Commonwealth Numbered Regulations - Explanatory Statements

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AUSTRALIAN RADIATION PROTECTION AND NUCLEAR SAFETY AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 90

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.