Protection from Harmful Radiation Act 1990 (NSW)

Protection from Harmful Radiation Act 1990 No 13 An Act to make provision for the regulation and control of the sale, use, keeping and disposal of radioactive substances and radiation apparatus; to repeal the Radioactive Substances Act 1957; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Protection from Harmful Radiation Act 1990. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The objects of this Act are as follows— (a) to secure the protection of persons and the environment from exposure to ionising and harmful non-ionising radiation to the maximum extent that is reasonably practicable, taking into account social and economic factors and recognising the need for the use of radiation for beneficial purposes, (b) to protect security enhanced sources from misuse that may result in harm to people or the environment, (c) to promote the radiation protection principles, (d) to promote the ecologically sustainable development principles. (2) The radiation protection principles are as follows— (a) justification of a practice by assessing that the benefits of the practice involving exposure to ionising radiation outweigh any detriment, (b) optimisation of protection by ensuring that each of the following is kept as low as reasonably achievable taking into account economic and social factors— (i) the magnitude of individual doses of ionising radiation, (ii) the number of people exposed to ionising radiation, (iii) the likelihood of exposure to ionising radiation, (c) dose and risk limitation by setting dose limits or imposing other measures so that the health risks to any person exposed to ionising radiation is kept below levels that are generally considered to be unacceptable. (3) A person is to take the radiation protection principles into consideration when exercising functions under this Act or under a licence. (4) A person must take the ecologically sustainable development principles into consideration when exercising functions under this Act or a licence. (5) In this section— ecologically sustainable development principles means the principles and programs described in the Protection of the Environment Administration Act 1991, section 6(2). 4 Definitions (1) In this Act— accreditation means accreditation granted by the Authority under Part 2. approved means approved for the time being by the Authority. authorised officer means a person appointed by the Authority under Part 7.2 of the Protection of the Environment Operations Act 1997 as an authorised officer for the purposes of this Act. Authority means the Environment Protection Authority. CEO of the Authority means the CEO within the meaning of the Protection of the Environment Administration Act 1991. Council means the Radiation Advisory Council constituted by this Act. deal with a source, includes, use, sell, give away, dispose of, store, possess, transport, install, maintain or repair a source. environment means components of the earth, including— (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c). exercise a function includes perform a duty. function includes a power, authority or duty. ionising radiation means electromagnetic or particulate radiation capable of producing ions directly or indirectly in passage through matter, but does not include electromagnetic radiation of a wavelength greater than 100 nanometres. licence means a radiation management licence or a radiation user licence. monetary benefits means monetary, financial or economic benefits. National Directory means the national guidance documents titled "National Directory for Radiation Protection" approved by the Health Ministers for the States, Territories and Commonwealth from time to time. non-ionising radiation means— (a) electromagnetic radiation of a wavelength greater than 100 nanometres, or (b) non-varying electric or magnetic fields, or (c) sonic, infrasonic or ultrasonic waves that are prescribed as non-ionising radiation for the purposes of this definition. owner, in relation to any apparatus or thing that has been leased or let out on hire, means the lessee or the person who takes it on hire. person responsible—see section 6. premises includes— (a) a structure, building, aircraft, vehicle or vessel, and (b) land or a place (whether enclosed or built on or not), and (c) any part of premises. radiation apparatus means a manufactured or assembled article, or any component, part or accessory of such an article, which when in operation contains or acts as part of an electrical circuit, or which acts by electromagnetic amplification employing a resonant space, and emits (or in the absence of effective shielding or other control would emit) ionising or non-ionising radiation. radiation management licence means a radiation management licence granted by the Authority under Part 2. radiation security assessor means a person who is accredited under section 8 (2). radiation user licence means a radiation user licence granted by the Authority under Part 2. radioactive ore means an ore or mineral containing more than the concentration of uranium or thorium prescribed for the purposes of this definition. radioactive substance means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour (including any article or compound whether it has or has not been subjected to any artificial treatment or process) which emits ionising radiation spontaneously with a specific activity greater than the prescribed amount and which consists of or contains more than the prescribed activity of any radioactive element whether natural or artificial. regulated material means any of the following— (a) radioactive substances, (b) ionising radiation apparatus, (c) non-ionising radiation apparatus of a kind prescribed by the regulations, (d) sealed source devices. related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth. related entity has the same meaning as in the Corporations Act 2001 of the Commonwealth. relevant legislation means— (a) this Act and the regulations, and (b) legislation of any other Australian jurisdiction relating to radiation control or protection, and (c) legislation (including legislation that has been repealed or legislation of another jurisdiction) prescribed by the regulations. restorative justice activity—see section 23B (2). sealed radioactive source means a radioactive substance sealed in a capsule, or closely bound in a solid form, so as— (a) to prevent escape or dispersion of the radioactive substance, and (b) to allow the emission of ionising radiation. sealed source device means equipment or a gauge, instrument or device that contains a sealed radioactive source and permits the controlled emission of radiation, but does not include a container used solely for the storage or transport of a sealed radioactive source. security enhanced source means a sealed radioactive source prescribed by the regulations as a security enhanced source. security plan means a plan referred to in section 14. sell means sell by wholesale or retail, and includes barter, supply for profit, lease, let out on hire, offer or expose for sale, receive for sale, have in possession for sale, send, forward or deliver for sale and cause, suffer or allow to be sold, offered or exposed for sale. the Act means the Protection from Harmful Radiation Act 1990. use includes— (a) operate, and (b) use in the course of manufacture, and (c) have in possession for use, and (d) handle or manipulate (whether or not by indirect or remote means). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 Fit and proper persons (1) In determining whether a person is a fit and proper person to hold a licence or accreditation, the Authority may take into consideration any or all of the following— (a) whether the person has— (i) contravened relevant legislation, or (ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation, (b) if the person is a corporation—whether a director or former director of the corporation or a related body corporate has— (i) contravened relevant legislation, or (ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation, (c) if the person is a corporation—whether a director or former director of the corporation or a related body corporate is or has been the director of another corporation that has— (i) contravened relevant legislation, or (ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation, (d) the person's record of compliance with relevant legislation, (e) if the person is a corporation—the record of compliance with relevant legislation of each director or former director of the corporation or a related body corporate, (f) whether, in the Authority's opinion, any dealings of the person with regulated material under a licence will or will not be in the hands of a technically competent person, (g) whether, in the Authority's opinion, the person is of good repute, having regard to character, honesty and integrity, (h) if the person is a corporation—whether, in the Authority's opinion, each director and former director of the corporation or a related body corporate is of good repute, having regard to character, honesty and integrity, (i) whether, in the previous 10 years, the person has, in this jurisdiction or another Australian jurisdiction, been— (i) convicted of an offence involving fraud, dishonesty or other behaviour the Authority considers would make the person unfit to hold a licence, or (ii) subject to a finding of professional misconduct or unsatisfactory professional conduct by a body that regulates, or investigates complaints about, health practitioners, (j) if the person is a corporation—whether, in the previous 10 years, any director or former director of the corporation or a related body corporate has, in this jurisdiction or another Australian jurisdiction, been— (i) convicted of an offence involving fraud, dishonesty or other behaviour the Authority considers would make the person unfit to hold a licence, or (ii) subject to a finding of professional misconduct or unsatisfactory professional conduct by a body that regulates, or investigates complaints about, health practitioners, (k) whether, during the previous 3 years, the person was personally insolvent, (l) if the person is a corporation—whether, during the previous 3 years, a director or former director of the corporation was personally insolvent, (m) if the person is a corporation—whether the person or a related body corporate applied to take the benefit of a law for the relief of insolvent debtors or compounded with the person's or body corporate's creditors, (n) for an individual—whether the person is or was a director of a corporation that— (i) is the subject of a winding up order, or (ii) has had a controller or administrator appointed during the previous 3 years, (o) for a corporation—whether the corporation or a related body corporate— (i) is the subject of a winding up order, or (ii) has had a controller or administrator appointed during the previous 3 years, (p) whether the person has demonstrated to the Authority the financial capacity to comply with the person's obligations under the licence or accreditation or the proposed licence or accreditation, (q) whether the person is in partnership with a person whom the Authority does not consider to be a fit and proper person in connection with— (i) dealings with regulated material authorised, or sought to be authorised, by a licence, or (ii) activities authorised, or sought to be authorised, by an accreditation, (r) if the person is a corporation—whether a related body corporate is in partnership with a person whom the Authority does not consider to be a fit and proper person under this section, in connection with dealings with regulated material authorised, or sought to be authorised, by a licence, (s) another ground the Authority considers appropriate. (2) In this section— director of a body corporate includes a person involved in the management of the affairs of the body corporate. 5A Certain persons and public bodies may exercise certain functions of Authority (1) The object of this section is to provide for certain persons and public bodies other than the Authority to exercise certain of the Authority's functions under this Act in certain circumstances instead of the Authority. (2) The Secretary of Regional NSW may exercise such functions of the Authority and of the CEO of the Authority as may be prescribed by the regulations in respect of radioactive ore subject to such conditions or limitations as are specified in the regulations. (2A) The Secretary of that Department may delegate the exercise of a function in respect of radioactive ore that has been prescribed by the regulations made under subsection (2) to any of the following persons— (a) a person employed in Regional NSW, (b) a member of staff of an agency of another State or a Territory that administers radiation control legislation, (c) a person of a class prescribed by the regulations. (2B) A person to whom the exercise of a function is delegated under subsection (2) must exercise the function in accordance with any conditions or limitations specified in the regulations made under that subsection. Note— The instrument of delegation may also limit the delegation. See section 49 of the Interpretation Act 1987. (3) Neither the Authority nor the CEO of the Authority can exercise a function in respect of radioactive ore if that function is prescribed under subsection (2). (4) The regulations may prescribe the circumstances (including conditions and limitations) in which a public body may exercise functions of the Authority under this Act. (5) The Authority cannot exercise a function in circumstances if the regulations have prescribed another public body to exercise the function in those circumstances. (6) The regulations may not prescribe circumstances in which a public body exercises any such function in respect of activities carried on by that public body. (7) (Repealed) 5B Actions by incorrect public body (1) This section applies if the Authority or another public body that is authorised to exercise the functions of the Authority or the CEO of the Authority under section 5A exercises a function in relation to a matter for which it is not the appropriate public body. (2) The Authority or public body must, as soon as practicable after becoming aware of the exercise of the function, give written notice to the appropriate public body about— (a) the exercise of the function, and (b) any function for which the Authority or public body is not the appropriate public body that it proposes— (i) to continue to exercise in relation to the matter, or (ii) to cease to exercise in relation to the matter. (3) The Authority or public body may, if the Authority or public body gives notice under subsection (2), continue to exercise the function until— (a) directed not to exercise the function by the appropriate public body, or (b) either of the following applies— (i) the Authority or public body is authorised to exercise the function, (ii) for the Authority—the authorisation given to the public body to exercise the function is revoked. (4) If the appropriate public body becomes aware the Authority or other public body is exercising, or has exercised, a function of the appropriate public body in relation to a matter, the appropriate public body may, by written notice to the Authority or public body, direct the Authority or another public body not to exercise functions under this Act in relation to the matter. (5) A direction given by the appropriate public body does not affect proceedings already commenced by the Authority or other public body in relation to the matter and, for that purpose, this section applies as if the direction had not been given. (6) For this Act and the regulations and any proceedings, the Authority or a public body that exercises a function as referred to in subsection (1), or that continues to exercise a function under subsection (3), is taken to be the appropriate public body in relation to the matter. (7) In this section and in section 5C— (a) a reference to the Authority or a public body extends to an authorised officer of the Authority or a person authorised by the public body, and (b) a reference to the exercise of functions by the Authority or a public body extends to the exercise of functions by the authorised officer of the Authority or the person authorised by the public body. (8) In this section— appropriate public body, in relation to a function of the Authority under this Act, means— (a) if a public body has been authorised to exercise the function under section 5A—the public body, or (b) otherwise—the Authority. 5C Appropriate regulatory authority may continue to exercise functions (1) This section applies if the Authority or a public body is required to cease to exercise functions, or ceases to exercise functions, under section 5B(3) or (4). (2) The appropriate public body may continue to exercise functions commenced by the Authority or other public body, as if the functions had been exercised by the appropriate public body. (3) For the Act, this regulation and any proceedings, any function previously exercised by the Authority or other public body relating to the matter is taken to have been exercised by the appropriate public body. (4) Without limiting subsection (3), a notice or direction given by the Authority or other public body may be enforced, or varied or revoked, as if it had been given by the appropriate regulatory authority. (5) A notice issued by the Authority or other public body is taken to be varied, to the extent of any inconsistency, if a subsequent inconsistent notice is issued by or on behalf of the appropriate public body. (6) Nothing in this section affects the right of the other public body or the Authority to recover a fee, charge or cost under this Act or the regulations in relation to a notice given while exercising functions as referred to in section 5B(1) or (3). Part 2 Licences and accreditations 6 Radiation management licences (1) For the purposes of this Act each of the following persons is a person responsible for regulated material— (a) the owner of the regulated material, (b) any person who is storing, selling, consigning for transport, disposing of or giving away the regulated material, (c) any person who has possession of the regulated material, other than— (i) a person who is the holder of a radiation user licence in respect of the regulated material and who has possession of the regulated material only for the purposes of using the regulated material, or (ii) a person who has possession of the regulated material only for the purposes of transporting the regulated material. (2) A person responsible for regulated material must hold a radiation management licence in respect of the regulated material and must comply with any conditions to which the licence is subject. Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case. (3) The Minister may, by notice in writing given to a person, exempt the person from the requirement to hold a radiation management licence. (4) The exemption may be granted unconditionally or subject to conditions and remains in force for the time specified in the notice or until cancelled by the Minister by giving further notice in writing, whichever occurs first. (5) The Minister may seek, and take into consideration, the advice of the Council before making a decision in respect of the granting of an exemption under this section. (6) Each person responsible for regulated material must ensure that the regulated material is not sold, leased or given to, or stored, possessed, consigned for transport, disposed of or used by, any other person unless that other person is the holder of an appropriate licence under this Part in respect of the regulated material. Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case. (7) In this section— consign has the same meaning as in the Dangerous Goods (Road and Rail Transport) Act 2008. 7 Radiation user licence A natural person who uses regulated material must hold a radiation user licence and must comply with any conditions to which the licence is subject. Maximum penalty—250 penalty units or imprisonment for 2 years, or both. 8 Accreditation of radiation experts and security assessors (1) A person must not carry out any of the activities prescribed by the regulations as the activities of a consulting radiation expert unless the person holds accreditation as a consulting radiation expert and carries out those activities in compliance with any conditions to which that accreditation is subject. (2) A person must not carry out any of the activities prescribed by the regulations as the activities of a radiation security assessor unless the person holds accreditation as a radiation security assessor and carries out those activities in compliance with any conditions to which that accreditation is subject. Maximum penalty—100 penalty units. 9 Applications with respect to licences and accreditations (1) A person may apply to the Authority for a licence or accreditation or for a renewal or variation of a licence or accreditation held by the person. (2) The application must be in the approved form and be accompanied by the fee prescribed in respect of the licence or accreditation. (3) The application must contain any information that the Authority may require. (4) The Authority may require the applicant to provide any further information that it considers necessary to determine the application. (5) The Authority may, in granting an application in respect of a licence or accreditation, impose such conditions on the licence or accreditation as the Authority sees fit. (6) The Authority must (or, in the case of a renewal application, may) refuse to grant an application unless it is satisfied that— (a) the applicant is a fit and proper person to hold the licence or accreditation, and (b) the applicant meets any requirements that may be prescribed by the regulations in respect of the licence or accreditation, and (c) the applicant meets any requirements in respect of the licence or accreditation that may be set out in a document forming part of the National Directory and adopted by the Authority under section 37, and (d) in the case of a radiation user licence, the applicant is a natural person who has appropriate knowledge of the principles and practices of radiation safety and protection applicable to the activities proposed to be carried on by the applicant pursuant to the licence, and (e) in the case of an accreditation, the applicant is a natural person who has the qualifications or expertise necessary to properly carry out the activities to be authorised by the accreditation. (7) The Authority may, at its discretion, refuse an application on any other ground. (8) The Authority may seek, and take into consideration, the advice of the Council before making a decision in respect of an application under this section. 10 Variation of licences and accreditations (1) The Authority may vary a licence or accreditation on its own motion or on the application of the holder of the licence or accreditation. (2) A variation takes effect when the holder of the licence or accreditation is given notice in writing of the variation, or if a later time is specified in the notice, at that later time. (3) A licence may be varied so that it relates to regulated material to which it did not relate before the variation. (4) An accreditation may be varied so as to authorise the carrying on of activities which were not authorised before the variation. (5) A variation may involve the imposition of a condition on the licence or accreditation or the revocation of any such condition. 11 Term of licences and accreditations A licence or accreditation remains in force (unless it is cancelled or surrendered sooner)— (a) for the term specified by the Authority in the licence or accreditation, or (b) if an application to renew the licence or accreditation is made in accordance with this Part and received by the Authority before, or within 60 days after, the end of that specified term—until the application is determined. 12 Surrender of licences and accreditation (1) A licence or accreditation may be surrendered only with the written approval of the Authority. (2) The application for approval must be in the approved form and must contain any information that the Authority may require. (3) The Authority may require the applicant to provide any further information that it considers necessary to determine the application. (4) The Authority may refuse an application for surrender of a licence if it is of the opinion that— (a) there will be an ongoing impact arising from any regulated material to which the licence relates, and (b) it is appropriate to manage that impact through conditions of the licence. (5) A licence or accreditation surrendered under this section ceases to be of any force or effect. 13 Cancellation and suspension of licences and accreditations (1) The Authority may, at its discretion, suspend or cancel a licence or accreditation on any ground including if it is satisfied of any one or more of the following— (a) that the grant of the licence or accreditation was made in error or was obtained improperly, (b) that the holder of the licence or accreditation is not a fit and proper person to hold the licence or accreditation, (c) that the holder of the licence or accreditation has contravened a condition of it, (d) that the holder of the licence or accreditation has been convicted of an offence against relevant legislation, (e) that the holder has ceased to hold a qualification which was the basis on which the Authority granted the licence or accreditation, (f) that, in the case of an accreditation, the holder has ceased carrying out the activities to which the accreditation relates. (2) A decision of the Authority to suspend or cancel a licence or accreditation has no effect— (a) until the expiration of the period within which a person may appeal against the decision, or (b) if a person appeals against the decision within that period, unless and until the decision is confirmed by the Land and Environment Court or the appeal is withdrawn. (3) A licence or accreditation— (a) cancelled under this section ceases to be of any force or effect, or (b) suspended under this section is of no force or effect for the period of the suspension. (4) If a licence or accreditation has been suspended, it can be renewed but remains subject to suspension until the expiration of the period of suspension. (5) The holder of a licence or accreditation which is suspended or cancelled must surrender it to the Authority. Maximum penalty—10 penalty units. 13A Conditions of suspension, cancellation or surrender (1) A licence or accreditation may be suspended or cancelled, or the surrender of a licence or accreditation may be approved, unconditionally or subject to such conditions as the Authority imposes. (2) Those conditions may include (but are not limited to) any conditions to which the licence or accreditation was subject immediately before it was suspended, cancelled or surrendered. (3) The Authority may, by giving notice in writing to the former holder of a cancelled or surrendered licence or accreditation or the holder of a suspended licence or accreditation, attach new conditions to, or vary or revoke any existing conditions of, the suspension, cancellation or surrender of the licence or accreditation. (4) The former holder of a licence that has been cancelled or surrendered, or the holder of a licence that has been suspended, must comply with any conditions to which the cancellation, surrender or suspension is subject. Maximum penalty—1,500 penalty units in the case of a corporation or 250 penalty units or imprisonment for 2 years, or both, in any other case. (5) The former holder of an accreditation that has been cancelled or surrendered, or the holder of an accreditation that has been suspended, must comply with any conditions to which the cancellation, surrender or suspension is subject. Maximum penalty—100 penalty units. 13B Conditions generally (1A) A licence or accreditation is subject to the following conditions— (a) conditions prescribed by this Act or the regulations, (b) conditions imposed on the licence or accreditation by the Authority. (1) A condition imposed on a licence or accreditation that specifies a time by which, or period within which, the condition must be complied with continues to have effect until the condition is complied with or revoked even though the time has passed or the period has expired. (2) The kinds of condition that may be imposed by the Authority include the following— (a) conditions that relate to the control or management of regulated material, including about the consigning for transport, and disposing of, regulated material, (b) conditions that relate to the places at which regulated material is kept or used, (c) conditions that relate to the equipment used in conjunction with regulated material, (d) conditions requiring the carrying out of works or programs (such as the securing, storage or disposal of regulated material or remediation, clean-up or improvement works with respect to regulated material), (e) conditions requiring financial assurances to secure or guarantee funding for or towards the carrying out of any such works or program