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Separation of Functions - Conflict of Interest
Separation of the CEO’s regulatory functions from other functions
Under subsection 15(2) of the ARPANS Act, the CEO must “take all reasonable steps to avoid any conflict of interest between the CEO’s regulatory functions and the CEO’s other functions”.
Examples of such reasonable steps include:
- Structural separation of the Regulatory Services Branch (RSB) from other parts of ARPANSA.
- Independent oversight of RSB’s regulation of ARPANSA’s radiation practices.
- Annual training for RSB’s officers on managing conflicts of interest.
- The availability of an appeals mechanism and regular reporting to Parliament.
These steps are in line with Parliament’s intentions in the Explanatory Memorandum to the ARPANS Bill 1998, which, in relation to subsection 15(2), states:
It is proposed that there will be both a procedural and a structural separation within ARPANSA of the performance of its regulatory and other functions, such as research and services, conducted for and on behalf of the CEO. The legislation also provides for review of decisions and regular quarterly and annual reporting to Parliament to address the matter of conflict of interest.
To more effectively manage conflicts of interest, it is useful to clearly distinguish between the CEO’s regulatory functions and his other functions.
In October 2014, the Australian Government published the Regulator Performance Framework (RPF). The RPF, which sets performance measures, applies only to Commonwealth entities with a statutory responsibility to administer, monitor, or enforce regulation. The Government used the following activities as criteria to determine the regulators to whom the RPF applies.
- licensing or approvals processes, including registration/accreditation, that control entry to or participation in a market
- monitoring and compliance activities, including imposing and collecting fees
- enforcement actions for non-compliance and complaints resolution
- providing advice and guidance on compliance with regulation, including education around compliance.
Using the above criteria, the CEO’s regulatory and other functions may be characterised as follows:
|Paragraphs in subsection 15(1)||Criteria||Regulatory functions|
|(a) Promote national uniformity||1||✔ e.g. mutual recognition of authorisations|
|(b) Provide advice||4||✔ e.g. advice on regulatory guidance, best practice regulation and IAEA requirements|
|(c) Undertake research||✔|
|(d) Provide services||✔|
|(e) Accredit persons||1||✔ e.g accreditation of security assessors|
|(f), (g) Monitor/report on operations committees||✔|
|(h) Monitor compliance with Div 1, Part 5||2||✔|
|(i) Other functions in Act, Regs, other law||1, 2, 3||✔ e.g. licensing, enforcement, indexation, and review of legislation|
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