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DANGEROUS SUBSTANCES (GENERAL) REGULATION 2004 (NO 56 OF 2004)
2004
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
DANGEROUS SUBSTANCES (GENERAL)
REGULATION 2004
EXPLANATORY STATEMENT
Circulated by authority of the
Minister for
Industrial Relations
Ms Katy Gallagher MLA
DANGEROUS SUBSTANCES (GENERAL) REGULATION 2004
The Dangerous Substances Act 2004 establishes a modern duty-based
framework for the regulation of dangerous goods and hazardous substances in the
ACT. The objective of the Act is to protect the health and safety of people and
to protect property and the environment from damage from the hazards associated
with dangerous substances.
This regulation repeals the Dangerous
Substances (General) Regulation 2004 SL2004-09. The provisions of the
latter regulation are incorporated into this regulation as part of the
progressive development of the dangerous substances regulatory regime. This
avoids the renumbering difficulties that would arise if the regulation were
amended section by section. The new provisions establish additional requirements
for the safe handling and storage of certain dangerous substances
(chapter 2), and a licensing regime for prescribed security sensitive
substances (chapter 4) along with consequential amendments to the Dangerous
Substances (Explosives) Regulation 2004 (chapter 6).
Chapter 2, in conjunction with certain provisions of the Dangerous
Substances Act, implements the nationally agreed framework for safe chemical
management based on the National Standard for the Storage and Handling of
Workplace Dangerous Goods (the “Dangerous Goods Standard”) declared
by the National Occupational Health and Safety Commission [NOHSC: 1015(2001)].
Chapter 2 also implements some elements of the National Model Regulations
for the Control of Workplace Hazardous Substances [NOHSC:1005(1994)] where these
overlap with provisions of the Dangerous Goods Standard. The Dangerous Goods
Standard establishes a performance-based approach to chemical management through
the principles of hazard identification, risk assessment and risk
control.
Chapter 2 applies to dangerous goods classes 2, 3, 4, 5, 6.1, 8 and
9, C1 and C2 combustible liquids and “goods too dangerous to be
transported”. Radioactive substances (class 7) and infectious
substances (class 6.2) are covered by other ACT laws. The transport of
dangerous goods in the ACT is regulated through the Road Transport Reform
(Dangerous Goods) Act 1995 (Cwlth).
The new requirements apply to manufacturers, importers and suppliers of dangerous substances where these activities are carried out in a business or commercial context. There are specific duties which each of these groups must comply with. These duties include:
§ correctly classifying the substance;
§ ensuring that it is in a safe condition for handling, and properly packed and labeled;
§ storing the substance safely with proper
signage; and
§ keeping proper records and
safety information.
The Dangerous Substances Act requires the preparation
and documentation of a safety management system where dangerous substances are
commercially handled. Manufacturers, importers and suppliers of dangerous
substances must identify hazards, assess the associated risks, and put control
measures in place. They also need to consult with employees and health and
safety representatives about the safety management system and ensure employees
receive proper induction and training, and are provided with information about
the dangerous substances in the workplace. The regulation requires that risk
assessments be reviewed every five years.
People in control of premises where dangerous substances are handled and stored are responsible for control measures such as:
§ controlling access to the site/substances;
§ keeping plant and equipment properly maintained;
§ ensuring there are no ignition sources in hazardous areas;
§ preventing spills, and containing spills and leaks that do occur;
§ preventing interaction with other substances;
§ thoroughly cleaning tanks and containers;
§ providing safety and personal protective equipment;
§ providing fire protection and fire
fighting equipment; and
§ developing
emergency procedures.
Safety data sheets (sometimes called material
safety data sheets or MSDS) describe the chemical and physical properties of a
substance and provide advice on its safe handling and use. The regulation
requires manufacturers of a substance to prepare a safety data sheet. Persons
in control of premises where dangerous substances are held must obtain and keep
copies of safety data sheets.
The regulation requires premises where
dangerous substances are held to be properly placarded. Placarding requirements
are set out in the regulation and follow nationally and internationally agreed
standards, e.g. a HAZCHEM outer warning placard. Placards are required to be
displayed on all premises holding quantities at or over the specified
“placard quantity”.
Premises with larger or more dangerous
amounts (“manifest quantities”) of specified substances are also
required to maintain manifests. Manifests provide emergency services personnel
with information about the quantity, type and location of dangerous substances
on a site. Emergency plans also have to be developed for premises where the
quantity of dangerous substances is at or above “manifest
quantity”.
All premises at which dangerous substances are stored
(or are likely to be stored) in quantities at or greater than the placard
quantity threshold are defined as “registrable premises” must be
notified through a “placard quantity notice” and registered. A
person in control of premises that should be registered and are not registered
will be subject to offences with large penalties. The regulation provides for a
registration term of two years. Where there is a significant change of risk on
a registered premises during this term, this change must be notified through a
“risk change notice”. The streamlined notification and registration
provisions of the regulation replace the licensing system established through
the repealed Dangerous Goods Act 1975.
Chapter 3
incorporates provisions which effectively prohibit the import, manufacture,
supply (including sale), storage, use, re-use and installation of all types of
asbestos in the ACT as part of a nationwide ban on the import and use of
asbestos from 31 December 2003.
Chapter 4 establishes a
licensing regime for all activities (manufacture, import, carriage, storage,
supply, use, and disposal) along the supply chain in relation to prescribed
“security sensitive substances”. Fertilizer-grade ammonium nitrate
is prescribed in Schedule 4 as a security sensitive substance as are the
authorised purposes for which it can be used. The provisions implement the
Council of Australian Governments’ agreement to establish a nationally
consistent, effective and integrated approach to controlling access to security
sensitive ammonium nitrate, and establish a framework for the regulation of
other security sensitive substances which might be identified in the future.
Some elements of the security sensitive substances licensing regime are extended
to the licensing of explosives and are reflected in the consequential amendments
of the Dangerous Substances (Explosives) Regulation 2004 set out in
part 6.4.
The Dangerous Substances Act provides for the
administrative review of decisions of the Minister, the chief executive or an
inspector which are prescribed in regulations. Section 187 provides that if
the decision-maker makes a reviewable decision, the decision-maker must provide
written notice to persons prescribed in regulations for the decision.
Section 188 provides for the internal review of prescribed decisions.
Chapter 5 of the regulation establishes a schedule of decisions which are
reviewable, identifies the decision-maker and the persons to whom notice must
given.
Chapter 6 sets out a number transitional provisions including
licence terms and expiry of licences issued under the Dangerous Goods Act
1975, the repeal of the Dangerous Substances (General) Regulation 2004 which
is replaced by this regulation, and amendments to the Dangerous Substances
(Explosives) Regulation 2004 which for the most part are consequential to the
new licensing provisions for security sensitive substances.
This chapter contains sections 1 to 7. Sections 1 to
4 deal with formal matters such as the name of the regulation, the
commencement dates for various provisions, and the roles of the dictionary and
of notes in the regulation. Section 2 specifies when the various
parts of the regulation commence.
Sections 1 and 2 -
which specify the name of the regulation and the commencement of the regulation
- automatically commence on the notification day under section 75(1) of the
Legislation Act 2001. Part 6.1 commences on the day after
notification, as do minor technical amendments to the Dangerous Substances
(Explosives) Regulation 2004 contained in sections 669
and 672.
All other provisions – with the exception
of chapter 4 (Security sensitive substances) and related consequential
amendments of the Dangerous Substances (Explosives) Regulation 2004 –
commence on 31 March 2005. This provides a transitional period
following notification during which ACT businesses can put in place arrangements
which comply with the safe storage and handling provisions of the new
regulation.
The security sensitive substance provisions within
chapter 4 and Schedule 4 will commence on the nationally agreed
commencement date of 30 June 2005 as will listed provisions that are
consequential amendments to the Dangerous Substances (Explosives)
Regulation 2004 to require the same level of security and background
checking for explosives licences that will be required for security sensitive
substances.
Section 5 prescribes a number of documents as
“incorporated documents” for this regulation. It also explains the
relationship between this regulation and incorporated documents, including
provision that if this 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.
Section 6 explains the meaning of “ensure” where a
provision of this regulation requires a person to ensure something is or is not
done and provides that the requirement is satisfied where the person takes
reasonable steps to eliminate the hazards and eliminate or minimise the risks.
“Reasonable steps”, “hazard” and “risk” are
defined in the Act and are concepts central to systematic approaches to safety
management.
Section 7 instructs that the ACT Criminal Code 2002 applies to offences under the regulation. There are a number of offences in the regulation which are “strict liability” offences. Section 23 of the Criminal Code provides that if an offence is a strict liability offence, there are no fault elements for any of the physical elements of the offence. In addition to other defences, the defence of mistake of fact under section 36 of the code also applies to strict liability offences. Section 223 of the Dangerous Substances Act provides that the maximum that can imposed for an offence against a regulation made under the Act is 30 penalty units. A number of the more serious offences in this regulation attract a maximum penalty of 30 penalty units. This recognises the serious consequences that can potentially arise from a contravention of the relevant provisions.
This part explains important concepts and terms that are central to
understanding the purpose and operation of chapter 2. These include the
dangerous substances classes to which the provisions of the chapter apply in the
context of handling in the course of trade or commerce. This makes it clear
that these requirements are not applicable in non-commercial and domestic
settings. Division 2.1.3 explains the meaning of important concepts
related to quantities of dangerous substances. These concepts are based on
nationally agreed definitions of quantities set out in the National Standard for
the Storage and Handling of Workplace Dangerous Goods [NOHSC: 1015(2001)].
“Placard quantity” and “manifest quantity” establish
thresholds for the application of specific controls. Section 206
also explains how the total quantity of dangerous substances at the premises is
to be determined.
Division 2.1.4 explains that a
“registrable premises“ is one at which dangerous substances are
present (or likely to be present) in quantities equal to or greater than the
placard quantity. All registrable premises are subject to the requirements for
notification and registration in part 2.6. “Manifest quantity registrable
premises” are subject to additional requirements in relation to manifests
and emergency plans. The National Standard for the Storage and Handling of
Workplace Dangerous Goods includes provision for notification of premises where
dangerous goods are present (or likely to be present) in quantities equal to or
greater than the manifest quantity. This regulation imposes a lower
notification threshold. Notification and registration of these sites will
enable better collection of information about the location of dangerous
chemicals in larger amounts across the Territory and is in the interests of
public safety and an orderly audit program.
Sections 211 to 214 impose requirements upon manufacturers,
importers and suppliers to ensure dangerous substances are correctly classified,
correctly packed, and correctly labelled. These provisions require consistency
with the Australian Dangerous Goods Code. The Code is an “incorporated
document” under section 10 of the Dangerous Substances Act. Failure to
comply with the requirements about packing, marking and supply could amount to
an offence under provisions of the Dangerous Substances
Act 2004.
Sections 215 to 217 impose
requirements for dangerous substances to be accompanied by accurate, legible and
detailed safety data sheets and sets out the detailed requirements of what must
be included in a safety data sheet and how safety data sheets are to be
presented. Safety data sheets are generally referred as “material safety
data sheets” in other Australian jurisdictions. The use of the term
“safety data sheet” in this Regulation is consistent with
international usage in the context of the Globally Harmonised System (GHS)
of Classification and Labelling of Chemicals and anticipates the adoption of the
GHS in Australia. Failure to comply with the requirements about safety data
sheets is likely to amount to an offence under provisions of the Dangerous
Substances Act 2004.
The requirements for safety data sheets are
supplemented by two provisions (sections 218 and 219) that enable
doctors or persons responsible for health and safety to seek additional
information to what is provided in a safety data sheet. Doctors can ask for
additional information where the doctor believes on reasonable grounds that the
information may help the doctor treat a patient. A manufacturer or importer
must immediately comply with a request of this nature. Failure to do so is a
strict liability offence with a maximum penalty of 15 penalty units.
Similarly, a responsible person may also request additional information
if the person believes on reasonable grounds that the need for the additional
information is justified and the person must state these reasons in the request.
A request of this nature is only justified if it would help protect the health
and safety of persons who may be exposed to the substance. It is a strict
liability offence with a maximum penalty of 15 penalty units if the
information provided is used for any other purpose than that contemplated by the
provisions. This reflects the need to protect information which is commercially
sensitive.
Failure to respond in writing within 30 days is a strict
liability offence with a maximum penalty of 15 penalty units. The written
response must either disclose the necessary information, reject the request and
give reasons for doing so, or reject the request but provide alternative
information that will assist in protecting the health and safety of people
exposed to the substance.
Part 2.3 establishes requirements for the preparation, documentation and
implementation of safety managements systems for all registrable premises in the
ACT. Preparation of safety management systems must be based on a process of
hazard identification considering a range of matters, including information
contained in safety data sheets, handling systems, and manufacturing and
transport processes. Incidents that have occurred involving the substance
should also be considered. Such incidents could be incidents that occurred at
the premises, or could be incidents that are known, or are reasonably expected
to be known, to the person preparing the safety management system. A
person’s knowledge of incidents that have occurred at other locations
could be through prior work experience, incidents described in occupational
health and safety bulletins or through internal company memorandum about
incidents that have occurred in other Australian
jurisdictions.
Part 2.3 also contains a strict liability offence
with a maximum penalty of 15 penalty units if a person in control of
registrable premises fails to do everything reasonable to find out about the
hazardous properties of a substance. For example, a person in control of
registrable premises should obtain and be familiar with the information provided
on safety data sheets for the substances handled. Similarly, the person should
obtain all relevant information about the potential interaction and
compatibility of substances handled at the premises.
Where a hazard is
identified the person in control of the premises must ensure that a written
assessment is made of the risks associated with the hazard which states the
methods considered and ultimately chosen for controlling the risks identified.
Important principles of substitution (of alternative substances with lower
handling risks) and reduction (of quantity) are set out in section 227.
A dated copy of that assessment must be kept at the premises and be available to
persons who might be exposed to the hazard while working at the premises.
Risk assessments must be reviewed whenever a significant change occurs
or there is evidence to suggest the risk assessment is no longer adequate. If
the review results in an amendment, a revised risk assessment must be kept
indicating the date of amendment. Risk assessments must also be reviewed five
years after the assessment was first prepared, if it has not been necessary to
review the assessment earlier.
When reviewing risk assessments, the
reviewer should consult with employees who carry out the work and with health
and safety representatives. If a risk assessment has been made in relation to a
hazard at registrable premises, a copy of that risk assessment must be made
available to anyone who is likely to be exposed to the hazard while working at
the premises.
Division 2.4.1 (Registrable premises—isolation, stability
and interaction) contains obligations about handling of dangerous substances
that are supported by strict liability offences. These obligations are imposed
on the person in control of registrable premises.
Section 228 establishes an obligation to ensure that the
risk to outside persons and property from a dangerous occurrence that could
happen at the premises is eliminated, or reduced as far as possible, by
separation distances or physical barriers.
Section 229
imposes an obligation upon a person in control to ensure that a dangerous
substance does not become unstable, decompose or begin to change in a way that
would create a new hazard or increase an existing risk. Furthermore, if it is
necessary to use stabilisers or to keep a dangerous substance below a set
temperature in order to keep the substance stable, the person in control is
obligated to ensure this occurs. Section 229(5) details what is
meant by a “stabiliser” and contains examples of stabilisers.
Section 229 does not apply if the dangerous substance is about to be
used in a manufacturing process.
Other obligations under
division 2.4.1 include ensuring that a dangerous substance at the
premises does not interact with an incompatible substance, and ensuring that a
dangerous substance does not contaminate food, food packaging or personal use
products. Accordingly, dangerous substances handled should be kept away from
kitchen areas, and places (such as staff lockers) where personal products are
kept.
The maximum penalty available for each of the offences in
division 2.4.1 is 30 penalty units.
Division 2.4.2 contains obligations about plant and structures
used for dangerous substances that are supported by strict liability offences.
These obligations are imposed on the person in control of registrable premises.
One obligation is to ensure that tanks in which dangerous substances are
stored in bulk, and any associated pipework, have stable foundations and
supports, are protected from corrosion and are inspected at appropriate
intervals. It is also necessary to ensure any pipework or equipment connected
to the tank is installed in a way that prevents excessive stress to the tank and
the pipes and equipment. Records of all inspections must be made and kept at
the premises.
Section 233 imposes an obligation upon a
person in control when a container at registrable premises is being
decommissioned because the container is being disposed of or will no longer used
to hold a particular substance. The person in control must ensure that the
container is thoroughly cleaned and returned to the state it was in before the
substance was added. This is to ensure that when the container is next used,
there is no trace of the previous substance that could react with the new
substance. If the substance is a gas or volatile liquid, the concentration of
the gas or vapour in the container must be less than the concentration listed in
the National Exposure Standards for the substance. Furthermore, if the
dangerous substance is a class 2.1 or 3 dangerous substance or is of a
subsidiary risk 3, the concentration of the substance must be less than 5%
of the lower explosive limit for substance at ambient
temperature.
Another obligation under division 2.4.2 is to
ensure that any plant at the premises used with dangerous substances is
protected against damage, and from impact with vehicles and other plant.
Personal protective equipment is a basic and fundamental safety
requirement that must not be neglected. Accordingly, under
section 235, a person in control of registrable premises must ensure
that an exposed person is required to use personal protective equipment whenever
the person is, or may be expose to the dangerous substance. In doing so, the
person in control must also ensure that the personal protective equipment
provided for the exposed person’s use is suitable for that use, undamaged
and effective, and maintained in good condition.
Section 235(4) also contains an offence with a maximum
penalty of 30 penalty units if any person engages in conduct that damages
or makes ineffective any personal protective equipment. This offence contains a
mental element requiring that it be proved that the offender intended the act or
omission. This ensures that accidental damage of personal protective equipment
resulting from the ordinary use of the equipment is not an offence.
The
maximum penalty available for each of the offences in division 2.4.2
is 30 penalty units.
Division 2.4.3 obligates a person
in control of registrable premises to ensure there is sufficient and suitable
lighting to enable safe access to all parts of the premises where dangerous
substances are handled, and that safe access to those same areas is provided and
maintained. Failure to do so is to contravene a strict liability offence
carrying a maximum penalty of 20 penalty units.
A person in
control of registrable premises must also ensure that unauthorised persons do
not have access to dangerous substances at the premises. Breaching this
requirement is also a strict liability offence, but carries a maximum penalty of
30 penalty units.
Spills are a potential risk for any premises
that handles dangerous substances, and as such, Division 2.4.4
imposes obligations upon a person in control of registrable premises, and these
obligations are supported by strict liability offences. Under
sections 239 and 240, the person in control of registrable
premises must ensure any risks are eliminated, or if it is not practicable to
eliminate the risks, that the risks are minimised.
Section 239 requires the establishment of spill containment
systems for spills and leaks, and that a spill containment systems cannot create
a further risk by bringing incompatible substances together should a leak or
spill occur. Where a leak or spill does occur, the section also requires
immediate action regarding the risk and that the substance or effluent are
cleaned up, disposed of or otherwise made safe as soon as
practicable.
The requirements for the safe transfer of substances from
area to area, or from or into a container are established by
section 240. The provision requires spills, leaks and overflows to
be avoided and for any static electricity and any vapour generated because of
the transfer be minimised. Also required is the elimination or control of
ignition sources, and that pipework used is appropriate for the substance and
adequate for the transfer.
Clean up equipment suitable for the dangerous
substance or substances handled must be kept at the premises, maintained in good
condition and accessible to persons at the premises under
section 241.
The maximum penalty available for each of the
offences in division 2.4.4 is 30 penalty units.
There
are two strict liability offences under division 2.4.5. The first is
where a person in control of registrable premises fails to ensure ignition
sources in a hazardous area are eliminated, or if elimination is not
practicable, fails to ensure those sources are minimised.
Section 242(3) refers to relevant Australian and New Zealand
Standards that establish what is a hazardous area. The maximum penalty
available for this offence is 25 penalty units.
The other offence
is where a person in control fails to ensure that any risks associated with
atmospheric conditions that are flammable, explosive or asphyxiant are
eliminated, or if elimination of those risks is not practicable, fails to ensure
those risks are minimised. The maximum penalty available for this offence is
30 penalty units.
Division 2.4.6 contains only
section 244 that requires a person in control of registrable
premises to ensure the premises have adequate fire protection. This requires an
appropriate fire protection system to be designed and constructed that uses
firefighting methods adapted for the substance(s) and the quantities held. This
fire protection system must also be properly installed, tested and maintained,
accessible to persons at the premises and to emergency services, and that fire
hydrants and hose coupling points are suitable for use by firefighters. Records
of testing and maintenance must also be dated and kept. These requirements are
supported by a strict liability offence with a maximum penalty of
30 penalty units.
Section 244 also requires a person in
control of registrable premises to take specific steps should part or all of a
fire protection system become unserviceable or inoperative. Failure to take
these steps is also a strict liability offence with a maximum penalty of
30 penalty units.
Division 2.5.1 contains requirements aimed at ensuring that
persons (substance handlers, plant users, and visitors to registrable premises)
are given appropriate information about hazards and safety on the site.
Section 245 requires a person in control of registrable premises to be
give induction, information, training and supervision to anyone who handles a
dangerous substance, whether they are employees or contractors, and in a
language and way appropriate to the handler and relevant to the handling
activity. Accordingly, if English is a second language for a handler, or the
handler is illiterate, the person in control must take these matters into
consideration. Induction, information and training must include instruction
about the matters listed in section 245(3) paragraphs (a) to (e).
In addition, the person in control must make a record of induction,
information, trading and supervision given under section 245 and
keep those records for five years. Even if dangerous substances stop being
handled at premises within the five-year period, the record must still be kept
by the person in control until the five-year period has elapsed. The person in
control must also provide a copy of a record to an inspector upon
request.
Failure to comply with any requirement in
section 245 is a strict liability offence with a maximum penalty of
30 penalty units.
Sections 246 and 247 also require a
person in control of registrable premises to give information on procedures for
the safe operation of plant to any person who is to operate the plant, in order
to ensure any risks are eliminated, or if this is not practicable, the risks are
minimised. Information, safety instructions and supervision must also be
provided to any visitors to the premises for the same purpose. Again, failure
to comply with these requirements is a strict liability offence that carries a
maximum penalty of 30 penalty units.
Under
division 2.5.2 a person in control of registrable premises is
required to keep specific information and to ensure that the information is
maintained and up-to-date. One such requirement is for safety data sheets for
each substance handled at the premises to be obtained, and for current safety
data sheets to be accessible to anyone that handles the substance under
section 248. The same provision obliges a person in control not to
amend a safety data sheet except under section 215 or where it is
necessary to enable a safety data sheet prepared overseas to be understood more
easily. Contravention of this obligation is a strict liability offence that
carries a maximum penalty of 30 penalty units.
This obligation
does not extend to a dangerous substance if it is regarded as being in transit
under this regulation, or is handled at a retail outlet or warehouse in an
unopened and correctly packed and labelled packaged form. However, the person
in control must ensure that alternative information about the safe handling of
the substance is readily accessible instead. Again, failure to comply with this
requirement is a strict liability offence with a maximum penalty of
30 penalty units.
Section 248(4) requires a person in
control to ensure that if alternative information is provided, it is consistent
with the information in a safety data sheet, and is clearly identified as
information that provided by the person. The provision is supported by a strict
liability offence with a maximum penalty of 30 penalty units.
A
person in control of registrable premises is also required to keep a register at
the premises that lists each dangerous substance handled at the premises and a
copy of the safety data sheet for each dangerous substance handled. This
register must be readily accessible to people at the premises. A person in
control who does not comply with this obligation, commits a strict liability
offence that carries a maximum penalty of 30 penalty units. This
obligation does not extend to a dangerous substance if it is in a package that
is not large enough to require marking under the Australian Dangerous Goods Code
or if it is regarded as being in transit under this regulation.
Under
section 250, a person in control of premises who ceases to be in
this capacity, must ensure that any documents listed in section 250,
such as risk assessments and emergency plans, remain at the premises when he or
she departs. Similarly, the new person in control is also obligated to ensure
all records listed in section 250 remain at the premises. Should
either person fail to comply with their obligation under this provision, he or
she commits a strict liability offence that carries a maximum penalty of
20 penalty units.
Ensuring that packages containing dangerous
substances bear labels and that those labels are correct is a fundamental safety
requirement under the dangerous substances legislation. Accordingly, under
division 2.5.3, if a person in control of registrable premises
accepts a package containing dangerous substances that the person knows, or
ought to know, are incorrectly labelled, the person is obliged under this
provision to act immediately to correct the existing labeling or re-label the
package so that the package is correctly labelled. This offence contains a
mental element requiring that it be proved to the requisite standard that the
offender intended the act or omission, or was either reckless or negligent about
the act or omission. The maximum penalty for an offence under this provision is
30 penalty units. Naturally, there is nothing preventing a person in
control from refusing to accept an incorrectly labelled package of a dangerous
substance.
Clearly, packaged dangerous substances that cannot be
properly identified, or for which information is unavailable because the
labeling has been removed or has become illegible is equally as hazardous as
incorrectly labelled packages. For comparable reasons, a person in control of
registrable premises must ensure that while a package containing a dangerous
substance is at the premises the package remains correctly labelled, and that
the label is neither removed or becomes illegible. Failure to comply with this
requirement is a strict liability offence with a maximum penalty of
20 penalty units. Similarly, a person in control of registrable premises
must ensure that packaging labelled to indicate it contains one type of
dangerous substance must not be used to house another kind of dangerous
substance, or indeed any other substance. Failure to comply with this
requirement is also a strict liability offence with a maximum penalty of
20 penalty units.
Where dangerous substance are transferred into
portable containers for use at the premises, the person in control must ensure
the portable container is then labelled with the dangerous substance class
label, subsidiary risk label and product name of the substance. Where it is not
possible to label a portable container in this manner, the person in control
must ensure the substance is clearly identified. Failure to meet this
obligation is a strict liability offence with a maximum penalty of
25 penalty units. The obligations do not apply, however, if the substance
is used immediately and the portable container is then thoroughly cleaned to
return the container to the state it was in before the substance was added.
This is to ensure that when the portable container is next used there is no
trace of the previous substance that could react with the new substance.
Division 2.5.4 imposes requirements to for the display of
placards at registrable premises, as well as the required locations and form of
placards. As stated in relation to section 208, registrable premises are those
at which dangerous substances are, or likely to be present, in at least the
placard quantity. Placard requirements are set out in schedule 2 of this
regulation following the National Standard for the Storage and Handling of
Workplace Dangerous Goods [NOHSC: 1015(2001)]. The form and colour of the Class
label and Subsidiary Risk label are specified in the Australian Dangerous Goods
Code.
Placarding provides critical information about the properties of
dangerous substances at the premises and is and essential part of safety
communication including to emergency services personnel who may be required to
attend an incident on the site. Failure to comply with a requirement about
placard locations and visibility in division 2.5.4 is to commit a
strict liability offence with a maximum penalty of 30 penalty units.
Failure to comply with a requirement about placard forms in
division 2.5.4 is to commit a strict liability offence with a
maximum penalty of 25 penalty units.
A pivotal aspect of the regulation is the requirement for premises that have,
or are likely to have, dangerous substances above a prescribed quantity to
notify the chief executive in order to be registered. The registration
requirements in this regulation replace licensing arrangements in the repealed
Dangerous Goods Act. The requirements establish a streamlined framework for
managing critical information about the locations of larger quantities of
dangerous substances in the Territory.
If a person in control of premises
that are not already registered knows, or ought reasonably to know, that the
premises under his or her control have, or are likely to have, dangerous
substances at the placard level or above, then the person in control is required
to notify the chief executive. Failure to make the notification constitutes an
offence. The penalty for a contravention of this offence is 30 penalty
units if the dangerous substance(s) at the premises are, or are likely to be at
least the manifest level. If the amount is, or is likely to be less than the
manifest level, the maximum penalty is 20 penalty units. This reflects the
increased hazards associated with manifest level premises and the importance of
proper registration to the effectiveness of the regulatory regime.
The
offence within section 261 contains a mental element requiring that
it be proved to the requisite standard that the offender intended the act or
omission, or was either reckless or negligent about the act or
omission.
Notification is not just required when premises have dangerous
substances at the placard level, but also when the premises is likely to have
dangerous substances at that level. This recognises that it is possible for
premises to have dangerous substances at a placard level periodically. For
example, premises may be at the placard level when a tank at the premises is at
70% of its capacity or greater. In such a situation, irrespective of how often
or for how long the tank is below 70% capacity, the premises are likely to have
a placard level and accordingly must be registered.
Another possible
example is where premises are being constructed. If the person in control
installs a tank at the premises that has a capacity greater than the placard
level, after installation the premises is likely to be the placard level and
therefore require notification, even though no substances are present yet nor
has work begun at the premises.
Notification is also required where a
person in control ought to know that the premises are or are likely to be at the
placard level, and not just when the person in control actually knows. If
premises have been operating with dangerous substances at just under the placard
level, the person in control ought to know that a significant increase will
result in the premises requiring registration. Similarly, if premises have a 10
000L tank the person in control ought to know the premises require registration,
as at that level the premises will be at the placard level irrespective of which
dangerous substance is kept in the tank.
A notification notice must
include information about the substance or substances at the premises, such as
the class or kind, the expected average amount present and the maximum amount
that can be present. Other information listed in an approved form is also
required.
Upon receipt of a notification notice, the chief executive
may issue a written “further information notice” seeking further
information from the person in control. This notice must give the person in
control 14 days or more to respond to the notice. Failure to respond to the
notice is a strict liability offence. The penalty for a contravention of this
offence is 30 penalty units if the dangerous substance(s) at the premises
are, or are likely to be at least the manifest level. In any other
circumstance, the maximum penalty is 20 penalty units. This also reflects
the increased hazards associated with manifest level premises and the importance
of proper registration to the effectiveness of the regulatory regime.
If the
chief executive does not issue a further information notice, the chief executive
must register the premises. This requires the maintenance of a register of
premises and the issuing of written notices to premises that have been
registered.
A registration of premises remains in force for a period of
two years, where upon a person in control must renew the registration by
again notifying the chief executive. Irrespective of how many times the
premises have previously been registered, upon each notification the chief
executive is entitled to issue a further information notice if the chief
executive determines it is necessary.
Sections 265 and 266
make provision for further notification and information where there is a
significant change of risk at a registered premises. Once premises have been
registered, the person in control has an ongoing obligation to report the chief
executive any significant changes in risks, or likely changes, that the person
in control knows or ought to know about. Such a notice, known as a “risk
change notice", must be in writing. Whether a change at the premises is a
significant change must be determined by the person in control, and may arise
from a risk assessment conducted or through obvious factors such as an increase
or decrease in production. This ongoing process of risk assessment is
fundamental to the performance-based character of the chapter 2 requirements, as
is the embedding of responsibility for safe handling into the management system
of the undertaking.
What is likely to constitute a significant change of
risk is quite varied. An increase in the quantity of a substance at the
premises, such as from a placard level to a manifest level is a significant
change, as would be a decrease in the quantity held so that the premises is no
longer at the placard level. The erection of a new structure at the premises
that could affect separation distances and emergency procedures could also be a
significant change. Another possible change that would be significant would be
a change in production processes, if a different dangerous substance were to be
used instead of another.
The chief executive may also issue a further
information notice upon receipt of a risk change notice from the person
in control. The further information notice must give the person in control
14 days or more to respond to the notice. Failure to respond to the notice
is a strict liability offence.
The penalty for a contravention of
offences under sections 265 and 266 is 30 penalty units if the dangerous
substance(s) at the premises are, or are likely to be at least the manifest
level and 20 penalty units for placard levels. In any other circumstances, the
maximum penalty is 10 penalty units.
Upon receipt of a risk change
notice, the chief executive must amend the placard quantity register to reflect
the information contained in the notice and give the person in control written
notice of the amendment. If the change of risk notified is that the premises is
now below the placard quantity level, and the chief executive is satisfied that
the premises no longer need to be registered, the chief executive must cancel
the registration. Again, written notice of the cancellation must be provided to
the person in control.
Division 3.1.5 of the Act deals with obligations to report dangerous occurrences. What constitutes a dangerous occurrence is defined in section 38 of the Act. Under section 39 of the Act, people in control of premises have a safety duty that requires them to report actual or likely dangerous occurrences at those premises. The purpose of this safety duty is to ensure that remedial action can be taken promptly to ensure seriously hazardous situations do not occur or are minimised as quickly as possible. The person in control of premises is obliged to tell the chief executive immediately once the person becomes aware of the likely or actual dangerous occurrence, or as soon as possible thereafter.
Section 268 of the regulation applies whenever a person in
control of premises is required to report an actual or likely dangerous
occurrence under Division 3.1.5 of the Act. In addition to the
requirements imposed by the Act, the person in control must ensure that a
written record is made of what the person in control has reported to the chief
executive under the Act. A dated copy of this record must then be retained at
the premises. Failure to keep a written record, or to keep the record at the
premises, is a strict liability offence with a maximum penalty of
15 penalty units. Failure to report a dangerous occurrence is an offence
under the Act.
Furthermore, the record made by the person in control must
contain all information listed in section 269(2) paragraphs (a) to
(g). It is strict liability offence with a maximum penalty of 15 penalty
units to omit any of these matters.
Records of dangerous occurrences must
be retained for a period of ten years after the chief executive is notified of
the dangerous occurrence, irrespective of whether the dangerous substances or
the particular dangerous substance involved in the incident have ceased to be
used at the premises. An inspector under the Act may ask for a copy of a record
of a dangerous occurrence at any time within the ten-year period. Failure to
comply with such a request is a strict liability offence with a maximum penalty
of 15 penalty units.
Additional obligations are imposed upon “manifest quantity registrable
premises” under part 2.8. Division 2.8.1 requires a
manifest that complies with schedule 3 to be kept at the premises,
and for the manifest to be kept up-to-date. Manifests must be kept inside in a
red weatherproof container at a location as close to the main entrance to the
premises as possible and that is readily accessible to emergency services.
Failure to comply with one of the requirements in division 2.8.1 is
to commit a strict liability offence with a maximum penalty of 30 penalty
units.
Manifest quantity registrable premises must also incorporate an
emergency plan into the safety management system. An emergency plan is a
written record of a plan to manage dangerous occurrences that may arise at the
premises. Division 2.8.2 also contains several provisions imposing
obligations that are supported by strict liability offences with maximum
penalties of 30 penalty units. These requirements include providing
instruction on the emergency plan to health and safety representatives at the
premises and to occupiers of neighbouring premises. Emergency plans must be
reviewed whenever a significant change occurs at the premises, or if there is
evidence that the emergency plan is no longer adequate. Should a review result
in an amendment to the emergency plan, a dated amended plan must be kept at the
premises and provided to specified entities and persons.
Emergency
plans must also be reviewed five years after the plan was first prepared,
if it has not been necessary to review the plan earlier, or five years
after the plan was last reviewed. When reviewing emergency plans, the reviewer
should consult employees who carry out the work, health and safety
representatives, emergency services and persons in control of neighbouring
premises.
Failure to comply with one of the requirements in
division 2.8.2 is to commit a strict liability offence with a
maximum penalty of 30 penalty units.
Premises that do not need to be registered, known as “non-registrable
premises”, still have a range of obligations under the regulation. These
provisions are generally less onerous than for premises at the placard level and
above, and penalties for contraventions of offences are generally lower than
equivalent offences elsewhere in the regulation.
There are two
provisions within part 2.9 that carry the same maximum penalties and impose
requirements similar to those for registrable premises. Personal protective
equipment is a basic and fundamental safety requirement that must not be
neglected regardless of the nature or size of the premises or the substances
handled. Accordingly, contravention of a requirement in section 285
is equally as serious as a contravention of section 235. Another
fundamental and basic safety requirement is the provision of information to
substance handlers so that such exposed persons work and operate in an informed
manner. As such, the maximum penalty for contravening a provision in
section 294 is 30 penalty
units.
Sections 285(4) and 299A of part 2.9 have
offences that contain a mental element requiring that it be proved that the
offender intended the act or omission. All other offences in part 2.9 are
strict liability offences.
Non-registrable premises are not required to
display HAZCHEM placards as non-registrable premises have dangerous substances
below the placard level in Schedule 1. However, non-registrable
premises must still display information placards for tanks in accordance with
section 299B.
This chapter contains sections 306 to 321 that effectively prohibit the import, manufacture, supply (including sale), storage, use, re-use and installation of all types of asbestos. In May 2001, the Workplace Relations Ministers’ Council agreed to a nationwide ban on the import and use of asbestos from 31 December 2003. The Dangerous Goods (Asbestos) Amendment Regulations 2003 which gave effect to the nationally agreed ban were repealed by the commencement of the Dangerous Substances Act 2004 and the Dangerous Substances (General) Regulation 2004 in April 2004. The asbestos provisions are now incorporated into chapter 3 of this regulation.
Chapter 4 imposes tighter controls on dangerous substances determined to
be of a security sensitive nature in order to minimise the danger of such
substances, such as fertilizer-grade ammonium nitrate, being used by terrorists
to create bombs or other means of injuring people or damaging
property.
On 25 June 2004, the Council of Australian
Governments (COAG) agreed that all Australian States and Territories would
introduce regulatory arrangements for the control of fertilizer-grade ammonium
nitrate in line with nationally agreed principles. The regulatory scheme
contained in Chapter 4 gives effect to the COAG decision in a manner that
can be readily applied to any other substance that is later identified to have
security risks or terrorist applications. Explosives-grade ammonium nitrate is
already regulated under the Dangerous Substances (Explosives)
Regulation 2004.
This part explains important concepts and terms that are central to
understanding the purpose and operation of chapter 4.
Section 400 establishes that a security sensitive substance is a
substance listed in schedule 4 or a substance, other than an
explosive, determined in writing by the Minister to be a security sensitive
substance. Any determination by the Minister under this section is a
disallowable instrument.
Explosives, or substances determined to be
explosives, are regulated under the Dangerous Substances (Explosives)
Regulation 2004. Consequential amendments to the Explosives Regulation will
apply the same security checking procedures for explosives licensing as for
security sensitive substances. Chapter 2 requirements for the safe storage and
handling of dangerous substances will apply to security sensitive substances.
The Explosives Regulation also contains explosives-specific safety duties and
offences.
It is a general duty imposed on all persons licensed to handle security
sensitive substances that on becoming aware of the loss or theft of a security
sensitive substance from premises where the substance was stored, the
responsible person must inform the chief executive and a police officer without
delay. The responsible person must also give the chief executive a written
report setting out details of the incident, including the amount of the security
sensitive substance lost or stolen. Failure to abide by this general duty is a
strict liability offence that has a maximum penalty of 30 penalty units.
An identical offence is contained in the Dangerous Substances
(Explosives) Regulation 2004 reflecting the equal importance of security of
explosives and security sensitive substances .
In addition to the matters listed in section 49 of the Act, when
determining under part 4.3 whether a person is suitable to hold a licence
to handle a security sensitive substance the chief executive must have regard to
whether an adverse or qualified security assessment has been given in relation
to the person or a close associate of the person. Where the applicant for the
licence is a corporation, the chief executive must have regard to whether an
adverse or qualified security assessment has been given in relation to an
officer of the corporation or a close associate of an officer of the
corporation. Security assessments are conducted and issued by the Australian
Security Intelligence Organisation (ASIO) under part 4 of the
Commonwealth Australian Security Intelligence Organisation
Act 1979.
Under chapter 4, not only are licence applicants
security-checked, but so are all persons who will have access to the security
sensitive substance when not under the supervision of the licence-holder. A
further measure designed to control access to security sensitive substances is
to limit the issuing of licences to handle security sensitive substances to
prescribed authorised purposes. Authorised purposes will vary for each security
sensitive substance, and will be listed next to the relevant security sensitive
substance in table 4.1 of schedule 4. If an activity or
purpose is not listed in the table, it is not authorised and a licence to handle
the substance will not be issued for that purpose.
An authorised use of
security sensitive ammonium nitrate includes use in commercial agriculture by
primary producers. Domestic household use and use for recreational facilities,
such as golf courses or bowling greens, are not prescribed purposes for which
security sensitive ammonium nitrate can be authorised.
Part 4.4 requires the manufacture of security sensitive substances to be
licensed. Section 409 provides that an application for a manufacturing
licence must include specified information and be accompanied by copies of the
applicant’s identification papers and those of anyone who is to be a
responsible person for the security sensitive substance. The licence applicant
will also need to specify the purpose of the manufacture and the address of the
premises where the manufacture is to occur. Of significant importance is the
requirement for a security plan for the proposed manufacture to be provided with
the licence application.
In order to manufacture security sensitive
substances in the ACT, a security plan must be formulated in accordance with
section 410. The security plan must be based on a written risk
assessment addressing and identifying security risks associated with the
manufacture of the particular substance. A security risk assessment should
consider both the security risk posed and the source of that security risk.
Risks to consider include theft, deliberate destruction such as arson, sabotage
or contamination, and unauthorised access to the premises.
The security
plan should describe how a licensee will meet the compulsory requirements and
what security measures are included, but must also detail the production process
to be used and the ingredients to be used along with where those ingredients are
to be sourced. The security plan must also establish recording and
reconciliation protocols, as well as procedures for reporting losses, thefts and
attempted thefts.
Section 411 imposes conditions on persons
manufacturing security sensitive substances in the ACT. Licensed manufacturers
may only manufacture the substance for the purpose or purposes stated in the
licence, and must not allow a person to have unsupervised access to the
substance unless the person is named in the licence as a “security cleared
responsible person”. It is a condition of the licence that the security
plan devised must be complied with. Furthermore, the licensee must apply to the
chief executive to amend the licence if the licensee proposes to add, remove or
change the name of a security cleared responsible person listed in the licence.
The provision also confirms that the licensee must comply with all obligations
imposed directly upon the licensee under part 4.4.
Part 4.4 also
requires creation of records about the type and quantity of security sensitive
substances 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
security sensitive substances were manufactured and then stored, and if stored,
details about the storage. These records must be retained for a period not less
than three years. Failure to comply with either requirement is a strict
liability offence that has a maximum penalty of 20 penalty units.
Part 4.5 requires the import of security sensitive substances into the
ACT to be licensed. Section 417 provides that an application for an
import licence must include specified information and be accompanied by copies
of the applicant’s identification papers and those of anyone who is to be
a responsible person for the security sensitive substance. The licence
applicant will also need to specify the purpose of the import, as well as the
name and classification of the of security sensitive substance that will be
imported.
Section 418 imposes conditions on persons
importing security sensitive substances into the ACT. Licensed importers may
only import the substance for the purpose or purposes stated in the licence, and
must not allow a person to have unsupervised access to the substance unless the
person is named in the licence as a security cleared responsible person.
Furthermore, the licensee must apply to the chief executive to amend the licence
if the licensee proposes to add, remove or change the name of a security cleared
responsible person listed in the licence. The provision also confirms that the
licensee must comply with all obligations imposed directly upon the licensee
under part 4.5. Each of these conditions is a licence condition.
A
holder of a licence authorising the importing of security sensitive substances
must notify the chief executive of an intention to import security sensitive
substances. Notification must contain specific information such as the intended
date of import.
Section 420 contains a strict liability
offence for failing to make a record of security sensitive substances imported
into the ACT under the licence, and also for failing to keep those records for
at least three years. The offence has a maximum penalty of 20 penalty
units.
Part 4.6 applies to the carrying by road or rail of security sensitive
substances. For some security sensitive substances, carriage of quantities
below a threshold quantity listed in table 4.1 of schedule 4
will not require a carrying licence. For certain security sensitive
substances, an exemption of this nature is necessary to enable licensed handlers
to carry smaller quantities between sites, such as from a storage facility to
the location of intended use without the burden of obtaining a carrying license.
A person is authorised to carry security sensitive substances in the ACT
by road only if the person holds a carrying licence issued in the ACT or an
equivalent licence from another jurisdiction, referred to as an
“interstate security sensitive substance carrying authority”.
Similarly, under section 424, a person is authorised to
carry security sensitive substances in the ACT by rail only if the person holds
a carrying licence authorising carriage by rail issued in the ACT, or an
interstate security sensitive substance carrying authority authorising carrying
by rail.
Section 425 creates a strict liability offence with a maximum penalty of 30 penalty units for engaging someone else to carry a security sensitive substance by road or rail, unless that person is authorised under section 423 or section 424.
Section 427 provides that an application for a carrying licence must
include specified information and be accompanied by copies of the
applicant’s identification papers and those of anyone who is to be a
responsible person for the security sensitive substance. The licence applicant
will also need to specify the purpose of the carrying and the details of each
vehicle to be used for the carrying. Of significant importance, is the
requirement for a security plan for the proposed carriage to be provided with
the licence application.
In order to carry security sensitive substances
in the ACT, a security plan must be formulated in accordance with
section 428. The security plan must be based on a written risk
assessment addressing and identifying security risks associated with the
carriage of the particular substance. A security risk assessment must consider
both the security risk posed and the source of that security risk. Risks to
consider include theft, deliberate destruction such as arson, sabotage or
contamination, and unauthorised access to the vehicle.
The security
plan should describe how a licensee will meet the compulsory requirements and
what security measures are included, but must also detail the precautions taken
to ensure the security sensitive substances carried are secure. The security
plan must also establish recording and reconciliation protocols, as well as
procedures for reporting losses, thefts and attempted
thefts.
Section 429 imposes conditions on persons carrying
security sensitive substances in the ACT. Licensees may only carry the
substance for the purpose or purposes stated in the licence, and must not allow
a person to have unsupervised access to the substance unless the person is named
in the licence as a security cleared responsible person. It is also an
essential condition of the licence that the security plan devised must be
complied with. Furthermore, the licensee must apply to the chief executive to
amend the licence if the licensee proposes to add, remove or change the name of
a security cleared responsible person listed in the licence. The provision also
confirms that the licensee must comply with all obligations imposed directly
upon the licensee under part 4.5.
Part 4.6 also enables the chief executive to determine which routes
can and must not be used to carry particular quantities of security sensitive
substances by road. The chief executive can also determine times when security
sensitive substances may be carried and must not be carried. Determinations by
the chief executive are to be in writing and are disallowable instruments. If a
determination is made by the chief executive security sensitive substances can
only be carried by road in accordance with the determination.
Part 4.7 requires a licence to be held for the storage of security
sensitive substances in the ACT. Section 435 provides that an
application for a storage licence must include specified information and be
accompanied by copies of the applicant’s identification papers and those
of anyone who is to be a responsible person for the security sensitive
substance. The licence applicant will also need to specify the purpose of the
storage and the address of the premises where the substance(s) are to be stored.
Of significant importance is the requirement for a security plan for the
proposed storage to be provided with the licence application.
In order
to store security sensitive substances in the ACT, a security plan must be
formulated in accordance with section 436. The security plan must
be based on a written risk assessment addressing and identifying security risks
associated with the storage of the particular substance. A security risk
assessment must consider both the security risk posed and the source of that
security risk. Risks to consider include theft, deliberate destruction such as
arson, sabotage or contamination, and unauthorised access to the premises.
The security plan should describe how a licensee will meet the
compulsory requirements and what security measures are included, but must also
detail the precautions taken to ensure the security sensitive substances stored
are secure. The security plan must also establish recording and reconciliation
protocols, as well as procedures for reporting losses, thefts and attempted
thefts.
Section 437 imposes conditions on persons storing
security sensitive substances in the ACT. Licensees may only store the
substance for the purpose or purposes stated in the licence, and must not allow
a person to have unsupervised access to the substance unless the person is named
in the licence as a security cleared responsible person. It is also an
essential condition of the licence that the security plan devised must be
complied with. Furthermore, the licensee must apply to the chief executive to
amend the licence if the licensee proposes to add, remove or change the name of
a security cleared responsible person listed in the licence. The provision also
confirms that the licensee must comply with all obligations imposed directly
upon the licensee under part 4.6.
Part 4.7 also requires creation of
records about the name and classification of the security sensitive substance(s)
stored and the date(s) of receipt, along with the name and licence details of
the person from whom the substance was received. These records must be retained
for a period not less than three years from the date the substance was
removed from storage. Failure to comply with either requirement is a strict
liability offence that has a maximum penalty of 20 penalty units.
Security sensitive substances can only be supplied by a person licensed under
part 4.7 to a person authorised under a licence to receive the substance
after sighting the licence or a certified copy of the licence and identification
papers for the person. Section 443 provides that an application for a
supply licence must include specified information and be accompanied by copies
of the applicant’s identification papers and those of anyone who is to be
a responsible person for the security sensitive substance. The licence
applicant will also need to specify the purpose of the supply, as well proposed
procedures to ensure that security sensitive substances are only supplied to
persons authorised to receive them.
Section 444 imposes
conditions on persons supplying security sensitive substances. Licensed
suppliers may only supply the substance for the purpose or purposes stated in
the licence, and must not allow a person to have unsupervised access to the
substance unless the person is named in the licence as a security cleared
responsible person. Furthermore, the licensee must apply to the chief executive
to amend the licence if the licensee proposes to add, remove or change the name
of a security cleared responsible person listed in the licence. The provision
also confirms that the licensee must comply with all obligations imposed
directly upon the licensee under part 4.7.
Section 446
contains a strict liability offence for failing to make a record of security
sensitive substances supplied under the licence, and also for failing to keep
those records for at least five years. The offence has a maximum penalty of
20 penalty units.
Division 4.8.2 (Advertising of supply of security sensitive
substances) contains only one provision, an offence for false or misleading
statements about authority to supply sensitive substances that has a maximum
penalty of 30 penalty units. The provision is similar to an offence in
Division 2.8.4 of the Dangerous Substances (Explosives) Regulations 2004.
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 security sensitive substances, or the promotion of the supply or use of security sensitive substances,
§ the statement was about the availability of the security sensitive substances 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 that the statement was made in the course of trade or commerce. For a conviction to be possible, however, all elements of the offence must be established, and defences such as mistake of fact can be raised to any of the other elements.
Security sensitive substances can only be used by a person licensed under
part 4.9, with the exception of an inspector or a police officer exercising
a function under the Act. Section 452 provides that an application for a
user licence must include specified information and be accompanied by copies of
the applicant’s identification papers and those of anyone who is to be a
responsible person for the security sensitive substance. The licence applicant
will also need to specify the purpose of the use, as well details of where the
substance is to be stored.
Section 453 imposes conditions on
persons using security sensitive substances. Licensed users may only use the
substance for the purpose or purposes stated in the licence, and must not allow
a person to have unsupervised access to the substance unless the person is named
in the licence as a security cleared responsible person. Furthermore, the
licensee must apply to the chief executive to amend the licence if the licensee
proposes to add, remove or change the name of a security cleared responsible
person listed in the licence. The provision also confirms that the licensee
must comply with all obligations imposed directly upon the licensee under
Part 4.9.
If a licensee does allow an unauthorised person to use a
security sensitive substance, the licensee contravenes section 454
which carries a maximum penalty of 10 penalty units. The offence is a strict
liability offence.
Section 455 contains a strict liability
offence for failing to make a record of security sensitive substances used under
the licence, and also for failing to keep those records for at least three
years. The offence has a maximum penalty of 20 penalty units.
Part 4.10 applies exclusively to the disposal of security sensitive
substances. The provisions within this part impose several conditions as
licence conditions. Of particular significance is the requirement to select the
method of disposal that provides the greatest degree of security possible that
is appropriate for the substance.
The part contains a strict liability
offence with a maximum penalty of 30 penalty units for discarding a
security sensitive substance, such as throwing the substance away or dumping the
substance into a waterway. The penalty imposed reflects the seriousness and the
danger to the community associated with discarding security sensitive
substances.
There is also a requirement to keep records of security
sensitive substances disposed of, and to retain those records for at least
three years. Failure to comply with either requirement is an offence to
which strict liability applies, and carries a maximum penalty of 20 penalty
units. Records made must contain certain information including the date and
method of disposal and the reason for the disposal.
Chapter 9 of the Act provides for the administrative review of decisions
of the Minister, the chief executive or an inspector that are prescribed in the
regulations. Section 187 of the Act provides that if the decision-maker
makes a reviewable decision, the decision-maker must provide written notice to
persons prescribed in the regulations for the decision. Section 188 of the
Act provides for the internal review of prescribed decisions.
Chapter 5 of this regulation establishes a schedule of decisions
(schedule 5) that are reviewable, identifies the decision-maker and
the persons to whom notice must given. Sections 188 to 190 of the Act also
provide for the internal review of prescribed decisions. Schedule 5 sets
out which decisions of inspectors are internally reviewable. Decisions by an
internal reviewer, or a reviewable decision other than an internally reviewable
decision can be reviewed by the administrative appeals tribunal on the
application of a person whose interests are affected by the decision.
Chapter 6 contains licensing-related transitional provisions, repeal of
the Dangerous Substances (General) Regulation 2004 SL2004-09, and consequential
amendments to the Dangerous Substances (Explosives) Regulation 2004.
Part 6.1 modifies the Act utilising powers in
chapter 14 of the Act. The Act is modified to terminate all prescribed
former licences (not already terminated) which were issued under the now
repealed Dangerous Goods Act 1975 on 31 March 2005. This is the
date that this regulation (with the exception of provisions identified in
relation to section 2) will commence.
Section 54 of the Act explains
that licences can be granted for up to three years, or a shorter period
specified by the regulations. It is appropriate that people who wish to handle
dangerous substances be required to reapply for a licence at specified
intervals. Part 6.2 of this regulation provides that licences issued
under the Act before 1 July 2005 may not be issued for a term of more than one
year. The dangerous substances regulatory regime established through the Act
and regulations is complex. The maximum licence term has been limited during
the bedding down period following commencement in April 2004 to enable close
monitoring of the operation of the new regime and of industry compliance. This
provision is only relevant to explosives licences.
Part 6.4
contains consequential amendments to the Dangerous Substances (Explosives)
Regulation 2004 and some minor technical corrections. The consequential
amendments apply the licensing and security requirements for chapter 4 security
sensitive substances to explosives ensuring that the controls on explosives are
not less stringent than those for substances like fertilizer-grade ammonium
nitrate. Accordingly, Part 6.4 makes amendments to provisions in the
Explosives Regulation about licensing of manufacture, import, supply, storage,
carrying and use to be consistent with chapter 4.
Table 1.1 in schedule 1 lists the placard quantity
and manifest quantity thresholds for all classes, sub-classes and packing groups
of dangerous substances to which the Dangerous Substances (General) Regulation
applies. Schedule 1 also contains provisions providing instruction
on how to determine quantities held at the premises in packaged form, in tanks,
in solid form or that are part of articles. Persons in control of premises will
need to determine quantities held at the premises in order to know what
obligations established through this regulation will apply to the premises.
Schedule 2 contains more detailed information about the
requirements of hazchem warning placards and information placards, including
diagrams reflecting placard appearance and dimensions.
Schedule 3 contains more detailed information about the
requirements of manifests generally, and for manifests for specific purposes,
such as for dangerous substances in tanks or for dangerous substances in
transit.
Dangerous substances determined to be security sensitive substances are
listed in column 2 of table 4.1. Column 3 of the table
lists the authorised purposes for which a licence to handle that particular
security sensitive substance can be issued. If a purpose is not listed in
Column 3 for that substance, a licence should not be approved for that
purpose. For example, household use is not authorised for security sensitive
ammonium nitrate as it does not appear in column 3. Similarly, security
sensitive ammonium nitrate is only authorised for agricultural use if that use
is commercial, and to be used by primary producers or a distribution service
agency. Accordingly, use by greenkeepers or for backyard enterprises will not
be authorised.
Another important component of the table is column 4
which specifies the exempt amount for carrying of particular security sensitive
substances. For some substances it is appropriate to allow for carrying of small
quantities where the carrying is subsidiary to another licensed activity such as
use, without the need for that carrying to be licensed. For example, a primary
producer licensed to use security sensitive ammonium nitrate may need to carry
small quantities from a supplier to their property, or from one property to
another. If no exempt amount is stated in column 4, a carrying licence is
required for any carrying of that particular substance.
Not all ammonium
nitrate will be licensed as security sensitive ammonium nitrate. Ammonium
nitrate of dangerous goods class 1, which are explosives, are licensed as
explosives under the Dangerous Substances (Explosives) Regulation 2004.
Ammonium nitrate solutions are not security sensitive. Furthermore, only
ammonium nitrate emulsions and mixture consisting of greater than 45% ammonium
nitrate are security sensitive ammonium nitrate.
Part 5.1 sets out the decisions of the chief executive under the
Act that are reviewable and the persons who must be notified of the decision.
Part 5.2 sets out the decisions of the inspectors that are
internally reviewable and the persons who must be notified of the decision.
Part 5.3 sets out the decisions of the chief executive under this
regulation that are reviewable and the persons who must be notified of the
decision.
The dictionary contains further definitions of terms and concepts used in
this regulation.