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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN RADIOACTIVE WASTE AGENCY BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Water,
the Hon Keith Pitt MP)
AUSTRALIAN RADIOACTIVE WASTE AGENCY BILL 2022
OUTLINE
The purpose of the Australian Radioactive Waste Agency Bill 2022 (the Bill) is to establish
the Australian Radioactive Waste Agency (the Agency) as a non-corporate Commonwealth
entity. The Bill includes administrative and foundational provisions and sets out the Agency's
functions.
The Agency will have specialised expertise in the safe management of radioactive waste.
Some of the Agency's functions relate to the establishment and operation of the National
Radioactive Waste management Facility (NRWMF) pursuant to the National Radioactive
Waste Management Act 2012 (the NRWM Act) and management of controlled material at
that facility.
The Bill also outlines the Agency's broader functions as a dedicated radioactive waste
management agency. A number of these functions refer to 'radioactive material' - this
material may be radioactive waste, or radioactive material that is destined to be waste or
otherwise has waste implications. The primary purpose of the Agency's functions are to assist
Australia to meet obligations articulated in the Joint Convention on the Safety of Spent Fuel
Management and on the Safety of Radioactive Waste Management, done at Vienna on 5
September 1997, and as amended and in force for Australia (the Joint Convention). The
Agency's functions will be performed with regard to the scope and limit of its technical
expertise in the waste management of radioactive material and with regard to the role and
functions of other nuclear agencies and regulators such as the Australian Radiation Protection
and Nuclear Safety Agency (ARPANSA) and the Australian Nuclear Science and
Technology Organisation (ANSTO).
FINANCIAL IMPACT STATEMENT
The Bill has minimal financial impact. The government has allocated $106m over four years,
from 2020-21, to establish the Agency and progress the program of work to build the facility.
In 2021 the government agreed to adjust the funding allocation to build the corporate
capabilities needed to operate an NCE and consistent with the revised program schedule,
resulting in a net zero impact on underlying cash.
CONSULTATION
This Bill is supported by a consultation process, which included engagement with the
following stakeholders:
• State and Territory Regulators, as follows:
− ACT Health;
− South Australia Environment Protection Authority;
− NSW Environment Protection Authority;
− Victoria Department of Health and Human Services;
− Queensland Department of Health;
− Tasmania Department of Health;
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− Western Australia Department of Health;
− Northern Territory Department of Health;
• SA Government - Department of Mining and Energy;
• Sutherland Shire Council;
• Kimba Consultative Committee;
• Kimba Council;
• Attorney-General's Department;
• Department of Finance;
• Department of the Prime Minister and Cabinet;
• Department of Defence;
• Department of Health;
• Department of Agriculture, Water and the Environment;
• Department of Infrastructure, Transport, Regional Development and Communications;
• Australian Radiation Protection and Nuclear Safety Agency (ARPANSA);
• Australian Nuclear Science and Technology Organisation (ANSTO);
• Australian Safeguards and Non-Proliferation Office (ASNO);
• Commonwealth Scientific and Industrial Research Organisation (CSIRO);
• Geoscience Australia; and
• the Treasury.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Radioactive Waste Agency Bill 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Australian Radioactive Waste Agency Bill 2022 (the Bill) contains administrative and
foundational provisions that establish the Australian Radioactive Waste Agency (the Agency)
as a non-corporate Commonwealth entity and sets out the Agency's functions.
The Agency will be authorised to conduct activities under section 23 of the National
Radioactive Waste Management Act 2012 and manage controlled material at the National
Radioactive Waste Management Facility at the selected site.
The Agency's broader remit is to be an agency dedicated to the safe management of all
radioactive material that may have waste implications for Australia. Its other functions will
include policy development, providing technical advice to government and other entities,
public education and research. The Agency will maintain a national inventory of radioactive
material.
Radioactive waste in Australia is predominantly by-products of nuclear medicine, which
every Australian is likely to benefit from in their lifetime.
Establishing an agency with expertise in all aspects of radioactive waste management ensures
Australia's ability to meet its obligations under the Joint Convention on the Safety of Spent
Fuel Management and on the Safety of Radioactive Waste Management done at Vienna on 5
September 1997, as amended and in force for Australia from time to time.
Human rights implications
This Bill engages the following rights:
• Right to benefit from scientific progress and its applications -Article 15 of the
International Covenant of Economic, Social and Cultural Rights (ICESCR)
• Right to health - Article 12 of ICESCR
Right to benefit from scientific progress and its applications
The ongoing advancement of scientific and technical knowledge allows citizens to benefit
from best-practice radioactive waste management into the future, including the development
of optimal intermediate level waste management solutions and research into alternatives to
disposal such as recycling.
People will also continue to benefit from the delivery of nuclear medicine and any scientific
progress made in that field, as waste management is a crucial component of the nuclear
medicine cycle.
The Bill promotes and protects the right to benefit from scientific progress and its
applications.
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Right to health
Positive recognition of this right is achieved by creation of conditions that ensure access to
medical services in the event of sickness.
The safe and sustainable management of radioactive waste by a dedicated agency ensures
people in Australia will continue to benefit from the delivery of nuclear medicine, as waste
management is a crucial component of the nuclear medicine cycle.
In accordance with regulatory requirements, the Agency will apply for and if approved hold
the relevant licences and permits required to safely manage radioactive material.
The Bill promotes and protects the right to health.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.
Minister for Resources and Water,
the Hon Keith Pitt MP
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AUSTRALIAN RADIOACTIVE WASTE AGENCY BILL 2022
NOTES ON CLAUSES
Part 1--Preliminary
Clause 1--Short title
This is a formal provision that specifies the short title of the Act as the Australian
Radioactive Waste Agency Act 2022.
Clause 2--Commencement
This clause provides that the Act will commence on the day on which it is proclaimed or, if
the Bill is not proclaimed within 6 months from the day it receives Royal Assent, it will
commence to operate on the day following the end of that period.
Commencement by proclamation or default commencement will allow the necessary
arrangements to support the Machinery of Government changes including the industrial
arrangements and the commissioning of corporate systems to ensure the Agency will
transition to an NCE within minimal disruption to workflow.
Clause 3--Simplified outline of this Act
This clause provides a simplified overview of the contents of this Act as a guide to the reader.
This clause is not a substantive provision.
Clause 4--Definitions
This clause sets out the definitions of terms that are relied on in other provisions throughout
the Act.
Key definitions include:
Controlled material has the same meaning as in the National Radioactive Waste
Management Act 2012 (NRWM Act). The Agency will be the operator of the National
Radioactive Waste Management Facility and will manage controlled material at the selected
site. Controlled material does not include high level waste or spent nuclear fuel.
Joint Convention has the same meaning as in the NRWM Act. The Agency will give effect
to Australia's obligations under the Joint Convention in carrying out its functions.
Transportation, when referring to waste material, is limited to transportation to or from a
facility at the selected site or to another location for the purposes of waste management (for
example, for conditioning). Including this definition ensures that references to transportation
in the Bill fall within the relevant head of power. The Agency will not have a role in the
transportation of radioactive material that is not waste material and will only have functions
relating to transportation where the final destination is to a radioactive waste management
facility.
Waste material is radioactive waste that has been used in Australia, generated by activities in
Australia, or sent to Australia under contractual arrangements relating to the conditioning or
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reprocessing of ANSTO spent nuclear fuel. This definition limits radioactive waste to
domestic waste and is used in relation to transportation in the Bill.
Clause 5--Meaning of radioactive material
Radioactive material is defined broadly to include any such material to which the Agency's
functions may relate, including high level waste or spent fuel. It is not limited to radioactive
waste as defined in the Joint Convention and used in some parts of the Act. The use of
'radioactive material' in the Agency's functions allows the Agency to effectively fulfil its
role as a specialist radioactive waste agency as it allows for the functions to apply to material
that is not yet waste. For example, aside from existing radioactive waste, the Agency may
provide technical advice on the management of radioactive material that may have waste
implications for Australia at some point in time. The Agency may also conduct research into
alternatives to disposal of radioactive material.
Clause 6--Meaning of waste management of radioactive material
As it relates to radioactive material that has no further use (i.e. is already waste), waste
management includes activities such as handling, pre-treatment, treatment, conditioning,
storage, disposal or discharge of radioactive material but does not include transportation of
the material.
As it relates to radioactive material before it has reached the stage of having no further use,
waste management refers to the activities (handling, pre-treatment, treatment, conditioning,
storage, disposal or discharge) that will occur at a time when the material has no further use.
Part 2--Establishment and functions of the Australian
Radioactive Waste Agency
Clause 7--Simplified outline of this Part
This clause provides a simplified overview of the contents of this Part as a guide to the
reader. This clause is not a substantive provision.
Clause 8--Establishment of Agency
This clause has the effect of establishing the Agency as a listed entity for the purposes of the
finance law.
Subparagraph 8(2)(c)(iii) provides that consultants engaged under Clause 25 are officials of
the Agency to ensure that, given the sensitivity and safety considerations required to carry out
the Agency's functions, consultants will be subject to the same duties imposed on
Commonwealth officials.
Clause 9--Constitution of the Agency
This clause provides that the Agency comprises the CEO and the Agency's staff.
Clause 10--Functions of the Agency
This clause lists the functions of the Agency, which are intended to operate as described in
the following paragraphs.
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Paragraph 10(1)(a)
The Agency is a Commonwealth entity for the purposes of subsection 23(1) of the NRWM
Act and is thereby authorised to do the activities specified in section 23 in relation to the
selected site.
Paragraph 10(1)(b)
The Agency will be responsible for the safe and secure management of controlled material at
a facility at the site selected and established pursuant to the NRWM Act. Controlled material
has the same definition as in the NRWM Act and does not include high level waste or spent
fuel.
In managing controlled material at a facility, the Agency may conduct activities that relate to
the handling, pre-treatment, treatment, conditioning, storage, or disposal of controlled
material. The Agency may also conduct planned and controlled discharges of radioactive
material from the facility that are authorised by regulatory bodies and conduct
decommissioning activities.
Waste Acceptance Criteria (WAC) will be developed by the Agency in cooperation with
domestic waste producers, consistent with international best practice, to ensure that
controlled material can be safely managed. It is intended that the WAC will set out criteria
that must be met before controlled material is accepted at the facility.
The Agency may occasionally manage a small amount of controlled material that is not
radioactive waste. This may include, for example, calibrating materials used to check
dosimetry equipment or material that is being stored but not yet disposed of.
Paragraph 10(1)(c)
The Portfolio Department retains overall administrative responsibility for policy for
government on waste management of radioactive material.
The Agency will work collaboratively with the Portfolio Department to provide specialist
input into the development and implementation of policies relating to the safe waste
management of radioactive material and transportation of waste material. This will not
include policy on regulatory, licensing or environmental frameworks or requirements specific
to radioactive waste management.
The policy development function will include the identification and development of future
waste disposal pathways.
Paragraph 10(1)(d)
The Agency will provide advice to the Minister on matters relating to waste management of
radioactive material that are within the scope of its technical expertise in the safe
management of radioactive waste.
This may include advice regarding the handling, pre-treatment, treatment, conditioning, or
disposal of radioactive material that has no further use (i.e. has become waste) for waste
management purposes. The Agency may also provide advice relating to storage, handling,
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pre-treatment, treatment, conditioning, or disposal of radioactive material at a time when no
further use is foreseen.
The Agency may also give advice about transportation of waste material or advice on the
siting, design, construction and operation of facilities for the waste management of controlled
material and radioactive material.
This will not include advice on regulatory, licensing or environmental frameworks or
requirements, specific to radioactive waste management.
Paragraph 10(1)(e)
The Agency may give waste management advice to Commonwealth entities and people who
generate, possess and control radioactive material.
This may include advice regarding the handling, pre-treatment, treatment, conditioning, or
disposal of radioactive material that has no further use (i.e. has become waste) for waste
management purposes. The Agency may also provide advice relating to storage, handling,
pre-treatment, treatment, conditioning, disposal of radioactive material at a time when no
further use is foreseen, or on the transportation of waste material to a waste management
facility.
This does not include regulatory advice or advice relating to licence conditions which is the
responsibility of the relevant regulators.
Paragraph 10(1)(f)
The Agency will develop educative material on how radioactive material is managed and
transported to and from a radioactive waste management facility, how any environmental
impacts are managed, and other topics of interest or significance to the public that directly
relate to the safety of a radioactive waste facility.
Paragraph 10(1)(g)
The Agency may engage with foreign entities for the purposes of information and knowledge
sharing regarding radioactive waste management, exchange of goods and services relating to
radioactive waste management or to develop a skilled workforce. This may include reciprocal
staff secondment programs with overseas agencies, peer review or other consultation.
Paragraph 10(1)(h)
The Agency will continue to identify opportunities to build capacity in waste management of
Australia's radioactive material. This will include research and development activities. The
Agency's ongoing research will assist it to develop best practice waste management pathways
for Australia's radioactive material from production through to disposal. The Agency may
conduct or coordinate research into new and emerging nuclear technologies that may have
waste implications and alternatives to disposal of radioactive material. This may include
providing assistance, engaging in knowledge-sharing, or identifying other entities that might
take part in research and development opportunities.
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Paragraph 10(1)(i)
The Agency will maintain an inventory that will be Australia's database of Australian legacy
and future radioactive waste holdings, using information provided by waste producers and
waste holders. It will detail categories of waste which will assist waste holders to categorise
their own waste streams. For the purposes of the inventory, the Agency may collect
information on radioactive material that is destined to be waste in order to advise on future
waste management requirements and activities.
The Agency will work with waste producers to collect the information acquired for the
inventory.
A summary of the inventory will be published in the annual report.
Paragraph 10(1)(j)
The Agency will be the secretariat for the Regional Consultative Committee established
under section 22 of the NRWM Act and provide operational support to that committee.
Paragraph 10(1)(k)
Any other functions conferred on the Agency, either by this Act or its rules or by any other
law of the Commonwealth, are functions of the Agency.
Paragraph 10(1)(l)
The Agency has the power to carry out lawful activities which are incidental to its express
statutory functions so that it can achieve those functions.
Subclause 10(2) is an ancillary power to enable the Agency to do anything necessary or
convenient for, or in connection with the performance of its functions.
Clause 11--Minister may give directions to the Agency
Under subclause 11(1), directions given by the Minister to the Agency must be by legislative
instrument. Given this requirement, the Minister may choose to consult with the CEO before
giving a direction to determine if a direction is required, or if the same outcome can be
achieved without a direction.
The note to this subclause clarifies that disallowance and sunsetting do not apply to these
directions. This note refers to the standing exemptions in the Legislation (Exemptions and
Other Matters) Regulation 2015 found at item 2 in the table at section 9 (which identifies
classes of legislative instruments that are not subject to disallowance), and item 3 in the table
at section 11 (which identifies classes of legislative instruments that are not subject to
sunsetting).
Under subclause 11(2), a direction given under subclause 11(1) must be a 'general' direction,
which may include a direction that relates to broader government policy (for example a
direction to undertake research on a particular aspect of radioactive waste management).
General directions are not intended to be directions about operational, technical, scientific
matters that require highly specialised knowledge and expertise.
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Subclause 11(3) provides that the Agency's compliance with a Ministerial direction is
mandatory.
Part 3--Chief Executive Officer and staff etc.
Division 1--Introduction
Clause 12--Simplified outline of this Part
This clause provides a simplified overview of the contents of this Part as a guide to the
reader. This clause is not a substantive provision.
Division 2--Appointment and functions of CEO
Clause 13--Chief Executive Officer
This clause provides that there is to be a Chief Executive Officer (CEO) of the Agency.
Clause 14--Functions of the CEO
This clause sets out the functions of the CEO, which are to manage the affairs of the Agency
and to ensure that the Agency performs its functions. The CEO may do things necessary or
convenient to be done for, or in connection with, the performance of the CEO's functions.
Clause 15--Minister may give directions to the CEO
Under subclause 15(1), directions may be given to the CEO by the Minister about the
performance of the CEO's functions, which are managing the affairs of the Agency and
ensuring the Agency performs its functions.
The note to this subclause clarifies that disallowance and sunsetting do not apply to these
directions. This note refers to the standing exemptions in the Legislation (Exemptions and
Other Matters) Regulation 2015 found at item 2 in the table at section 9 (which identifies
classes of legislative instruments that are not subject to disallowance), and item 3 in the table
at section 11 (which identifies classes of legislative instruments that are not subject to
sunsetting).
Subclause 15(2) requires the CEO to comply with a direction given under subclause 15(1).
Subclause 15(3) provides that subclause 15(2) does not apply where the direction relates to
the CEO's performance of functions or exercise of powers under the Public Service Act 1999
and the Public Governance, Performance and Accountability Act 2013 in relation to the
Agency.
Clause 16--Appointment of CEO
Subclause 16(1) provides that the CEO is appointed by the Minister by written instrument on
a full-time basis.
Subclause 16(2) provides that the CEO holds office for the period specific in the instrument
of appointment and that the period must not exceed 5 years.
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The note to subclause (2) clarifies that the CEO may be reappointed pursuant to section
33AA of the Acts Interpretation Act 1901, which states that if an Act confers on a person or
body a power to make an appointment, the power is taken to include a power of
reappointment.
Clause 17--Acting appointments
This clause provides that the Minister may, by written instrument, appoint an acting CEO in
circumstances where there is a vacancy or the CEO is absent or is otherwise unable to
perform the duties of the office.
Sections 33AB and 33A of the Acts Interpretation Act 1901 apply to appointments under this
clause.
Division 3--Terms and conditions of appointment of CEO
Clause 18--Remuneration
This clause establishes the basis for determining the CEO's remuneration and allowances.
Subclause 18(1) provides that the CEO is to be paid the remuneration that is determined by
the Remuneration Tribunal. Where there is no determination of that remuneration by the
Tribunal in operation, then the CEO is to be paid the remuneration prescribed by the rules.
Clause 29 of this Bill allows the Minister to make rules.
This clause provides a mechanism for the Minister to determine the CEO's remuneration on
an interim basis in the event that the Tribunal is not able to determine it before the Act comes
into force.
Subclause 18(2) provides that the CEO is to be paid such allowances as are prescribed by the
rules.
Subclause 18(3) provides that this clause has effect subject to the Remuneration Tribunal Act
1973.
Clause 19--Leave of absence
Subclause 19(1) provides that the CEO has such recreation leave entitlements that are
determined by the Remuneration Tribunal.
Subclause 19(2) enables the Minister to grant the CEO other leave of absence on such terms
and conditions as the Minister determines. The terms and conditions may include those
relating to remuneration.
Clause 20--Engaging in other paid work
This clause provides that the CEO must not engage in any paid employment outside the
duties of the office without the Minister's approval.
Clause 21--Other terms and conditions
This clause provides that in respect of matters not specifically provided for by this Act, the
CEO holds office on such terms and conditions (if any) as determined by the Minister.
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Clause 22--Resignation
This clause provides that the CEO may resign by giving the Minister a written resignation,
which takes effect on the day it is received by the Minister or on a later day specified in the
resignation.
Clause 23--Termination of appointment
Subclause 23(1) provides that the Minister may terminate the appointment of the CEO for
misbehaviour or mental incapacity.
Under subclause 23(2), the Minister may terminate the CEO's appointment if the CEO does
any of the things listed in paragraphs 23(2)(a) to (d). This includes becoming bankrupt,
compounding with his or her creditors, assigning the CEO's remuneration for the benefit of
the CEO's creditors, being absent from duty (except on leave of absence) for 14 consecutive
days, or for 28 days in any period of 12 months, engaging in paid work outside of the duties
of the CEO's office without the Minister's approval or failing to comply with section 29 of
the Public Governance, Performance and Accountability Act 2013 (or rules made for the
purposes of that section), which deals with the duty to disclose interests.
Division 3--Staff etc.
Clause 24--Staff
Subclause 24(1) provides that staff of the Agency are to be persons appointed or employed
under the Public Service Act 1999.
Subclause 24(2) provides that for the purposes of the Public Service Act 1999, the CEO and
APS employees assisting the CEO are a statutory agency of which the CEO is the Head.
Clause 25--Consultants
This clause empowers the CEO to engage consultants to provide services in connection with
the functions of the Agency. Consultants are engaged under the terms and conditions
specified by the CEO in writing.
Clause 26--Persons assisting the Agency
This clause provides that officers and employees of other Public Service Agencies, officers or
employees of a State or Territory or officers or employees of authorities of the
Commonwealth or of a State or Territory may assist the Agency in the performance of any of
its functions. Persons assisting the Agency are subject to the directions of the CEO when
providing those services.
Part 4--Miscellaneous
Clause 27--Simplified outline of this Part
This clause provides a simplified overview of the contents of this Part as a guide to the
reader. This clause is not a substantive provision.
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Clause 28--Delegation by CEO
This clause empowers the CEO to delegate the CEO's functions or powers to an SES or
acting SES employee who is a staff member of the Agency.
As an SES or acting SES employee of the Agency, the proposed delegate will have sufficient
knowledge of the CEO's role necessary to perform the functions or exercise the delegated
power.
Clause 29--Rules
This clause enables the Minister to make rules prescribing matters required or permitted by
this Act or necessary or convenient to be prescribed for carrying out or giving effect to
matters in the Act. The rules are a legislative instrument, subject to disallowance and
sunsetting.
Subclause 29(2) provides what the rules may not do, which includes: create an offence or
civil penalty; provide powers of arrest or detention or entry, search or seizure; impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund under an
appropriation in this Act; and directly amend the text of the Act.
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