ACT Numbered Regulations - Explanatory Statements ACT Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
RADIATION PROTECTION (SOLARIUMS PROHIBITION) AMENDMENT REGULATION 2013 (NO 1) (NO 31 OF 2013)
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL TERRITORY
RADIATION
PROTECTION (SOLARIUMS PROHIBITION)
AMENDMENT
REGULATION 2013 (No 1)
SL2013-31
EXPLANATORY
STATEMENT
Minister for Health
RADIATION PROTECTION (SOLARIUMS PROHIBITION)
AMENDMENT REGULATION 2013 (No 1)
The Radiation Protection Act 2006 and supporting Radiation
Protection Regulation 2007 regulate the use of ionising radiation in
the Territory. The Radiation Protection legislation was also constructed to
regulate specified sources 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.
Australia has among the highest skin cancer rates in the
world, and its associated health and financial costs are substantial. This led
to concerted efforts to better educate the Australian public about the problem
of skin cancer. This has resulted in a significant increase in the level of
awareness in recent decades. For this reason, important facts and information
about skin cancer are so widely known and accepted in Australia that the need to
act to reduce the incidence of skin cancers is indisputable.
Exposure to
ultraviolet radiation is known to be the single major risk factor in relation to
skin cancer, and the vast majority of this exposure is still derived from direct
exposure to sunlight. Furthermore, it is also well known that exposure to
ultraviolet light during adolescence is strongly associated with later
development of melanoma.
There are no health benefits derived from
cosmetic solarium use, but there is ever growing evidence about risks associated
with tanning units. It is now also well accepted that a significant level of
increased risk of melanoma arises from the use of tanning units. As a
consequence, it can be expected that persons using tanning units, particularly
adolescents, are placing themselves at a very high risk of developing melanoma.
Responding to the dangers posed by cosmetic solarium use, most
Australian governments have regulated solariums, and are now progressing towards
a complete prohibition on commercial solariums.
Queensland has chosen to
ban the possession of certain solaria from 1 January 2013, but
allowing those registered prior to that date to remain registered. The approach
taken by Queensland means commercial solariums will be phased out slowly. In
contrast, the New South Wales, Victorian and South Australian governments have
all committed to banning all commercial solariums, but delaying the commencement
of the ban until 31 December 2014.
The ACT Government is
convinced of both the need to ban commercial solariums, and of the desirability
to be consistent with other Australian jurisdictions, particularly New South
Wales. This is to be achieved through the ACT’s Radiation Protection
legislation, as ultraviolet light is a form of non-ionising radiation, and as
such tanning units in solariums are a source of non-ionising
radiation.
A detailed explanation of each clause of the Regulation follows.
This specifies that the name of the regulation is the Radiation Protection
(Solariums Prohibition) Amendment Regulation 2013 (No 1). The Regulation amends
the Radiation Protection Regulation 2007, which is subordinate law to the
Radiation Protection Act 2006.
This provision of the Regulation sets out the commencement of the Regulation,
which has been scheduled for 31 December 2014.
There are
currently four solarium businesses in the ACT operating 14 registered
tanning units. The commencement date of 31 December 2014 has been
selected in order to give these existing solarium businesses adequate time to
diversify their operations and to dispose of their current tanning units
appropriately. The commencement date selected will also mean that the
prohibition of solariums in the ACT will coincide with the New South Wales
prohibition on solariums.
Due to the operation of section 75(1) of
the Legislation Act 2001 the naming and commencement provisions of
this Regulation, clauses 1 and 2, commence automatically on the day the
Regulation is notified. A note to that effect is included in the provision.
This provision alerts the reader that this Regulation amends the Radiation
Protection Regulation 2007.
Upon commencement this Regulation will
alter the Radiation Protection Regulation 2007 in accordance with the
provisions that this Regulation contains. This Regulation will then be
immediately repealed. Consequentially, from the date that this Regulation
commences a new republication of the Radiation Protection Regulation 2007
will be available, which will feature the alterations made by this
Regulation.
The purpose of the current section 4A is to advise the reader that other
legislation applies to offences against the Radiation Protection
Regulation 2007. In this regard the Criminal Code 2002 is
specifically cited, as is section 133 of the Legislation
Act 2001 which deals with the meaning of offence penalties that are
expressed in penalty units.
At present the only offences contained in the
Radiation Protection Regulation 2007 are within Part 4, which
clause 7 of this Regulation will remove. As the Radiation Protection
Regulation 2007 will no longer contain any offences, section 4A would
be an unnecessary inclusion. Accordingly, this provision deletes
section 4A from the Radiation Protection Regulation 2007.
This provision makes a minor technical amendment to the Radiation Protection
Regulation 2007.
Pursuant to section 10(1) of the Radiation
Protection Act 2006 a radiation source that is prescribed by the
Radiation Protection Regulation 2007, specifically section 5,
constitutes a prohibited radiation source.
At present the heading to
section 5 of the Radiation Protection Regulation 2007 refers to
prohibited radiation sources. This provision amends the section heading to
revert to the singular; so the heading will become “Prohibited radiation
source – Act, s 10 (1)”.
What constitutes a regulated radiation source is the subject of
section 10(2) of the Radiation Protection Act 2006. Through
section 10(2)(a), a radiation source that emits or is capable of emitting
ionising radiation above a level prescribed in the Radiation Protection
Regulation 2007 is a regulated radiation source. Furthermore, under
section 10(2)(b) of the Radiation Protection Act 2006,
radiation sources that emit or are capable of emitting non-ionising radiation
are also regulated, if they are prescribed in the Radiation Protection
Regulation 2007.
Section 7 is the provision of the Radiation
Protection Regulation 2007 that gives effect to section 10 of the
Radiation Protection Act 2006.
The first subsection
instructs that a radiation source is a regulated radiation source if it emits,
or is capable of emitting, ionising radiation above the exemption levels
contained in the National Directory. The National Directory contains an
extensive list of radionuclide, with corresponding exempt activity
concentrations and exempt activity levels.
The second subsection
currently provides that for the purposes of the Radiation Protection
legislation, a tanning unit used for cosmetic purposes in a solarium is declared
to be a radiation source that emits or is capable of emitting non-ionising
radiation. It is on this basis that solariums and their tanning units have been
regulated in the ACT since November 2010.
The purpose of this
Regulation is to shift the status of tanning units used for cosmetic purposes in
solariums from being regulated radiation sources to prohibited radiation
sources. This will be achieved through three key steps:
1. removal of
the provision declaring tanning units used for cosmetic purposes in solariums to
be regulated; and
2. removal of the provisions that set the detail for how
tanning units used for cosmetic purposes in solariums were to be regulated; and
3. insertion of a provision declaring tanning units used for cosmetic
purposes in solariums to be prohibited.
The first step involves removal
of the second subsection in section 7 from the Radiation Protection
Regulation 2007, which will mean tanning units used for cosmetic purposes
in solariums will cease to be regulated. Clause 7 of this Regulation will
remove Part 4, which contained the detail of the regulatory system for
tanning units used for cosmetic purposes in solariums. The final step in the
process is addressed by clause 8 of this Regulation and involves adding
tanning units used for cosmetic purposes in solariums to Schedule 1 of the
Radiation Protection Regulation 2007.
In November 2010 Part 4 of the Radiation Protection
Regulation 2007 was inserted to regulate in the ACT the use and operation
of tanning units used for cosmetic purposes.
The purpose of this
Regulation is progression to a complete prohibition on tanning units being used
for cosmetic purposes in solariums. This will, in effect, ban commercial
solariums in the ACT. As tanning units being used for cosmetic purposes in
solariums will no longer be regulated, this clause removes Part 4 entirely
from the Radiation Protection Regulation 2007.
As detailed earlier, section 10(1) of the Radiation Protection
Act 2006 establishes that a radiation source that is prescribed by the
Radiation Protection Regulation 2007 constitutes a prohibited radiation
source.
The relevant provision of the Radiation Protection
Regulation 2007 is section 5, which provides that prohibited radiation
sources are those listed in Schedule 1 of the Radiation Protection
Regulation 2007. The schedule currently has three items. This provision
of the Regulation adds a fourth item, which is ‘a tanning unit used for
cosmetic purposes in a solarium’.
Accordingly, tanning units used
for cosmetic purposes in solariums will become prohibited radiation sources when
this Regulation commences on 31 December 2014. This means that after
the solarium prohibition commences any person dealing with these radiation
sources, which includes merely being in possession of the radiation source, will
be committing an offence. The maximum penalty for this offence, contained in
section 62 of the Radiation Protection Act 2006, is
2000 penalty units, 7 years imprisonment, or both. In the ACT at the
time of writing a penalty unit equates to $110 for an individual, and $550 for a
company.
As stated earlier, the purpose of this Regulation is introduction of a
complete prohibition on tanning units being used for cosmetic purposes in
solariums. Accordingly provisions such as Part 4 which were about the
regulation of solariums and their tanning units are to be removed from the
Radiation Protection Regulation 2007.
A large number of definitions
currently within the dictionary for the Radiation Protection
Regulation 2007 related to terminology that was located in Part 4 of
the Radiation Protection Regulation 2007. As Part 4 is being removed
from the Radiation Protection Regulation 2007, so too must the associated
definitions.
This provision inserts into the Radiation Protection
Regulation 2007 a new dictionary, which contains only notes and definitions
relevant to the provisions that remain. This includes meanings ascribed to
exempt radiation source, prohibited radiation source,
solarium and tanning unit.
Although now prohibited rather
than regulated, what amounts to a tanning unit and a solarium for the Radiation
Protection Regulation 2007 is unchanged. A tanning unit is an electrically
powered appliance or installation that produces tanning of the human skin by
utilising ultraviolet radiation. A solarium is a commercial establishment
containing one or more tanning units that are used for cosmetic
purposes.
It is therefore important to recognise that because of the way
these definitions have been framed, tanning units that are used for medical or
private purposes (non-commercial premises) are not dealt with by the Radiation
Protection Regulation 2007. As such, tanning units used for medical
purposes or private, non-commercial purposes are neither prohibited nor
regulated under the ACT’s radiation protection legislation.