10th Oct 2024, 1:34 PM – Senate Australian Naval Nuclear Power Safety Bill 2024 and another - Committee of the Whole - Nuclear safety duties, liability of commonwealth for contractors, UNDRIP, fit and proper p...

The majority voted against amendments introduced by Victorian Senator Lidia Thorpe (Independent), which means they failed and will not form part of the bill.

Amendment text

SHEET 2516

(1) Clause 6, page 13, (lines 7 to 9), omit paragraph (b).

(2) Clause 6, page 13 (after line 11), at the end of the clause, add:

; and (e) to promote the nuclear safety of all activities relating to AUKUS submarines; and

(f) to protect the health and safety of people, and to protect the environment; and

(g) to promote public confidence and trust in relation to the nuclear safety of Australia's nuclear-powered submarine enterprise, including through the following:

(i) ensuring that relevant and meaningful information relating to AUKUS submarines is available to the public, except where it is necessary to limit the provision of such information for reasons of national security, defence operational capability or the protection of confidential technology and learnings;

(ii) providing opportunities for public involvement and participation in decisions relating to activities that may impact communities; and

(h) to protect workers, other persons and communities against harm to their health, safety and welfare through the elimination or minimisation of risks arising from regulated activities; and

(i) to promote the provision of advice, information, education and training in relation to nuclear safety; and

(j) to ensure appropriate scrutiny.

SHEET 2629

(1) Clause 18, page 20 (lines 5 and 6), omit ", so far as reasonably practicable,".

(2) Clause 18, page 21 (after line 21), at the end of the clause, add:

Exception

(7) Subsections (2), (3), (4) and (5) do not apply if the person exercised due diligence and took all reasonably practicable precautions.

Note 1: For the purposes of subsection (2) and (3) a defendant bears an evidential burden in relation to the matter in subsection (7) (see section 96 of the Regulatory Powers Act).

Note 2: For the purposes of subsection (4) and (5), a defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).

SHEET 2630

(1) Page 108 (after line 18), after clause 129, insert:

129A Liability of the Commonwealth for contraventions of nuclear safety duties by Commonwealth contractors

For the purposes of Division 2 of Part 2, any conduct engaged in by a Commonwealth contractor that is undertaken to discharge obligations under a contract referred to in subsection 29(2) is conduct also engaged in by the Commonwealth.

SHEET 2631

(1) Clause 29, page 31 (after line 22), at the end of the clause, add:

(3) A person is not a Commonwealth contractor if:

(a) the person is a subcontractor for a contract with a person referred to in paragraph (1)(d); and

(b) the contract relates to a regulated activity.

SHEET 2919

(1) Clause 123A, page 107 (after line 6), after subclause (3), insert:

(3A) The Director-General must cause a copy of the report under subsection (3) to be published on the Department's website as soon as practicable after the report is tabled in a House of the Parliament.

SHEET 2920

(1) Clause 140A, page 115 (after line 21), after subclause (3), insert:

(3A) The Minister may appoint a person to the advisory committee if the person is any of the following:

(a) a person with skills, knowledge or experience in one or more of the following fields:

(i) health;

(ii) nuclear safety or nuclear radiation;

(iii) radioactive waste management;

(iv) emergency management;

(v) a field prescribed by the regulations;

(b) for each community that is, or may be, affected by a regulated activity—a person who has been chosen by the community to represent the community on the advisory committee.

(3B) The Minister must not appoint a person to the advisory committee if the person is a defence staff member.

SHEET 2627

(1) Clause 3, page 3 (line 17), after "Australian submarines.", insert:

The Minister must ensure that the free, prior and informed consent of Indigenous Peoples is obtained prior to certain additional designated zones being prescribed by the regulations. The seeking of consent must be consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

(2) Clause 3, page 3 (line 32), after "authorised under a licence.", insert:

It is a condition of a licence that regulated activities must be conducted consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

(3) Clause 10, page 15 (after line 14), after subclause (2), insert:

(2A) Before the Governor-General makes regulations for the purpose of paragraph (2)(c), the Minister must:

(a) consider whether prescribing the area that is proposed to be a designated zone could reasonably be expected to impact the interests of the Indigenous Peoples who are the traditional owners of any lands and waters in the area; and

(b) if the Minister considers that prescribing the area could reasonably be expected to impact those interests—ensure that the free, prior and informed consent of Indigenous Peoples consistent with the United Nations Declaration on the Rights of Indigenous Peoples has been obtained.

Note: The text of United Nations General Assembly resolutions could in 2024 be accessed through the United Nations' website (https://www.un.org).

(2B) Subsection (2A) does not limit section 17 of the Legislation Act 2003.

(4) Clause 32, page 34 (after line 10), after paragraph 32(1)(a), insert:

(aa) the conditions set out in section 32A;

(5) Page 35 (after line 23), after clause 32, insert:

32A Regulated activities to be conducted consistent with UNDRIP [UN Declaration on the Rights of Indigenous Peoples]

(1) A licence is subject to the condition that the licence holder must take all reasonably practicable steps to ensure that regulated activities authorised by the licence are conducted in a manner that promotes the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples.

(2) A licence is subject to the condition that the licence holder must ensure that a decision about the conduct of regulated activities authorised by the licence that could reasonably be expected to impact the interests of Indigenous Peoples who are the traditional owners of any land and waters which may be affected by the decision must not be made unless the free, prior and informed consent of Indigenous Peoples consistent with the United Nations Declaration on the Rights of Indigenous Peoples has been obtained.

Note: The text of United Nations General Assembly resolutions could in 2024 be accessed through the United Nations' website (https://www.un.org).

SHEET 2632

(1) Clause 31, page 33 (after line 22), after subparagraph (2)(a)(i), insert:

(ia) that the applicant is a fit and proper person to hold a licence;

(2) Clause 31, page 33 (after line 23), after paragraph (2)(a), insert:

Note: In having regard to whether the applicant is a fit and proper person for the purposes of subparagraph (2)(a)(ia), the Regulator may take into consideration any or all of the matters in section 38A.

(3) Clause 35, page 36 (lines 27 to 30), omit paragraph (1)(b), substitute:

(b) the Regulator believes on reasonable grounds that the licence holder is not a fit and proper person; or

Note: In having regard to whether the licence holder is a fit and proper person for the purposes of paragraph (1)(b), the Regulator may take into consideration any or all of the matters in section 38A.

(4) Page 40 (after line 10), at the end of Division 2, add:

38A Fit and proper person considerations

(1) In having regard to whether a person is a fit and proper person for the purposes of this Act, the Regulator may take into consideration any or all of the following:

(a) whether the person has:

(i) contravened relevant legislation; or

(ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation;

(b) if the person is a body corporate—whether a director or former director of the body corporate or a related body corporate has:

(i) contravened relevant legislation; or

(ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation;

(c) if the person is a body corporate—whether a director or former director of the body corporate or a related body corporate is or has been the director of another body corporate that has:

(i) contravened relevant legislation; or

(ii) held a licence, accreditation or other authority that has been suspended or cancelled under relevant legislation;

(d) the person's record of compliance with relevant legislation;

(e) if the person is a body corporate—the record of compliance with relevant legislation of each director or former director of the body corporate or a related body corporate;

(f) whether, in the Regulator's opinion, the conduct of regulated activities under a licence will or will not be in the hands of a technically competent person;

(g) whether, in the Regulator's opinion, the person is of good repute, having regard to character, honesty and integrity;

(h) if the person is a body corporate—whether, in the Regulator's opinion, each director and former director of the body corporate or a related body corporate is of good repute, having regard to character, honesty and integrity;

(i) whether, in the previous 10 years, the person has, in any Australian jurisdiction, been:

(i) convicted of an offence involving fraud, dishonesty or other behaviour the Regulator considers would make the person unfit to hold a licence; or

(ii) subject to a finding of professional misconduct or unsatisfactory professional conduct;

(j) if the person is a body corporate—whether, in the previous 10 years, any director or former director of the body corporate or a related body corporate has, in any Australian jurisdiction, been:

(i) convicted of an offence involving fraud, dishonesty or other behaviour the Regulator considers would make the person unfit to hold a licence; or

(ii) subject to a finding of professional misconduct or unsatisfactory professional conduct;

(k) whether, during the previous 3 years, the person was personally insolvent;

(l) if the person is a body corporate—whether, during the previous 3 years, a director or former director of the body corporate was personally insolvent;

(m) if the person is a body corporate—whether the person or a related body corporate applied to take the benefit of a law for the relief of insolvent debtors or compounded with the person's or body corporate's creditors;

(n) for an individual—whether the person is or was a director of a body corporate that:

(i) is the subject of a winding up order; or

(ii) has had a controller or administrator appointed during the previous 3 years;

(o) for a body corporate—whether the body corporate or a related body corporate:

(i) is the subject of a winding up order; or

(ii) has had a controller or administrator appointed during the previous 3 years;

(p) whether the person has demonstrated to the Regulator the financial capacity to comply with the person's obligations under the licence or the proposed licence;

(q) whether the person is in partnership with a person whom the Regulator does not consider to be a fit and proper person in connection with conducting regulated activities authorised, or sought to be authorised, by a licence; or

(r) if the person is a body corporate—whether a related body corporate is in partnership with a person whom the Regulator does not consider to be a fit and proper person under this section, in connection with conducting regulated activities authorised, or sought to be authorised, by a licence,

(s) any other matters the Regulator considers appropriate.

(2) In this section:

director has the same meaning as in the Corporations Act 2001.

related body corporate has the same meaning as in the Corporations Act 2001.

relevant legislation means:

(a) this Act and the regulations; and

(b) legislation of any other Australian jurisdiction relating to radiation control or protection; and

(c) legislation (including legislation that has been repealed or legislation of another jurisdiction) prescribed by the regulations.

SHEET 2633

(1) Clause 3, page 3 (after line 17), after the paragraph beginning "Regulated activities", insert:

There are nuclear safety duties that apply to any person that is a party in the naval nuclear power supply chain. For example, they must ensure nuclear safety and report nuclear safety incidents.

(2) Clause 5, page 8 (after line 26), after paragraph (c) of the definition of investigation area, insert:

(ca) an area in which a nuclear supply activity is conducted;

(3) Clause 5, page 9 (after line 13), after paragraph (c) of the definition of monitoring area, insert:

(ca) an area in which a nuclear supply activity is conducted;

(4) Clause 5, page 10 (after line 9), after the definition of nuclear safety incident, insert:

nuclear supply activity has the meaning given by the regulations.

(5) Clause 5, page 10 (after line 18), after the definition of paid work, insert:

party, in relation to the naval nuclear supply chain, has the meaning given by the regulations.

(6) Clause 5, page 11 (line 28), omit "or 24(1)", substitute ", 24(1) or 25A(1)".

(7) Heading to Part 2, page 19 (lines 1 and 2), omit "when conducting regulated activities".

(8) Clause 17, page 19 (after line 21), after the paragraph beginning "People who are authorised", insert:

There are nuclear safety duties that apply to any person that is a party in the naval nuclear power supply chain.

(9) Page 29 (after line 17), at the end of Division 2, add:

Subdivision D — Nuclear safety duties applying to persons in the naval nuclear power supply chain

25A General nuclear safety duty

(1) A person who is a party in the naval nuclear power supply chain must, so far as reasonably practicable, ensure nuclear safety in relation to a nuclear supply activity.

Civil penalty provisions

(2) A person is liable to a civil penalty if the person contravenes subsection (1).

Note 1: It is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances (see section 94 of the Regulatory Powers Act).

Note 2: Under subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty imposed for a contravention of a civil penalty provision must not be more than that specified for the provision (or, for a body corporate, not more than 5 times that specified).

Civil penalty: 10,000 penalty units.

(3) A person is liable to a civil penalty if:

(a) the person contravenes subsection (1); and

(b) a nuclear safety incident occurs; and

(c) the contravention caused or contributed to the nuclear safety incident.

Note 1: It is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances (see section 94 of the Regulatory Powers Act).

Note 2: Under subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty imposed for a contravention of a civil penalty provision must not be more than that specified for the provision (or, for a body corporate, not more than 5 times that specified).

Civil penalty: 20,000 penalty units.

Offences

(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in a contravention of subsection (1).

Penalty:

(a) for an individual—imprisonment for 12 years or 700 penalty units, or both; or

(b) for a body corporate—28,000 penalty units.

(5) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct results in a contravention of subsection (1); and

(c) a nuclear safety incident occurs; and

(d) the person is reckless, or negligent, as to whether the conduct would cause or contribute to the nuclear safety incident.

Penalty:

(a) for an individual—imprisonment for 25 years or 1,400 penalty units, or both; or

(b) for a body corporate—57,500 penalty units.

(6) Strict liability applies to paragraph (5)(c).

25B Duty to report nuclear safety incidents

(1) A person who is a party in the naval nuclear power supply chain must report, in accordance with subsection (2), any nuclear safety incident that occurs in relation to a nuclear supply activity.

Note 1: A person covered by this subsection may also have a duty under another law.

Note 2: For the definition of nuclear safety incident see subsection 21(2).

(2) The report under subsection (1):

(a) must be given to the Regulator immediately after the person becomes aware of the incident; and

(b) must be in writing, or may be given orally but must be confirmed by written notice given to the Regulator as soon as practicable after being given orally; and

(c) must be in the approved form (if any); and

(d) must contain the information (if any) prescribed by the regulations; and

(e) must be given to the Regulator in the manner (if any) prescribed by the regulations.

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Note 1: It is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances (see section 94 of the Regulatory Powers Act).

Note 2: Under subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty imposed for a contravention of a civil penalty provision must not be more than that specified for the provision (or, for a body corporate, not more than 5 times that specified).

Civil penalty: 5,000 penalty units.

Offence

(4) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes subsection (1).

Penalty:

(a) for an individual—imprisonment for 6 years or 350 penalty units, or both; or

(b) for a body corporate—14,000 penalty units.

(5) Strict liability applies to paragraph (4)(b).

SHEET 2918

(1) Clause 5, page 8 (after line 16), after the definition of function, insert:

high level radioactive material means material which has a thermal energy output of at least 2 kilowatts per cubic metre.

(2) Clause 8A, page 14 (line 7), after "spent nuclear fuel", insert "or high level radioactive material".

(3) Clause 8A, page 14 (line 10), after "spent nuclear fuel", insert ", or high level radioactive material,".

(4) Clause 8A, page 14 (line 12), after "spent nuclear fuel", insert ", or high level radioactive material,".

Error on this page

Note that West Australian Senator Fatima Payman (Independent) is currently recorded as a rebel voter in the Labor Party, but this is wrong as Senator Payman is now an Independent senator.