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RADIATION BILL 2005

                           Radiation Bill

                            As Sent Print

              EXPLANATORY MEMORANDUM


                               Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purpose of the Bill.

Clause 2   is the commencement provision. Clauses 1, 2 and 146
           commence operation on the day after the day on which the Bill
           receives the Royal Assent. The remainder of the Bill commences
           operation on 1 September 2007.

Clause 3   is the definitions clause. Some of the main definitions in
           clause 3(1) include--
           "ionising radiation apparatus" means an apparatus that
                produces ionising radiation when energised but does not
                include a sealed source apparatus or an apparatus that is
                prescribed by the regulations not to be an ionising radiation
                apparatus or declared not to be an ionising radiation
                apparatus under clause 4. An x-ray machine is an example
                of an apparatus that produces ionising radiation when
                energised;
           "National Directory for Radiation Protection" or "NDRP"--
                the current edition of the National Directory for Radiation
                Protection for the purposes of this definition is Edition 1.0,
                August 2004;
           "non-ionising radiation apparatus" means an apparatus that
               produces non-ionising radiation when energised and is
               prescribed by the regulations to be a non-ionising radiation
               apparatus. High powered lasers, such as class 3B and
               4 lasers which are used in surgical procedures and industrial
               applications, are apparatus that produce non-ionising
               radiation when energised;




                                      1
551290                                               BILL LA AS SENT 8/9/2005

 


 

"radiation facility" means a facility that is prescribed by the regulations to be a radiation facility but does not include a mill or facility of the kind described in section 8 of the Nuclear Activities (Prohibitions) Act 1983, or a nuclear reactor or nuclear power reactor within the meaning of the Nuclear Activities (Prohibitions) Act 1983, the construction or operation of which is prohibited by section 8 of that Act. The explicit exclusion of the mill, facility, nuclear reactor and nuclear power reactor clarifies that the Secretary could not licence a person to do something that is prohibited by section 8 of the Nuclear Activities (Prohibitions) Act 1983; "radiation practice" means various specified activities conducted by bodies corporate or natural persons relating to radiation sources (including the possession of a source), subject to the exceptions noted in paragraph (m) and (n) of the definition. Paragraph (n) provides that radiation practice does not include "using a radiation source". The word "use" is defined in clause 3 and does not encompass any type of use by a body corporate. Clause 3(2) provides that a person who carries out an activity referred to paragraphs (b) to (l) of the definition of "radiation practice" during the course of his or her employment is not to be taken to be conducting a radiation practice; "radiation source" means radioactive material, a radiation apparatus or a sealed source apparatus. If material or an apparatus is declared under clause 4 or prescribed in the regulations to not be radioactive material, a radiation apparatus or a sealed source apparatus (for the purposes of the Bill) then the material or apparatus is not a radiation source. The definition of "radiation source" does not include a "sealed source", since the definition of a sealed source means that a sealed source will always be radioactive material (within the meaning of the Bill); "radioactive material" is defined as including what is in paragraph (a) or (b) of the definition unless those things are excluded by paragraphs (c) or (d)-- · paragraph (a) relates to any material that spontaneously emits ionising radiation that has an activity concentration equal to, or greater than, the amount prescribed by the regulations, and consists of, or contains, an activity equal to, 2

 


 

or greater than, the amount prescribed by the regulations; · paragraph (b) relates to any material that spontaneously emits ionising radiation that has an activity concentration, or consists of, or contains, an activity, less than the amount prescribed by the regulations, and occurs in prescribed circumstances. This material could be prescribed where the activity concentration is relatively low, but the practice means that peoples' exposure to radiation is sufficiently high to justify regulatory control; · paragraph (c) relates to raw material with unmodified concentrations of radionuclides unless that material is prescribed by the regulations to be radioactive material. Some raw materials, such as granite, have naturally occurring radioactive material. If this material is modified in ways that the modified product contains increased concentration of radionuclides-- · the product ceases to be a raw material with unmodified concentrations of radionuclides and would not be covered by paragraph (c); and · whether it would be radioactive material (for the purposes of the Bill), would be determined in accordance with paragraphs (a), (b) and (d) of the definition; · if the raw material has unmodified concentrations of radionuclides, it is not radioactive material for the purposes of the Bill, unless regulations are made pursuant to paragraph (c) of the definition that prescribe the material to be radioactive material; · paragraph (d) relates to material that is prescribed by the regulations not to be radioactive material or declared not to be radioactive material under clause 4; 3

 


 

"sealed source" means radioactive material that is permanently sealed in a capsule or closely bound and in solid form. The radioactive material within certain forms of smoke detectors is an example of a sealed source. If material is prescribed by the regulations not to be radioactive material, or declared not to be radioactive material under clause 4, then the material is not a sealed source; "sealed source apparatus" means an apparatus that produces ionising radiation because it contains a sealed source but does not include an apparatus that is prescribed by the regulations not to be a sealed source apparatus or declared not to be sealed source apparatus under clause 4. Certain types of smoke detectors that contain radioactive material are examples of sealed source apparatus; "use", in relation to a radiation source, means actual use by a natural person of a radiation source and includes the use by a natural person of radiation emitted from a radiation source and the injection, or implanting, of radioactive material into a person or animal. Examples of use are actual use of a dental x-ray unit by a dentist whilst performing an x-ray of their patients' teeth. Another example is radiation emitted from radioactive material implanted in the body by a brachytherapist to treat a cancer in a patient. An approved tester that is testing a radiation source is also "using" the source. A body corporate cannot (for the purposes of the Bill) "use" a radiation source. Sub-clause (2) provides that for the purposes of the Bill, a person who carries out an activity referred to paragraphs (b) to (l) of the definition of "radiation practice" during the course of his or her employment is not to be taken to be conducting a radiation practice. This means that a person who transports radioactive material as part of their employment does not need to have a management licence although their employer will need to have such a licence. However, a person who possesses radiation sources that they use for their employment will need to have a management licence unless that person transfers possession of the sources to their employer. Clause 4 provides that the Secretary to the Department of Human Services ("the Secretary") may make declarations in relation to certain radioactive materials and apparatuses such that those materials and apparatuses are not included in the definitions of "radioactive material", "sealed source apparatus" and "ionising radiation apparatus" in clause 3(1). The Secretary may only make such declarations if the Secretary is satisfied that the ionising radiation either emitted by the relevant material or class of material, or 4

 


 

produced by the apparatus or class of apparatus, does not pose a significant risk to the health or safety of any person or the safety of the environment. Such a declaration must be published in the Government Gazette. Clause 5 provides that the Minister must ensure that a copy of any declaration made by the Secretary for the purposes of clause 4 is laid before each House of Parliament, and the declaration may be disallowed in whole or in part by either House. A failure by the Minister to table a declaration made under clause 4 does not affect the operation or effect of the declaration but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament. Clause 6 provides that this Bill binds the Crown in all its capacities, insofar as the power of the Parliament permits. PART 2--THE RADIATION PROTECTION PRINCIPLE Clause 7 provides that the Radiation Protection Principle is the principle that persons and the environment should be protected from unnecessary exposure to radiation through the processes of justification, limitation and optimisation as explained in the clause. Clause 8 provides that in interpreting a provision of the Bill or the regulations, a construction that would promote the Radiation Protection Principle is to be preferred to a construction that would not promote the Radiation Protection Principle. PART 3--THE ROLE OF THE SECRETARY Clause 9 sets out the functions of the Secretary for the purposes of the Bill and regulations. Clause 10 provides that the Secretary may do all things that are necessary or convenient to enable the Secretary to carry out his or her functions under the Bill or the regulations. Clause 11 provides that in exercising his or her functions and powers under the Bill and regulations, the Secretary must have regard to the Radiation Protection Principle (set out in clause 7) and the NDRP, to the extent that the NDRP is not inconsistent with the Bill or regulations. 5

 


 

PART 4--LICENSED ACTIVITIES Clause 12 makes it an offence for a person to conduct a radiation practice without either holding a management licence that is in force that allows the person to conduct that radiation practice, or being exempted under clause 16 from the requirement to hold a licence in respect of that radiation practice, and the person conducts the radiation practice in accordance with the exemption. Clause 63(1) provides that a management licence is not, for the purposes of this clause, in force if the licence is suspended. The maximum penalty applicable to the offence is 1800 penalty units in the case of a natural person and 9000 penalty units in the case of a body corporate. Clause 13 makes it an offence for a natural person to use a radiation source unless-- · the person holds a use licence that is in force that allows that use; or · the person is exempted under clause 16 from the requirement to hold a licence in respect of that use and the person uses the radiation source in accordance with the exemption; or · the person is an approved tester and uses the radiation source in accordance with a tester's approval issued to that person that is in force. Clause 63 provides that a use licence and a tester's approval are not, for the purposes of this clause, in force if the licence or approval is suspended. In accordance with the definition of the term "use" in clause 3(1), only a natural person can "use" a radiation source. The maximum penalty applicable to the offence is 1200 penalty units. Clause 14 makes it an offence for an owner or occupier of land to construct a radiation facility on land they own or occupy unless that person holds a facility construction licence that is in force. Clause 14 also makes it an offence for the land owner or occupier to allow another person to construct a radiation facility on land they own or occupy, unless that other person holds a facility construction licence that is in force. Clause 63(3) provides that a facility construction licence is not, for the purposes of this clause, in force if the licence is suspended. The maximum penalty applicable to the offence is 600 penalty units in the case of a 6

 


 

natural person and 3000 penalty units in the case of a body corporate. Clause 15 provides that a management licence holder must comply with every condition of their licence. The maximum penalty for non-compliance is 1200 penalty units in the case of a natural person and 6000 penalty units in the case of a body corporate. Sub-clause (2) provides that the holder of a use licence must comply with every condition of his or her licence. The maximum penalty for non-compliance is 600 penalty units. Sub-clause (3) provides that the holder of a facility construction licence holder must comply with every condition of their licence. The maximum penalty for non-compliance is 600 penalty units in the case of a natural person and 3000 penalty units in the case of a body corporate. Clause 16 provides that the Secretary may grant an exemption from the requirement to hold a management licence in respect of a specified radiation practice, or from the requirement to hold a use licence in respect of the use of a radiation source specified in the notice. The Secretary may only grant such an exemption if satisfied that the radiation practice or use will not pose a significant risk to the health or safety of any person or the safety of the environment. Clause 17 provides that a person must not represent, either directly or indirectly, that that person is a licence holder when that person does not hold a licence. The maximum penalty for non-compliance is 60 penalty units in the case of a natural person and 300 penalty units in the case of a body corporate. Clause 18 makes it an offence for a management licence holder to direct, request or knowingly allow a person to use a radiation source in the management licence holder's possession if the management licence holder knows that person is either not the holder of a use licence or holds a suspended use licence. The offence does not apply if a relevant clause 16 exemption applies to the person who uses the source and the person uses it in accordance with that exemption. The maximum penalty applicable to the offence is 1200 penalty units in the case of a natural person and 6000 penalty units in the case of a body corporate. 7

 


 

Clause 19 makes it an offence for a management licence holder to direct, request or knowingly allow, a use licence holder to use a radiation source in the management licence holder's possession in a manner that the management licence holder knows is contrary to the conditions of the use licence holder's licence. The maximum penalty applicable to the offence is 1200 penalty units in the case of a natural person and 6000 penalty units in the case of a body corporate. Clause 20 makes it an offence for a management licence holder to not immediately notify the Secretary if a radiation source that was in their possession is lost or has been stolen. The maximum penalty applicable to the offence is 600 penalty units in the case of a natural person and 3000 penalty units in the case of a body corporate. Clause 21 makes it an offence for a management licence holder to knowingly, recklessly or negligently abandon a radiation source that is in their possession. The maximum penalty applicable to the offence is 1800 penalty units in the case of a natural person and 9000 penalty units in the case of a body corporate. Clause 22 makes it an offence for a person, when conducting a radiation practice, to knowingly, recklessly or negligently cause another person to receive a radiation dose that is greater than the dose limit that is prescribed. The maximum penalty applicable to the offence is 600 penalty units in the case of a natural person and 3000 penalty units in the case of a body corporate. Sub-clause (2) makes it an offence for a person, when using a radiation source, to knowingly, recklessly or negligently cause another person to receive a radiation dose that is greater than the dose limit that is prescribed. The maximum penalty for this offence is 240 penalty units. Sub-clause (4) provides that neither of the offences in this clause apply if the person who receives the radiation dose receives it in relation to treatment or diagnosis of illness or injury. Clause 23 makes it an offence for a person to cause serious harm to the environment when conducting a radiation practice in relation to a radiation source. The maximum penalty applicable to the offence is 1800 penalty units in the case of a natural person and 9000 penalty units in the case of a body corporate. Sub-clause (2) makes it an offence for a person to cause serious harm to the environment when using a radiation source. The maximum penalty for this offence is 1200 penalty units. 8

 


 

PART 5--APPROVED TESTERS AND TESTING AND USE OF PRESCRIBED RADIATION SOURCES Division 1--Introductory Clause 24 defines key terms used in Part 5. Division 2--Approved Testers Clause 25 sets out the role of approved testers. Clause 26 provides that an approved tester must comply with every condition of the person's tester's approval. The maximum penalty for non-compliance is 600 penalty units. Clause 27 provides that a person must not issue a certificate of compliance in relation to a prescribed radiation source unless he or she is an approved tester. Clause 63(4) provides that a tester's approval is, for the purposes of this clause, deemed not to be in force if the approval is suspended. This means that a person who holds a suspended tester's approval is not an approved tester for the purposes of this clause, and must not issue any certificates of compliance unless and until the approval is reinstated. The maximum penalty for non-compliance is 600 penalty units. Clause 28 makes it an offence for a person to directly or indirectly impersonate an approved tester. The maximum penalty for non-compliance is 60 penalty units. Division 3--Radiation Safety Standards and Tests Clause 29 provides that the Secretary must specify standards that each prescribed radiation source must meet when they are tested by an approved tester. A standard must be specified for every prescribed radiation source. When a standard is specified, the Secretary is to publish notice of the standard in the Government Gazette and publish the standard on the internet. Clause 30 provides that the Secretary may specify the method, form or manner of radiation safety tests that must be conducted on a prescribed radiation source to determine if it meets the relevant radiation safety standard. When a test is specified, the Secretary is to publish notice of the standard in the Government Gazette and publish the standard on the internet. 9

 


 

Clause 31 provides that radiation safety standards and radiation safety tests may incorporate documents, codes and other material. Section 32 of the Interpretation of Legislation Act 1984 does not apply to radiation safety standards or specified radiation safety tests. Division 4--Testing and Certificates of Compliance Clause 32 provides that, if an approved tester is required to test a prescribed radiation source as part of their employment or engagement, and there is a specified radiation safety test applicable to that source, then the tester must conduct the test in accordance with the specified radiation safety test. Clause 33 provides that if an approved tester conducts a test to determine if a prescribed radiation source meets the applicable radiation safety standard, and determines that the standard is met, the approved tester must issue a certificate of compliance in respect of the prescribed radiation source. This clause should be read subject to clauses 27 and 63. If an approved tester holds a suspended tester's approval, it would be an offence to issue a certificate of compliance in respect of the prescribed radiation source, even if the tester conducted the test when his or her licence was not suspended. Sub-clause (2) sets out procedural requirements for the certificate of compliance, including that the certificate is to contain any information specified by the Secretary, and the prescribed date of expiry for that certificate. Dates of expiry are prescribed for certificates of compliance in relation to each prescribed radiation source. Clause 34 provides that an approved tester must provide the information in any certificate of compliance issued in accordance with clause 33 to the Secretary within 7 days of issuing the relevant certificate of compliance. Clause 35 provides that an approved tester must not knowingly issue a certificate of compliance that is false or misleading in a material particular. The maximum penalty for non-compliance is 600 penalty units. 10

 


 

Division 5--Use of Prescribed Radiation Sources Clause 36 provides that a person in possession of a prescribed radiation source must not require, direct or allow a person to use it unless there is a current certificate of compliance for the source. The word "use" is defined in clause 3(1). The maximum penalty applicable to the offence is 1200 penalty units in the case of a natural person and 6000 penalty units in the case of a body corporate. PART 6--AUTHORITIES UNDER THE ACT Division 1--Issue of Authorities Clause 37 provides who may apply for an authority. "Authority" is defined in clause 3(1) to mean a facility construction licence, a management licence, a use licence or a tester's approval. Clause 38 sets out the requirements for an application for an authority. These include that the application is to be accompanied by any information required by the Secretary that relates to the authority. Clause 39 sets out the additional information that must be included in an application for a management licence. Clause 40 sets out the additional information that must be included in an application for a use licence. Clause 41 sets out the additional information that must be included in an application for a facility construction licence. Clause 42 sets out the additional information that must be included in an application for a tester's approval. Clause 43 provides that the Secretary may issue an authority to an applicant upon receipt of an application pursuant to clause 37. Sub-clause (2) sets out the grounds upon which the Secretary may refuse to issue an authority. Sub-clauses (3) and (4) set out the procedural steps to be taken by the Secretary if an application for an authority is refused. Clause 44 sets out the matters that the Secretary may have regard to when considering whether an applicant for a use licence is a fit and proper person. 11

 


 

Clause 45 provides that the Secretary may request a relevant practitioner registration board to disclose information about an applicant for a use licence for the purpose of determining whether the applicant is a fit and proper person. Sub-clause (2) gives the relevant practitioner registration board a discretion to disclose information about the applicant to the Secretary. The information must be information that was obtained by the board pursuant to the Act under which the board is established. For the purposes of this clause, sub-clause 44(2) defines relevant practitioner registration board. Clause 46 sets out further matters which the Secretary may have regard to when considering whether an applicant for a tester's approval is a fit and proper person to hold a tester's approval. Clause 47 provides that an authority is subject to any conditions that the Secretary considers appropriate. Clause 48 provides that the Secretary may issue an authority for any period, up to three years, that is specified in the authority. Clause 49 provides that an authority takes effect on the day on which it is issued by the Secretary, or a later date specified by the Secretary in the authority. Clause 50 sets out what must be included in an authority. Sub-clause (2) specifies the additional information that must be included in a management licence. Sub-clause (3) specifies the additional information that must be included in a use licence. Division 2--Renewal of Authorities Clause 51 provides that the authority holder may apply to the Secretary for renewal of their authority either before the authority expires or within 60 days after the authority expires. Sub-clause (3) sets out the requirements for the application, including that the application for renewal must be accompanied by the prescribed fee (if any). 12

 


 

Sub-clause (4) provides that any prescribed fee that must be paid for an application made within 60 days after the authority expires must be the same as the prescribed fee that must be paid for an authority that is renewed-- · on an application that is made before the authority expired; and · with the same date of expiry as specified in the authority that is renewed on the late application. An example is as follows: A person holds a 12 month management licence that expires on 1 January 2009. The person applies for a renewal of that licence on 1 February 2009 (ie one month after the expiry date of that licence). The Secretary could renew that licence on 1 February 2009 for a period of 11 months, so that it expires on 1 January 2010. The prescribed fee for this renewal must be the same as if that person applied for the renewal before 1 January 2009 and the licence was renewed until 1 January 2010 (ie the prescribed fee for a 12 month renewal of that authority). Clause 52 provides that when considering an application for the renewal of an authority, the Secretary must renew the authority unless there are good reasons not to do so. Sub-clause (2) provides that if an application for renewal is made before the authority expires, the authority is taken to be renewed from the day when the current authority expires. Sub-clause (3) provides that if the application for renewal is made within 60 days after the authority expires, the renewal is operative from the date the Secretary renews the authority and is taken not to have been in force between the expiry of the authority and the renewal of the authority. Sub-clauses (4) and (5) set out the procedural steps to be taken by the Secretary if an application for the renewal of an authority is refused. Clause 53 provides that the Secretary may renew an authority for any period up to three years that is specified in the authority. Clause 54 provides that clause 47, which provides that an authority is subject to any conditions that the Secretary considers appropriate, also applies to renewal of authorities as if the renewal were issued under Division 1. Clause 55 provides that clause 50, which specifies what information must be included in an authority, also applies to renewal of authorities as if the renewal were issued under Division 1. 13

 


 

Division 3--Suspension and Cancellation of Authorities Clause 56 provides that the Secretary may suspend or cancel an authority either if the Secretary reasonably believes one of the specified grounds in clause 56(a) are satisfied or by agreement between the Secretary and the authority holder. The grounds for suspension and cancellation specified in clause 56(a) include-- · the authority is no longer a fit and proper person to hold the authority; · the authority has breached a condition of their authority; and · there is a risk to the health or safety of persons or the safety of the environment if the authority is not suspended or cancelled. Clause 57 sets out the procedure that the Secretary must follow when the Secretary forms a belief that a ground specified in clause 56(a) exists. The Secretary must send the authority holder a written notice specifying a number of matters, including the grounds for the proposed action and an invitation to the holder to show cause, within a period specified in the notice, why the proposed suspension or cancellation should not be taken. The period must not be less than 28 days commencing on the day the notice is given to the authority holder. Clause 58 provides that if the authority holder receives a notice under clause 57, the authority holder may make written representations to the Secretary within the period specified in the notice. Clause 59 provides that if the Secretary, after considering representations made by the authority holder under clause 58, no longer has a reasonable belief that a ground for suspension or cancellation exists, the Secretary must not suspend or cancel the licence and must, as soon as practicable, give the authority holder a written notice stating that the authority will not be suspended or cancelled. Clause 60 provides that if the Secretary, after considering representations made by the authority holder under clause 58, believes that a ground exists to suspend or cancel the authority and that a suspension or cancellation is warranted, the Secretary may proceed to suspend or cancel the authority. If the ground specified in the show cause notice was suspension, then the Secretary may suspend the authority for a period not greater than the period proposed in the show cause notice. If the ground 14

 


 

specified in the show cause notice was cancellation, the Secretary may cancel the authority, or suspend the authority for a period. Sub-clauses (2) and (3) provide the steps to be taken by the Secretary regarding notification of the suspension or cancellation. Sub-clause (4) provides that the suspension or cancellation takes effect on the day on which the authority holder is notified, or a later day specified in the notification. Clause 61 provides that if the Secretary cancels an authority, the authority holder must return the authority to the Secretary within 14 days of being notified of the cancellation unless the holder has a reasonable excuse. The maximum penalty for non-compliance is 20 penalty units. Clause 62 provides that the Secretary may immediately suspend an authority if satisfied that urgent circumstances exist in respect of that authority. Sub-clause (1) defines urgent circumstances as being where a ground exists to suspend or cancel an authority and it is necessary to protect the health or safety of persons or the environment from the harmful effects of radiation to immediately suspend the authority until the suspension or cancellation procedure specified in clauses 57 to 60 is completed. Clause 63 sets out the effect of suspension on a management licence, a use licence, a facility construction licence and a tester's approval. Division 4--Other Actions in Relation to Authorities Clause 64 provides that a management licence holder or a facility construction licence holder may apply to the Secretary for approval to transfer their licence to another person. The clause sets out the procedure to be followed in relation to such an application. Sub-clause (4) sets out the grounds upon which the Secretary may refuse such an application to transfer a licence. Clause 65 provides that the Secretary may vary an authority or the conditions of an authority on his or her own initiative. Clause 66 provides that an authority holder may apply to the Secretary for a variation to the authority or the conditions of an authority. The clause sets out the procedure to be followed in relation to such an application. Clause 67 provides that an authority holder may surrender their authority by notice in writing given to the Secretary. 15

 


 

PART 7--ENFORCEMENT Division 1--Introductory Clause 68 defines key terms used in Part 7. In particular, "regulated activity" is defined to mean any activity conducted under or in accordance with an authority or an exemption under clause 16. Division 2--Authorised Officers Clause 69 provides that the Secretary may appoint a person employed under Part 3 of the Public Administration Act 2004 as an authorised officer if the Secretary is satisfied that the person is suitably qualified or trained to exercise the powers of an authorised officer under the Bill. Clause 70 provides that the Secretary must issue each authorised officer with an identity card that complies with the requirements in sub-clause (2). Clause 71 provides that an authorised officer must produce the officer's identity card before exercising a power under Part 7 or at any time during the exercise of a power under Part 7, if the authorised officer is asked to do so. Clause 72 provides that if an authorised officer does not immediately produce the officer's identity card when asked to do so, the authorised officer must cease exercising a function or power under Part 7. Clause 73 provides that the Secretary may give a direction to an authorised officer in relation to the officer's performance or exercise of a function or power under the Bill. Division 3--Entry Powers of Authorised Officers Clause 74 sets out when authorised officers may enter any place pursuant to the Bill for the purpose of monitoring compliance with the Bill and the regulations, or investigating a possible contravention of the Bill or the regulations. An authorised officer may-- · enter, without consent, any place that is non-residential premises that the authorised officer reasonably believes is being used in connection with a regulated activity at any reasonable hour in the daytime or any time that those premises are open for business; 16

 


 

· enter a public place at any time without the consent of the occupier of the public place; · enter any other place (including residential premises), either with the consent of the occupier or apparent occupier or pursuant to a search warrant that authorises the authorised officer to enter. By way of example, a place would be used "in connection with a regulated activity" if-- · radiation sources have been used at the place by a person holding a use licence; or · radiation sources have been used or stored at the place and are subject to a management licence; or · the place is an office of the management licence holder and there are computers at that place, which can access records relating to a radiation source in the possession of that management licence holder. Sub-clause (2) provides when an authorised officer may enter land around residential premises or a part of residential premises which members of the public may usually enter without consent for the purposes of asking the occupier for consent to enter. Clause 75 sets out the procedure to be followed by an authorised officer before entering any place in accordance with clause 74(1)(a). The authorised officer must-- · announce that he or she is an authorised officer under the Bill and is authorised to enter the place; · inform any person at the place of the purpose of the entry; and · give any person at the place an opportunity to allow that entry. Sub-clause (2) provides that the authorised officer need not comply with these 3 steps if the officer believes on reasonable grounds that immediate entry to the place is needed to ensure the safety of any person. 17

 


 

Clause 76 sets out the procedure to be followed by an authorised officer before entering any place in accordance with clause 74(1)(c)(i), that is, with the consent of the occupier or apparent occupier. The authorised officer must inform the occupier or apparent occupier-- · of the purpose of the entry; · that the occupier is not required to consent; and · that the occupier may refuse consent for any thing or sample or document or an extract or copy of a document to be taken during a search at the place. Sub-clause (3) provides that if consent is given the officer may ask the occupier to sign an acknowledgement of the consent. Sub-clause (4) sets out what must be included in the acknowledgement and sub-clause (5) provides that the authorised officer must, as soon as the occupier signs any acknowledgement, give a copy of the acknowledgement to the occupier. Division 4--Investigation and Enforcement Powers of Authorised Officers Clause 77 sets out the powers of an authorised officer who enters a place in accordance with Part 7, or under Part 7 in accordance with an authorisation under Part 8. Some of the powers are-- · to examine or inspect any thing, including documents, at the place (paragraph (1)(b)); · to seize any thing, including any radiation source or document, at the place if the authorised officer reasonably believes that the seized thing is connected with an alleged contravention of the Bill or the regulations or reasonably believes that there is a serious risk to the health or safety of any person or the safety of the environment if the thing is not seized (paragraph (1)(d)); · to analyse, measure or test for the emission of radiation from a radiation source at the place with equipment brought to the place or already at the place (paragraph (1)(f)(ii)); · to seal a radiation source at the place (paragraph (1)(g)); · to make a radiation source at the place inoperative (paragraph (1)(h)). 18

 


 

Sub-clause (2) provides that in doing any thing referred to in sub- clause (1), an authorised officer may be assisted by any person. This may include a member of the police force or a radiation analyst who is not also an authorised officer. Clause 78 sets out a list of directions that an authorised officer who enters a place under Part 7, or pursuant to Part 7 under an authorisation under Part 8, may give a person at a place. This includes a direction to answer any questions put by an authorised officer (paragraph (1)(d)). Sub-clause (2) provides that a person must not refuse or fail to comply with a direction under sub-clause (1) unless the person has a reasonable excuse. Pursuant to clause 127, concerns regarding self-incrimination would not be a reasonable excuse. The maximum penalty for non-compliance with the offence in clause 78(2) is 60 penalty units for a natural person and 300 penalty units in the case of a body corporate. Sub-clause (3) provides that before an authorised officer gives a direction to a person pursuant to paragraph (1)(a) or (1)(d), the authorised officer must warn the person that a refusal or failure to comply with the direction without reasonable excuse is an offence. Sub-clause (4) provides that a person is not liable to be prosecuted for an offence against sub-clause (2) if the officer did not comply with clause 71 and sub-clause (3). Division 5--Search Warrants Clause 79 provides for the issue of a search warrant by a magistrate upon the application of an authorised officer who believes on reasonable grounds that there is, or may be in the next 72 hours, something at a place that may afford evidence of the commission of an offence against the Bill or regulations. Sub-clause (3) provides that any search warrant issued by a magistrate pursuant to this clause may authorise a named authorised officer and any assistants the authorised officer considers necessary to enter the place or part of the place set out in the warrant and to search for the thing named or described in the warrant. The clause also sets other requirements relating to any warrant issued by a magistrate pursuant to this clause. Clause 80 sets out the procedure to be followed by any authorised officer, and any assistants, before executing a search warrant. 19

 


 

Clause 81 sets out the procedure to be followed by an authorised officer if an occupier or an apparent occupier is present at the place when a search warrant is being executed. Division 6--Seized Things and Samples Taken Clause 82 provides that if an authorised officer seizes anything or takes a sample of anything from a place that the officer enters pursuant to Part 7, the officer must provide the person in charge of the thing or that place with a receipt. The clause specifies what must be included in the receipt, and where the receipt is to be left if the authorised officer cannot give it to a person at the place. Clause 83 provides that if the authorised officer keeps any documents seized pursuant to Part 7, then the officer must give a certified copy of the document to the person from whom the documents were seized within 21 days of the seizure. Clause 84 provides that if an authorised officer seizes a document or any thing under Part 7, then the officer must take reasonable steps to return it to the person from whom it was taken as soon the reason for its seizure no longer exists. Sub-clause (2) provides what is to happen if the document or thing is not returned by a date 3 months after the seizure. Sub-clause (3) provides that clause 84 does not apply if the document or thing is forfeited to the Secretary. Clause 85 provides that an authorised officer may apply to the Magistrates' Court for an extension of up to 3 months of the period for which the officer may retain a seized document or thing. The clause sets out when the Magistrates' Court may order such an extension, and the notice that must be given to the owner of the thing or document. Clause 86 provides that a thing seized by an authorised officer under Part 7 may be forfeited to the Secretary if the Secretary-- · cannot find its owner despite making reasonable enquiries; or · cannot return it to the owner despite making reasonable efforts; or · decides it is necessary to retain the thing to prevent the commission of an offence under the Bill or regulations. 20

 


 

Sub-clause (2) requires the Secretary to notify the owner when a thing is forfeited to the Secretary because the Secretary has decided that it is necessary to retain the thing to prevent the commission of an offence, and also to notify the owner of how to seek review of this decision. The requirement to give notice does not apply if the Secretary cannot find the owner despite making reasonable enquiries. Clause 87 provides that the Secretary may cause any thing forfeited to the Secretary under Part 7 to be destroyed or otherwise disposed of. Division 7--Examination, Analyses, Measurement and Testing Clause 88 provides that an authorised officer who seizes something or takes a sample of something from a place under clause 77(1)(e) or under a search warrant, may give that thing or sample to a radiation analyst for examination, analysis, measurement or testing or if the authorised officer is also a radiation analyst, may complete a certificate themselves or give it to another radiation analyst for the certificate to be completed. Clause 89 clarifies that an authorised officer who is a radiation analyst and who examines, analyses, measures or tests any thing, or measure or tests for the emission of radiation from a radiation source at a place, may complete a certificate of examination and analysis. Clause 90 provides that a certificate of examination and analysis must include information about the methodology used. Division 8--Miscellaneous Clause 91 makes it an offence for a person who is not an authorised officer to in any way hold themselves out to be an authorised officer. The maximum penalty is 60 penalty units. PART 8--RADIATION EMERGENCIES Clause 92 defines "radiation event", which is a key term in Part 8. A radiation event is defined as an incident or event which results, or may result, in the emission of radiation from a radiation source. 21

 


 

Clause 93 The Secretary may give an authorisation to an authorised officer in relation to a radiation event if-- · the Secretary believes on reasonable grounds that the radiation event has occurred and that event poses a serious risk to the health or safety of persons or safety of the environment; or · the Secretary believes on reasonable grounds that the radiation event may occur, and if it did, it would pose a serious risk to the health or safety of persons or to the safety of the environment. Clause 94 sets out the requirements for an authorisation, including when it is to be oral or in writing, and what information it must include. Clause 95 provides that the Secretary may extend the period of time of an authorisation provided it is extended before the authorisation has expired. If the Secretary believes on reasonable grounds that the radiation event to which the authorisation relates will continue to pose a serious risk to the health or safety of persons or the safety of the environment the Secretary may extend the period. Clause 96 sets out what an authorisation may authorise an authorised officer to do. Sub-clauses (2) and (3) specify the limits on an authorised officer's power to detain a person pursuant to sub-clause (1)(b). Sub-clause (4) provides that an authorised officer may be assisted by any person in doing any of the acts listed in sub-clause (1). Sub-clause (5) makes it an offence for a person to refuse or fail to comply with a direction under sub-clause (1)(a), (c), (d) or (g) unless the person has a reasonable excuse. The maximum penalty for non-compliance is 60 penalty units for a natural person and 300 penalty units in the case of a body corporate. Clause 97 provides that an authorised officer must display the officer's identity card when exercising a power under an authorisation unless it is impracticable for the officer to do so. Clause 98 provides that if a person refuses to comply with a direction given under Part 8, the authorised officer or a person assisting the officer may request the assistance of the police force. A member of the police force may use reasonable and necessary force to ensure that a direction under Part 8 is complied with. 22

 


 

Clause 99 provides that a person who has suffered loss as a result of the giving of an authorisation may apply to the Secretary for compensation, if the person considers that there were insufficient grounds for the giving of that authorisation. If there were insufficient grounds, the Secretary is to pay just and reasonable compensation to the applicant. The procedure for determining the amount of compensation is set out in this clause. PART 9--REVIEW OF DECISIONS Clause 100 defines key terms for the purposes of Part 9. The definition of "eligible person" defines those who are eligible to apply for review by the Secretary under clause 802. The definition of "relevant applicant or licensee" defines those who, although they are eligible persons, are not eligible to apply for review by VCAT under clause 102. The definition of "reviewable decision" sets out the decisions under the Bill that are reviewable by the Secretary under clause 101. Clause 101 provides that an eligible person in relation to a reviewable decision may apply to the Secretary for a review of the decision. The clause sets out the time in which the review must be undertaken, the powers of the Secretary upon review and the procedure to be followed by the Secretary in notifying the applicant of the Secretary's decision. Sub-clause (6) provides that if the Secretary does not make a decision within 28 days after the Secretary receives the application for review, the Secretary is deemed to have affirmed the decision. Clause 102 provides that an eligible person, other than a relevant applicant or licensee, whose interests are affected by a decision of the Secretary under clause 101 may apply to VCAT for review of the decision. The relevant applicant or licensees who are not eligible to apply for review by VCAT are applicants for a facility construction licence or a management licence to conduct a radiation practice at a radiation facility, a facility construction licence holder and a management licence holder who conducts a radiation practice at a radiation facility under a management licence. Sub-clause (2) provides that an authority-holder, other than a relevant applicant or licensee, whose authority is suspended or cancelled under section 60 or 62, may apply to VCAT for review of the suspension or cancellation decision without first applying under section 101 for review by the Secretary. 23

 


 

PART 10--THE RADIATION ADVISORY COMMITTEE Clause 103 establishes the Radiation Advisory Committee. Clause 104 provides for the appointment of members of the Committee, including the terms and conditions of their appointment and resignation and removal of members of the Committee. Clause 105 provides that the Minister may appoint a person to act in the place of a member who for some reason is unable to perform the duties of the office. Clause 106 provides that subject to this Bill, the Committee may regulate its own proceedings. Clause 107 sets out the function of the Committee. Clause 108 provides that the Committee may consult with or consider submissions from any person of body when it is carrying out its function. Clause 109 provides that the Committee may, with the consent of the Minister, request a person to assist the Committee or a sub- committee of the Committee. Clause 110 provides that the Committee must give the Minister a report on its activities during a financial year no later than the 1 November following that year. Clause 111 provides that the Minister must cause every report under clause 110 to be laid before each House of Parliament as soon as practicable after it is received. PART 11--GENERAL Division 1--Radiation Analysts Clause 112 provides that the Secretary may appoint a person as a radiation analyst if the Secretary considers that the person has the necessary expertise or experience to be a radiation analyst. Clause 113 provides for the terms and conditions of appointment of a radiation analyst. Clause 114 sets out the functions of a radiation analyst. 24

 


 

Division 2--Other Offences Clause 115 makes it an offence for a person to open, alter, break or remove any seal placed on a radiation source by an authorised officer unless the person has a reasonable excuse. The maximum penalty for the offence is 600 penalty units for a natural person and 3000 penalty units in the case of a body corporate. Clause 116 makes it an offence for a person to knowingly give the Secretary or an authorised officer information that is false or misleading in a material particular. The maximum penalty for the offence is 1200 penalty units for a natural person and 6000 penalty units in the case of a body corporate. Clause 117 makes it an offence for a person to hinder or obstruct an authorised officer who is exercising a power under the Bill unless the person has a reasonable excuse. The maximum penalty is 60 penalty units. Division 3--Infringements Clause 118 defines a key term for the purposes of this Division. A "prescribed offence" is an offence which the regulations prescribe so that infringement notices may be served for the offence in accordance with the Division. Clause 119 provides that the Secretary may serve an infringement notice on any person that the Secretary has reason to believe has committed a prescribed offence. Clause 120 sets out the requirements that must be contained in an infringement notice. Clause 121 sets out the infringement penalty for an offence against a prescribed offence. Clause 122 sets out the circumstances in which the Secretary may accept late payment of an infringement penalty. Clause 123 provides that the Secretary may withdraw an infringement notice at any time within 28 days after the date on which the notice was served. Clause 124 sets out the effect of the infringement penalty being paid if an infringement notice is not withdrawn. 25

 


 

Clause 125 provides that the payment of an infringement penalty is not an admission of guilt in relation to the offence nor is it an admission of liability for the purpose of any civil claim arising out of the same occurrence. Clause 126 provides that a charge may be filed in relation to the offence to which an infringement notice was issued if the infringement penalty has not been paid on time, or the notice is withdrawn. Division 4--Provisions Relating to Offences Clause 127 provides that a natural person is not excused from complying with a direction of an authorised officer under section 78, or under a Part 8 authorisation, on the ground that to do so would incriminate the person. However, any information given by that person in complying with such a direction is not admissible in evidence against the person in criminal proceedings other than in proceedings regarding the provision of false information. Sub-clause (3) provides that despite the above, any information provided by a person in complying with a section 78 direction or Part 8 authorisation that is contained in any document that the law requires that person to keep, is admissible in criminal proceedings against that person. Clause 128 provides that if a corporation commits an offence against the Bill or regulations, each officer of the corporation is taken to have committed that offence if the officer knowingly authorised or permitted the commission of that offence. Clause 129 provides that proceedings for a summary offence against the Bill or regulations are to be commenced within 3 years of commission of the alleged offence or a further period being within one year after the day on which the Secretary first obtains evidence of the commission of the alleged offence that is considered sufficient to warrant commencing proceedings. This is intended to override section 26 of the Magistrates' Court Act 1989. Clause 130 provides that a signature purporting to be the signature of the Minister, the Secretary, an authorised officer or a radiation analyst is evidence of the signature it purports to be. Clause 131 sets out the circumstances when a certificate signed by the Secretary or a radiation analyst is evidence of the matter contained in the certificate. 26

 


 

Division 5--Compensation and Recovery of Costs Clause 132 sets out the circumstances where a court may make an order against a person under section 86 of the Sentencing Act 1991 in respect of an offence under this Bill or the regulations, which allows the applicant to recover compensation for the loss suffered by the applicant as a result of the commission of the offence. Sub-clause (1) defines "loss", "compensation for the loss" and "value of the property lost" for the purpose of applying section 86 of the Sentencing Act 1991 to this Bill. "Clean-up", which is referred to in these definitions, is defined in clause 3(1). Sub-clause (5) provides that if an order of the court includes an amount for estimated costs, and the costs incurred are less than the estimated costs, the applicant must refund the difference to the person. Sub-clause (8) provides that if the applicant is the Secretary, then the money for the refund is appropriated accordingly. Clause 133 provides that where an authorised officer gives a direction to a person pursuant to section 96(1)(d) or (g), and the person refuses to comply with the direction, and the Secretary has to step in to do what the person was directed to do, the Secretary may recover from that person the reasonable costs of doing the thing. Division 6--Reporting Clause 134 provides that the Secretary must publish an annual report each year addressing the matters specified in sub-clause (1). Clause 135 provides that the Secretary must notify the Chief Executive Officer of ARPANSA of a prescribed radiation incident when the Secretary becomes aware of any such incident. Division 7--Miscellaneous Clause 136 provides that the Secretary may disclose information collected or received under the Bill or regulations to a number of specified bodies, including the Health Services Commissioner, a relevant practitioner registration board and the Environment Protection Authority, or similar bodies in other jurisdictions in Australia or overseas. Clause 137 provides that neither the Secretary nor any authorised officer is required to hold any authority to exercise any power or perform any duty under this Bill or regulations. This would include the Secretary's possession of sources that have been acquired by the Secretary under the Bill or the Health Act 1958. 27

 


 

Clause 138 provides that the Secretary must establish and maintain a register of the matters listed. The register must contain the information that is prescribed in respect of each of these matters. Clause 139 provides that the Governor in Council may make regulations for or with respect to a number of matters. These include any matter or thing required or permitted to be prescribed or necessary to be prescribed to give effect to the Bill. Sub-clauses (3) to (5) provide for flexibility in setting fees, and providing for regulations for the waiver and refund of fees. PART 12--SAVINGS, TRANSITIONALS AND AMENDMENT OF ACTS Division 1--Amendment of Acts Clause 140 provides for the repeal of sections 108AA to 108AK of the Health Act 1958. Clause 141 makes a consequential amendment to the Dangerous Goods Act 1985. Clause 142 makes a consequential amendment to the Environment Protection Act 1970. Clause 143 Sub-clause (1) amends Schedule 4 to the Magistrates' Court Act 1989 to provide for the maximum penalties applicable to indictable offences in this Bill when the offences are tried summarily. Sub-clause (2) amends Schedule 5 to the Magistrates' Court Act 1989 to provide that an authorised officer for the purposes of this Bill may witness a statement of a person initiating proceedings for an indictable offence in the Bill at the committal stage. Clause 144 makes consequential amendments to the Nuclear Activities (Prohibitions) Act 1983. Clause 145 makes a consequential amendment to the Road Transport (Dangerous Goods) Act 1995. 28

 


 

Division 2--Savings and Transitionals Clause 146 provides for the continued operation of the Health (Radiation Safety) Regulations 1994, despite the Subordinate Legislation Act 1994, until the commencement of clause 140. The Regulations that continue in operation are those in force immediately before the commencement of this section. Clause 147 provides that the Schedule (Saving and Transitionals) has effect. SCHEDULE The Schedule deals with transitional matters arising from the repeal of sections 108AA to 108AK of the Health Act 1958, and the implied revocation of the Health (Radiation Safety) Regulations 1994, the operation of which will be extended by clause 146. 29

 


 

 


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