Dangerous Substances (Safe Handling - Transitional) Regulations 2009

Dangerous Substances (Safe Handling - Transitional) Regulations 2009

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Dangerous Goods and Substances (Transitional and Consequential Provisions) Act 2005 .

15 June 2009

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

LISA M. SINGH

Minister for Workplace Relations

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Dangerous Substances (Safe Handling - Transitional) Regulations 2009 .

2.   Commencement

These regulations take effect immediately after the Dangerous Substances (Safe Handling) Act 2005 commences.

3.   Interpretation

(1)  In these regulations –

Act means the Dangerous Goods and Substances (Transitional and Consequential Provisions) Act 2005 ;

commencement day means the day on which the Dangerous Substances (Safe Handling) Act 2005 commences;

Competent Authority means a Competent Authority under the old legislative scheme;

existing means existing immediately before the commencement day;

new legislative scheme has the same meaning as in Part 2 of the Act;

old legislative scheme has the same meaning as in Part 2 of the Act;

revoke includes cancel and rescind;

Secretary means the Secretary of the Department;

transitional period means the 3-month period commencing on the commencement day.

(2)  In these regulations, a reference to an act is taken to include a reference to an omission.

(3)  Unless the contrary intention appears, an expression used in these regulations has the same meaning as it has in the Dangerous Substances (Safe Handling) Act 2005 .

4.   Transitional powers of Secretary

To effect, and facilitate, the transition from the old legislative scheme to the new legislative scheme, the Secretary is taken to have the power and authority to –

(a) determine any matter required for the purposes of these regulations; and

(b) receive any document required for the purposes of these regulations; and

(c) make any decision, or perform any act, required for the purposes of these regulations of a kind that, under the old legislative scheme, a Competent Authority would have been empowered or authorised to make or perform.

PART 2 - General Entitlements

Division 1 - Miscellaneous

5.   Licences

(1)  An existing manufacturer's licence, importer's licence, exporter's licence or keeper's licence under the Dangerous Goods (General) Regulations 1998 continues in force according to its terms until the first of the following occurs:

(a) the licence expires;

(b) the licence is revoked by the Secretary;

(c) the licence is surrendered to the Secretary;

(d) the transitional period expires.

(2)  If a licence referred in subregulation (1) was suspended immediately before the commencement day –

(a) the suspension continues according to its terms; and

(b) subregulation (1) has effect despite the suspension; and

(c) to the extent that they are capable of doing so and despite the rescission of the Dangerous Goods (General) Regulations 1998 , regulation 19(3) and (4) of those regulations continue to apply to the suspension.

(3)  In any proceedings for an offence under the new legislative scheme, it is a defence if the defendant establishes that –

(a) the action constituting the alleged offence occurred during the transitional period; and

(b) the defendant was authorised to take that action by a licence in force during that period by virtue of this regulation.

6.   Existing shot-firer's permit continues in force

(1)  For the purposes of the Dangerous Substances (Safe Handling) Act 2005 , an existing permit of a category specified in column 1 of the table in Schedule 1 is taken to be a permit granted under the Dangerous Substances (Safe Handling) Regulations 2009 of a category specified in column 2 of that table.

(2)  A shot-firer's permit to which regulation 68(6) of the Dangerous Goods (General) Regulations 1998 applied immediately before the commencement day is taken to be an existing permit that expires on 1 December 2009.

(3)  A translated permit continues in force according to its terms until the first of the following occurs:

(a) the permit expires;

(b) the permit is revoked by the Secretary in accordance with the Dangerous Substances (Safe Handling) Regulations 2009 ;

(c) the permit is surrendered to the Secretary;

(d) a period of 2 years starting on the commencement day expires.

(4)  An existing permit that expires within 31 days after the commencement day is taken to continue in force, unless revoked or surrendered, until 30 September 2009.

(5)  The Dangerous Substances (Safe Handling) Act 2005 applies to a translated permit as if the translated permit had been granted under those regulations.

(6)  In this regulation –

existing permit means an existing shot-firer's permit granted under the Dangerous Goods (General) Regulations 1998 ;

translated permit means an existing permit taken under subregulation (1) to be a permit granted under the Dangerous Substances (Safe Handling) Regulations 2009 .

7.   Seller's licence for fireworks

(1)  An existing seller's licence under regulation 77 of the Dangerous Goods (General) Regulations 1998 continues to be valid according to its terms until the first of the following occurs:

(a) the licence is revoked by the Secretary;

(b) the licence is surrendered to the Secretary;

(c) the holder of the licence is granted a shot-firing permit with a pyrotechnics endorsement under the new legislative scheme;

(d) the fireworks transitional period expires.

(2)  The holder of a seller's licence that continues to be valid by virtue of subregulation (1) is, during the period of that validity, subject to regulation 78 of the Dangerous Goods (General) Regulations 1998 as if that regulation were still in force during that period.

(3)  In any proceedings for an offence under the new legislative scheme, it is a defence if the defendant establishes that –

(a) the action constituting the alleged offence occurred during the fireworks transitional period; and

(b) the defendant was authorised to take that action by a licence in force during that period by virtue of this regulation.

(4)  In this regulation –

fireworks transitional period means the 6-month period commencing on the day on which the making of these regulations is notified in the Gazette.

Division 2 - Pending applications

8.   Pending applications lapse

(1)  On the commencement day –

(a) a pending application lapses; and

(b) if an application fee had been paid in respect of a pending application, the applicant is entitled to a full refund of that fee.

(2)  In this regulation –

pending application means an application, under one of the following regulations of Dangerous Goods (General) Regulations 1998 , that had not been granted or refused by the commencement day:

(a) an application under regulation 10 for a manufacturer's licence, importer's licence, exporter's licence, keeper's licence or seller's licence;

(b) an application for an approval under regulation 34 ;

(c) an application for an approval under regulation 41 ;

(d) an application for an authorisation under regulation 60 ;

(e) an application under regulation 66 for a shot-firer's permit;

(f) an application under regulation 68 for renewal of a shot-firer's permit other than an application of that kind to which, immediately before the commencement day, regulation 68(6) applied.

PART 3 - Fireworks permits

9.   Existing fireworks permit

An existing fireworks permit issued under regulation 74 of the Dangerous Goods (General) Regulations 1998 continues to be valid according to its terms until the first of the following occurs:

(a) the fireworks display authorised by the permit is held;

(b) the fireworks display authorised by the permit is irrevocably revoked by the holder of the permit or another person having the power to effect such revocation;

(c) a physical, legal or other action permanently prevents the fireworks display authorised by the permit from being held;

(d) the permit is surrendered;

(e) the permit is revoked by the Secretary;

(f) the transitional period expires.

10.   Application for fireworks permit

(1)  A person may apply to the Secretary for a fireworks permit to purchase, handle or use fireworks for a fireworks display to be held during the transitional period.

(2)  An application is to –

(a) be made at least 21 days before the time of the intended purchase, handling or use; and

(b) specify the place, date and time of the intended fireworks display; and

(c) be accompanied by an application fee of –

(i) for a fireworks display not involving Type 3 fireworks, 50 fee units; or

(ii) for a fireworks display involving Type 3 fireworks, 100 fee units.

(3)  The Secretary is to give a copy of the application to –

(a) the Commissioner of Police; and

(b) the Chief Officer of the Tasmania Fire Service; and

(c) the general manager of the municipal area in which the fireworks display is intended to be held.

(4)  The Secretary may –

(a) grant the application, with or without conditions; or

(b) refuse to grant the application.

(5)  If the application is granted, the Secretary is to issue the permit.

(6)  If the application is not granted, the Secretary is to give the applicant notice of the refusal and the reasons for the refusal.

(7)  Nothing in this regulation prevents an application being made, or a permit being issued, under the Dangerous Substances (Safe Handling) Regulations 2009 in respect of fireworks or any other matter.

(8)  In this regulation, a reference to a Type 2 firework or Type 3 firework is a reference to that type of firework as defined in the Dangerous Goods (General) Regulations 1998 as in force immediately before the commencement day.

11.   Fireworks permits

(1)  A fireworks permit issued under regulation 10  –

(a) is to be signed by the Secretary; and

(b) is subject to –

(i) any order, notice or direction made or given by the State Fire Commission under Part V of the Fire Service Act 1979 ; and

(ii) any conditions of a fire permit that may be in force under that Part; and

(iii) any conditions the Secretary considers necessary or desirable in the interests of public safety and specifies in the permit.

(2)  The Secretary may revoke or alter a permit issued under regulation 10 if satisfied that it is in the interests of public safety for the permit to be revoked or altered.

(3)  If the Secretary revokes or alters a permit –

(a) the Secretary is to give the permit holder immediate notice of the revocation or alteration and the reasons for the revocation or alteration; and

(b) the revocation or alteration takes effect on the giving of that notice.

12.   Fireworks offences

(1)  In any proceedings for a fireworks offence, it is a defence if the defendant establishes that the relevant act –

(a) occurred during the transitional period; and

(b) was done in accordance with the fireworks permit held by the defendant by virtue of this Part; and

(c) would not have contravened the Dangerous Goods (General) Regulations 1998 had the old legislative scheme still been in force during that period.

(2)  In this regulation –

fireworks offence means a contravention of the requirements of the new legislative scheme as they relate to fireworks.

PART 4 - Infrastructure

13.   Public magazines

(1)  Subject to subregulation (2) , any permission in force under regulation 42(2) of the Dangerous Goods (General) Regulations 1998 immediately before the commencement day continues to be valid according to its terms until the first of the following occurs:

(a) the permission expires;

(b) the relevant public magazine is closed, dismantled or relocated by the Secretary;

(c) the relevant public magazine is destroyed whether by natural or other causes;

(d) the permission is revoked by the Secretary;

(e) the permission is surrendered to the Secretary;

(f) the transitional period expires.

(2)  However, if a public magazine is in use by the holder of a seller's licence that continues to be valid by virtue of regulation 7(1) , the permission in force under regulation 42(2) of the Dangerous Goods (General) Regulations 1998 in respect of that magazine remains in force until the seller's licence ceases to be valid.

PART 5 - Procedures

Division 1 - Miscellaneous

14.   Storage plans and inventories

(1)  This regulation applies to a requirement made under regulation 52(1) of the Dangerous Goods (General) Regulations 1998 before the commencement day.

(2)  If the requirement did not have to be finally complied with until or after the commencement day –

(a) the requirement lapses; and

(b) the ancillary obligations under regulation 52(2) and (3) of the Dangerous Goods (General) Regulations 1998 also lapse.

15.   Emergency plans

(1)  This regulation applies to a requirement made under regulation 53(1) of the Dangerous Goods (General) Regulations 1998 before the commencement day.

(2)  If the requirement did not have to be finally complied with until or after the commencement day, the requirement lapses.

16.   Emergency plans and storage plans

For the purposes of the new legislative scheme, a valid emergency plan or storage plan under the old legislative scheme is taken to be a valid emergency plan or storage plan under the new legislative scheme until the end of the transitional period.

17.   Packaging of imported or stored explosives

(1)  In any proceedings for a packaging offence, it is a defence if the defendant establishes that the relevant action –

(a) occurred during the transitional period; and

(b) would not have contravened regulation 23 of the Dangerous Goods (General) Regulations 1998 had the old legislative scheme regulation still been in force during that period.

(2)  In this regulation –

packaging offence means a contravention of the packaging requirements of the new legislative scheme as they relate to imported or stored explosives.

Division 2 - Notifications

18.   Notifications of explosives imports

(1)  In any proceedings for a notifications offence, it is a defence if the defendant establishes that the relevant importation of explosives –

(a) occurred within 30 days after the commencement day; and

(b) the defendant provided notice of the importation as soon as practicable after the explosives arrived in the State, being notification that would have been in accordance with regulation 31 of the Dangerous Goods (General) Regulations 1998 had the old legislative scheme still been in force during that period.

(2)  In this regulation –

notifications offence means a contravention of the import notification requirements of the new legislative scheme as they relate to explosives.

19.   Automotive LPG System notifications

(1)  Within 15 days after the commencement day, an autogas installer, within the meaning of the Dangerous Goods (General) Regulations 1998 as in force immediately before that day, must provide to the Secretary a return specifying the details required under regulation 59(3) of those regulations.

(2)  A return is to cover the period from the last return under regulation 59(3) of the Dangerous Goods (General) Regulations 1998 or the granting of the application to be an autogas installer, whichever is later, to the commencement day.

PART 6 - Miscellaneous

20.   Autogas installers to have certificate of competency

A person who, immediately before the commencement day, was an autogas installer within the meaning of the Dangerous Goods (General) Regulations 1998 is taken to hold a certificate of competency for autogas installation under Division 3 of Part 3 of the Workplace Health and Safety Regulations 1998 until the first of the following occurs:

(a) the certificate is revoked by the Secretary;

(b) the person holding the certificate is granted or refused a certificate of competency under the Workplace Health and Safety Regulations 1998 ;

(c) the transitional period expires.

21.   Recovery of inspection fees

(1)  This regulation applies if –

(a) any recovery proceedings instituted under the old legislative scheme had not been determined by the commencement day; or

(b) a written demand for payment given under the old legislative regime pursuant to regulation 32 of the Dangerous Goods (General) Regulations 1998 had not been fully satisfied by the commencement day but recovery proceedings had not been instituted by that day; or

(c) no written demand for payment pursuant to regulation 32 of the Dangerous Goods (General) Regulations 1998 had been given by the commencement day in respect of the loading or unloading of Class 2.1 or 3 dangerous goods on or from a vessel by a pipeline during the 30-day period immediately before the commencement day.

(2)  In a case to which subregulation (1)(a) applies, the recovery proceedings may be continued and determined in all respects, and any orders of the relevant court of competent jurisdiction may be enforced or reviewed, as if the old legislative scheme were still in force.

(3)  In a case to which subregulation (1)(b) applies, recovery proceedings may be instituted and determined in all respects, and any orders of the relevant court of competent jurisdiction may be enforced or reviewed, as if the old legislative scheme were still in force.

(4)  In a case to which subregulation (1)(c) applies, a written demand for payment may be given and, if not satisfied in full within the period of not less than 30 days allowed for payment, recovery proceedings may be instituted and determined in all respects, and any orders of the relevant court of competent jurisdiction may be enforced or reviewed, as if the old legislative scheme were still in force.

(5)  Nothing in this regulation prevents the Crown from waiving any fee or demand or effecting any settlement.

(6)  In this regulation –

recovery proceedings means proceedings pursuant to regulation 32 of the Dangerous Goods (General) Regulations 1998 .

SCHEDULE 1 - Category of shot-firing

Regulation 6

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 24 June 2009

These regulations are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations provide for savings and transitional matters consequent on the enactment and commencement of the Dangerous Substances (Safe Handling) Act 2005 .