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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to regulate the transport of dangerous goods by road and rail
as part of a national scheme and to enable regulations to be made containing the
regulatory scheme. The Bill repeals and replaces the Road and Rail Transport
(Dangerous Goods) Act 1997.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.Clause 2 provides for the commencement of the proposed Act on a day or days to be
proclaimed.Clause 3 sets out the purpose of the proposed Act which is to regulate the transport
of dangerous goods by road and rail in order to promote public safety and protect
property and the environment.Clause 4 defines certain words and expressions used in the proposed Act.
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Dangerous Goods (Road and Rail Transport) Bill 2008
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Clause 5 provides that the proposed Act will not apply to dangerous goods that are,
or form part of, personal safety equipment of persons in a vehicle transporting
dangerous goods, or that are in a container that is part of the fuel or battery system of
a vehicle’s engine or other equipment. This clause also provides that the Radiation
Control Act 1990 and any other laws relating to the storage and handling of
dangerous goods (but not relating to the transport of dangerous goods by road or rail)
will prevail over the proposed Act.Part 2 Licensing and safety obligations
Clause 6 creates the following offences relating to the licensing of vehicles involved
in the transport of dangerous goods by road or rail:
(a) prohibiting a prime contractor from using a vehicle to transport dangerous
goods by road or rail (other than as the driver of the vehicle) if the regulations
require the vehicle to be licensed to transport the goods and that vehicle is not
so licenced (maximum penalty 500 penalty units (currently $55,000) or
imprisonment for 2 years, or both, for an individual or 2,500 penalty units
(currently $275,000) for a body corporate),
(b) prohibiting a person from consigning dangerous goods for transport by road
on a vehicle without a licence if the person knows or reasonably ought to know
that the regulations require the vehicle to be licensed to transport the goods and
that vehicle is not so licenced (maximum penalty 500 penalty units (currently
$55,000) or imprisonment for 2 years, or both, for an individual or 2,500
penalty units (currently $275,000) for a body corporate),
(c) prohibiting a person from driving a vehicle transporting dangerous goods by
road or rail if the person knows or reasonably ought to know that the
regulations require the vehicle to be licensed and the vehicle is not so licensed
(maximum penalty 100 penalty units (currently $11,000)).Clause 7 creates the following offences relating to the licensing of drivers involved
in the transport of dangerous goods by road or rail:
(a) prohibiting a person from employing, engaging, causing or permitting another
person to drive a vehicle transporting dangerous goods by road or rail if the
other person is required by the regulations to be licensed to drive the vehicle
and the person is not so licensed (maximum penalty 500 penalty units
(currently $55,000) or imprisonment for 2 years, or both, for an individual or
2,500 penalty units (currently $275,000) for a body corporate),
(b) prohibiting a person from driving a vehicle transporting dangerous goods by
road or rail if the regulations require the person to be licensed to drive the
vehicle and the person is not so licensed (maximum penalty 100 penalty units
(currently $11,000)).
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Dangerous Goods (Road and Rail Transport) Bill 2008
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Clause 8 makes it an offence to consign, or arrange the transport of, goods that the
regulations identify as being too dangerous to transport (maximum penalty
500 penalty units (currently $55,000) or imprisonment for 2 years, or both, for an
individual or 2,500 penalty units (currently $275,000) for a body corporate).Clause 9 makes it an offence to fail to ensure that dangerous goods are transported
in a safe manner or to fail to comply with a provision of the proposed Act where the
person knows or reasonably ought to know that the failure would be likely to
endanger the safety of another person or of property or the environment. The
maximum penalty for the offences under the proposed section is 500 penalty units
(currently $55,000) or imprisonment for 2 years, or both, for an individual or
2,500 penalty units (currently $275,000) for a body corporate.Clause 10 creates a similar offence with higher penalties if the conduct concerned
caused the death or serious injury of another person. Specifically, the proposed
section provides that a person:
(a) whose conduct causes the death or serious injury of another person, and
(b) who owes a duty under proposed section 9 when engaging in that conduct, and
(c) who is reckless as to the danger of death or serious injury to any person that
arises from that conduct,
is guilty of an offence.The offence carries a maximum penalty of 1,000 penalty units (currently $110,000)
or imprisonment for 4 years, or both, for an individual or 5,000 penalty units
(currently $550,000) for a body corporate.Clause 11 provides for a special defence to prosecutions for an offence against the
proposed Act or the regulations for owners and operators of vehicles transporting
dangerous goods. A person who is such an owner or operator will not be guilty of the
offence if the person establishes that the vehicle was being used at the relevant time
by:
(a) another person not entitled (whether by express or implied authority or
otherwise) to use it, other than an employee or agent of the alleged offender, or
(b) an employee of the alleged offender who was acting at the relevant time
outside the scope of the employment, or
(c) an agent (in any capacity) of the alleged offender who was acting at the
relevant time outside the scope of the agency.Clause 12 provides that a director or person concerned in the management of a
corporation is liable for offences committed by the corporation unless they show they
were not in a position to influence the conduct of the corporation or, if in such a
position, used all due diligence to prevent the offence.Part 3 Regulations
Clause 13 provides that the Governor may make regulations on a wide range of
matters required or permitted to be prescribed by the proposed Act or that are
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necessary or convenient to be prescribed. The clause sets out a number of particular
matters in relation to which regulations may be made, including the identification,
classification, labelling, packaging, stowage and transport of dangerous goods,
mandatory licensing of persons involved in the transport of dangerous goods and
obligations arising in an emergency. The regulations made under the proposed
section will contain the regulatory scheme for the transport of dangerous goods by
road or rail.Clause 14 provides that the regulations may apply, adopt and incorporate codes,
standards and rules relating to dangerous goods or to transport by road or rail.Clause 15 enables the regulations to create offences for breach of the regulations
with maximum penalties of 60 penalty units (currently $6,600) for an individual or
300 penalty units (currently $33,000) for a body corporate.Part 4 Administration
Division 1 Competent Authorities and their authorised
officers
Clause 16 provides that the Environment Protection Authority and the WorkCover
Authority are the Competent Authorities for the purposes of the proposed Act. The
Competent Authorities are to be responsible for the administration and enforcement
of the proposed Act and the regulations.Clause 17 states that a Competent Authority may appoint a person to be an
authorised officer. A Competent Authority may specify that such an appointment is
subject to conditions or restrictions and may issue an identification card for a person
appointed as an authorised officer.Clause 18 requires authorised officers, who are not police officers, to carry
identification cards while carrying out their duties and, if requested to do so by any
person affected by the exercise of a function by an authorised officer under the
proposed Act, produce the officer’s identification card to the person.Clause 19 makes it an offence for a person who has been issued with an
identification card not to return it as soon as practicable after ceasing to be an
authorised officer. The offence carries a maximum penalty of 10 penalty units
(currently $1,100).Clause 20 empowers a Competent Authority to delegate his or her powers under the
proposed Act to authorised officers or any person, or any class of persons, authorised
for the purposes of the proposed section by the regulations.Division 2 Powers of authorised officers
Clause 21 provides that the investigative functions of authorised officers under
Chapter 7 and section 319A of the Protection of the Environment Operations Act
1997 are conferred on authorised officers appointed by the Environment Protection
Authority for the purposes of exercising functions under the proposed Act.
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Clause 22 provides that the investigative functions of inspectors under Division 2 of
Part 5 of the Occupational Health and Safety Act 2000 are conferred on authorised
officers appointed by the WorkCover Authority for the purposes of exercising
functions under the proposed Act.Clause 23 makes it an offence for a person to:
(a) obstruct, hinder or impede any authorised officer or a person assisting an
authorised officer in the exercise of the officer’s functions under the proposed
Act, or
(b) intimidate or threaten or attempt to intimidate any authorised officer in the
exercise of the officer’s functions under the proposed Act.The offence carries a maximum penalty of 100 penalty units (currently $11,000) or
imprisonment for 6 months, or both, for an individual or 500 penalty units (currently
$55,000) for a body corporate.Clause 24 makes it an offence for a person to impersonate, or falsely represent that
the person is, an authorised officer. The offence carries a maximum penalty of
100 penalty units (currently $11,000).Clause 25 provides for the exercise of the powers of authorised officers of other
jurisdictions in this State and the exercise of powers in other jurisdictions by
authorised officers appointed under the proposed Act.Part 5 Investigation, improvement and prohibition
notices
Division 1 Investigation notices
Clause 26 authorises an authorised officer who has exercised any power under
proposed Part 4 to issue an investigation notice to a person if the authorised officer
believes on reasonable grounds that it is necessary to issue the notice in order to
facilitate the exercise of the authorised officer’s powers under that Part.Clause 27 makes it an offence, while an investigation notice is in force, for the
person to whom the notice is issued to fail to:
(a) stop the use or movement of, or interference with, any substance or thing that
is specified in the notice, and
(b) take measures to prevent the disturbance of any substance or thing that is
specified in the notice, or any specified area in which it is located.The offence carries a maximum penalty of 100 penalty units (currently $11,000) or
imprisonment for 6 months, or both, for an individual or 500 penalty units (currently
$55,000) for a body corporate.Division 2 Improvement notices
Clause 28 provides that if an authorised officer is of the opinion that any person:
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(a) is contravening any provision of the proposed Act or the regulations, or
(b) is likely to contravene such a provision, or
(c) has contravened such a provision in circumstances that make it likely that the
contravention will continue or be repeated,
the authorised officer may issue to the person a notice requiring the person to remedy
the contravention or the matters occasioning it within the period specified in the
notice (being a reasonable period for the person to comply with the requirements
imposed by the notice).Clause 29 provides that a person who, without reasonable excuse, fails to comply
with a requirement imposed by an improvement notice is guilty of an offence that
carries a maximum penalty of 100 penalty units (currently $11,000) or imprisonment
for 6 months, or both, for an individual or 500 penalty units (currently $55,000) for
a body corporate.Division 3 Prohibition notices
Clause 30 provides that if an authorised officer is of the opinion that there is
occurring or about to occur any dangerous activity, the authorised officer may issue
to the person who has or may be reasonably presumed to have control over the
activity a notice prohibiting the carrying on of the activity until the authorised officer
has certified in writing that the activity is not or is no longer a dangerous activity.Clause 31 provides that a person who, without reasonable excuse, fails to comply
with a requirement imposed by a prohibition notice is guilty of an offence that carries
a maximum penalty of 100 penalty units (currently $11,000) or imprisonment for
6 months, or both, for an individual or 500 penalty units (currently $55,000) for a
body corporate.Division 4 General provisions relating to notices
Clause 32 provides that if:
(a) an authorised officer believes on reasonable grounds that there is occurring or
about to occur any dangerous activity, and
(b) either:(i) a person to whom a notice under proposed section 28 (an improvement
notice) or 30 (a prohibition notice) has been given has not complied
with the notice, or
(ii) giving such a notice to a person would not be appropriate to avert,
eliminate or minimise the danger,
the authorised officer may take or cause to be taken any action the authorised officer
believes on reasonable grounds to be necessary to avert, eliminate or minimise the
danger.
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Clause 33 provides that an authorised officer may include in a notice under the
proposed Part directions as to the measures to be taken to remedy any contravention
or matter to which the notice relates or to otherwise comply with the notice.Clause 34 provides that a person who is issued with a notice under the proposed Part
may apply in writing to the relevant Competent Authority for a review of the notice
and the Competent Authority is to undertake the review.Clause 35 provides that a person who is not satisfied with the result of such a review
of a notice may appeal against the notice to:
(a) in the case of a review by the Environment Protection Authority—the Land
and Environment Court, or
(b) in the case of a review by the WorkCover Authority—a Local Court
constituted by an Industrial Magistrate sitting alone.The court to which an appeal is made may, on the appeal, confirm the notice, vary it
or revoke it.Clause 36 provides a process to apply for the stay of certain notices while under
review.Clause 37 deals with the withdrawal of notices.
Clause 38 makes it clear that the revocation or withdrawal of a notice under the
proposed Part does not prevent the issue of any other notice.Clause 39 deals with the service of notices.
Clause 40 provides that an authorised officer may cause a notice containing a copy
of or extract from a notice under the proposed Part, or of the matter contained in the
notice, to be exhibited at a place of work or on a vehicle concerned in a manner
approved by the Competent Authority. It will be an offence for a person to destroy,
damage or remove a notice so exhibited except with the approval of the Competent
Authority or an authorised officer (maximum penalty 20 penalty units (currently
$2,200) for an individual or 100 penalty units (currently $11,000) for a body
corporate).Clause 41 provides that the issue, variation, revocation or withdrawal of a notice
under the proposed Part does not affect any proceedings for an offence against the
proposed Act or the regulations in connection with any matter in respect of which the
notice was issued.Part 6 Exemptions
Clause 42 enables a Competent Authority to grant an exemption to a person or class
of persons from compliance with a provision of the regulations. Failure to comply
with a condition in an exemption is an offence that carries a maximum penalty of 100
penalty units (currently $11,000) or imprisonment for 6 months, or both, for an
individual or 500 penalty units (currently $55,000) for a body corporate. The
proposed section also details various procedural and formal requirements relating to
exemptions.
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Clause 43 deals with the cancellation and variation of exemptions and conditions.Clause 44 provides for the internal review of certain decisions relating to
exemptions made by a Competent Authority.Clause 45 provides that a person who is not satisfied with the result of such an
internal review may appeal against the notice to:
(a) in the case of a review by the Environment Protection Authority—the Land
and Environment Court, or
(b) in the case of a review by the WorkCover Authority—a Local Court
constituted by an Industrial Magistrate sitting alone.The court to which an appeal under this section is made may, on the appeal, confirm
the notice, vary it or revoke it.Clause 46 provides that the Minister administering the proposed Act may order a
suspension or variation of the regulations or specified parts of the regulations.Part 7 Criminal and other proceedings
Division 1 Proceedings for offences generally
Clause 47 sets out the courts in which proceedings for offences under the proposed
Act may be brought and the time within which such proceedings must be brought.Clause 48 deals with the issuing and serving of penalty notices for offences against
the proposed Act and the regulations.Division 2 Court orders in connection with offences
Clause 49 provides that the proposed Division applies where a court finds that a
person has committed an offence against the proposed Act or the regulations (the
offender) and contains interpretation provisions.Clause 50 contains machinery provisions.
Clause 51 enables a court to order the offender to pay, as part of the penalty for
committing the offence, an additional penalty of an amount the court is satisfied, on
the balance of probabilities, represents 3 times the amount of any monetary benefits
that:
(a) was received or receivable, by the person or by an associate of the person, from
the commission of the offence, and
(b) in the case of a journey that was interrupted or not commenced because of
action taken by an authorised officer in connection with the commission of the
offence—would have been received or receivable, by the person or by an
associate of the person, from the commission of the offence had the journey
been completed.
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Clause 52 enables a court that finds the driver of a vehicle guilty of an offence to
order either or both of the following:
(a) that a licence the driver is required to have by the regulations is:(i) cancelled, or
(ii) modified or suspended for a specified period,
(b) that the driver is disqualified for a specified period from obtaining or holding
a licence a person is required to have by the regulations.Clause 53 enables the court, if it considers an offender to be a systematic or
persistent offender against the proposed Act or the regulations, to make a supervisory
intervention order relating to the offender requiring the offender (at the offender’s
own expense and for a specified period not exceeding one year) to do any or all of
the following:
(a) to do specified things that the court considers will improve the offender’s
compliance with the proposed Act or the regulations or specified provisions of
the proposed Act or the regulations, including (for example) the following:(i) appointing or removing staff to or from particular activities or positions,
(ii) training and supervising staff,
(iii) obtaining expert advice as to maintaining appropriate compliance,
(iv) installing monitoring, compliance, managerial or operational
equipment (including, for example, intelligent transport system
equipment),
(v) implementing monitoring, compliance, managerial or operational
practices, systems or procedures,
(b) to conduct specified monitoring, compliance, managerial or operational
practices, systems or procedures subject to the direction of the Competent
Authority or a person nominated by the Competent Authority,
(c) to furnish compliance reports to the Competent Authority or the court or both
as specified in the order,
(d) to appoint a person to have responsibilities:(i) to assist the offender in improving compliance with the proposed Act
and the regulations or specified provisions of the proposed Act or the
regulations, and
(ii) to monitor the offender’s performance in complying with this or
specified provisions of the proposed Act and the regulations and in
complying with the requirements of the order, and
(iii) to furnish compliance reports to the Competent Authority or the court
or both as specified in the order.Clause 54 enables a court to order that an offender be prohibited for a specified
period from involvement in the transport of dangerous goods by road or rail.
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Clause 55 enables a court to order, in addition to imposing any other penalty
imposed on the offender, that any dangerous goods related to the offence and their
container to be forfeited to the Crown.Clause 56 enables a court to order that the offender pay to certain public authorities
and persons the costs and expenses incurred, or pay compensation for the loss or
damage suffered, by the public authorities and persons as a result of the offence
concerned.Clause 57 enables a public authority or person to recover similar costs, expenses and
compensation directly from the offender (after the offence is proved) by way of an
action in the Land and Environment Court.Clause 58 enables a court to order an offender to pay to a Competent Authority costs
that:
(a) were reasonably incurred in taking that action, and
(b) are directly related to the investigation of the offence.Those costs include costs for testing, transporting, storing and disposing of the
dangerous goods and other evidence.Division 3 General
Clause 59 contains evidentiary provisions.Clause 60 contains evidentiary provisions dealing specifically with weighing.
Clause 61 deals with the admissibility of transport documentation.
Clause 62 deals with evidence relating to the appointment of authorised officers and
purported signatures of authorised officers.Clause 63 deals with the admissibility as evidence, and the treatment in proceedings,
of codes of practice, guidelines or other documents approved by the Australian
Transport Council.Part 8 Miscellaneous
Clause 64 provides that the proposed Act binds the Crown.Clause 65 protects an authorised officer from civil liability for acts or omissions
done honestly and in good faith in the course of his or her duties.Clause 66 restricts the disclosure of information obtained by persons in connection
with the administration or execution of the proposed Act.Clause 67 provides that any term of any contract or agreement that purports to
exclude, limit or modify the operation of the proposed Act or the regulations or of
any provision of the proposed Act or the regulations is void to the extent that it would
otherwise have that effect.
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Clause 68 enables a public authority that incurs costs as a result of an incident
involving the escape of dangerous goods or an explosion or fire involving dangerous
goods, or involving the danger of such an escape, explosion or fire, to recover so
much of the costs as were reasonably incurred.Clause 69 protects a person from civil liability for an act done honestly and in good
faith and without any fee, charge or other reward, for the purpose of assisting or
attempting to assist in a situation in which an emergency or accident involving
dangerous goods occurs or is likely to occur.Clause 70 requires the Minister administering the proposed Act to publish in the
Gazette, as soon as practicable after a regulation is made, details of where any
regulation, code, standard or rule applied or adopted by the regulation, or any
amendment or replacement of the regulation, code, standard or rule, may be obtained
or inspected.Clause 71 empowers the Minister administering the proposed Act to delegate by
instrument in writing to a Competent Authority all or any of the Minister’s powers
under the proposed Act (other than the power to make an application order or
emergency order and the power of delegation).Clause 72 gives effect to Schedule 1.
Clause 73 gives effect to Schedule 2.
Clause 74 is a formal provision that repeals the Road and Rail Transport
(Dangerous Goods) Act 1997.Clause 75 provides for the review of the proposed Act as soon as possible after the
period of 5 years after the proposed Act is assented to.Schedule 1 Savings, transitional and other
provisions
Schedule 1 contains a formal provision that allows regulations of a savings or
transitional nature to be made and another provision that saves the appointment of
authorised officers appointed under the Road and Rail Transport (Dangerous Goods)
Act 1997.Schedule 2 Amendment of other Acts
Schedule 2 makes consequential amendments to the Acts set out in that Schedule.More specifically, Schedule 2.3 amends section 210 (Freedom from victimisation)
of the Industrial Relations Act 1996 to prohibit an employer or industrial
organisation from victimising an employee or prospective employee because the
employee or prospective employee has informed any person or body of, or given
evidence in relation to, a breach or alleged breach of the proposed Act or the
regulations under that Act (or a provision of a law of another State or Territory that
corresponds to the proposed Act or the regulations).
Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.