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Act No. 32 of 1978 as made
An Act to make provision for and in relation to the establishment of codes of practice with respect to nuclear activities, and for other purposes
Date of Assent 09 Jun 1978
Date of repeal 15 Mar 2001
Repealed by Australian Radiation Protection and Nuclear Safety (Consequential Amendments) Act 1998

ENVIRONMENT PROTECTION (NUCLEAR CODES) ACT 1978

No. 32 of 1978

An Act to make provision for and in relation to the establishment of codes of practice with respect to nuclear activities, and for other purposes.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Environment Protection (Nuclear Codes) Act 1978.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Object of Act

3. The object of this Act is to make provision, within the limits of the powers of the Parliament, for protecting the health and safety of the people of Australia, and the environment, from possible harmful effects associated with nuclear activities in Australia, and this Act and the regulations shall be construed and administered accordingly.

Interpretation

4. In this Act, unless the contrary intention appears

“Australia” includes all the Territories;

“international organization” means an organization of which 2 or more countries, or the Governments of 2 or more countries, are members;

“mineral” includes any substance obtained or obtainable from the earth by underground or surface working;

“nuclear activities’’ includes

(a) the mining (whether by underground or surface working) or recovery of any prescribed substance or any mineral containing a prescribed substance;

(b) the production of any prescribed substance;

(c) the milling, refining, treatment, processing, reprocessing, fabrication, enrichment, storage, handling, transportation, possession, acquisition, abandonment or disposal of

(i) any prescribed substance; or

(ii) any mineral, or other matter, that contains a prescribed substance;

(d) the use of any substance, mineral or matter referred to in sub-paragraph (c) (i) or (ii), including, without limiting the generality of the foregoing, use in the production of nuclear energy;

(e) the construction, operation or decommissioning of a mine, plant, facility, structure, apparatus or equipment used in, or in association or connexion with, any operation or activity referred to in any of the preceding paragraphs; and

(f) any operation or activity connected or associated with, or incidental to, any operation or activity referred to in any of the preceding paragraphs;

“nuclear energy” means any form of energy released in the course of nuclear fission, nuclear fusion or other nuclear transmutation;

“prescribed substance” means

(a) uranium, thorium, an element having an atomic number greater than 92 or any other substance declared by the regulations to be capable of being used for the production of nuclear energy or to be a radioactive substance; and

(b) any derivative or compound of a substance to which paragraph (a) applies.

Extension of Act to Territories

5. This Act extends to every Territory.

Act binds the Crown

6. This Act binds the Crown in right of the Commonwealth and of each State.

 

PART II—PROPOSED CODES OF PRACTICE

Formulation of codes of practice

7. (1) The Minister may, from time to time, arrange for the formulation of

(a) proposed codes of practice for regulating or controlling nuclear activities in Australia (including codes of practice to replace existing codes of practice approved by orders under sub-section 9(1)); and

(b) proposed variations of codes of practice approved by orders under sub-section 9(1).

 

 

(2) The Minister shall ensure that there is afforded to the appropriate Minister of each State, and, on and after 1 July 1978, the appropriate Minister of the Northern Territory, an opportunity to consult with the Minister or another Minister in relation to the formulation under sub-section (1) of a proposed code of practice or a proposed variation of a code of practice.

 

Minister to furnish proposed codes of practice to States, &c.

8. The Minister

(a) shall cause to be furnished to the appropriate Minister of each State, and, on and after 1 July 1978, to the appropriate Minister of the Northern Territory, and may, if he thinks it desirable to do so, make available, or arrange to be made available, for public comment, proposed codes of practice, and proposed variations of codes of practice, formulated in pursuance of section 7; and

(b) shall ensure that each Minister to whom a proposed code of practice, or a proposed variation of a code of practice, is furnished under paragraph (a), or a person nominated by the Minister concerned, is afforded an opportunity to consult with the Minister or another Minister, or with a person nominated by the Minister, in relation to the proposed code of practice or the proposed variation of a code of practice.

PART III—CODES OF PRACTICE

Codes of practice

9. (1) Subject to sub-section (2), the Governor-General may, from time to time, by order in writing

(a) approve codes of practice for regulating or controlling nuclear activities in Australia;

(b) approve variations of such codes of practice (including codes of practice as previously varied); and

(c) revoke such codes of practice (including codes of practice as varied) or variations of such codes of practice.

 

(2) The Governor-General shall not make an order under sub-section (1) approving a code of practice or a variation of a code of practice unless he has been informed by the Minister

(a) that an opportunity has been afforded to the appropriate Minister of each State, and, in the case of an order proposed to be made on or after 1 July 1978, to the appropriate Minister of the Northern Territory, to consult with the Minister or another Minister in relation to the formulation of the code or the variation as mentioned in sub-section 7(2);

(b) that the code or the variation, as the case may be, has been furnished to each such Minister as mentioned in paragraph 8(a); and

(c) that an opportunity has been afforded to each such Minister or his nominee to consult with the Minister or his nominee or with another Minister in relation to the code or the variation as mentioned in paragraph 8(b).


(3) A code of practice may

(a) specify standards to be observed, practices and procedures to be followed and measures (including measures for and in relation to the restoration of the environment from the effects of nuclear activities) to be taken with respect to nuclear activities;

(b) recommend practices and procedures that may be followed, and measures that may be taken, to further the achievement of standards referred to in paragraph (a);

(c) make provision for and in relation to the prohibition of the doing of an act or thing that is, in whole or in part, a nuclear activity;

(d) make provision for and in relation to the licensing and supervising of nuclear activities;

(e) make provision for and in relation to the giving of directions to particular persons for the purposes of the code;

(f) make provision for and in relation to exemptions from the application of any provision of the code; and

(g) make special provision for and in relation to the protection of the health and safety, and the training, examination and certification, of persons who because of their work or professional activity are involved in nuclear activities.

 

(4) A code of practice shall not

(a) make provision for or in relation to the establishment or maintenance of a system of accounting for or control of substances as required by the Safeguards Agreement;

(b) make any other provision for or in relation to measures designed to prevent or detect the diversion of prescribed substances for use for non-peaceful or explosive purposes; or

(c) make any provision that is inconsistent with the obligations of Australia under

(i) the Safeguards Agreement; or

(ii) any other agreement between Australia and the International Atomic Energy Agency, another international organization or another country, being an agreement that makes provision of the kind referred to in paragraph (b).

 

 

(5) In sub-section (4), the “Safeguards Agreement” means the agreement between Australia and the International Atomic Energy Agency signed in Vienna on 10 July 1974, being the agreement known as the Agreement for the Application of Safeguards in connexion with the Treaty on the Non-Proliferation of Nuclear Weapons, or, if that Agreement is amended, that Agreement as amended and in force from time to time.

(6) An order under sub-section (1) shall specify a date, not being earlier than 6 months after the date of the making of the order, as the prescribed date, in relation to the order, for the purposes of section 12.

Codes of practice to be notified and may be disallowed

10. (1) Where an order is made by the Governor-General under sub-section 9 (1)

(a) notice of the order having been made, and of the place where copies of the order can be purchased, shall be published in the Gazette within 30 days after the making of the order; and

(b) a copy of the order shall be laid before each House of the Parliament within 15 sitting days of that House after the making of the order.

 

(2) If a notice in relation to an order is not published in the Gazette in accordance with paragraph (1)(a) or a copy of an order is not laid before each House of the Parliament in accordance with paragraph (1)(b), this Act has effect as if the order had not been made.

 

(3) If either House of the Parliament, in pursuance of a motion of which notice has been given within 15 sitting days after a copy of an order has been laid before that House, passes a resolution disallowing the order either wholly or in so far as it relates to a part of the code or of the variations of a code approved by the order, this Act has effect as if the order had not been made, or as if that part of the code or of the variations of the code had not been approved by the order, as the case requires.

 


 

(4) If, at the expiration of 15 sitting days after notice of a motion to disallow an order, either wholly or in so far as it relates to a part of the code or of the variations of a code approved by the order, has been given in a House of the Parliament, being notice given within 15 sitting days after a copy of the order has been laid before that House

(a) the notice has not been withdrawn and the motion has not been called on; or

(b) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of,

this Act has effect as if the order had not been made, or as if that part of the code or of the variations of the code had not been approved by the order, as the case requires.

 

(5) If, before the expiration of 15 sitting days after notice of a motion to disallow an order, either wholly or in so far as it relates to a part of the code or of the variations of a code approved by the order, has been given in a House of the Parliament

(a) that House is dissolved or, being the House of Representatives, expires, or the Parliament is prorogued; and

(b) at the time of the dissolution, expiry or prorogation, as the case may be

(i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of,

a copy of the order shall, for the purposes of sub-sections (3) and (4), be deemed to have been laid before that House on the first sitting day of that House after the dissolution, expiry or prorogation, as the case may be.

PART IV—IMPLEMENTATION OF CODES OF PRACTICE

Application in Commonwealth places of State law giving effect to code of practice

11. (1) The regulations may provide that a specified provision or specified provisions of a law of a State, being a provision or provisions relating to the regulation or control of nuclear activities in the manner prescribed by a code of practice approved by an order under sub-section 9 (1) (including a code of practice as varied by orders approved under that sub-section)

(a) shall not apply in or in relation to all places in that State that are Commonwealth places, or in or in relation to a specified place in that State that is a Commonwealth place or specified places in that State that are Commonwealth places; or

(b) shall apply in and in relation to all places in that State that are Commonwealth places, or in and in relation to a specified place in that State that is a Commonwealth place or specified places in that State that are Commonwealth places, subject to such modifications as are specified in the regulations.

 

(2) A reference in sub-section (1) to a Commonwealth place shall be read as a reference to a place in a State with respect to which the Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order and good government of the Commonwealth.

 

Regulations for carrying out or giving effect to codes of practice

12. (1) Where, after the prescribed date specified in an order under sub-section 9(1) approving a code of practice, the Governor-General is of the opinion that the laws of a State or Territory do not make provision for regulating or controlling nuclear activities in that State or Territory in the manner prescribed by the code, or those laws make provision for regulating or controlling nuclear activities in that State or Territory in part only in the manner prescribed by the code, the regulations may make provision necessary or convenient for carrying out or giving effect to, or for securing the observance of, the code, in whole or in part, in that State or Territory.

 


 

(2) Where, after the prescribed date specified in an order under subsection 9(1) approving variations of a code of practice, the Governor-General is of the opinion that the laws of a State or Territory do not make provision for regulating or controlling nuclear activities in that State or Territory in the manner prescribed by the code as varied by the order, or those laws make provision for regulating or controlling nuclear activities in that State or Territory in part only in the manner prescribed by the code as varied by the order, the regulations may make provision necessary or convenient for carrying out or giving effect to, or for securing the observance of, the code, in whole or in part, in that State or Territory.

 

(3) The laws of a State or Territory shall not be taken not to make provision for regulating or controlling nuclear activities in that State or Territory in the manner prescribed by a code of practice by reason that those laws do not recommend practices, procedures and measures referred to in paragraph 9(3)(b) or make provision for carrying out or giving effect to, or for securing the observance of, those practices, procedures and measures.

 

(4) Regulations made in pursuance of sub-section (1) or (2) may make provision for carrying out or giving effect to, or for securing the observance of, a code of practice in a State or Territory by providing that all or some of the provisions of the code of practice (either with or without modifications specified in the regulations) are to have the force of law in the State or Territory.

 

(5) Regulations made in pursuance of sub-section (1) or (2) that make provision for carrying out or giving effect to, or for securing the observance of, a code of practice in a State or Territory do not cease to have effect by reason that, after the making of the regulations, the laws of that State or Territory make provision for regulating or controlling nuclear activities in that State or Territory, in whole or in part, in the manner prescribed by the code.

 

(6) Where regulations made in pursuance of sub-section (1) or (2) make provision for carrying out or giving effect to, or for securing the observance of, a code of practice in a State or Territory

(a) the regulations may provide that they are intended to deal exhaustively with a matter or the matters to which they relate, and the regulations have effect accordingly; and

(b) except to the extent required by a provision so made, this section and the regulations shall not be construed as intended to exclude or limit the operation of the provisions of any law of a State or Territory in so far as those provisions are capable of operating concurrently with the regulations.

 

(7) Regulations made in pursuance of sub-section (1) or (2) that make provision for carrying out or giving effect to, or for securing the observance of, a code of practice continue in force, subject to any later regulations, notwithstanding approval by an order under sub-section 9(1) of any variation of that code after the making of the regulations.

 

(8) A reference in sub-section (2), (3), (4), (5), (6), (7) or (10) to a code of practice shall, where variations of a code of practice have been approved by an order or orders under sub-section 9(1), be read as a reference to the code of practice as varied by the order or orders.

 

(9) On the prescribed date specified in an order under sub-section 9(1) revoking a code of practice or a variation of a code of practice, any regulations that make provision for carrying out or giving effect to, or for securing the observance of, the code or the variation, as the case may be, cease to have effect and shall be deemed to have been repealed.

 

(10) Regulations shall not be made in pursuance of sub-section (1) or (2) for carrying out or giving effect to, or for securing the observance of, a code of practice in a State unless the Governor of the State has requested the Governor-General to make regulations for carrying out or giving effect to, or for securing the observance of, that code of practice in the State.


 

Operation of regulations

13. (1) Regulations made in pursuance of section 12 have effect as provided by this section, and not otherwise.

(2) Regulations referred to in sub-section (1) have effect

(a) in relation to nuclear activities

(i) carried on by or on behalf of the Commonwealth or an authority of the Commonwealth;

(ii) carried on for the purposes of, or in the course of, trade or commerce with other countries or among the States;

(iii) carried on for purposes related to the defence of the Commonwealth, including, without limiting the generality of the foregoing, the purpose of ensuring the availability in Australia at all times of sources of energy for uses essential to the life of the community;

(iv) carried on by foreign corporations;

(v) carried on by trading corporations formed within the limits of the Commonwealth for the purposes of, or in the course of, their trading activities;

(vi) carried on in, or in connexion with, a Territory; or

(vii) carried on in the territorial sea of Australia; and

(b) in relation to nuclear activities to the extent that the regulations are necessary or convenient for carrying out the obligations of the Commonwealth under, or the exercise by the Commonwealth of rights under, agreements or arrangements between Australia and other countries, agreements or arrangements between Australia and international organizations or decisions of international organizations.

 

(3) Regulations made in pursuance of section 12 may provide that, in addition to having effect as provided in sub-section (2) of this section, the regulations have effect as specified in the regulations if the conferring of power to make regulations having such an effect is within the powers of the Parliament.

PART V—MISCELLANEOUS

Orders by Governor-General to deal with special situations

14. (1) Where the Governor-General is satisfied that

(a) the health or safety of persons, or the environment, is likely to be harmed by a situation resulting from a nuclear activity that exists in a State or Territory; and

(b) the laws of the Commonwealth (other than this section) and of that State or Territory do not make provision for protecting the health or safety or persons likely to be affected by that situation, or for protecting the environment in so far as it is likely to be affected by that situation,

he may, by order, authorize a Minister, during the period that the order remains in force, to give such directions and take such actions as, subject to sub-section (2), the Minister considers necessary to control and eliminate hazards associated with the situation.

 

(2) An order under sub-section (1) may specify terms and conditions to which the authority given by the order is to be subject.

 

(3) Subject to sub-section (4), an order under sub-section (1), unless earlier revoked, remains in force until the expiration of the period of 3 months after the day of the making of the order.

 

(4) The Governor-General may, if he is satisfied that it is necessary to do so, by order, direct that an order under sub-section (1) shall remain in force for such further period as is specified in the order, not being a period extending beyond the expiration of 6 months after the day on which that order under sub-section (1) was made.

 

(5) A person who refuses or fails to comply with any direction given by a Minister in pursuance of an order under sub-section (1), or hinders or obstructs the taking of any action in pursuance of such an order, is guilty of an offence and is punishable, upon conviction, by a fine not exceeding $ 1,000, or imprisonment for a period not exceeding 6 months, or both.

 

(6) Sections 48, 49, 49A and 50 of the Acts Interpretation Act 1901 apply to orders made under sub-sections (1) and (4) as if references in those sections to regulations were references to such orders.

 

(7) An order under sub-section (1)

 

(a) has effect in relation to nuclear activities mentioned in paragraph 13(2)(a);

 

(b) has effect in relation to nuclear activities to the extent that the order is necessary or convenient for carrying out the obligations of the Commonwealth under, or the exercise by the Commonwealth of rights under, agreements or arrangements between Australia and other countries, agreements or arrangements between Australia and international organizations or decisions of international organizations; and

(c) has any additional effect mentioned in the order if the conferring of power to make an order having that effect is within the powers of the Parliament,

but does not have any other effect.

 

(8) An order made under sub-section (1) in relation to a situation resulting from nuclear activity shall not authorize a Minister to give directions that have effect in a State, or to take any action in a State, unless the Governor of the State has requested the Governor-General to make an order under that sub-section in relation to that situation.

Regulations

15. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular

(a) prohibiting the doing of an act or thing absolutely;

(b) prohibiting the doing of an act or thing except in pursuance of a licence, permit or authority, or in accordance with an approval, granted, issued or given under the regulations;

(c) making provision for and in relation to the terms and conditions to which a licence, permit, authority or approval granted, issued or given under the regulations is to be subject;

(d) making provision for and in relation to ensuring the confidentiality of information obtained in or in connexion with carrying out or giving effect to, or securing the observance of, a code of practice approved by an order under sub-section 9(1) (including a code of practice as varied by orders approved under that sub-section);

(e) making provision for and in relation to the granting of exemptions, either unconditionally or subject to conditions, from the provisions of the regulations;

(f) providing for the recovery of costs and expenses, and fixing the fees to be paid, in respect of any matters under the regulations;

(g) empowering the Minister or other persons to give directions to particular persons for the purposes of the regulations;

(h) empowering the Minister to make provision by order with respect to any matter with respect to which provision can be made by the regulations; and

(j) prescribing the manner in which notices, orders, directions or instructions under the regulations may be given or in which documents may be served.

 

(2) Offences against the regulations may be prosecuted

(a) on indictment; or

(b) if the defendant and the prosecutor consent and the court is satisfied that it is proper to do so—summarily.

(3) The regulations may, in respect of offences against the regulations

(a) provide for a penalty

(i) upon summary conviction—of a fine not exceeding $2,000, or imprisonment for a period not exceeding 1 year, or both, and, in the case of a continuing offence, for a further fine not exceeding $2,000 for each day after the first day on which the offence is found to have been committed during which the offence is found to have continued; and

(ii) upon conviction otherwise than summarily—of a fine not exceeding $50,000, or imprisonment for a period not exceeding 5 years, or both, and, in the case of a continuing offence, for a further fine not exceeding $50,000 for each day after the first day on which the offence is found to have been committed during which the offence is found to have continued; and

(b) provide that, in the case of an offence constituted by a failure to do an act within a specified period or not later than a specified time, a person convicted of the offence is guilty of a separate and further offence against the regulations in respect of each day after the day of the conviction during which the failure to do that act continues (notwithstanding that that period has expired or that time has passed) and is punishable in respect of each such separate and further offence

(i) upon summary conviction—by a fine not exceeding $2,000; and

(ii) upon conviction otherwise than summarily—by a fine not exceeding $50,000.

(4) Sections 48, 49, 49a and 50 of the Acts Interpretation Act 1901 apply to orders made in pursuance of regulations made by virtue of paragraph (1)(h) of this section as if references in those sections to regulations were references to such orders and references in those sections to an Act included a reference to regulations.

(5) For the purposes of sub-sections (2) and (3), a contravention of, or failure to comply with, an order made under the regulations shall be deemed to be an offence against the regulations.