Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY AMENDMENT (2017 MEASURES NO. 1) REGULATIONS 2017 (F2017L00781)

EXPLANATORY STATEMENT

Australian Radiation Protection and Nuclear Safety Act 1998

Australian Radiation Protection and Nuclear Safety Regulations 1999

Australian Radiation Protection and Nuclear Safety Amendment (2017 Measures No. 1) Regulations 2017

The object of the Australian Radiation Protection and Nuclear Safety Act 1998 (the Act) is to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation.

Subsection 85(1) of 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 to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Australian Radiation Protection and Nuclear Safety Amendment (2017 Measures No. 1) Regulations 2017 (the regulations) amend the Australian Radiation Protection and Nuclear Safety Regulations 1999 (the ARPANS Regulations) to:

(1)        Â increase the licence application fees prescribed in the ARPANS Regulations by 2.3 per cent, in line with the Australian Bureau of Statistics annualised Wage Price Index (excluding bonuses) for the public sector as at 30 September 2016.

(2)          update the publication details of technical standards and codes incorporated by reference in the ARPANS Regulations, and

(3)          clarify certain provisions in the ARPANS Regulations to facilitate interpretation and application.

Under section 34 of the Act, an application for a facility or source licence must be in a form approved by the CEO and accompanied by such application fee as is prescribed in the ARPANS Regulations.  The licence application fees have been indexed every year since 2010 using ABS wage and labour price indices to recover increased labour costs.

The regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The regulations commenced on 1 July 2017 and the increase to the licence application fees took effect on 1 July 2017. 

Details of the regulations are set out in the Attachment below.

The regulations were brought forward concurrently with the Australian Radiation Protection and Nuclear Safety (Licence Charges) Amendment (2017 Measures No. 1) Regulation 2017. 

The Act does not specify any condition that needs to be met before the power to make the Regulation may be exercised.

Consultation:

No consultation was therefore undertaken among licence holders (all of whom are Commonwealth entities) as the amendments are machinery in nature and are done annually to ensure the regulations are up-to-date.  The Office of Best Practice Regulation (OBPR) exempted ARPANSA from the need to prepare a regulatory impact statement for the amendments (OBPR ID: 21894) as the amendments are machinery in nature and are not likely to result in any change to regulatory costs. 

Authority:  Subsection 85(1) of the Australian Radiation Protection and Nuclear Safety Act 1998

Attachment

Details of the Australian Radiation Protection and Nuclear Safety Amendment (2017 Measures No. 1) Regulations 2017

Section 1 - Name of regulation

This section provides that the name of the regulations is the Australian Radiation Protection and Nuclear Safety Amendment (2017 Measures No. 1) Regulations 2017.

Section 2 - Commencement

This section provides for the regulations to commence on 1 July 2017.

Section 3 - Authority

This section provides that the regulations are made under the Australian Radiation Protection and Nuclear Safety Act 1998.

Section 4 - Schedules(s)

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1--Amendments

Part 1--Amendments of fees

Australian Radiation Protection and Nuclear Safety Regulations 1999

Item 1 Â Amendments of listed provisions--Schedule 3A

Clause 1 of Schedule 3A has a table that lists the fees that must accompany an application for a facility licence for particular activities in relation to nuclear installations.  The amendments increase the application fees in the table in Schedule 3A by 2.3 per cent as follows:

Item 2  Amendments of listed provisions--Part 1 of Schedule 3B

Clause 1 of Schedule 3B has a table that lists the fees that must accompany an application for a facility licence for particular kinds of prescribed radiation facilities.  The amendments increase the application fees in the table by 2.3 per cent as follows:

Item 3  Amendments of listed provisions--Part 2 of Schedule 3B

Clause 2 of Schedule 3B has a table that lists the fees that must accompany an application for a facility licence for particular activities in relation to certain prescribed radiation facilities.  The amendments increase the application fees in the table by 2.3 per cent as follows:

Item 4  Amendments of listed provisions--Schedule 3BA

Clause 1 of Schedule 3BA has a table that lists the application fees that must accompany an application for a facility licence for particular activities in relation to prescribed legacy sites.  The amendments increase the application fees in the table by 2.3 per cent as follows:

Item 5  Amendments of listed provisions--Part 2 of Schedule 3C

Clause 2 of Schedule 3C lists the application fees that must accompany an application for a source licence to deal with particular kinds of controlled apparatus or controlled material.  For purposes of source licence application fees, controlled material and controlled apparatus have been divided into three groups, namely Group 1, Group 2 and Group 3, in ascending order of risk to people and the environment.  The amendments increase the application fees in the table by 2.3 per cent as follows:

Part 2--Other amendments

Australian Radiation Protection and Nuclear Safety Regulations 1999

Item 6  Regulation 3 (note at the end of the definition of absorbed dose)

The note at the end of the definition of absorbed dose refers to an outdated document that has been deleted (see item 16 below).  The amendment substitutes that with the Planned Exposure Code, which is a document published by ARPANSA and is available in the ARPANSA website (www.arpansa.gov.au) (see item 15 below).

Item 7  Regulation 3

The amendment inserts definitions of three Australian/New Zealand Standards that are incorporated by reference in other parts of the ARPANS Regulations.  These Standards are on safety of lasers, safety of optical fibre communication systems and photobiological safety of lamp and lamp systems.  The amendment ensures that only the short title of each Standard appears where the Standards are incorporated by reference instead of repeating the long title in each instance.  The amendments simplify the ARPANS Regulations and are in line with current drafting convention of the Office of Parliamentary Counsel.  All three Standards are available from www.saiglobal.com.

Item 8  Regulation 3 (note at the end of the definition of committed effective dose)

The note at the end of the definition of committed effective dose refers to an outdated document that has been deleted (see item 16 below).  The amendment substitutes that with the Planned Exposure Code, which is a document published by ARPANSA and is available in the ARPANSA website (www.arpansa.gov.au) (see item 15 below).

Item 9  Regulation 3

The amendment inserts a definition of the Disposal Code of Practice, which is incorporated by reference in other parts of the ARPANS Regulations.  The Code is on the safe disposal of radioactive waste by the user.  The amendment ensures that only the short title, Disposal Code of Practice, appears wherever it is incorporated by reference instead of repeating the long title in each instance.  The amendment simplifies the ARPANS Regulations and is in line with current drafting convention of the Office of Parliamentary Counsel.  The Disposal Code of Practice is available in the ARPANSA website (www.arpansa.gov.au).

Item 10  Regulation 3 (note at the end of the definition of dose)

The note at the end of the definition of dose refers to an outdated document that has been deleted (see item 16 below).  The amendment substitutes that with the Planned Exposure Code, which is a document published by ARPANSA and is available in the ARPANSA website (www.arpansa.gov.au) (see item 15 below).

Item 11  Regulation 3 (note at the end of the definition of effective dose)

The note at the end of the definition of effective dose refers to an outdated document that has been deleted (see item 16 below).  The amendment substitutes that with the Planned Exposure Code, which is a document published by ARPANSA and is available in the ARPANSA website (www.arpansa.gov.au) (see item 15 below).

Item 12  Regulation 3 (note at the end of the definition of equivalent dose)

The note at the end of the definition of equivalent dose refers to an outdated document that has been deleted (see item 16 below).  The amendment substitutes that with the Planned Exposure Code, which is a document published by ARPANSA and is available in the ARPANSA website (www.arpansa.gov.au) (see item 15 below).

Item 13  Regulation 3

The amendment inserts a definition of the Mining and Mineral Processing Code and Guide, which is an existing code that had previously been incorporated by reference in regulation 62A of the ARPANS Regulations.  The Code provides for radiation safety requirements during mining and mineral processing and the safety guide provides recommendations and guidance to implement the requirements of the Code.  The amendment ensures that only the short title, Mining and Mineral Processing Code and Guide, appears in regulation 62A.  The amendment simplifies the ARPANS Regulations and is in line with current drafting conventions of the Office of Parliamentary Counsel.  The Mining and Mineral Processing Code and Guide are available in the ARPANSA website (www.arpansa.gov.au).

Item 14  Regulation 3 (definition of National Standard for limiting Occupational Exposure to Ionising Radiation)

The proposed amendment repeals the definition of the National Standard for Limiting Occupational Exposure to Ionising Radiation as this Standard is outdated and has been replaced by the Planned Exposure Code (See item 15 below)

Item 15  Regulation 3

The amendment inserts a definition of the Planned Exposure Code, which has replaced the outdated National Standard for limiting Occupational Exposure to Ionising Radiation and Recommendations for Limiting Exposure to Ionising Radiation.  The Planned Exposure Code is an ARPANSA publication that is available in the ARPANSA website (www.arpansa.gov.au)

Item 16  Regulation 3 (definition of Recommendations for Limiting Exposure to Ionising Radiation)

The amendment repeals the definition of the Recommendations for Limiting Exposure to Ionising Radiation as this Standard is outdated and has been replaced by the Planned Exposure Code (See item 15 above)

Item 17  Regulation 3

The amendment inserts definitions of the Security Code of Practice and Transport Code, both of which are existing ARPANSA codes that have previously been incorporated by reference in a few places in the ARPANS Regulations.  The Security Code of Practice has requirements for the secure possession, use and transport of radioactive sources.  The Transport Code has requirements for the safe packaging, handling and transport of radioactive sources.  The amendment ensures that only the short titles Security Code of Practice and Transport Code appear wherever they are incorporated by reference instead of repeating the long title in each instance.  The amendment simplifies the ARPANS Regulations and is in line with current drafting conventions of the Office of Parliamentary Counsel.  The Security Code of Practice and the Transport Code are available in the ARPANSA website (www.arpansa.gov.au).

Item 18  After Part 1

The CEO and ARPANSA officers appointed by the Minister are 'authorised officers' who may issue import and export permits under Regulation 4R of the Customs (Prohibited Imports) Regulations 1956 and Regulation 9AD of the Customs (Prohibited Exports) Regulations 1958.  The authorised officers have been performing these functions for a number of years.  The CEO has been charging import permit fees on a cost recovery basis for a number of years and intends to charge export permit fees on a cost recovery basis.  Section 54 of the Australian Radiation Protection and Nuclear Safety Act 1998 (the Act) provides that the CEO "may charge for services provided by the CEO in the performance of the CEO's functions".  Section 15 of the Act lists the CEO's functions but this list does not include the issuing of import and export permits.   The Australian Government Solicitor advised ARPANSA to take steps to expressly prescribe the function of issuing import and export permits in the ARPANS Regulations in order to have a proper basis for charging the import and export fees.  Paragraph 15(1)(i) of the Act provides that the CEO's functions may include "such other functions as are conferred by this Act, the regulations or any other law".  The amendment prescribes the functions of issuing import and export permits in the ARPANS Regulations.

Item 19  Subparagraph 4(2)(a)(viii)

Regulation 4 of the ARPANS Regulations prescribes those non-ionising radiation equipment that are controlled apparatus and therefore need to be licenced under the Act.  Subparagraph 4(2)(a)(viii) prescribes a laser product with an accessible emission level more than the accessible emission limit of a Class 3R laser product, as set out in Australian/New Zealand Standard AS/NZS IEC 60825.1:2011.  The amendment updates the title of the Australian/New Zealand Standard to the most recent version published in 2014.  The Standard is available from www.saiglobal.com.

Item 20  Subparagraph 4(2)(a)(ix)

Regulation 4 of the ARPANS Regulations prescribes those non-ionising radiation equipment that are controlled apparatus and therefore need to be licenced under the Act.  Subparagraph 4(2)(a)(ix) prescribes an optical fibre communication system exceeding Hazard Level 3R as defined by Australian/New Zealand Standard AS/NZS IEC 60825.2:2011 Safety of laser products, Part 2: Safety of optical fibre communication systems (OFCS).  The amendment shortens the title and refers only to AS/NZS IEC 60825.2:2011.  This short title is defined in Regulation 3 (see item 7 above).  The amendment simplifies the ARPANS Regulations and is in line with the current drafting conventions of the Office of Parliamentary Counsel.  The Standard is available from www.saiglobal.com.

Item 21  Regulation 48

Regulation 48 is a general licence condition that requires licence holders to ensure compliance with certain codes published by ARPANSA and the National Health and Medical Research Council.  The amendment simplifies the regulation by providing only the short title of the codes.  The amendment also clarifies that the codes apply to all activities in relation to nuclear installations, radiation facilities and radioactive sources and not just the operation of installations and facilities or the possession, use, control, or disposal of radioactive sources.  For example, the clarification makes it clear that a licence holder must also comply with the requirement in the Planned Exposure Code to submit radiation dose records of its employees to a central dose register.

Item 22  Subparagraph 53(1A)(b)(ii)

Regulation 53 requires licence holders to seek CEO ARPANSA's approval before disposing of or transferring radioactive sources under certain circumstances.  Subparagraphs 53(1A)(b)(i) and (ii) describe the circumstances under which a licence holder may transfer a radioactive source or radiation apparatus without seeking the CEO's approval, namely, when the transfer is to another ARPANSA licence holder who is authorised to 'receive' the radioactive source or radiation apparatus.  The amendment replaces the word 'receive' in subparagraph 53(1A)(b)(ii) with the words 'deal with'.  The amendment corrects an error, as ARPANSA's licences authorise holders to 'deal with' radioactive sources and radiation apparatus.  'Deal with' includes to possess, use or to have control of radioactive sources and radiation apparatus.

Item 23  Paragraph 55C(1)(a) and Item 24 Subregulation 55C(3)

Regulation 55C provides for the refund of annual licence charges where a licence holder holds a licence for only part of a year.  The formula in subregulation 55C(3) may now be wrongly applied where a refund is being calculated in a situation where a licence holder only paid a licence charge for part of the year in the first place.  The amendments ensure that such an error would not be made.

Item 25  Subregulation 58(5)

The amendment replaces the outdated Recommendations for Limiting Exposure to Ionizing Radiation and National Standard for Limiting Occupational Exposure to Ionizing Radiation with the Planned Exposure Code.  (See item 15 above)

Item 26  Subregulation 59(1) and Item 28  Subregulation 62(1)

Subregulation 59 provides that the effective dose limit for occupational exposure is 20 millisievert (mSv) annually, averaged over five consecutive calendar years. (Millisievert is a measure of the absorption of radiation by the human body)  Subregulation 62(1) provides that for occupational exposure, the equivalent dose limit to the lens of the eye is 20 mSv annually, averaged over five consecutive calendar years.  However, the reference to 'calendar years' is an error as the averaging should commence from the day that the occupational exposure to the worker commenced and not the 1^st of January.  Dose limits should apply to or are in relation to a 12-month period and not a calendar year.  This is in line with the International Atomic Energy Agency (IAEA) General Safety Requirements Part 3 (July 2014):  Radiation Protection and Safety of Radiation Sources: International Basic Safety Standards.  The amendment corrects this error by deleting the word 'calendar' from subregulations 59(1) and 62(1).

Item 27  Regulation 59 (note)

The note to Regulation 59 provides that for dose limits in relation to female employees reference is to be made to the National Standard for Limiting Occupational Exposure to Ionizing Radiation.  The amendment repeals this note and replaces it with a note that refers to the Planned Exposure Code, which has replaced the National Standard. (See item 15 above)

Item 29  Subregulation 62A(2)

Subregulation 62A(1) requires all controlled persons (Commonwealth entities and contractors) to ensure compliance with certain codes published by ARPANSA in relation to their activities in nuclear installations or radiation facilities and any dealing with radioactive sources or radiation apparatus.  Subregulation 62A(2) lists the codes.  The amendment simplifies the regulation by providing only the short title of the codes.  This is in line with drafting conventions of the Office of Parliamentary Counsel.  The codes listed in subregulation 62A(2) are available in the ARPANSA website (www.arpansa.gov.au)

Item 30  Part 8

Part 8 contains a transitional provision that is not required anymore.  The amendment deletes Part 8.

Item 31  Clause 1 of Schedule 1 (table items 4 and 5)

The table in clause 1 of Schedule 1 sets out exposure limits for non-ionising radiation.  To do so it incorporates by reference certain international documents, ARPANSA codes and Australian/New Zealand Standards on the safety of laser products and the photobiological safety of lamps and lamp systems.  The amendment updates the title of Australian/New Zealand Standards on the safety of laser products to the latest version published in 2014 and also simplifies the regulation by providing only the short title of the Standards.  This is in line with drafting conventions of the Office of Parliamentary Counsel.  The Australian/New Zealand Standards in the table in clause 1 of Schedule 1 are available from www.saiglobal.com.

Item 32  Clause 1 of Schedule 1 (note)

The note to the table in clause 1 of Schedule 1 states that the ARPANSA codes listed in the table could in 2015 be viewed on the ARAPNSA website.  The amendment amends the note to state that the codes could be viewed on the AARPANSA website in 2017.

Item 33  Clause 1 of Schedule 2 (table item 4, paragraph (c))

The table in clause 1 of Schedule 2 sets out dealings that are exempt and therefore do not require a source licence.  Table item 4 exempts dealings with depleted uranium provided it meets certain conditions.  Paragraph (c) is one of those conditions.  It requires the depleted uranium to be in a container that complies with the requirements in the Code for the Safe Transport of Radioactive Material (2014) (Radiation Protection Series C-2).  The amendment simplifies paragraph (c) by providing only the short title, Transport Code.  This is in line with drafting conventions of the Office of Parliamentary Counsel.  The Transport Code is available from the ARPANSA website (www.arpansa.gov.au).

Item 34  Clause 1 of Schedule 2 (table item 6)

The table in clause 1 of Schedule 2 sets out dealings that are exempt and therefore do not require a source licence.  Table item 6 exempts smoke detectors designed and made in accordance with Australian Standard AS 3786 - 1993 Smoke Alarms.  The amendment replaces this Standard with the more recent Australian Standard AS 3786:2014: Smoke Alarms using scattered light, transmitted light or ionization.  The 2014 version of the Australian Standard is available from www.saiglobal.com.

Item 35  Clause 1 of Schedule 2 (note)

The note to clause 1 of Schedule 2 provides that the code mentioned in table item 4 could in 2015 be viewed in the ARPANSA website.  The amendment deletes the note as the location of the code is now mentioned in Regulation 3 where the code is defined.

Item 36  Clause 1 of Schedule 3C (table items 23 and 24)

The table in clause 1 of Schedule 3C lists radioactive sources and radiation apparatus and divides them into three groups, namely Group 1, Group 2 and Group 3, in ascending order of risk to people and the environment.  This is for purposes of calculating source licence application fees.  Table items 23 and 24 incorporate two Australian/New Zealand Standards on laser safety.  The amendment updates the title of one of the two Australian/New Zealand Standards on the safety of laser products to the latest version published in 2014 and also simplifies the regulation by providing only the short titles of the each Standard.  This is in line with drafting conventions of the Office of Parliamentary Counsel.  The Australian/New Zealand Standards in table items 23 and 24 are available from www.saiglobal.com.

Item 37  Clause 1 of Schedule 3C (at the end of the cell at table item 32, column headed “Controlled apparatus or controlled material")

The table in clause 1 of Schedule 3C lists radioactive sources and radiation apparatus and divides them into three groups, namely Group 1, Group 2 and Group 3, in ascending order of risk to people and the environment.  This is for purposes of calculating source licence application fees.  Table item 32 refers to unsealed sources used for tracer studies.  The amendment adds the words 'in the environment' after 'tracer studies'.  The amendment distinguishes table item 32 from table items 30 and 31, which apply to unsealed sources used for tracer studies in laboratories.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Radiation Protection and Nuclear Safety Amendment (2017 Measures No. 1) Regulations 2017

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Regulations amend the Australian Radiation Protection and Nuclear Safety Regulations 1999 (the ARPANS Regulations) to increase licence application fees by 2.3 per cent and to make other minor amendments.

Human Rights Implications

The amendments are compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights.

The amendments increase the licence application fees paid by Commonwealth entities to the Australian Radiation Protection and Nuclear Safety Agency for licences to deal with radiation apparatus or radioactive sources or to engage in activities in relation to radiation facilities and nuclear installations.

Other amendments are minor or machinery in nature, namely, updating the publication details of technical standards and codes incorporated by reference in the ARPANS Regulations, and clarifying certain provisions in the ARPANS Regulations to facilitate interpretation and application.

Conclusion

This Instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.

The Hon. David Gillespie, Assistant Minister for Health

Parliamentary Secretary to the Minister for Health