Dangerous Goods (Safe Transport) Act 1998
An Act to provide for the safe transportation of dangerous goods, to repeal the Dangerous Goods Act 1976 and for related purposes
[The long title Amended by No. 51 of 2005, s. 4, Applied:01 Jul 2009][Royal Assent 22 May 1998]
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
[Section 1 Amended by No. 51 of 2005, s. 5, Applied:01 Jul 2009] This Act may be cited as the Dangerous Goods (Safe Transport) Act 1998 .
This Act commences on a day to be proclaimed.
In this Act, unless the contrary intention appears –[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009][Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] approved form means a form approved by the Secretary;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] AS 1940 means Australian Standard AS 1940 The Storage and Handling of Flammable and Combustible Liquids made by Standards Australia, as from time to time amended;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] 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;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] 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;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] authorised officer means an authorised officer appointed under section 10(1) , and includes a person authorised under section 23(5) ;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] conviction, in relation to an offence, includes a finding of guilt without the recording of a conviction for the offence;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] corresponding law means a law prescribed under section 7(5) as being a corresponding law for the purposes of this Act;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] corresponding regulator means a person who, under a corresponding law, has powers that correspond or substantially correspond to the powers of the Secretary under this Act;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] dangerous goods means a substance or article that –(a) can be classified as an explosive substance or explosive article under the Australian Explosives Code; or(b) is listed in the Australian Explosives Code, appendix 1 or 2; or(c) can be classified as a dangerous good under the Australian Dangerous Goods Code; or(d) is listed as a dangerous good or good too dangerous to be transported under the Australian Dangerous Goods Code; or(e) can be classified as a combustible liquid under AS 1940; or(f) is determined by the Secretary in accordance with the regulations to be dangerous goods;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] dangerous situation means a situation, involving the transportation of dangerous goods, that is causing or is likely to cause imminent risk of death or injury to a person or harm to the environment or to property;drive includes operate;equipment includes machinery;government authority means –(a) [Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a Government department within the meaning of the State Service Act 2000 or a discrete administrative part of such a department; or(b) [Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] a State authority within the meaning of the State Service Act 2000 ; or(c) [Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] a council, or a joint authority within the meaning of the Local Government Act 1993 ;(d) [Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009][Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] involvement in the transportation of dangerous goods includes –(a) [paragraph (a) omitted by No. 37 of 2008, s. 6, Applied: 22 Oct 2008](b) marking or placarding packages and unit loads containing dangerous goods for transportation, and placarding containers and vehicles in which dangerous goods are transported; and(c) consigning dangerous goods for transportation; and(d) loading dangerous goods onto a vehicle, or into a container that is to be put on a vehicle, for transportation or unloading dangerous goods that have been transported; and(e) undertaking, or being responsible for, otherwise than as an employee or subcontractor, the transportation of dangerous goods; and(f) driving a vehicle carrying dangerous goods; and(g) being the consignee of transported dangerous goods; and(h) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition;manufacture includes refining, distilling, making, remaking, breaking-up, sorting-out and reconditioning;marking includes labelling;Ministerial Council means the Ministerial Council for Road Transport established by an agreement known as the Heavy Vehicles Agreement which was made on 30 July 1991 between the Commonwealth, the States and the Australian Capital Territory, a copy of which is set out in Schedule 1 to the National Road Transport Commission Act 1991 of the Commonwealth;offence means an offence against this Act;[Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] powers, of the Secretary or an authorised officer, includes any functions associated with the exercise of those powers;[Section 3 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009][Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] premises includes –but does not include a vehicle;(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 –regulations means regulations made and in force under this Act;transport, in relation to dangerous goods, includes –(a) [Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] the packing, loading and unloading of the goods, and the transfer of the goods to or from a vehicle, premise or place, for the purpose of their transportation by vehicle, pipeline or other means; and(b) the marking or placarding of packages and unit loads containing the goods, and the placarding of containers and vehicles and pipelines in which the goods are transported; and(c) [Section 3 Amended by No. 51 of 2005, s. 6, Applied:01 Jul 2009] matters incidental to the transportation of the goods;vehicle includes any kind of –(a) vessel; or(b) aircraft; or(c) vehicle built or adapted to move on rails; or(d) motor vehicle, being a vehicle that is built to be propelled by a motor that forms part of the vehicle; or(e) trailer, being a vehicle that is built or adapted to be towed by a motor vehicle.
A reference in this Act to a code, standard, guideline or rule includes a reference to a code, standard, guideline or rule that is made outside Australia.
This Act does not apply to dangerous goods that are in a container that is designed to form part of, and forms 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 equipment.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Regulations
7. Regulation-making powers and adoption of codes, &c.
(1) The Governor may make regulations prescribing matters –(a) required or permitted to be prescribed by this Act; or(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision relating to the following:(a) types and categories of dangerous goods and methods for determining types and categories of dangerous goods;(b) the analysis and testing of dangerous goods and the taking of samples for that purpose;(c) goods too dangerous to be transported or too dangerous to be transported in bulk;(d) fees that are to be paid for things done under this Act;(e) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the marking or placarding of packages and unit loads containing dangerous goods for transportation and the placarding of containers and vehicles in which dangerous goods are transported;(f) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] containers and packaging and materials used in the transportation of dangerous goods;(g) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the manufacture of vehicles, pipelines, containers and other equipment used in the transportation of dangerous goods;(h) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(i) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the accreditation of persons involved in the transportation of dangerous goods or in the installation, repair or alteration of equipment used in the transportation of dangerous goods;(j) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the loading and unloading of dangerous goods for and after transportation;(k) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(l) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(m) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(n) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the transportation of dangerous goods into and out of Tasmania;(o) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the determination of routes along which, the areas in which and the times during which dangerous goods may or may not be transported;(p) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(q) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] procedures for the transportation of dangerous goods including, but not limited to –(i) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the quantities and circumstances in which dangerous goods, or particular types of dangerous goods, may be transported; and(ii) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(iii) safety information, procedures and equipment; and(iv) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(v) the preparation, implementation, testing and review of emergency management plans; and(vi) obligations arising, and procedures to be followed, in the event of a dangerous situation; and(vii) controls in relation to the stability or integrity of dangerous goods;(r) the licensing of –(i) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] persons for the purposes of the transportation of dangerous goods; and(ii) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] vehicles and equipment used in the transportation of dangerous goods;(s) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] . . . . . . . .(t) the form of applications, notices, licences and other documents for the purposes of the regulations;(u) the approval of –(i) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] packages, containers, equipment and other items used in the transportation of dangerous goods; and(ii) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] facilities for and methods of testing or using packages, containers, equipment and other items used, and processes carried out, in the transportation of dangerous goods;(v) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] documents required to be prepared or kept by persons involved in the transportation of dangerous goods and the approval of alternative documentation;(w) the training and qualifications required of –(i) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] authorised officers and other persons performing duties under this Act; and(ii) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] persons involved in, and the approval of training courses and qualifications relating to involvement in, the transportation of dangerous goods;(x) [Section 7 Subsection (2) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] the recognition of laws of other jurisdictions relating to the transportation of dangerous goods and of things done under those laws, and the giving of effect to those things;(y) the reconsideration and review of decisions under this Act;(z) infringement notices, and the documents and costs relating to infringement notices.(3) [Section 7 Subsection (3) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] 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 goods or to the transportation of dangerous goods 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.(4) [Section 7 Subsection (4) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] The regulations may, by reference to such a code, standard, guideline, rule or other document –(a) prescribe a substance or article as being dangerous goods; or(b) prescribe various types of dangerous goods, including goods that are too dangerous to be transported, and methods for deciding which dangerous goods fall into each type.(5) [Section 7 Subsection (5) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] The regulations may prescribe a law of another State, or of a Territory, that relates to the transportation of dangerous goods as being a corresponding law for the purposes of this Act.(6) The regulations may –(a) be of limited or general application; and(b) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations; and(c) [Section 7 Subsection (6) amended by No. 51 of 2005, s. 7, Applied:01 Jul 2009] authorise any matter to be determined, applied or regulated by the Minister or the Secretary or an authorised officer.
8. Offences under the regulations
[Section 8 Substituted by No. 51 of 2005, s. 8, Applied:01 Jul 2009] The regulations may –(a) provide that a contravention of any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of –(i) for a body corporate, a fine not exceeding 1 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues; and(ii) for an individual, 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.
PART 3 - Administration and enforcement[Part 3 Heading amended by No. 51 of 2005, s. 9, Applied:01 Jul 2009]
[Section 9 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 9 Substituted by No. 51 of 2005, s. 10, Applied:01 Jul 2009](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.
10. Appointment of authorised officers
[Section 10 Subsection (3) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 10 Substituted by No. 51 of 2005, s. 10, Applied:01 Jul 2009](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(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 police 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.(7) In this section –person includes a class of persons;qualifications includes expertise, training and experience.
11. Powers of authorised officers
[Section 11 Substituted by No. 51 of 2005, s. 10, Applied:01 Jul 2009](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 10 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 that person may exercise powers.(3) Also, a person appointed or authorised under section 10 is subject to the directions of the Secretary in exercising powers.
12. Identification of authorised officers
[Section 12 Substituted by No. 51 of 2005, s. 10, Applied:01 Jul 2009](1) The Secretary –(a) is to issue an identity card to each authorised officer who is not a police officer; and(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 under this Act 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.(6) This section does not prevent the issue of a single identity card to a person for this Act or other Acts.
[Section 13 Substituted by No. 51 of 2005, s. 10, Applied:01 Jul 2009](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 that function or power.
14. General powers of inspection, &c., of authorised officers
(1) [Section 14 Subsection (1) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] 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 transportation of dangerous goods.(1A) [Section 14 Subsection (1A) inserted by No. 51 of 2005, s. 11, Applied:01 Jul 2009] 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.(1B) [Section 14 Subsection (1B) inserted by No. 51 of 2005, s. 11, Applied:01 Jul 2009] Schedule 1 has effect in relation to the issue, execution, effect and expiry of warrants for the purposes of this section.(2) [Section 14 Subsection (2) substituted by No. 51 of 2005, s. 11, Applied:01 Jul 2009] Despite subsection (1A) , an authorised officer may enter and search premises, whether attended or not and whether or not a residence, and without consent or a warrant, if he or she believes on reasonable grounds that a dangerous situation exists as a result of anything occurring at the premises in relation to the transportation of dangerous goods.(3) [Section 14 Subsection (3) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] 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 transportation of dangerous goods, the officer may, to find out whether this Act is being complied with –(a) [Section 14 Subsection (3) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] stop or detain the vehicle or equipment or cause the vehicle or equipment to be stopped or detained; and(b) [Section 14 Subsection (3) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] search the vehicle or equipment for dangerous goods or for documents, equipment or other things relating to the transportation of dangerous goods.(4) [Section 14 Subsection (4) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] 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 transportation of dangerous goods, 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.(5) 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.(6) An authorised officer may carry out an inspection of the kind referred to in subsection (4) without notice if the authorised officer believes on reasonable grounds that a dangerous situation exists.(7) [Section 14 Subsection (7) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] 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) , (2) , (3) or (4) 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 dangerous goods, ingredients of dangerous goods or goods that have been transported together with dangerous goods.(7A) [Section 14 Subsection (7A) inserted by No. 51 of 2005, s. 11, Applied:01 Jul 2009] If subsection (7) 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.(8) 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) , (2) , (3) or (4) to produce documents.(9) 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 of the documents reasonable access to them; and(b) [Section 14 Subsection (9) amended by No. 51 of 2005, s. 11, Applied:01 Jul 2009] give a receipt in an approved form.(10) 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 dangerous goods, or ingredients of dangerous goods, for examination and testing; or(b) to produce documents that may help the authorised officer.(11) 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.(12) 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.
15. Authorised officers may require names and addresses
(1) [Section 15 Subsection (1) amended by No. 51 of 2005, s. 12, Applied:01 Jul 2009] 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 transportation of dangerous goods.(2) [Section 15 Subsection (2) omitted by No. 51 of 2005, s. 12, Applied:01 Jul 2009] . . . . . . . .(3) 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.(4) A person must comply with the authorised officer's requirement under subsection (1) or (3) unless the person has a reasonable excuse for not complying with it.Penalty: [Section 15 Subsection (4) amended by No. 51 of 2005, s. 12, Applied:01 Jul 2009] Fine not exceeding 10 penalty units.
16. 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) [Section 16 Subsection (3) omitted by No. 51 of 2005, s. 13, Applied:01 Jul 2009] . . . . . . . .(4) [Section 16 Subsection (4) substituted by No. 51 of 2005, s. 13, Applied:01 Jul 2009] 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.(4A) [Section 16 Subsection (4A) inserted by No. 51 of 2005, s. 13, Applied:01 Jul 2009] Schedule 1 has effect in relation to the issue, execution, effect and expiry of warrants for the purposes of this section.(5) [Section 16 Subsection (5) amended by No. 51 of 2005, s. 13, Applied:01 Jul 2009] 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.
17. Authorised officers to restore premises, &c., to original condition after inspections
(1) After inspecting premises, a vehicle or equipment under section 14 or 16 , 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) [Section 17 Subsection (2) amended by No. 51 of 2005, s. 14, Applied:01 Jul 2009] 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) .
18. Offence to obstruct, &c., authorised officers
[Section 18 Substituted by No. 51 of 2005, s. 15, Applied:01 Jul 2009] A person must not –an authorised officer, or a person assisting the authorised officer, in the exercise of a power of the authorised officer under this Act.(a) obstruct or hinder; or(b) threaten; or(c) attempt to intimidate; or(d) attempt to improperly influence –
18A. Offence to fail to comply with authorised officer's directions
[Section 18A Inserted by No. 51 of 2005, s. 15, Applied:01 Jul 2009] A person must not, without reasonable excuse, fail to comply with a direction given by an authorised officer under section 14 or 16 .
19. Self-incrimination no excuse
[Section 19 Substituted by No. 37 of 2008, s. 4, Applied:01 Jul 2009](1) A person is not excused from answering any question asked, or providing any information required, by an authorised officer under this Act on the ground that the answer or information may tend to incriminate that person.(2) However, in proceedings for an offence against this Act, any answer or information given or provided to an authorised officer pursuant to a requirement of an authorised officer under this Act is not admissible in evidence against the person giving the answer or providing the information –(a) if the person claims before giving the answer or providing the information that the answer or information may tend to incriminate the person; or(b) unless the person's entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person's attention before the answer was given or the information was provided.
20. Directions to remedy contraventions
(1) [Section 20 Subsection (1) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] If an authorised officer believes on reasonable grounds that a person –the authorised officer may give the person a direction requiring the person to remedy the matters causing, or likely to cause, the contravention.(a) is contravening this Act; or(b) [Section 20 Subsection (1) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] has contravened this Act in circumstances that make it likely that the contravention will be repeated; or(c) [Section 20 Subsection (1) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] is, by any act or omission, likely to contravene this Act –(2) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] A direction under this section is to –(a) be in writing; and(b) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] state the name of the person to whom it is given; and(c) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] state that the authorised officer believes that the person to whom the direction is given –(i) is contravening a provision of this Act; or(ii) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] has contravened a provision of this Act in circumstances that make it likely that the contravention will be repeated; or(iii) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] is, by an act or omission, likely to contravene a provision of this Act; and(d) state the grounds on which the belief is based; and(e) specify the provision of this Act; and(f) [Section 20 Subsection (2) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] specify a day by which the matters referred to in the direction must be remedied.(3) [Section 20 Subsection (3) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] An authorised officer may include in a direction under this section directions as to the measures to be taken to remedy the contravention, or to avoid the further or likely contravention, of this Act.(4) [Section 20 Subsection (4) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] A direction under this section that relates to a vehicle or equipment or premises may be given by placing it securely on the vehicle or equipment or premises in a conspicuous position.(4A) [Section 20 Subsection (4A) inserted by No. 51 of 2005, s. 16, Applied:01 Jul 2009] Subsection (4) does not prevent a direction under this section from being given to a person by any other means permitted by this Act.(5) A person must not –(a) [Section 20 Subsection (5) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] contravene a direction under this section; or(b) [Section 20 Subsection (5) amended by No. 51 of 2005, s. 16, Applied:01 Jul 2009] remove a direction under this section from a vehicle or equipment or premises before the matters causing the contravention or likely contravention have been remedied, unless it is necessary to do so to remedy the matters.
21. Directions to eliminate or minimise dangers
[Section 22 Repealed by No. 51 of 2005, s. 18, Applied:01 Jul 2009] . . . . . . . .(1) [Section 21 Subsection (1) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] If an authorised officer believes on reasonable grounds that –the authorised officer may give a direction requiring the person to take those measures.(a) a dangerous situation exists; and(b) a person is in a position to take measures to avert, eliminate or minimise the danger –(2) [Section 21 Subsection (2) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] The direction –(a) may be given orally or in writing in the case of imminent danger; or(b) is to be given in writing in any other case.(3) [Section 21 Subsection (3) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] A direction under this section is to –(a) [Section 21 Subsection (3) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] state the name of the person to whom it is given; and(b) identify the situation that, in the authorised officer's opinion, is causing the danger; and(c) state the grounds on which the belief is based; and(d) specify the measures to be taken; and(e) specify a day by which the measures are to be taken.(4) [Section 21 Subsection (4) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] A written direction under this section that relates to a vehicle or equipment or premises may be given by placing it securely on the vehicle or equipment or premises in a conspicuous position.(4A) [Section 21 Subsection (4A) inserted by No. 51 of 2005, s. 17, Applied:01 Jul 2009] Subsection (4) does not prevent a written direction under this section from being given to a person by any other means permitted by this Act.(5) A person must not –(a) [Section 21 Subsection (5) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] contravene a direction under this section; or(b) [Section 21 Subsection (5) amended by No. 51 of 2005, s. 17, Applied:01 Jul 2009] remove a written direction under this section from a vehicle or equipment or premises before measures have been taken to avert, eliminate or minimise the danger, unless it is necessary to do so to avert, eliminate or minimise the danger.
23. Taking urgent direct action to prevent dangerous situations causing serious harm
[Section 23 Substituted by No. 51 of 2005, s. 19, Applied:01 Jul 2009](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 the nature of the threat, action needs to be taken urgently to 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 section 20 or 21 , and the time for 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 to contribute to the prevention, removal or minimisation of the dangerous situation.(7) As soon as practicable after exercising power under subsection (2) , an authorised officer must –(a) prepare a report for the Secretary that –(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 the occupier a copy of that report.(8) In this section –serious harm means serious harm within the meaning of the Dangerous Substances (Safe Handling) Act 2005 .
PART 4 - Exemptions
(1) [Section 24 Subsection (1) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] A person or a representative of a class of persons may apply to the Secretary for an exemption from compliance with a provision of the regulations in relation to the transportation of particular dangerous goods.(2) [Section 24 Subsection (2) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] The Secretary, by instrument in writing, may exempt the person or class of persons from compliance with the provision if the Secretary is satisfied that –(a) it is not reasonably practicable for the person or persons to comply with the provision; and(b) granting the exemption –(i) would not be likely to create a risk of death or injury to a person, or harm to the environment or to property, greater than that which would be the case if the person or persons were required to comply; and(ii) [Section 24 Subsection (2) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] would not cause unnecessary administrative or enforcement difficulties, particularly with respect to maintaining national uniformity of laws relating to the transportation of dangerous goods.(3) An exemption may be subject to conditions.(4) [Section 24 Subsection (4) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] The Secretary, on granting an exemption to one person, must give a notice to the person stating –(a) the provisions of the regulations that are the subject of the exemption; and(b) the dangerous goods to which the exemption applies; and(c) the period of time for which the exemption remains in force; and(d) the conditions to which the exemption is subject; and(e) the geographical area for which the exemption is valid.(5) [Section 24 Subsection (5) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] The Secretary, on granting –must place a notice in the Gazette specifying all the details in subsection (4) and the person or class of persons to which the exemption applies.(a) [Section 24 Subsection (5) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] an exemption to a class of persons; or(b) [Section 24 Subsection (5) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] an exemption that is to remain in force for longer than 6 months –(6) A person who fails to comply with a condition to which an exemption is subject is guilty of an offence.(7) If an exemption is granted to one person, the person must keep a copy of the notice of exemption in the vehicle or premises to which it applies.(8) [Section 24 Subsection (8) substituted by No. 51 of 2005, s. 20, Applied:01 Jul 2009] If the Secretary grants –the Secretary must give notification and details of the exemption to the corresponding regulator of each other State, and of each Territory.(a) an exemption to a class of persons; or(b) an exemption that is to remain in force for longer than 6 months –(9) [Section 24 Subsection (9) amended by No. 51 of 2005, s. 20, Applied:01 Jul 2009] An exemption granted by a corresponding regulator under a corresponding law has the same force and effect for the purposes of this Act as an exemption granted under this section.
25. Variation and cancellation of exemptions and conditions
[Section 26 Repealed by No. 51 of 2005, s. 22, Applied:01 Jul 2009] . . . . . . . .(1) [Section 25 Subsection (1) amended by No. 51 of 2005, s. 21, Applied:01 Jul 2009] The Secretary may cancel an exemption if –(a) [Section 25 Subsection (1) amended by No. 51 of 2005, s. 21, Applied:01 Jul 2009] the Secretary is satisfied that a condition to which the exemption is subject has not been complied with; or(b) [Section 25 Subsection (1) amended by No. 51 of 2005, s. 21, Applied:01 Jul 2009] the Secretary is no longer satisfied of the matters referred to in section 24(2) .(2) An exemption granted to a person is to be varied or cancelled by notice in writing given to the person, and the variation or cancellation takes effect from the day on which the notice is given, or from a later day specified in the notice.(3) An exemption granted to a class of persons is to be varied or cancelled by notice published in the Gazette and the variation or cancellation takes effect on the day of publication, or from a later day specified in the notice.(4) [Section 25 Subsection (4) amended by No. 51 of 2005, s. 21, Applied:01 Jul 2009] The Secretary may vary or cancel conditions to which the exemption is subject or impose new conditions.
27. Application orders and emergency orders
(1) [Section 27 Subsection (1) substituted by No. 51 of 2005, s. 23, Applied:01 Jul 2009] The Minister, by order, may do either or both of the following:(a) temporarily suspend the operation of all or part of the regulations;(b) temporarily vary the operation of all or part of the regulations.(2) An order may have effect in relation to the whole State or to a specified area of the State.(3) [Section 27 Subsection (3) amended by No. 51 of 2005, s. 23, Applied:01 Jul 2009] The order is to be consistent with the provisions relating to application orders and emergency orders in the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth.(4) [Section 27 Subsection (4) omitted by No. 51 of 2005, s. 23, Applied:01 Jul 2009] . . . . . . . .
PART 5 - Offences[Part 5 Heading amended by No. 51 of 2005, s. 24, Applied:01 Jul 2009]
[Section 28 Amended by No. 51 of 2005, s. 25, Applied:01 Jul 2009] A person who is required by the regulations to be accredited to be involved in the transportation of dangerous goods or a particular aspect of that transportation must not be so involved without being so accredited.
29. Failure to hold licence, &c.
(1) A person must not use a vehicle to transport dangerous goods, other than as the driver of the vehicle, if –(a) the regulations require the vehicle to be licensed to transport the goods; and(b) the vehicle is not licensed under the regulations.(2) A person must not employ, engage or permit another person to drive a vehicle transporting dangerous goods if that other person is required by the regulations to be licensed to drive the vehicle and is not so licensed.(3) A person must not drive a vehicle transporting dangerous goods if –(a) the regulations require the vehicle to be licensed to transport the goods; and(b) the vehicle is not licensed under the regulations.Penalty: Fine not exceeding 100 penalty units.(4) A person must not drive a vehicle transporting dangerous goods if –(a) the regulations require the person to be licensed to drive the vehicle; and(b) the person is not licensed under the regulations.Penalty: Fine not exceeding 100 penalty units.
30. Goods too dangerous to transport
A person must not transport goods that the regulations identify as being too dangerous to transport.
31. Duties concerning the transportation of dangerous goods
(1) [Section 31 Subsection (1) amended by No. 51 of 2005, s. 26, Applied:01 Jul 2009] A person involved in the transportation of dangerous goods who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence.Penalty: In the case of –(a) a body corporate– a fine not exceeding 5 000 penalty units if the failure results in death or serious injury to a person, or a fine not exceeding 2 500 penalty units in any other case; and(b) an individual– a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both, if the failure results in death or serious injury to a person, or a fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, in any other case.(2) [Section 31 Subsection (2) amended by No. 51 of 2005, s. 26, Applied:01 Jul 2009] If a person involved in the transportation of dangerous goods fails to comply with a provision of this Act in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence.Penalty: In the case of –(a) a body corporate– a fine not exceeding 5 000 penalty units if the failure results in death or serious injury to a person, or a fine not exceeding 2 500 penalty units in any other case; and(b) an individual– a fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 2 years, or both, if the failure results in death or serious injury to a person, or a fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both, in any other case.
(1) The regulations may provide for a person to be served with an infringement notice requiring payment of a penalty for an offence, not exceeding the penalty that would otherwise apply, against the regulations as an alternative to prosecution in court for the offence.(2) [Section 32 Subsection (2) substituted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] The regulations must specify the offences to which the infringement notice applies.(3) [Section 32 Subsection (3) amended by No. 51 of 2005, s. 27, Applied:01 Jul 2009] [Section 32 Subsection (3) substituted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] An infringement notice is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 .(4) [Section 32 Subsection (4) omitted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] . . . . . . . .(5) [Section 32 Subsection (5) omitted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] . . . . . . . .(6) [Section 32 Subsection (6) omitted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] . . . . . . . .
PART 5A - [Part 5A Heading inserted by No. 51 of 2005, s. 28, Applied:01 Jul 2009] Offence proceedings and related matters
33. Time limit for prosecuting offences
Proceedings 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.
34. Authorised officers may prosecute offences
[Section 34 Amended by No. 51 of 2005, s. 29, Applied:01 Jul 2009] A prosecution for an offence may, but is not required to, be brought by an authorised officer.
(1) In a prosecution for an offence, if an authorised officer gives evidence that he or she believes any of the matters referred to in subsection (2) , the court must accept the authorised officer's evidence as prima facie evidence of that matter if –(a) the court considers the belief to be reasonable; and(b) there is no evidence to the contrary.(2) The matters are –(a) that dangerous goods described in shipping documents carried in a vehicle are being carried in the vehicle; or(b) that particular goods are dangerous goods or dangerous goods of a particular type; or(c) if markings or placards on or attached to a substance or container indicate that the substance is or the container contains particular dangerous goods, that the substance is or the container contains those dangerous goods; or(d) [Section 35 Subsection (2) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] if markings or placards on or attached to a vehicle or equipment indicate that the vehicle or equipment is being used to transport dangerous goods, that the vehicle or equipment is being used to transport those dangerous goods; or(e) if markings or placards on, or attached to, a substance or container indicate, in relation to the substance, the container or the contents of the container, a particular capacity, tare weight, origin, character, specification, ownership or date of manufacture, that the substance, the container or the contents of the container has that capacity, tare weight, origin, character, specification, ownership or date of manufacture; or(f) if markings or placards on, or attached to, a vehicle or container indicate, in relation to the load of the vehicle or the contents of the container, a particular quantity of dangerous goods, that the vehicle or container contained that quantity of dangerous goods; or(g) that a person was not, at a particular time, accredited or the holder of a licence relating to dangerous goods.(3) A court may admit into evidence –(a) a copy of a document made under section 14(9) and certified by the authorised officer as being a true copy; or(b) a photographic, mechanical or electronic recording made under section 14(12) and certified by the authorised officer as being a true recording.(4) [Section 35 Subsection (4) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] A court may admit the following documents as evidence if they appear to be signed by the Secretary or by a person exercising powers delegated by the Secretary for the relevant purpose:(a) documents relating to whether a person is exempt from certain requirements under section 24 ;(b) [Section 35 Subsection (4) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] documents relating to premises, vehicles, equipment or other items required by the regulations to be approved by the Secretary;(c) [Section 35 Subsection (4) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] documents relating to accreditation or licensing by the Secretary;(d) [Section 35 Subsection (4) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] documents relating to the analysis of goods or substances by or on behalf of the Secretary.(5) The court must accept the documents as proof of the facts stated in them if there is no evidence to the contrary.(6) [Section 35 Subsection (6) amended by No. 51 of 2005, s. 30, Applied:01 Jul 2009] All courts must take judicial notice of the signature of the Secretary on a document authorised or required to be signed for the purposes of this Act.
(1) [Section 36 Subsection (1) amended by No. 51 of 2005, s. 31, Applied:01 Jul 2009] For the purpose of providing practical guidance to persons involved in the transportation of dangerous goods, the Minister may approve a code of practice.(2) A code of practice may –(a) [Section 36 Subsection (2) amended by No. 51 of 2005, s. 31, Applied:01 Jul 2009] consist of any code, standard, guideline, rule or other document relating, either wholly or in part, to the transportation of dangerous goods formulated, prepared or adopted by the Secretary or a corresponding regulator; 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(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) [Section 36 Subsection (6) amended by No. 51 of 2005, s. 31, Applied:01 Jul 2009] 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) [Section 36 Subsection (8) amended by No. 51 of 2005, s. 31, Applied:01 Jul 2009] 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.(9) 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.(10) A person is not liable to any civil or criminal proceedings merely because the person has failed to observe a provision of a code of practice approved under this section.
37. Use of codes of practice, &c., in proceedings
(1) This section applies to a code of practice that is approved by the Minister under section 36 .(2) If –(a) in proceedings against a person for an offence, it is alleged that a person contravened a provision of this Act; and(b) a code of practice to which this section applies specifies a means of complying with the provision or with a requirement of the provision; and(c) either –then –(i) the code of practice has been published in the Gazette; or(ii) notice of the approval of the code of practice has been published in the Gazette; or(iii) copies of the code of practice are available for purchase or inspection –(d) the code of practice is admissible in the proceedings; and(e) if the court is satisfied that, at the relevant time, the person acted in accordance with the code of practice, the person is taken to have complied with the provision or requirement.
38. Conduct of company directors, employees or agents
(1) In this section –director, of a body corporate, includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory;engaging in conduct includes failing or refusing to engage in conduct;state of mind of a person includes –(a) the knowledge, intention, opinion, belief or purpose of the person; and(b) the person's reasons for the intention, opinion, belief or purpose.(2) If, in proceedings for an offence, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show –(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and(b) that the director, employee or agent had the relevant state of mind.(3) For the purposes of a prosecution for an offence, conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.(4) If, in proceedings for an offence, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show –(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and(b) that the employee or agent had the relevant state of mind.(5) Conduct engaged in on behalf of a person other than a body corporate (in this subsection called "the employer") by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence, to have been engaged in also by the employer unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct.(6) If a body corporate commits an offence against this Act, a person who is a director, secretary or manager of the body corporate or who is otherwise concerned in the management of the body corporate is liable to be punished as an individual who has been found guilty of the offence unless the person satisfies the court that –(a) the person did not know that the offence was committed; or(b) the person was not in a position to influence the conduct of the body corporate in relation to the offence; or(c) the person took reasonable precautions and exercised due diligence to prevent the commission of the offence.(7) Despite anything in this Act, a person is not liable to be punished by imprisonment for an offence if –(a) a person other than a body corporate is convicted of an offence; and(b) the person would not have been convicted of the offence if subsections (4) , (5) and (6) had not been enacted.(8) Proceedings for an offence against this Act may be brought against a director of a body corporate whether or not proceedings for the offence are brought against the body corporate.
39. Recovery of investigation costs from convicted persons
[Section 39 Substituted by No. 51 of 2005, s. 33, Applied:01 Jul 2009](1) A court that convicts a person of an offence may, on application by or on behalf of the 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 the investigation of the offence.(2) For the purposes of this section, the costs of investigating an offence include, but are not limited to, the costs for testing, transporting, storing and disposing of dangerous goods.
40. Recovery of costs of government action
(1) [Section 40 Subsection (1) amended by No. 51 of 2005, s. 34, Applied:01 Jul 2009] This section applies to an incident that relates to the transportation of dangerous goods, being an incident –(a) wholly or partly constituted by or arising from –(i) the escape of dangerous goods; or(ii) an explosion or fire involving dangerous goods; or(b) [Section 40 Subsection (1) amended by No. 51 of 2005, s. 34, Applied:01 Jul 2009] that involves the danger of the escape of dangerous goods or an explosion or fire involving dangerous goods; or(c) [Section 40 Subsection (1) amended by No. 51 of 2005, s. 34, Applied:01 Jul 2009] wholly or partly constituted by or arising from a dangerous situation that has to be prevented, removed or minimised by an action taken pursuant to section 23 .(2) If a government authority incurs costs as a result of the occurrence of an incident to which this section applies, so much of the costs as were reasonably incurred are recoverable as a debt due to the Crown.(3) The costs are recoverable jointly or severally from the following persons:(a) the person who was the owner of the dangerous goods at the time of the incident;(b) the person who was in control or possession of the dangerous goods at the time of the incident;(c) the person who caused the incident;(d) [Section 40 Subsection (3) amended by No. 51 of 2005, s. 34, Applied:01 Jul 2009] the person responsible, otherwise than as an employee, agent or subcontractor of another person, for the transportation of the dangerous goods.(4) Costs are not recoverable from a person who establishes that –(a) the incident was due to the act or default of another person; and(b) the person could not, exercising reasonable care, have prevented the incident; and(c) the incident was not attributable to an employee, agent or subcontractor of the person.(5) The recovery of costs incurred by one government authority as a result of the occurrence of an incident to which this section applies, including an award or judgment in relation to those costs or expenses, does not preclude the recovery of costs incurred by another government authority as a result of the occurrence of the incident.(6) This section does not affect a right to recover an amount in respect of costs or expenses that exists apart from this section, but a government authority is not entitled to recover, in respect of the same costs or expenses, an amount under this section and an amount in proceedings founded on other rights.(7) In proceedings under this section, a document apparently signed by the head, chief executive officer or principal officer of the relevant government authority specifying details of the costs reasonably incurred as a result of the occurrence of an incident to which this section applies is, in the absence of evidence to the contrary, proof of the matter so specified.
41. Prohibiting convicted persons from involvement in transportation of dangerous goods
(1) [Section 41 Subsection (1) amended by No. 51 of 2005, s. 35, Applied:01 Jul 2009] In sentencing a person for an offence, 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 imposing any other penalty, order that the person be prohibited for a specified period from involvement in the transportation of dangerous goods.(2) The matters to which a court must have regard are –(a) [Section 41 Subsection (2) amended by No. 51 of 2005, s. 35, Applied:01 Jul 2009] the person's record in the transportation of dangerous goods; and(b) any prior convictions of the person relating to dangerous goods; and(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.
(1) [Section 42 Subsection (1) amended by No. 51 of 2005, s. 36, Applied:01 Jul 2009] If –the court may, in addition to imposing any other penalty, order the dangerous goods (and, if applicable, their container) to be forfeited to the Crown.(a) a person is convicted by a court of an offence in relation to dangerous goods; and(b) the person owns the goods or the owner cannot be identified –(2) [Section 42 Subsection (2) substituted by No. 51 of 2005, s. 36, Applied:01 Jul 2009] The dangerous goods so forfeited to the Crown (and, if applicable, their container) may be destroyed, sold or otherwise disposed of as the Secretary, having regard to any relevant safety considerations, thinks fit.(3) [Section 42 Subsection (3) substituted by No. 51 of 2005, s. 36, Applied:01 Jul 2009] 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.
PART 6 - [Part 6 Heading inserted by No. 51 of 2005, s. 37, Applied:01 Jul 2009] Miscellaneous
42A. Applications for review of decisions
[Section 42A Inserted by No. 51 of 2005, s. 38, Applied:01 Jul 2009](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 section 20 or 21 .
42B. False or misleading statements
[Section 42B Inserted by No. 51 of 2005, s. 38, Applied:01 Jul 2009] 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 that matter the statement is false or misleading.Penalty: Fine not exceeding 50 penalty units.
43. Delegation of Minister's powers to Secretary
[Section 43 Amended by No. 51 of 2005, s. 39, Applied:01 Jul 2009] The Minister may by instrument in writing delegate all or any of the Minister's powers under this Act or the regulations, other than powers under section 27 , to the Secretary.
(1) [Section 44 Subsection (1) amended by No. 51 of 2005, s. 40, Applied:01 Jul 2009] 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) [Section 44 Subsection (2) amended by No. 51 of 2005, s. 40, Applied:01 Jul 2009] A liability that would, apart from this section, attach to the Secretary or an authorised officer attaches instead to the Crown.
45. 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 goods 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.
46. Minister to notify adoption by regulation of codes, &c.
(1) [Section 46 Subsection (1) amended by No. 51 of 2005, s. 41, Applied:01 Jul 2009] 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.(2) [Section 46 Subsection (2) amended by No. 51 of 2005, s. 41, Applied:01 Jul 2009] If –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.(a) [Section 46 Subsection (2) amended by No. 51 of 2005, s. 41, Applied:01 Jul 2009] 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) [Section 46 Subsection (2) amended by No. 51 of 2005, s. 41, Applied:01 Jul 2009] the code, standard, guideline, rule or other document is amended or replaced –
46A. Status of Gazette notices
[Section 46A Inserted by No. 51 of 2005, s. 42, Applied:01 Jul 2009] A Gazette notice in relation to any matter under this Act is not –(a) a statutory rule for the purposes of the Rules Publication Act 1953 ; or(b) an instrument of a legislative character for the purposes of the Subordinate Legislation Act 1992 .
[Section 46B Inserted by No. 51 of 2005, s. 42, Applied:01 Jul 2009] 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 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 office or principal place of business; or(ii) faxed to the person's fax number; or(iii) emailed to the person's email address.
The amendments effected by this section have been incorporated into the authorised version of the Fire Service Act 1979 .
48. Dangerous Goods Act 1976 repealed
The Dangerous Goods Act 1976 is repealed.
49. Savings and transitional regulations
[Section 50 Repealed by No. 51 of 2005, s. 44, Applied:01 Jul 2009] . . . . . . . .(1) In this section –commencement day means the day proclaimed under section 2 ;repealed Act means the Dangerous Goods Act 1976 .(2) The Governor may make regulations of a savings and transitional nature consequent on the enactment of this Act.(3) The regulations may take effect on the commencement day or a later day.(4) Without limiting the generality of subsection (2) , the regulations may provide for –(a) the termination or temporary continuation, with or without any modifications reasonably required for the purposes of this Act, of any licence, permit, approval, authority or other right or entitlement subsisting under the repealed Act immediately before the commencement day; and(b) the termination or temporary continuation of any appointment made under section 5 of the repealed Act and subsisting immediately before the commencement day; and(c) the exercise after the commencement day, in the interests of public safety, of a power that was exercisable by a person under the repealed Act immediately before that day.(5) [Section 49 Subsection (5) amended by No. 51 of 2005, s. 43, Applied:01 Jul 2009] The regulations may authorise any matter to be determined, applied or regulated by the Minister or the Secretary.
SCHEDULE 1 - Provisions with respect to warrants[Schedule 1 Inserted by No. 51 of 2005, s. 45, Applied:01 Jul 2009]
Section 14(1B) and section 16(4A)
1. InterpretationIn 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. Application 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 application 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(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 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. Warrant may be applied for and issued by telephone, &c., in urgent situation(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(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.(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 magistrateA 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 warrantA warrant ceases to have effect –whichever occurs first.(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 –
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 magistrateIf the magistrate who issued a warrant has died, has ceased to be a magistrate or is absent, a report that is required to be furnished to that magistrate –(a) must still be made; but(b) may be furnished to any other magistrate.
8. Duty to show warrantAn authorised officer who is executing a warrant must produce it for inspection by an occupier of the premises if requested to do so by that 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 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. Defects in warrantA warrant is not invalidated by any defect that does not affect its substance in a material particular.