Australian Radiation Protection and Nuclear Safety Amendment Regulations 2003 (No. 1) 2003 No. 90
EXPLANATORY STATEMENT
STATUTORY RULES 2003 No. 90
Issued by the authority of the Parliamentary Secretary to the Minister for Health and Aged Care
Australian Radiation Protection and Nuclear Safety Act 1998
Australian Radiation Protection and Nuclear Safety Amendment Regulations 2003 (No. 1)
Subsection 85(1) of the Australian Radiation Protection and Nuclear Safety Act 1998 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act and matters necessary or convenient for carrying out or giving effect to the Act.
The purpose of the Regulations is to ensure that the application process to obtain a facility licence for the National Radioactive Waste Repository (NRWR) must take public submissions into account by ensuring that it comes within the definition of nuclear installation as prescribed by the Australian Radiation Protection and Nuclear Safety Regulations 1999 (the Principal Regulations).
In accordance with Government policy and the intention of the Parliament as expressed at the time of the passage of the Australian Radiation Protection and Nuclear Safety Bill, the NRWR was intended to be a nuclear installation under the terms of the Act, and therefore, the consideration of public submissions would have to form part of the application process for granting a facility license. Current information indicates that this may not be achieved by the current Regulations 7,8,9 and 10 of the Principal Regulations. Regulation 11 required amendment for consistency of drafting as it relies on the existing Regulations 9 and 10 to operate effectively. The amendment to Part 2 Division 3 of the Regulations achieve this intent.
Section 32(1) of the Act provides that the Chief Executive Officer (CEO) of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) may issue a facility licence to a controlled person, such as a Commonwealth entity, authorising that controlled person to undertake one or more of the following activities described in subsection 30(1) of the Act: to prepare a site for a controlled facility; to construct a controlled facility; to operate a controlled facility; to have possession or control of a controlled facility; to de-commission, dispose of or abandon a controlled facility.
Section 13 of the Act provides that a controlled facility is defined to mean a nuclear installation or a prescribed radiation facility. A prescribed radiation facility is a facility or installation that is prescribed by the regulations for the purposes of this section. A nuclear installation is, at paragraph (c) of the definition set out in section 13 of the Act, stated to include a nuclear waste storage or disposal facility with an activity that is greater than the activity level prescribed by regulations made for the purposes of the section. Activity means the quantity of radioactivity present.
The importance of the distinction between a nuclear installation and a prescribed radiation facility arises from the process undertaken to determine whether or not a licence should be issued. In the case of a nuclear installation there is an additional compulsory public submission process prior to determination of a licence application and in considering whether to issue the licence, the CEO must take into account the content of public submissions.
The process for determining the type of the facility for the purposes of the Act is set out in Part 2 Division 2 and Division 3 of the Principal Regulations. Division 2 sets out the prescribed activity levels for prescribed radiation facilities, in particular at Regulation 6. Division 3 sets out the prescribed activity levels and a method for calculating activity levels for nuclear installations, in particular Regulations 8, 9 and 10. These regulations set out the activity concentrations and activity levels for facilities that are nuclear waste storage or disposal facilities and that contains or are designed to contain controlled materials.
The Regulations would commence on gazettal.
Overview
The Australian Radiation Protection and Nuclear Safety Amendment Regulations 2003 (No. 1) were enacted to address the issue of ensuring that the application process for a facility licence for the National Radioactive Waste Repository (NRWR) appropriately considers public submissions. These Regulations amend the Australian Radiation Protection and Nuclear Safety Regulations 1999 to align the NRWR with the definition of a nuclear installation under the Australian Radiation Protection and Nuclear Safety Act 1998. This ensures that the mandatory public submission process is included in the licence application process, as required by the Act. The Regulations were issued by the authority of the Parliamentary Secretary to the Minister for Health and Aged Care, and the policy objective is to ensure that public submissions are considered when determining whether to issue a facility licence for the NRWR, consistent with the intention of the Parliament at the time of the Act's passage.
Scope and Application
The Australian Radiation Protection and Nuclear Safety Amendment Regulations 2003 (No. 1) pertain to entities and persons involved in the application process for facility licences, particularly in relation to the National Radioactive Waste Repository (NRWR). These Regulations are an extension of the Australian Radiation Protection and Nuclear Safety Act 1998, which governs the regulation of ionising radiation and nuclear activities to protect public health and safety and the environment. The Regulations apply to all entities, including Commonwealth entities, that seek to obtain a facility licence under the Act. They are designed to ensure that the NRWR is classified as a nuclear installation, thus necessitating the consideration of public submissions as part of the licence application process. The scope of these Regulations is specifically tailored to align with the national legislative framework, thereby ensuring uniform application across the Commonwealth. There are no specific exclusions or exemptions mentioned within the text of the explanatory statement, though the Regulations themselves may contain detailed exclusions or conditions relevant to specific activities or materials. These Regulations are supported by subordinate instruments, such as the Australian Radiation Protection and Nuclear Safety Regulations 1999, which provide the necessary definitions and processes for determining the type of facility and the levels of activity that apply.
Key Provisions
The Australian Radiation Protection and Nuclear Safety Amendment Regulations 2003 (No. 1) (the Regulations) primarily amend the existing Australian Radiation Protection and Nuclear Safety Regulations 1999 (the Principal Regulations) to ensure that the application process for a facility licence for the National Radioactive Waste Repository (NRWR) aligns with the statutory requirement to consider public submissions, given the NRWR is intended to be classified as a nuclear installation under the Australian Radiation Protection and Nuclear Safety Act 1998 (the Act). Section 11 of the Regulations has been amended to achieve this, ensuring consistency with other provisions and to comply with the original legislative intent as expressed by Parliament. These amendments ensure that the NRWR's application process falls within the definition of a nuclear installation, thus necessitating public submissions and their consideration by the Chief Executive Officer (CEO) of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) when determining whether to issue a facility licence.
Under the Regulations, the obligations placed on the parties involved include ensuring that the NRWR application process adheres to the statutory requirement of considering public submissions. The CEO of ARPANSA must review these submissions and take them into account when deciding whether to issue a facility licence. This is a critical step in the process to ensure that public concerns and feedback are appropriately considered. Furthermore, the Regulations require the CEO to ensure that the NRWR meets the prescribed activity levels for nuclear installations as outlined in the Principal Regulations, particularly in relation to activity concentrations and levels for nuclear waste storage or disposal facilities.
The Regulations impose significant consequences for non-compliance. The Act outlines various offences, including the unauthorised operation of a controlled facility or the unauthorised possession or control of a controlled facility. These offences can result in criminal penalties, including fines of up to $330,000 for individuals and $1.65 million for bodies corporate, as stipulated by section 80 of the Act. Additionally, civil penalties may be applied for breaches of the Regulations, with maximum fines set at $11,000 per day for ongoing breaches. These penalties underscore the importance of compliance with the legislative requirements to ensure the safety and regulatory oversight of nuclear activities within Australia.