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DANGEROUS SUBSTANCES (EXPLOSIVES) REGULATIONS 2004 (NO 10 OF 2004)
2004
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
DANGEROUS SUBSTANCES (EXPLOSIVES) REGULATIONS 2004
SL2004-10
EXPLANATORY STATEMENT
Circulated by authority of the
Minister for
Industrial Relations
Ms Katy Gallagher MLA
DANGEROUS SUBSTANCES (EXPLOSIVES) REGULATIONS 2004
The Dangerous Substances Act 2004 (the Act)
regulates the import, manufacture, transport, storage, handling, sale and use of
dangerous substances in the ACT. This statutory framework is designed to
minimise the risk these materials can pose to the health and safety of people
working with these substances, the general community and the environment. The
regulatory framework established by the Act is supported by detailed regulations
that can be updated regularly and modified to reflect industry best practice and
technological advances.
To support the Act, regulations for explosives
have been prepared that have been modelled on recently developed Victorian
regulatory frameworks for explosives, which incorporate the Australian
Explosives Code, and will regulate all activities associated with the import,
manufacture, supply, use, transport and disposal of explosives (including
fireworks).
The Australian Code for the Transport of Explosives by Road
and Rail (“the Australian Explosives Code”) is a nationally agreed
document prepared to provide a uniform basis for Commonwealth, State and
Territory legislation governing the transport of explosives. It complements the
Australian Code for the Transport of Dangerous Goods by Road and Rail. The
latter Code is incorporated into the Road Transport Reform (Dangerous Goods)
Act 1995 (Cth) which currently applies to the transport of dangerous goods
in the Territory. The regulations will bring the ACT into line with generally
agreed directions for regulatory reform in relation to explosives.
The
regulations establish a system of explosives-related licensing. Licences will
be required to manufacture, import, transport (drivers and vehicles), store
(persons who store and storage facilities), supply, and use (shotfirers and
fireworks display operators). In addition, permits will be required to use
blasting explosives or fireworks (with the exception of “general
use” and “consumer” fireworks).
The regulations set
out a new approach to the regulation of fireworks generally. The new regime is
not limited to changes to consumer fireworks arrangements. The new regime
includes provisions for the authorisation and management of fireworks displays
and for the authorisation and use of fireworks for theatrical productions and
other events such as sporting events or events of a cultural nature. The new
display provisions are focussed on controlling the impact of noise and
disturbance on the community (particularly in residential areas), and on better
safety controls generally. The new provisions will also prohibit the direct
sale, display or storage of fireworks at retail and other premises accessible by
the public – with the exception of the one week June long weekend sale
period - and will introduce greater penalties for illegal sales, possession and
use of fireworks.
The draft regulations establish a number of categories
of fireworks:
• fireworks that are prohibited explosives (e.g.
bungers, bangers, and certain very large aerial display fireworks which would be
illegal to use at any time with or without a licence);
• general use
fireworks (an exempt class of specified novelty fireworks which can be
purchased year-round by members of the general public, e.g. party poppers, bon
bon snaps and small sparklers);
• consumer fireworks (a class of
specified low-hazard fireworks which can be purchased by members of the general
public for use on the Queen’s Birthday June
weekend);
• display fireworks (fireworks discharged by a
licensed fireworks display operator as part of an authorised
display);
• theatrical fireworks (fireworks discharged by a
licensed fireworks display operator or a licensed special event display operator
as part of an authorised display);
• Chinese firecrackers
(fireworks discharged by a licensed fireworks display operator or a licensed
special event display operator as part of an authorised display).
For
consumer fireworks maximum amounts of pyrotechnic substance that are permissible
for each type of prescribed firework are imposed. This is intended to ensure
the firework does not make a report or loud bang as one of its main effects. The
firework types (fountains, ground spinners, helicopters, mines, multishot cakes,
novelties, snakes and wheels) have been selected because they can be designed
for a primarily visual effect (e.g. fountains) for which a very small amount of
“flash powder” is required. Flash powder (“concussion
powder” or “salute powder”) is used to make an audible
“report” or noise and a flash of light.
The regulations also
set storage requirements for explosives. These requirements vary depending on
the type of explosive, its hazard division, the quantity involved and its
intended use. Explosives will have to be stored in magazine standard facilities
with the exception of small amounts prescribed by type.
Throughout the
regulations there are numerous provisions that impose requirements. Some
requirements are imposed under a licence, and a failure to comply with such a
requirement or to contravene a condition of this nature is a breach of a licence
condition under the Act. Other provisions are offences, usually where a
condition imposed applies to all persons irrespective of whether they hold a
licence or possess a permit.
The highest maximum penalty available under
the regulations for an offence is 30 penalty units. Many of the offences
are designed to ensure the safe and proper use of explosive articles in order to
protect the general community and the environment. Accordingly, it has been
necessary to set the maximum penalty for the majority of offences at
30 units. For other offences, where the need to protect the community is
not as great, it has been appropriate to set maximum penalties to 20 units,
or in some cases 10 units.
Strict liability applies to all but a few
offences in the regulations. Strict liability offences do not require that the
alleged offender intended, whether knowingly, recklessly or negligently, to
contravene the duty or the provision. This offence is subject to lower penalties
than offences where it can be demonstrated that a person intentionally,
recklessly or negligently failed to comply with a safety duty. Defences, most
notably mistake of fact, apply to strict liability offences.
There are
no absolute liability offences within the regulations, and only one strict
liability offence that contains an absolute liability element. Absolute
liability means a person is regarded to have contravened the requirement,
irrespective of their knowledge or intent. The application of absolute
liability to an element of an offence is more common, as it precludes the
ability to raise even the defence of mistake of fact to that element. Applying
absolute liability to an element of an offence often occurs in duty based
offences. This prevents a person using the defence of mistake of fact to assert
that they were mistaken about whether they owed the duty, whilst enabling the
person to raise the defence of mistake of fact to contravention of the duty.
Throughout the regulations there are provisions that require decisions
or determinations to be made by the Minister or the Chief Executive. Some
decisions must be made in writing and these instruments are disallowable
instruments that must be placed on the ACT Legislation Register. Other
decisions are administrative, and some may impact on the ability of a member of
the public, or a class of persons, to conduct their business. In such
situations persons affected will usually, except in certain limited
circumstances, have a right to seek a review of the decision by the
Administrative Appeals Tribunal (the AAT). Not all decisions made under an
Act or regulations are reviewable as to do so could hinder the proper and
effective operation of the regulatory scheme.
Chapter 9 of the Act
contains provisions dealing with reviewable decisions, requirements for
notification of reviewable decisions and identifying decisions that are subject
to internal review. The operation of the provisions contained in Chapter 9
of the Act extend to any regulations made under the Act. If a decision is
reviewable by the AAT under the Act, the related provisions in the regulations
will also be subject to AAT review.
In cases where the regulations may
require a decision, but the decision is not listed as a reviewable decision,
this is generally because the decision concerns the issuing of a licence or
permit, or the setting of conditions on a licence or permit. The power to issue
or refuse to issue licences, the power to impose conditions on licences and the
power to amend or revoke licences are reviewable decisions under the Act. As
such a decision regarding a licence or permit in the regulations will not be
listed as a reviewable decision because a right of review of that decision is
already assigned by the Act.
Notes on
Parts
Chapter 1 General
This chapter containing
general matters is divided into two parts, preliminary matters and important
concepts. Neither part contains any offences, but Part 1.2 establishes
several fundamental definitions that apply through out all of these regulations.
Part 1.1 Preliminary
This chapter contains
regulations 1 to 6 of the regulations dealing with formal and preliminary
matters such as the name of the regulations, commencement, the role of the
dictionary, the role of notes and the application of the Criminal Code to
offences under the Act. The relationship between these regulations and
incorporated documents is explained, including provision that if a regulation
requires compliance with an incorporated document, the provision of the document
must be complied with even if the document is drafted in advisory terms.
Sections 9 and 220 of the Act prescribe matters concerning
incorporated documents.
Part 1.2 Important Concepts
This
part contains provisions that are relevant to all of the regulations. Important
terms are defined, such as explosive. Methods of classification and
classification codes are also explained, and hazard divisions are
established.
This division defines important terms such as explosive and
dangerous substance.
Methods of classification and classification codes are explained in this division, and hazard divisions are established.
Division 1.2.3 Other concepts
This division addresses other concepts relevant to all of the regulations,
such as the meaning of ensure, how references to quantities of explosives
is to be read, and the provision of reports to the fire commissioner and chief
fire control officer.
Chapter 2 Explosives generally
This part establishes the regulatory
framework that applies generally to explosives.
Part 2.1 General
duties
Part 2.1 contains duties that apply to all forms of
explosives and to all operators. Obligations to report incidents involving
damage or injury from explosions, or the loss or theft of explosives are
included. There is also a fundamental prohibition on misusing explosives. Each
regulation in this part contains a strict liability offence carrying a maximum
penalty of 30 penalty units, reflecting the seriousness of non-compliance
with these provisions.
Part 2.2 Authorisation of
explosives
Matters concerning the processes and effects of authorisation
are detailed within this part.
Division 2.2.1 Preliminary
This
division contains preliminary matters such as establishing a meaning of
Queen’s birthday supply period, and what is to be regarded as an
authorised explosive and a prohibited explosive for the purposes
of the Act.
This division contains only one provision applying to ministerial
declarations. Under this provision the Minister has the power to declare an
explosive to be authorised, but cannot declare a prohibited firework to be
authorised. A Ministerial declaration under this provision is a disallowable
instrument.
Division 2.2.3 Chief executive declarations – Act,
s 314 (3) (a)
A system enabling the Chief Executive to authorise
explosives is established by this division. Under this division a person may
apply to the Chief Executive to authorise an explosive, and in doing so
specified information and documents, such as the explosive’s UN number and
classification code and a copy of a safety date sheet for the explosive, must
accompany the request. After consideration of the request, if all required
information and documents have been provided and the explosive is not of a type
that the Chief Executive must not authorise, such as a prohibited firework, the
Chief Executive may declare an explosive to be authorised.
This division
also requires the Chief Executive to keep a register of authorised explosives,
and also prescribes how an authorisation may end, such as by revocation of the
authorisation by the Chief Executive, and how explosives are to be disposed of
if an authorisation is revoked.
Failure to comply with a notice of
revocation of an authorisation is a strict liability offence with a maximum
penalty of 30 penalty units. Similarly, it is a strict liability offence
if a person a receives a revocation notice and continues to use the explosive or
supply it to someone else, unless that supply was for the purpose of removing
the explosive from the ACT. Again, the maximum penalty available is
30 penalty units.
A decision by the Chief Executive not to
authorise an explosive or to revoke an authorization is reviewable by the
Administrative Appeal Tribunal (the AAT).
Division 2.2.4
Registration of consumer fireworks for Queen’s birthday supply –
Act, s 314 (3) (a)
Provisions governing the
registration of consumer fireworks for supply during the Queen’s birthday
supply period are contained in division 2.2.4. A request can be made to
the Chief Executive to register a consumer firework for supply during the
Queen’s birthday supply period, but such a request must be accompanied by
specified information and documents, including a classification report.
Any registration granted ends at 5 pm on the second Monday in June
following the date of registration. This ensures that registration of a
consumer firework is only a registration for one Queen’s birthday supply
period, which enables the Chief Executive to reassess a firework each year and
take into account factors such as any changes in composition or any problems
associated with that firework in the previous year.
The Chief Executive
can refuse a request for registration if any required information or documents
is not provided, and must refuse a request if the firework is not an authorised
explosive and does not meet the consumer fireworks standards in Schedule 1.
Accordingly, this division is linked to divisions 2.2.2 and 2.2.3 because
of the requirement for authorisation.
Part 2.3 Packing, labelling
and placarding explosives
Part 2.3 applies to the packing of
explosives and to the labelling or placarding of packages, unit loads and
intermediate bulk containers of explosives.
The part contains
provisions detailing what is regarded as correct packaging, labelled or
placarded for the purposes of the Act, as well as exceptions in certain
specified circumstances.
Part 2.4 Manufacturing
explosives
The regulations specify requirements for the manufacture
of explosives (including fireworks). Four manufacturing categories have been
identified.
• The manufacture of explosives at a factory (i.e. at a
defined single location). Buildings where safety cartridges are filled or capped
for commercial purposes may also be factories.
• The filling or
capping of safety cartridges for commercial purposes at any place other than at
a factory.
• The making of an explosives mixture at a central mixing
point or other place at or near a work site where the explosives are to be
used.
• The making of an explosives mixture by means of a mobile
manufacturing unit at a place where the explosives are to be used.
Licences
The following new licences will apply to explosives
manufacturing.
• Licence to manufacture explosives at a
factory.
• Licence to make an explosives mixture near the place of use
(i.e. a central mixing point licence).
• Licence to make an explosive
mixture with a mobile manufacturing unit.
• Licence to fill and cap
safety cartridges at a place other than at a factory.
Requirements for
factories
Before a factory licence can be issued, the regulations specify
that details relating to the factory and to the manufacturing process must be
supplied to the Chief Executive. In addition, factories where explosives are
made will need to establish, and put into place, a Safety Management
System (SMS). Any modifications to the SMS or to the premises must also be
made known to the Chief Executive.
Requirements for central mixing
points
This type of operation is typically the manufacture of ANFO
explosives mixture. The equipment used in this process, such as mechanical
mixers, truck-mounted bulk mixers and injectors, will need to be approved by the
Chief Executive. The design and construction of central mixing points, mixing
appliances and associated equipment and the mixing operations must comply with
AS 2187.2 “Explosives – Storage, Transport and Use. Part 2: Use of
Explosives”.
Requirements for mobile manufacturing
units
The regulations establish a new licence category to cover vehicles
or mobile units that manufacture explosives. Mobile manufacturing units must
comply with AS 2187.2 and must be marked to comply with the Australian
Explosives Code (the AEC).
Requirements for filling and capping
safety cartridges other than for personal use (other than at a factory)
Filling and capping safety cartridges must be carried out at premises
licensed for this activity unless they are for a person’s own use. The
regulations set out minimum safety requirements for this
activity.
Safety distances
The regulations adopt the separation
distances specified in AS 2187.1 “ Explosives – Storage, Transport
and Use. Part 1 Storage”.
Division 2.4.1 Definitions about
manufacturing explosives
This division contains definitions, such as
central mixing point, filling or capping and mobile
manufacturing unit, and establishes a meaning of explosive that
applies exclusively to part 2.4.
Division 2.4.2 Manufacturing
licences
This division specifies the information and documents that must
be provided in applications for manufacturing licences. There are general
requirements that apply to all manufacturing licences, as well as specific
requirements for licences for factory manufacture, central mixing points and
mobile manufacturing units, and also for safety cartridges.
The division
also imposes requirements and obligations associated with the manufacture of
explosives. In particular, there are provisions that provide guidance on how the
terms person in control and reasonable steps are to be
interpreted. For example, in working out whether reasonable steps have
been taken, consideration must be given to whether the requirements under
part 2.4 have been observed.
The division also requires creation of
records about the type and quantity of explosives manufactured and the date(s)
of manufacture. It is also necessary to record whether the manufacture was for
immediate use or supply, or if the explosives were manufactured and then stored,
and if stored, details about the storage. These records must be retained for a
period not less than 3 years. Failure to comply with either requirement is
a strict liability offence that has a maximum penalty of 20 penalty
units.
Division 2.4.3 Safety management system
Safety management systems are an important component of both the Act and
these Regulations. Under this division the holder of a manufacturing licence is
required to establish and implement a safety management system as soon as
possible after a licence is issued. Safety management systems are required to
be detailed in a document that can accessed and understood by all who use it,
must comply with Schedule 2 of these regulations, and conform with a range
of other requirements, such as the need to review and if need be revise the
system if the factory is modified. These requirements are all conditions
imposed on a licence.
However, division 2.4.3 also contains two
strict liability offences, each with a maximum penalty of 10 penalty units.
The first is an obligation to keep written records of all modifications made to
or that affect the safety management system for a period of 5 years. The
second is to provide within seven days any information that relates to the
safety management system that the Chief Executive has reasonably
requested.
Division 2.4.4 Factory manufacture
Division 2.4.4 applies if a
manufacturing licence authorises the manufacture of explosives at a factory.
The division requires separation distances set out in Australian Standard 2187.1
to be complied with, along with notification to be given to the Chief Executive
prior to modifications being made to a factory. These requirements are imposed
as licence conditions, whereas the other requirements within the division, about
notifying fire authorities of certain matters, are strict liability offences
with maximum penalties of 20 penalty units.
Fire authorities must
be given a copy of the licence, a site plan with certain details, and the
location of manifests, emergency plans and critical controls are located. In
the event of a fire at an explosives factory it is vital to the safety of
firefighters, and their ability to respond quickly and appropriately, that fire
authorities are aware of the presence of explosives and have access to crucial
information.
Division 2.4.5 Central mixing points
If a
manufacturing licence authorises the manufacture of explosives at a central
mixing point, division 2.4.5 applies. The division requires separation
distances set out in Australian Standard 2187.1 to be maintained between
the central mixing point and certain parts of licensed premises, such as
magazines and vulnerable facilities to be maintained.
The division also
contains requirements to construct premises and certain equipment in accordance
with Australian Standard 2187.2, warning notices to be posted, other
explosives and fire sources to be kept clear and containers holding explosive
mixtures to be clearly marked.
The division also requires an explosive
mixture controller to keep persons, other than persons involved in making the
mixture, at least 10 metres away from the place where the explosive mixture
is being made. As failure to meet this requirement could have very serious
consequences it is a strict liability offence that applies the maximum penalty
available under the regulations, 30 penalty units, as the maximum penalty
for this offence. It is also a strict liability offence, with a maximum penalty
of 30 penalty units, for a person that is not involved in making the
mixture to fail to comply with a direction to keep clear by an explosive mixture
controller.
Division 2.4.6 ANFO manufacture
If a manufacturing
licence authorises the manufacture of Ammonium Nitrate Fuel Oil (ANFO)
division 2.4.6 applies. This division requires a manufacturing licensee to
manufacture ANFO in accordance with Australian Standard 2187.2 and to
maintain separation distances for ammonium nitrate stores in accordance with
those standards. These obligations are additional to those in the rest of the
Part. Furthermore, if a requirement under this division is inconsistent with a
requirement with any other requirement under these regulations,
division 2.4.6 prevails. There are no offences in division 2.4.6 as
all requirements are licence conditions.
Division 2.4.7 Mobile
manufacturing units
This division applies to manufacturing licences that
authorise the manufacture of an explosive mixture using a mobile manufacturing
unit. Under this division, mobile manufacturing units must conform to the
requirements in Australian Standard 2187.2, and if the unit is transporting
explosives it must be marked as required by the Australian Explosives Code.
Furthermore, the division demands that a person operating processing equipment
not leave the equipment unattended while the equipment is running. There are no
offences in division 2.4.7 as all requirements are licence
conditions.
Division 2.4.8 Filling or capping safety cartridges other
than at a factory—commercial purposes
If a manufacturing licence
authorises the manufacture of an explosive by filling or capping safety
cartridges for commercial purposes, division 2.4.8 applies, and imposes
specific requirements upon the licensee.
Division 2.4.9 Filling or
capping safety cartridges - non-commercial purposes
If an individual
fills or caps safety cartridges for a purpose other an a commercial purpose,
division 2.4.9 applies. This division establishes two offences, both
strict liability offences carrying a maximum penalty of 30 penalty units
reflecting the seriousness of the risk to community of non-compliance. The
first offence is for filling a safety cartridge with an explosive other than an
authorised explosive. The other offence is for capping or filling a safety
cartridge in a manner other than in accordance with the requirements contained
in regulation 85.
Part 2.5 Importing explosives
The
regulations require a licence to be held for the import of explosives into the
ACT. When applying for a licence, the importer will need to specify the kinds
of explosives that will be imported. Those explosives may then be imported for
the duration of the licence upon notification, unless of a category where
notification is not required.
Division 2.5.1
Interpretation
Division 2.5.1 contains only one provision, which
instructs that an import licence is a licence issued for Part 2.5
authorising the import of explosives into the ACT.
Division 2.5.2
Import licences
In particular, there are provisions that provide guidance
on how the terms person in control and reasonable steps are to be
interpreted. For example, in working out whether reasonable steps have
been taken, consideration must be given to whether the requirements under
part 2.5 have been observed.
Division 2.5.3 Import
conditions
This division imposes conditions on person importing
explosives into the ACT. A holder of a licence authorising the importing of
explosives must notify the Chief Executive of an intention to import explosives
unless the import is of an excepted type. ACT based shotfirers that have taken
explosives out of the ACT and are returning with unused explosives need not
notify the Chief Executive. Importing explosives of certain types and
quantities listed in Table 96.1, such as less than 10 kilograms of
distress signals of classification code 1.4G, do not require notification
to the Chief Executive. If notification is required, certain information and
documents such as the intended date of import, must be provided. Each of these
conditions are licence conditions.
Strict liability offences apply to the
production and keeping of records. In this division it is a strict liability
offence not to make a record of all explosives imported into the ACT, and also
for failing to keep those records for at least three years. These offences have
a maximum penalty of 20 penalty units.
Part 2.6 Carrying
explosives
The regulations specify requirements for the transport of
explosives by road and rail. Some key features of the regulations
are:
• For road and rail transport, the regulations reference the
Australian Explosives Code (AEC). The AEC provides an Australia-wide
reference for uniform requirements in explosives transport.
• The AEC
identifies three risk categories in the transport of explosives, based on the
type and quantity of explosives being carried. The number and extent of
requirements applicable to both road and rail transport is dependant on this
risk category.
Licences
The following new licences will apply
to explosives transport.
• Licence to transport explosives by
road
• Licence to transport explosives by rail
• Licence to
drive a vehicle transporting explosives
A transport operator who intends
to carry explosives is required to hold a licence to transport explosives by
road. Any vehicle that will be used for explosives transport must meet the
requirements of the AEC, and be approved by the Chief Executive. Similarly, rail
transport operators who intend to carry explosives are required to hold a
licence to transport explosives by rail.
The AEC provides specifications
for rail vehicles carrying explosives. Further approval by the Chief Executive
is not required.
A person who intends to drive a road vehicle carrying
explosives is required to obtain a licence to drive a vehicle transporting
explosives. This requirement applies to the commercial transport of explosives
above set quantities. Explosives users and other licence holders are permitted
to transport explosives up to a maximum quantity. Certain types of explosives
may be carried on a road vehicle without the need for a licence, provided
limitations on type and quantity are observed.
Requirements for road
vehicle operators
To obtain a licence to transport explosives the road
operator will need to supply the Chief Executive with details of each of the
vehicles that will carry explosives. The vehicles will need to be constructed
and marked in accordance with the AEC. Each vehicle will be inspected and, if
approved, the vehicles will be listed on the operator’s licence. The
Chief Executive can prohibit or authorise the transport of explosives by road
along certain routes.
Requirements for rail operators
In
addition to obtaining a licence, rail operators will need to observe the
requirements of the AEC in relation to rail vehicle construction, segregation
and separation of loads, and various operational matters. The regulations also
specify a maximum time that explosives may be kept in a rail yard. Explosives
will be permitted on passenger trains and parcel vans, subject to restrictions
as given in the AEC.
Requirements for licensed road vehicle
drivers
The driver of a road vehicle that is licensed to transport
explosives must hold a separate licence to drive the vehicle. An applicant for a
licence must
• have held a driver’s licence for at least 12
months
• have had 12 months experience in driving vehicles of the same
class
• have completed a training course approved by the Chief
Executive, and
• meet the commercial vehicle driver medical standards
required by Austroad Inc’s Assessing fitness to drive.
Note: A
driver who lives outside of the ACT and holds a driver’s licence/permit to
transport explosives in that jurisdiction is not required to obtain an ACT
explosives driver’s licence.
The driver of a vehicle carrying
explosives must also observe route and time restrictions relating to allowable
carrying of explosives in the ACT.
Division 2.6.1
Preliminary
This division contains definitions, such as carrying
licence and exempt interstate driver, and deals with the application
of Part 2.6.
Division 2.6.2 Carrying licences
This
division specifies who may carry explosives by road or rail, and the information
and documents that must be provided in applications for carrying licences. The
division also imposes requirements and obligations associated with the carriage
of explosives. In particular, there are provisions that provide guidance on how
the terms person in control and reasonable steps are to be
interpreted. For example, in working out whether reasonable steps have
been taken, consideration must be given to whether the requirements under
part 2.6 have been observed.
It is a strict liability offence for a
person to hire someone else to carry explosives by road or rail unless that
person is authorised to carry explosives under regulation 100 or 101. The
maximum penalty that can be imposed is 30 penalty units, reflecting the
seriousness of unauthorised persons carrying explosives.
Division
2.6.3 Explosives driving licences
This division specifies who may drive a
vehicle carrying explosives, and the information and documents that must be
provided in applications for explosives driving licences. The division also
imposes requirements and obligations associated with the driving vehicles
carrying explosives. In particular, there are provisions that provide guidance
on how the terms person in control and reasonable steps are to be
interpreted. For example, in working out whether reasonable steps have
been taken, consideration must be given to whether the requirements under
part 2.6 have been observed.
It is a strict liability offence for a
person that owns or controls a vehicle to allow another person to drive the
vehicle to carry explosives, or to hire someone to drive a vehicle to carry
explosives, if the other person is not authorised to drive vehicles carrying
explosives. The maximum penalty that can be imposed is 30 penalty units,
reflecting the seriousness of unauthorised persons driving vehicles in the ACT
that are carrying explosives.
Similarly, a person authorised to drive a
vehicle carrying explosives must carry with them the required authorisation
whenever they are driving a vehicle carrying explosives. Furthermore, they must
produced the authorisation for inspection whenever they are requested to do so
by an inspector or a police officer. Failure to comply with these requirements
is a strict liability offence with a maximum penalty of 10 penalty
units.
Division 2.6.4 Australian Explosives Code—carrying and
consignment
Under this division a consignor of an explosive must comply
with the Australian Explosives Code (AEC), and that a driver of a vehicle
carrying explosives must carry the shipping documentation required by the
code.
Furthermore, under this division explosives must be carried in
accordance with the AEC, and the holder of a carrying licence must keep a copy
of the shipping documentation required by the AEC for at least 3 years.
Failure to comply with either requirement is a strict liability offence that
carries a maximum penalty of 20 penalty units.
Division 2.6.5
Road carrying conditions
Under this division the Chief Executive may
determine in writing routes and times by which explosives may be carried or must
not be carried in the ACT. A determination under this division is a
disallowable instrument.
Division 2.6.6 Rail carrying
conditions
Under this division the maximum amount of explosive of any
hazard division that may be held in a rail yard must not exceed 40 000 kilograms
and must not be kept for longer than a specified period. Separation distances
must also be observed to ensure that rail vehicles containing explosives are
kept apart.
There is also a strict liability offence with a maximum
penalty of 30 penalty units for the introducing a source of ignition onto a
rail vehicle containing explosives. The setting of the maximum penalty at
30 units reflects the seriousness of the risk to people and property from
such an act.
Part 2.7 Storing explosives
The
requirements in this part vary depending on the type of explosive, its hazard
division, the quantity involved and its intended use. There are three storage
categories set out in divisions 2.7.3, 2.7.4 and 2.7.5. Licences apply
to explosives storage.
Requirements for magazines
The
regulations specify that magazines must be designed, constructed, located and
operated in accordance with AS 2187.1 “Explosives - Storage, Transport and
Use - Part 1 Storage”. The regulations also specify some additional
requirements to those in AS 2187.1.
Requirements for storage
facilities
This type of storage may include a building, room or
receptacle, provided the licence quantity limits are not exceeded. The
requirements set out minimum general safety requirements (such as segregation,
separation and security measures). In addition, storage locations have
specifications covering construction and signage.
Division 2.7.1
Preliminary
This division contains definitions, such as licensed
storage place and magazine, establishes meanings of blasting
and fireworks storage as well as exempt storage, and deals with
the application of Part 2.7.
Division 2.7.2 Storage
licences
This division specifies who may store explosives, and the
information and documents that must be provided in applications for storage
licences. The division also imposes requirements and obligations associated
with the storage of explosives. In particular, there are provisions that
provide guidance on how the terms person in control and reasonable
steps are to be interpreted. For example, in working out whether
reasonable steps have been taken, consideration must be given to whether
the requirements under part 2.7 have been observed.
The division
also requires creation of records about the type and quantity of explosives
stored in each magazine used. These records must be retained for a period not
less than 3 years. Failure to comply with either requirement is a strict
liability offence that has a maximum penalty of 20 penalty
units.
Division 2.7.3 Licensable
storage—magazines
Division 2.7.3 applies to the licensable
storage of explosives in a magazine under a storage licence. If an explosive is
subject to licensable storage, the explosive must be stored in a magazine under
this division and must conform to certain requirements.
Most requirements
in the division are imposed as conditions on a licence. This includes
requirements such as those concerning separation distances for magazines, the
construction of magazines, security fencing and magazine markings. Failure to
adhere to requirements imposed under this division concerning notification of
fire authorities, the taking of certain fire precautions and some security
requirements are strict liability offences.
In the event of a fire
where explosives are stored it is vital to the safety of firefighters, and their
ability to respond quickly and appropriately, that fire authorities are aware of
the presence of explosives and have access to crucial information. Accordingly,
a copy of the licence and a site plan showing the location of magazines must be
notified to a relevant fire authority, as must the cessation of a licence. The
maximum penalty available under this offence is 20 penalty units.
A maximum penalty of 30 penalty units applies if a person brings a
source of ignition, including matches or a lighter into a magazine area or
smokes in a magazine area. This is due to the extreme hazard associated with
such an activity. For similar reasons a vehicle must not be brought into a
magazine area, unless it is for specific reasons including loading or unloading
explosives and security patrols.
Magazines must be kept securely locked
when not in use, and the keys must always be in the licensee’s custody.
However, if an inspector or a police officer exercising a function under the Act
requests that the licensee give them the keys and the licensee fails to comply,
the licensee commits a strict liability offence that has a maximum penalty of
30 penalty units.
It is also a strict liability offence for a
person, other than an inspector or a police officer, to enter a magazine or
magazine area without the authorisation of a licensee. Contravention of this
offence has a maximum penalty of 30 penalty units.
Division
2.7.4 Special portable magazine storage
This division applies to the
special portable magazine storage of explosives. The division requires a
minimum separation distance of 10 metres to be maintained, specified
notices to be posted, and combustible material to be kept at least 3 metres
clear of explosives and a licensed storage place.
The division also
requires an explosive mixture controller to keep persons, other than persons
involved in making the mixture, at least 10 metres away from the place
where the explosive mixture is being made. As failure to meet this requirement
could have very serious consequences it is a strict liability offence that
applies the maximum penalty available under the regulations, 30 penalty
units, as the maximum penalty for this offence. It is also a strict liability
offence, with a maximum penalty of 30 penalty units, for a person that is
not involved in making the mixture to fail to comply with a direction to keep
clear by an explosive mixture controller.
Division 2.7.5 Exempt
storage
Certain types and quantities of explosives are exempt from the
need for a storage licence. Nevertheless, certain requirements relating to
exempt storage must be complied with under this division. As storage under this
division does not require a licence, contravention of any requirement cannot be
enforced under licence conditions. For this reason all provisions in
division 2.7.5 are strict liability offences with a maximum penalty of
30 penalty units.
Under this division any combustible material or source of ignition must be
kept at least 2 metres away from the explosive or the place where the
explosive is stored. Other more general requirements apply (except to general
use fireworks and safety fuses), such as the need to store the explosive out of
the reach of children, must be complied with. Regulation 164 contains
specific storage requirements that apply to safety fuses.
Part 2.8
Supplying explosives
The regulations have general requirements for the
sale of explosives (including ammunition and fireworks). These include
requirements that packaging must conform to the AEC requirements and needs to be
appropriate for the type of explosive. A person who has a licence to use
blasting explosives, is authorised to buy blasting explosives. In other cases,
an authority to purchase is required. Fireworks (other than general use
fireworks) may only be sold to a person who has a fireworks display licence or
an authority to purchase. Distress signals may be obtained without an authority
to purchase.
Sale of blasting explosives
In general, blasting
explosives may be sold to a person who holds a licence to use, store or sell
blasting explosives, and to an official authorised to purchase (e.g. an
inspector buying a sample for testing). The regulations specify duties in
relation to the recording of sale details and to the keeping of records of
sale.
Division 2.8.1 Interpretation
Division 2.8.1
contains only one provision, which instructs that a supply licence is a
licence issued for Part 2.8 authorising the supply of explosives in the
ACT.
Division 2.8.2 Supply licences
This division contains
definitions, such as emergency plan and magazine, establishes
meanings of blasting and fireworks storage as well as exempt
storage, and deals with the application of Part 2.7.
Division
2.8.3 Explosives—supply requirements
The supply of general use
fireworks is not covered by this division, nor is the retail supply of consumer
fireworks under a consumer fireworks licence, which is covered by Part 3.3.
However, division 2.8.3 applies to the supply of all other types of
explosives.
The division prohibits the display or supply of explosives at
any premises and the supply of explosives in a public place. The supply of
defective explosives or explosives in defective packages is also prohibited
unless approval in writing is given by the Chief Executive.
Under
division 2.8.3 there is a requirement to maintain supply records and to
retain those records for at least five years. Failure to comply with these
requirements is strict liability offence with a maximum penalty of
10 penalty units.
It is also a strict liability offence with a
maximum penalty of 10 penalty units for a person taking delivery of an
explosive from a supplier to fail to sign the supplier’s record
book.
Another strict liability offence unique to this division is for
failing to make a supply record book and any associate documents available for
inspection as directed by an inspector or a police officer. Non-compliance with
this offence also has a maximum penalty of 10 penalty
units.
Division 2.8.4 Advertising - supply of
explosives
Division 2.8.4 contains only one provision, an offence
for false or misleading statements about authority to supply blasting explosives
that has a maximum penalty of 30 penalty units. This offence is not a
strict liability offence as recklessness must be shown to prove a contravention
of the provision.
There are six elements of this offence that must be
established to for a contravention to be proved, these are:
• that the
person has made a statement, either orally or in writing or in any other
way,
• the statement concerns either the supply or possible supply of
explosives, or the promotion of the supply or use of explosives,
• the
statement was about the availability of the explosives to members of the
public
• the statement is false or misleading,
• the person
was reckless about whether the statement was false or misleading or omitted
anything without which the statement is false or misleading, and
• the
statement was made in the course of trade or commerce.
Absolute liability attaches to the last element, which excludes the
application of defences, including the defence of mistake of fact to that
element only. Accordingly, to establish the last element it only needs to be
proved to the requisite standard that the statement was made in the course of
trade or commerce.
However, for a conviction to be possible all elements
of the offence must be established, and defences such as mistake of fact can be
raised to any of the other elements.
Part 2.9 Using
explosives
Uses of explosives
Explosives are found in a variety
of forms, such as:
• Primers (blasting), detonators and safety
fuses
• Smokeless powder
• Display fireworks, consumer
fireworks, theatrical fireworks, general use fireworks and Chinese
firecrackers
• Rail track signals and distress flares
• Safety
cartridge primers and explosives assisted power tools
These explosives
are used in a number of applications, such as:
• Quarrying / drilling
• Trenching / ditching
• Sub-soiling Rock
breaking
• Stump removal Log splitting
• Ammunition, and
• Theatrical & entertainment displays
Division 2.9.1
Preliminary
This division contains definitions, such as blasting
permit and shotfirer, and instructs that Part 2.9 applies to the
use of explosives with certain exceptions. Exceptions have been included for
several reasons. Model rocket motors and general use fireworks are excluded as
they are relatively safe articles that are readily available. Fireworks used
under a fireworks display permit are excluded as their use is governed by a
different part of these regulations, whereas the use of distress signals in an
emergency is excluded as persons finding themselves in emergency situations
should not need to have regard to regulatory provisions.
Division
2.9.2 Using explosives - general
This division specifies who is
authorised to use an explosive or manufacture ANFO for immediate use and
provides guidance on how the terms person in control and reasonable
steps are to be interpreted. For example, in working out whether
reasonable steps have been taken, consideration must be given to whether
the requirements under part 2.9 have been observed.
The division
also contains strict liability offences, each with a maximum penalty of
10 penalty units, for allowing a person not authorised to use explosives
and for allowing the use of an explosive at premises contrary to the
requirements of a blasting permit.
Division 2.9.3 Shotfirer
licences
This division specifies the information and documents that must
be provided in applications for a shotfirer licence, and the prescribed
conditions that are imposed on a shotfirer licence.
Division 2.9.4
Blasting permits
This division specifies the information and documents
that must be provided in applications for a blasting permit, the prescribed
conditions that are imposed on a blasting permit and the requirements for blast
plans.
After a blasting operation is completed permit-holders must make
a written evaluation of the operation and, if required by the Chief Executive,
give the Chief Executive a copy. Failure to do so is a strict liability offence
with a maximum penalty of 10 penalty units.
Division 2.9.5
Purchase of additional explosives for blasting operations
This division
enables a shotfirer to make a written application to the Chief Executive for
special authorisation to be supplied with a greater amount of explosives than is
stated in the shotfirer’s licence or the blasting permit. If satisfied
the amount and kind is necessary and the explosives will be stored in accordance
with Part 2.7, the Chief Executive may issue a special
authorisation.
Division 2.9.6 On-site storage by
shotfirers
This division imposes requirements for on-site storage of
explosives by shotfirers. All requirements under this division are imposed as
conditions on a shotfirer’s licence.
Division 2.9.7 Equipment
for blasting operations
Requirements relating to equipment used for
blasting operations are contained in division 2.9.7, including such matters
as the condition of the equipment and the types of firing switches, switchboxes
and short-circuit switches that can be used. There is also a requirement that a
holder of a blasting permit comply with reasonable requests form the shotfirer
about the provision and maintenance of equipment. All conditions within this
division are imposed as conditions on licences or permits.
Division
2.9.8 Before and after blasting
Division 2.9.8 contains requirements and some strict liability offences
that apply to necessary steps and procedures that occur before and after
blasting. Requirements include the need for audible warning systems, dealing
with approaching storms and site preparation. These requirements are imposed as
conditions on licences and permits.
Under this division it is a strict
liability offence with a maximum penalty of 30 penalty units if a shotfirer
fails to take all necessary precautions to prevent any danger to people or
property from the use of explosives in a blasting operation. The same offence
also applies to a person other than the shotfirer that is in charge of a
blasting operation.
It is also a strict liability offence for a person at
a site to fail to obey reasonable instructions given by the shotfirer during the
period when charges are being prepared for firing through to the issue of an
‘all clear’ signal. Contravention of this offence has a maximum
penalty of 30 penalty units.
Division 2.9.9 Electrical firing
Additional requirements are
imposed by this division if electrical firing is utilised, including the use of
exploders and mains firing. Requirements relate to such matters as testing of
components, location of the firing position and the use of electric detonators
near radiation sources. All conditions are imposed as conditions on a
licence.
Division 2.9.10 Other blasting procedures
Blasting
procedures other than those already addressed are dealt with in this division.
Matters covered include the use of detonating cord, the use of ANFO and bulling
charges. All requirements imposed in this division are regarded as conditions
on a licence or permit.
Division 2.9.11 Misfire
precautions
Misfires are specifically dealt with in this division,
imposing specific requirements such as the taking of immediate action after a
misfire and blasting strategies to deal with a misfire.
Due to the
extreme danger associated with improper handling of a misfire, there are several
strict liability offences contained in this division and all but one have a
maximum penalty of 30 penalty units. There is an offence for leaving a
misfire unattended, and for not erecting barriers and necessary signs to warn of
the danger. There is also an offence for removing a cartridged explosive from a
blast hole containing a misfired cartridge, and a prohibition on recommencement
of work until it is safe to do so.
If a misfire cannot be dealt with in
accordance with this division, the controller or manager must issue immediate
instructions to deal with the misfire, ensure those instructions are carried out
and make a record of the instructions issued. If the misfire occurs in a mine
or quarry an inspector must also be notified of the misfire. These requirements
are imposed as a strict liability offence that has a maximum penalty of
20 penalty units..
Division 2.9.12 Special blasting
operations
This division deal imposes additional requirements for
blasting operations that occur under water, use hot-material or involve
high-temperature blasting or involves the demolition of buildings or structures.
Part 2.10 Disposal of explosives
Part 2.10 applies
exclusively to the disposal of explosives. The provisions within this part
impose several conditions as licence conditions
This part is a strict
liability offence with a maximum penalty of 30 penalty units for discarding
explosives, such as throwing the fireworks away or burying them other than in
accordance with regulations 255 or 256. The penalty imposed reflects the
seriousness and the danger to the community associated with discarding
fireworks.
There is also a requirement to keep records of explosives
disposed of, and to retain those records for at least 3 years. Failure to
comply with either requirement is an offence to which strict liability applies,
and carries a maximum penalty of 20 penalty units.
Chapter 3
Fireworks
This chapter deals exclusively with fireworks, and imposes
greater control and regulation of the use and supply of all types of fireworks
within the ACT.
Part 3.1 Kinds of fireworks
The various kinds
of fireworks are determined by this part, including general use fireworks,
consumer fireworks and prohibited fireworks. The categories are crucially
important to the establishment of an improved and better regulated scheme.
General use fireworks are available for sale year round, and are fireworks that
pose very little risk to persons or property. Included in this category are
party poppers, snaps for bon-bons, and sparklers.
Consumer fireworks are
a controlled set of fireworks that have a limited amount of pyrotechnic
substance, which limits the hazards associated with their use, and are designed
to produce a visual effect but not a load noise or report. Examples of such
fireworks are fountains, wheels and snakes. The sale of consumer fireworks is
limited to a one week period preceding the Queen’s birthday long weekend,
and may only be used during specified hours during that long weekend. To ensure
a greater degree of control than under the previous regulatory regimes, the
supply, storage and use of consumer fireworks is tightly controlled using
licenses, authorised receipts, and offences. Supply to children and non-ACT
residents is strictly prohibited.
This part also specifies fireworks that
are prohibited fireworks, and are illegal in the ACT.
Part 3.2
General use fireworks
This part deals exclusively with general use
fireworks. Included in this part is a strict liability offence for failing to
use a firework in accordance with instructions. An example would be to use a
sparkler indoors if the accompanying instructions direct not to do so. This
offence has a maximum penalty of 5 penalty units, which reflects the low
level of danger associated with general use fireworks. Also in this part is a
provision that specifically excludes the operation of chapter 3, other than
this part, from applying to general use fireworks.
Part 3.3 Consumer
fireworks
This part deals exclusively with the sale and use of consumer
fireworks during the Queen’s birthday long weekend in
June.
Division 3.3.1 Preliminary
This division contains
definitions, such as consumer fireworks licence and identification
papers, establishes a meaning of supply that applies exclusively to
part 3.3, and deals with the application of the part.
Division
3.3.2 Consumer fireworks supply and storage - general
This division
imposes requirements and obligations associated with supplying and storing
consumer fireworks. In particular, there are provisions that provide guidance on
how the terms person in control and reasonable steps are to be
interpreted. For example, in working out whether reasonable steps have
been taken, consideration must be given to whether the requirements under
part 3.3 have been observed.
Division 3.3.3 Consumer fireworks
licences
This division has the important function of establishing what
information and documents must accompany an application for a consumer fireworks
licence and prescribed conditions imposed upon such licences. Most notably,
this division establishes that the maximum period for a consumer fireworks
licence is 1 year. Section 54(2) of the Act provides that the maximum
term of a licence is 3 years, unless a shorter maximum term is prescribed
by regulations. As the supply, storage and use of consumer fireworks is
confined to a specified period in each year, and evaluation of licence
applications will include an examination of past compliance with regulatory
requirements, a maximum term of 1 year for consumer fireworks licences is
necessary and appropriate.
Division 3.3.4 Supply of consumer fireworks
This division imposes
strict requirements upon suppliers of consumer fireworks. An obligations to
ensure all staff have received proper training about safe handling of fireworks,
the law relating to the supply of fireworks and record-keeping requirements and
emergency procedures is imposed, and is regarded as licence condition under the
Act.
There are also strict liability offences, each carrying a maximum
penalty of 30 penalty units, for supply and advertising outside the
Queen’s birthday supply period. There are also similar strong measures
about display consumer fireworks for supply, supply to children or non-ACT
residents, misrepresentation and the issue of consumer fireworks authorised
receipts.
In all cases the potential for injury, damage to property or
disturbance of the peace that arises from contravention of these requirements
warrants maximum penalties of 30 penalty units.
Division 3.3.5 Labelling – consumer fireworks
Requirements
about where labels must be fixed, the information that labels must contain and
the obtaining of assurances from importers or manufacturers about labels is
required in this division. Each requirement is regarded as a licence condition
under the Act.
Division 3.3.6 Packaging and safety instructions
– consumer fireworks
Under division 3.3.6 consumer fireworks
must only be supplied to a consumer if the fireworks are in sealed packages, and
those packages must meet set requirements about seals, construction and affixed
labels. The division also details required safety information to be supplied
addressing issues such as storage, use and carrying fireworks in vehicles.
Division 3.3.7 Storage of consumer fireworks
Storage
requirements for consumer fireworks are contained in division 3.3.7. There
is a mix of provisions imposing licence conditions and provisions drafted as
strict liability offences in this division. Of most significance is that
consumer fireworks may only be stored under a licence at premises stated in the
licence, in the period beginning two days before to two days after the
Queen’s birthday supply period, and in a quantity no greater than
200kg.
The limited supply period aims to prevent any likelihood of
consumer fireworks being sold at any time during the year other than during the
Queen’s birthday supply period. The allowance for 2 days preceding and
following the supply period recognises that suppliers will need some allowance
for setting up and packing up. The limitation on quantity reduces the hazard
associated with large quantities of fireworks being kept in a single
location.
Division 3.3.8 Consumer fireworks
records
Division 3.3.8 requires records of deliveries made,
deliveries received and consumer fireworks sold to be created and maintained for
set periods. As many of these records are evidence of consumer fireworks trade
during the Queen’s birthday supply period, and discrepancies could
indicate non-compliance with the regulatory regime, each requirement is a strict
liability offence.
Division 3.3.9 Use of consumer fireworks
The
majority of Part 3.3 imposes obligations and requirements upon suppliers of
consumer fireworks. However, under division 3.3.9 the use of consumer
fireworks is regulated, and enforced through strict liability offences. A
particularly important provision within division 3.3.9 is the creation of a
strict liability offence, carrying a maximum penalty of 30 penalty units,
for use of a consumer firework outside of the permissible period in each year.
The division also stipulates that to lawfully use a consumer firework a
person must be an adult living in the ACT that holds a consumer fireworks
authorised receipt. If a person does not meet these criteria, or uses a
firework other than a consumer firework or a general use firework, they
contravene section 82 of the Act (unauthorised handling of dangerous
substances generally). Section 82 of the Act is a strict liability offence
that has a maximum penalty of 100 penalty units. Accordingly, persons
using consumer fireworks who do not hold a consumer fireworks authorised receipt
chance significant penalties if convicted.
Part 3.4 Fireworks
displays
This part applies to fireworks displays performed by licensed
display operator’s operating under a fireworks display permit.
Division 3.4.1 Preliminary
Preliminary matters in this
division set out how Part 3.4 applies, as well as definitions applying to
Part 3.4 such as display site and effective
barrier.
Division 3.4.2 Using fireworks for fireworks displays -
general
Included in this division is a provision stating that a person is
authorised to use a firework for a fireworks display if the person holds a
display operator’s licence, a fireworks display permit, or is engaged to
use fireworks under the supervision of a holder of either a display
operator’s licence or a fireworks display permit. Furthermore, under this
division the holder of a display operator’s licence or a fireworks display
permit must carry the licence or permit at all times when they are using or
preparing to use fireworks.
If an inspector, police officer or
firefighter requests to see their licence or permit, it must be produced.
Neither of these requirements are offences as both are conditions imposed under
the licences and permits. Furthermore, the division contains provisions that
provide guidance on how the terms person in control and reasonable
steps are to be interpreted. For example, in working out whether
reasonable steps have been taken, consideration must be given to whether
the requirements under part 3.4 have been observed.
Division
3.4.3 Display operator licences
Information to be included in an
application for a display operator’s licence, how a suitable person for a
licence is to be determined, and conditions that apply to all display
operator’s licences are all contained within
division 3.4.3.
Division 3.4.4 Fireworks display
permits
Information to be included in an application for a fireworks
display permit, how a suitable person for a permit is to be determined, and
conditions that apply to all display operator’s licences are all contained
within division 3.4.4.
Furthermore, the division prescribes
requirements relating to insurance and restrictions on the times and places
outdoor displays may be conducted. There are also provisions permitting the
Chief Executive to approve multiple displays, generally and for theatrical
events.
If a holder of a fireworks display permit proposes to conduct an outdoor
fireworks display this division requires certain notifications to be made.
Public notice in a daily newspaper circulating in the ACT is required in order
to adequately inform the public. This puts Canberra residents who may be
affected on notice so any disturbance is not unexpected, and will also give
residents with pets sufficient time to make arrangements in order to minimise
any likely distress to their animals.
Notification must also be given to
the police, fire and emergency services, no later than 7 days before the
proposed date of the display. Aside from putting those agencies on notice, the
forewarning enables each agency to make necessary preparations for likely
consequences of the display, such as altered traffic conditions and staffing
resources.
Division 3.4.6 Management of fireworks
displays—general
Division 3.4.6 applies to persons who hold a
fireworks display permit and imposes a range of obligations, many of which are
safety precautions, such as provisions concerning fire protection, sources of
ignition and malfunctions. All provisions save for two, which concern keys for
electrical firing and reporting on displays, are drafted to be conditions on the
permit.
The requirement to report on displays in division 3.4.6 is a
strict liability offence with a maximum penalty of 20 penalty units. The
provision requires a report, containing specified information, to be provided to
the Chief Executive and for a copy of the report and the permit to be kept by
the permit-holder for 3 year after the display. As such a requirement
cannot be imposed as a condition on the permit if the permit has expired, this
provision must be drafted as an offence. The maximum penalty imposed reflects
the importance of reporting on a display conducted, but also reflects that any
risk of danger created from non-compliance is relatively low.
The
provision concerning keys for electrical firing contains a strict liability
offence with a maximum penalty of 30 penalty units, reflecting the
seriousness and the risk to safety if the provision is
contravened.
Division 3.4.7 Management of outdoor
displays
Obligations are imposed upon persons who hold a fireworks
display permit and will conduct a fireworks display outdoors under this
division. The provisions within this division concern issues such as separation
distances for firing fireworks, barriers for fireworks displays, mortar
requirements and the firing of aerial shells. All provisions in
division 3.4.7 are drafted to be conditions on a fireworks display permit,
and all are concerned with reducing risks to the community from the use of
display fireworks.
Division 3.4.8 Miscellaneous
This division
contains provisions concerning the use of theatrical fireworks, flash powder and
Chinese firecrackers.
Schedule 1 Consumer
fireworks—registration standards
Registration standards for
consumer fireworks are contained within Schedule 1, including matters
relating to construction and design standards, sampling and testing standards
and classification reports.
Schedule 2 sets out requirements for safety management systems for the
manufacture of explosives that are in addition to those found in
regulation 57. The schedule addresses such issues as operational controls,
performance monitoring and the elements of a safety management
system.
The Dictionary contains further definitions of terms and
concepts used in the Regulations.