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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
DANGEROUS SUBSTANCES (SAFE HANDLING)
BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. References to codes, &c.
5. Meaning of "dangerous substance"
6. Meaning of "dangerous goods"
7. Meaning of "combustible liquid"
8. Meaning of "chemical"
9. What constitutes the handling of dangerous substances?
10. Scope of Act
11. Act binds Crown
12. Inconsistencies, &c., with other Acts
PART 2 SAFETY OBLIGATIONS
Division 1 Preliminary
13. Safety obligations
14. Achieving acceptable levels of risk
15. Discharge of obligations
16. Obligations may be owed in more than one capacity
[Bill 64]-III
17. Obligations are owed even if others also have them
18. How to discharge obligations if there are regulations or approved
codes of practice
19. How to discharge obligations if there are no regulations or
approved codes of practice
Division 2 Obligations of occupiers and others
20. Obligations of occupiers regarding risk reduction
21. Obligations of occupiers regarding emergency plans and
procedures
22. Obligations of employees and other persons
23. Obligations of manufacturers, importers and suppliers of
dangerous substances
24. Obligations of designers, manufacturers, importers, suppliers
and installers of handling systems
25. Obligations of suppliers and installers regarding known hazards,
&c.
Division 3 Defences
26. Defences for Division 1 or 2
PART 3 CODES OF PRACTICE
27. Minister may approve codes of practice
28. Use of codes of practice in proceedings
PART 4 MAJOR HAZARD FACILITIES
Division 1 Classification of facilities as major hazard facilities
29. Meaning of "major hazard facility" and "possible major hazard
facility"
30. Classification of facilities as major hazard facilities
31. Procedure for classifying facilities as major hazard facilities
32. Declassification of major hazard facilities
Division 2 Notification of possible major hazard facilities
33. Obligation of occupiers to notify Secretary of existing possible
major hazard facilities
34. Obligation of occupiers to notify Secretary of new possible
major hazard facilities
2
35. Obligation of occupiers to notify Secretary of certain upgrades
of facilities
36. Obligation of occupiers to notify Secretary of modifications of
major hazard facilities
37. Obligation of occupiers to give Secretary required information
about possible major hazard facilities
Division 3 Other obligations of occupiers of major hazard facilities
38. Obligation of occupiers to carry out systematic risk assessments
39. Obligation of occupiers regarding emergency plans and
procedures
40. Obligation of occupiers to consult about emergency plans and
procedures
41. Obligation of occupiers regarding education and training
42. Obligation of occupiers regarding safety management systems
43. Obligation of occupiers to consult and give information about
safety measures
44. Obligation of occupiers to give safety reports to Secretary
45. Obligation of occupiers to report, &c., dangerous substances
emergencies
46. Obligation of occupiers to record dangerous situations
PART 5 DANGEROUS SUBSTANCES LOCATIONS
Division 1 Identification of dangerous substances locations
47. Meaning of "dangerous substances location" and "large
dangerous substances location"
Division 2 Notification of possible dangerous substances locations
48. Obligation of occupiers to notify Secretary of possible large
dangerous substances locations
49. Obligation of occupiers to give Secretary required information
about possible dangerous substances locations
Division 3 Other obligations of occupiers of dangerous substances locations
50. Obligation of occupiers regarding emergency plans and
procedures
51. Obligation of occupiers regarding safety management systems
3
52. Obligation of occupiers to report, &c., dangerous substances
emergencies
53. Obligation of occupiers to record dangerous situations
PART 6 ADMINISTRATION AND ENFORCEMENT
Division 1 Secretary
54. Powers of Secretary
Division 2 Authorised officers
55. Appointment of authorised officers
56. Powers of authorised officers
57. Identification of authorised officers
58. Delegation
59. General powers of inspection, &c., of authorised officers
60. Authorised officers may require names and addresses
61. Powers of authorised officers regarding suspected offences
62. Authorised officers to restore premises, &c., to original
condition after inspections
63. Offence to obstruct, &c., authorised officers
64. Offence to fail to comply with authorised officer's directions
65. Self-incrimination no excuse
Division 3 Directions by authorised officers
66. Authorised officers may give directions
67. Procedure for giving directions
68. Directions to carry out risk assessments
69. Directions to reduce risks
70. Directions to review safety management systems
71. Directions to review systematic risk assessments
72. Directions to review emergency plans and procedures
73. Directions to review safety reports
74. Directions to stop and secure handling systems
75. Directions to suspend operations for unacceptable levels of risk
76. Directions to isolate sites
4
77. Directions for independent studies or audits
78. Offence not to comply with directions
79. Obligation of occupiers to make directions available for
inspection by employees
Division 4 Preventative measures and other matters
80. Taking urgent direct action to prevent dangerous situations
causing serious harm
81. Recovery of costs of government action
PART 7 OFFENCE PROCEEDINGS AND RELATED MATTERS
82. Time limit for prosecuting offences
83. Authorised officers may prosecute offences
84. Analysts
85. Evidentiary matters
86. Responsibility for acts or omissions of representatives
87. Offences by bodies corporate
88. Recovery of investigation costs from convicted persons
89. Prohibiting convicted persons from involvement in handling of
dangerous substances
90. Forfeiture
PART 8 MISCELLANEOUS
91. Applications for review of decisions
92. False or misleading statements, &c.
93. Delegation of Minister's power to Secretary
94. Protection from liability
95. Assistance in emergencies or accidents
96. Status of Gazette notices
97. Service of documents
98. Regulations
99. Minister to notify adoption of codes, &c., by regulation
100. Administration of Act
SCHEDULE 1 PROVISIONS WITH RESPECT TO WARRANTS
5
6
DANGEROUS SUBSTANCES (SAFE HANDLING)
BILL 2005
(Brought in by the Minister for Infrastructure, Energy and
Resources, the Honourable Bryan Alexander Green)
A BILL FOR
An Act to provide for the safe handling of dangerous
substances, for the safe management of places where
dangerous substances are handled and for the safe
management of incidents and emergencies involving
dangerous substances and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Dangerous
Substances (Safe Handling) Act 2005.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 64] 7
s. 3 No. Dangerous Substances (Safe Handling) 2005
3. Interpretation
In this Act, unless the contrary intention
appears
"acceptable level of risk" see section 14;
"approved code of practice" see
section 27;
"approved form" means a form approved by
the Secretary;
"Australian Dangerous Goods Code" means
the Australian Code for the Transport of
Dangerous Goods by Road and Rail
published by the Commonwealth, as
from time to time amended;
"Australian Explosives Code" means the
Australian Code for the Transport of
Explosives by Road and Rail published
by the Commonwealth, as from time to
time amended;
"authorised officer" means an authorised
officer appointed under section 55(1),
and includes a person authorised under
section 55(6);
"chemical" has the meaning given by
section 8;
"combustible liquid" has the meaning given
by section 7;
"conviction", in relation to an offence,
includes a finding of guilt without the
recording of a conviction for the offence;
8
2005 Dangerous Substances (Safe Handling) No. s. 3
"dangerous goods" has the meaning given by
section 6;
"dangerous situation", at any premises,
means that although there is not a
dangerous substances emergency at the
premises
(a) it is likely that there will be a
dangerous substances emergency
at the premises if appropriate
action is not taken; and
(b) it is reasonable to conclude, at the
least, that taking the action
should not be indefinitely
delayed;
"dangerous substance" has the meaning
given by section 5;
"dangerous substances emergency" means
an incident that exposes persons,
property or the environment in the
vicinity of the place where the incident
occurs to an immediate risk of serious
harm from one or more of the following:
(a) the escape, spillage or leakage of
dangerous substances;
(b) a fire or explosion involving
dangerous substances;
(c) a harmful reaction from
dangerous substances;
(d) the evolution of flammable,
corrosive or toxic vapours from
dangerous substances;
9
s. 3 No. Dangerous Substances (Safe Handling) 2005
"dangerous substances location" has the
meaning given by section 47(1);
"DSL" means a dangerous substances
location;
"emergency services" means
(a) the State Emergency Service
established under the Emergency
Services Act 1976; and
(b) the Tasmanian Ambulance
Service established under the
Ambulance Service Act 1982; and
(c) the Tasmania Fire Service
established under the Fire Service
Act 1979; and
(d) the Department;
"environment" includes
(a) animals and organisms; and
(b) ecosystems and their constituent
parts; and
(c) all natural and physical resources;
and
(d) the qualities and characteristics of
locations, places and areas,
however large or small, that
contribute to their biological
diversity and integrity, intrinsic
or attributed scientific value or
interest, amenity, harmony and
sense of community; and
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2005 Dangerous Substances (Safe Handling) No. s. 3
(e) the social, economic, aesthetic
and cultural conditions that
affect, or are affected by, things
mentioned in paragraphs (a), (b),
(c) and (d);
"executive officer", of a corporation, means a
person who
(a) is a member of the governing
body of the corporation; or
(b) is concerned with, or takes part
in, the corporation's
management, whatever the
person's position is called and
whether or not the person is a
director of the corporation;
"explosives" means Class 1 dangerous goods
within the meaning of the Australian
Dangerous Goods Code;
"export" means export from Tasmania;
"facility" means premises where dangerous
substances are, or are to be, handled;
"fire officer" means a person who is a fire-
fighter, or an officer of the Fire Service,
within the meaning of the Fire Service
Act 1979;
"handling system" means any of the
following used in connection with the
handling of dangerous substances:
(a) a bowser;
(b) a container;
11
s. 3 No. Dangerous Substances (Safe Handling) 2005
(c) a spill containment system;
(d) a pipe or system of pipes;
(e) a fire-fighting or fire protection
system;
(f) any other plant;
"hazard" means a thing or situation having
the potential to do one or more of the
following:
(a) kill or harm a person;
(b) harm property;
(c) harm the environment;
"import" means import into Tasmania;
"large dangerous substances location" has
the meaning given by section 47(3);
"LDSL" means a large dangerous substances
location;
"major hazard facility" has the meaning
given by section 29(1);
"material harm" is harm that is less extreme
than serious harm but which causes or
has the potential to cause, either directly
or indirectly, one or more of the
following:
(a) harm to a person of a kind that
requires, or may require, medical
treatment;
(b) harm to property;
12
2005 Dangerous Substances (Safe Handling) No. s. 3
(c) harm to the environment;
"MHF" means a major hazard facility;
"modification", of an MHF or DSL,
includes
(a) a change to plant, processes or
quantities of dangerous
substances at the facility or
location; and
(b) the introduction of different
dangerous substances or new
plant, processes or operating
procedures at the facility or
location; and
(c) organisational change at the
facility or location; and
(d) a change to the safety
management system at the
facility or location;
"NOHSC" means the National Occupational
Health and Safety Commission (more
commonly known as Worksafe Australia)
established under the National
Occupational Health and Safety
Commission Act 1985 of the
Commonwealth;
"notice" means signed written notice;
"notify" means give a notice;
"occupier", of an MHF, DSL, facility or other
place, means an employer, or other
13
s. 3 No. Dangerous Substances (Safe Handling) 2005
person, who has overall management of
the MHF, DSL, facility or place;
"PMHF" means a possible major hazard
facility;
"possible major hazard facility" has the
meaning given by section 29(2);
"powers", of the Secretary or an authorised
officer, includes any functions associated
with the exercise of those powers;
"premises" includes
(a) an area of land, whether built on
or enclosed; and
(b) a building or a part of a building,
whether permanent or temporary;
and
(c) a structure or a part of a structure,
whether permanent or
temporary
but does not include a vehicle;
"qualifications" includes expertise, training
and experience;
"regulations" means regulations made and in
force under this Act;
"relevant employees", in relation to any
facility or location, means employees
(a) whose normal duties expose them
to a risk associated with the
facility or location; or
14
2005 Dangerous Substances (Safe Handling) No. s. 3
(b) who have responsibilities or
expertise regarding the
management of that risk;
"risk" means the likelihood of harm to a
person, property or the environment
arising out of a hazard;
"safety management system"
(a) for an MHF, means a safety
management system that
complies with section 42; or
(b) for a DSL, means a safety
management system that
complies with section 51;
"safety obligation" see section 13;
"safety report" see section 44;
"Secretary" means the Secretary of the
Department;
"sell" means sell by wholesale or retail, and
includes
(a) offer, display or expose for sale;
and
(b) keep or possess for sale; and
(c) barter or exchange; and
(d) deal in or agree to sell; and
(e) supply, send, forward or deliver
for sale or for, or in expectation
of receiving, any payment or
consideration; and
15
s. 3 No. Dangerous Substances (Safe Handling) 2005
(f) receive for sale; and
(g) authorise, direct, cause, permit or
suffer a thing referred to in
paragraph (a), (b), (c), (d), (e) or
(f) to be done;
"serious harm" is harm that contributes in a
substantial way, either directly or
indirectly, to one or more of the
following:
(a) the death of a person;
(b) serious personal injury within the
meaning of section 15;
(c) serious harm to property;
(d) serious harm to the environment;
"Standards Australia" means Standards
Australia International Ltd ACN
087 326 690;
"statutory rule" means a statutory rule within
the meaning of the Rules Publication Act
1953;
"systematic risk assessment" means a
systematic risk assessment under
section 38;
"workplace" means a workplace within the
meaning of the Workplace Health and
Safety Act 1995.
16
2005 Dangerous Substances (Safe Handling) No. s. 4
4. References to codes, &c.
A reference in this Act to a code, standard,
guideline or rule includes a reference to a code,
standard, guideline or rule made outside
Australia.
5. Meaning of "dangerous substance"
(1) A dangerous substance is a substance that has
the potential to cause harm to persons, property
or the environment because of one or more of
the following:
(a) the chemical properties of the substance;
(b) the physical properties of the substance;
(c) the biological properties of the substance.
(2) Without limiting subsection (1), all dangerous
goods, combustible liquids and chemicals are
dangerous substances.
6. Meaning of "dangerous goods"
Goods are dangerous goods if they are
substances or articles that
(a) are capable of being classified as an
explosive substance or explosive article
under the Australian Explosives Code; or
(b) are listed in the Australian Explosives
Code, appendix 1 or 2; or
17
s. 7 No. Dangerous Substances (Safe Handling) 2005
(c) are capable of being classified as
dangerous goods under the Australian
Dangerous Goods Code; or
(d) are listed as dangerous goods or goods
too dangerous to be transported under the
Australian Dangerous Goods Code; or
(e) are capable of being classified as a
combustible liquid under Australian
Standard AS 1940 The Storage and
Handling of Flammable and Combustible
Liquids made by Standards Australia, as
from time to time amended; or
(f) are prescribed to be dangerous goods.
7. Meaning of "combustible liquid"
A liquid is a combustible liquid if it is a
combustible liquid under
(a) Australian Standard AS 1940 The
Storage and Handling of Flammable and
Combustible Liquids made by Standards
Australia, as from time to time amended;
or
(b) if another standard is prescribed for the
purposes of this section, that other
standard.
8. Meaning of "chemical"
A chemical is
18
2005 Dangerous Substances (Safe Handling) No. s. 9
(a) a chemical that is listed or being
considered for listing in the Australian
Inventory of Chemical Substances
published by the National Industrial
Chemicals Notification Assessment
Scheme that operates under the
Industrial Chemicals (Notification and
Assessment) Act 1989 of the
Commonwealth; or
(b) a substance that is, or is capable of being,
classified according to the Approved
Criteria for Classifying Hazardous
Substances published by NOHSC; or
(c) a chemical that is registered by the
Australian Pesticides and Veterinary
Medicines Authority (APVMA)
continued in existence by section 6 of the
Agricultural and Veterinary Chemicals
(Administration) Act 1992 of the
Commonwealth.
9. What constitutes the handling of dangerous
substances?
(1) A person handles a dangerous substance for the
purposes of this Act if they do one or more of
the following:
(a) import or export the dangerous
substance;
(b) manufacture, process or treat the
dangerous substance;
(c) sell, supply, receive or dispense the
dangerous substance;
19
s. 10 No. Dangerous Substances (Safe Handling) 2005
(d) pack the dangerous substance;
(e) mark or label articles, containers or
packages of the dangerous substance;
(f) put up placards or signs in relation to the
dangerous substance;
(g) possess, or otherwise have custody or
control of, the dangerous substance;
(h) store or keep the dangerous substance;
(i) use the dangerous substance;
(j) dispose of the dangerous substance or
render it harmless;
(k) convey the dangerous substance within a
pipeline;
(l) carry out a prescribed activity in relation
to the dangerous substance.
(2) However, except as provided by
subsection (1)(k), a person who is transporting a
dangerous substance is not taken to be handling
the dangerous substance.
10. Scope of Act
(1) This Act applies to
(a) the handling of dangerous substances;
and
(b) the operation of major hazard facilities
and dangerous substances locations.
20
2005 Dangerous Substances (Safe Handling) No. s. 11
(2) However, this Act does not apply to dangerous
substances that are in a container that is designed
to form part of, and does form part of, the fuel or
battery system of a vehicle's engine, auxiliary
engine, fuel-burning appliance or other part of a
vehicle's propulsion system.
(3) Also, this Act does not apply to
(a) land that is used for obtaining, mining or
transporting petroleum under the
Petroleum (Submerged Lands) Act 1982;
or
(b) distribution systems, within the meaning
of the Gas Act 2000, that are located
outside the boundaries of major hazard
facilities or dangerous substances
locations.
(4) Also, except as provided by section 9(1)(k), this
Act does not apply to the transportation of
dangerous substances.
11. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
12. Inconsistencies, &c., with other Acts
(1) If a provision of this Act is inconsistent with a
provision of any of the following Acts, the
provision of that Act prevails over the provision
of this Act to the extent of the inconsistency:
21
s. 12 No. Dangerous Substances (Safe Handling) 2005
(a) Dangerous Goods (Safe Transport) Act
1998;
(b) Emergency Services Act 1976;
(c) Gas Act 2000;
(d) Gas Pipelines Act 2000;
(e) Radiation Protection Act 2005;
(f) Security-sensitive Dangerous Substances
Act 2005.
(2) If
(a) this Act imposes a safety obligation on a
person; and
(b) any of the other Acts referred to in
subsection (1) imposes an obligation on
the person or on another person that is at
least equivalent to the safety obligation
compliance with the obligation under the other
Act is taken, for this Act, to be compliance with
the safety obligation.
(3) However, subsection (2) does not apply to a
safety obligation regarding an MHF.
22
2005 Dangerous Substances (Safe Handling) No. s. 13
PART 2 SAFETY OBLIGATIONS
Division 1 Preliminary
13. Safety obligations
(1) All persons who, through their involvement with
the handling of dangerous substances or with
handling systems at any place, may affect the
safety of any person or harm any property or the
environment have the following obligations:
(a) to comply with this Act;
(b) to take all reasonable precautions and
care to achieve an acceptable level of
risk.
(2) In addition to their obligations under
subsection (1), the following persons have
obligations under Division 2:
(a) the occupier of an MHF or DSL;
(b) an employee or other person at an MHF
or DSL;
(c) a manufacturer, importer or supplier of
dangerous substances;
(d) a designer, manufacturer, importer or
supplier of handling systems for use at an
MHF or DSL;
(e) an installer of handling systems at an
MHF or DSL.
23
s. 14 No. Dangerous Substances (Safe Handling) 2005
(3) The occupier of an MHF has, in addition to the
obligations under subsections (1) and (2), the
obligations under Part 4.
(4) The occupier of a DSL has, in addition to the
obligations under subsections (1) and (2), the
obligations under Part 5.
(5) For the purposes of this Act, the obligations
referred to in subsection (1), (2), (3) or (4) are
called "safety obligations".
14. Achieving acceptable levels of risk
(1) An acceptable level of risk is achieved when risk
is minimised as far as reasonably practicable.
(2) To decide whether risk is minimised as far as
reasonably practicable, regard must be had to
(a) the likelihood of harm to a person,
property or the environment related to
the risk; and
(b) the severity of the harm.
(3) The regulations may prescribe the acceptable
level of risk in terms of the likelihood and the
severity of the consequences of the risk or in
another way.
(4) The assessment of risk to decide its acceptability
must take account of good industry practice and
compliance with approved codes of practice if
(a) the regulations do not prescribe an
acceptable level of risk or set
performance objectives and measures for
24
2005 Dangerous Substances (Safe Handling) No. s. 15
the avoidance, reduction or monitoring of
risk; or
(b) it is not practicable in the circumstances
to calculate or estimate the level of risk.
15. Discharge of obligations
(1) A person who has a safety obligation must
discharge that obligation.
Penalty: If
(a) the contravention causes
multiple deaths and serious
harm to property or the
environment a fine not
exceeding 10 000 penalty units
or imprisonment for a term not
exceeding 5 years; or
(b) the contravention causes
multiple deaths a fine not
exceeding 8 000 penalty units
or imprisonment for a term not
exceeding 4 years; or
(c) the contravention causes death
or serious personal injury a
fine not exceeding 6 000
penalty units or imprisonment
for a term not exceeding 3
years; or
(d) the contravention involves
exposure to a substance likely
to cause death or serious
personal injury or illness a
25
s. 15 No. Dangerous Substances (Safe Handling) 2005
fine not exceeding 4 000
penalty units or imprisonment
for a term not exceeding 2
years; or
(e) the contravention causes minor
personal injury or serious harm
to property or the
environment a fine not
exceeding 2 000 penalty units
or imprisonment for a term not
exceeding 12 months; or
(f) if paragraphs (a), (b), (c), (d)
and (e) of the penalty under
subsection (1) do not apply a
fine not exceeding 1 000
penalty units.
(2) However, if
(a) a person is alleged to have contravened
subsection (1); and
(b) it is alleged that the safety obligation the
person failed to discharge is the
obligation to comply with this Act; and
(c) the specific provision of this Act that the
failure relates to provides a penalty for
contravening that specific provision; and
(d) a circumstance of aggravation mentioned
in paragraph (a), (b), (c), (d) or (e) of the
penalty under subsection (1) is not
proved for the alleged offence
the maximum penalty that can be imposed for
the alleged offence is the monetary penalty for
that specific provision.
26
2005 Dangerous Substances (Safe Handling) No. s. 16
(3) In this section
"minor personal injury" means bodily injury
that interferes with health or comfort;
"multiple deaths" means the death of 2 or
more people;
"serious personal injury" means injury
that
(a) results in the full or partial loss of
a distinct part or organ of the
body or of the use of a distinct
part or organ of the body; or
(b) results in serious disfigurement;
or
(c) if left untreated, would endanger
or be likely to endanger life, or
cause or be likely to cause
permanent injury to health
whether or not treatment is or could have
been available.
16. Obligations may be owed in more than one capacity
A person who has a safety obligation in one
capacity may have the same or another safety
obligation in another capacity.
17. Obligations are owed even if others also have them
To avoid doubt, it is declared that the imposition
of a safety obligation on one person does not
27
s. 18 No. Dangerous Substances (Safe Handling) 2005
relieve another person of a safety obligation that
the other person may have.
18. How to discharge obligations if there are
regulations or approved codes of practice
(1) If the regulations prescribe a way of achieving
an acceptable level of risk, a person may
discharge the person's safety obligation
regarding the risk only by following the
prescribed way.
(2) If the regulations prohibit exposure to a risk, a
person may discharge the person's safety
obligation regarding the risk only by ensuring
that the prohibition is not contravened.
(3) Subject to subsections (1) and (2), if an approved
code of practice states a way of achieving an
acceptable level of risk, a person may discharge
the person's safety obligation regarding the risk
only by
(a) adopting and following the stated way; or
(b) adopting and following another way that
achieves a level of risk equal to or lower
than the acceptable level.
19. How to discharge obligations if there are no
regulations or approved codes of practice
(1) This section applies if there is no regulation or
approved code of practice prescribing or stating
a way to discharge a person's safety obligation
regarding a risk.
28
2005 Dangerous Substances (Safe Handling) No. s. 20
(2) The person may choose an appropriate way to
discharge the person's safety obligation
regarding the risk.
(3) However, the person discharges the person's
safety obligation regarding the risk only if the
person takes reasonable precautions, and
exercises proper diligence, to ensure that the
obligation is discharged.
Division 2 Obligations of occupiers and others
20. Obligations of occupiers regarding risk reduction
The occupier of an MHF or DSL has the
following obligations:
(a) as far as practicable, to minimise the risk
associated with the MHF or DSL by
(i) eliminating or minimising
hazards at the facility or location;
and
(ii) implementing measures to
minimise the likelihood of an
incident or dangerous substances
emergency at the facility or
location; and
(iii) implementing measures to limit
the consequences if a dangerous
substances emergency occurs at
the facility or location;
(b) to ensure the safety of the occupier,
employees and other persons while at the
MHF or DSL, including, for example, by
29
s. 21 No. Dangerous Substances (Safe Handling) 2005
providing and maintaining a safe place of
work including safe handling systems;
(c) to document or be able to demonstrate
the way the occupier has complied with
the occupier's obligations under
paragraphs (a) and (b);
(d) to provide appropriate induction,
information, supervision, education and
training to all persons at the facility or
location so that they may carry out their
roles and duties safely;
(e) to develop, implement and maintain a
safety management system for the
facility or location;
(f) in consultation with relevant employees,
to review the safety management
system
(i) at least once a year; and
(ii) before any modification of the
facility or location that would
significantly alter the risk
associated with the facility or
location is carried out.
21. Obligations of occupiers regarding emergency plans
and procedures
The occupier of an MHF or LDSL also has the
following obligations:
(a) in consultation with relevant employees,
and with the emergency services, to
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2005 Dangerous Substances (Safe Handling) No. s. 22
establish and document emergency plans
and procedures to
(i) contain and control a dangerous
substances emergency occurring
at the facility or location; and
(ii) minimise the effect of the
emergency on persons, property
and the environment;
(b) in consultation with relevant employees
and the emergency services, to review
and update emergency plans and
procedures before any modification of
the facility or location that would
significantly alter the risk associated with
the facility or location is carried out.
22. Obligations of employees and other persons
An employee or other person at an MHF or DSL
has the following obligations:
(a) to comply with procedures applying to
the employee or other person that are part
of a safety management system for the
facility or location;
(b) to comply with instructions given for the
safety of persons by the occupier of the
facility or location or a supervisor at the
facility or location;
(c) to report to a supervisor at the facility or
location any matter at the facility or
location that may lead to or cause a
dangerous substances emergency;
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s. 23 No. Dangerous Substances (Safe Handling) 2005
(d) to take any other reasonable and
necessary course of action at the facility
or location to ensure that no-one is
exposed to an unacceptable level of risk.
23. Obligations of manufacturers, importers and
suppliers of dangerous substances
(1) A manufacturer, importer or supplier of
dangerous substances has the following
obligations:
(a) to ensure that the dangerous substances
are in a condition that is safe for
handling;
(b) to ensure that appropriate information
about the safe handling of the dangerous
substances is provided with, or before the
receipt of, the dangerous substances.
(2) For subsection (1)(b), information is appropriate
if it clearly identifies the dangerous substances
and specifies
(a) the precautions to be taken for the safe
handling of the dangerous substances;
and
(b) the hazards associated with the handling
of the dangerous substances.
24. Obligations of designers, manufacturers, importers,
suppliers and installers of handling systems
(1) A designer or importer of a handling system for
use at an MHF or DSL has an obligation to
32
2005 Dangerous Substances (Safe Handling) No. s. 24
ensure that the system is designed in such a way
that the risk to persons, property or the
environment from its proper use is at an
acceptable level.
(2) A manufacturer or importer of a handling system
for use at an MHF or DSL has an obligation to
ensure that the system is constructed in such a
way that the risk to persons, property or the
environment from its proper use is at an
acceptable level.
(3) A designer, manufacturer, importer or supplier
of a handling system for use at an MHF or DSL
has an obligation to take all reasonable steps to
ensure that appropriate information about the
safe use and maintenance of the system is
available to the occupier of the facility or
location.
(4) For subsection (3), information is appropriate if
it specifies
(a) the use for which the handling system
has been designed and tested; and
(b) any conditions that must be complied
with if the handling system is to be used
safely so that risk to persons, property or
the environment is at an acceptable level.
(5) An installer of a handling system at an MHF or
DSL has an obligation to install the system in
such a way that the risk to persons, property or
the environment from its proper use is at an
acceptable level.
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25. Obligations of suppliers and installers regarding
known hazards, &c.
(1) This section applies to a person if
(a) the person has
(i) installed a handling system in an
MHF or DSL; or
(ii) supplied a handling system to the
occupier of an MHF or DSL for
use at the facility or location; and
(b) the person becomes aware of a hazard or
defect associated with the system that
may create an unacceptable level of risk
to users of the handling system.
(2) As soon as practicable after becoming aware of
the hazard or defect, the person has an obligation
to take all reasonable steps to inform the present
occupier of the MHF or DSL of
(a) the nature of the hazard or defect and its
significance; and
(b) any modifications or controls that the
person knows of that have been
developed to eliminate or correct the
hazard or defect or manage the risk.
Division 3 Defences
26. Defences for Division 1 or 2
(1) It is a defence in proceedings against a person
for a contravention of a safety obligation under
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2005 Dangerous Substances (Safe Handling) No. s. 26
Division 1 or 2 regarding a risk if the person
establishes that
(a) if regulations have been made about the
way to achieve an acceptable level of
risk, the person followed the way
prescribed in the regulations to prevent
the contravention; or
(b) subject to paragraph (a), if an approved
code of practice has been made stating a
way to achieve an acceptable level of a
risk
(i) the person adopted and followed
the stated way to prevent the
contravention; or
(ii) the person adopted and followed
another way that achieved a level
of risk that is equal to or lower
than the acceptable level to
prevent the contravention; or
(c) if no regulations or approved code of
practice prescribe or state a way to
discharge the person's safety obligation
regarding the risk, the person took
reasonable precautions and exercised
proper diligence to prevent the
contravention.
(2) Also, it is a defence in proceedings against a
person for an offence against section 15 for the
person to establish that the commission of the
offence was due to causes over which the person
had no control.
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s. 27 No. Dangerous Substances (Safe Handling) 2005
PART 3 CODES OF PRACTICE
27. Minister may approve codes of practice
(1) The Minister may approve codes of practice that
state ways of achieving acceptable levels of risk.
(2) A code of practice may
(a) consist of any code, standard, guideline,
rule or other document relating to
dangerous substances formulated,
prepared or adopted by the Secretary or
by a person who, under the law of
another jurisdiction, has powers that are
substantially similar to those of the
Secretary under this Act; and
(b) apply, incorporate or refer to the whole
or any part of any document formulated
or published by any body or authority as
in force at the time the code of practice is
approved or as amended, formulated or
published from time to time.
(3) The Minister may approve any revision of a code
of practice or revoke a code of practice.
(4) Before approving a code of practice or the
revision or revocation of a code of practice, the
Minister must
(a) consult with such employer and
employee organisations as the Minister
considers appropriate having regard to
the application of the code of practice;
and
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2005 Dangerous Substances (Safe Handling) No. s. 27
(b) by notice published in the Gazette and in
3 daily newspapers published and
circulating in the State, give 30 days'
notice of the Minister's intention to
approve the code of practice or the
revision or revocation of the code of
practice.
(5) The Minister must give notice in the Gazette of
(a) the approval of a code of practice; or
(b) the approval of the revision of the whole
or part of a code of practice; or
(c) the revocation of a code of practice.
(6) The Secretary must cause to be made available
for inspection by members of the public without
charge during normal office hours a copy of
(a) every approved code of practice; and
(b) if an approved code of practice has been
revised and the revision has been
approved, the approved code of practice
as so revised; and
(c) if an approved code of practice applies,
incorporates or refers to any other
document, that other document.
(7) The Minister may cause copies of an approved
code of practice to be made available for
purchase.
(8) The Minister may from time to time cause an
approved code of practice to be published in
such ways as the Minister thinks fit.
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s. 28 No. Dangerous Substances (Safe Handling) 2005
(9) An approved code of practice and any approved
revision of a code of practice have effect on the
day on which notice of the approval is published
in the Gazette.
(10) An approved code of practice ceases to have
effect on the day on which notice of the
revocation of the code is published in the
Gazette.
28. Use of codes of practice in proceedings
An approved code of practice is admissible as
evidence in proceedings under this Act if
(a) the proceedings relate to a contravention
of a safety obligation that a person has
under Part 2; and
(b) it is claimed that the person contravened
the obligation by failing to achieve an
acceptable level of risk; and
(c) the approved code of practice is, in
whole or in part, about achieving an
acceptable level of risk.
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2005 Dangerous Substances (Safe Handling) No. s. 29
PART 4 MAJOR HAZARD FACILITIES
Division 1 Classification of facilities as major hazard
facilities
29. Meaning of "major hazard facility" and "possible
major hazard facility"
(1) A major hazard facility ("MHF") is a facility that
the Secretary classifies as a major hazard facility
under this Division.
(2) A possible major hazard facility ("PMHF") is
either of the following:
(a) a facility where a dangerous substance is
handled in a greater than prescribed
quantity;
(b) a facility that its occupier intends to use
for the handling of a dangerous substance
in a greater than prescribed quantity.
(3) However, a facility referred to in subsection (2)
is not a PMHF if a declaration under
section 31(6) is in force in respect of the facility.
30. Classification of facilities as major hazard facilities
(1) The Secretary must classify a facility as an MHF
if the Secretary is reasonably satisfied that
(a) dangerous substances are, or are likely to
be, handled at the facility in a greater
than prescribed quantity; and
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s. 31 No. Dangerous Substances (Safe Handling) 2005
(b) a dangerous substances emergency at the
facility could pose a risk to persons,
property or the environment outside the
facility.
(2) Also, the Secretary may classify a facility as an
MHF if the Secretary, having regard to both of
the following matters, is reasonably satisfied that
the requirements applying under this Act for
major hazard facilities should apply to the
facility:
(a) the potential for a dangerous substances
emergency to occur at the facility;
(b) the extent to which a dangerous
substances emergency at the facility
would pose a risk to persons, property or
the environment.
(3) However, the Secretary must not classify a
facility as an MHF without first consulting the
occupier.
(4) A failure to comply with subsection (3) renders
the classification invalid.
31. Procedure for classifying facilities as major hazard
facilities
(1) The Secretary classifies a facility as an MHF by
publishing notice of the classification in the
Gazette.
(2) The notice is to
(a) include a description of the area occupied
by the MHF; and
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2005 Dangerous Substances (Safe Handling) No. s. 31
(b) indicate in broad terms the reasons for
the classification.
(3) The classification takes effect on
(a) the day on which the notice is published
in the Gazette; or
(b) such later day as the Secretary specifies
in the notice.
(4) The Secretary must also notify the occupier of
(a) the classification; and
(b) the reasons for the classification; and
(c) the occupier's right of review under
section 91.
(5) The notification to the occupier must be given
within 5 days after notice of the classification is
published in the Gazette.
(6) If the Secretary decides not to classify a facility
as an MHF under section 30, the Secretary, by
notice to the occupier, must declare that the
facility as described in the declaration is not an
MHF.
(7) The declaration under subsection (6) is to
include a statement of the Secretary's
understanding of
(a) which dangerous substances are, or are
likely to be, handled at the facility; and
(b) the quantity of dangerous substances that
are, or are likely to be, handled at the
facility.
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s. 32 No. Dangerous Substances (Safe Handling) 2005
32. Declassification of major hazard facilities
(1) The Secretary, after consulting the occupier, may
declassify an MHF from its status as an MHF if
the Secretary reasonably considers that grounds
for the classification no longer exist.
(2) The Secretary declassifies the MHF by
publishing notice of the declassification in the
Gazette.
(3) The notice is to
(a) include a description of the area occupied
by the facility being declassified; and
(b) indicate in broad terms the reasons for
the declassification.
(4) The declassification takes effect on
(a) the day on which the notice is published
in the Gazette; or
(b) such later day as the Secretary specifies
in the notice.
Division 2 Notification of possible major hazard facilities
33. Obligation of occupiers to notify Secretary of
existing possible major hazard facilities
(1) This section applies to a PMHF that is
operational when this section commences.
(2) The occupier of the facility must notify the
Secretary about the facility as required by
subsection (3) to enable the Secretary to decide
whether to classify it as an MHF.
42
2005 Dangerous Substances (Safe Handling) No. s. 34
Penalty: Fine not exceeding 200 penalty units.
(3) The notification under subsection (2) must be
(a) in an approved form; and
(b) given within 3 months after this section
commences.
34. Obligation of occupiers to notify Secretary of new
possible major hazard facilities
(1) This section applies to a PMHF that is not
operational when this section commences.
(2) The occupier of the facility must notify the
Secretary about the facility as required by
subsection (3) to enable the Secretary to decide
whether to classify it as an MHF.
Penalty: Fine not exceeding 200 penalty units.
(3) The notification under subsection (2) must be
(a) in an approved form; and
(b) given to the Secretary
(i) if the facility begins operations
within 3 months after this section
commences, no later than 14 days
after it begins operations; or
(ii) if the facility begins operations
within 12 months (but more than
3 months) after this section
commences, at least 3 months
before it begins operations; or
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s. 35 No. Dangerous Substances (Safe Handling) 2005
(iii) if the facility begins operations
more than 12 months after this
section commences, at least 6
months before it begins
operations.
35. Obligation of occupiers to notify Secretary of
certain upgrades of facilities
(1) This section applies to a facility, other than an
MHF, if there is a change in relation to the
facility that involves any of the following:
(a) the facility becomes a PMHF;
(b) for a facility that is the subject of a
declaration under section 31(6)
(i) the quantity of dangerous
substances handled, or likely to
be handled, at the facility is
greater than the quantity stated in
the declaration; or
(ii) dangerous substances other than
those stated in the declaration are
handled, or are likely to be
handled, at the facility.
(2) The occupier of the facility must notify the
Secretary about the facility to enable the
Secretary to decide whether to classify it as an
MHF.
(3) The notification under subsection (2) must be
(a) in an approved form; and
(b) given to the Secretary
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2005 Dangerous Substances (Safe Handling) No. s. 36
(i) if the facility is upgraded within 3
months after this section
commences, within 14 days after
it begins operations as an
upgraded facility; or
(ii) if the facility is upgraded within
12 months (but more than 3
months) after this section
commences, at least 3 months
before it begins operations as an
upgraded facility; or
(iii) if the facility is upgraded more
than 12 months after this section
commences, at least 6 months
before it begins operations as an
upgraded facility.
(4) In this section
"upgraded facility" means a facility that, as a
result of a change in relation to the
facility, is a facility of the type to which
this section applies.
36. Obligation of occupiers to notify Secretary of
modifications of major hazard facilities
Before an MHF is modified in a way that
significantly alters the risks associated with the
facility, its occupier must notify the Secretary of
the proposed modifications.
Penalty: Fine not exceeding 200 penalty units.
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s. 37 No. Dangerous Substances (Safe Handling) 2005
37. Obligation of occupiers to give Secretary required
information about possible major hazard facilities
(1) This section applies to a facility if the
Secretary
(a) becomes aware of the presence or likely
presence of dangerous substances at the
facility; and
(b) reasonably considers that the facility
might be classifiable as an MHF under
section 30.
(2) The Secretary, by notice, may require the
occupier to give the Secretary specified
information about the facility by a specified time
to enable the Secretary to decide whether to
classify it as an MHF.
(3) The time specified in the notice is not to be less
than 14 days after it is given to the occupier.
(4) The occupier, on being given the notice, must
comply with the Secretary's requirement.
Penalty: Fine not exceeding 200 penalty units.
Division 3 Other obligations of occupiers of major hazard
facilities
38. Obligation of occupiers to carry out systematic risk
assessments
(1) The occupier of an MHF must, in consultation
with relevant employees, carry out, document,
review and update a systematic risk assessment
that, as far as practicable
46
2005 Dangerous Substances (Safe Handling) No. s. 39
(a) identifies all hazards that may cause a
dangerous substances emergency at the
facility; and
(b) assesses the likelihood of a dangerous
substances emergency occurring at the
facility and its effects if it does occur;
and
(c) assesses the overall risk from the MHF.
(2) The systematic risk assessment must be carried
out and documented
(a) if the facility is classified as an MHF
within 12 months after this section
commences, within 6 months after it is so
classified; or
(b) if the facility is classified as an MHF
more than 12 months after this section
commences, within 3 months after it is so
classified.
(3) The systematic risk assessment must be
reviewed and updated before any modification of
the facility that would significantly alter the risk
associated with the facility is carried out.
39. Obligation of occupiers regarding emergency plans
and procedures
For section 21(a) in its application to an MHF,
the occupier must ensure that the emergency
plans and procedures are established and
documented
47
s. 40 No. Dangerous Substances (Safe Handling) 2005
(a) if the facility is classified as an MHF
within 12 months after this section
commences, within 8 months after it is so
classified; or
(b) if the facility is classified as an MHF
more than 12 months after this section
commences, within 3 months after it is so
classified.
40. Obligation of occupiers to consult about emergency
plans and procedures
The occupier of an MHF must, in establishing,
maintaining and documenting emergency plans
and procedures, consult with
(a) the emergency services; and
(b) the council of the municipal area in
which the MHF is located; and
(c) persons and owners that must be
consulted under section 43(2)(a).
41. Obligation of occupiers regarding education and
training
(1) For section 20(d) in its application to an MHF,
the occupier must ensure that the education and
training
(a) establishes and maintains the standards
of competency of persons at the facility;
and
48
2005 Dangerous Substances (Safe Handling) No. s. 42
(b) is regularly reviewed and updated so that
standards of competency are maintained;
and
(c) is conducted as often as is necessary to
maintain the standards of competency;
and
(d) is conducted before any modification of
the facility that would significantly alter
the risk associated with the facility is
carried out.
(2) The occupier must keep a written record of the
matters mentioned in subsection (1).
42. Obligation of occupiers regarding safety
management systems
(1) For section 20(e) in its application to an MHF,
the occupier must ensure that the safety
management system is a documented,
comprehensive integrated system for managing
safety at the facility and that it contains details
of
(a) the system's safety objectives; and
(b) the procedures by which the safety
objectives are to be achieved; and
(c) the performance criteria that are to be
met; and
(d) the way in which adherence to the
performance criteria is to be maintained;
and
(e) such other matters as may be prescribed.
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s. 43 No. Dangerous Substances (Safe Handling) 2005
(2) The occupier must ensure that the safety
management system is developed and
implemented
(a) if the facility is classified as an MHF
within 12 months after this section
commences, within 12 months after it is
so classified; or
(b) if the facility is classified as an MHF
more than 12 months after this section
commences, within 3 months after it is so
classified.
(3) Without limiting subsection (1), the occupier
(a) must not operate the MHF unless there is
a safety management system for the
facility; and
(b) must ensure that the safety management
system is reviewed and updated before
any modification of the MHF that would
significantly alter the risk associated with
the facility is carried out.
43. Obligation of occupiers to consult and give
information about safety measures
(1) The occupier of an MHF must identify areas,
surrounding the facility, in which material harm
may be caused if a dangerous substances
emergency occurs at the facility.
(2) The occupier
(a) must consult with and inform persons in
the areas, and owners of property situated
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2005 Dangerous Substances (Safe Handling) No. s. 44
in the areas, about the hazards at the
MHF and the safety measures that should
be taken if a dangerous substances
emergency occurs at the facility; and
(b) must update the information as often as
necessary to keep the persons and owners
informed about the hazards and the way
to respond to a dangerous substances
emergency at the facility.
(3) For subsection (2)(a), the occupier must first
consult and inform persons and owners about
hazards and safety measures
(a) if the facility is classified as an MHF
within 12 months after this section
commences, within 16 months after it is
so classified; or
(b) if the facility is classified as an MHF
more than 12 months after this section
commences, within 3 months after it is so
classified.
(4) If a dangerous substances emergency occurs at
the facility, the occupier must ensure that
persons and owners who may be affected by the
dangerous substances emergency are
immediately warned of the danger and advised
of the safety measures they should take.
44. Obligation of occupiers to give safety reports to
Secretary
(1) The occupier of an MHF must give the Secretary
a written report (called a "safety report") that
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s. 44 No. Dangerous Substances (Safe Handling) 2005
contains sufficient detail to enable the Secretary
to decide whether
(a) risk at the MHF is at an acceptable level;
and
(b) the occupier has discharged the
occupier's obligations under this Act for
the following:
(i) the induction, information,
supervision, education and
training under section 20;
(ii) the systematic risk assessment
under section 38;
(iii) the emergency plans and
procedures under section 39;
(iv) the safety management system
under section 42;
(v) the consultation and giving of
information under section 43;
(vi) such other obligations as may be
prescribed.
(2) The safety report must be given to the
Secretary
(a) if the facility is classified as an MHF
within 12 months after this section
commences, within 16 months after it is
so classified; or
(b) if the facility is classified as an MHF
more than 12 months after this section
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2005 Dangerous Substances (Safe Handling) No. s. 45
commences, within 3 months after it is so
classified.
(3) The occupier must review the safety report and
give the Secretary an update of it
(a) at least once every 5 years; and
(b) before any modification of the MHF that
would significantly alter the risk
associated with the facility is carried out.
(4) The occupier must
(a) consult with relevant employees when
preparing or updating the safety report;
and
(b) keep a written record of those
consultations.
45. Obligation of occupiers to report, &c., dangerous
substances emergencies
(1) The occupier of an MHF or PMHF must, if a
dangerous substances emergency occurs at the
facility
(a) immediately advise the Secretary that the
dangerous substances emergency has
occurred and of any resulting serious
harm or material harm to persons,
property or the environment; and
(b) if that advice is given to the Secretary
orally, confirm it in writing within 7
days; and
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s. 45 No. Dangerous Substances (Safe Handling) 2005
(c) investigate the dangerous substances
emergency as soon as practicable; and
(d) give the Secretary a written report of the
investigation and its findings within one
month after the dangerous substances
emergency occurs or, if the Secretary
considers this is not practicable, the
longer time allowed by the Secretary;
and
(e) consult with relevant employees about
ways of avoiding dangerous substances
emergencies in the future.
Penalty: Fine not exceeding 200 penalty units.
(2) However, the occupier does not have to comply
with subsection (1) if the dangerous substances
emergency is notified under any of the
following:
(a) the Dangerous Goods (Safe Transport)
Act 1998;
(b) the Emergency Services Act 1976;
(c) the Gas Act 2000;
(d) the Gas Pipelines Act 2000;
(e) the Radiation Protection Act 2005;
(f) the Security-sensitive Dangerous
Substances Act 2005;
(g) a prescribed Act.
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2005 Dangerous Substances (Safe Handling) No. s. 46
46. Obligation of occupiers to record dangerous
situations
(1) The occupier of an MHF or PMHF must, as soon
as practicable after a dangerous situation occurs
at the facility
(a) record the occurrence of the dangerous
situation; and
(b) investigate the dangerous situation and
record the findings of the investigation;
and
(c) consult with relevant employees about
ways of avoiding dangerous situations in
the future.
Penalty: Fine not exceeding 80 penalty units.
(2) The occupier must keep a record created under
subsection (1) for as long as the MHF or PMHF
continues to operate.
Penalty: Fine not exceeding 80 penalty units.
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s. 47 No. Dangerous Substances (Safe Handling) 2005
PART 5 DANGEROUS SUBSTANCES LOCATIONS
Division 1 Identification of dangerous substances locations
47. Meaning of "dangerous substances location" and
"large dangerous substances location"
(1) A place is a dangerous substances location
("DSL") if prescribed dangerous goods or
prescribed combustible liquids are, or are likely
to be, handled at the place in greater than
prescribed quantities.
(2) However, an MHF is not a DSL.
(3) A DSL is a large dangerous substances location
("LDSL") if prescribed dangerous goods or
prescribed combustible liquids are, or are likely
to be, handled at the location in greater than
prescribed quantities.
Division 2 Notification of possible dangerous substances
locations
48. Obligation of occupiers to notify Secretary of
possible large dangerous substances locations
(1) This section applies to a place if, having regard
to the presence or likely presence of dangerous
goods or combustible liquids at the place, the
occupier knows or reasonably ought to know
that the place is an LDSL.
(2) The occupier of the place must notify the
Secretary, as prescribed, of information about
the handling of dangerous goods or combustible
liquids at the place.
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2005 Dangerous Substances (Safe Handling) No. s. 49
Penalty: Fine not exceeding 200 penalty units.
49. Obligation of occupiers to give Secretary required
information about possible dangerous substances
locations
(1) This section applies to a place if the Secretary
(a) becomes aware of the presence or the
likely presence of dangerous goods or
combustible liquids at the place; and
(b) reasonably considers that the place is or
may be a DSL.
(2) The Secretary, by notice, may require the
occupier to give the Secretary, by a specified
time, specified information about the place that
will indicate whether the place is a DSL.
(3) The time specified in the notice is not to be less
than 14 days after it is given to the occupier.
(4) The occupier, on being given the notice, must
comply with the Secretary's requirement.
Penalty: Fine not exceeding 200 penalty units.
Division 3 Other obligations of occupiers of dangerous
substances locations
50. Obligation of occupiers regarding emergency plans
and procedures
For section 21(a) in its application to an LDSL,
the occupier must ensure that the emergency
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s. 51 No. Dangerous Substances (Safe Handling) 2005
plans and procedures are established and
documented
(a) if the LDSL is operational when this
section commences, within 12 months
after that commencement; or
(b) if the LDSL begins operations within 12
months after this section commences,
within 6 months after it begins those
operations; or
(c) if the LDSL begins operations within 18
months (but more than 12 months) after
this section commences, within 3 months
after it begins those operations; or
(d) if the LDSL begins operations more than
18 months after this section commences,
before it begins those operations.
51. Obligation of occupiers regarding safety
management systems
(1) For section 20(e) in its application to a DSL, the
occupier must ensure that the safety management
system is a documented system for managing the
safety of dangerous goods and combustible
liquids at the location and that it contains details
of
(a) the system's safety objectives; and
(b) the procedures by which the objectives
are to be achieved; and
(c) the performance criteria that are to be
met; and
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2005 Dangerous Substances (Safe Handling) No. s. 52
(d) the way in which adherence to the
criteria is to be maintained; and
(e) such other matters as may be prescribed.
(2) The occupier must ensure that the safety
management system is developed and
implemented
(a) if the DSL is operational when this
section commences, within 12 months
after that commencement; or
(b) if the DSL begins operations within 12
months after this section commences,
within 6 months after it begins those
operations; or
(c) if the DSL begins operations within 18
months (but more than 12 months) after
this section commences, within 3 months
after it begins those operations; or
(d) if the DSL begins operations more than
18 months after this section commences,
before it begins those operations.
(3) Subject to subsection (2), the occupier of a DSL
must not operate the location unless there is a
safety management system, complying with the
requirements of subsection (1), for the location.
52. Obligation of occupiers to report, &c., dangerous
substances emergencies
(1) The occupier of a DSL must, if a dangerous
substances emergency occurs at the location
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(a) immediately advise the Secretary that the
dangerous substances emergency has
occurred and of any resulting serious
harm or material harm to persons,
property or the environment; and
(b) if that advice is given to the Secretary
orally, confirm it in writing within 7
days; and
(c) investigate the dangerous substances
emergency as soon as practicable; and
(d) give the Secretary a written report of the
investigation and its findings within one
month after the dangerous substances
emergency occurs or, if the Secretary
considers this is not practicable, the
longer time allowed by the Secretary;
and
(e) consult with relevant employees about
ways of avoiding dangerous substances
emergencies in the future.
Penalty: Fine not exceeding 200 penalty units.
(2) However, the occupier does not have to comply
with subsection (1) if the dangerous substances
emergency is notified under any of the
following:
(a) the Dangerous Goods (Safe Transport)
Act 1998;
(b) the Emergency Services Act 1976;
(c) the Gas Act 2000;
(d) the Gas Pipelines Act 2000;
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2005 Dangerous Substances (Safe Handling) No. s. 53
(e) the Radiation Protection Act 2005;
(f) the Security-sensitive Dangerous
Substances Act 2005;
(g) a prescribed Act.
53. Obligation of occupiers to record dangerous
situations
(1) The occupier of a DSL must, as soon as
practicable after a dangerous situation occurs at
the location
(a) record the occurrence of the dangerous
situation; and
(b) investigate the dangerous situation and
record the findings of the investigation;
and
(c) consult with relevant employees about
ways of avoiding dangerous situations in
the future.
Penalty: Fine not exceeding 80 penalty units.
(2) The occupier must keep a record created under
subsection (1) for as long as the DSL continues
to operate.
Penalty: Fine not exceeding 80 penalty units.
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PART 6 ADMINISTRATION AND ENFORCEMENT
Division 1 Secretary
54. Powers of Secretary
(1) The Secretary
(a) has the powers conferred on the
Secretary by this Act; and
(b) has power to do all things necessary or
convenient to be done to exercise those
powers.
(2) The Secretary
(a) may exercise all of the powers of an
authorised officer; and
(b) when doing so, has all the immunities of
an authorised officer.
Division 2 Authorised officers
55. Appointment of authorised officers
(1) The Secretary, by instrument in writing, may
appoint persons to be authorised officers if the
Secretary is satisfied that they have the
qualifications to exercise the powers of that
office competently.
(2) The persons so appointed may be
(a) State Service officers or State Service
employees employed in the Department;
or
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2005 Dangerous Substances (Safe Handling) No. s. 55
(b) with the consent of the Head of another
State Service Agency, State Service
officers or State Service employees
employed in that other Agency; or
(c) with the consent of the Commissioner of
Police, police officers.
(3) If a State Service officer or State Service
employee is appointed as an authorised officer
(a) he or she holds that office in conjunction
with State Service employment; and
(b) duties that he or she performs as an
authorised officer are taken to be part of
his or her duties as a State Service officer
or State Service employee.
(4) If a police officer is appointed as an authorised
officer
(a) he or she holds that office in conjunction
with State Service employment; and
(b) duties that he or she performs as an
authorised officer are taken to be part of
his or her duties as a police officer.
(5) A person who is not a State Service officer, State
Service employee or police officer is not capable
of being given an appointment under
subsection (1).
(6) However, the Secretary may authorise a person
who is not a State Service officer, State Service
employee or police officer to exercise the
powers of an authorised officer if the Secretary
is satisfied that the person has the qualifications
to do so competently.
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(7) In this section
"persons" includes a class of persons.
56. Powers of authorised officers
(1) An authorised officer
(a) has the powers conferred on authorised
officers by this Act; and
(b) has power to do all things necessary or
convenient to be done to exercise those
powers.
(2) However, an appointment or authorisation under
section 55 may specify that the appointment or
authorisation is subject to conditions or
restrictions relating to
(a) the powers that are exercisable by the
person appointed or authorised; or
(b) when, where and in what circumstances
the person may exercise powers.
(3) Also, a person appointed or authorised under
section 55 is subject to the directions of the
Secretary in exercising powers.
57. Identification of authorised officers
(1) The Secretary
(a) is to issue an identity card to each
authorised officer who is not a police
officer; and
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2005 Dangerous Substances (Safe Handling) No. s. 57
(b) may issue an identity card to each
authorised officer who is a police officer.
(2) The identity card is to
(a) be in an approved form; and
(b) contain a recent photograph of the
authorised officer; and
(c) contain the prescribed particulars, if any.
(3) When a person ceases to be an authorised officer
the Secretary is to retrieve the person's identity
card, if issued, as soon as practicable.
(4) An authorised officer who is not a police officer
must
(a) carry his or her identity card while
carrying out duties under this Act; and
(b) if practicable, produce the identity card
before exercising a power of an
authorised officer.
(5) A police officer who is exercising or about to
exercise a power of an authorised officer must, if
practicable, comply with a request to identify
himself or herself by
(a) producing the officer's police
identification, or authorised officer
identity card, if issued; or
(b) stating orally or in writing the officer's
name, rank and place of duty, or the
officer's identification number.
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(6) This section does not prevent the issue of a
single identity card to a person for this Act or
other Acts.
58. Delegation
(1) The Secretary may delegate any of his or her
functions or powers under this Act.
(2) Notwithstanding subsection (1), if a function or
power has been delegated to a person or to the
holder of a particular office or position, that
person or the holder of that office or position
may, with the approval of the Secretary, delegate
any of those functions or powers.
59. General powers of inspection, &c., of authorised
officers
(1) An authorised officer may, to find out whether
this Act is being complied with, enter and search
premises if the authorised officer believes on
reasonable grounds that he or she will find a
thing that has been, is being or is likely to be
used in the handling of dangerous substances.
(2) However, if the premises are unattended or are a
residence, the authorised officer may only enter
with the consent of the occupier or under the
authority of a warrant issued by a magistrate.
(3) Schedule 1 has effect in relation to the issue,
execution, effect and expiry of warrants for the
purposes of this section.
(4) Despite subsection (2), an authorised officer may
enter and search premises, whether attended or
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2005 Dangerous Substances (Safe Handling) No. s. 59
not and whether or not a residence, and without
consent or a warrant, if he or she believes on
reasonable grounds that a dangerous substances
emergency exists as a result of anything
occurring at the premises in relation to the
handling of dangerous substances.
(5) If an authorised officer believes on reasonable
grounds that a vehicle or equipment has been, is
being or is likely to be used in the handling of
dangerous substances, the officer may, to find
out whether this Act is being complied with
(a) stop or detain the vehicle or equipment
or cause the vehicle or equipment to be
stopped or detained; and
(b) search the vehicle or equipment for
dangerous substances or for documents,
equipment or other things relating to the
handling of dangerous substances.
(6) If an authorised officer believes on reasonable
grounds that a vehicle or equipment has been, is
being or is likely to be used in the handling of
dangerous substances, the officer may, to find
out whether this Act is being complied with,
direct a person in charge or apparently in charge
of the vehicle or equipment to move the vehicle
or equipment, or to cause it to be moved, to a
suitable location for inspection.
(7) If the inspection is not to take place
immediately, the direction is to be given by
notice in writing specifying the time, date and
location for the inspection.
(8) An authorised officer may carry out an
inspection of the kind referred to in
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subsection (6) without notice if the authorised
officer believes on reasonable grounds that a
dangerous substances emergency exists.
(9) An authorised officer may, to find out whether
this Act is being complied with, take samples, or
direct a person in charge of premises or a vehicle
or equipment referred to in subsection (1), (4),
(5) or (6) or another person capable of doing so
to give samples of a substance for examination
and testing if the authorised officer believes on
reasonable grounds that the substance is a
dangerous substance, an ingredient of a
dangerous substance or a substance that has been
handled together with dangerous substances.
(10) If subsection (9) applies, the authorised officer
must give a receipt in an approved form to the
person who
(a) appears to be in charge of the premises,
vehicle or equipment from or in respect
of which the sample is taken; or
(b) gives the sample.
(11) An authorised officer may, to find out whether
this Act is being complied with, direct a person
in charge or apparently in charge of premises or
a vehicle or equipment referred to in
subsection (1), (4), (5) or (6) to produce
documents.
(12) The authorised officer may make copies of the
documents, or remove them to make copies, but
if they are removed the authorised officer must
(a) if it is practicable to do so, allow the
person otherwise entitled to possession
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2005 Dangerous Substances (Safe Handling) No. s. 60
of the documents reasonable access to
them; and
(b) give a receipt in an approved form.
(13) An authorised officer may, to find out whether
this Act is being complied with, leave at
premises written directions to the occupier
requiring the occupier, within a specified time
(a) to give samples of a substance the
authorised officer believes on reasonable
grounds to be a dangerous substance, or
an ingredient of a dangerous substance,
for examination and testing; or
(b) to produce documents that may help the
authorised officer.
(14) An authorised officer may, in order to find out
whether this Act is being complied with, direct a
person to answer questions that may help the
authorised officer.
(15) An authorised officer may make photographic,
mechanical or electronic recordings for a
purpose incidental to the exercise of a power of
the authorised officer under this section.
60. Authorised officers may require names and
addresses
(1) An authorised officer may require a person to
state the person's name and address if the
authorised officer believes on reasonable
grounds that the person has been involved in the
handling of dangerous substances.
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(2) The authorised officer may require the person to
give evidence of the correctness of the stated
name or address if the authorised officer
suspects on reasonable grounds that the stated
name or address is false.
(3) A person must comply with the authorised
officer's requirement under subsection (1) or (2)
unless the person has a reasonable excuse for not
complying with it.
Penalty: Fine not exceeding 10 penalty units.
61. Powers of authorised officers regarding suspected
offences
(1) This section applies if an authorised officer
believes on reasonable grounds that he or she
will find evidence of an offence at premises,
including on a vehicle or equipment at the
premises.
(2) The authorised officer may enter the premises
and may
(a) search for or test the evidence; and
(b) do whatever is necessary to preserve the
evidence, including placing a seal, lock
or guard; and
(c) seize the evidence.
(3) However, if the premises are unattended or are a
residence, the authorised officer may only enter
them with the consent of the occupier or under
the authority of a warrant issued by a magistrate.
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2005 Dangerous Substances (Safe Handling) No. s. 62
(4) Schedule 1 has effect in relation to the issue,
execution, effect and expiry of warrants for the
purposes of this section.
(5) Without limiting subsection (2), the authorised
officer may
(a) stop or detain the vehicle or cause the
vehicle to be stopped or detained; or
(b) search the vehicle or equipment; or
(c) direct a person in charge or apparently in
charge of the vehicle or equipment to
move the vehicle or equipment, or to
cause it to be moved, to a suitable
location for inspection.
(6) The authorised officer may direct a person in
charge or apparently in charge of the premises,
vehicle or equipment or another person capable
of doing so to give samples of a substance for
examination and testing.
62. Authorised officers to restore premises, &c., to
original condition after inspections
(1) After inspecting premises, a vehicle or
equipment under section 59 or 61, the authorised
officer must take reasonable steps to return the
premises, vehicle or equipment to the condition
they were in immediately before the inspection.
(2) No action lies against an authorised officer, the
Secretary or the Crown in respect of the failure
by an authorised officer to comply with
subsection (1).
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63. Offence to obstruct, &c., authorised officers
A person must not
(a) obstruct or hinder; or
(b) threaten; or
(c) attempt to intimidate; or
(d) attempt to improperly influence
an authorised officer, or a person assisting the
authorised officer, in the exercise of a power of
the authorised officer under this Act.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 200 penalty units; or
(b) an individual, a fine not
exceeding 100 penalty units or
imprisonment for a term not
exceeding 3 months.
64. Offence to fail to comply with authorised officer's
directions
A person must not, without reasonable excuse,
fail to comply with a direction given by an
authorised officer under section 59 or 61.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 200 penalty units; or
(b) an individual, a fine not
exceeding 100 penalty units or
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2005 Dangerous Substances (Safe Handling) No. s. 65
imprisonment for a term not
exceeding 3 months.
65. Self-incrimination no excuse
A person is not excused from answering a
question asked under section 59 on the ground
that the answer to the question might tend to
incriminate the person, but, except for a
corporation
(a) the answer to the question; or
(b) any information, document or thing
obtained as a direct or indirect
consequence of the answer to the
question
is not admissible in evidence against the person
in proceedings other than proceedings for an
offence against section 64.
Division 3 Directions by authorised officers
66. Authorised officers may give directions
An authorised officer may give directions under
and in accordance with this Division.
67. Procedure for giving directions
(1) A direction under this Division may be given to
a person orally or in writing.
(2) However, if the direction is given to the person
orally, the giver of the direction is to give the
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person written confirmation of the direction
within 3 days.
(3) An authorised officer is, as soon as practicable
after giving a direction under this Division, to
inform the Secretary of
(a) the giving of the direction; and
(b) why it was given; and
(c) its content.
(4) A failure to comply with subsection (2) or (3)
does not affect the validity of a direction.
(5) A direction under this Division must specify
when the actions specified in the direction are
required to be taken.
(6) For the purposes of subsection (5), a timing
requirement may be specified by reference to a
date, event, period or other factor.
68. Directions to carry out risk assessments
(1) This section applies if an authorised officer
reasonably suspects that a risk from an MHF or
DSL is not at an acceptable level.
(2) The authorised officer may direct the occupier of
the MHF or DSL to carry out a specified
assessment or give specified information to
enable the authorised officer to decide whether
the level of risk is at an acceptable level.
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2005 Dangerous Substances (Safe Handling) No. s. 69
69. Directions to reduce risks
(1) This section applies if an authorised officer
reasonably believes that a risk from an MHF or
DSL is not at an acceptable level.
(2) The authorised officer may direct the occupier of
the MHF or DSL to take specified corrective or
preventative action to reduce the risk to an
acceptable level.
70. Directions to review safety management systems
(1) This section applies if an authorised officer
reasonably believes that the safety management
system for an MHF or DSL is inadequate.
(2) The authorised officer may direct the occupier of
the MHF or DSL to review the safety
management system.
71. Directions to review systematic risk assessments
(1) This section applies if an authorised officer
reasonably believes that the systematic risk
assessment for an MHF is inadequate.
(2) The authorised officer may direct the occupier of
the MHF to review the systematic risk
assessment.
72. Directions to review emergency plans and
procedures
(1) This section applies if an authorised officer
reasonably believes that the emergency plans
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and procedures mentioned in section 21(a) for an
MHF or LDSL are inadequate.
(2) The authorised officer may direct the occupier of
the MHF or LSDL to review the emergency
plans and procedures.
73. Directions to review safety reports
(1) This section applies if an authorised officer
reasonably believes that the safety report for an
MHF is inadequate.
(2) The authorised officer may direct the occupier of
the MHF to review the safety report.
74. Directions to stop and secure handling systems
(1) This section applies if an authorised officer
reasonably believes that a handling system at an
MHF, DSL or other place has caused, or is likely
to cause, material harm.
(2) The authorised officer may direct the person
apparently in charge of the handling system to
stop the operation of the system and prevent it
from being further operated.
75. Directions to suspend operations for unacceptable
levels of risk
(1) This section applies if an authorised officer
reasonably believes that a risk from operations
being conducted at an MHF or DSL is not at an
acceptable level.
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2005 Dangerous Substances (Safe Handling) No. s. 76
(2) The authorised officer may direct the occupier of
the MHF or DSL to suspend the operations,
totally or partially, in all or part of the MHF or
DSL.
76. Directions to isolate sites
(1) This section applies if an authorised officer
believes that it is necessary to preserve evidence
after a dangerous substances emergency has
occurred at an MHF or DSL.
(2) The authorised officer may direct the occupier of
the MHF or DSL to isolate and protect the site of
the dangerous substances emergency.
77. Directions for independent studies or audits
(1) An authorised officer may direct the occupier of
an MHF or DSL to
(a) have an independent study or audit
carried out into a prescribed matter; and
(b) give the Secretary a copy of the study or
audit.
(2) The direction is to state
(a) the reasons for requiring the study or
audit to be carried out and its objectives;
and
(b) that the person who carries out the study
or audit must be a person approved by
the Secretary.
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(3) For subsection (2)(b), the Secretary may approve
a person only if
(a) the person has relevant qualifications to
carry out the study or audit; and
(b) the Secretary is satisfied that the person
is able to provide an independent study
or audit.
(4) The Crown is not liable to pay for or contribute
to the costs of the independent study or audit.
(5) In this section
"prescribed matter" means
(a) risks arising out of the operation
of the MHF or DSL; or
(b) the safety of part or all of any
handling system, building or
other structure at the MHF or
DSL; or
(c) a dangerous substances
emergency or dangerous situation
at the MHF or DSL; or
(d) the adequacy of emergency plans,
safety management systems and
safety reports for the MHF or
DSL.
78. Offence not to comply with directions
A person who is given a direction under this
Division must comply with that direction.
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2005 Dangerous Substances (Safe Handling) No. s. 79
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 500 penalty units
and, in the case of a continuing
offence, a further fine not
exceeding 5 penalty units for
each day during which the
offence continues; and
(b) an individual, a fine not
exceeding 250 penalty units
and, in the case of a continuing
offence, a further fine not
exceeding 2.5 penalty units for
each day during which the
offence continues.
79. Obligation of occupiers to make directions available
for inspection by employees
(1) This section applies to an occupier of an MHF or
DSL who is given a direction under this
Division.
(2) In the case of a written direction, the occupier
must take reasonable steps to ensure that
relevant employees
(a) are informed of the direction as soon as
practicable after it is given; and
(b) may inspect a copy of the direction.
Penalty: Fine not exceeding 40 penalty units.
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s. 80 No. Dangerous Substances (Safe Handling) 2005
(3) In the case of an oral direction, the occupier
must take reasonable steps to ensure that
relevant employees
(a) are informed of the direction as soon as
practicable after it is given; and
(b) may inspect a copy of that written
confirmation of the direction.
Penalty: Fine not exceeding 40 penalty units.
(4) As soon as practicable after any action is taken
to comply with the direction, the occupier must
(a) document that action; and
(b) take reasonable steps to ensure that
relevant employees may inspect a copy
of that document.
Penalty: Fine not exceeding 40 penalty units.
Division 4 Preventative measures and other matters
80. Taking urgent direct action to prevent dangerous
situations causing serious harm
(1) This section applies if an authorised officer
reasonably believes that
(a) a dangerous situation exists at a place;
and
(b) the dangerous situation threatens to cause
serious harm; and
(c) having regard to nature of the threat,
action needs to be taken urgently to
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2005 Dangerous Substances (Safe Handling) No. s. 80
prevent, remove or minimise the
dangerous situation.
(2) The authorised officer may
(a) take the necessary action; or
(b) cause that action to be taken.
(3) Subsection (2) has effect even if the authorised
officer has previously given a person a direction
under Division 3, and the time complying with
the direction has not ended.
(4) However, in determining the nature and extent of
the action to be taken, the authorised officer
must consult with the occupier of the place and
the Secretary to the extent that it is reasonably
practicable to do so.
(5) The action that the authorised officer may take
includes engaging the help of a person who the
authorised officer reasonably believes has
appropriate qualifications to contribute to the
prevention, removal or minimisation of the
dangerous situation.
(6) A person whose help is engaged pursuant to
subsection (5) is taken to have the powers of an
authorised officer to the extent reasonably
necessary for the person to contribute to the
prevention, removal or minimisation of the
dangerous situation.
(7) As soon as practicable after exercising power
under subsection (2), the authorised officer is
to
(a) prepare a report that
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(i) describes the action taken; and
(ii) specifies why the action was
taken; and
(iii) sets out particulars of any
resulting property damage; and
(b) give a copy of the report to the occupier
and the Secretary.
81. Recovery of costs of government action
(1) This section applies if an authorised officer has
(a) taken an action under section 80 to
prevent, remove or minimise a dangerous
situation; or
(b) caused such an action to be taken.
(2) If the Crown incurs costs as a result of the taking
of the action, so much of the costs as were
reasonably incurred are recoverable as a debt
due to the Crown.
(3) The costs are recoverable jointly and severally
from the following persons:
(a) the person who owned the dangerous
substances involved in the dangerous
situation;
(b) the occupier of the place where the
dangerous situation existed;
(c) the person who caused the dangerous
situation.
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(4) However, costs are not recoverable from a
person who establishes that
(a) the dangerous situation was due to the
act or default of someone else, other than
an employee or agent of the person; or
(b) the person could not, exercising
reasonable care, have prevented the
dangerous situation.
(5) This section does not limit the powers that the
Crown has apart from this Act.
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PART 7 OFFENCE PROCEEDINGS AND RELATED
MATTERS
82. Time limit for prosecuting offences
Proceeding for an offence against this Act may
be commenced not later than 12 months after the
date on which the offence is alleged to have been
committed.
83. Authorised officers may prosecute offences
A prosecution for an offence against this Act
may, but is not required to, be brought by an
authorised officer.
84. Analysts
(1) The Secretary, by instrument in writing, may
authorise appropriately qualified persons to
perform analyses for the purposes of this Act.
(2) A person so authorised may, but is not required
to, be
(a) a person in State Service employment; or
(b) a person appointed or employed by the
Commonwealth.
(3) If a State Service officer or State Service
employee is so authorised, he or she may
perform analyses for the purposes of this Act in
conjunction with State Service employment.
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2005 Dangerous Substances (Safe Handling) No. s. 85
85. Evidentiary matters
(1) In any proceedings, the production of a
certificate purporting to be signed by the
Secretary and stating that, at a time specified in
the certificate
(a) a specified facility was or was not
classified, or classifiable, as an MHF or
PMHF under this Act; or
(b) a specified place was or was not a DSL
or LDSL; or
(c) a specified facility or location was, either
generally or in a particular way,
operational; or
(d) a specified person was given a specified
direction or notice under this Act; or
(e) a specified requirement was imposed on
a specified person under this Act; or
(f) a specified person had or had not, to the
Secretary's knowledge, been consulted
about, or informed of, a matter under this
Act; or
(g) a specified standard issued or published
by NOHSC or Standards Australia or
something in the standard was, or was
not, in force
is evidence of the matters stated in the
certificate.
(2) In any proceedings, the production of a
certificate purporting to be signed by the
Secretary and stating that
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(a) a specified substance is (or was at a
specified time) a dangerous substance or
a dangerous substance of a particular
class or specific kind; or
(b) a specified amount is payable under this
Act by a specified person and has not
been paid; or
(c) a specified document is
(i) a direction, or a copy of a
direction, given under this Act; or
(ii) a decision or declaration, or a
copy of a decision or declaration,
given or made under this Act; or
(iii) a notice, or a copy of a notice,
given under this Act; or
(iv) a copy of a receipt given under
this Act; or
(v) a record or document, a copy of a
record or document, or an extract
from a record or document, kept
under this Act
is evidence of the matters stated in the
certificate.
(3) In any proceedings, the production of a report
purporting to be signed by an analyst for the
purposes of this Act and stating
(a) that at a specified time the person took or
received a specified sample from a
specified person; and
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2005 Dangerous Substances (Safe Handling) No. s. 85
(b) that at a specified time and place the
person analysed the sample; and
(c) what the results of the analysis were
is evidence of the matters stated in the report.
(4) In any proceedings, a document purporting to be
published by or under the authority of NOHSC
or Standards Australia is evidence of the matters
appearing on and in the document.
(5) In any proceedings, it is not necessary to prove
(a) the appointment of the Secretary or an
authorised officer; or
(b) an authorisation under section 55(6); or
(c) the authorisation or qualifications of an
analyst.
(6) In any proceedings
(a) it is not necessary to prove the authority
of the Secretary or an authorised officer
to do anything under this Act; and
(b) a signature purporting to be that of the
Secretary or an authorised officer is
evidence of the signature it purports to
be.
(7) In this section
"analyst" means a person who is authorised
under section 84 to perform analyses for
the purposes of this Act;
"proceedings" means proceedings for an
offence against this Act;
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"specified", in relation to a certificate or
report, means specified in the certificate
or report;
"time" means a time, a day or a period of
time.
86. Responsibility for acts or omissions of
representatives
(1) Subsections (2) and (3) apply in proceedings for
an offence against this Act.
(2) If it is relevant to prove a person's state of mind
about a particular act or omission, it is enough to
establish that
(a) the act was done or omitted to be done
by a representative of the person within
the scope of the representative's actual or
apparent authority; and
(b) the representative had the state of mind.
(3) An act done or omitted to be done for a person
by a representative of the person within the
scope of the representative's actual or apparent
authority is taken to have been done or omitted
to be done also by the person, unless the person
establishes that the person could not, by the
exercise of reasonable diligence, have prevented
the act or omission.
(4) In this section
"representative" means
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2005 Dangerous Substances (Safe Handling) No. s. 87
(a) of a corporation, an executive
officer, employee or agent of the
corporation; or
(b) of an individual, an employee or
agent of the individual;
"state of mind" of a person includes
(a) the person's knowledge,
intention, opinion, belief or
purpose; and
(b) the person's reasons for the
intention, opinion, belief or
purpose.
87. Offences by bodies corporate
(1) If a body corporate commits an offence against
this Act, each person concerned in the
management of the body corporate is taken to
have also committed the offence and may be
convicted of the offence unless the person
establishes that
(a) the act or omission constituting the
offence took place without the person's
knowledge or consent; or
(b) the person used all due diligence to
prevent that act or omission of the body
corporate.
(2) A person referred to in subsection (1) may be
convicted of an offence against this Act whether
or not the body corporate is charged with or
convicted of the offence.
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88. Recovery of investigation costs from convicted
persons
(1) A court that convicts a person of an offence
against this Act may, on application by or on
behalf of an authorised officer involved in
investigating the offence, order that, in addition
to any other penalty, the defendant must pay any
costs that were reasonably incurred in, and
directly related to, investigating the offence.
(2) For the purposes of this section, the costs of
investigating an offence include, but are not
limited to, the cost of testing, transporting,
storing and disposing of dangerous substances.
89. Prohibiting convicted persons from involvement in
handling of dangerous substances
(1) In sentencing a person for an offence against this
Act, a court may, having regard to the matters
referred to in subsection (2) and to such other
matters as it thinks fit, and in addition to any
other penalty, order that the person be prohibited
for a specified period from having any
involvement, or a particular involvement, in the
handling of dangerous substances.
(2) The matters to which the court is to have regard
are
(a) the person's record in the handling of
dangerous substances; and
(b) any prior convictions of the person
relating to dangerous substances; and
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2005 Dangerous Substances (Safe Handling) No. s. 90
(c) the circumstances surrounding the
commission of the offence for which the
person is being sentenced.
(3) A person who contravenes an order under this
section is guilty of an offence.
Penalty: In the case of
(a) a body corporate, a fine not
exceeding 2 500 penalty units;
and
(b) an individual, a fine not
exceeding 500 penalty units or
imprisonment for a term not
exceeding 2 years, or both.
90. Forfeiture
(1) If
(a) a person is convicted by a court of an
offence in relation to a dangerous
substance; and
(b) the person owns the dangerous substance
or the owner cannot be identified
the court may, in addition to imposing any other
penalty, order the dangerous substance (and, if
applicable, its container) to be forfeited to the
Crown.
(2) The dangerous substance so forfeited to the
Crown (and, if applicable, its container) may be
destroyed, sold or otherwise disposed of as the
Secretary, having regard to any relevant safety
considerations, thinks fit.
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(3) Any costs reasonably incurred in effecting the
destruction, sale or other disposal are
recoverable from the convicted person as a debt
due to the Crown.
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2005 Dangerous Substances (Safe Handling) No. s. 91
PART 8 MISCELLANEOUS
91. Applications for review of decisions
(1) A person who is aggrieved by a decision made
by the Secretary or an authorised officer under
this Act may apply to the Magistrates Court
(Administrative Appeals Division) for a review
of that decision.
(2) In this section
"decision" includes a direction under
Division 3 of Part 6.
92. False or misleading statements, &c.
A person must not, in giving any information
under this Act
(a) make a statement knowing it to be false
or misleading; or
(b) omit any matter from a statement
knowing that without the matter the
statement is false or misleading.
Penalty: Fine not exceeding 50 penalty units.
93. Delegation of Minister's power to Secretary
The Minister may by instrument in writing
delegate all or any of the Minister's powers
under this Act or the regulations to the Secretary.
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94. Protection from liability
(1) The Secretary or an authorised officer does not
incur civil liability for an act or omission done
honestly and in good faith in the course of his or
her duties under this Act.
(2) A liability that would, apart from this section,
attach to the Secretary or an authorised officer
attaches instead to the Crown.
95. Assistance in emergencies or accidents
(1) A person does not incur 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 substances occurs or is likely to
occur.
(2) Subsection (1) does not apply to a person whose
act or omission was wholly or partly the cause of
the occurrence or likely occurrence.
(3) Subsection (1) applies to a government authority
even though the authority requires payment for a
service provided in connection with the
occurrence or likely occurrence.
(4) This section does not apply to an authorised
officer.
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96. Status of Gazette notices
Except as otherwise expressly provided by this
Act, a Gazette notice in respect of any matter
under this Act is not
(a) a statutory rule; or
(b) an instrument of a legislative character
for the purposes of the Subordinate
Legislation Act 1992.
97. Service of documents
A notice or other document is effectively given
to or served on a person under this Act if
(a) in the case of a natural person, it is
(i) handed to the person; or
(ii) left at, or sent by post to, the
person's postal or residential
address or place of business or
employment last known to the
giver or server of the notice or
document; or
(iii) faxed to the person's fax number;
or
(iv) emailed to the person's email
address; and
(b) in the case of any other person, it is
(i) left at, or sent by post to, the
person's principal or registered
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office or principal place of
business; or
(ii) faxed to the person's fax number;
or
(iii) emailed to the person's email
address.
98. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may
(a) provide for the prevention or
minimisation of risks associated with the
handling of dangerous goods or
combustible liquids, including for non-
commercial purposes; and
(b) provide for the prevention or
minimisation of risks associated with the
operation of major hazard facilities; and
(c) prescribe ways of achieving acceptable
levels of risk for the purposes of
discharging safety obligations; and
(d) provide for the giving of advice and
assistance in dangerous substances
emergencies and in other incidents
involving dangerous substances; and
(e) establish licensing, permit or
accreditation schemes for places where
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2005 Dangerous Substances (Safe Handling) No. s. 98
flammable or combustible liquids are
handled; and
(f) control and regulate the handling of
explosives, including (but not limited
to)
(i) fireworks and fireworks displays;
and
(ii) mining, quarrying and building
demolition operations; and
(g) without limiting paragraph (f), establish
licensing, permit or accreditation
schemes for the handling of explosives;
and
(h) control and regulate the import and
export of dangerous substances; and
(i) prescribe fees and charges in respect of
any matter under this Act; and
(j) deal with matters that are incidental or
ancillary to any matter referred to in this
subsection.
(3) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(4) The regulations may authorise any matter to be
from time to time determined by the Secretary or
an authorised officer.
(5) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
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(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
(i) 250 penalty units if the regulation
contravened imposes a
requirement for the operation of
major hazard facilities; and
(ii) 150 penalty units if the regulation
contravened imposes a
requirement for the handling of
dangerous goods or combustible
liquids at dangerous substances
locations; and
(iii) 50 penalty units for any other
contravention.
(6) The regulations may apply, adopt or incorporate
all or any of the provisions of a code, standard,
guideline, rule or other document relating to
dangerous substances or their handling and those
provisions may be applied, adopted or
incorporated as they currently exist, as amended
by the regulations, or as amended from time to
time.
99. Minister to notify adoption of codes, &c., by
regulation
(1) If the regulations apply, adopt or incorporate
provisions of a code, standard, guideline, rule or
other document, the Minister must, as soon as
practicable after the regulations are made,
publish in the Gazette a notice giving details of
places where the code, standard, guideline, rule
or other document may be obtained or inspected.
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2005 Dangerous Substances (Safe Handling) No. s. 100
(2) If
(a) the regulations apply, adopt or
incorporate provisions of a code,
standard, guideline, rule or other
document as in force from time to time;
and
(b) the code, standard, guideline, rule or
other document is amended or replaced
the Minister must, as soon as practicable after
the amendment or replacement, publish in the
Gazette a notice stating that the code, standard,
guideline, rule or other document has been
amended or replaced and giving details of places
where the amended or replaced code, standard,
guideline, rule or other document may be
obtained or inspected.
100. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Infrastructure, Energy
and Resources; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of
Infrastructure, Energy and Resources.
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SCHEDULE 1 PROVISIONS WITH RESPECT TO
WARRANTS
Section 59(3) and section 61(4)
1. Interpretation
In this Schedule
"issuing magistrate", in relation to a warrant,
means the magistrate who issues the
warrant;
"occupier" includes a person in charge of
premises.
2. Applications for warrant in standard situation
(1) An application to a magistrate for a warrant is to
be in writing.
(2) The magistrate may issue the warrant if satisfied
that there are reasonable grounds for doing so.
(3) However, the magistrate must not issue the
warrant unless
(a) the applicant for the warrant sets out the
grounds for seeking the warrant; and
(b) the applicant for the warrant has given
the magistrate, either orally or in writing,
any further information that the
magistrate requires concerning the
grounds for seeking the warrant; and
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2005 Dangerous Substances (Safe Handling) No. sch. 1
(c) the information given by the applicant is
verified before the magistrate on oath or
by affidavit.
(4) The warrant is to be in such form as the issuing
magistrate determines but it must at least
specify
(a) when the warrant is issued; and
(b) the premises it authorises to be entered;
and
(c) whether entry is authorised to be made at
any time or only during certain hours;
and
(d) any conditions that the warrant is subject
to; and
(e) when the warrant ceases to have effect.
3. Warrants may be applied for and issued by
telephone, &c., in urgent situations
(1) Despite clause 2, an authorised officer may
apply to a magistrate for a warrant by telephone
or radio if the authorised officer believes that the
urgency of the situation requires it.
(2) The magistrate may complete and sign the
warrant in the same way as for a warrant applied
for in person if satisfied that
(a) there are reasonable grounds for issuing
the warrant urgently; and
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(b) it is not practicable in the circumstances
for the authorised officer to apply for the
warrant in person.
(3) The issuing magistrate is to
(a) inform the authorised officer of
(i) the terms of the warrant; and
(ii) the date on which, and the time at
which, the warrant was signed;
and
(iii) the date on which, and the time at
which, the warrant ceases to have
effect; and
(b) record on the warrant the reasons for
issuing it.
(4) The authorised officer is to
(a) complete a form of warrant in the same
terms as the warrant signed by the
issuing magistrate; and
(b) write on the form
(i) the name of the issuing
magistrate; and
(ii) the date on which, and the time at
which, the warrant was signed;
and
(c) send the completed form of warrant to
the issuing magistrate not later than the
day after the warrant is executed or
ceases to have effect.
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(5) On receipt of the form of warrant, the issuing
magistrate is to attach it to the warrant that the
magistrate signed.
(6) The form of warrant completed by the authorised
officer has the same force as the warrant signed
by the issuing magistrate.
4. Record of proceedings before issuing magistrate
A magistrate who issues a warrant is to cause a
record to be made of all relevant particulars of
the grounds the magistrate has relied on to
justify the issue of the warrant.
5. Expiry of warrant
A warrant ceases to have effect
(a) on the date specified in the warrant as the
date on which it ceases to have effect; or
(b) if it is withdrawn before that date by the
issuing magistrate; or
(c) after it has been executed; or
(d) if the person to whom it is issued ceases
to be an authorised officer
whichever occurs first.
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6. Report to issuing magistrate following execution of
warrant
(1) An authorised officer who is issued with a
warrant must furnish a report in writing to the
issuing magistrate
(a) stating whether or not the warrant has
been executed; and
(b) if the warrant has been executed, setting
out briefly the result of the execution,
including a brief description of anything
seized; and
(c) if the warrant has not been executed,
setting out briefly the reasons why it has
not been executed.
(2) The report is to be furnished within 10 days after
the warrant is executed or expires, whichever
occurs first.
7. Death, absence, &c., of issuing magistrate
If the magistrate who issued a warrant has died,
has ceased to be a magistrate or is absent, a
report required to be furnished to that
magistrate
(a) must still be made; but
(b) may be furnished to any other magistrate.
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8. Duty to show warrant
An authorised officer who is executing a warrant
must produce it for inspection by an occupier of
the premises if requested to do so by the
occupier.
9. Assistance and use of force in executing warrant
(1) An authorised officer may execute a warrant
using such assistance as the authorised officer
considers necessary.
(2) Except as may be otherwise provided by the
terms of the warrant, an authorised officer may
execute a warrant using such force as may
reasonably be required in the circumstances.
10. Defect in warrant
A warrant is not invalidated by any defect that
does not affect its substance in a material
particular.
Government Printer, Tasmania 105