Part 3Enforcement
15Application of Chapter 7 of
Protection of the Environment Operations Act
1997
Chapter 7 (Investigation) of the Protection of the Environment Operations Act
1997 extends to the exercise of powers in connection with
this Act and the regulations.
Note—
Section 186 of the Protection of the Environment Operations Act
1997 provides that Chapter 7 of that Act extends to the
exercise of certain powers in connection with certain other legislation,
including this Act. Chapter 7 of the Protection of the
Environment Operations Act 1997 deals with such matters as
the appointment of authorised officers, powers to require information and
records, powers of entry and search, powers to question and to identify
persons and powers with respect to certain things such as
vehicles.
s 15: Subst 2002 No
14, Sch 3 [7].
16Powers of
entry
(1)
Without limiting section 15, an authorised
officer may, at any time, enter premises if the authorised officer reasonably
suspects that any radioactive substance or radiation apparatus is kept or used
on the premises.
(2)
Chapter 7 (Investigation) of the Protection of the Environment Operations Act
1997 applies to the exercise of functions by an authorised
officer under this section in the same way as it applies to the exercise of
other powers to enter premises under that Chapter.
s 16: Am 1991 No 92,
Sch 2. Subst 2002 No 14, Sch 3 [7].
17
s 17: Rep 2002 No 14,
Sch 3 [7].
18Notices to avoid or remedy
contraventions
(1)
The Authority, or person authorised by the
Authority, may serve a notice under this section on a person if the Authority,
or person authorised by the Authority, believes on reasonable grounds that the
person is, or is likely to become, responsible for:
(a)
a contravention of this Act, the regulations or
the conditions of, a licence or accreditation or, the suspension, cancellation
or surrender of a licence or accreditation, or
(b)
unnecessary exposure to or contamination by
radiation.
(2)
The notice is to be in writing and may contain a
direction requiring the person on whom it is served to take specified steps,
or refrain from doing specified things, to comply with the direction within a
specified time.
(3)
The Authority must, as soon as practicable after
the service of the notice, advise the Council about the
notice.
(4)
The person on whom the notice is served
must:
(a)
comply with the notice, and
(b)
within 30 days or such longer time as may be
permitted by the Authority, pay the prescribed fee to the
Authority.
Maximum penalty: 200 penalty
units.
(5)
The Authority may waive payment of the whole or
any part of the fee.
(6)
The person may appeal to the District Court
against a decision to serve a notice under this section and the following
provisions apply to and in respect of the appeal:
(a)
the person must comply with the notice unless the
Court directs that the notice be stayed, in which case the notice ceases to
have effect until:
(i)
the stay ceases, or
(ii)
the Court confirms the notice,
or
(iii)
the appeal is
withdrawn,
(b)
the amount payable under subsection (4) (b) is
not required to be paid until 30 days after:
(i)
the Court confirms the notice,
or
(ii)
the appeal is
withdrawn,
(c)
the appeal is to be in accordance with the rules
of the District Court,
(d)
the appeal is to be by way of a new hearing and
new evidence can be given on the appeal,
(e)
the decision of the Court is final and is to be
given effect to by the Authority.
(7)
A notice may be varied or revoked and more than
one notice may be served under this section on the same person or in respect
of the same incident or both.
(8)
A notice that specifies a time by which, or
period within which, a direction must be complied with continues to have
effect until the direction is complied with or revoked even though the time
has passed or the period has expired.
(9)
A notice may be served on a person in respect of
a matter or thing even though the person is outside the State or the matter or
thing occurs or is located outside the State, so long as the matter or thing
affects the environment or a natural person of this
State.
s 18: Am 2002 No 14,
Sch 3 [8]; 2002 No 52, Sch 1 [27] [28]; 2004 No 55, Sch 1.23 [8]. Subst 2010
No 91, Sch 1 [6] (am 2013 No 47, Sch 1.24 [1]–[3]).
19Powers to deal with dangerous
situations
(1)
If the Authority considers that a dangerous or
potentially dangerous situation exists involving actual or threatened exposure
of any person, animal or thing or the environment to an excessive level of
radiation or contamination by regulated material, the Authority may, to avoid,
remove or alleviate the danger or potential danger:
(a)
direct the person responsible for the danger or
potential danger or any person affected by it to take, or refrain from taking,
any specified action, or
(b)
direct that the regulated material giving rise to
the danger or potential danger or anything contaminated or affected by it be
seized, removed, disposed of, treated or otherwise dealt with,
or
(c)
give any other direction that the Authority
considers appropriate, or
(d)
take any action that the Authority considers
necessary to alleviate the danger or potential danger (including any action
that a person has been directed to take but has failed to
take).
(2)
Directions may be given or action taken under
subsection (1) by the Authority or, with the prior approval of the Authority,
by an authorised officer, police officer or other person appointed for the
purpose by the Authority.
(3)
A direction may be given:
(a)
by a notice published in the Gazette or on the
NSW legislation website, or
(b)
by an instrument in writing served on the person
to whom it is directed, or
(c)
orally in circumstances of imminent danger, so
long as, within 24 hours after it is given orally, notice of the direction is
also given by instrument in writing served on the person
concerned.
(4)
The person must comply with a
direction.
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)
A person must not hinder or obstruct any person
exercising any function, or complying with any direction, under this
section.
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.
(6)
The person to whom a direction is given must,
within 30 days or such longer time as may be permitted by the Authority, pay
the prescribed fee to the Authority.
Maximum penalty: 200 penalty
units.
(7)
The Authority may waive payment of the whole or
any part of the fee.
(8)
A direction may be varied or revoked and more
than one direction may be served under this section on the same person or in
respect of the same incident or both.
(9)
A direction that specifies a time by which, or
period within which, the direction must be complied with continues to have
effect until the direction is complied with or revoked even though the time
has passed or the period has expired.
(10)
A direction may be given to a person in respect
of a matter or thing even though the person is outside the State or the matter
or thing occurs or is located outside the State, so long as the matter or
thing affects the environment or a natural person of this
State.
(11)
The exercise of the Authority’s functions
under this section is subject to the State Emergency
and Rescue Management Act 1989.
s 19: Am 2002 No 14,
Sch 3 [9]. Subst 2010 No 91, Sch 1 [6].
20Special
inquiries
(1)
The Minister may authorise an Australian lawyer
of at least 7 years’ standing to conduct an inquiry into any accident or
incident involving a radioactive substance or radiation
apparatus.
(2)
The person who is directed to conduct such an
inquiry is, for that purpose, to have the same powers, authorities,
protections and immunities conferred by the Royal Commissions
Act 1923 on a commissioner and the chairman of a
commission respectively, appointed under Division 1 of Part 2 of that
Act.
(3)
The Royal Commissions
Act 1923 (Division 2 of Part 2 excepted) applies to any
witness summoned by or appearing before the person conducting an inquiry under
this section in the same way as it applies to any witness summoned by or
appearing before a commission.
s 20: Am 1993 No 87,
Sch 5; 2007 No 27, Sch 3.8.
21Decontamination and
acquisition of premises
(1)
The Authority may cause to be undertaken, or
facilitate the undertaking of, the decontamination, or the removal and
disposal, of premises contaminated by radioactivity.
(2)
For the purposes of subsection (1), the Authority
or the Health Administration Corporation constituted under the Health Administration Act 1982 is
authorised to acquire premises contaminated by
radioactivity.
(3)
This section does not prevent the acquisition, by
the Crown or by any authority of the State, of any premises contaminated by
radioactivity.
(4)
For the purposes of this section, premises are to
be regarded as contaminated by radioactivity if the premises or a part of the
premises have a level of radioactivity of or above the level prescribed for
the purposes of this section.
s 21: Am 1991 No 60,
Sch 3.
22Offence by
employee—liability of employer
(1)
If an employee contravenes any provision of this
Act or the regulations, the employer is to be taken to have contravened the
same provision (whether or not the employee contravened the provision without
the employer’s authority or contrary to the employer’s orders or
instructions).
(2)
It is a defence in proceedings against an
employer for such a contravention if it is established:
(a)
that the employer had no knowledge of the
contravention, and
(b)
that the employer could not, by the exercise of
due diligence, have prevented the contravention.
(3)
An employer may be proceeded against and
convicted under a provision pursuant to subsection (1) whether or not the
employee has been proceeded against or convicted under that
provision.
23Offences by
corporations
(1)
If a corporation contravenes any provision of
this Act or the regulations, each person who is a director of the corporation
or who is concerned in the management of the corporation is to be taken to
have contravened the same provision if the person knowingly authorised or
permitted the contravention.
(2)
A person may be proceeded against and convicted
under a provision pursuant to subsection (1) whether or not the corporation
has been proceeded against or convicted under that
provision.
(3)
Nothing in this section affects any liability
imposed on a corporation for an offence committed by the corporation against
this Act or the regulations.
23AOrders regarding monetary
benefits
(1)
The court may order the offender to pay, as part
of the penalty for committing the offence, an additional penalty of an amount
the court is satisfied, on the balance of probabilities, represents the amount
of any monetary benefits acquired by the offender, or accrued or accruing to
the offender, as a result of the commission of the
offence.
(2)
The amount of an additional penalty for an
offence is not subject to any maximum amount of penalty provided elsewhere by
or under this Act.
(3)
The regulations may prescribe a protocol to be
used in determining the amount that represents the monetary benefit acquired
by the offender or accrued or accruing to the offender.
(4)
In this section:
monetary
benefits means monetary, financial or economic
benefits.
the
court does not include the Local
Court.
s 23A: Ins 2014 No
65, Sch 3 [2].
23BAdditional
orders
(1)Orders
The court may do any one or more of the
following:
(a)
order the offender to take specified action to
publicise the offence (including the circumstances of the offence) and its
environmental and other consequences and any other orders made against the
person,
(b)
order the offender to take specified action to
notify specified persons or classes of persons of the offence (including the
circumstances of the offence) and its environmental and other consequences and
of any orders made against the person (including, for example, the publication
in an annual report or any other notice to shareholders of a company or the
notification of persons aggrieved or affected by the offender’s
conduct),
(c)
order the offender to carry out a specified
project for the restoration or enhancement of the environment in a public
place or for the public benefit,
(d)
order the offender to attend, or to cause an
employee or employees or a contractor or contractors of the offender to
attend, a training or other course specified by the court,
(e)
order the offender to establish, for employees or
contractors of the offender, a training course of a kind specified by the
court,
(f)
if the Authority is a party to the proceedings,
order the offender to provide a financial assurance, of a form and amount
specified by the court, to the Authority, if the court orders the offender to
carry out a specified work or program for the restoration or enhancement of
the environment.
The Local Court is not authorised to make an
order referred to in paragraph (c) or (f).
(2)
Without limiting subsection (1) (c), the court
may order the offender to carry out any social or community activity for the
benefit of the community or persons that are adversely affected by the offence
(a restorative justice activity) that
the offender has agreed to carry out. However, the Local Court is not
authorised to make an order under this subsection.
(3)Machinery
The court may, in an order under this section,
fix a period for compliance and impose any other requirements the court
considers necessary or expedient for enforcement of the
order.
(4)Failure to publicise or
notify
If the offender fails to comply with an order
under subsection (1) (a) or (b), the prosecutor or a person authorised by the
prosecutor may take action to carry out the order as far as may be
practicable, including action to publicise or notify:
(a)
the original contravention, its environmental and
other consequences, and any other penalties imposed on the offender,
and
(b)
the failure to comply with the
order.
(5)Cost of publicising or
notifying
The reasonable cost of taking action referred to
in subsection (4) is recoverable by the prosecutor or person taking the
action, in a court of competent jurisdiction, as a debt from the
offender.
(6)Financial
assurances
Sections 28G–28K apply to a financial
assurance provided by an offender under an order made under this section in
the same way as they apply to a financial assurance provided by a holder of a
licence under a condition of a licence under Part 3A.
s 23B: Ins 2014 No
65, Sch 3 [2].
24Increased penalty for offence
causing serious harm
(1)
This section applies when a person is convicted
of an offence against a provision of this Act and it is proved beyond
reasonable doubt that the person knew that its commission was likely to cause
serious harm to a person, animal or thing or the environment by exposure to
radiation.
(2)
When this section applies, the maximum penalty
that may be imposed in respect of the offence concerned is increased to 10,000
penalty units in the case of a corporation or 1,500 penalty units or
imprisonment for 2 years, or both, in any other case.
s 24: Am 2010 No 91,
Sch 1 [7].
24AEnforcement of
undertakings
(1)
The Authority may accept a written undertaking
given by a person if the Authority reasonably believes that the person has
contravened this Act or the regulations.
(1A)
Without limiting subsection (1), an undertaking
that the Authority may accept under that subsection includes an undertaking to
carry out a restorative justice activity.
(2)
The person may withdraw or vary the undertaking
at any time, but only with the consent in writing of the Authority. The
consent of the Authority is required even if the undertaking purports to
authorise withdrawal or variation of the undertaking without that
consent.
(3)
The Authority may apply to the District Court for
an order under subsection (4) if the Authority considers that the person who
gave the undertaking has breached any of its terms.
(4)
The Court may make all or any of the following
orders if it is satisfied that the person has breached a term of the
undertaking:
(a)
an order directing the person to comply with that
term of the undertaking,
(b)
an order directing the person to pay to the State
an amount not exceeding the amount of any financial benefit that the person
has obtained directly or indirectly and that is reasonably attributable to the
breach,
(c)
any order that the Court thinks appropriate
directing the person to compensate any other person who has suffered loss or
damage as a result of the breach,
(d)
an order suspending or cancelling any licence or
accreditation held by the person,
(e)
an order requiring the person to prevent,
control, abate or mitigate any actual or likely harm to the environment or
human health caused by the breach,
(f)
an order requiring the person to make good any
actual or likely harm to the environment caused by the
breach,
(g)
any other order the Court considers
appropriate.
s 24A: Ins 2010 No
91, Sch 1 [8]. Am 2014 No 65, Sch 3 [3].
25Proceedings for
offences
(1)
Proceedings for an offence against this Act or
the regulations are to be disposed of summarily before:
(a)
the Local Court, or
(b)
the Supreme Court in its summary
jurisdiction.
(2)
Proceedings may be taken and prosecuted only by a
person acting with the authority of the Authority and may not be taken in the
Supreme Court except with the consent of the Minister.
(3)
The maximum pecuniary penalty that may be imposed
by the Local Court in proceedings for an offence against this Act or the
regulations is 100 penalty units.
(4)
In proceedings for an offence, an authority or
consent to prosecute purporting to have been signed by the Chairperson of the
Authority or the Minister is evidence of that authority or consent without
proof of the signature of the Authority or the Minister.
(5)
Proceedings for an offence against this Act or
the regulations may be commenced within 12 months after the date on
which:
(a)
the offence is alleged to have been committed,
or
(b)
evidence of the alleged offence first came to the
attention of an authorised officer.
(6)
If subsection (5) (b) is relied on for the
purpose of commencing proceedings:
(a)
the court attendance notice must contain
particulars of the date on which evidence of the offence first came to the
attention of an authorised officer and need not contain particulars of the
date on which the offence was committed, and
(b)
unless the contrary is established, that
specified date is taken to be the date on which evidence first came to the
attention of an authorised officer.
(7)
This section applies despite anything in the
Criminal Procedure Act 1986 or any other
Act.
(8)
In this section:
evidence
of an offence means evidence of any act or omission
constituting the offence.
s 25: Am 1991 No 60,
Sch 3; 1999 No 31, Sch 1.38; 2003 No 82, Sch 2.25; 2007 No 94, Sch 2; 2010 No
91, Sch 1 [10]; 2011 No 63, Sch 3.6 [2]; 2013 No 47, Sch 1.23 [1]
[2].
25APenalty
notices
(1)
An authorised officer or police officer may serve
a penalty notice on a person if it appears to the authorised officer or police
officer that the person has committed an offence against this Act or the
regulations, being an offence prescribed by the regulations as a penalty
notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of penalty prescribed by the regulations for the offence if dealt
with under this section.
(3)
A penalty notice may be served personally or by
post.
(4)
The regulations may authorise a penalty notice
also to be served by leaving the notice on a vehicle or at other premises in
respect of which the offence was committed.
(5)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim or proceeding arising out of the same
occurrence.
(7)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences, and
(d)
prescribe different amounts of penalties based on
the number of times that an offender has been convicted of, or paid a penalty
notice for, the same offence within a 5-year
period.
(8)
The amount of a penalty prescribed under this
section for an offence is not to exceed $1,500 or the maximum amount of
penalty that could be imposed for the offence by a court, whichever is the
lesser.
(9)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(10)
Within 28 days after the date on which a penalty
notice is served, an authorised officer may withdraw the notice if it was
served by an authorised officer or a police officer may withdraw the notice if
it was served by a police officer.
(11)
An authorised officer or a police officer must
withdraw a penalty notice immediately if directed to do so by the
Authority.
(12)
The following provisions have effect in relation
to an alleged offence if a penalty notice for the alleged offence is withdrawn
in accordance with this section:
(a)
the amount that was payable under the notice
ceases to be payable,
(b)
any amount that has been paid under the notice is
repayable to the person by whom it was paid,
(c)
further proceedings in respect of the alleged
offence may be taken against any person (including the person on whom the
notice was served) as if the notice had never been
served.
s 25A: Ins 2002 No
14, Sch 3 [10]. Am 2010 No 91, Sch 1 [11]; 2014 No 65, Sch 3
[4].
25BRemedy or restraint of
breaches of this Act or regulations
(1)
Any person may bring proceedings in the Supreme
Court for an order to remedy or restrain a breach of this Act or the
regulations.
(2)
Any such proceedings may be brought whether or
not proceedings have been instituted for an offence against this Act or the
regulations.
(3)
Any such proceedings may be brought whether or
not any right of the person has been or may be infringed by or as a
consequence of the breach.
(4)
Any such proceedings may be brought by a person
on the person’s own behalf or on behalf of another person (with their
consent), or of a body corporate or unincorporate (with the consent of its
committee or other controlling or governing body), having like or common
interests in those proceedings.
(5)
Any person on whose behalf proceedings are
brought is entitled to contribute to or provide for the payment of the legal
costs and expenses incurred by the person bringing the
proceedings.
(6)
If the Court is satisfied that a breach has been
committed or that a breach will, unless restrained by order of the Court, be
committed, it may make such orders as it thinks fit to remedy or restrain the
breach.
(7)
Without limiting the powers of the Court under
this section, an order under this section may suspend any
licence.
(8)
In this section:
breach includes a threatened or
apprehended breach.
s 25B: Ins 2014 No
65, Sch 3 [5].
26Forfeiture
(1)
When a person is convicted of an offence against
this Act or the regulations, the court may order forfeiture to the Crown of
any radioactive substance or radiation apparatus in respect of which the
offence was committed if the court finds it to be the property of the person
so convicted.
(2)
On application made by or on behalf of the
Authority in the prescribed manner, the Local Court may order forfeiture to
the Crown of any substance or article seized by an authorised officer under
this Act.
(3)
The making of an order under this section
operates to forfeit the property concerned to the Crown.
(4)
Forfeited property is to be disposed of as the
Minister directs.
s 26: Am 2002 No 14,
Sch 3 [11]; 2007 No 94, Sch 2.
27Retention and disposal of
seized property
(1)
A substance or thing seized by an authorised
officer under this Act may be retained for 6 months (or a longer period
approved under subsection (3)) but then must be returned to the person from
whom it was seized unless:
(a)
it has been forfeited to the Crown under section
26, or
(b)
the Authority gives notice in the prescribed
manner before that period expires to the effect that application will be made
under section 26 on a specified day for forfeiture to the Crown of the
substance or thing.
(2)
Unless the substance or thing is forfeited to the
Crown as a result of the making of that application, the Authority is to
return it to the person from whom it was seized or to the person who appears
to the Authority to be entitled to possession of it.
(3)
The Local Court or the Supreme Court may on the
application of the Authority approve the retention of a seized substance or
thing for a specified period longer than 6 months.
s 27: Am 2002 No 14,
Sch 3 [11]; 2007 No 94, Sch 3.
28Recovery of
costs
(1)
If costs or expenses are incurred by the
Authority or a public body in taking action or causing action to be taken
under this Act in respect of a danger or potential danger resulting from an
act or omission by any person in contravention of this Act or the regulations,
the Authority or public body may recover those costs or expenses from that
person in a court of competent jurisdiction as a debt.
(2)
If a notice under section 18 is served on a
person, or a direction under section 19 is given to a person, the Authority
may, by giving notice in writing, require the person to pay all or any
reasonable costs and expenses incurred by the Authority in connection
with:
(a)
monitoring action under the notice or direction,
and
(b)
ensuring that the notice or direction is complied
with, and
(c)
any other associated
matters.
(2A)
The Authority may give such a notice even if it
did not issue the relevant notice under section 18 or the relevant direction
under section 19.
(3)
Any such costs and expenses may be recovered by
the Authority from the person in a court of competent jurisdiction as a
debt.
s 28: Am 2010 No 91,
Sch 1 [12]; 2014 No 33, Sch 1.13 [6].
Part 5General
33AAbandoning radioactive
substance
A person must not abandon any radioactive
substance without reasonable excuse.
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.
s 33A: Ins 2010 No
91, Sch 1 [19].
34Act binds
Crown
This Act binds the Crown in right of New South
Wales and, so far as the legislative power of Parliament permits, the Crown in
all its other capacities.
35Service of
documents
(1)
For the purposes of this Act, any notice or other
document may be issued or given to a person, or may be served on a
person:
(a)
by delivering it personally to the person,
or
(b)
by delivering it to the place of residence or
business of the person and by leaving it there for the person with a person
apparently of or above the age of 16 years, or
(c)
by posting it duly stamped and addressed to the
person at the place last shown in the records of the Authority as the
person’s place of residence or business, or
(d)
by posting it duly stamped and addressed to the
person at the place indicated by the person as an address to which
correspondence may be posted (including for example a post office box),
or
(e)
by sending it by facsimile or electronic
transmission (including by email) to the person in accordance with
arrangements indicated by the person as appropriate for transmitting documents
to the person, or
(f)
by leaving it addressed to the person at a
document exchange or other place (in accordance with usual arrangements for
the exchange or other place) indicated by the person as an exchange or place
through which correspondence may be forwarded to the
person.
(2)
This section does not affect any other mode of
issuing, giving or serving a notice or other document under any other
law.
s 35: Subst 2010 No
91, Sch 1 [20].
36Evidentiary
matters
(1)
In any proceedings under this Act, the holder or
former holder of a radiation management licence is at a particular time or
during a particular period (in the absence of evidence to the contrary) taken
to be a person responsible for any regulated material to which the licence
related at that time or during that period.
(2)
A document signed by the Chairperson of the
Authority and certifying any one or more of the following matters is
admissible in any proceedings under this Act and (in the absence of evidence
to the contrary) is taken to be evidence of the matters so certified:
(a)
on a specified day, or during a specified period,
a licence or accreditation was or was not in force or was or was not subject
to a specified condition,
(b)
on a specified day a licence or accreditation was
or was not suspended, cancelled, varied or surrendered or the suspension,
cancellation or surrender of a licence or accreditation was or was not subject
to specified conditions,
(c)
on a specified day a specified person was or was
not an authorised officer or was or was not the holder of a specified licence
or accreditation,
(d)
on a specified day a specified person was or was
not served with a specified notice, or given a specified direction, under this
Act or any such direction or notice was or was not varied or
revoked,
(e)
a specified amount is payable by a specified
person under this Act to the Authority and that amount has not been
paid,
(f)
a specified cost or expense was incurred by an
authorised officer or public body in a specified
way.
(3)
The Authority may not rely on a document referred
to in subsection (2) in proceedings unless it has given written notice to each
other party in the proceedings of its intention to rely on the document and
provided each such party with a copy of the document.
s 36: Subst 2010 No
91, Sch 1 [20] (am 2011 No 63, Sch 3.7 [4]).
36AAppeals to District
Court
(1)
A person may, in accordance with the rules of the
District Court, appeal to the District Court against a decision of the
Authority:
(a)
to refuse to grant the person a licence or
accreditation, or
(b)
to impose conditions on, or vary the conditions
of, a licence or accreditation, or
(c)
to refuse to vary a licence or accreditation,
or
(d)
to suspend or cancel a licence or accreditation,
or
(e)
to refuse to approve the surrender of a licence
or accreditation, or
(f)
to impose a condition on the suspension,
cancellation or surrender of a licence or accreditation,
or
(g)
to call on or use any financial
assurance.
(2)
The appeal is to be by way of a new hearing and
new evidence can be given on the appeal.
(3)
The decision of the District Court on the appeal
is final and is to be given effect to by the Authority.
Note—
Rule 50.3 of the Uniform Civil Procedure Rules 2005
requires that a summons commencing an appeal must be filed with the District
Court within 28 days after the date on which notice of the decision was given,
by or on behalf of the Authority, to the person who wishes to
appeal.
s 36A: Ins 2010 No
91, Sch 1 [20].
36BProvision of false or
misleading information
A person must not provide information that the
person knows is false or misleading in a material particular:
(a)
to an authorised officer or the Authority in the
exercise of the authorised officer’s or Authority’s functions
under this Act, or
(b)
to a person who is conducting a security check or
identity check under Part 2A, for the purposes of that check,
or
(c)
in the case of a person who is a responsible
person in respect of regulated material, to a person who holds an
accreditation, for the purposes of that accredited person carrying out some
activity in respect of the regulated material.
Maximum penalty: 1,500 penalty units in the case
of a corporation or 250 penalty units in any other case.
s 36B: Ins 2010 No
91, Sch 1 [20].
37Adoption of documents forming
part of National Directory
(1)
The Authority may, by notice published in the
Gazette, adopt a document (including for example a standard, guidance note or
code of practice) forming part of the National Directory and may, in the same
way, revoke or vary such an adoption.
(2)
The Authority is to cause a document adopted
under this section to be available for public inspection free of charge at the
Authority’s offices during normal office hours.
s 37: Rep 1991 No 60,
Sch 3. Ins 2002 No 52, Sch 1 [34].
38Consultation and co-operation
between Ministers
The Minister, in the administration of this Act,
is to consult and co-operate with:
(a)
the Ministers administering the following Acts on
matters relating to safe work practices involving radiation:
(i)
Work Health and
Safety (Mines and Petroleum Sites) Act
2013,
(ii)
Mining Act
1992,
(iii)
Work Health and
Safety Act 2011,
(iv)
Offshore Minerals
Act 1999, and
(v)
(b)
the Minister administering the Work Health and Safety (Mines and Petroleum Sites) Act
2013 on matters relating to radiation protection at
workplaces to which that Act applies, and
(c)
the Minister administering the Public Health Act 2010 on matters
relating to protection of public health from
radiation.
s 38: Am 1991 No 60,
Sch 3; 1992 No 29, Sch 5; 1999 No 42, Sch 3.14; 2004 No 74, Sch 4.9 [2]; 2010
No 91, Sch 1 [21] [22]; 2010 No 127, Sch 4.19; 2011 No 67, Sch 4.23 [2]; 2013
No 54, Sch 3.10 [2] [3]; 2015 No 43, Sch 4.11 [1] [2].
38AExemptions by Authority in
emergencies and other situations
(1)
The Authority may exempt a person from compliance
with all or any specified provision of this Act or the regulations, in the
circumstances referred to in subsection (2).
(2)
An exemption may be granted in:
(a)
an emergency (such as an emergency clean-up
following a spill of a radioactive substance), or
(b)
circumstances where:
(i)
the Authority is satisfied that it is not
practicable to comply with the relevant provision, and
(ii)
the Authority is satisfied that non-compliance
with the provision will not have any significant adverse effect on human
health, property or the environment, and
(iii)
if the exemption is for a period exceeding 60
days, the Authority has sought and taken into consideration the advice of the
Council about the proposed exemption.
(3)
The regulations may prescribe the manner in which
a person must apply for an exemption under this section.
(4)
An exemption:
(a)
is effected by order made by the Authority and
published in the Gazette, and
(b)
takes effect from the date the order is published
or a later date specified in the order, and
(c)
has effect for the period specified in the
order.
(5)
In the case of an exemption granted in an
emergency, the order may take effect when it is made or on a later date
specified in the order. The order is to be published in the Gazette as soon as
practicable after it is made.
(6)
An exemption may be unconditional or may be
subject to conditions specified in the order.
(7)
An exemption may be revoked, varied or renewed by
a further order made and published in accordance with this
section.
(8)
An exemption may not be granted or renewed so as
to have effect for a total period exceeding 5 years. A further exemption
granted within 5 years after the expiry of an earlier exemption (being a
further exemption that is the same in substance as the earlier exemption) is
to be treated as a renewed exemption for the purposes of this
subsection.
(9)
If an exemption is granted, any person may make a
written request to the Authority for the reasons for the exemption and the
Authority is to provide a written statement of the reasons to the person. The
regulations may make provision with respect to any such statement of reasons,
including:
(a)
the time within which a request for reasons must
be made or within which the statement of reasons must be provided,
and
(b)
the matters to be set out in a statement of
reasons, and
(c)
the cases in which a statement of reasons is not
required to be provided.
s 38A: Ins 2010 No
91, Sch 1 [23].
39Exemptions
(1)
The regulations may make provision for exemptions
(whether or not subject to conditions) from compliance with all or specified
provisions of this Act and the regulations, including provision:
(a)
authorising the Minister to grant such an
exemption, and
(b)
specifying circumstances in which an exemption
granted under any law of another State, a Territory or the Commonwealth is to
be considered to be an exemption granted under the
regulations.
(2)
The Minister may grant an exemption authorised by
the regulations for such period as is determined by the
Minister.
(3)
Before granting an exemption authorised by the
regulations for a period exceeding 60 days, the Minister must seek, and take
into consideration, the advice of the Council about the proposed
exemption.
s 39: Am 2002 No 52,
Sch 1 [35].
39APersonal
liability
A matter or thing done or omitted by:
(a)
the Council or a member of the Council,
or
(b)
a member of a committee of the Council,
or
(c)
an authorised officer, or
(d)
a person acting under the direction of the
Council, or
(e)
a natural person exercising functions under
section 5A,
does not subject a member, authorised officer or person
so acting personally to any action, liability, claim or demand if the matter
or thing was done or omitted in good faith for the purposes of executing this
Act.
s 39A: Ins 1995 No
99, Sch 1. Am 2002 No 14, Sch 3 [13]; 2010 No 91, Sch 1 [24]; 2014 No 33, Sch
1.13 [8].
39BReview of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The Minister must seek, and take into
consideration, the advice of the Council when undertaking the
review.
(3)
The review is to be undertaken as soon as
practicable after the period of 10 years from the date of commencement of
Schedule 1 [25] to the Radiation Control Amendment Act
2010.
(4)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 10 years.
s 39B: Ins 2002 No
52, Sch 1 [36]. Am 2010 No 91, Sch 1 [25].
40Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed, or that is necessary or convenient
to be prescribed, for carrying out or giving effect to this
Act.
(2)
Without affecting the generality of subsection
(1), the Governor may make regulations for or with respect to regulating
activities concerned with radioactive substances or radiation apparatus,
including the following activities:
(a)
activities of producing, manufacturing,
supplying, keeping, conveying, using or otherwise dealing with radioactive
substances or radiation apparatus,
(b)
activities concerning any aspect of waste
management, including waste disposal, treatment, storage, recycling and
minimisation.
(3)
The regulations authorised by this section
include regulations that make provision for or with respect to:
(a)
requiring specified standards to be observed,
practices and procedures to be followed and measures to be taken in relation
to activities referred to in subsection (2),
(b)
recommending practices and procedures that may be
followed, and measures that may be taken, to further the achievement of the
standards referred to in paragraph (a),
(c)
regulating, restricting or prohibiting any act or
thing that is involved in or related to an activity referred to in subsection
(2),
(d)
the granting, issuing or giving of a licence,
permit, authority or approval and the terms or conditions to which it is
subject,
(e)
the giving of directions for the purposes of the
regulations,
(f)
the protection of the health and safety, and the
training, examination and certification, of persons who engage or seek to
engage in activities referred to in subsection (2),
(g)
the medical examination of persons exposed or
believed to have been exposed to radiation in the course of activities
referred to in subsection (2),
(h)
requiring the keeping of records, furnishing of
information, and notification of accidents or other matters or events by
persons carrying on activities referred to in subsection
(2),
(i)
the monitoring of levels of radiation exposure of
persons engaged in activities referred to in subsection (2) and the monitoring
of the health of such persons during and after such
activities,
(j)
the protection of persons and the environment
against the harmful effects of radiation resulting from activities referred to
in subsection (2),
(k)
the monitoring of levels of radiation in the
environment, and
(l)
requiring the payment of fees and charges for
services provided by the Authority under this Act.
(3A)
The regulations authorised by this section may
also make provision for or with respect to any matter relating to the security
of radioactive substances, radiation apparatus and sealed radioactive
sources.
(4)
A regulation may create an offence punishable by
a penalty not exceeding 400 penalty units in the case of an offence committed
by a corporation or 200 penalty units in any other case.
(5)
The regulations may provide for the waiver of the
whole or such part of the fees as the Authority may in a particular case think
proper.
(6)
The regulations may adopt any document (including
for example a standard, guidance note or code of practice) as in force from
time to time.
s 40: Am 1990 No 108,
Sch 1; 2002 No 52, Sch 1 [37]; 2010 No 91, Sch 1
[26]–[28].
41–43
s 41: Rep 1999 No 85,
Sch 4.
s 42: Rep 1999 No 85,
Sch 4.
s 43: Rep 2010 No 91,
Sch 1 [29].
44Savings and transitional
provisions
Schedule 2 has effect.