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13891 Cat. No, 97 2921 6 ISBN 0644
519630
1998
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY BILL
1998
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the Parliamentary Secretary to the Minister for Health and Family Services,
the Hon. Trish Worth, MP)
AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY BILL
1998
OUTLINE
This Bill proposes to establish a scheme to regulate the operation of
nuclear installations and the management of radiation sources, including
ionising material and apparatus and non-ionising apparatus, where these
activities are undertaken by the Commonwealth, Commonwealth entities and those
who deal with such entities for the purposes of the Bill.
The object of
the Bill is the protection of the health and safety of people, and the
protection of the environment, from the harmful effects of radiation. For this
purpose, the Bill:
(a) establishes an office, to be known as the Chief
Executive Officer of the Australian Radiation Protection and Nuclear Safety
Agency, for the purposes of performing functions and exercising powers under the
Bill;
(b) establishes a licensing scheme for the regulation of nuclear
installations operated by the Commonwealth or Commonwealth entities, from the
time at which plans are drawn up to construct an installation through all its
stages of operations until it is de-commissioned;
(c) establishes a
licensing scheme for the regulation of ionising sources and certain non-ionising
sources where these are dealt with by the Commonwealth, and Commonwealth
entities;
(d) establishes a Radiation Health and Safety Advisory Council,
with members to be drawn from organisations such as State and Territory Health
agencies, peak industry groups, scientific and technical experts and consumer
groups. The Council will have functions including advising the CEO on matters
relating to radiation protection and nuclear safety, including the development
of uniform standards and codes of practice and the development of uniform
regulatory requirements for the regulation of radiation sources throughout
Australia.
FINANCIAL IMPACT STATEMENT
The Australian Radiation Protection and Nuclear Safety Act
1998 will not have any significant financial impact for the Commonwealth.
There will be notional transfers of monies between Commonwealth
Departments.
AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY BILL 1998
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1 - Short
title
This is a formal provision that specifies the short title of
the Act as the Australian Radiation Protection and Nuclear Safety Act
1998.
Clause 2 - Commencement
This clause provides that
the Act will commence on the day on which it is Proclaimed or, if the Bill is
not Proclaimed within 6 months from the day it receives Royal Assent, it will
commence to operate on the day following the end of that
period.
Clause 3 - Object of Act
This clause sets out the
purposes of the Act, which is to protect the health and safety of people, and to
protect the environment, from the harmful effects of radiation.
Clause
4 - Act binds the Crown
This clause provides that the Act will bind
the Crown in right of the Commonwealth and each of the States and Territories,
however the Commonwealth may not be prosecuted for the commission by it of any
offence against this Act or regulations.
Clause 5 - External
Territories
This clause provides that the Act will have application
in every external Territory.
Clause 6 - Extra territorial
operation
This clause provides that the Act will apply outside
Australia. This means that persons who are regulated under the Act will
continue to be regulated whether or not they are in Australia.
Clause
7 - Act not to prejudice Australia's defence
This clause provides
that the Act will not apply to the operation of the Defence Forces so as to
prejudice Australia's defence.
Subclause 7(1) provides that no
person will be required or permitted to take any action, or to refrain from
taking action, where this could reasonably be expected to, or would, prejudice
Australia's defence.
Subclause 7(2) provides that, without qualifying the exemption from
the Act in the manner described in subclause 7(1), the Chief of Defence Force
may, after consulting with the Minister administering the Act, declare that
specific provisions of the Act or regulations will not apply to specific
members, or a class or classes of members, of the Defence Force, or that
specific provisions of the Act or regulations will only apply to such members or
classes of members subject to such modifications as are detailed in the
declaration.
When making such a declaration, subclause 7(3)
requires the Chief of the Defence Force to take into account the need to give
effect to the object of the Act to the greatest extent possible consistent with
maintaining Australia's defence. Subclause 7(4) provides that any
declaration made by the Chief of the Defence Force pursuant to this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Clause 8 - Act not to prejudice national
security
This clause has the same effect as clause 7, except that the
provision will have application to ensure there is no prejudice to national
security.
Under subclause 8(2),the Director-General of Security
may, after consulting with the Minister, declare in writing that specified
provisions of the Act or regulations do not apply, or apply subject to such
modifications as are set out in the declaration, in relation
to:
(a) premises or a workplace under the control of the
Director-General; or
(b) a person who is employed under section 84 of the
Australian Security Organisation Act 1979;
(c) the performance of work
by such a person for the purpose of carrying out a function under section 17 of
that Act.
The declaration will have effect according to its
terms.
Where the Director-General exercises his or her power under
subclause 8(2), the Director-General is required, under subclause 8(3),
to take into account the need to promote the object of the Act to the greatest
extent consistent with the maintenance of Australia's national security
.
Subclause 8(4) provides that any declaration made by the
Director-General under subclause 8(2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
Clause 9 - Operation of Act
Subclause 9(1)
makes it clear that this Bill is not to exclude the operation of the Nuclear
Non-Proliferation (Safeguards) Act 1987, to the extent that the Safeguards
Act can operate concurrently with this Bill. This means that requirements under
both enactments must be complied with to the extent that this is possible,
otherwise the provisions of the Bill will prevail.
Subclause 9(2) provides that the application of any provision of this
Bill in relation to “nuclear material” and associated items within
the meaning of the Nuclear Non-Proliferation (Safeguards) Act 1987 (the
Safeguards Act) may be modified by the regulations. This provision will enable
appropriate changes to be made, where necessary, to ensure that those
requirements under the Safeguards Act, which give effect to Australia's
international obligations in relation to, among other things, nuclear material
(eg the Convention on the Physical Protection of Nuclear Material and the
Treaty on the Non-Proliferation of Nuclear Weapons), will continue to be met
under the Bill.
Clause 10 - Offences
This clause describes
how the offences provisions will work.
Subclause 10(1) provides
that Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 sets out the general principles of criminal
responsibility.
Subclause 10(2) provides that a maximum penalty
specified at the end of a section or at the end of a subsection, where a section
is so divided, means that a person who contravenes the section or subsection, as
the case may be, is guilty of an offence against that particular section or that
particular subsection, and if convicted that person may be punished by a penalty
up to the maximum penalty specified for that section or
subsection.
PART 2 - DEFINITIONS
Clause 11 -
Definitions
This clause sets out a number of definitions for words
that are used in the Act. These definitions determine the meaning that is to be
attributed to certain words whenever they are used in the Act or regulations.
Key definitions include:
“controlled apparatus”, which is
defined to mean:
(a) an apparatus that produces ionizing radiation when
energised or that would, if assembled or repaired, be capable of producing
ionizing radiation when energised;
(b) an apparatus that produces ionizing
radiation because it contains radioactive material;
(c) an apparatus
prescribed by the regulations that produces harmful non-ionizing radiation when
energised.
“controlled facilities” means a nuclear
installation or a prescribed radiation facility. Both terms “nuclear
installation” and “prescribed radiation facility” are defined
in clause 11.
“controlled person” means any of the
following:
(a) a Commonwealth entity;
(b) a Commonwealth
contractor
(c) a person in the capacity of an employee of a Commonwealth
contractor;
(d) a person in a prescribed Commonwealth
place.
“ionizing radiation” refers to electromagnetic or
particulate radiation capable of producing ions directly or indirectly, but does
not include electromagnetic radiation of a wavelength greater than 100
nanometres.
“non-ionising radiation” refers to
electromagnetic radiation of a wavelength greater than 100
nanometres.
“radiation” means ionizing radiation or
non-ionizing radiation.
PART 3 - THE CEO OF ARPANSA
Clause
12 establishes the statutory office of a Chief Executive Officer, or
“CEO”, of “ARPANSA”. “ARPANSA” refers to
the Australian Radiation Protection and Nuclear Safety Agency, and is the
description given to the part of the Department of State, administered by the
Minister responsible for the Act, that will assist the CEO to implement and
enforce the Act.
Clause 13 - Functions of the CEO
This
clause sets out the functions of the CEO. Apart from those listed in paragraphs
13(1)(a) to (f) inclusive, the CEO may also assume such other functions as are
conferred by:
- this Act, such as issuing facility or source licences
to controlled persons under Part 5 of the Act and imposing licensing
conditions;
- regulations made under the Act;
- any other
law.
Subclause 13(2) requires the CEO to take all reasonable steps
to avoid any conflict of interest that may arise between the CEO's regulatory
functions and any other functions of the CEO.
Two instances where
possible conflicts of interests could arise were identified. One would be where
the CEO could exercise a power to impose a requirement upon a licence holder, or
persons covered by a licence, that could be perceived to financially advantage
the ARPANSA Reserve. For example, a requirement that certain controlled persons
wear radiation badges while working on certain premises covered by a licence may
have the effect of requiring these individuals or the licence holder to purchase
badges from ARPANSA, if ARPANSA is the only organisation that supplies the
badges. The other instance of a possible conflict of interest would be where
the CEO or his or her staff may be engaged in activities that come within the
terms of the Act being administered by the CEO.
In the former instance
where a possible conflict of interest may be perceived, this is addressed by the
provisions that subject the exercise of the CEO's powers, such as the imposition
of conditions on a licence holder or those covered by a licence, to review
first by the Minister and then by the Administrative Appeals Tribunal.
In the second instance, information relating to the operations of the CEO is
required to be included in the CEO's annual report to the Minister under Clause
47 of the Act. This report is required to be tabled in Parliament. In
addition, external audits may be conducted in relation to the CEO's
activities.
It is proposed that there will be both a procedural and a
structural separation within ARPANSA of the performance of its regulatory and
other functions, such as research and services, conducted for and on behalf of
the CEO.
Clause 14 - Minister's directions to CEO
This
clause provides that where the Minister is satisfied it is in the public
interest to do so, the Minister must give written directions to the CEO in
respect of the performance of the CEO's functions or the exercise of the CEO's
powers.
Subclause 14(2) requires the CEO to comply with any such
direction.
Subclause 14(3) provides that the Minister must cause
a copy of any notice given under subclause 14(1) to be tabled in each House of
Parliament within 15 sitting days of issuing that notice.
Clause 15 -
Delegation by the Minister
Subclause 15(1) enables the
Minister, by instrument in writing, to delegate his or her powers under clauses
7, 8 or 32 to the CEO. Under clauses 7 and 8, the Chief of the Defence Force
and the Director-General of Security respectively will be required to consult
with the Minister before exercising any of their powers to exempt or qualify the
operation of specified provisions of the Act in relation to their operations, in
the manner set out under clauses 7 and 8, to ensure that the Act will not
prejudice either Australia's defence or national security.
Subclause
15(2) enables the Minister to delegate his or her powers to review certain
licensing decisions made by the CEO listed under subclause 28(6) of the Act.
The Minister's review powers may be delegated to the Secretary of the
Department, the CEO and to a person holding, or performing the duties of a
Senior Executive Service office or its equivalent in the Department. A delegate
who reviews a decision should not have had any involvement in the making of that
decision being reviewed.
Subclause 15(3) enables the Minister to
give directions as to the manner in which delegates are to exercise their powers
as the Minister's delegates, and the delegates must comply with any such
direction whenever they are exercising powers as the Minister's
delegates.
Clause 16 - Delegation by CEO
This clause
makes provision for the CEO to delegate, by instrument in writing, any of
his/her powers or functions to a person holding, or performing the duties of a
Senior Executive Officer, or a Senior Officer or equivalent, in the Department.
Subclause 16(2) provides that when exercising powers or performing
functions as a delegate of the CEO, the delegate is required to comply with any
general directions of the CEO in respect of the manner in which the power should
be exercised.
PART 4 - RADIATION HEALTH AND SAFETY ADVISORY
COUNCIL
Clause 17 - Radiation Health and Safety Advisory
Council
This clause establishes the Radiation Health and Safety
Advisory Council. Members of the Council are to be appointed by the Minister in
accordance with any regulations made for the purposes of this
subsection.
Subclause 17(3) sets out the functions of the Council.
These are giving advice to the CEO on such matters relating to radiation
protection and nuclear safety as the Council considers appropriate and giving
advice to the CEO on matters referred to the Council by the
CEO.
PART 5 - REGULATION OF CONTROLLED MATERIAL, CONTROLLED
APPARATUS AND CONTROLLED FACILITIES
This Part establishes the
regulatory scheme for the regulation of “controlled material”,
“controlled apparatus” and “controlled
facilities”
DIVISION 1 - Prohibitions
Clause 18
- Construction, operation etc of nuclear installations or prescribed radiation
facilities
This clause sets out the prohibited activities relating to
nuclear installations or prescribed radiation facilities.
Subclause
18(1) provides that, unless a controlled person is either authorised
to do this by facility licence, or has otherwise been exempted under the
Regulations from the requirement to operate under a licence in relation to that
conduct, that person may not:
- prepare a site for a controlled facility.
This includes, for example, undertaking earthworks in preparation for the
construction of a controlled facility
- construct a controlled
facility;
- have control or possession of a controlled facility;
- operate
a controlled facility
- de-commission, dispose of or abandon a controlled
facility.
The maximum penalty for breaching this provision is 2000
penalty points - that is, $200,000 for an individual, and $1 million for a
corporation. The level of the penalty is designed to reflect the potential
significant risks to public health and safety and damage to the environment if
the operation of controlled facilities is not subject to appropriate regulation
and controls.
Subclause 18(2) provides that a holder of a facility licence must also
comply with the conditions of the licence. The maximum penalty for failing to
do this is 2000 penalty points, or such lower amounts as are prescribed in the
regulations for the breach of conditions that are of lesser significance as set
out in the regulations.
Under subclause 18(3), it will be a
requirement under this Act that a person covered by a facility licence must
comply with all conditions of a licence that are applicable to that person.
Clause 19 - Possession etc of controlled material or controlled
apparatus
This clause sets out the prohibited activities relating to
all dealings with of controlled material or controlled apparatus, as defined
under clause 11.
Subclause 19(1) prohibits a controlled person
from dealing with a controlled material or controlled apparatus
unless:
(a) the dealing is specifically permitted under the terms of a
source licence; or
(b) the dealing is exempted from the requirement to be
covered by a licence under the regulations. Any prescribed exemption would also
extend to exemptions for dealing with materials and apparatus used within a
licensed installation.
“Dealing” is defined in Clause 11 to
mean, in relation to a controlled apparatus or controlled material, any of the
following - to:
- possess, or have control of, the apparatus or
material;
- use or operate the apparatus, or use the material;
- dispose
of the apparatus or material.
The maximum penalty for failing to comply
with this requirement is 2000 penalty points. Again, the maximum level of the
penalty reflects the potential serious risks to public health and safety and to
the environment unless radiation sources are managed and dealt with in a manner
commensurate with the dangers and risks associated with their use or handling.
Subclause 19(2) provides a maximum penalty of 2000 penalty points
for a holder of a source licence who fails to comply with the conditions of a
licence, or such lower amount as is prescribed in the regulations for breaches
of conditions of a lesser significance set out in the regulations.
It
will be a requirement under subclause 19(3) for a person covered by a
source licence to comply with all the conditions of that licence that are
applicable to that person.
DIVISION 2 - Licences
Clause 20 - Issue of facility
licence
This clause relates to the issue of a facility licence.
Under subclause 20(1) the CEO may issue a licence to a controlled
person to authorise that person to do some or all of the things referred to in
subclause 18(1).
Subclause 20(2) permits any licence issued to
the Commonwealth to be issued in the name of a Department of State.
Subclause 20 (3) provides that in deciding whether to issue a
licence, the CEO is to take into account the matters prescribed in the
regulations.
Clause 21 - Issue of source
licence
Clause 21 relates to the issue of a source licence.
The CEO may issue such a licence to a controlled person to authorise that person
to deal with a controlled apparatus or a controlled material. Any licence
issued to the Commonwealth may be issued in the name of a Department of State.
In deciding whether or not to issue a licence, the CEO must take into account
the matters prescribed in the regulations.
Clause 22 - Application of
fees
Clause 22 provides that an application for a licence
must:
(a) be in a form approved by the CEO; and
(b) be accompanied by
such fees as are prescribed by the regulations.
Clause 23 - Licence
conditions
Subclause 23(1) provides that a licence is subject
to the following kinds of conditions:
(a) conditions set out under this
section;
(b) conditions prescribed by regulations;
(c) conditions imposed
by the CEO at the time he or she issues a licence;
(d) conditions imposed by
the CEO under subclause 24(2) after the licence is
issued.
Subclause 23(2) makes it clear that licence conditions may include
conditions that apply specifically to a particular apparatus or material,
including apparatus or material that may, after the issue of a licence, come
into the possession or control of persons covered by a licence issued under the
Act. Thus, by way of an example, conditions may be imposed relating to the
handling of a particular apparatus or material under either a source licence or
a facility licence. Those conditions “attach” to that particular
apparatus or material, so that in the event that particular apparatus or
material should be transferred to another location or premise or should come
into the possession or control of another controlled person or licence holder,
that controlled person or licence holder must comply with the conditions
attaching to that apparatus or material.
Subclause 23(3) imposes
a statutory condition on any person authorised by a facility licence to do any
of the things set out under subclause 18(1) to require that person to allow the
CEO, or a person authorised by the CEO, to enter and inspect the site or
facility at reasonable times at any time when the person has possession or
control of such a site or facility. A further condition is that such a person
must comply with any requirements specified in the regulations in relation to
such an inspection.
Subclause 23(4) provides for conditions
applying in relation to a source licence. Any person authorised by such a
licence to deal with controlled apparatus or controlled material must, at any
time when that person has possession or control of such apparatus or material,
allow the CEO or a person authorised by the CEO , to inspect the apparatus or
material at reasonable times. The person is also required to comply with any
requirements specified in the regulations in relation to such an
inspection.
Clause 24 - Amendment of licence
Subclause
24(1) provides that the CEO may amend a licence at any time by giving
written notice to the licence holder.
Subclause 24(2) provides
that, without limiting the broad power to amend a licence conferred upon the CEO
under subclause 24(1), one of the ways the CEO may amend the licence is by
imposing additional licence conditions, or removing or varying licence
conditions that were imposed by the CEO, or extending or reducing any term of
the authority granted by the licence.
Subclause 24(3) provides
that where a condition is specific to a particular apparatus or material, the
notice the CEO is required to give to the licence holder under subclause 24(1)
must be given to the licence holder who, according to the CEO's records, has
current possession or control of the material or apparatus at the time the
condition is imposed, removed or varied.
Clause 25 - Period of
licence
Clause 25 provides that a licence continues until it is
cancelled or surrendered in accordance with the Act.
Clause 26 -
Cancellation and suspension of licences
This clause provides that the
CEO may suspend or cancel a licence by notice in writing given to a licence
holder if:
(a) a condition of the licence has been breached, whether by the licence
holder or by a person covered by the licence; or
(b) the CEO believes on
reasonable ground that the licence holder, or a person covered by the licence,
has committed an offence against the Act or the regulations; or
(c) any
annual licence charge payable in respect of a licence remains unpaid after the
due date; or
(d) the licence was improperly obtained.
Clause 27 -
Surrender of licence
This clause provides that a holder of a licence
may surrender a licence only with the consent of the CEO, so that a licence
holder cannot avoid responsibilities under the licence by surrendering it.
Clause 28 - Review of licence decisions
This clause sets
out the review rights of certain persons affected by certain licensing
decisions.
Subclause 28(1) provides that an “eligible
person” in relation to a “licence decision” may apply to the
Minister for an internal review of a licence decision. The request for a review
must be in writing, and be given to the Minister within 90 days of the licence
decision being made.
Subclause 28(3) requires the Minister to
consider the original licence decision and confirm, vary or set aside that
decision. Under s.27A of the Administrative Appeals Tribunal Act 1975,
the person must be notified of his, her or its review rights to the
AAT.
Subclause 28(4) provides that if the Minister does not give
written notice of his or her decision on review within 60 days, then the
Minister is taken to have confirmed the original licence
decision.
Subclause 28(5) provides a right of appeal to the
Administrative Appeals Tribunal under the Administrative Appeals Act 1975
against the Minister's decision under subclause 28(3) to confirm, vary or set
aside the licence decision.
Subclause 28(6) defines what
“licence decision” and “eligible person” mean.
A “licence decision” means the decision of the
CEO:
(a) to refuse to grant a licence;
(b) to impose conditions on a
licence;
(c) to suspend a licence;
(d) to cancel a licence;
(e) to
amend a licence;
(f) not to approve the surrender of a
licence.
“eligible person” , in relation to a licence
decision, means
(a) in relation to a decision to refuse to grant a licence - the person who
applied for the licence; and
(b) in relation to any other licence decision -
the licence holder.
DIVISION 3 - Enforcement
Clause
29 - CEO may give directions to controlled persons
Clause 29 makes
provision for the CEO to give directions to controlled persons in certain
circumstances.
Subclause 29(1) provides that this clause applies
if the CEO believes, on reasonable grounds, that a controlled person is not
complying with the Act or Regulations in respect of a thing or
requirement under the Act or regulations and the CEO believes that it is
necessary to exercise powers under this section in order to protect the health
and safety of people or to avoid damage to the environment.
Subclause
29(2) provides the CEO with the power to give written directions to a
controlled person requiring the controlled person to take such steps in relation
to the thing or activity as the CEO considers appropriate.
Subclause 29(3) provides that the controlled person must take the
steps specified in the notice within the time specified in the notice. Failure
to comply with this requirement attracts a maximum penalty of $3,000 for an
individual, or $15,000 for a corporation.
Subclause 29(4)
provides that if the person directed under this section to take certain steps
does not comply with the terms of the notice within the specified time frame,
the CEO may arrange for those steps to be taken.
Subclause 29(5)
provides that if the Commonwealth incurs costs because of arrangements made by
the CEO under subclause 29(4), the person is liable to pay the Commonwealth an
amount equal to the costs incurred and that amount may be recovered by the
Commonwealth in court as a debt due to the Commonwealth.
Clause 30 -
Review of decisions to give directions
Subclause 30(1)
provides that where the CEO gives a direction to a controlled person under
clause 29, that controlled person may apply to the Minister for a review of that
direction.
Subclause 30(2) provides that a request for a review to
the Minister under this clause must be in writing and given to the Minister
within 90 days of the giving of the direction.
Subclause 30(3)
requires the Minister to reconsider the decision and confirm, vary or set aside
that decision.
Subclause 30(4) provides that if the Minister does not give written
notice of his or her decision on review within 60 days of the request for a
review, the Minister is taken to have confirmed the decision under subclause
30(3).
Subclause 30(5) provides an avenue of appeal to the
Administrative Appeals Tribunal against the Minister's decision under subclause
30(3) to confirm, vary or set aside the decision..
Clause 31 -
Injunctions
If person has engaged, or is engaging, or is proposing to
engage in any conduct that is or would be an offence against the Act or
regulations, subclause 31(1) provides that the Federal Court may grant an
injunction, on application by the CEO, to restrain that person from engaging in
that conduct.
Likewise if a person has refused or failed, or is refusing
or failing, or is proposing to refuse or fail, to do anything and such a refusal
or failure is or would be an offence against this Act, then the Federal Court
may, on application by the CEO, grant an injunction requiring the person to do
the thing.
Subclause 31(3) provides that the Court's powers to
grant injunctions under this section may be exercised whether or not it appears
to the Court that the person intends to engage, or to continue to engage, in
conduct of that kind, and whether or not the person has previously engaged in
conduct of that kind.
Subclause 31(4) empowers the court to
discharge or vary any injunction granted under this section, and subclause
31(5) enables the Court to grant an interim injunction pending the
determination of an application for an injunction by the CEO under subclause
31(1).
Subclause 31(6) makes it clear that the powers of the
Court set out under this section are in addition to, and not in derogation of,
any of the other powers of the Court.
Clause 32 -
Forfeiture
Subclause 32(1) states that if a court convicts a
person of an offence against this Act or regulations, or makes an order under
section 19B of the Crimes Act 1914 in respect of a person charged with an
offence against this Act, then the court may, on application by the
Commonwealth, order forfeiture to the Commonwealth of any substance or thing
used or otherwise involved in the commission of the offence.
Subclause
32(2) provides that a substance or thing ordered by a court to be forfeited
becomes the property of the Commonwealth and may be sold or otherwise dealt with
in accordance with the directions of the Minister.
Subclause
32(3) states that until the Minister gives such a direction, the substance
or thing must be kept in such custody as the Minister directs.
“Thing” is widely defined in clause 11 to refer to something that
also includes a substance, and a thing in electronic or magnetic form.
PART 6 - ADMINISTRATIVE MATTERS
Division 1 - Appointment,
conditions etc of CEO
Clause 33 - Appointment of
CEO
Subclause 33(1) provides that the CEO is to be appointed
by the Governor-General for a term of up to five years. Subclause 33(2)
provides that the CEO holds office on a full-time basis.
Clause 34
Remuneration and allowances
This clause establishes the basis for
determining the CEO's remuneration and allowances.
Subclause 34(1)
provides that the CEO is to be paid the remuneration that is determined by
the Remuneration Tribunal. Where there is no determination of that remuneration
by the Tribunal in operation, then the CEO is to be paid the remuneration
prescribed by the regulations.
Subclause 34(2) provides that the
CEO is to be paid such allowances as are prescribed by the
regulations.
Subclause 34(3) provides that this clause has effect
subject to the Remuneration Tribunal Act 1973.
Clause 35
Outside employment
Subclause 35(1) provides that the CEO must
not engage in any paid employment outside the duties of the office without the
Minister's written approval.
Clause 36 - Recreation leave
etc.
Subclause 36(1) provides that, subject to section 87E of
the Public Service Act 1922, the CEO has such recreation leave
entitlements as are determined by the Remuneration Tribunal. Subclause
36(2) enables the Minister to grant the CEO other leave of absence on such
terms and conditions as the Minister determines. The terms and conditions may
include those relating to remuneration.
Clause 37 -
Resignation
This clause provides that the CEO may resign by giving
the Governor-General a signed resignation notice.
Clause 38 -
Disclosure of interests
This clause provides that the CEO must give
written notice to the Minister of all pecuniary or other interests that the CEO
has or acquires that could conflict with the proper performance of the CEO's
functions under the Act and regulations.
Clause 39 - Termination of appointment
Subclause 39(1)
provides the grounds upon which the Governor-General may terminate the
appointment of the CEO.
Under subclause 39(2), the
Governor-General must terminate the CEO's appointment if the CEO does any of the
things listed in paragraphs 39(2)(a) to (g) inclusive. This includes being
absent from duty (except on leave of absence) for 14 consecutive days, or for 28
days in any period of 12 months, becoming bankrupt, compounding with his or her
creditors, assigning his or her remuneration for the benefit of his or her
creditors, failing to disclose interests as required under clause 38, engaging
in employment outside the duties of his or her office without the Minister's
approval.
Subclause 39(3) provides that if the CEO is either an
eligible employee for the purposes of the Superannuation Act 1976 or a
member of the superannuation scheme established by deed under the
Superannuation Act 1990, the Governor- General may, with the CEO's
consent, retire the CEO from office on the ground of physical or mental
incapacity where this should apply.
Subclauses 39(4) and (5) set
out the circumstances in which the CEO is taken to have been retired from office
on the grounds of invalidity under the Superannuation Act 1976 and the
Superannuation Act 1990.
Clause 40 - Other terms and
conditions of appointment
This clause provides that in respect of
matters not specifically provided for by this Act, the CEO holds office on such
terms and conditions (if any) as are determined by the Governor-General in
writing.
Clause 41 - Acting appointment
Subclause 41(1)
permits the Minister to appoint a person to act as CEO if there is a vacancy
in that office, whether or not an appointment has previously been made to the
office, or during any period , or all periods, when the CEO is absent from duty
or from Australia or is, for any reason, unable to perform the duties of the
office.
Subclause 41(2) provides that anything done by a person
purporting to act as CEO under this provision is not invalid merely
because:
(a) the occasion for the appointment had not
arisen;
(b) there was a defect or irregularity in connection with the
appointment;
(c) the appointment had ceased to have effect; or
(d) the
occasion to act had not arisen or had ceased.
DIVISION 2 - Money
Clause 42 CEO may charge for
services
This clause provides that the CEO may charge for services
provided by the CEO in the performance of the CEO's functions.
Clause
43 Notional payments by the Commonwealth
As the Act applies to the
Crown in all its capacities including the Crown in right of the Commonwealth,
subclause 43(1) has been included to clarify that fees and charges under
this Act and regulations, and charges levied under the Licence Charges Act, are
notionally payable by the Commonwealth (or parts of the Commonwealth).
Subclause 43(2) provides that the Minister for Finance and
Administration may give written directions for the purposes of this clause,
including directions relating to the transfer of amounts within, or between,
accounts operated by the Commonwealth.
Clause 44 - ARPANSA
Reserve
This clause sets up the ARPANSA Reserve, which is a component
of the Reserved Money Fund.
Subclause 44(3) sets out the amounts
that must be transferred to the Reserve from the Consolidated Revenue Fund.
These include monies appropriated by the Parliament for the purposes of the
Reserve, amounts equal to amounts received by the Commonwealth under the Licence
Charges Act and amounts equal to fees received by the Commonwealth under Clause
22, amounts equal to amounts received by the Commonwealth in connection with the
performance of the CEO's functions, amounts recovered by the Commonwealth under
subclause 29(5) to the extent that they are referable to costs paid out of the
Reserve.
Subclause 44(4) provides that the purposes of the
Reserve are to make payments to further the object of the Act, as set out in
clause 3, and otherwise in connection with the performance of the CEO's
functions under this Act or regulations.
Clause 45 - Amounts
recoverable as debts
This clause provides that the following amounts
may be recoverable in a court as debts due to the
Commonwealth:
(a) amounts payable to the Commonwealth under the
Licence Charges Act;
(b) fees payable to the Commonwealth under clause
22;
(c) amounts payable to the Commonwealth in connection with the
performance of the CEO's functions.
DIVISION 3 - Miscellaneous
Clause 46 - Staff assisting the
CEO
This clause provides that staff necessary to assist the CEO are
to be persons appointed or employed under the Public Service Act 1922 and
made available by the Secretary of the Department for this
purpose.
Clause 47 Annual Report
This clause requires the
CEO to prepare and give to the Minister, as soon as practicable after the end of
each financial year, an annual report on the operations of the CEO during the
year. Subclause 47(2) requires all details of directions given by the
Minister under clause 14 during the financial year to be included in the
Report. Subclause 47(3) requires the Minister to cause a copy of the
Report to be tabled before each House of Parliament within 15 sitting days of
the day on which the report was given to the Minister.
Clause 48
Quarterly reports
Under this clause the CEO is also required to
provide quarterly reports to the Minister on the operations of the CEO for that
quarter. Each quarter means a period of 3 months beginning on 1 January, 1
April, 1 July and 1 October of any year. The Minister must arrange for these
reports to be tabled in both Houses of Parliament within 15 sitting days of the
day the Minister is given the report.
Clause 49 Reports to
Parliament
Subclause 49(1) provides that the CEO may at any
time cause a report about matters relating to the CEO's functions to be tabled
in either House of Parliament. Subclause 49(2) requires the CEO to give
a copy of the report to the Minister.
PART 7 - POWERS OF
INSPECTION ETC
Part 7 inserts provisions conferring powers on
inspectors to undertake searches and exercise a range of powers to establish
whether or not the Act and regulations are being complied with. Many of these
provisions deal with how inspectors should exercise their powers to obtain
necessary admissible evidence that may be used in proceedings brought under this
Part.
Clause 50 - Appointment of inspectors
Subclause
50(1) enables the CEO to appoint, by instrument in writing, appropriate
officers to be “inspectors” for the purposes of exercising all the
powers under this Part. The persons the CEO may appoint as inspectors
are:
(a) a person who is appointed or employed by the Commonwealth;
or
(b) a person appointed or employed by a State or Territory.
Subclause 50(2) requires a person appointed as an inspector to comply
with any directions of the CEO when exercising powers or performing functions in
that capacity.
Subclause 50(3) requires the CEO to issue an
identity card, in a form prescribed by the regulations, for every person
appointed as an inspector. The identity card must have a recent photograph of
the inspector.
Subclause 50(4) provides that it is an offence for
a person who ceases to be appointed as an inspector to fail to return his or her
identity card to the CEO after ceasing to be an inspector. The offence attracts
a maximum penalty of $100.
Subclause 50(5) requires the
inspector to carry his or her identity card at all times when exercising powers
or performing functions as an inspector.
Clause 51 - Powers available
to inspectors for monitoring compliance
Subclause 51(1)
confers powers upon an inspector to enter any premises and to exercise any
or all of the powers set out under subclause 55(1) for the purposes of
establishing whether or not the Act or regulations are being complied
with.
Subclause 51(2) provides that an inspector may only enter
premises under this clause if he or she has the consent of the occupier of the
premises, or where the inspector has obtained a warrant under clause 65 to make
that entry.
Clause 52 - Inspector must produce identity card on
request
This clause makes it clear that an inspector cannot exercise
any of the powers under this Part in relation to premises unless he or she
produces his or her identity card upon being requested to do so by the occupier
of those premises.
Clause 53 - Powers available to inspectors for
dealing with hazardous situations
Subclause 53(1) describes
the circumstances in which an inspector may exercise powers under this clause.
These are where the inspector has reasonable grounds for suspecting that there
may be, on any premises, a hazardous thing that is not in compliance with the
requirements of the Act or regulations, or where it is necessary in the
interests of public health to exercise the powers under this clause to avoid an
imminent risk of death, serious illness, serious injury or serious damage to the
environment.
Subclause 53(2) provides that in such circumstances
an inspector may, without a warrant or the consent of an occupier, enter
premises, search the premises for the hazardous thing, seize it if the inspector
finds this on the premises and, if the inspector believes on reasonable grounds
that a controlled person has failed to comply with any requirements of the Act
or regulations in relation to that hazardous thing, require the controlled
person to take such steps the inspector considers necessary.
Subclause 53(3) requires the inspector to exercise his or her powers
under subclause 53(2) only to the extent necessary for the purposes of avoiding
an imminent risk of death, serious illness, serious injury or serious damage to
the environment.
Clause 54 - Searches and seizures related to
offences
This clause sets out the powers of an inspector who enters
and conducts searches of premises to obtain evidence of a commission of an
offence, and the circumstances under which those powers may be exercised.
Subclause 54(1) states that the powers under this clause may be
exercised if an inspector has reasonable grounds for suspecting that there may
be evidential material on any premises.
Subclause 54(2) provides
that an inspector may enter premises either with the consent of the occupier or
under a warrant issued under clause 365, to do any of the things described in
subclause 54(3) and subclause 55(1), including seizing the evidential material
if the inspector finds it on the premises.
Subclause 54(3)
provides that if, in the course of searching for a particular thing at premises
in accordance with a warrant, an inspector finds something else that he or she
believes on reasonable grounds to be evidential material which the inspector
also reasonably believes must be seized to prevent its concealment, loss or
destruction, or use in the commission or continuation of an offence against this
Act or regulations, then the warrant is taken to authorise the inspector to
seize that new thing.
Clause 55 - General powers of inspectors in
relation to premises
This clause sets out the general powers
inspectors may exercise under paragraphs 51(1)(b) and 54(2)(b). These include
the power to search premises and things found on premises, the undertaking of
inspections, the examination and testing of things on premises, the taking of
photographs or other forms of recordings of premises and things, and the
inspection and copying of records and any other documentation and other powers.
The penalty for an individual who refuses to comply with an inspector's
requirement, being an inspector who entered premises under a warrant issued
under clause 65 or 66, to answer questions put to him or her by the inspector,
or who fails to produce any book, record or document as required by an
inspector, is a maximum of $3000.
Clause 56 - Details of warrant to be
given to occupier etc
This clause provides that if a warrant in
relation to premises is being executed, a copy of the warrant must be made
available to the occupier of the premises. The inspector responsible for the
execution of the warrant must identify himself or herself. In order to prevent
forgery or other wrongful use of the warrant copy, subclause 56(3)
provides that the copy need not include the signature of the Magistrate who
issued the warrant.
Clause 57 - Announcement before entry
This clause provides
that before an inspector enters premises under a search warrant he or she must
announce that he or she is authorised to enter and give any person at the
premises an opportunity to allow entry to the premises, unless there are
reasonable grounds to believe that immediate entry to the premises is required
to ensure the safety of a person or the protection of the environment or that
the effective execution of the search warrant is not
frustrated.
Clause 58 - Use of electronic equipment at
premises
This clause provides that an inspector may operate
equipment at the premises to see whether the evidential material is accessible
if he or she believes that the equipment may be operated without damaging it.
Subclause 58(2) provides that, if evidential material is
accessible, the authorised person may seize the equipment or any disk, tape or
other associated device, or operate the equipment to obtain a print out and
seize documents produced, or copy the records to another storage device and
remove it from the premises.
Subclause 58(3) is intended to
encourage the seizure of printouts or duplicate discs wherever possible, rather
than the original material. It provides that an inspector may seize equipment
under subclause 58(2) only if it is not practicable to put the material into
documentary form or copy them to a storage device or if possession by the
occupier of the equipment could constitute an offence. Where original material
is seized, clause 60 requires the authorised person to provide a copy of the
thing or information to the occupier unless its possession constitutes an
offence.
Subclause 58(4) provides that an inspector may secure the
equipment by locking it up or guarding it if he or she believes on reasonable
grounds that the evidential material may be accessible by operating the
equipment at the premises but expert assistance is needed to operate the
equipment and the evidential material may be destroyed or otherwise interfered
with if the equipment is not secured in the meantime. This is necessary to
ensure that where the equipment is more sophisticated than expected and cannot
be accessed or moved, then the opportunity to obtain expert assistance and to
preserve evidential material is not lost. Material accessible on a computer can
of course be removed with a swift keystroke from an operator. It is possible to
preprogram the equipment to erase the evidence in this way.
Subclause
58(5) requires the giving of notice to the occupier in cases where equipment
may be secured for a period not exceeding 24 hours.
Subclause
58(6) allows the equipment to be secured for either 24 hours or such lesser
period when expert assistance is obtained to operate the equipment for the
purposes of this Part.
Subclause 58(7) allows an inspector to apply to a magistrate for an
extension of the time needed for securing the equipment if he or she believes on
reasonable grounds that the expert assistance will not be available within the
24 hour period. The application must satisfy the criteria in subclause 58(4).
The occupier must be given notice under subclause 58(8) and has a right
to be heard in relation to the application.
Clause 59 - Compensation
for damage to electronic equipment
This clause provides that
if damage is caused to equipment as a result of it being operated as mentioned
in clause 58 and the damage resulted from insufficient care being exercised
either in selecting the person to operate the equipment or by the person
operating it, compensation is payable to the owner.
Compensation is
payable out of a special Appropriation by the Parliament not from the ARPANSA
Reserve. In determining the amount payable, regard is to be had to whether the
occupier had provided any warning or guidance to the operation of the equipment.
This is to minimise compensation in cases where there has been a deliberate
programming of software to destroy or cause damage if not accessed in a
particular manner or where the occupier failed to mitigate damage by providing
warning or guidance.
Clause 60 - Copies of seized things to be
provided
This clause requires an inspector, on request, to give a
copy of a thing or information seized that can be readily copied. This does not
apply if no original material was seized under paragraphs 58(2)(b) or (c) or if
possession of the thing seized could constitute an offence.
Clause 61
- Occupier entitled to be present during search
This clause provides
that occupiers or their representatives may choose to observe the searching of
the premises providing they do not impede the conduct of the search in any way.
The right to search does not preclude inspectors from searching 2 or more areas
of the premises at the same time.
Clause 62 - Receipts for things
seized under warrant
This clause provides that receipts are to
be issued to occupiers for things seized. Under this provision it will be
possible for the items to be listed on the same receipt. It is not envisaged
that inspectors would be required to identify absolutely every item individually
where those items can be adequately identified by a class
description.
Clause 63 - Retention of things seized
This
clause prescribes when things seized under this Part of the Act must be
returned. Unless a court has ordered otherwise or it is forfeited or
forfeitable to the Commonwealth, the seized thing must be returned where the
reason for its seizure no longer exists, or where it will not be used as
evidence or after 60 days have expired from the day it was seized.
Subclause 63(2) provides that an inspector must take reasonable steps
to return the thing to the person he or she seized it from after the 60 days
referred to in subclause 63(1), unless proceedings in which the seized thing
will be used have been brought against an offender within the 60 day limit and
the proceedings have not finished, or an extension of time for the retention of
the seized thing has been granted by a magistrate, or returning the thing could
cause an imminent risk of death, serious illness, serious injury or serious
damage to the environment, or an inspector is otherwise authorised to dispose of
it pursuant to some law or court order. Where the seized thing is returned, it
may be returned on such terms and conditions as the CEO sees
fit.
Clause 64 - Magistrate may permit a thing to be retained
This clause prescribes how an inspector may apply to a magistrate to
retain a seized thing or evidence beyond the 60 day retention period permitted
under clause 63 of the Act.
Subclause 64(2) provides that if
the magistrate is satisfied that it is necessary for an extension of time to be
granted to enable an inspector to investigate whether or not an offence has been
committed against the Act or to enable the evidence to be secured for the
purposes of a prosecution, the magistrate may grant an extension for such period
as is specified in an order. Before making an application under this section,
an inspector must take reasonable steps to establish who has an interest in the
retention of the seized goods and, if practicable, notify such
persons.
Clause 65 - Monitoring warrants
This clause
enables a Magistrate to issue a warrant that permits more than one inspector
to enter the same premises for the purposes of establishing whether the Act and
Regulations have been complied with.
Clause 66 - Offence related
warrants
This clause describes how an inspector may apply to a
magistrate for a warrant under this clause in relation to
premises.
Subclause 66(1) provides that an inspector may apply to
a magistrate for a warrant in relation to premises.
Subclause
66(2) enables the Magistrate to issue a warrant if he or she is satisfied,
by information given under oath, that there are reasonable grounds for
suspecting that there is, or there may be, within the next 72 hours, evidential
material in or on the premises in relation to which an application for warrant
is being made.
Subclause 66(3) prevents the Magistrate from
issuing a warrant under subclause 66(2) unless the inspector or some other
person has given to the magistrate, either verbally or by affidavit, such
further information (if any) as the magistrate should require concerning the
grounds on which the issue of the warrant is being sought.
Subclause 66(4) prescribes what must be included in a warrant. The
warrant must include the name of one or more inspectors, it must authorise all
those named, with such assistance and by such force as is necessary and
reasonable, to enter the premises and exercise the powers set out in subclauses
54(3) and 55(1) and to seize the evidential material. The warrant must also
state whether the entry is authorised to be made at any time during the night or
day or whether entry is restricted to specified hours of the day or night. The
warrant must also specify when the warrant ceases to have effect, being a day
not later than a week after the issue of the warrant), and also state the
purposes for which the warrant is being issued.
Clause 67 -
Offence related warrants by telephone
This clause sets out the
circumstances in which a warrant may be obtained over the
telephone.
Subclause 67(1) provides that in urgent cases where an
inspector considers it necessary he or she may apply to a magistrate for a
warrant under clause 66 by telephone in relation to
premises.
Subclause 67(2) requires the inspector to prepare an
information that must be sworn setting out the grounds on which the warrant is
sought that will satisfy a magistrate that there are reasonable grounds for
suspecting that there is, or there may be, within the next 72 hours, evidential
material in or on the premises.
Subclause 67(3) allows the
inspector to apply for a warrant under this clause before the information is
sworn, where this is necessary.
Subclause 67(4) sets out the
procedures for the magistrate to issue a warrant under this
clause.
Subclause 67(5) provides that if the magistrate completes
and signs the warrant for the inspector, the magistrate must inform the
inspector what the terms of the warrant are, the day on which and the time at
which the warrant was signed, the day on which the warrant ceases to have effect
(being a day not more than a week after the magistrate completes and signs the
warrant), and record on the warrant the reasons for granting the warrant. The
inspector must also complete a form or warrant in the same terms as the warrant
completed and signed by the magistrate, and must write on the form the name of
the magistrate and the day on which and the time at which the warrant was
signed.
Subclause 67(6) requires the inspector to also send to the
magistrate the form of warrant completed by the inspector under this clause, and
the information required to be prepared when the inspector applied for the
warrant over the telephone which must have been duly sworn. The inspector is
required to send this to the magistrate not later than the day after the expiry
or the execution of the warrant, whichever is the earlier day.
Subclause 67(7) provides that when the magistrate receives these
document, the magistrate must attach them to the warrant he/she completed and
signed under subclause 67(4), and deal with the documents in the same way the
magistrate would have dealt with the information if the application for the
warrant had been made under clause 66.
Subclause 67(8) provides that a form of warrant completed in
accordance with subclause 67(5) is authority for any entry, search, seizure or
other exercise of power that the warrant signed by the magistrate
authorises.
Subclause 67(9) states that in any proceedings where
the court must be satisfied that the exercise of a power was authorised by this
clause, and the warrant signed by the magistrate authorising the exercise of
that power cannot be produced, the court must assume, unless the contrary is
proved, that the exercise of the power was not authorised by such a
warrant.
Subclause 67(10) states that any reference in this Part
to a warrant under clause 66 is taken to include a warrant signed by a
magistrate under this clause.
Clause 68 - Offences relating to
warrants
This clause sets out offences in relation to an application
for a warrant.
Subclause 68(1) provides that it is an offence,
attracting a maximum penalty of imprisonment for 2 years, if a person makes a
statement, when applying for a warrant, that he or she knows to be false or
misleading in a material particular.
Subclause 68(2) sets out
other actions that attract a maximum penalty of 2 years imprisonment. This
includes:
(a) a person stating in a document purporting to be a form of
warrant under clause 67 the name of a magistrate who was not the magistrate that
issued the warrant;
(b) stating, for the purposes of clause 67, on the form
of warrant something that, to the person's knowledge, departs in a material
particular from the form authorised by the magistrate;
(c) purporting to
execute or present to another person a document purporting to be a form of
warrant under clause 67 when the person knows it had not been approved by the
magistrate under that clause or where it departs in a material particular from
the terms authorised by a magistrate under clause 67; or
(d) giving to a
magistrate a form of warrant under clause 67 that was not the form of warrant
the person purported to execute.
Clause 69 - Part does not limit
power to impose licence conditions
This clause makes it clear that
the powers exercisable under this Division in no way affect the ability of the
CEO to impose conditions to allow persons to do things in relation to controlled
material or apparatus, or to exercise similar powers in relation to controlled
facilities, controlled apparatus and controlled material.
Clause 70 -
Operation of Nuclear Non-Proliferation (Safeguards) Act 1987
This
clause makes it clear that persons authorised by the CEO to exercise powers
under the Bill as inspectors are not excused from complying with sections 23, 25
and 26 of the Nuclear Non-Proliferation (Safeguards) Act 1987.
PART 8 - MISCELLANEOUS
Clause 71 - Operation of State
and Territory laws
This clause provides that a State or Territory
law, or any provision or provisions of such a law, prescribed in the
regulations for the purposes of this clause will not apply to the
following:
(a) an activity of a controlled person in relation to a
controlled apparatus or controlled material;
(b) an activity undertaken by a
controlled person in relation to a controlled facility.
Clause 72 -
Regulations
This clause empowers the Governor-General to make
regulations prescribing matters required or permitted to be prescribed by the
Act, or necessary or convenient to be prescribed for carrying out or giving
effect to the Act.
Subclause 72((2) sets out in detail some of the
matters that the Governor-General may prescribe, without limiting the general
description of his or her regulation-making powers under subclause 72 (1).
These include:
(a) requiring specified standards to be observed,
practices and procedures to be followed and measures to be taken by controlled
persons in relation to activities connected with controlled facilities and in
relation to dealings with controlled apparatus or controlled
material;
(b) regulating, restricting or prohibiting any act of a
controlled person in relation to such activities or dealings;
(c) requiring records to be kept, providing for the giving of
information and the notification of specified occurrences by controlled persons
in relation to such activities or dealings;
(d) providing for the
establishment of committees to advise the CEO on any matter relating to
radiation or nuclear safety; and
(e) prescribing fees for any matter
covered by the Act or regulations.