Comments on the Australian Radiation Protection and Nuclear Safety Bill 1998

1. The push for proper legislation for and regulation of the nuclear industry in Australia has been going on for many years. The aim was to bring this area at least up to the highest standards which apply overseas (in some countries). This push came, not from the industry or from government but from the environment movement. Finally, when the report of the Research Reactor Review (RRR) was released in 1993, the lack of proper regulation was made public and given the stamp of officialdom. At last we had been taken notice of through our submissions to the review.

2. Why had the regulatory regime been allowed to remain at 1950s level? One reason is that whenever the subject of the industry - and within this term I include AAEC/ANSTO - was raised in federal parliament it was treated as a non-controversial matter and passed without examination or rational debate. I fear that nothing has altered in that regard when this 1998 bill was presented. Somehow the industry has such sway that our members forget their differences and the confrontational way they usually carry out their daily business.

3. An outstanding example of this was the federal ANST0 Amendment Bill of 1992 which removed State and local government's jurisdiction relating to areas of environment or planning. That bill was a disgrace but it was supported by the major parties in Canberra.

4. When it was announced that the regulations were to be improved and brought into the 20th century we were delighted. But for three years from 1993-96 the silence was deafening. From 1996 there was some movement but little response to our enquiries. Now we are presented with a bill and asked to give it our approval without having any idea as to what regulations will be put in place. Why? Because the details are not yet complete. It would much better to comment on the regulations rather than the bill but it seems the Canberra club will close ranks once more and deal with the bill as non-controversial without access to the detailed regulations.

1. "The Object of the Act , Section 3, is to protect the health and safety of people from the harmful effects of radiation." Who will define the word harmful particularly with respect to human health? Attached are copies of articles on the dangers of low levels of radiation exposure. If harmful refers only to fatal cancers then it will be a deficient definition. There are daily emission of radioactive gases from both the reactor and the radioisotope production plant at Lucas Heights. As there has never been any health examination of the local population it cannot be said that there has been no genetic or non-genetic damage to cells. Will the new body carry long term tests, probably over the next fifty years? It will be very difficult and costly but surely it cannot be ignored as it has since 1958.

2. The Act binds the Crown (2) "Nothing in this Act renders the Crown liable to be prosecuted for an offence". What does this mean and who is it protecting?

3. Operation of the Act (9) with regard to the Nuclear Non-Proliferation (Safeguards) Act 1987. has the Safeguards Office examined the Bill carefully and if so is it fully satisfied that it will not conflict with its Non Proliferation Treaty safeguards?

4. Definitions , section 11, Nuclear installation. Do critical and sub-critical assemblies include Hot Cells?
   
   There is no mention of waste dumps or repositories. Or storage places for spent fuel, waiting to be moved somewhere. Are these excluded from the Act. If so under what regime would they be licensed? Or would they be licensed at all? If not included then this is a glaring example of why the regulations must be seen and examined before the Bill is passed.
   
   Reprocessing plants are included in the list of nuclear installations. Reprocessing is still on the table (or at least in the middle drawer). Assurances from any Minister are all subject to use-by dates and the average tenure of Ministers for Science over the past ten years is 18 months.

5. The Chief Executive Officer, CEO, of ARPANSA. Sections 12 and 33. How it this person chosen? Appointed by the Minister / Governor General or following international advertising of the position? Would present or former employees of ANSTO be eligible for the post? Should they be?
   
   A more worrying detail is that ARPANSA and its CEO will be "part of the Department of State administered by the Minister". Surely this is contrary to the concept of independence of the agency. Whilst it may be said that it will not be within the Department of Science, as is ANSTO, the Department of Health is not without close connections with the influential nuclear medicine industry. Let's face it, ANSTO is the chief advisor to all government departments and even the Minister for the Environment, which might have been a better choice if in fact a government department was shown to be essential, is a member of the Cabinet which made the decision on a new reactor at Lucas Heights. The agency should not be part of a Department.

6. Functions of the CEO Section 13 (2). "The CEO must take all reasonable steps to avoid any conflict of interest between the CEO's regulatory functions and the CEO's other functions." What is implied here? Does the Bill anticipate conflicts of interest?

7. The Radiation Health and Safety Advisory Council. Section 17. Is this the body on which we are assured that a community representative will take part? Will the Council be less than the Safety Review Committee which would be abolished under the new scheme? How will the Minister choose the members? The Council is there to "advise the CEO" so presumably it will not publish an annual report, directed to a Minister, as did the SRC. A report which was available to the public.
   
   How will the public get to know what is going on in the Council? You may recall that it was only because of the availability of a SRC report that we discovered that rain water had entered the "dry storage" tubes containing spent fuel and that it had not been discovered for about 15 years.

8. Prohibitions relating to construction of nuclear installations, possession of controlled materials etc. Sections 18 and 19. There are several references to "Maximum Penalty of 2000 penalty units" for breaches of conditions. This sounds like the reverse of Fly-Buy units. What on earth does it mean?

9. Licence Conditions . Section 23, (3), (a) (4) (a) Entry and inspections of a site "at reasonable times". Does this preclude spot checks without notice?

10. Review of licence decisions. Section (4) "The Minister is taken to have confirmed the licence decision if the Minister does not give a written notice of the Minister's decision within 60 days of the request." What if the Minister or his staff have overlooked the request? This can happen.
    
    This state of affairs is repeated under Enforcement. Section 30 (4)

11. Review of decisions to give directions. Section 30. Reading sections 29 and 30 the scenario could be that the CEO gives directions to a controlled person covering a situation involving the health, safety of people or danger to the environment. The controlled person, within 90 days, requests a review by the Minister and the Minister then has 60 days to make a decision. Could it actually take 5 months to go through the system in such circumstances?

12. Notional Payments by the Commonwealth. Section 43. My Collins dictionary describes "notional" as ideal; fanciful; fussy or, in the USA, whimsical. What does it mean when enshrined in Commonwealth legislation?
    
    The sections dealing with money (44) (45) are difficult to understand and should be examined by an accountant.

13. Staff assisting the CEO. Section 46. Surely the CEO should be able to hire and fire his own staff. The idea of them being supplied by the Department Secretary brings to mind several episodes of "Yes Minister".

14. Powers of inspection. Section 51 (2) (a). An inspector is not authorised to enter premises under sub-section (1) "unless the occupier of the premises has consented to the entry....." Surely this is a misprint! Add this to the licence conditions at section 23 which refer to entry and inspection of sites "at reasonable times" and it adds up to a very polite but useless set of powers. But it might rule out the kind of raid carried out by the NSW Minister for the Environment, Tim Moore, on ANSTO in 1992.

15. Powers available to inspectors. Sections 53 (1) (b) and (3) These refer to the use of powers necessary for avoiding an imminent risk of death, serious injury, serious damage to the environment. (emphasis added). Who decides or defines what is meant by "serious"? The CEO? The yet to be seen regulations? The inspector? Will the word be qualified by another one - "acceptable".

16. Offences relating to warrants. Section 68. Here is the only understandable severe penalty which is spelled out. Maximum 2 years imprisonment for making a false or misleading statement when applying for a warrant. Presumably this would be for the inspector involved. He gets prison but the "occupiers" who break their terms get penalty points!

17. Operation of State and Territory laws. Does this mean that such State and Territory laws are over-ruled by this legislation as did the ANSTO Amendment Act of 1992?

18. Where is there reference to uranium mining and particularly the wastes it produces? Will this be outside the scope of ARPANSA? If so, why?