Information for stakeholders - 3. Legal Framework

This section briefly reviews Commonwealth legislation, with focus on the ARPANS Act, that is directly relevant to the protection of people and the environment from the harmful effects of radiation. Any facility for storage or disposal of radioactive waste would also be subject to other Commonwealth legislation (for example, legislation governing work health and safety, maintenance of records). There may also be circumstances where state and territory legislation become relevant.

3.1.    The ARPANS Act and Regulations

The object of the ARPANS Act is stated in section 3 of the Act:

A purple hexagon with the letters 'PO' in the middle to indicate protective objectives.
The Object of this Act is to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation.

The ARPANS Act and Regulations constitute the primary legal framework for protection of people and the environment from harmful effects of radiation at the Commonwealth level. The Minister for Health administers the ARPANS Act.

The Act establishes the office of the chief executive officer (CEO) of ARPANSA. Apart from the regulatory function, the CEO (among other things) provides services, promotes national uniformity in radiation protection and nuclear safety policy and practices across Australian jurisdictions. The CEO also undertakes research and provides expert advice on radiation protection and nuclear safety with the assistance of staff of ARPANSA, an agency within the Health portfolio.

The CEO or ARPANSA has no advocacy role in relation to the establishment of waste management facilities but acts in the interest of protection of health and safety of people, and of the environment. 
The importance of effective independence of the regulator from promoting interests is stated in the IAEA General Safety Requirements No. GSR Part 1, Governmental, Legal and Regulatory Framework for Safety.

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Requirement 4: Independence of the regulatory body, GSR Part 1

The government shall ensure that the regulatory body is effectively independent in its safety related decision making and that it has functional separation from entities having responsibilities or interests that could unduly influence its decision making.

The ARPANS Act applies only to the regulation of Commonwealth entities. Among other things, it prohibits the construction and operation of a radioactive waste storage or disposal facility unless the Commonwealth entity has been licensed to do so by the CEO of ARPANSA.

The CEO is supported by the Radiation Health and Safety Advisory Council (RHSAC) (with members and chair appointed by the Minister for Health), the Radiation Health Committee (RHC) and the Nuclear Safety Committee2(NSC). Collectively these external statutory bodies provide advice to the CEO on a variety of matters, including emerging issues related to radiation protection and nuclear safety, policies and national uniformity, matters of major concern to the community and safety of nuclear installations.

3.2.    The EPBC Act

The objects of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) are stated in section 3 of that Act:

A purple hexagon with the letters 'PO' in the middle to indicate protective objectives.

  1. to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance
  2. to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources
  3. to promote the conservation of biodiversity
  4. to provide for the protection and conservation of heritage
  5. to promote a co-operative approach to the protection and management of the environment involving governments, the community, land‑holders and indigenous people
  6. to assist in the co-operative implementation of Australia’s international environmental responsibilities
  7. to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity
  8. to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in co‑operation with, the owners of the knowledge

The EPBC Act is administered by the Minister for the Environment and Energy. It provides a basis for the Minister to decide whether a proposed action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed. It does so by prohibiting a person from taking an action without the Minister having given approval or deciding that approval is not needed. One such action is a ‘nuclear action’.  

A proposal to prepare a site for a radioactive waste storage or disposal facility could constitute a ‘nuclear action’ and would first require the Minister for the Environment and Energy’s approval. Other relevant regulatory approvals, such as approval under the ARPANS Act, must then be obtained before the action can ultimately proceed.  

The EPBC Act contains provision for how the impact of the facility must be assessed, including provisions for an environmental impact statement.

A green hexagon with the letters 'CP' in the middle to indicate concepts and principles.
What is a ‘Nuclear Action’?

Under the EPBC Act, a ‘nuclear action’ means any of the following:

  • establishing or significantly modifying a nuclear installation
  • transporting spent nuclear fuel or radioactive waste products arising from reprocessing
  • establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing
  • mining or milling uranium ore
  • establishing or significantly modifying a large-scale disposal facility for radioactive waste
  • de-commissioning or rehabilitating any facility or area in which an activity described in paragraph (a), (b), (c), (d) or (e) has been undertaken
  • any other action prescribed by the regulations.

3.3.    The Safeguards Act

The objects of the Nuclear Non-Proliferation (Safeguards) Act 1987 (the Safeguards Act) are stated in section 3 of that Act:

A purple hexagon with the letters 'PO' in the middle to indicate protective objectives.

  1. The principal object of this Act is to give effect to certain obligations that Australia has as a party to the Non Proliferation Treaty, the Agency Agreement, the Supplementary Agency Agreements and the prescribed international agreements.
  2. A further object of this Act is to give effect to certain obligations that Australia has as a party to the Physical Protection Convention.
  3. A further object of this Act is to give effect to certain obligations that Australia has as a party to the Nuclear Terrorism Convention.

The Safeguards Act is administered by the Minister for Foreign Affairs assisted by the Australian Safeguards and Non-Proliferation Office (ASNO) of the Department of Foreign Affairs and Trade (DFAT). If the radioactive waste to be handled in a radioactive waste storage or disposal facility is also nuclear material (which essentially means uranium, thorium and plutonium), the Safeguards Act will operate concurrently with the ARPANS Act so that the entity planning to establish the facility will require a permit under the terms of the Safeguards Act as well as a licence under the ARPANS Act. 
The Safeguards Act gives effect to:

  • Australia’s obligations under the Nuclear Non-Proliferation Treaty, Australia’s Comprehensive Safeguards Agreement and Additional Protocol with the International Atomic Energy Agency and to Australia’s nuclear cooperation agreements with bilateral partners
  • Australia’s obligations under the Convention on the Physical Protection of Nuclear Material
  • Australia’s obligations under the International Convention for the Suppression of Acts of Nuclear Terrorism.

Material may be exempt from the Safeguards Act if the content of relevant material is very low or the characteristics of the waste are such that the material is inaccessible.

Under Australia’s Comprehensive Safeguards Agreement with the IAEA (this is the Agency Agreement referred to in the objects of the Safeguards Act), all nuclear material in Australia is subject to IAEA safeguards and must be accounted for and controlled, and where required, reported to the IAEA. The nuclear material must be accessible to the IAEA for verification. Under certain circumstances the IAEA may agree to terminate safeguards for some forms of nuclear material.

3.4.    The NRWM Act

The object of the National Radioactive Waste Management Act 2012 (the NRWM Act) is stated in section 3 of that Act:

A purple hexagon with the letters 'PO' in the middle to indicate protective objectives.
..... to provide for:

  1. the selection of a site for a radioactive waste management facility on voluntarily nominated land in Australia
  2. the establishment and operation of such a facility on the selected site; to ensure that radioactive waste generated, possessed or controlled by the Commonwealth or a Commonwealth entity is safely and securely managed.

The NRWM Act is administered by the Minister for Industry, Innovation and Science. It provides a mechanism by which a site can be selected for the establishment and operation of a National Radioactive Waste Management Facility (NRWMF) for the safe and secure management of radioactive waste generated, possessed or controlled by the Commonwealth or a Commonwealth entity. Other Australian entities may submit waste for management at the facility, in some cases on payment of a prescribed fee.

The NRWM Act provides that, for the purpose of site selection, a number of activities are permitted in order to facilitate such selection. The EPBC Act is excluded from the operation of the NRWM Act in that regard. However, once a site is selected and the focus turns to establishing the facility, this exclusion ceases to operate. 

Early activities conducted under the NRWM Act, including selection and ranking of potential sites and characterisation of the preferred site(s), do not require a licence from ARPANSA.

The NRWM Act is specific for the establishment of the NRWMF; it does not apply to any other potential Commonwealth storage or disposal facility.

The NRWMF is not intended for waste generated overseas. However, it can receive waste that has been segregated from nuclear fuel originally used in research reactors operated by the Australian Nuclear Science and Technology Organisation (ANSTO), and subsequently reprocessed overseas.  

3.5.    National Codes and Guidance

As Australia is a federation, each state and territory, and the Commonwealth, has specific legislation governing dealings with radiation. One of the functions of the CEO of ARPANSA is to promote uniformity of radiation protection and nuclear safety policy and practices across all Australian jurisdictions.

The Australian Health Ministers’ Conference (AHMC) endorsed the development of the National Directory for Radiation Protection (NDRP) in 1999 as the means of achieving national uniformity. The RHC, established under the ARPANS Act and with regulatory members from all Australian jurisdictions (the CEO of ARPANSA is a statutory member representing the Commonwealth), prepared the NDRP for approval by AHMC. The process for issues resolution included meeting the Council of Australian Governments (COAG) requirements for national standard setting.

ARPANSA publishes the Radiation Protection Series (RPS), which is a suite of publications outlining nationally agreed codes and guidance. The RPS is developed in collaboration with state and territory regulators through the RHC. Some older codes and guidance issued by the National Health and Medical Research Council (NHMRC), and published in its Radiation Health Series (RHS), are still in use.

3.6.    ARPANSA’s Regulatory Guides

ARPANSA has published Regulatory Guides (see section 6.2.2) in order to assist applicants for a licence under the ARPANS Act in providing relevant information with their applications, and to assist licence applicants, licence holders and stakeholders more broadly  in understanding the regulatory requirements. One example is the Regulatory Guide on Applying for a licence for a radioactive waste storage or disposal facility, to which this Information for Stakeholders is a companion document.


http://www.arpansa.gov.au/aboutus/committees