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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-04 Daily Xml
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Radiation Protection and Control Bill

Final Stages

Consideration in committee of message No. 89 from the House of Assembly.

Amendment No. 3:

The Hon. J.M.A. LENSINK: I move:

That the council does not insist on its amendment No. 3.

The other place has considered the amendments to this bill that were passed in the Legislative Council on 15 October last year. The assembly has agreed to six of the seven amendments but disagreed with amendment No. 3, which seeks to amend clause 49. Six out of seven demonstrates a strong collaborative approach between the houses on this important legislation. The government supported four of the amendments when the bill was initially considered in this place and has amended its position on two of the other amendments since then.

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the other place, the government agreed to amendment No. 2 at clause 28, which removes the ability for the clause to be repealed by proclamation, and amendment No. 4 at clause 65, which allows the court to consider whether an applicant is furthering a wider group interest or the public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

The government has given further consideration to amendment No. 3 following its passage in this place and remains of the view that it is deficient and cannot be supported. This was reflected in debate in the other place, where the amendment was disagreed to with the support of the opposition. The opposition indicated in the other place that it would hold the same position in the Legislative Council.

Amendment No. 3 would allow the EPA to set regulatory obligations on the mining and mineral processing industry contrary to national and international standards that are based on internationally recognised, best available science—national and international standards recognised by the United Nations.

In 2004, the then Labor South Australian government agreed through the Australian Health Ministers Conference to implement the National Directory for Radiation Protection, which establishes a nationally agreed and uniform approach to radiation protection and safety. The adoption of national standards and codes of practice are a key part of national uniformity in radiation protection and reflect the best available international science.

The amended provision would not apply to Olympic Dam due to the Roxby Downs Indenture, so for BHP the international standards would remain in place. During the second reading in this place, the Hon. Mr Parnell noted his intention that the amendment was to apply to Olympic Dam, so it does not actually even achieve that objective.

Instead, it would create an unlevel playing field in the mining industry, allowing the EPA to set different rules for each of the other mining companies licensed under the legislation, which include Heathgate, Boss Resources, Murray Zircon, Iluka and OZ Minerals, without any scientific basis or any certainty for business as to what those limits might be. The EPA could unilaterally apply whatever limits it likes that are more stringent than the international standards. We do not believe that parliament should be establishing legislative schemes that create unnecessary and unwarranted uncertainty for business.

In reality, however, I am advised that the EPA would simply not apply limits contrary to international best available science, and that is because this amendment makes no sense. The occupational standards we are talking about are applied equally across all industries where there is occupational exposure to radiation. Radiation does not act differently on people in different mines or different occupations. These are standardised dose limits applicable across the spectrum of occupations exposed to radiation based on best available science on the potential for impacts of radiation on the human body.

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

The Hon. K.J. MAHER: I place on the record that we will agree with what has come back from the House of Assembly.

The Hon. M.C. PARNELL: You are not giving me much to work with there, are you? The Greens strongly believe that the council should insist on its amendment. The council's amendment was to clause 49 of the bill, and I want to put that clause on the record again because it is a unique and bizarre provision that, as far as I am able to determine, exists nowhere else in Australia. It is a clause that ties the hands of regulators to ensure that South Australia can never be the safest jurisdiction. Clause 49 reads:

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 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.

That is the clause. When we last debated this bill on 15 October last year, I was pleased to have the support of the Labor Party for a number of important amendments. Back then, the Labor Party accepted an important legislative principle that when it comes to health and safety the parliament ought not constrain the executive to impose appropriately tough standards as informed by the best available evidence.

Last year, the minister in charge of the carriage of this bill took a swipe at some of the groups I had cited in support of the amendment. The minister said that I had applied some 'fairly undergraduate internet organisations to advance my causes'. This time, let me go a little bit higher up the food chain. I will go higher up the pecking order of credible organisations and I will start by quoting from the Australian Radiation Protection and Nuclear Safety Agency's publication, Fundamentals for Protection Against Ionising Radiation, published in 2014. This is a report from ARPANSA, our nation's peak federal radiation safety agency, on the very subject of this amendment. That report says:

Radiation science and epidemiology are continuously advancing scientific areas, and new data of relevance to management of radiation risks can be expected in the future, in particular (but not exclusively) as our understanding of the biology of cancer induction deepens, we gather more data on non-cancer effects, epidemiological studies provide data with increased statistical power, and we gain more understanding on environmental impact. Our basic scientific assumptions and risk models have so far proved to be robust and to accommodate the advancing frontiers of science.

This is the kicker:

However, regulators need to keep a watchful eye on scientific developments and make necessary changes to the framework for managing radiation risks as our understanding of such risks improves.

'Keeping a watchful eye'! That I think is the key part of the section I read out, but I will break it down a little bit further. When it says 'radiation science and epidemiology are continuously advancing scientific areas'—they are the words ARPANSA has used—how do we best respond to that continuously changing environment? Is it by setting standards through legislation that can only be amended through the arduous process in parliament on the floor of each of the chambers, or does it make more sense to use subordinate legislation—so, regulations—or administrative licences and permits made by the executive, which can be nimble and can quickly respond to the latest medical knowledge or emerging threats to public safety?

I argue that the latter approach makes more sense. We tend not to put detailed numerical or quantifiable standards in acts of parliament; they go in the regulations and in the licences. My amendment would ensure that, if the threat posed by ionising radiation turns out to be greater than is currently internationally recognised, future governments would be quickly able to amend the relevant regulations or licences to reflect this new awareness. ARPANSA then goes on to say, 'Our basic scientific assumptions and risk models have so far proved to be robust and to accommodate the advancing frontiers of science.' They said that seven years ago.

One advantage of using delegated legislation or regulations and administrative licences—so, permits and approvals—is that they can respond quickly. Another benefit of this approach is that it can quickly fill in gaps: the parliament sketches the outline and the executive colours between the lines.

As 2020 demonstrated, there are limits to our capacity to anticipate the future. The minister and the opposition may claim to see no problems at all in clause 49 as it was drafted, but just because they do not see the problems does not mean they are not there lurking somewhere in the future. Former US Secretary of Defence Donald Rumsfeld famously referred to known unknowns and unknown unknowns, while author and former options trader Nassim Taleb wrote about the 'black swans': highly improbable and unanticipatable events.

In passing legislation in this place, we need to ensure that we give the executive the room to respond to the black swans, the unknown unknowns. This bill, as presented to the house by the government, presumes that the approach that has worked so far, according to ARPANSA, will always work into the future. This seems to also contradict the next piece of ARPANSA advice, which is that regulators need to keep a watchful eye on scientific developments.

The South Australian government is the regulator of ionising radiation in this state, not the commonwealth, not the National Health and Medical Research Council, not the International Commission on Radiological Protection or the International Atomic Energy Agency. It is the South Australian government, and the government's legislation asserts that we can close our watchful eyes and we can have a snooze while we handball responsibility for setting standards to others. This, I assert, goes against the express advice of the Australian Radiation Protection and Nuclear Safety Agency.

As I stated when I successfully moved my amendment last year, with the support of the ALP, in all likelihood the approach that has been adopted so far, the approach of accepting the assessment of all these other bodies when setting standards in South Australia, is most likely to remain the approach that will be taken by this government and subsequent governments. The minister, in her contribution just now, effectively said the same thing: as far as they are concerned, they are going to keep doing what they have always done in the past.

In fact, she pointed out that the EPA has said, 'Well, we are not going to deviate from these international standards. We're just going to keep doing what we've always done.' Therefore, this section is, by definition, an insult to the EPA and it is the government and the opposition saying, 'We do not trust what the EPA tells us they are going to do. We don't trust you, so we're going to write it in legislation that you can never—in a fit of pique or for any other reason—ever go against what the international or federal nuclear advice is. You cannot ever make sure that South Australian workers will be protected more than workers anywhere else.'

The minister is having it both ways. She is saying that she has advice from the EPA that they are not going to do anything different from normal, but because she does not trust them they are going to put in the legislation to say that they can never promote regulations or put things in licences that are tougher than these national standards.

My amendment I think is still well worth supporting because it ensures that South Australian authorities responsible for the health and safety of South Australian workers and the South Australian community will keep their watchful eye on this continuously changing field of scientific knowledge. If the standards need to be strengthened, that is what we should do. We should not be ashamed about being the first to do the right thing. It did not stop us when extending the vote to women. It did not stop us introducing container deposit legislation or banning some single-use plastics. Why should we tie our own hands about being a leader in public health and safety?

The way I see it, the rejection of this sensible Greens amendment makes no sense at all. It is certainly my experience that, as medical knowledge advances, the most likely outcome is that we realise that certain chemicals or pollutants, or in this case radiation, are in fact more dangerous than we previously thought. Industry knows this and that is why industry always tries to get the government to lock in old standards into the future for fear that with new knowledge regulators might try to toughen them.

I go no further than the shameful approach this parliament took in relation to lead pollution in Port Pirie. The industry knew that as the Americans were doing more research they were discovering that lead was far more dangerous than we had first thought and they were going to toughen their standards. So what does the lead smelter do here? It goes screaming to the government and says, 'You've got to pass a law which says "You can never make lead pollution standards tougher unless we agree or unless the industry minister agrees."'

That, again, was a kick in the guts to the EPA. It is saying, 'We don't trust you to assess medical evidence. We don't trust you to assess the changes in research and understanding. We don't trust you at all. We're going to legislate to make sure that you can never impose on our mates tougher standards.' That is what they did with Port Pirie and lead, and what have we seen in the last year or so? More little kids with higher levels of lead in their blood, leading to developmental problems.

And here we are: even though we do not have as concrete an example with radiation, the government wants to put in place a measure to make sure that there can never be improvements made to occupational health and safety standards in this state unless it is on the back of what other people are doing elsewhere. We can never be the first.

In closing, I would say that the government might assert, as it has asserted, that this is all about maintaining national uniformity, but my question would be: if that is the case, why does not any other state have a section like this in their equivalent legislation? As far as the research I have done goes, I have not found one. I think they do not put them in because it does not make sense. It is poor legislative practice and it goes against the advice of the experts. So the Greens will be maintaining our insistence on this sensible amendment and we will be voting against its deletion from the bill.

The CHAIR: The question I will put will be in the positive form, that the Legislative Council amendment No. 3 be insisted on. So those who wish to not insist will vote no. The question is that the Legislative Council amendment No. 3 be insisted on.

The committee divided on the question:

Ayes 4

Noes 16

Majority 12

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

Question thus resolved in the negatived.

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