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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
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Radiation Protection and Control Bill

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (19:06): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Radioactive substances are widely used and handled across a number of industries including industrial processing, mining and petroleum operations, medical and health care, and research and educational facilities.

South Australia is one of only two jurisdictions in Australia where uranium mining takes place and uranium is an essential contributor to the state economy. It is therefore essential that modern and effective legislation covers both mining and all other aspects of radiation use.

In South Australia, the Radiation Protection and Control Act 1982 regulates activities involving radiation sources and provides for the protection of people and the environment from the harmful effects of radiation. This includes providing for the licensing of certain activities, and registration of certain items and premises which involve radiation sources. Parties that are regulated under the legislation include hospitals, dentists, veterinarians, soil analysis companies, mining companies, radiographers, radiologists, and ports.

Administrative Amendments

Despite the importance of this legislation, it has not undergone substantial revision since its commencement in 1982. As a result, many of the standard administrative and enforcement provisions are outdated. The new Act, proposed in this Bill, will modernise radiation protection regulation in South Australia and will implement a progressive risk-based approach that builds on and improves the current system.

It will reduce administrative burdens on small business through the streamlining of licensing from the existing seven separate licence categories down to two licence categories, a radiation use licence and a radiation management licence. In addition, registrations of equipment will be able to be included on radiation management licences, providing a single document for businesses to manage their regulatory obligations whereas the current system requires individual registration of equipment separate from licensing.

The Act currently contains no expiable offences and has no head power to prescribe expiation fees for enforcement in the Regulations. As a result, enforcement of the Act and Regulations cannot take place without prosecution through the courts. This is an inefficient method for less serious offences under the Act as it is time consuming and expensive. Further, it does not provide an effective deterrent for recalcitrant licence holders who act in the knowledge that no expiation fees can be applied to them. Under the current provisions such an offender must instead be notified when a breach may result in court proceedings and provide them with an opportunity to correct their behaviour. If the prosecution does not proceed to court, the offender incurs no penalty and none of the costs incurred by the Environment Protection Authority in undertaking enforcement actions are recovered. The Bill includes expiations for a number of offences and also allows for further expiable offences to be established via regulation.

The Bill also provides for order making powers that can be utilised to obtain compliance without the need for more costly court proceedings. Court proceedings are appropriate for significant offences and for applying a punishment as a deterrent to others but achieving compliance on minor issues is much more straightforward with the use of orders.

The review of administrative decisions in the current Act is upon application to the Supreme Court. Thankfully we have come a long way since 1982 and now have a less burdensome and much more appropriate avenue for review of administrative decisions through the South Australian Civil and Administrative Tribunal. The Bill allocates jurisdiction for administrative appeals to the South Australian Civil and Administrative Tribunal.

Offences for causing radiation harm or serious radiation harm

The Act currently contains a series of specific offences set largely within the licensing and registration requirements, and relating to unauthorised use or handling. These offences are necessary; however they are more administrative in nature and are not linked to the harm or risk of harm that a breach of the Act might present. Inclusion of harm in regulatory schemes where there is a risk of harm to human health or the environment is necessary to provide a suitable deterrent. The application of harm provisions to the environment is reflected in the National Directory's objective of radiation protection legislation that 'legislation must include the objective of protecting the health and safety of people and the environment'. Of the Australian states and territories only South Australia and Western Australia do not currently have harm elements within radiation protection legislation.

The penalty framework proposed in the Bill draws on the approach taken in the Work Health and Safety Act 2013, and the Environment Protection Act 1993. Part 5 of the Bill provides new offences relating to causing radiation harm, with clause 50 relating to causing serious radiation harm, and clause 51 relating to causing radiation harm. Radiation harm offences will provide a significant penalty in circumstances where an individual, a group of persons or the environment is harmed or likely to be harmed by exposure to quantities of radiation beyond those lawfully permitted by the remainder of the Bill. These provisions do not apply to matters where the harm is considered trivial.

The maximum penalty for recklessly or intentionally causing serious radiation harm of $5 million for a body corporate and $1 million or 15 years imprisonment for a natural person is the highest penalty that can be imposed by a sentencing court and must reflect the worst possible offence that could occur. In practise it is extremely rare that the Court imposes the maximum penalty and higher penalties are reserved for the most serious, repeated and aggravated contraventions.

The maximum penalties for the radiation harm offences have been set with consideration to the nature of the legislation, the particular offences they relate to and the precedent set by other comparable legislation. Of particular relevance, Sections 8 and 9 of the Nuclear Waste Storage Facility (Prohibition) Act 2000 have a similar maximum penalty to the offence of recklessly or intentionally causing serious radiation harm, being $5m for a body corporate for the offences of construction or operation of nuclear waste storage facility and importation or transportation of nuclear waste for delivery to nuclear waste storage facility where the potential consequences, in the worst case scenario, are comparable.

National Commitments

In addition, national commitments have been made through the Australian Health Ministers Conference and the Council of Australian Governments to implement a uniform national framework for radiation protection.

To this end, the South Australian Government is committed to amending the Act to implement the National Directory for Radiation Protection that Australian Health Ministers agreed to implement in 2004. The National Directory aims to provide nationally agreed and uniform requirements for the protection of people and the environment that meet international best practice and ensure the safety of radiation use. These relate to radiation protection principles, management requirements for radiation sources and provisions for the future adoption of documents forming part of the National Directory.

In 2006, the Council of Australian Governments also agreed to a National Chemical, Biological, Radiological and Nuclear Security Strategy to provide a framework to strengthen and enhance Australia's existing arrangements. This included the establishment of a national regulatory scheme for the storage, possession, use and transport of certain radiological materials to minimise the risk of such materials being misused.

A significant component of carrying out the Council of Australian Government's decision is implementation of the Code of Practice for the Security of Radioactive Sources. The Security Code, as it is known, sets out the various security measures which must be undertaken to maintain the security of sealed radiation sources. These security requirements have been developed based on the likelihood of unauthorised access and the consequences of malicious use.

This Bill is vital to ensuring the ongoing security of our radioactive sources and modernising the regulatory framework in order to minimise the risk to the health and safety of our community.

I commend the bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions and contains other interpretation provisions.

4—Interaction with other Acts and laws

This clause provides that the measure is in addition to other Acts and laws and does not limit or derogate from any other Act or law, or from any civil remedy at law or in equity.

Part 2—Objects and principles

5—Objects of Act

This clause sets out the objects of the measure.

6—Radiation protection principle

This clause defines the radiation protection principle, which is referred to in the objects clause.

7—Principles of ecologically sustainable development

This clause defines the principles of ecologically sustainable development (also referred to in the objects clause) by reference to the Environment Protection Act 1993.

Part 3—Administration

Division 1—Radiation Protection Committee

8—Radiation Protection Committee

This clause provides for the continuation of the Radiation Protection Committee established by the Radiation Protection and Control Act 1982. It provides for a maximum of 9 members appointed by the Governor on the nomination of the Minister and requires the Minister to seek to ensure, when nominating persons for appointment, that the members of the Committee collectively have certain specified qualifications, knowledge, expertise and experience.

9—Terms and conditions of office

This clause provides for members of the Committee to be appointed for terms not exceeding 3 years, provides for the appointment of deputy members and specifies the circumstances in which a member may be removed from office or in which the office of a member becomes vacant.

10—Functions

This clause sets out the functions of the Committee.

11—Validity of acts

This clause provides that an act or proceeding of the Committee is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

12—Proceedings

This clause makes provision for the proceedings of the Committee.

13—Sub-committees

This clause empowers the Minister to establish sub-committees of the Committee.

14—Application of Public Sector (Honesty and Accountability) Act

This clause provides for the Public Sector (Honesty and Accountability) Act 1995 to apply to a member of a sub-committee of the Committee as if the sub-committee were an advisory body and the Minister responsible for the administration of this measure were the relevant Minister.

15—Provision of services

This clause empowers the Minister to appoint an officer of the public service of the State to be the secretary to the Committee and for the Department responsible for assisting the Minister to provide the Committee with administrative assistance and facilities for the performance of its functions.

Division 2—Miscellaneous

16—Delegation

This clause empowers the Minister to delegate functions and powers.

17—Annual report

This clause requires the Department, in annual report to the Minister under section 12 of the Public Sector Act 2009, to incorporate a report on the administration of this measure during the financial year to which the report relates and include in it prescribed information.

Part 4—Radiation protection and control

Division 1—Activities requiring radiation management licence

18—Testing for developmental purposes

This clause makes it an offence for a person to carry out developmental testing operations involving or in relation to mining or mineral processing where a prescribed radioactive material is present unless the operations are authorised by a radiation management licence granted by the Minister. The maximum penalty is $500,000 in the case of a body corporate or $100,000 or imprisonment for 10 years in the case of a natural person. Applications for a licence may be referred to the Radiation Protection Committee for its advice.

19—Mining or mineral processing

This clause makes it an offence for a person to carry out operations for or in relation to mining or mineral processing where a prescribed radioactive material is present or will be produced unless the operations are authorised by a radiation management licence granted by the Minister. The maximum penalty is $500,000 in the case of a body corporate or $100,000 or imprisonment for 10 years in the case of a natural person. Applications for a licence may be referred to the Radiation Protection Committee for its advice.

20—Construction, establishment, control etc of radiation facility

This clause makes it an offence for a person to prepare a site for, or construct, establish, control, operate, manage, decommission, dispose of or abandon, a radiation facility unless authorised to do so by a radiation management licence granted by the Minister. The maximum penalty is $500,000 in the case of a body corporate or $100,000 or imprisonment for 10 years in the case of a natural person. Applications for a licence may be referred to the Radiation Protection Committee for its advice.

21—Transport of radioactive material

This clause makes it an offence transport radioactive material unless authorised to do so by a radiation management licence granted by the Minister. The maximum penalty is $500,000 in the case of a body corporate or $100,000 in the case of a natural person. It also makes it an offence for a person to operate a vehicle transporting radioactive material unless the carrier of the radioactive material is authorised to transport the material by a radiation management licence granted by the Minister. The maximum penalty is $50, 000.

22—Possession of radiation source

This clause makes it an offence for a person to be in possession of a radiation source unless authorised to do so by a radiation management licence granted by the Minister. The maximum penalty is $500,000 in the case of a body corporate or $100,000 in the case of a natural person.

Division 2—Activities requiring radiation use licence

23—Use or handling of radioactive material

This clause makes it an offence for a natural person to use or handle radioactive material unless authorised to do so by a radiation use licence granted by the Minister. The maximum penalty is $50,000. The clause provides that if the owner of radioactive material causes, suffers or permits the radioactive material to be used or handled by a person who is required to hold, but does not hold, a radiation use licence authorising the person to use or handle the radioactive material, the owner is guilty of an offence. The maximum penalty is $250, 000 in the case of a body corporate or $50,000 in the case of a natural person.

24—Operation of radiation apparatus

This clause makes it an offence for a natural person to operate ionising radiation apparatus, or non-ionising radiation apparatus of a prescribed class, unless authorised to do so by a radiation use licence granted by the Minister. The maximum penalty is $50,000. The clause provides that if the owner of a radiation apparatus causes, suffers or permits the radiation apparatus to be operated by a person who is required to hold, but does not hold, a radiation use licence authorising the person to operate the radiation apparatus, the owner is guilty of an offence. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

Division 3—Premises and radiation apparatus and sources requiring registration

25—Premises in which unsealed radioactive materials are handled or kept

This clause requires premises in which an unsealed radioactive material is kept or handled must be registered by the Minister in the name of the occupier of the premises. If the premises are not so registered, the occupier is guilty of an offence. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person. The clause also makes it an offence for a person to keep or handle, or cause, suffer or permit another person to keep or handle, an unsealed radioactive material in premises that are not registered as required. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

The clause provides that the Minister may, by notice given in the prescribed manner to the occupier of premises that are the subject of an application for registration, restrict or prohibit the keeping or handling of an unsealed radioactive material in the premises subject to such conditions as the Minister thinks fit. A person must not keep or handle, or cause, suffer or permit another person to keep or handle, an unsealed radioactive material in premises in contravention of such a notice. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person

26—Sealed radioactive sources

This clause requires a sealed radioactive source must be registered by the Minister in the name of the owner of the source. If the source is not so registered, its owner is guilty of an offence. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person. The clause also makes it an offence for a person to use or handle, or cause, suffer or permit another person to use or handle, a sealed radioactive source that is not registered as required, or to keep in storage, or cause, suffer or permit to be kept in storage, a sealed radioactive source that is not registered as required. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

The clause provides that the Minister may, by notice given in the prescribed manner to the owner of a sealed radioactive source that is the subject of an application for registration, restrict or prohibit the use of the source subject to such conditions as the Minister thinks fit. A person must not use, or cause, suffer or permit another person to use, a sealed radioactive source in contravention of such a notice. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

27—Radiation apparatus

This clause requires ionising radiation apparatus, and non-ionising radiation apparatus of a prescribed class, to be registered by the Minister in the name of the owner of the apparatus. If such radiation apparatus is not registered as required, the owner of the apparatus is guilty of an offence. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person. The clause also makes it an offence for a person to use, or cause, suffer or permit another person to use, radiation apparatus that is not registered as required. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

The clause provides that the Minister may, by notice given in the prescribed manner to the owner of radiation apparatus that is the subject of an application for registration, restrict or prohibit the use of the apparatus subject to such conditions as the Minister thinks fit. A person must not use, or cause, suffer or permit another person to use, radiation apparatus in contravention of a notice. The maximum penalty is $250,000 in the case of a body corporate or $50,000 in the case of a natural person.

Division 4—Prohibited activities

28—Operations for enrichment or conversion of uranium

This clause makes it an offence for a person to carry on an operation for the conversion or enrichment of uranium. The maximum penalty is $1,000,000 in the case of a body corporate or $200,000 or imprisonment for 20 years in the case of a natural person. The clause will expire on a date to be fixed by proclamation but such a proclamation must not be made unless the Governor is satisfied that proper provision has been made for the control of operations for the conversion or enrichment of uranium.

29—Abandonment of radiation sources

This clause makes it an offence for a person to abandon a radiation source without reasonable excuse. The maximum penalty is $500,000 in the case of a body corporate or $100,000 in the case of a natural person. The clause provides that bankruptcy or the liquidation of a company is not a reasonable excuse for a person to abandon a radiation source.

Division 5—Accreditation of third party service providers

30—Accreditation process

This clause provides for the accreditation of persons and empowers the Minister to establish various classes of accreditation.

31—Authority conferred by accreditation

This clause provides that an accreditation may authorise the person named in the accreditation to do any 1 or more of the following (subject to, and in accordance with, the terms and conditions of the accreditation):

(a) conduct tests on radiation sources;

(b) undertake activities to assess compliance with this measure or any requirements prescribed by the regulations;

(c) issue certificates of compliance or certificates of competency in relation to matters regulated under this measure;

(d) conduct courses of training leading to qualifications to hold a licence or registration under this measure;

(e) carry out such other activities as may be determined or approved by the Minister.

32—Reliance on professional advice

This clause provides that the Minister may, in the exercise of a function under this measure, rely on a certificate issued by a person who holds an accreditation under this Division.

33—Offences

This clause makes an offence for a person who is not an accredited person under this Division must not hold themself out as, or pretend to be, the holder of an accreditation under this Division. The maximum penalty is $50,000. A person must not alter or permit to be altered any information or statement in a certificate issued by an accredited person for the purposes of this measure unless the alteration is authorised in writing by the accredited person who issued the certificate, or the alteration is made in prescribed circumstances. The maximum penalty is $50,000. A person must not, in issuing a certificate of compliance or a certificate of competency for the purposes of this measure, make or cause to be made a statement that is false or misleading in a material particular. The maximum penalty is $50,000.

Division 6—General provisions relating to accreditations and authorisations

34—Application for accreditation or authorisation

This clause makes provision in relation to applications for accreditations and authorisations (licences and registration) under the measure. It requires an applicant to be a fit and proper person and empowers the Minister to require an applicant to undergo an identity check or security background check or both. The clause sets out the circumstances in which the Minister may refuse to grant an accreditation or authorisation.

35—Annual fee

This clause provides for an annual fee to be payable in respect of each year of the term of an accreditation or authorisation and empowers the Minister to charge a penalty amount for late payment of annual fees.

36—Conditions of accreditation or authorisation

This clause empowers the Minister to impose, vary and revoke, conditions on accreditations and authorisations. The clause makes it an offence for the holder of an accreditation or authorisation to contravene a condition. The maximum penalty if the condition is a major condition is $500,000 in the case of a body corporate, or $100,000 or imprisonment for 10 years or both in the case of a natural person. A major condition is a condition, or condition of a class, designated by the Minister as a major condition. The maximum penalty if the condition is a minor condition (i.e. not a major condition) is $50,000 in the case of a body corporate or $10,000 in the case of a natural person. An alleged breach of a minor condition is expiable by a fee of $5,000 in the case of a body corporate or $1,000 in the case of a natural person.

37—Minister may require financial assurance to secure compliance with conditions of authorisation

This clause empowers the Minister to impose a condition on an authorisation requiring the holder of the authorisation to lodge with the Minister a financial assurance, the discharge of which is conditional on specified conditions of the authorisation being complied with. The financial assurance may take the form of a bond, specified pecuniary sum, policy of insurance, letter of credit or a form of financial assurance approved by the Minister, and the Minister may require it to be supported by a bank guarantee or other security. The Minister may only require a financial assurance if satisfied that it is justified in view of the nature of the authorisation and the degree of harm to the environment or to the health or safety of people that could result if the conditions of the authorisation for which the financial assurance is to be required are not complied with.

The amount of a bond or pecuniary sum that the Minister may require as a financial assurance must not exceed an amount that, in the opinion of the Minister, represents the total of the likely costs and expenses that might be incurred by a person in complying with the conditions of the authorisation for which the financial assurance is required. the Minister may refuse to issue an authorisation or approve the transfer of an authorisation if the applicant or transferee is not willing to accept an authorisation subject to a condition requiring the lodgement of a financial assurance. If a condition requiring a financial assurance in the form of a bond or pecuniary sum is not complied with, the Minister may determine that the whole or part of the amount of the bond or pecuniary sum is forfeited to the Crown, and may apply an amount so forfeited in payment for or towards any costs, expenses, loss or damage that may be incurred or suffered by the Crown as a result of the conditions of the authorisation not being complied with.

38—Duration of accreditation or authorisation and renewal

This clause provides for an accreditation or authorisation to have a minimum term of 12 months and a maximum term of 5 years. An accreditation or authorisation may be renewed for such a term.

39—Issue of single authorisation

This clause provides that if a person engages in multiple activities or carries out multiple operations that require a licence, the Minister may, on application by the person for the issue or renewal of a licence for any of those activities or operations, grant the person a single licence authorising all activities and operations for which the person requires a licence.

40—Transfer of authorisations

This clause provides for the transfer of authorisations with the approval of the Minister. A transferee is required to be a fit and proper person and the Minister is empowered to refuse to approve a transfer in certain specified circumstances.

41—Surrender of accreditations and authorisations

This clause allows the holder of an accreditation or authorisation to surrender it to the Minister. Surrender of a radiation management licence requires the approval of the Minister. An approval may be subject to the fulfilment of conditions imposed to protect the health or safety of people or to protect or restore the environment.

42—Suspension and cancellation of accreditations and authorisations

This clause empowers the Minister to suspend or cancel an accreditation or authorisation.

43—Review of decisions

This clause gives a person aggrieved by a reviewable decision of the Minister the right to apply to the South Australian Civil and Administrative Tribunal for a review of the decision. A reviewable decision is a decision to refuse to grant an accreditation or authorisation, to impose a condition on an accreditation or authorisation, to vary a condition imposed on an accreditation or authorisation, to suspend or cancel an accreditation or authorisation, to give a direction in relation to a suspension or cancellation, or a decision of a prescribed class.

44—Obligation of holders of accreditations and authorisations to notify Minister of certain matters

This clause requires the holder of an accreditation or authorisation to give the Minister notice if the holder fails a security background check or prescribed circumstances arise. The maximum penalty for failure to comply is $10,000. In addition, the holder of a radiation use licence authorising the holder to operate radiation apparatus or to use or handle a radioactive material must give the Minister notice if they are a health practitioner and their authority to provide health services is suspended or cancelled, or conditions are placed on their authority limiting their right to provide health services. In the case of a person (other than a health practitioner) who operates radiation apparatus, or uses or handles a radioactive material, in the course of their professional practice, they must give notice to the Minister if their authority under an Act or law regulating their right to practice is suspended or cancelled, or conditions are placed on their limiting their right to practice. The maximum penalty for a failure to comply is $10,000.

45—Death, bankruptcy etc of holder of authorisation

This clause provides that if a person who holds an authorisation dies, the personal representative of the deceased, or some other person approved by the Minister on application, will be taken to hold that authorisation (on the same conditions as were applicable to the deceased) as from the date of the death until the expiration of the prescribed period. If a person who holds an authorisation becomes bankrupt or insolvent, the official receiver will be taken to hold that authorisation (on the same conditions as were applicable to the person who previously held the authorisation) as from the date on which the person became bankrupt or insolvent until the expiration of the prescribed period. If a body corporate that holds an authorisation is being wound up or is under administration, receivership or official management, a person vested by law with power to administer the affairs of the body corporate will be taken to hold the authorisation (on the same conditions as were applicable to the body corporate) as from the date on which the person was appointed to administer the affairs of the body corporate until the expiration of the prescribed period. The prescribed period is 6 months or such longer period as the Minister may fix.

Division 7—Miscellaneous

46—Power to deal with dangerous situations

This clause provides that if the Minister considers that a dangerous situation or potentially dangerous situation exists involving radiation apparatus or radioactive material—

(a) the person responsible for the dangerous situation or potentially dangerous situation or a person affected by it may be directed to take, or refrain from taking, specified action; or

(b) the radiation apparatus or radioactive material giving rise to the dangerous situation or potentially dangerous situation or anything contaminated or affected by the apparatus or material may be seized, removed, disposed of, treated or otherwise dealt with; or

(c) any other direction may be given, or action taken,

to avoid, remove or alleviate the dangerous situation or potentially dangerous situation.

If the Minister considers that a dangerous situation or potentially dangerous situation exists involving radiation apparatus or radioactive material at a particular place, a person may be directed to leave the place and not re-enter it until the dangerous situation or potentially dangerous situation has ceased to exist.

Such directions may be given by the Minister or, with the prior approval of the Minister, by an authorised officer, a police officer or a person appointed by the Minister.

The clause makes it an offence for a person to hinder or obstruct a person exercising a power, or complying with a direction, or to contravene or fail to comply with a direction. The maximum penalty is $50 000 or imprisonment for 5 years or both.

If a person fails to comply with a direction given under this section, the Minister may take action, or cause action to be taken, to avoid, remove or alleviate the dangerous situation or potentially dangerous situation. Costs or expenses incurred by the Minister in doing so can be recovered by the Minister. If the dangerous situation in respect of which the action was taken resulted from an act done, or omission made, by a person in contravention of this measure, the Minister may recover those costs or expenses from that person by order of the court made in proceedings for the recovery of a penalty in respect of the act or omission, or by separate action in a court of competent jurisdiction.

47—Power to protect security enhanced radioactive sources and high risk radioactive sources and material

This clause makes it an offence for a person who has not undergone a security background check to obtain or access, attempt to obtain or access, or deal in any way with a security enhanced radioactive source, a high risk radioactive source or high risk radioactive material. The maximum penalty is $50,000 or imprisonment for 10 years. If the Minister has reason to believe that a person may pose a threat to the security of such a radioactive source or material by reason of having failed to pass a security background check, the Minister may give the person a direction that they must not obtain or access or attempt to obtain or access, or deal in any way with, such a radioactive source or material and a direction a direction placing such other restrictions on the person's activities involving such radioactive sources and material as the Minister considers necessary to maintain the security of such sources and material. The maximum penalty for contravening a direction is $50,000 or imprisonment for 10 years.

48—Emergency authorisations

This clause empowers the Minister or an authorised officer to grant a person authorising an act or omission that might otherwise constitute a contravention of this measure if satisfied that circumstances of urgency exist such that it is not practicable for the person to obtain an exemption and the authorisation of the act or omission is justified by the need to protect life, the environment or property.

49—Limits of exposure to ionising radiation not to be more stringent than limits fixed under certain codes etc

This clause provides that despite any other provision of this measure, no limit of exposure to ionising radiation may be fixed by the regulations or a condition of an authorisation imposed under this measure in relation to an operation for mining or mineral processing 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 or by the National Health and Medical Research Council, the International Commission on Radiological Protection or the International Atomic Energy Agency.

Part 5—General offences

50—Causing serious radiation harm

Subclause (1) provides that a person who causes serious radiation harm intentionally or recklessly and with the knowledge that harm to the health or safety of a person or harm to the environment will or might result is guilty of an offence. The maximum penalty is $5,000,000 in the case of a body corporate, or $1,000 000 or imprisonment for 15 years or both in the case of a natural person. Subclause (2) provides that a person who causes serious radiation harm is guilty of an offence. The maximum penalty is $2,500,000 in the case of a body corporate, or $500,000 or imprisonment for 10 years or both in the case of a natural person.

If in proceedings for an offence against subclause (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subclause (2), the court may find the defendant guilty of the latter offence. A person causes serious radiation harm if the person commits an act involving a radiation source that harms, or is likely to harm, presently or in the future, the health or safety of a person or the environment, and the harm or likely harm is of a high impact or on a wide scale. Subclauses (1) and (2) do not apply in relation to an act done in good faith, in accordance with this measure and without negligence.

51—Causing radiation harm

Subclause (1) provides that a person who causes radiation harm intentionally or recklessly and with the knowledge that harm to the health or safety of a person or harm to the environment will or might result is guilty of an offence. The maximum penalty is $1,000,000 in the case of a body corporate, or $200,000 or imprisonment for 5 years or both in the case of a natural person. Subclause (2) provides that a person who causes radiation harm is guilty of an offence. The maximum penalty is $500,000 in the case of a body corporate, or $100,000 or imprisonment for 2 years or both in the case of a natural person.

If in proceedings for an offence against subclause (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subclause (2), the court may find the defendant guilty of the latter offence. A person causes radiation harm if the person commits an act involving a radiation source that harms, or is likely to harm, presently or in the future, the health or safety of a person or the environment, and the harm or likely harm is not trivial but is not of a high impact or on a wide scale. Subclauses (1) and (2) do not apply in relation to an act done in good faith, in accordance with this measure and without negligence

52—Alternative finding

This clause provides that if in proceedings for an offence against clause 50, the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against clause 51, the court may find the defendant guilty of the latter offence.

Part 6—General duty of care

53—General duty of care

Subclause (1) provides that a person must, in dealing with a radiation source, take all reasonable and practicable measures to ensure that—

(a) the exposure of people to ionising radiation from the radiation source is kept as low as is reasonably achievable; and

(b) the risk of exposure of people and the environment to dangerous or potentially dangerous radiation from the radiation source is minimised; and

(c) the radiation source is protected from misuse that may result in harm to people or the environment.

Subclause (2) provides that a person must, in complying with the duty created by subclause (1), have regard to the radiation protection principle and the principles of ecologically sustainable development.

Subclause (3) provides that a person who breaches the duty created by subclause (1) is not, on account of the breach alone, guilty of an offence but compliance with the duty may be enforced by the issuing of a radiation protection order under Part 7 and a reparation order or reparation authorisation may be issued under that Part in respect of the breach of the duty.

Part 7—Enforcement

Division 1—Civil remedies

Subdivision 1—Orders made by Minister

54—Radiation protection orders

This clause empowers the Minister to issue radiation protection orders to secure compliance with the general duty of care (clause 53), a condition of an accreditation or authorisation, or any other requirement imposed by or under the measure. A radiation protection order can require a person to discontinue, or not commence, a specified activity indefinitely, for a specified time or until further notice by the Minister and require a person to take specified action within a specified time. Emergency radiation protection orders may be issued by an authorised officer. A person may appeal to the ERD Court against a radiation protection order.

55—Radiation protection cessation orders

This clause empowers the Minister to issue radiation protection cessation orders to prevent or minimise harm to the environment or deal with stockpiled or abandoned radioactive material that may result from activities or operations regulated by this measure after the activities or operations have ceased. A radiation protection cessation may impose any requirement of a kind that could be imposed as a condition of an authorisation that is reasonably required for the purpose for which the order is issued (including a requirement of a kind that could be imposed in a radiation protection order issued under clause 54). A person may appeal to the ERD Court against an order. However, radiation protection cessation orders cannot be issued in relation to activities or operations that cease before the commencement of this clause.

56—Action on non-compliance with radiation protection order

This clause provides that if the requirements of a radiation protection order or radiation protection cessation order are not complied with, any action required by the order can be taken by the Minister or on behalf of the Minister by an authorised officer or other person authorised by the Minister for the purpose. Reasonable costs and expenses incurred by the Minister in taking action can be recovered by the Minister as a debt from the person who failed to comply with the order and amounts recoverable by the Minister incur interest at the prescribed rate if not paid within a certain period of time. Until paid, any amounts recoverable are a charge in favour of the Minister on any land owned by the person.

57—Reparation orders

This clause empowers the Minister to issue a reparation order if satisfied that a person has caused harm to people or the environment by breaching the general duty of care, contravening a condition of an accreditation or authorisation, or contravening the measure. Such an order can require the person to take specified action within a specified period to make good any resulting damage to people or the environment, or to make a payment or payments into an approved account to enable action to be taken to address any harm to people or the environment, or both. Emergency reparation orders may be issued by authorised officers. A person may appeal to the ERD Court against an order.

58—Action on non-compliance with reparation order

This clause provides that if the requirements of a reparation order, any action required by the order can be taken by the Minister or on behalf of the Minister by an authorised officer or other person authorised by the Minister for the purpose. Reasonable costs and expenses incurred by the Minister in taking action can be recovered by the Minister as a debt from the person who failed to comply with the order and amounts recoverable by the Minister incur interest at the prescribed rate if not paid within a certain period of time. Until paid, any amounts recoverable are a charge in favour of the Minister on any land owned by the person.

59—Variation or revocation of orders

This clause empowers the Minister to vary or revoke radiation protection orders, radiation protection cessation orders and reparation order.

60—Offences

This clause makes it an offence for a person to whom radiation protection order, radiation protection cessation order or reparation order is issued to fail to comply with the order. The maximum penalty is $100,000. The offence is expiable by a fee of $3,000. The clause also makes it an offence for a person to hinder or obstruct a person complying with a radiation protection 20 order, radiation protection cessation order or reparation order. The maximum penalty is $100,000.

61—Reparation authorisations

This clause empowers the Minister to issue a reparation authorisation if satisfied that a person has caused harm to people or the environment by breaching the general duty of care, contravening a condition of an accreditation or authorisation, or contravening the measure. Such an authorisation allows authorised officers or other persons authorised by the Minister for the purpose may take specified action on the Minister's behalf to make good any harm to people or the environment. A reparation authorisation may include authorisation for action to be taken to prevent or mitigate further harm to people or the environment. The reasonable costs and expenses incurred by the Minister in taking action under a reparation authorisation may be recovered by the Minister as a debt from the person who caused the relevant harm. Amounts recoverable by the Minister incur interest at the prescribed rate if not paid within a certain period of time. Until paid, any amounts recoverable are a charge in favour of the Minister on any land owned by the person.

62—Related matter

This clause provides that a person cannot claim compensation from the Minister or the Crown, an authorised officer or a person acting under the authority of the Minister or an authorised officer in respect of a requirement imposed under this Part or on account of any act or omission undertaken or made in the exercise (or purported exercise) of a power under this Part.

63—Registration of orders or authorisations by Registrar-General

This clause provides for the registration of orders and authorisations by the Registrar-General if they are issued in relation to an activity carried out on land, or if they require a person to take action on or in relation to land.

64—Effect of charge

This clause provides that a charge imposed on land under this Part has priority over any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land, and any other charge on the land other than a charge registered prior to registration under this Division of the relevant order or authorisation in relation to the land.

Subdivision 2—Orders made by ERD Court

65—Orders made by ERD Court

This clause sets out the orders that the ERD Court is empowered to make.

Division 2—Civil penalties

66—Civil penalties

This clause provides for civil penalties. If the Minister is satisfied that a person has committed an offence by contravening a provision of this measure, the Minister may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the contravention.

Division 3—Authorised officers

67—Appointment of authorised officers

This clause provides for the appointment of authorised officers.

68—Identity cards

This clause requires an authorised officer to be issued with an identity card which must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this measure, produce for the inspection of the person.

69—Powers of authorised officers

This clause sets out the powers of authorised officers in connection with the administration or enforcement of the measure.

70—Provisions relating to warrants

This clause empowers magistrates to issue warrants in respect of places or vehicles authorising authorised officers, with such assistants as authorised officers consider necessary, to use reasonable force to break into or open any part of, or anything in or on, the place or vehicle.

71—Provisions relating to seizure

This clause makes provision in relation to things seized by authorised officers under a seizure order. It provides for forfeiture of seized things where a person is convicted or found guilty of an offence. If proceedings for an offence are not instituted within the prescribed time or the person is found not guilty, the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure. If the thing is the subject of a seizure order the order is discharged.

72—Offences against authorised officers and other persons engaged in administration of Act

This clause provides that a person is guilty of an offence if the person—

(a) without reasonable excuse hinders or obstructs an authorised officer or other person engaged in the administration of this measure; or

(b) fails to comply with a notice given by an authorised officer under section 71; or

(c) fails to answer a question put by an authorised officer to the best of the person's knowledge, information or belief; or

(d) produces a document or record that the person knows, or ought to know, is false or misleading in a material particular; or

(e) being the person in charge of a place or vehicle subject to an inspection and having been required to provide reasonable assistance to facilitate the inspection, refuses or fails to provide such assistance; or

(f) fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this measure; or

(g) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or

(h) falsely represents, by words or conduct, that the person is an authorised officer,

The clause also makes it an offence for a person to assault an authorised officer, or a person assisting an authorised officer, in the exercise of powers under this measure. In both cases the maximum penalty is $20,000.

Division 4—Power to require or obtain information

73—Information discovery orders

This clause empowers the Minister to issue information discovery orders to obtain information reasonably required by the Minister for the administration or enforcement of this measure. A person to whom such an order is issued must comply with the order. The maximum penalty is $50,000.

74—Obtaining of information on non-compliance with order or condition of accreditation or authorisation

This clause empowers the Minister to take such action as is reasonably necessary to obtain information if a person fails to provide it as required by an information discovery order or a condition of an accreditation or authorisation. The reasonable costs and expenses incurred by the Minister in taking action may be recovered by the Minister as a debt from the person whose failure gave rise to the action.

Division 5—Miscellaneous

75—Recovery of economic benefit

This clause provides that if in any proceedings under this measure, a court finds that a person has contravened this measure, the court may, in addition to any penalty that it may impose, order the person to pay to the Minister an amount not exceeding the court's estimation of the amount of economic benefit acquired by the person, or accrued or accruing to the person, as a result of the contravention.

Part 8—Miscellaneous

76—Exemptions

This clause empowers the Minister to grant exemptions from compliance with specified provisions of this measure. A person who has the benefit of an exemption and who contravenes a condition of the exemption is guilty of an offence. The maximum penalty if the contravention of the provision in relation to which an exemption was granted is a minor indictable offence is, in the case of a body corporate $250,000 or in the case of a natural person $50,000 or imprisonment for 5 years or both. If the contravention is not a minor indictable offence the maximum penalty is $100,000 in the case of a body corporate or $20 000 in the case of a natural person.

77—Register of accreditations, authorisations, exemptions and permits

This clause requires the Minister to keep a register of accreditations, authorisations, exemptions and permits, which must be kept available for inspection by any person. A person may obtain a copy of part of the register. However, the Minister may restrict access to the register if the Minister considers it necessary to prevent a threat to the security of radioactive material, to protect the health or safety of the public or for any prescribed reason.

78—Adoption of documents forming part of National Directory

This clause empowers the Minister to adopt a document (such as a standard, guidance note or code of practice) forming part of the National Directory or to vary or revoke such an adoption. A document so adopted must be kept available for inspection by any person without fee. The National Directory is the National Directory for Radiation Protection published by the Australian Radiation Protection and Nuclear Safety Agency of the Commonwealth, as published or in force from time to time, and includes any code, standard, guideline, rule, specification or other document adopted by or incorporated in the National Directory for Radiation Protection, whether as published or in force on a particular date, or as published or in force from time to time.

79—Confidentiality

This clause prohibits a person engaged or formerly engaged in the administration of this measure or the Radiation Protection and Control Act 1982 must not divulge or communicate information obtained (whether by that person or otherwise) in the course of official duties except in accordance with the clause. The maximum penalty is $20,000. The clause does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. Information that has been disclosed for a particular purpose must not be used for any other purpose by the person to whom the information was disclosed, or any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure. The maximum penalty is $20,000.

80—Offences and ERD Court

This clause provides that offences constituted by this measure (other than major indictable offences) lie within the criminal jurisdiction of the ERD Court.

81—Constitution of ERD Court

This clause makes provision for the constitution of the ERD Court when it is exercising jurisdiction under this measure.

82—Commencement of proceedings

This clause specifies the time limits within which proceedings for an offence against this measure may be commenced.

83—Offences by officers of bodies corporate

This clause provides that if a body corporate contravenes a provision of this measure, a person who is an officer of the body corporate is (subject to the general defence in clause 86), guilty of a contravention of this measure and liable to the same penalty as may be imposed for the principal contravention when committed by a natural person.

84—Vicarious liability

This clause provides that for the purposes of this measure, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency.

85—Continuing offences

This clause provides penalties for continuing offences.

86—General defence

This clause provides that it will be a defence in criminal proceedings in respect of an alleged contravention of this measure (proceedings against a body corporate or a natural person where conduct or a state of mind is imputed to the body or person under this Part and proceedings against an officer of a body corporate under this Part), if it is proved that the alleged contravention did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature. This defence includes the defence that the act or omission alleged to constitute the contravention was justified by the need to protect life, the environment or property in a situation of emergency and that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency.

If a body corporate or other employer seeks to establish the defence provided by this clause by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this measure, that proof must be accompanied by proof—

(a) that proper systems and procedures were also in place by which any such contravention or risk of such contravention of this measure that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and

(b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this measure and with all such systems and procedures within all relevant areas of the workforce

87—Notice of defence

This clause provides that a person who, in criminal proceedings, intends to rely on the general defence under this Part or any other defence under this measure can only do so if the person gives notice of that intention to the Minister within a certain specified time.

88—Imputation of conduct or state of mind of officer, employee etc

This clause provides that for the purposes of proceedings for an offence against this measure, the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of their actual, usual or ostensible authority 20 will be imputed to the body corporate, and the conduct and state of mind of an employee or agent of a natural person acting within the scope of their actual, usual or ostensible authority will be imputed to that person

89—Statutory declarations

This clause empowers the Minister or a prescribed authority to require information provided to the Minister or the authority to be verified by statutory declaration (in which case a person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Minister or prescribed authority).

90—False or misleading statement

This clause makes it an offence for a person to make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this measure. The maximum penalty is $50,000.

91—False or misleading report

This clause makes it an offence for a person to make a false or misleading report to the Minister or a person engaged in the administration of this measure, knowing that the report is false or misleading. The report must of a kind that would reasonably call for investigation or action by the Minister or a person engaged in the administration of this measure. if a person is convicted of such an offence, the court must, on application by the Minister, order the convicted person to pay to the Minister the reasonable costs and expenses incurred by or on behalf of the Minister in carrying out an investigation or taking action as a result of the false or misleading report.

92—Self-incrimination

This clause provides that it is not a reasonable excuse for a person to fail to answer a question or to produce, or provide a copy of, a document or information as required under this measure on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. However, if compliance by a natural person with a requirement under this measure might tend to incriminate the person or make the person liable to a penalty, then—

(a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or

(b) in any other case—the answer given in compliance with the requirement,

is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement).

93—Evidentiary provisions

This clause contains evidentiary provisions for the purposes of proceedings under the measure.

94—Service

This clause makes provision for the service of documents.

95—Recovery of fees and other amounts due to Minister

This clause provides that a fee or other amount payable under this measure is recoverable by action in a court of competent jurisdiction as a debt due to the Minister

96—Recovery of administrative and technical costs associated with contraventions

This clause provides for the recovery by the Minister of costs and expenses incurred by the Minister in taking samples or in conducting tests, examinations or analyses where a person has contravened this measure and the Minister has taken action to investigate the contravention, issue an order under Part 7 Division 1 or ensure that the person has complied with such an order or with an order made by a court. A person who fails to pay an amount payable to the Minister in accordance with this guilty is guilty of an offence and subject to a maximum penalty of $5,000. The offence is expiable by a fee of $315.

97—Assessment of reasonable costs and expenses

This clause provides that, for the purposes of this measure, the reasonable costs and expenses that have been or would be incurred by the Minister in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by an independent contractor engaged for that purpose.

98—Regulations and fee notices

This clause empowers the Governor to make regulations. It provides that the regulations can create summary and minor indictable offences and fixed the maximum penalties that may be prescribed. In the case of a minor indictable offence the maximum is $100,000 in the case of a body corporate and $20,000 or imprisonment for 5 years or both in the case of a natural person. In the case of a summary offence the maximum is $50,000 in the case of a body corporate or $10,000 in the case of a body corporate. The regulations may prescribe expiation fees not exceeding $5,000 in the case of a body corporate or $1,000 in the case of a natural person. This clause also empowers the Minister to prescribe fees by fees notice under the Legislation (Fees) Act 2019.

99—Review of Act

This clause provides that the Minister must cause a review of the operation of this measure to be conducted and a report on the results of the review to be submitted to the Minister. The first review must be conducted within the period of 12 months after the tenth anniversary of the commencement of this measure and subsequent reviews must be conducted every 10 years. The Minister must, within 12 sitting days after receiving a report of a review, cause copies of the report to be laid before both Houses of Parliament.

Schedule 1—Application of this Act to Roxby Downs Joint Venturers

This Schedule provides that this measure applies in relation to operations of the Joint Venturers under the Olympic Dam and Stuart Shelf Indenture ratified by the Roxby Downs (Indenture Ratification) Act 1982 subject to the modifications set out in this Schedule.

Schedule 2—Related amendments, repeals and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Environment Protection Act 1993

2—Substitution of section 91

This clause substitutes section 91 of the Act so that it mirrors the provisions relating to self-incrimination in clause 92 of this measure.

Part 3—Repeal of Radiation Protection and Control Act 1982

3—Repeal of Act

This clause repeals the Radiation Protection and Control Act 1982

Part 4—Transitional provisions

4—Radiation Protection Committee

This clause provides that on its commencement all members of the Radiation Protection Committee then in office vacate their respective offices so that fresh appointments may be made to the Committee under this measure.

5—Authorised officers

This clause provides for authorised officers appointed under the repealed Act and holding office immediately before the commencement of this clause to be taken to be authorised officers appointed under this measure, and for their appointments to be subject to the same conditions (if any) as under the repealed Act.

6—Certain licences to continue as radiation management licences

This clause provides for licences under sections 23A, 24, 29A and 33A of the repealed Act in force immediately before the commencement of this clause to be taken to be radiation management licences under this measure subject to the same conditions (if any) as under the repealed Act. It also allows the Minister to fix a common expiry date for 2 or more radiation management licences held by the same person.

7—Certain licences to continue as radiation use licences

This clause provides for licences under sections 28 and 31 of the repealed Act in force immediately before the commencement of this clause to be taken to be radiation use licences under this measure subject to the same conditions (if any) as under the repealed Act. It also allows the Minister to fix a common expiry date for 2 or more radiation use licences held by the same person.

8—Registrations to continue

This clause provides for registrations under section 29, 30 and 32 of the repealed Act in force immediately before the commencement of this clause to be taken to be registrations under this measure subject to the same conditions (if any) as under the repealed Act. It also allows the Minister to fix a common expiry date for 2 or more registrations held by the same person.

9—Accreditations to continue

This clause provides for accreditations under Part 3 Division 3B of the repealed Act in force immediately before the commencement of this clause to be taken to be accreditations under Part 4 Division 5 of this measure subject to the same conditions (if any) as under the repealed Act.

10—Directions relating to dangerous situations to continue

This clause provides for directions given under section 42 of the repealed Act in force immediately before the commencement of this clause to be taken to be directions given under clause 46 of this measure.

11—Exemptions to continue

This clause provides for exemptions under 44 of the repealed Act in force immediately before the commencement of this clause to be taken to be exemptions under clause 76 of this measure subject to the same conditions (if any) as under the repealed Act.

Debate adjourned on motion of Hon. T.T. Ngo.

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