or conversion of uranium to be expired by proclamation. The provisions have been carried over verbatim from the 1982 act in section 27 that the bill will replace and have been in place since the commencement of the 1982 act.

The provisions are in place because 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 was 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.

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. The amendment is intended to ensure that the parliament is responsible for any decision to allow for the enrichment or conversion of uranium in South Australia, but the reality is that any amendment sought through the parliament to remove the section would be for the purpose of removing a redundant provision. The existing identical provisions have not been used in the 38 years they have been in place, so the concern for the inappropriate use is unfounded.

The Hon. K.J. MAHER: As outlined before, I indicate that the opposition will be supporting this amendment.

The Hon. C. BONAROS: I also indicate for the record that we will be supporting this amendment.

The Hon. J.A. DARLEY: I indicate that I will be opposing this amendment.

The committee divided on the amendment:

Ayes 11

Noes 8

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Parnell, M.C. (teller)
Pnevmatikos, I. Scriven, C.M.
NOES
Centofanti, N.J. Darley, J.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
PAIRS
Wortley, R.P. Lucas, R.I.

Amendment thus carried; clause as amended passed.

Clauses 29 to 48 passed.

Clause 49.

The Hon. M.C. PARNELL: I move:

Amendment No 3 [Parnell–1]—

Page 35, lines 30 and 31—Delete 'more stringent than the most stringent of all the limits, or'

In some ways, this amendment is similar in theme to the earlier one, but it deals with a quite remarkable provision in the bill that seeks to hamstring the South Australian parliament in relation to what we might want to do in the future in relation to radiation standards. I will paraphrase, then I will go to the exact words. In a nutshell, what this provision says is that South Australia must never be out of step with international or national standards in relation to exposure to ionising radiation.

In other words, this provision, clause 49 of the bill, effectively says that the South Australian parliament washes its hands of standard-setting unless we are in lock step with other jurisdictions. In other words, do not ever try to be tougher than anyone else. You only have to think for a minute: if we applied that standard to other areas of law, we could never be the first to do anything. We would not have been the first to give women the vote and we would not have had the container deposit scheme. There is no shortage of things where we would not have been first if we had a provision like this in other bits of legislation. The words are:

Despite any other provision of this Act, no limit of exposure to ionising radiation may be fixed by the regulations or a condition of an authorisation imposed under this Act in relation to an operation for mining or mineral processing—

here are the words—

that is more stringent than the most stringent of all the limits, or less stringent than the least stringent of all the limits, for the time being fixed in the codes, standards and recommendations applied, approved or published under the Australian Radiation Protection and Nuclear Safety Act 1998 of the Commonwealth or any other Act or law of the Commonwealth…

In other words, we are promising in legislation that in the future we will never try to impose standards that are tougher than effectively the lowest common denominator. That is effectively what this means.

I understand that the government, and even the opposition and the Greens, accept that there is a lot to be gained from consistency of approach. My feeling is that even if my amendment passes and we reserve for ourselves the right to be tougher, chances are we will not. Chances are that the government of the day will probably go with the flow and adopt the standards that international authorities might have done or that the Australian parliament might have done. That is in all likelihood the way it will go, but it is an entirely different matter for this parliament to be putting into law a provision that says we may never be any different.

I want to reserve the right for this parliament to exercise sovereignty on the part of the people of this state, and if in the future conditions require it, yes, we could be tougher. We could have tougher standards. In all other areas of pollution there are differences, in all other areas of law and regulation there are differences, whether it is the criminal law or the civil law. It is not a uniform, internationally accepted regime. I put that on the record in my second reading contribution. It is contested turf what these radiation levels should be. There is lots of evidence that workers are exposed to unhealthy doses of radiation.

Within the scientific community and the health community there are differences of opinion. If those differences of opinion in the future mean that we protect our workers more, why would we write into legislation: we cannot, we cannot protect our workers anymore because we have agreed never to do anything different from other jurisdictions?

So this is an important amendment. I am very pleased to have the opposition on board. It simply deletes the words 'more stringent than the most stringent of all the limits'. In other words, it does allow us to protect citizens, to protect workers, even if the rest of the world is still languishing in old standards that do not sufficiently protect workers from ionising radiation.

The Hon. J.M.A. LENSINK: I think the honourable member once again demonstrates that he is very adept at his gymnastics in these areas. I think it is somewhat offensive to suggest that somehow the national standards are negligent and that those approaches that exist are not working in the best interests of any who may be exposed to these limits.

The honourable member's amendment would allow for occupation exposure limits for mining and mineral processing operations to be applied through regulations or as conditions of licence that are stricter than national and international standards. It needs to be noted, however, that it would not be applicable to the Olympic Dam mine, as section 8 of the Roxby Downs (Indenture Ratification) Act prohibits stricter controls from being applied to that mine, and neither this bill nor any amendment seeks to amend that act.

So, in essence, this amendment could only apply to other mines where there is exposure to radiation. Given the honourable member's second reading contribution focused almost entirely on Olympic Dam mine, it is a very important point to make that the proposed amendment would have no application to that mine.

More fundamentally, though, the then Labor South Australian government in 2004 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 adopted national standards and codes of practice are a key part of national uniformity in radiation protection and reflect the best available international science.

The EPA supports the use of national and international standards and does not apply conditions of licence as a delegate of the minister contrary to national and international best available science. It should be noted that, although the section where the amendment is sought is limited to mining and mineral processing, the 20-millisievert limit is applied uniformly to all occupational exposure in South Australia. There is no special treatment for mining.

Also, the 20-millisievert limit operates alongside obligations for all operators to optimise protection of workers, keeping doses as low as is reasonably achievable, taking into account economic, social and environmental factors. The 20-millisievert limit is a very conservative upper limit based on potential risk to human health. Second reading contributions indicated BHP Billiton had previously agreed to meet a 10-millisievert limit, but the reality is that BHP are obliged to limit exposure as far as is reasonably achievable. Average exposure at Olympic Dam mine is consistently below five millisieverts per annum.

The Hon. Mark Parnell quotes the European Committee on Radiation Risk (ECRR) in stating that the current radiation standards are deficient and not suited for 2020. The ECRR is an informal committee formed in 1997 following a meeting held by the European Green Party at the European Parliament. ECRR is not a formal scientific advisory committee to the European Commission or to the European Parliament. A visit to their website, which is euradcom.eu, may interest members, but not their old one which, according to their current website, and I quote, 'should be assumed to be in the control of the nuclear/military complex'. This is not a reputable authority on the matter.

The standards that are currently applied in South Australia, and will be continued if the bill passes, are derived from an international, science-based governance framework which I will outline for honourable members. The United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) was established in 1955 by the United Nations. The UNSCEAR is the world's authority on the effects of ionising radiation.

The International Commission on Radiological Protection (ICRP) is an independent, not-for-profit organisation that provides recommendations and guidance on protection against ionising radiation. It has more than 250 globally recognised experts in radiological protection science, policy and practice from more than 30 countries. The ICRP makes recommendations on radiological protection, based on the advice of these international experts and using UNSCAR publications.

The International Atomic Energy Agency (IAEA) was formed by the United Nations in 1957. It published the safety requirements and guidance based on the recommendations of the ICRP. The most recent report of the UNSCAR to the United Nations General Assembly was presented in 2017. The ICRP published its most recent general recommendations in 2007, and more than 40 publications since that date. The IAEA published its most recent standards, including dose limits that are reflected in this bill in 2014.

The recommendations and requirements of these internationally-recognised bodies are reflected in Australia's Radiation Protection Standards and are adopted by South Australia. ARPANSA has updated its code for radiation protection in planned exposure situations, which sets out the requirements in Australia for the protection of occupationally-exposed persons, the public and the environment in planned exposure situations as recently as January 2020, which also maintains the 20 millisievert occupational exposure limit.

The Hon. Mr Parnell is incorrect in saying that national occupational exposure limits are out of date. If South Australia decided to have radiation dose limits that were contrary to international standards, it would be going against the world's authorities on radiation protection and would go against its national commitments to adopt Australia's national radiation standards. Strictly, limits would also have to be applied equally to all occupations, as there is no difference in the occupational limits applied to mining and those applied to other occupations that involve exposure to radiation. The national limit is applied in all circumstances.

The highest individual doses are most often in the medical sector, in nuclear medicine and diagnostic radiology, so the biggest impact of any reduction in an occupational dose limit away from the international standard would be to providers of medical diagnoses and treatment that potentially would limit their ability to diagnose and treat serious illness. Around the world, average natural background ionising radiation is between one and 13 millisieverts, and in some places as high as 100 millisieverts, and there is no evidence in these areas of abnormal incidence of harm.

To reflect on the Hon. Mr Parnell's second reading contribution, he suggests that all radiation is harmful and that he would prefer a dose limit of two millisieverts per year, and that is about the level of background radiation that every South Australian receives every year. The government opposes this silly amendment.

The Hon. M.C. PARNELL: I cannot let that go. Let me put it like this: even if honourable members accepted 90 per cent, or even 95 per cent, of what the minister said in relation to the desirability of letting people overseas determine what is safe for our workers, even if you accept, which I do not, the minister saying that these decades-old standards currently reflect best medical practice—even if you accept all of that—what that suggests to you is that future governments are likely to continue to toe the line, as they have. But that is not what this amendment is about. This amendment is about whether we write into South Australia law a provision that we must never, ever think independently on these things.

So if my amendment passes, and if the minister is correct, then whether it is her government or a subsequent government, chances are, if they agree with her, they will continue to adopt national and international standards, but at least the people of South Australia will know that, if new information came to light—new information that related to health impacts that were not known before—then at least the South Australian parliament has not ruled itself out of the game. A future South Australian government could, through regulations or through licences for mining companies or whatever, impose tougher standards on those licences. They do not remove the right to do that. My point is that you can agree, which I do not, with much of what the minister said and still support this amendment.

The Hon. K.J. MAHER: The opposition will be supporting this amendment. We agree with parts of what both the Hon. Mark Parnell and the government has said. We do not see that the government will necessarily depart from national or international standards; in fact, we think it highly unlikely that will happen, but see it more as an abundance of caution measure, just in case it is needed.

The Hon. J.M.A. LENSINK: I will just repeat that I think that honourable members who have expressed support for this bill are reflecting poorly on the regulators who currently have carriage of these standards in that of course they always take new evidence into account in setting standards. I think the Hon. Mr Parnell has been applying to some fairly undergraduate internet organisations to advance some of his causes. It is disappointing that the Labor Party in government chose this approach and now is supporting, for some reason, the Greens' amendment.

The Hon. C. BONAROS: SA-Best and I, for one, am always very grateful for the very well thought out contributions and material that the Hon. Mark Parnell shares with us in relation to some of the concerns that he has brought to our attention. This is certainly one of those, as was the previous one, and for those reasons we will be supporting this amendment.

The Hon. J.A. DARLEY: For the record, I will not be supporting the amendment.

Ayes 11

Noes 8

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Parnell, M.C. (teller)
Pnevmatikos, I. Scriven, C.M.
NOES
Centofanti, N.J. Darley, J.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
PAIRS
Wortley, R.P. Lucas, R.I.

Clauses 50 to 64 passed.

Clause 65.

The Hon. M.C. PARNELL: I move:

Amendment No 4 [Parnell–1]—

Page 47, lines 17 and 18 [Clause 65(16)]—Delete 'subsection (15), in determining whether to make any order in relation to costs' and substitute 'subsections (12), (13) and (15), in determining whether to make any order under those subsections'

This is a fairly minor but important technical amendment to the civil enforcement provisions in the act. Members would know that, as a former environmental lawyer, this is a subject very close to my heart. I have urged for the inclusion of civil enforcement provisions in all manner of acts relating to the environment or natural resources and, to be fair, those provisions are mostly there.

The ability of citizens to go to court where a government is unable or unwilling to enforce the law—citizens have that right. Civil enforcement exists in the Environment Protection Act for our general pollution laws. As a citizen, you can enforce the law in the development and the planning laws. You can enforce the law on natural resources, now landscapes, and I am pleased that the Radiation Protection and Control Bill also includes the ability for citizens to enforce the law.

There are some significant barriers to people being able to go to the umpire to have a law enforced. Those barriers include the issue of legal costs. The government has gone part of the way to addressing that barrier in this bill. It effectively says that if a person brings a case in the court and they lose—normally costs follow the event, so normally the loser would pay the winner's legal costs.

In cases like this, if the person who has brought the court case is not motivated by private profit or by any selfish desire but is motivated in the public interest, then the bill provides that the court might say, 'Look, you gave it a good shot. We know you were only doing this in the public interest. You weren't out for personal gain. We're not going to order you to pay the other side's costs.' That provision is already in this bill.

The bit that is not in the bill is two other provisions that are barriers to entry to being able to enforce the law. One is called security for costs and the other is undertakings as to damages. In other words, sometimes what can happen is the respondent to a court case can say, 'Look, this plaintiff, this conservation group, we don't think they have a very good case. Unless they can put $50,000 in the court's trust account, you shouldn't even let the case get started.'

Similarly, they can ask for undertakings as to damages and they can ask for compensation up-front. If the community group, for example, cannot afford to find that money and put it into the court's trust account, they do not even get the right to set foot in the door of the court. Basically, the case is effectively thrown out without any arguments being raised.

All my amendments do is provide that when the court is deciding whether to put in place any of these barriers, whether it is security for costs, undertakings for damages or legal costs more generally, then the court should be able to take into account the public interest nature of proceedings and should be able to say, 'Well, we are going to let them have their day in court because it's a public interest case and because we think that's the fair thing to do.'

Like I said, my amendment is fairly minor in many ways. It ensures that people should not have the door slammed in their face unnecessarily. I do understand that people can be worried about vexatious litigants who bring court cases and have no chance of success whatsoever. The courts already have the power to deal with vexatious litigants. That is not necessary here; those powers already exist.

My amendment, as I said, is a minor tweak to a provision that I otherwise support in clause 65, which allows third parties to enforce the law. It is a minor tweak to make sure that unnecessary doors are not slammed in the face of public interest litigants.

The Hon. J.M.A. LENSINK: The honourable member is indeed consistent in that he has throughout his career in this place advocated for third-party enforcement actions in a range of pieces of legislation, as he does in this particular amendment. The bill allows the court to determine not to order legal costs against an unsuccessful third-party applicant provided they did not stand to gain personally by the action, so if it was a public interest case or the case raised important issues in relation to the administration of the act. As the honourable member has outlined, that is already in the bill.

This amendment seeks to extend the same criteria to applications for security for costs, undertakings as to damages and compensation. The current drafting of the clause aligns with a similar provision in the Environment Protection Act. The court may only be in a position to determine that a case has substance if in the public interest or significance in relation to administration of the act towards the end of the proceedings and well after an application for security for costs or undertakings as to future damages have been sought.

It also needs to be considered that damages are to be awarded to a respondent that equate to loss or damage as a result of the actions of the applicant and the damage incurred is not reduced by the fact that an action was in the public or wider interest or of significance to the administration of the act. The government believes that it is possible that including such a provision may well increase the likelihood of vexatious court actions using the argument of public interest and therefore opposes this amendment.

The Hon. K.J. MAHER: I rise to indicate, as I did at the outset, that the opposition will be supporting this amendment. If there are concerns about vexatious litigants, there are other provisions within the law to declare and deal with people who are using court processes vexatiously.

The Hon. J.A. DARLEY: I will not be supporting this amendment.

The Hon. C. BONAROS: I think people have grown accustomed to having the door slammed in their faces by our courts on many occasions when the law as it stands is very much on their side because the reality is if you cannot afford it it is very much a matter of tough luck. Access is often denied to people who would otherwise have a very valid case based purely on their bank accounts and not having deep pockets. I think this is a very sensible amendment. I think any concerns around frivolous and vexatious actions are already able to be dealt with and if there is a genuine public interest here then the size of your bank account should not stand in the way of that.

Amendment carried; clause as amended passed.

Clauses 66 to 76 passed.

Clause 77.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–2]—

Page 57, after line 9—After subclause (1) insert:

(1a) The Minister must ensure that information relating to the grant, renewal, variation, suspension, cancellation or revocation of any accreditation, authorisation, exemption or permit is entered on the register within 30 days after the grant, renewal, variation, suspension, cancellation or revocation takes effect.

Amendment No 6 [Parnell–1]—

Page 57, lines 13 to 17 [Clause 77(3) and (4)]—Delete subclauses (3) and (4) and substitute:

(3) Subject to subsection (5), the Minister must ensure that the register is kept publicly available for inspection without fee—

(a) on a web site determined by the Minister; and

(b) during ordinary office hours at a public office, or public offices, determined by the Minister.

(4) Subject to subsection (5), a member of the public may, on payment of the prescribed fee, obtain a copy of any part of the register.

Both these amendments have the support of most parties, as I understand it. Section 77 is the register of accreditations, authorisations, exemptions and permits, and these amendments simply require that the register be published online, rather than in a paper form—a very old school way of doing registers—and also that material is published in a timely manner, such as within 30 days. I think they are sensible amendments. They are consistent with public register provisions of other pieces of legislation, and I commend them to the chamber.

The Hon. J.M.A. LENSINK: In relation to amendment No. 2 [Parnell-2], the government supports this amendment, which requires that information relating to the grant, renewal, variation, suspension, cancellation or revocation of any accreditation, authorisation, exemption or permit is entered onto the register within 30 days after the grant, renewal, variation, suspension, cancellation or revocation takes effect.

The EPA is in the final stages of delivering an online public register for radiation protection matters—that will be finalised by Wednesday next week, I have just been advised. The system will in most cases upload relevant information to the public register immediately once an action is completed. There are, however, extremely important circumstances provided for in subclause (5) of the clause for the minister to restrict access to information included in the register for various highly significant and sensitive reasons, including to prevent a threat to the security of radioactive material or to protect the health or safety of the public.

Making such a decision may require significant liaison with other parties, including state and national security agencies, as well as adherence to governance processes that would ensure such decisions are robust and defensible. Given the gravity of the decision-making, it is incumbent on the parliament to ensure there is sufficient time to make such decisions, so as not to create undue pressure that may lead to errors that may create an avoidable security or public health risk. The Hon. Mr Parnell's original proposed amendment that required registration within seven days would have been unworkable in the circumstances I have just outlined. I commend him and the opposition for working towards a more workable proposal.

In relation to amendment No. 6 [Parnell-1], which we are speaking to concurrently, this amendment specifies that the public register must be publicly available on a website for inspection without charge and must also be available for inspection at a public office during office hours. It further provides that a member of the public may, on payment of the prescribed fee, obtain a copy of any part of the register.

The current provision of the bill that it is proposing to replace provides that the register may be provided by electronic means, which may include a website that is available for inspection during office hours, and that the ability to obtain a copy of any part of the register is more broadly available to persons, including companies and other corporations. The term 'electronic means' is less restrictive, in that future methods of providing the information, for example via an app, are able to be accommodated.

Similar to requirements to post notices in newspapers becoming redundant with the advent of websites, it may also be the case that websites are not the preferred media in the future. However, as mentioned against the previous amendment, the EPA is in the final stages of delivering its online public register, so the change in language is of no consequence. The outcome that the amendment is seeking is underway and will be delivered before the act is commenced. I commend both of the amendments.

The Hon. C. BONAROS: I indicate SA-Best's support for this amendment.

Amendments carried.

The Hon. M.C. PARNELL: I move:

Amendment No 7 [Parnell–1]—

Page 57, after line 22—After subclause (5) insert:

(6) If the Minister restricts access to information on the register under subsection (5), the Minister must, within 7 sitting days after doing so, report to Parliament on the reasons for acting under that subsection.

The minister, in her contribution just now, alluded to the fact that there may be sensitive security issues, or there may be a need to protect public health that trumps the right of the public to be able to see everything that would normally be on the register. The Greens accept that as a proposition. In other words, the minister does have the right to restrict access to certain information.

The question that then flows is how that right is exercised and whether anyone should be told that they have exercised that right. My amendment is fairly straightforward. If the minister decides to restrict access to documents—in other words, the minister instructs the EPA not to put it on the public register, and I will be visitor No. 1 next Wednesday when it is launched—and instructs the EPA, 'Don't put this information on the website,' then my amendment provides that, within seven sitting days, the minister should report to parliament on the reasons why the register is not complete; in other words, why the minister has determined that the information should not be published.

Of course, the minister would need to be careful in giving parliament a reason not to effectively disclose all of the sensitive material that was sought to be prevented from being disclosed, but it could be as simple as saying that there were national security issues or there was some other particular reason. In other words, it is a level of accountability so that when a register is incomplete, the community knows that it is incomplete. They know it is incomplete because the minister has withheld something and they know the reason that the minister has provided. It is a measure that goes to transparency.

The Hon. J.M.A. LENSINK: The government strongly opposes this amendment. It kind of defeats the purpose of why you would decide not to publish things to then require the minister to provide reasons why. One of the examples that I have just been given is potentially talking about the publication of details of where plutonium is stored and potential significant risk to the public. I would strongly urge members not to support this amendment, which, as the member has outlined, requires the minister to report to parliament within seven days of making a decision to restrict information to be available through the public register on the reasons why they were restricted.

It is unclear what the amendment would achieve, as the reasons for restricting access to information are limited within the clause as being to prevent a threat to the security of radioactive material, to protect the health or safety of the public, or for reasons prescribed. I am advised that there are no other reasons being considered for inclusion in regulations at this time.

For the same reasons that information would be inappropriate to have on a public register, it would be difficult to provide any useful information to parliament in a public report. The information able to be provided to parliament would be limited to the fact that a determination had been made and for which of the two allowable reasons it was made, as in some cases it would be inappropriate to provide and identify an individual or business as it may jeopardise the security of a security enhanced radiation source.

This requirement would place a further administrative obligation on the EPA and the minister's office, and it is unclear from the amendment what benefit, if any, would be achieved, as I have outlined. There is no certainty as to the regularity of such determinations. It may be that reports are necessarily required very sparsely or they may be required on a weekly basis. The amendment proposes an obligation for each individual determination rather than a regular report on the use of the power, so the administrative burden for the EPA reduces their available resources to offer other actions which are clearly valued, such as protecting the community and the environment.

The Hon. K.J. MAHER: As I outlined earlier, this is one of the two amendments of the Hon. Mark Parnell that the opposition will not be supporting.

The Hon. C. BONAROS: Can I indicate that I think that this goes to the heart of issues of accountability and transparency and in some ways is not dissimilar to something that we have proposed in relation to a very separate piece of legislation. But I do not see it as insurmountable. I think that the very important issues that the minister has raised, particularly as they relate to any risks or so forth of the disclosure of information that should not be in the public realm, can easily be dealt in the framing of that response. But at the very least providing that response to parliament would provide the rationale for not doing so otherwise. For those reasons we do support the amendment.

The Hon. J.A. DARLEY: For the record, I will not be supporting the amendment.

Amendment negatived; clause as amended passed.

Clause 78.

The Hon. M.C. PARNELL: I move:

Amendment No 8 [Parnell–1]—

Page 57, lines 28 to 30 [Clause 78(2)]—Delete subclause (2) and substitute:

(2) The Minister must ensure that a document adopted under this section is kept publicly available for inspection without fee—

(a) on a web site determined by the Minister; and

(b) during ordinary office hours at a public office, or public offices, determined by the Minister.

Again, as this amendment has universal support I do not need to speak to it at any length. I just point out that, again, it goes to accountability and it goes to a provision that occurs often in law where extraneous documents are incorporated into the law of South Australia. There is a principle that the entirety of the public law should be freely and publicly available. Ignorance of the law is no excuse which means that any document that we have incorporated into the law of South Australia must be freely available, otherwise the doctrine of ignorance being no excuse falls flat.

We have seen in the past situations where, in different fields, the government has incorporated some national standard and then, when you go to find that standard, you come across a pay wall, where you have to pay to see it. That is outrageous when it comes to lawmaking. This provision is pretty straightforward. The bill provides in clause 78 that the minister can adopt standards and guidance notes and codes of practice—can adopt them from elsewhere, in particular from the National Directory—so my amendment just makes it really clear.

When the EPA publishes its public register next week, as we have been told, it should make sure that all of these subsidiary documents, if I can call them that, are also included. In other words, it provides for a central repository for all relevant documents that together form part of the law of South Australia. I am glad everyone is supporting this sensible amendment.

The Hon. J.M.A. LENSINK: This amendment proposes that documents that form part of the National Framework for Radiation Protection, the National Directory, are adopted as part of the South Australian regulatory scheme and published on a website as determined by the minister. The amendment proposes to add to the existing provision of the bill requiring documents to be available for inspection at a public office without fee.

Any documents that are adopted will have already been published online by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), so either referencing the ARPANSA website or providing copies of the documents through the EPA website will be straightforward. As I previously indicated, we are supporting the amendment.

Amendment carried; clause as amended passed.

Clauses 79 to 99 passed.

Schedule.

The Hon. M.C. PARNELL: I move:

Amendment No 9 [Parnell–1]—

Page 69—This Schedule will be opposed

It is probably no surprise to members that, of all the amendments I have moved, this is probably the one that is closest to my heart. Schedule 1 of this bill perpetuates the situation where a major industrial activity in our state is effectively not governed by the law of this state. The Roxby Downs mine has its own law. It is a law largely of the company's making, aided and abetted over many years by this parliament.

Members would recall that in the Roxby Downs (Indenture Ratification) Act it says in one of the very early sections of that act that the law of South Australia is hereby modified to be subservient, in effect, to the special indenture act that they had. In other words, the law of South Australia does not apply at Roxby Downs, other than with a few limited exceptions.

Of all the laws that should apply to Australia's biggest uranium mine, you would have thought that South Australia's Radiation Protection and Control Act would be at the top of the list of laws that should apply, yet what schedule 1 of this bill perpetuates is the fact that that operation is beyond the reach of the general law of South Australia.

The minister earlier on correctly pointed out that I devoted a fair bit of my second reading speech to the subject of Olympic Dam, and she correctly pointed out that, under this bill, this act does not touch Olympic Dam. It does not touch it. It does not go to the health and safety of the workers at Olympic Dam because they are governed by their own special law.

I, for one, think that if this parliament is going to the trouble of writing general laws for the good order and wellbeing of the people of this state then they should be universally applied, and that means they should be applied to the Olympic Dam mine as well. I understand that, for historical and political reasons, both the Labor Party and the Liberal Party are locked into their support for the Olympic Dam mine being above the law in South Australia. It has been the position for nearly 40 years that that situation has occurred.

I know that they are not going to accept this schedule, but I think it is a matter of principle and I think that at some point we need to bring all mining operations into the fold. We need to bring them all in to be bound by the general law of South Australia. Any other mining company that does not have its own special law has to comply with this act, but not the Olympic Dam mine. This is a matter of some significance.

I will take the opportunity to point out that several years ago we debated major amendments to the Olympic Dam indenture legislation in order to encourage them to build the biggest hole in the ground on the face of the planet, a hole that was going to take five years to dig before they got to any payable ore. Having given the company absolutely everything they wanted in that indenture legislation, the company then proceeded to not proceed with their plans.

Their bean counters in London decided that it was not economic, so despite having been given every concession by the South Australian government and the South Australian parliament in relation to protection from laws and in relation to free water—you name it, they got it—they still did not come through with what the former Labor government thought was going to be a massive jobs bonanza.

So I do not think we owe that particular company, that particular venture, any special treatment when it comes to exemption from South Australian law. That is what schedule 1 of this bill does, and that is why I am opposing schedule 1.

The Hon. J.M.A. LENSINK: I think that speech on behalf the honourable member can be characterised as the 'Let's beat Olympic Dam and BHP over the head with a stick clause'. I will point out in my contribution how some of his comments are, we believe, factually incorrect. This amendment opposes the entire schedule 1. Schedule 1 of the bill is similar to schedule 1 of the 1982 act that was inserted in 1986 after the Roxby Downs indenture was agreed by the South Australian government.

There are minor changes to reflect the changed structure of the bill compared to the act, but the application remains the same. The majority of it simply explains the application of the indenture to the bill. The Roxby Downs indenture is applied through the Roxby Downs (Indenture Ratification) Act 1982 (Indenture Act). Section 7 of that act dictates that:

(1) The law of the State is so far modified as is necessary to give full effect to the Indenture and the provisions of any law of the State shall accordingly be construed subject to the modifications that take effect under this Act.

As such, the bill is subject to the indenture. The Indenture Act would need to be amended in order to remove the application of much of schedule 1. Schedule 1 of the bill for the most part usefully outlines how the indenture applies to this area of regulation, which I will explain through each of the clauses.

Clause 1 explains that the act applies to the Olympic Dam mine, subject to any modifications articulated in the schedule. Most modifications are directly required by the indenture or the Indenture Act. There are a few that are additional. Clause 2 reflects the application of section 8 of the Roxby Downs (Indenture Ratification) Act, requiring the grant of a licence. For comparison and to demonstrate that this is not unique to Olympic Dam mine, section 47(2) of the Environment Protection Act also requires that licences be granted in certain broader circumstances such as where a development approval has been granted for an activity.

Clause 3 is additional to the indenture and requires consultation with the mines minister and the applicant. This is no different to how the coregulation of mining between the EPA and the Department for Energy and Mining operates with regard to the consideration of applications.

Clause 4 is additional to the indenture. Under the 1982 act it simply confirmed the requirement under section 35 of the act that all licence applications must be referred to the Radiation Protection Committee. Under the bill it remains an obligation for those subject to the indenture, whereas for other licence applications the minister will have discretion to refer applications to the committee. This results in what is technically a stronger requirement for parties subject to the indenture; however, it is noted that even if it were not there, any significant applications will likely still be referred to the committee.

Clause 5 reflects the arbitration provisions in clause 49 of the indenture. Clause 6 reflects to a large extent clause 7(3) of the indenture. Clause 7 is additional to the indenture but generally aligns with clause 36 of the bill and previously with section 36 of the 1982 act regarding the application of conditions of authorisation.

Clause 8 usefully explains how clause 36 of the bill, regarding conditions of authorisation, applies alongside the arbitration requirements of the indenture. Clause 9 reflects section 8(2) of the indenture act. Clause 10 clarifies the application of the indenture act in that it requires the grant of a licence and determines that the law of the state is so far modified as is necessary to give full effect to the indenture and generally prevents the hindering of the projects covered by the indenture.

Clause 11 sets the expiry of the mining licence to align with the term of the special mining lease, whereas the act sets a term for licences of five years at which time a renewal would be required.

Clause 12 outlines provisions of the act contrary to provisions in the indenture or indenture act. Sections 18(4), 19(4) and 20(4) provide discretion for the minister contrary to clause 4 of the schedule. Section 36(3) deals with variation or revocation of conditions which are specifically dealt with under the indenture and have arbitration requirements. Sections 41, 42 and 43 deal with matters related to dealing with authorisations, licences that are dealt with for Olympic Dam mine through the indenture act and the indenture.

Clause 13 contains interpretation for the schedule.

I want to emphasise that the bill does not add further dispensation or favour to the Olympic Dam mine. The bill in fact provides for a number of improvements in the way that the EPA can regulate the Olympic Dam mine and any other person that is responsible for or uses radiation under it. The bill includes a general duty of care that applies to Olympic Dam mine as it does to every other person in South Australia.

The bill also provides for order-making powers. These include radiation protection orders to gain compliance with the general duty, a condition of licence or any other requirement of the act as well as reparation orders that can be used by the EPA to require a person to make good any harm that has resulted from a contravention of the act. The maximum penalty for noncompliance with an order is $100,000 or a $3,000 expiation.

The bill also introduces major offences of causing radiation harm and serious radiation harm. The maximum penalty for the serious radiation harm offence is $5 million for a body corporate and $1 million or 15 years in prison for a natural person. These offences apply to Olympic Dam mine as they do to anyone else. To say that Olympic Dam mine is, to quote the Hon. Mark Parnell, above the law, ignores the considerable new powers that the bill makes available to the EPA to regulate all radiation users and ensure all South Australians are safe and protected and can still enjoy the many benefits that radiation use brings.

The government opposes this amendment.

The Hon. K.J. MAHER: I think the Hon. Mark Parnell has outlined the Liberals' and Labor's position helpfully. As unsurprising as the Hon. Mark Parnell said it was that he was moving this amendment, it will be equally unsurprising that Labor, as it has in government, will in opposition support this inclusion and therefore oppose the Hon. Mark Parnell's amendment.

The Hon. J.A. DARLEY: For the record, I will be opposing this amendment.

Amendment negatived; schedule passed.

Remaining schedule (2) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (12:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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