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RADIATION PROTECTION AMENDMENT REGULATION 2007 (NO 1) (NO 21 OF 2007)
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL TERRITORY
RADIATION
PROTECTION AMENDMENT REGULATION 2007 (No
1)
SL2007-21
EXPLANATORY
STATEMENT
Minister for Health
RADIATION PROTECTION AMENDMENT REGULATION 2007 (No 1)
The Radiation Protection Act 2006 commenced on
1 July 2007. Supporting the Radiation Protection Act 2006
is the Radiation Protection Regulation 2007 (the Regulation) which
commenced on 7 July 2007. The Radiation Protection legislation
establishes a system to regulate the use of ionising radiation in the Territory,
and makes provision for the future regulation of non-ionising radiation. The
approach taken in the Radiation Protection legislation is based on the National
Directory for Radiation Protection (the National Directory) published by the
Australian Radiation Protection and Nuclear Safety Agency (ARPANSA).
The Directory was developed by the National Radiation Health Committee
(the Committee), which was established under the auspices of ARPANSA with
representatives from the States and Territories. The establishment of the
Committee was in response to the recommendations of a national competition
policy review of the radiation protection legislation across Australian
jurisdictions. The Directory is a statement of a nationally agreed approach to
regulating the use of radiation in Australia.
Upon commencement the
Radiation Protection Act 2006 repealed and replaced the Radiation
Act 1983, its subordinate laws and supporting instruments. Licences
and registrations in place under the Radiation Act 1983 were
specifically preserved by the transitional provisions in Part 10 of the
Radiation Protection Act 2006. However, appointments to the
Radiation Council, which is the decision-maker for licences and registrations,
were not preserved and no new appointments were in place when the Radiation
Protection Act 2006 commenced.
The absence of a Radiation
Council could have thwarted the functional operation of the Radiation
Protection Act 2006, and generated significant uncertainty for those
regulated by the Act. This Regulation has been prepared to temporarily
reinstate the Radiation Council as it was constituted immediately prior to the
commencement of the Radiation Protection Act 2006, thereby avoiding
the serious problems that could have arisen.
A detailed explanation of each clause of the Regulation follows.
The first section of the Regulation specifies that the name of the regulation
is the Radiation Protection Amendment Regulation 2007 (No 1). The
Regulation amends the Radiation Protection Regulation 2007, which is
subordinate law to the Radiation Protection Act 2006.
Under this section, this Regulation will commence on the day after the date upon which this Regulation is notified on the ACT Legislation Register.
This provision alerts the reader that this Regulation amends the Radiation
Protection Regulation 2007. Accordingly, upon commencement this Regulation
will alter the Radiation Protection Regulation 2007 in accordance with the
provisions that this Regulation contains, and will then be immediately repealed.
Consequentially, on the date that this Regulation commences a new republication
of the Radiation Protection Regulation 2007 will operate that contains the
alterations made by this Regulation.
Section 4 of this Regulation will insert into the Radiation Protection
Regulation 2007 a new Part 5 that contains one provision;
section 20.
Under section 131(2) of the Radiation Protection
Act 2006, a Regulation may modify Part 10 of the Radiation
Protection Act 2006 to make provision in relation to anything that, in
the Executive’s opinion, is not, or is not adequately or appropriately,
dealt with in the transitional provisions of Part 10 of the Act.
The
Radiation Protection Act 2006 as notified contained no transitional
provisions that preserved Radiation Council appointments made under the
Radiation Act 1983. Furthermore, when the Radiation Protection
Act 2006 commenced no new Radiation Council appointments had been made.
Consequentially, upon commencement the Radiation Protection Act 2006
was without a Radiation Council to exercise a number of key functions, including
the issuing of licences and registrations.
In making this Regulation the
Executive determined that appointments to the Radiation Council under the
Radiation Act 1983 should have continued under the Radiation
Protection Act 2006. As such, the Executive is of the opinion that the
Radiation Council was not appropriately or adequately dealt with in the
transitional provisions of Part 10 of the Radiation Protection
Act 2006.
The effect of section 20 is that Chapter 10
of the Act, containing transitional provisions, is modified by the insertion
into the Radiation Protection Act 2006 of a section 130A.
Section 130A provides that the members of the Radiation Council,
established under the repealed Radiation Act 1983 immediately before
the Radiation Protection Act 2006 commenced, are taken to be
appointed as members of the Council under the Radiation Protection
Act 2006.
Accordingly, former radiation council members are
taken to be appointed under section 68 of the Radiation Protection
Act 2006 until 1 January 2008. Furthermore, the chairperson
and deputy chairperson of the former radiation council are also taken to be
appointed as chair and deputy chair under section 70 of the Radiation
Protection Act 2006. Again, the appointments are until
1 January 2008.
Just as the appointments under
section 130A operate until 1 January 2008 so too does
section 130A itself. This reflects the transitional nature of the section.
The process of making new appointments to the Radiation Council involves seeking
nominations, Cabinet agreement of the proposed appointments, consultation with
the Standing Committee on Health and Disability, and finally notification of
appointment instruments. The continuation of the former radiation council until
1 January 2008 will provide sufficient time for fresh appointments to
be made following this process.
The appointments taken to be made under
Section 130A are to apply as if the appointments commenced on the
commencement day of the Radiation Protection Act 2006. In this
regard the transitional provisions being inserted by this Regulation have
retrospective effect. Pursuant to section 76 of the Legislation
Act 2001 a provision can commence retrospectively if it is
non-prejudicial. A provision is prejudicial if it operates to the disadvantage
of a person by adversely affecting their rights or by imposing liabilities on a
person. The transitional provisions inserted have no adverse affect on any
person’s rights. Furthermore, the transitional provisions do not impose
any liabilities. The Radiation Protection Act 2006 requires
licences and registration of regulated radiation sources. The Radiation Council
is the decision-maker for licences and registrations, but this does not impose
any liabilities on persons. Rather, the transitional provisions inserted by
this Regulation will enable new licences and registrations to be issued, and for
existing licences and registrations to be renewed.