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RADIATION PROTECTION REGULATION 2007 (NO 18 OF 2007)
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL TERRITORY
RADIATION
PROTECTION REGULATION 2007
EXPLANATORY
STATEMENT
Minister for Health
RADIATION PROTECTION REGULATION 2007
The Radiation Protection Act 2006 (the Act) was passed by the ACT
Legislative Assembly on 17 August 2006, and was notified on the
Legislation Register on 31 August 2006. The Act will repeal and
replace the Radiation Act 1983 upon commencement, which will occur
on 1 July 2007 by virtue of the operation of section 2(3) of the
Act.
The Act 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 Act 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.
To support the Act,
Regulation for radiation protection has been prepared that assigns meanings and
provides further detail on certain provisions within the Act. The majority of
sections within the Regulation have been constructed to provide further detail
or assign meaning by referencing the National Directory. Referencing the
National Directory in this regard is aimed at ensuring the ACT Radiation
Protection legislation is consistent with corresponding laws in other States and
the Northern Territory.
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 Regulation 2007. The Regulation is subordinate
law to the Radiation Protection Act 2006.
This section establishes that the Regulation commences on the day that the Act, Part 3 (Radiation Safety) commences. Pursuant to section 2(3) of the Act, the Act will commence on 1 July 2007 and by virtue of this section, so too will the Regulation.
This provision alerts the reader that the dictionary at the end of the
Regulation forms part of the Regulation. Generally a definition of a word or
phrase that appears in the dictionary applies throughout the Regulation.
However, this is not the case if the dictionary definition limits the meaning to
a specific section or part, or if a different meaning is specifically provided
for within a section. Sections 155 and 156(1) of the Legislation
Act 2001 provide additional instruction on the application of
dictionaries and definitions within legislation.
Section 4 informs the reader that notes appearing in the Regulation are
explanatory only, and do not form part of the Regulation. Section 127 of
the Legislation Act 2001 provides additional instruction on material
that does not form part of Acts or legislative instruments, such as
notes.
Pursuant to section 10(1) of the Act a radiation source is a prohibited
radiation source if it is prescribed by this Regulation to be a prohibited
radiation source.
This section directs that a radiation source included
in Schedule 1 in the Regulation is a prohibited radiation source for the
purposes of section 10(1) of the Act.
A facility is a radiation facility for the purposes of section 9(4) of
the Act if it is prescribed by this Regulation to be a radiation facility.
Under this provision a facility identified as a radiation facility in the
National Directory is a radiation facility for the purposes of the Act. The
types of facilities treated as radiation facilities by the ACT Radiation
Protection legislation should be consistent with that in other States and the
Northern Territory as a result of referencing the National Directory.
What constitutes a regulated radiation source is the subject of
section 10(2) of the Act. Through section 10(2)(a), a radiation
source that emits or is capable of emitting ionising radiation above a level
prescribed in this Regulation is a regulated radiation source. Section 7
of the Regulation 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.
Pursuant to
section 10(2)(b) of the Act, radiation sources that emit or are capable of
emitting non-ionising radiation are also regulated if they are prescribed in
this Regulation. However, at present no radiation sources for the purposes of
section 10(2)(b) have been prescribed. By implication, if a radiation
source is not prohibited under section 10(1) of the Act, or regulated under
section 10(2), the radiation source is legal and is unregulated.
Section 114 of the Act gives the Minister the power to exempt a person,
a radiation source or a form of dealing with a radiation source by disallowable
instrument. Subsection 5 of that provision directs that in making a
decision on whether to grant an exemption the Minister must take into account
criteria prescribed by this Regulation.
The National Directory provides
for a range of exemptions for radiation sources, which have been agreed to at
the national level. This section prescribes that for the purposes of
section 114 of the Act, the criteria that the Minister must take into
account in deciding to make an exemption of a radiation source are the criteria
for exemption of that radiation source within the National Directory.
Referencing the National Directory in this regard should ensure that a radiation
source that is exempt within the ACT should also be exempt in other Australian
jurisdictions.
The section provides instruction on the criteria for
exemption of radiation sources only, and no criteria are presently prescribed
for exempting persons or forms of dealing with radiation sources.
Whilst the Minister may by disallowable instrument exempt a person, a
radiation source or a form of dealing with a radiation source, so too can this
Regulation under section 123 of the Act. The ability of the Minister to
make exemptions under section 114 ensures that urgent exemptions can be
made in a timely fashion, as well as enabling temporary exemptions to be made
where appropriate. It also enables specific rather than generic exemptions to
be more readily made. However, if a permanent exemption is to be made,
particularly if that exemption is to apply to all of a class of persons or
radiation sources, it is best to form part of the Radiation Protection
legislation.
A radiation source that is a radiation apparatus exempt
under the National Directory is, by virtue of this section, an exempt radiation
source. A radiation apparatus that is not exempt under the National Directory
is not exempt under this section. As with other provisions, the aim of
referencing of the National Directory is to ensure national consistency, and
thereby ensuring a radiation apparatus exempt in a jurisdiction will be exempt
in another. Conversely, it should also mean that an apparatus not exempted in
the ACT will not be exempted elsewhere.
Preventing, minimising and responding to dangerous events are key objectives
of the Radiation Protection legislation. Accordingly, section 63 of the
Act makes it an offence for which significant penalties are attached for failing
to notify the Radiation Council of a dangerous event. In this section the
requirement to report a dangerous event, as well as the offences within the
section, depend upon what constitutes a dangerous event. Section 63(3) of
the Act directs that an event prescribed in this Regulation is a dangerous
event.
For both national consistency and for clarity of use a
radiation incident under the National Directory is, by virtue of this
provision, a dangerous event for the purposes of the Act. Captured within the
meaning of a Radiation incident under the National Directory are a range of
events and circumstances, such as damage to a sealed source unit apparatus,
unauthorised discharge of a radioactive material into the environment, and
radiation doses that exceed annual dose limits.
Under the National
Directory incidents of this nature must be reported to the ARPANSA. Through
this section and section 63 of the Act, such incidents must also be
reported to the ACT Radiation Council. This ensures the ACT regulatory
authority for Radiation is informed of the dangerous event, and also enables the
ACT Radiation Council to confirm that ARPANSA has also been notified.
The Radiation Council is established under section 65 of the Act, and
much of Part 5 of the Act is devoted to the Council’s constitution,
powers and functions. Within this Part is section 86 which requires the
Council to keep a radiation register of such things as licences issued,
radiation sources registered and disciplinary action taken by the Council.
Pursuant to section 86(e) of the Act, anything else prescribed by this
Regulation must also be kept on the radiation register.
Under
section 11(a) of this Regulation a decision by the Radiation Council to
refuse to issue a licence must also be kept on the register. Through this
section and the operation of section 86 of the Act, decisions to issue a
licence or not to issue a licence are both to form part of the register. The
operation of section 11(d) of this Regulation has a similar effect for
registration of radiation sources. The Act already requires decisions to
register a radiation source to be kept, whereas section 11(d) of this
Regulation requires refusals to register a radiation source to also be
kept.
Through section 11(b) and (c) respectively, amendments to
licences are also to be kept, whether the amendment is on the Council’s
own initiative or by application by a licence holder. Similarly, paragraphs (e)
and (f) of section 11 of the Act require amendments to the registration of
a regulated radiation source to be kept, be it on the Council’s own
initiative or by application.
The definition of dose limit contained in the Dictionary of the Act states
that a dose limit means a dose limit prescribed by Regulation. This
section directs that a dose limit, for the purposes of the Act, is a dose limit
under the National Directory.
Pursuant to section 10(1) of the Act a radiation source is a prohibited
radiation source if it is prescribed by this Regulation to be a prohibited
radiation source.
Section 5 of this Regulation directs that a
radiation source included in Schedule 1 is a prohibited radiation source
for the purposes of section 10(1) of the Act. Listed in this Schedule are
such radiation sources as shoe-fitting x-ray units and direct fluoroscopy x-ray
equipment.
The dictionary contains definitions of terms used in the Regulation.