Changes to radiation protection laws

Commenced 24 October 2023

The review found that the objectives of the Act remain valid but recommended strengthening them by incorporating a commitment to ecologically sustainable development (ESD) principles, as expressed in section 6(2) of the Protection of the Environment Administration Act 1991.

ESD principles include the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and valuation, pricing and incentive mechanisms, including the polluter pays principle.

The incorporation of the ESD principles into the objectives of the Act ensures that environmental impacts are considered alongside social and economic factors by the EPA and other agencies when exercising functions under the Act and by a person using radiation under a licence issued under the Act.

Commences 25 April 2024

Effective life-cycle management of radiation sources includes ensuring that appropriate regulatory controls are in place to manage safety and security at every stage in the life-cycle – from manufacture, sale, transport, use and storage to end-of-life disposal.

The amendments to the Act add the activities of consigning for transport and disposal to the dealings that require a radiation management licence.

This means that a person who consigns regulated material for transport or disposes of regulated material must hold a radiation management licence to undertake these activities.

In this context “consign” carries the same meaning as it does in the Dangerous Goods (Road and Rail Transport) Act 2008.

Licensing these dealings ensures improved regulatory oversight to reduce the risk of incidents occurring and enable the EPA and emergency services to better respond to incidents if they occur.

It is important to note that a person who already has a radiation management licence will not need to obtain a separate licence for transport consignment and disposal; the EPA will be updating existing licences to add these activities to the dealings already regulated by the licence (possession, storage etc).

Commenced 23 February 2024

The offences in the Regulation that regulate transport of radioactive material (compliance with the national Code for Safe Transport of Radioactive Material) and the requirement to obtain EPA consent to dispose of radioactive substances and to comply with any conditions of consent, are migrated to the principal Act.

The penalties for breaching these requirements consequently attract significantly higher penalties than the Regulation provisions – up to $27,500 for an individual or $165,000 for any other legal entity (e.g. a corporation).

Commenced 23 February 2024

The amendments to the Act extend existing provisions enabling the EPA to recover costs and expenses in certain situations.

If the EPA takes prosecution action over a breach of the Act, and the offender is convicted, the court will be able to make an order that the convicted person pay the costs and expenses reasonably incurred by the EPA during the investigation of the offence.

If the EPA has to intervene in a dangerous situation and seizes a radioactive source, and the source is subsequently forfeited to the Crown, or if a person is convicted of an offence and the court orders forfeiture of radioactive material that is the subject of the offence to the Crown, the EPA will be able to recover any disposal costs.

The costs referred to above may be recovered from the person ordered to pay the costs or, if the person is a corporation, from the corporation, a current director of the corporation, a former director of the corporation, or a related body corporate. 

Commenced 23 February 2024

To ensure legislative consistency and deter non-compliant behaviour:

• the maximum penalty that may be imposed by the Local Court following conviction for an offence is increased to $110,000, aligning the Act with the Protection of the Environment Operations Act 1997.
• the maximum penalty for providing false or misleading information to an authorised officer or the EPA increases to up to $250,000 for an individual or $1 million for any other legal entity (e.g. a corporation), aligning the Act with the Protection of the Environment Operations Act 1997.
• the maximum penalties for abandoning a radioactive substance are significantly increased to align with the maximum penalties associated with serious waste dumping offences under the Protection of the Environment Operations Act 1997.

Abandoning a radioactive substance without reasonable excuse will carry a maximum penalty of $250,000 for an individual or $1 million for any other legal entity (e.g., corporations).

If the abandonment is negligent, the maximum penalty is $500,000 for an individual, or $2 million for any other legal entity.

If the abandonment is intentional the maximum penalty is $1 million for an individual or $5 million for any other legal entity.

Commenced 24 October 2023

Certain high-activity (or ‘security enhanced’) radioactive sources require special management to protect them from unauthorised access or malicious misuse.

The Act requires that security measures be implemented for these sources and that a security plan be prepared that describes those measures. A security plan is also required when a security enhanced source is transported.

Security pans must be endorsed by an EPA-accredited radiation security assessor.

The Act now requires that source security plans:

• be reviewed annually by the responsible person, and if there are significant changes in circumstances, the plan must be re-endorsed by a radiation security assessor
• be formally re-endorsed every 5 years by an EPA-accredited radiation security assessor in any case.

Transitional arrangements provide that if an organisation has an endorsed source security plan in place that was endorsed more than 4 years prior to 24 October 2023, it has 12 months to have the plan re-endorsed, then subsequently every 5 years.

The amendments to the Act also make it clear that a source transport security plan is required for any security enhanced source being transported in New South Wales, regardless of whether the shipment commenced in New South Wales or another Australian or overseas jurisdiction. 

Commenced 24 October 2023

The Radiation Advisory Council established under the Act has been modernised in its membership and governance and refocussed to provide the EPA with the expert advice it needs to administer the Act.

Membership of the Council will continue to include a representative of the CEO of the EPA and the Secretary of the Ministry of Health, and members with expertise in the core medical radiation practices of radiology, nuclear medicine, radiation oncology.

Additional members are to be appointed from areas of expertise in medical or health physics, mining of radioactive ores or naturally occurring radioactive material, non-ionising radiation, scientific or industrial uses of radiation, the work health and safety regulatory framework, environmental science, and emergency management operations.

Council members will be appointed by the EPA CEO and advise the EPA. Its annual report will be incorporated into the EPA’s annual report.

The amendments will not impact radiation management licensees who manage their regulated material safely and securely in accordance with requirements. Existing radiation management licensees do not require a new licence nor need to apply to amend their licence. 

The changes do not impact radiation user licences.

The amendments are designed to discourage mismanagement of radioactive material with increased requirements and penalties for more serious offences.

If a person:

• disposes of or consigns regulated material for transport they must hold a radiation management licence. Before being granted a licence (if they do not already hold a licence), they will be assessed as to whether they are a fit and proper person to carry out the activity. Once licensed, they must meet the requirements of that licence and requirements under the national Code for the Safe Transport of Radioactive Material as well as the existing requirement to seek EPA consent for any specific instance of disposal of material. 
• is responsible for security enhanced sources, they must meet requirements for an annual review of their security plan and re-endorsement every 5 years by an accredited radiation security assessor. If there are significant changes involving the source, a plan also requires re-endorsement. Minor changes that do not require re-endorsement are specified in the Act and Regulation.

Some offences relating to safe transport and disposal have moved from the Regulation to the Act with higher penalties for non-compliance. 

The maximum penalty for abandoning a radioactive source have been increased to align with serious waste dumping offences in the Protection of the Environment Operations Act 1997 (POEO Act) and the maximum penalties for providing false and misleading information to the EPA has also been aligned to the POEO Act.

If a person is convicted of an offence in the Local Court, the maximum penalty that may be imposed by the Local Court increases to $110,000, in line with the POEO Act.

Most existing licensees holding either a radiation management or radiation user licence will not incur additional expenses providing they manage their regulated material in accordance with the requirements of the legislation. If they do not, and are found guilty of an offence, they will incur additional costs in the form of higher penalties.

Persons that manage disposal of radioactive sources or consign for transport on behalf of others and do not already have a radiation management licence will need to apply for and pay for a licence.

Those persons/organisations with security enhanced sources will need to pay for re-endorsement of their security plans when significant changes occur (as they do now) or otherwise every 5 years.