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CLAUSE NOTES
Radiation Protection Amendment Bill 2012
Clause 1 Short title
Short title.
Clause 2 Commencement
The provisions of the Bill will commence on the day on which it
receives Royal Assent.
Clause 3 Principle Act
The Bill amends the Radiation Protection Act 2005.
Clause 4 Section 4 amended (interpretation)
This clause amends the Act's interpretation section as follows:
The definition of `dispose of' has been amended to remove
the reference to `transferring custody and responsibility for'
and in its place introduce a reference to `transferring
possession'. This clarifies any uncertainty over the meaning
of `responsibility for' and ensures the definition is consistent
with the revised meaning of `possess'.
The definition of `possess' has been amended to ensure it is
clear that, for the purposes of the Act, a person is in
possession of a radiation source if they are in control of
that source regardless of who has physical custody of the
source. The previous definition incorporated the usual and
ordinary meaning of `possess' which included the concept of
physical custody. Under the Act, a person in possession of
a radiation source is required to prepare a radiation
management plan which is essentially a risk assessment and
management plan that applies to all persons who will use
the source. It is appropriate that this requirement be
limited to persons in control of a radiation source (eg a
medical practice manager) as distinct from a person with
the physical custody of the source (eg a person working at
the practice who is licensed to use the source).
The definition of `sell' has also been amended to remove the
reference to `dispose of by hire or lease' to clarify that
hiring or leasing a radiation source is considered an activity
for which a licence to dispose, and not sell, is required.
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Clause 5 Section 10 amended (causing radiation exposure)
This clause removes subsection 10(2) from the Act. Subsection
10(2) provides that the obligation in subsection 10(1) - requiring
persons who possess, use or otherwise deal with a radiation
source to adhere to radiation dose limits prescribed in
regulations - does not apply where the dose of radiation is
received by a person undergoing a diagnostic or therapeutic
procedure or by another person involved in the carrying out of
a diagnostic or therapeutic procedure. This means that in these
circumstances the prescribed occupational and public dose limits
could be ignored. This is not the desired outcome from a health
and safety perspective. Removing subsection 10(2) from the
Act, coupled with the dose limits set at regulations 9 and 10 of
the Radiation Protection Regulations 2006, ensures that in all
circumstances occupational and public dose limits must be
adhered to. Occupational and public dose limits do not include
medical exposure, thus the legislation does not create a barrier
to the legitimate carrying out of a diagnostic or therapeutic
procedure involving the irradiation of a person.
Clause 6 Section 13 amended (dealings with radiation source
prohibited without a licence)
This clause removes subsection 13(2) from the Act. Subsection
13(2) provides an exception to the subsection 13(1) obligation
to hold a `possess' licence. It provides that a person is not taken
to be in possession of a radiation source as the result of being
administered or injected with radioactive material as part of a
diagnostic or therapeutic procedure. It does not, however,
provide an exception for other types of licences (for example,
acquire, use, dispose). There are no health or safety benefits to
be achieved by requiring such a person to be licensed.
Therefore, the exception needs to be broadened to ensure that
persons undergoing treatment which involves exposure to
radiation are not required to obtain a licence under the Act.
This will be achieved by removing subsection 13(2) from the Act
and creating an appropriate exemption in the Radiation Protection
Regulations 2006. The Regulations have already been established
as the mechanism by which exemptions to the Act are made.
Clause 7 Section 21 amended (determination of application)
Before determining an application for an authority (being a
licence or certificate), the Director of Public Health may,
pursuant to s.21(3)(c), request advice or a report from various
bodies (including the Radiation Advisory Council, Commissioner
of Police, and government departments).
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In requesting advice or a report, the Director is permitted by
subsection 21(4)(a) to release the name of the applicant,
director, management, and partners.
This clause amends the Act to allow the Director to also release
the names of each person specified in the application as likely to
be dealing with the radiation source. This is necessary because
the Director must be satisfied that each of these persons is a fit
and proper person to be dealing with the source. In reaching
that view the Director is already permitted to request a report
in relation to such a person and this necessitates the release of
names.
Clause 8 Section 23 amended (activities authorised by authority)
This clause introduces a new offence provision into the Act. A
person must not publicly represent that an authority (being a
licence or certificate) constitutes an endorsement by or on
behalf of the Crown of the efficacy and quality of the service.
An authority represents only that its holder has satisfied the
Director of Public Health that he or she is a fit and proper
person to hold the authority and that there is a radiation
management plan in place that appropriately sets out how the
source will be used and stored in a manner that is safe to
persons and to the environment. The authority does not
represent an endorsement that the licence holder or the
radiation source will be effective in achieving the purpose for
which it is purportedly used. That aspect is addressed by other
entities (for example, the Royal Australian and New Zealand
College of Radiologists' Faculty of Radiation Oncology, which
sets quality standards and protocols for the treatment of
cancer).
Clause 9 Section 29 amended (amendment of an authority on
application by holder)
This clause amends subsections 29(5) and (6) to ensure it is
clear that the processes and criteria for considering and granting
applications to amend an authority (being a licence or certificate)
are the same as those that apply in relation to applications for an
authority in the first instance.
Clause 10 Section 70A inserted (infringement notices)
This clause inserts standard provisions relating to the issuing of
infringement notices which are presently split between section
86 of the Act and Part 12 of the Radiation Protection Regulations
2006.
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Clause 11 Section 85 amended (exemptions)
Section 85(2) of the Act sets out a guiding principle for
exempting radiation sources (exemptions are set out in the
Radiation Protection Regulations 2006). It provides that an
exemption cannot be made if its effect would be to pose more
than a negligible threat of harm to the health or safety of
persons or the environment. This reflects one of two key
principles from the internationally accepted criteria for
exemption contained in the Basic Safety Standards issued by the
International Atomic Energy Agency for ionising radiation.
The second key principle seeks to avoid unnecessary regulatory
impacts. This clause 11 introduces the second principle for both
ionising and non-ionising radiation, so that even though a
radiation source or radiation practice may pose more than a
negligible risk of harm, it may still be exempt in the Regulations if
legislative control over the source or matter would yield no net
benefit in terms of reducing harms to the health or safety of
persons or the environment.
Clause 12 Section 86 amended (regulations)
This clause amends section 86 as a consequence of inserting
section 70A which contains standard provisions relating to the
issuing of infringement notices. The amendment ensures there is
no duplication of the infringement notice provisions.
Clause 13 Repeal of Act
Standard repeal clause the Amendment Act will be repealed
on the 365th day from the day it commences (Royal Assent).
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