Radiation Safety Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

Yes

In November 2002, the discussion paper A Review of the New Zealand Radiation Protection Legislation: A Discussion Document was released.In June 2003,a summary of submissions on the discussion document was published. These documents are available on the Ministry of Health website.

(www.health.govt.nz/about-ministry/legislation-and-regulation/regulatory-impact-statements/proposed-changes-radiation-protection-legislation)

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

Yes

Enactment of the Bill will complete New Zealand’s domestic implementation of the International Convention for the Suppression of Acts of Nuclear Terrorism and the Amendment to the Convention on the Physical Protection of Nuclear Material by enhancing a physical protection regime for nuclear material as required by the two instruments. The phrase ‘physical protection’ refers to storage requirements and other safeguards for nuclear material. Other obligations under the Convention and the Amendment, such as those relating to mutual legal assistance and the establishment of new criminal offences, have already been implemented through amendments to the Terrorism Suppression Act 2002 and the Mutual Assistance in Criminal Matters Act 1992.

The International Convention for the Suppression of Acts of Nuclear Terrorism was opened for signature in New York on 14 September 2005. The full text of the Convention is accessible at (www.un.org/en/sc/ctc/docs/conventions/Conv13.pdf)

The Amendment to the Convention on the Physical Protection of Nuclear Material was adopted in Vienna on 8 July 2005. The full text of the Amendment is accessible at (www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf)

By overhauling New Zealand’s framework for the safe and secure use of nuclear materials, the Bill will also have a bearing on other international treaties with nuclear safety, security or non-proliferation dimensions, to which New Zealand is already party. These include New Zealand’s nuclear safeguards agreements with the International Atomic Energy Agency.

2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty?

Yes

International Convention for the Suppression of Acts of Nuclear Terrorism: National Interest Analysis, prepared in 2006 by the Ministry of Foreign Affairs and Trade. The National Interest Analysis is annexed to the Report of the Foreign Affairs, Defence and Trade Committee on its international treaty examination of the Convention, presented on 21 July 2006, accessible at (www.parliament.nz/resource/0000004793)

Amendment to the Convention on the Physical Protection of Nuclear Material: National Interest Analysis, prepared in 2006 by the Ministry of Foreign Affairs and Trade. The National Interest Analysis is annexed to the Report of the Foreign Affairs, Defence and Trade Committee on its international treaty examination of the Amendment, presented on 21 July 2006, accessible at (www.parliament.nz/resource/0000004795)

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

Yes

Regulatory Impact Statement: Proposed Changes to Radiation Protection Legislation, Ministry of Health, 2004, (RIS) was provided with the papers considered by the Cabinet Social Development Committee [SDC (04) 129 refers]. The RIS is available on the Ministry of Health website:

(www.health.govt.nz/about-ministry/legislation-and-regulation/regulatory-impact-statements/proposed-changes-radiation-protection-legislation)

and on the Treasury website:

(www.treasury.govt.nz/publications/informationreleases/ris)

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

No

RIA Team opinion was not a requirement in 2004. 

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

Yes

The 2004 RIS was prepared based on the policy proposals at that time. The scope of the Bill was modified in 2009 with the decision to exclude coverage of non-ionising radiation. The RIS did not, however, include specific discussion of costs, or benefits, associated with regulation of non-ionising radiation. It stated that there “…will not initially be any costs associated with non-ionising radiation because the Australian National Directory of Standards has not yet prescribed any particular apparatus that needs to be controlled.” The only example of a non-ionising apparatus that the RIS identified as likely to require future control was high-powered lasers (issues relating to hand-held high power lasers have now been addressed by the Health (High-power Laser Pointers) Regulations 2013). The change in scope arising from the 2009 decision was considered to be of a minor and machinery nature, such that a further RIS was not warranted. Officials confirm that the statement of the net benefits discussed in the 2004 RIS, including total regulatory costs and benefits, are almost all associated with ionising radiation. Therefore, the conclusions reached in the RIS are not affected by the decision to exclude non-ionising radiation.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

No

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

Yes

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

No

The size of potential costs and benefits is discussed in the RIS: Regulatory Impact Statement: Proposed Changes to Radiation Protection Legislation, Ministry of Health, 2004, which was provided with the papers considered by the Cabinet Social Development Committee [SDC (04) 129]. The RIS is available at the Ministry of Health website:

(www.health.govt.nz/about-ministry/legislation-and-regulation/regulatory-impact-statements/proposed-changes-radiation-protection-legislation)

and at the Treasury website:

(www.treasury.govt.nz/publications/informationreleases/ris)

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be affected by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

Yes

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

Yes

The costs and benefits identified in the RIS were based on continued very high levels of compliance with slightly higher levels of regulator effort to meet increased regulatory requirements and to implement source licences (the new licence type).

The RIS is available at the Ministry of Health website:

(www.health.govt.nz/about-ministry/legislation-and-regulation/regulatory-impact-statements/proposed-changes-radiation-protection-legislation)

and at the Treasury website:

(www.treasury.govt.nz/publications/informationreleases/ris)

These assumptions have been constantly reviewed during the development of the Bill and remain relevant. There is no reason to expect lower levels of compliance at the planned level of regulator effort. Similarly, there is no reason to expect that higher than planned levels of regulator effort will be required to achieve very high levels of compliance.  However, in the unlikely event that effective compliance levels and / or regulator effort change significantly, this would affect the potential costs and benefits sought by the policy for the Bill.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

One purpose of the Bill is to enable New Zealand to meet its international obligations relating to radiation protection, radiation safety and security, and nuclear non-proliferation, under a range of international treaties. The Bill has been designed with these obligations in mind. The Ministry of Foreign Affairs and Trade has been closely involved in the drafting of the Bill throughout its development, and has been consulted on this statement.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Officials consider that the policy of the Bill is consistent with the government’s obligations under the Treaty of Waitangi.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

Yes

Advice provided to the Attorney-General by the Crown Law Office, or a section 7 report of the Attorney-General, is expected to be available on the Ministry of Justice’s website upon introduction of a Bill. Comments made by the Ministry of Justice on issues relevant to the New Zealand Bill of Rights Act have resulted in modifications to the Bill’s proposals.  Such advice, or reports, will be accessible on the Ministry of Justice website at:

www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

Yes

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

Yes

Part 2, Subpart 3, (clauses 65 to 78) is the ‘Offences’ section. Offences are listed in full in appendix 1 of this statement.

Offences relate to individual actions (or non-actions) but a body corporate, principal, or individual (director, employer or agent) is also liable for offences under clause 77.

Strict liability applies to most offences for which a defence applies under clause 76.

Decisions of the Director of Radiation Safety are subject to appeal to the District Court under clause 51. Court decisions can be appealed to the High Court on questions of law under clause 55.

3.4.1. Was the Ministry of Justice consulted about these provisions?

Yes

The Ministry of Justice was consulted as part of departmental consultation on the Bill. The offence provisions were modified in light of comments from the Ministry of Justice.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

No

3.5.1. Was the Privacy Commissioner consulted about these provisions?

No

Privacy provisions do not apply to this Bill

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

Yes

In November 2002, the discussion paper A Review of the New Zealand Radiation Protection Legislation: A Discussion Document was released.In June 2003,a summary of submissions on the discussion document was published. These documents are available on the Ministry of Health website:

(www.health.govt.nz/about-ministry/legislation-and-regulation/regulatory-impact-statements/proposed-changes-radiation-protection-legislation)

In October 2013, Ministry officials briefed organisations that regulate or represent professionals who use radiation sources on the Bill. Users are mostly medical or other health service providers, but also include veterinarians and civil engineers who provide testing services. No major issues were raised during the briefings.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete?

No

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

Yes

The Bill contains provisions for radiation sources to be seized in specified circumstances. Once seized, radiation sources can be altered to be made safe and can be returned to the jurisdiction from which they came.

Seized radiation sources are not automatically acquired. If appropriate, seized items may be returned to the owner.

Further details are provided in appendix 2 of this statement.

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

Yes

Clause 93(1)(p) of the Bill contains provisions to make regulations prescribing fees that are payable in respect of any application for an authorisation (‘authorisation’ is defined in clause 5(1) of the Bill as any source licence, a use licence, an approval, a consent to import or export radioactive material).

The Bill will impose a greater range of fees than is currently the case, given the introduction of the new source licenses. Compared to the current situation, an increase in the overall fees taken can be expected, mostly because fees have not been adjusted for some time. Fee levels will be evaluated to ensure costs are spread equitably over all users and where possible are commensurate with the degree of risk being regulated.

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

No

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

Yes

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

Yes

No provision in the Bill creates absolute liability.

Clauses 65 to 70 and 73 to 75 involve strict liability. Offences, strict liabilities, other liabilities, defences, penalties and appeals are listed in full in appendix 1 of this statement.

Strict liability for noncompliance with these provisions is justified as licence holders are better placed than enforcement officers to explain alleged breaches of licence conditions. Alleged offenders are also in a better position to provide evidence of a defence. Strict liability is appropriate in relation to ionising radiation where consequences for the general public are significant if safety and security is not well-maintained. All strict liability offences contain appropriate defence provisions.  

There are some offence provisions that do not create strict liability. Noncompliance with these particular provisions would require some degree of knowledge or intention.

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

No

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

No

The Bill does not create decision-making powers to make determinations about a person’s interests, but it clearly involves provision for infringing those interests and rights. For example, clause 40(4) makes provision for entry of enforcement officers to any place for the purposes of inspection (except for a dwelling) and clause 71 makes it an offence to refuse enforcement officer entry. This infringement is justifiable in terms of the objectives of the Act. Provisions for enforcement officers to undertake their duties are essential for effective compliance.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

Yes

The Bill provides for two forms of delegated legislation: codes of practice and regulations. Clause 90(2) states specifically that a code of practice must not contain a provision that is inconsistent with the Act or regulations; hence the question asked in 4.7 is answered in the negative.

Clause 93 provides for regulation making powers. None of these authorise regulations that would – except in very limited terms - amend an Act, or define the meaning of a term in the Act, or grant an exemption. The limited sense in which some such authorisation could be argued to be relevant includes in particular clause 94 which provides for Orders in Council to be made that would amend the schedules of the Act. These schedules set out the kinds of radioactive material, with relevant activity concentration levels and activity levels, to which the Act is to apply. Hence the Bill will apply to “H-3” for example, but not if it is below the stated levels.

Provision for changing the material and activity levels set out in the schedule is essential to enable rapid response to new scientific information about risk levels. The Act provides in clause 94(3) a number of safeguards relevant to this clause. In particular the Minister must consult with affected stakeholders, and must be satisfied that the proposed changes are necessary to comply with international standards, and be satisfied that the proposed amendment is necessary to protect the health and safety of people and the environment from harmful effects of ionising radiation.

In addition, regulation-making powers would make clear in some circumstances where the Bill would not apply, for example requirements for use licence may not be appropriate for some persons (eg, health practitioners of a specific category).

4.8. Does this Bill create or amend any other powers to make delegated legislation?

Yes

The Bill provides for two forms of delegated legislation: codes of practice and regulations, as noted in response to question 4.7 of this statement. See clauses 89, 93, and 94. For codes of practice, clause 90(2) states that a code of practice must not contain a provision that is inconsistent with the Act or regulations. Consultation provisions and other criteria are set out for amendments made under clause 94. For regulations, clause 93(2) provides for regulations to have regard to any relevant determination made by the International Atomic Energy Agency (IAEA). This is the international body responsible for developing and dissemination international standards and guidelines on ionising radiation. 

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

Yes

The Bill allows for International Atomic Energy Agency (IAEA) international inspectors to be appointed by the Director to undertake activities in New Zealand (clause 45).  International inspectors must be accompanied by an enforcement officer appointed by the Director under clause 39 of the Bill (clause 46).  While international inspectors have no powers under the Bill, the accompanying enforcement officers do, and would be authorised to exercise those powers in fulfilment of New Zealand’s relevant international obligations. 

The provisions on international inspectors will further consolidate the framework for New Zealand's implementation of its international obligations under the Agreement between New Zealand and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons.

The Agreement is available on the IAEA website:

(www.iaea.org/Publications/Documents/Infcircs/Others/infcirc185.pdf)