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This is a Bill, not an Act. For current law, see the Acts databases.
DANGEROUS SUBSTANCES BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Dangerous
Substances Bill 2003
Contents
Page
Part 1.1 Court
Security Act 2001 178
Part 1.2 Firearms
Act 1996 178
Part 1.3 Firearms
Regulations 1997 178
Part 1.4 Legislation
Act 2001 179
Part
1.5 Occupational Health and Safety Act
1989 179
Part
1.6 Occupational Health and Safety Regulations
1991 179
Part 1.7 Road
Transport (Alcohol and Drugs) Act 1977 181
Part 1.8 Road
Transport (Safety and Traffic Management) Regulations
2000 181
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Dangerous Substances
Bill 2003
A Bill for
An Act about dangerous substances, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Dangerous Substances Act 2003.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this
Act defines certain terms used in this Act, and includes references
(signpost definitions) to other
terms defined elsewhere.
For example, the signpost definition
‘infringement notice—see the Magistrates
Court Act 1930, section 117.’ means that
the term ‘infringement notice’ is defined in that section and the
definition applies to this Act.
Note 2 A definition in the dictionary
(including a signpost definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
Chapter
2 Important
concepts
Part
2.1 Operation of
Act
(1) The purpose of this Act is to protect the health and safety of people,
and to protect property and the environment from damage, from the hazards
associated with dangerous substances.
(2) The purpose of this Act includes the following:
(a) to eliminate the hazards associated with dangerous
substances;
(b) if it is not reasonably practicable to eliminate the hazards—to
minimise as far as reasonably practicable the risks resulting from the hazards
by, for example—
(i) ensuring that the hazards are identified and the risks are assessed
and controlled; and
(ii) requiring information and training about the hazards and the safe
handling of the substances to be made available to people handling the
substances;
(c) to allocate responsibilities to people in relation to dangerous
substances;
(d) to regulate dangerous substances, including by providing for
authorisation, licensing, notification and registration schemes for dangerous
substances.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(1) This Act does not apply to the following:
(a) the transmission, distribution and use of natural gas to which the
Gas Safety Act 2000 or Utilities Act 2000 applies;
(b) the transmission, distribution and use of LPG to which the Gas
Safety Act 2000 applies;
(c) ammunition under the Firearms Act 1996, other than the
manufacture or transport of ammunition;
(d) an infectious substance under the Clinical Waste Act
1990;
(e) a radioactive substance under the Radiation Act 1983;
(f) anything else prescribed under the regulations.
(2) In this section:
LPG—see the Gas Safety Act 2000, dictionary,
definition of gas, paragraph (b).
8 Relationship
of Act to other laws
(1) The duties under this Act in relation to dangerous substances are in
addition to duties in relation to them under any other law in force in the ACT.
Note 1 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
Note 2 Other legislation in force in the ACT relating to dangerous
substances includes the following:
• Environment Protection Act 1997
• Occupational Health and Safety Act 1989
• Poisons Act 1933
• Poisons and Drugs Act 1978
• Road Transport Reform (Dangerous Goods) Act 1995
(Cwlth).
Note 3 See the Road Transport Reform (Dangerous Goods) Act
1995 (Cwlth), and the regulations made under that Act, for the transport of
dangerous substances (other than explosives, infectious substances and
radioactive substances) that are classified as dangerous goods under that
Act.
Note 4 Territory laws have no effect to the extent that they are
inconsistent with a Commonwealth law (see Australian Capital Territory
(Self-Government) Act 1988 (Cwlth), s 28).
(2) A duty or power under another Territory law in relation to a dangerous
substance has no effect to the extent that it is inconsistent with a duty under
this Act in relation to the substance.
(3) However, a duty or power under another Territory law in relation to a
dangerous substance must not be taken to be inconsistent with a duty under this
Act to the extent that they can operate concurrently.
9 Relationship
of regulations to approved codes of practice and incorporated
documents
(1) An approved code of practice or incorporated document has no effect to
the extent that it is inconsistent with the regulations.
(2) However, an approved code of practice or incorporated document must
not be taken to be inconsistent with the regulations to the extent that they can
operate concurrently.
Note 1 For the approval of codes of practice, see s 219.
Note 2 For the meaning of incorporated document, see
the dictionary.
Note 3 For the availability and the appropriate edition (if any) of
an incorporated document, see s 206 and s 220.
10 Meaning
of dangerous substance
(1) For this Act, a substance is a dangerous substance if
it—
(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 appendix 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 carried in
the Australian Dangerous Goods Code, appendix 1, appendix 2 or appendix 5;
or
(e) can be classified as a combustible liquid under Australian Standard
1940; or
(f) can be classified as a hazardous substance under the NOHSC approved
criteria; or
(g) is listed as a hazardous substance under the NOHSC List of Designated
Hazardous Substances; or
(h) is declared under the regulations to be a dangerous substance;
or
(i) is declared in writing by the Minister to be a dangerous
substance.
Note For the meaning of substance, see the
dictionary.
(2) A declaration under subsection (1) (i) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(3) In this Act:
Australian Dangerous Goods Code means the Australian Code
for the Transport of Dangerous Goods by Road and Rail, published by the
Commonwealth.
Australian Explosives Code means the Australian Code for
the Transport of Explosives by Road and Rail, published by the
Commonwealth.
Australian Standard 1940 means Australian Standard 1940,
The Storage and Handling of Flammable and Combustible Liquids.
NOHSC approved criteria means the Approved Criteria for
Classifying Hazardous Substances approved by the National Occupational
Health and Safety Commission under the National Occupational Health and
Safety Commission Act 1985 (Cwlth).
NOHSC List of Designated Hazardous Substances means the
List of Designated Hazardous Substances approved by the National
Occupational Health and Safety Commission under the National Occupational
Health and Safety Commission Act 1985 (Cwlth).
(4) For this Act, a reference to a document mentioned in subsection (3) is
a reference to—
(a) the document in effect at the commencement of this section;
and
(b) if the document is amended after the commencement of this section, and
an incorporated document notice under section 220 for the amendment is
notified—the document as amended by the amendment; and
(c) if the document (or a replacement document mentioned in this
paragraph) is replaced by another document after the commencement, and an
incorporated document notice under section 220 for the replacement is
notified—the replacement document; and
(d) if a replacement document mentioned in paragraph (c) is amended, and
an incorporated document notice under section 220 for the amendment is
notified—the replacement document as amended.
Note For the meaning of notification, see Legislation
Act, s 63
Example of replacement
document
a new edition of an incorporated document published after the commencement
of this section
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
11 Handle
a dangerous substance
For this Act, handle a dangerous substance includes the
following:
(a) import or export the
substance;
(b) manufacture, process or treat the
substance;
(c) supply, receive or dispense the
substance;
(d) mark or label an article, container or package of the substance, or
placard or put up signs in relation to the substance;
(e) pack, consign or carry the substance;
(f) store the substance;
(g) possess, or otherwise have custody or control of, the
substance;
(h) use the substance;
(i) dispose of the substance or render it harmless.
Examples for par (d)
1 label a container of a dangerous substance in accordance with the
Australian Dangerous Goods Code
2 put up warning signs around a factory about hazards associated with a
dangerous substance used at the factory
3 attach a placard to a building that includes the hazchem code under the
Australian Dangerous Goods Code for a dangerous substance stored at the
building
Note 1 The dictionary defines the following terms:
• carry
• dispose of
• export
• import
• manufacture
• supply.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
12 Non-commercial
handling of a dangerous substance
For this Act, the handling of a dangerous substance is
non-commercial if the handling does not take place in the course
of trade or commerce.
Note For the meaning of trade or commerce, see the
dictionary.
13 Correctly
classified for a dangerous substance
(1) For this Act, a dangerous substance is correctly
classified if—
(a) if the regulations apply to the classification of the
substance—the substance is classified in accordance with the regulations;
or
(b) if a declaration under subsection (2) applies to the classification of
the substance—the substance is classified in accordance with the
declaration; or
(c) in any other case—the substance is classified in accordance with
an incorporated document applying to the classification of the
substance.
Note 1 For the meaning of incorporated document, see
the dictionary.
Note 2 An incorporated document has no effect to the extent that it
is inconsistent with the regulations (see s 9 (1)).
(2) The Minister may declare in writing—
(a) that a dangerous substance belongs, or does not belong, to a stated
classification (however described) of dangerous substances; or
(b) a method for classifying a stated dangerous substance.
(3) A declaration under subsection (2) has no effect to the extent that it
is inconsistent with the regulations.
(4) A declaration under subsection (2) is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
14 Correctly
for packed, stored, labelled and placarded
(1) For this Act, a dangerous substance is correctly packed
or stored if—
(a) if the regulations apply to the packing or storage of the
substance—the substance is packed or stored in accordance with the
regulations; or
(b) if an incorporated document applies to the packing or storage of the
substance—the substance is packed or stored in accordance with the
incorporated document; or
(c) in any other case—the substance is packed or stored in a way
that eliminates the hazards associated with the substance or, if this is not
reasonably practicable, minimises the risks resulting from the hazards as far as
is reasonably practicable.
Note 1 For the meaning of incorporated document, see
the dictionary.
Note 2 An incorporated document has no effect to the extent that it
is inconsistent with the regulations (see s 9 (1)).
(2) For this Act, a dangerous substance is correctly
labelled or placarded if—
(a) if the regulations apply to the labelling or placarding of the
substance—the substance is labelled or placarded in accordance with the
regulations; or
(b) in any other case—the substance is labelled or placarded in
accordance with an incorporated document (if any) applying to the labelling or
placarding of the substance.
15 Meaning
of hazard and risk
(1) For this Act, a hazard is a thing (including an
intrinsic property of a thing), or a situation, with potential
to—
(a) kill or injure a person; or
(b) damage
property or the environment.
(2) For this Act, a risk is
the likelihood of death or harm to a person, or damage to property or the
environment, from a hazard.
16 Reasonable
steps for a risk
(1) The regulations may prescribe what
are, or are not, reasonable steps in relation to a risk.
(2) However, if the regulations do not prescribe what are, or are not
reasonable steps in relation to a risk, all of the following must be considered
in working out whether reasonable steps have been taken to
minimise the risk:
(a) the seriousness of the risk;
(b) the current state of knowledge about—
(i) the hazard giving rise to the risk and the risk itself; and
(ii) any ways of eliminating the hazard or minimising the risk;
(c) the availability and suitability of ways to eliminate the hazard or
minimise the risk;
(d) the cost of eliminating the hazard or minimising the risk;
(e) anything else prescribed under the regulations.
17 Person
in control for premises, plant etc
(1) For this Act, a person in control is—
(a) for the handling of a dangerous substance—anyone who has control
of the handling of the substance (including anyone with authority to make
decisions about the handling of the substance); or
(b) for premises—anyone who has control of the premises (including
anyone with authority to make decisions about the management of the premises);
or
(c) for plant or a system for handling a dangerous substance—anyone
who has control of the plant or system or the operation of the plant or system
(including anyone with authority to make decisions about the plant or system or
the operation of the plant or system); or
(d) for the design, manufacture, import or supply of plant or a system for
handling a dangerous substance—anyone who has control of the design,
manufacture, import or supply of the plant or system (including anyone with
authority to make decisions about the design, manufacture, import or supply);
or
(e) anyone else prescribed under the regulations.
Note Plant includes a building or other structure (see
dict).
(2) To remove any doubt, more than 1 person may be a person in control for
a duty under this Act.
18 Responsible
person for a dangerous substance
(1) For this Act, a person is a responsible person for a
dangerous substance if the person is—
(a) a person in control of the handling of the substance; or
(b) a person in control of premises where the substance is handled;
or
(c) a person in control of plant or a system for handling the
substance.
(2) To remove any doubt, more than 1 person may be a responsible person
for a duty under this Act.
19 What
is a safety management system
(1) A safety management system for handling a dangerous
substance is a system that does each of the following:
(a) identifies the hazards associated with the substance, having regard to
the current state of knowledge about the hazards;
(b) identifies and assesses the risks resulting from the identified
hazards, having regard to the current state of knowledge about the
risks;
(c) controls the risks by eliminating the hazards or, if this is not
reasonably practicable, minimising the risks as far as reasonably
practicable;
(d) provides for how compliance with the system is to be
documented;
(e) complies with any requirements prescribed under the regulations
(either in addition to or instead of a requirement mentioned in paragraphs (a)
to (d)).
Example for par (e)
The regulations may provide that a supplier of a stated dangerous substance
may identify the hazards associated with the substance, and identify and assess
the risks resulting form the hazards, by reviewing the safety information
supplied by the substance’s manufacturer under section 26 (1) (e) instead
of complying with subsections (2) and (3).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) For subsection (1) (a), the matters that must be considered in
identifying the hazards include, for example—
(a) the chemical and physical properties of the dangerous substance;
and
(b) any chemical and physical reactions that may happen if the substance
comes into contact with other substances; and
(c) the premises, plant and systems for handling the substance;
and
(d) anything else prescribed under the regulations for this
subsection.
Examples for par (c)
1 access to the premises or plant at the premises, including access by
members of the public
2 the design, physical location and arrangement of areas and
plant
3 the characteristics of the materials used in plant
4 activities, systems of work and non-dangerous substances that could
interact with the substance
Note Plant includes a building or other structure (see
dict).
(3) For subsection (1) (b), the matters that must be considered in
identifying and assessing the risks include, for example—
(a) the matters mentioned in subsection (2); and
(b) the consequences, at premises where the dangerous substance is to be
handled and elsewhere, of incidents that may happen because of the handling of
the substance at the premises; and
(c) anything else prescribed under the regulations for this
subsection.
(4) For subsection (1) (c), the matters that must be considered in
controlling the risks include, for example—
(a) implementing, operating, maintaining and repairing systems to ensure
the dangerous substance is handled safely; and
(b) allocating responsibilities to people involved in the handling of the
substance to ensure the substance is handled safely; and
(c) appropriately inducting or supervising people handling the substance;
and
(d) giving appropriate information, education and training to people
handling the substance about the hazards associated with the substance, and the
risks resulting from them; and
(e) anything else prescribed under the regulations.
Examples of systems for par
(a)
1 safe systems of work and safe handling systems
2 security systems for premises where the substance is manufactured or
stored
3 a system to identify and rectify any incidents of noncompliance
(including minimising any risks resulting from the noncompliance) with the
safety management system
Part
2.3 Complying with
Act
20 Person
may have more than 1 duty under Act
To remove any doubt, a person may be subject to
more than 1 duty under this Act.
Example
A supplier of a dangerous substance must comply with the general safety
duty applying to everyone handling a dangerous substance (see s 23) and with the
supplier’s particular duties under section (2).
If the supplier is a person in control of premises, the supplier must also
comply with the safety duties of a person in control of premises (see s
31).
Note 1 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
Note 2 An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
21 Person
not relieved of duty because someone else also has same
duty
(1) This section applies if 2 or more people have the same duty under this
Act.
(2) To remove any doubt, each person must comply with the duty whether or
not someone else may also be required to comply with the duty.
(3) However, if this Act requires or allows them to do something, it is
sufficient if 1 of them does the thing.
Example
If 2 people are in control of premises where a dangerous substance is
handled, it is sufficient if 1 of them prepares the safety management system
required under section 31 (1). However, if the safety management system is not
prepared, each of them is responsible for the failure to comply with the duty to
ensure that the safety management system is prepared.
Note An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
22 Incorporated
documents and approved codes of practice may be considered
An incorporated document, or approved code of practice applying to a duty
under this Act may be considered in deciding whether a person has complied with
the duty.
Note For the meaning of incorporated document and
approved code of practice, see the dictionary.
Chapter
3 Safety duties for dangerous
substances
Division
3.1.1 General safety duty of
everyone
23 General
safety duty of everyone involved in handling dangerous substances
anywhere
(1) Everyone involved in handling a
dangerous substance must take all reasonable
steps to minimise the risks resulting from
handling the substance.
Note 1 A failure to comply with this section may be an offence (see
pt 3.2).
Note 2 Handling a dangerous substance includes importing,
manufacturing, storing, supplying, possessing, receiving or using the substance
(see s (4)).
(2) To remove any doubt, this section applies to the handling of a
dangerous substance whether or not the handling is a non-commercial handling of
the substance.
Note For the meaning of non-commercial, see s
12.
Division
3.1.2 Handling of dangerous substances
in trade or commerce
24 Application
of div 3.1.2
This division does not apply in relation to the non-commercial handling of
a dangerous substance.
Note For the meaning of non-commercial, see s
12.
25 Safety
management system required for certain people in control of handling dangerous
substances
(1) This section applies to a person in control of—
(a) the manufacture, import or supply of a dangerous substance;
or
(b) any other handling of a dangerous substance prescribed under the
regulations.
(2) The person must—
(a) ensure that a safety management system for handling the dangerous
substance is prepared and documented; and
(b) take all reasonable steps to ensure that—
(i) the safety management system is implemented and kept up to date;
and
(ii) everyone to whom the safety management system applies complies with
their duties under the system; and
(iii) people’s compliance with their duties under the safety
management system is documented under the system.
Note 1 A failure to comply with this section may be an offence (see
pt 3.2).
Note 2 A person in control of premises is also required to have a
safety management system for the handling of dangerous substances at the
premises (see s 31).
26 Particular
safety duties of manufacturers
(1) A person in control of the manufacture of a dangerous substance
must—
(a) ensure that the substance is correctly classified as soon as
practicable after its manufacture, but before it is supplied to anyone after its
manufacture; and
(b) take all reasonable steps to ensure that the substance is in a
condition that is safe for handling by anyone after its manufacture;
and
(c) if the substance is packed by the manufacturer—ensure that the
substance is correctly packed and labelled before the manufacturer supplies it
to anyone; and
(d) if the substance is stored by the manufacturer—ensure that the
manufacturer correctly stores and placards the substance; and
(e) ensure that the safety information prescribed under the regulations
for the substance is prepared, kept up to date and supplied in accordance with
the regulations.
Note A failure to comply with this section may be an offence (see pt
3.2).
(2) Subsection (1) (c) does not require the dangerous substance to be
labelled if the substance is not required to be labelled under the regulations
or an incorporated document.
(3) Subsection (1) (d) does not require the dangerous substance to be
placarded if the substance is not required to be placarded under the regulations
or an incorporated document.
27 Particular
safety duties of importers
(1) A person in control of the import of a dangerous substance
must—
(a) ensure that the substance is correctly classified before it is
imported; and
(b) take all reasonable steps to ensure that the substance is in a
condition that is safe for handling by anyone after its import; and
(c) if the substance is packed by the importer—ensure that the
substance is correctly packed and labelled before the importer supplies it to
anyone; and
(d) if the substance is stored by the importer—ensure that the
importer correctly stores and placards the substance; and
(e) ensure that the safety information prescribed under the regulations
for the substance is prepared, kept up to date and supplied in accordance with
the regulations.
Note 1 A failure to comply with this section may be an offence (see
pt 3.2).
Note 2 Import means import into the ACT (see dict).
(2) Subsection (1) (c) does not require the dangerous substance to be
labelled if the substance is not required to be labelled under the regulations
or an incorporated document.
(3) Subsection (1) (d) does not require the dangerous substance to be
placarded if the substance is not required to be placarded under the regulations
or an incorporated document.
28 Particular
safety duties of suppliers
(1) A person in control of the supply of a dangerous substance
must—
(a) ensure that the substance is correctly classified before the supplier
supplies it to anyone; and
(b) take all reasonable steps to ensure that the substance is in a
condition that is safe for handling by anyone after the supplier supplies it;
and
(c) ensure that the substance is correctly packed and labelled before the
supplier supplies it to anyone; and
(d) if the substance is stored by the supplier—ensure that the
supplier correctly stores and placards the substance; and
(e) ensure that the safety information prescribed under the regulations
for the substance is prepared, kept up to date, supplied and made available in
accordance with the regulations.
Note A failure to comply with this section may be an offence (see pt
3.2).
(2) Subsection (1) (c) does not require the dangerous substance to be
labelled if the substance is not required to be labelled under the regulations
or an incorporated document.
(3) Subsection (1) (d) does not require the dangerous substance to be
placarded if the substance is not required to be placarded under the regulations
or an incorporated document.
Division
3.1.3 Premises where dangerous
substances are handled in trade or commerce
29 Application
of div 3.1.3
(1) This division does not apply in relation to the non-commercial
handling of a dangerous substance at premises.
Note 1 At premises includes in or on the premises (see
dict).
Note 2 For the meaning of non-commercial, see s
12.
(2) If the premises are residential premises, this division does not apply
to the part of the premises used for the non-commercial handling of the
substance.
Note Premises includes any part of an area of land or a
structure or vehicle (see dict).
30 Safety
duties of everyone at premises
(1) Everyone at premises where a dangerous
substance is handled must take all reasonable
steps to minimise the risks resulting from the
handling of the substance at the premises.
Note 1 A failure to comply with this section may be an offence (see
pt 3.2).
Note 2 At premises includes in or on the premises (see
dict).
(2) A person at premises where a dangerous substance is handled
must—
(a) comply with any requirement applying
to the person under any safety management system for the handling of the
substance at the premises; and
(b) comply with any instructions relating to the safe handling of the
substance at the premises given to the person by a responsible person for the
substance; and
(c) comply with, or otherwise act in accordance with, notices and signs
(including placards and warning signs) at the premises relating to safety or the
substance; and
(d) not remove, alter, damage, deface or cover any current label, notice,
sign or placard at the premises relating to safety or the substance;
and
(e) tell a responsible person for the substance about anything at the
premises that the person believes is likely to cause a dangerous
occurrence.
Examples of things that might be reported
for par (e)
1 the misuse of the dangerous substance by someone
2 an accident in relation to the handling of the dangerous substance
3 faulty equipment used for handling the dangerous substance
4 someone not following the requirements of a safety management
system
Note 1 For the meaning of responsible person, see s
18.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
31 Safety
duties of people in control of premises
(1) A person in control of premises where a dangerous substance is handled
must—
(a) ensure that a safety management system for handling the substance at
the premises is prepared and documented; and
(b) take all reasonable steps to ensure that—
(i) the safety management system is implemented and kept up to date;
and
(ii) everyone to whom the safety management system applies complies with
their duties under the system; and
(iii) people’s compliance with their duties under the safety
management system is documented under the system.
Note A failure to comply with this section may be an offence (see pt
3.2).
(2) A person in control of premises where a dangerous substance is handled
must take all reasonable steps to ensure that—
(a) the premises (including any plant or systems at the premises for
handling the substance) are safe to handle the substance; and
(b) if the premises, or anything (including plant or equipment) at the
premises, is to be disposed of—the premises or thing is, before its
disposal, thoroughly cleaned so that it is free from the substance or is
otherwise made safe; and
(c) if the premises, or anything (including plant or equipment) at the
premises, is no longer to be used for handling the
substance—the premises or thing is thoroughly cleaned so that it
is free from the substance or is otherwise made
safe.
Note 1 Premises includes land or a structure or vehicle and
any part of an area of land or a structure or vehicle and at
premises includes in or on the premises (see dict).
Note 2 For other provisions relevant to the decontamination of land,
see the Environment Protection Act 1997.
Division
3.1.4 Plant and systems for handling
dangerous substances for trade or commerce
32 Application
of div 3.1.4
This division (other than section 33) does not apply in relation to plant
or a system for the non-commercial handling of a dangerous substance.
Note For the meaning of non-commercial, see s
12.
33 General
safety duties for plant and systems
(1) Everyone involved in the design,
manufacture, import, supply, installation, commissioning, operation,
maintenance, repair, decommissioning, dismantling or disposal of plant or a
system for handling a dangerous substance must
take all reasonable steps to minimise the
risks resulting from the handling of the substance by the plant or
system.
Note 1 Plant includes a building or other structure (see
dict).
Note 2 A failure to comply with this section may be an offence (see
pt 3.2).
(2) A person operating, maintaining or repairing the plant or system
must tell a relevant person
about—
(a) anything in relation to the plant or system that the person believes
is likely to cause a dangerous occurrence; and
(b) anything else that the person believes is a defect in the plant or
system.
(3) To remove any doubt, this section applies to all plant and systems for
handling a dangerous substance, whether or not the handling is a non-commercial
handling of the substance.
(4) In this section:
relevant person, for plant or a system,
means—
(a) a person in control of the plant or system; or
(b) a person in control of the premises where the plant or system is
located.
Note For the meaning of person in control, see s
17.
34 Safety
duties of people in control of plant and systems
(1) A person in control of plant or a system for handling a dangerous
substance must—
(a) ensure that a safety management system for the handling of the
substance by the plant or system is prepared and documented; and
(b) take all reasonable steps to ensure that—
(i) the safety management system is implemented and kept up to date;
and
(ii) everyone to whom the safety management system applies complies with
their duties under the system; and
(iii) people’s compliance with their duties under the safety
management system is documented under the system.
Note A failure to comply with this section may be an offence (see pt
3.2).
(2) A person in control of plant or a system for handling a dangerous
substance must—
(a) take all reasonable steps to ensure that the plant or system is safe
to handle the substance; and
(b) take all reasonable steps to ensure that the plant or system is
installed and operated safely, and appropriately maintained, repaired and
tested; and
Note For requirements to provide information about the operation,
maintenance and repair of plant or a system, see s 35 (1) (b) and s 36
(b).
(c) if the person becomes aware of a hazard or defect in relation to
the plant or system—
(i) take all reasonable steps to ensure that the
plant or system is operated, modified, maintained or repaired to
eliminate the hazard, correct the defect or minimise the risks resulting from
the hazard or defect; and
(ii) ensure that the supplier or manufacturer of the plant or system is
told about the hazard or defect; and
(iii) if the person is not the owner of the plant or system—ensure
that the owner of the plant or system is told about the hazard or defect and its
significance; and
(d) if the plant or system, or a part of the plant or system, is to be
disposed of—take all reasonable steps to ensure that the plant or system
(or part) is, before its disposal, thoroughly cleaned so that it is free from
the dangerous substance or is otherwise made safe; and
(e) if the plant or system, or a part of the plant or system, is no longer
to be used to handle the dangerous
substance—take all reasonable steps to ensure that the plant or
system (or part) is thoroughly cleaned so that it is
free from the substance or is otherwise made safe.
35 Safety
duties of people in control of design, manufacture, import and supply of plant
and systems
(1) A person in control of the design, manufacture, import or supply of
plant or a system for handling a dangerous substance must—
(a) take all reasonable steps to ensure that the plant or a system is safe
to handle the substance; and
(b) if the person is a person in control of the supply of the plant or
system—take all reasonable steps to ensure that appropriate information
about the safe installation, operation, maintenance and repair of the plant or
system is given to—
(i) a person in control of the plant or system; and
(ii) if the person mentioned in subparagraph (i) is not the
owner—the owner of the plant or system; and
(c) if the person (the appropriate person) becomes aware of
a hazard or defect in relation to the plant or
system—ensure that the designated person is told—
(i) about the hazard or defect and its significance; and
(ii) how the plant or system may be
operated, modified, maintained or repaired to eliminate the hazard, correct the
defect or minimise the risks resulting from the hazard or defect.
Note A failure to comply with this section may be an offence (see pt
3.2).
(2) In this section:
designated person means—
(a) if the appropriate person is a person in control of the design or
import of the plant or system—a person in control of the manufacture of
the plant or system; or
(b) if the appropriate person is a person in control of the manufacture of
the plant or system—a person in control of the design or import (if any)
of the plant or system; or
(c) if the appropriate person is a person in control of the supply of the
plant or system—
(i) a person in control of the manufacture or import (if any) of the plant
or system; and
(ii) the person to whom the plant or system was supplied.
36 Safety
duties of people in control of installation of plant and
systems
A person in control of the installation of plant or a system to handle a
dangerous substance must—
(a) take all reasonable steps to ensure that the plant or system is safe
to handle the substance; and
(b) take all reasonable steps to ensure that appropriate information about
the safe operation, maintenance and repair of the plant or system is given
to—
(i) a person in control of the plant or system; and
(ii) if the person mentioned in subparagraph (i) is not the
owner—the owner of the plant or system; and
(c) if the person becomes aware of a hazard or defect in relation to
the plant or system—ensure that a person
in control of the plant or system is told—
(i) about the hazard or defect and its significance; and
(ii) how the plant or system may be
operated, modified, maintained or repaired to eliminate the hazard, correct the
defect or minimise the risks resulting from the hazard or defect.
Note A failure to comply with this section may be an offence (see pt
3.2).
Division
3.1.5 Reporting of dangerous
occurrences
37 Application
of div 3.1.5
(1) This division does not apply in relation to the non-commercial
handling of a dangerous substance at premises.
Note 1 At premises includes in or on the premises (see
dict).
Note 2 For the meaning of non-commercial, see s
12.
(2) If the premises are residential premises, this division does not apply
to the part of the premises used for the non-commercial handling of the
substance.
Note Premises includes any part of an area of land or a
structure or vehicle (see dict).
38 Meaning
of dangerous occurrence
In this Act:
dangerous occurrence means any of the following at premises
used to handle a dangerous substance:
(a) an incident causing or creating a substantial risk of—
(i) death or serious harm to a person, whether at the premises or
elsewhere; or
(ii) substantial damage to property or the environment, whether at the
premises or elsewhere;
(b) anything declared under the regulations to be a dangerous
occurrence;
(c) any other incident involving a serious and immediate risk of anything
mentioned in paragraph (a) or (b).
Examples of incidents
1 a spill or other loss of containment of a dangerous substance
2 an uncontrolled emission of a dangerous substance
3 a fire, explosion or release of energy
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
39 Person
in control of premises—safety duty to report actual or likely dangerous
occurrences
(1) If a person in control of premises believes there is a substantial
likelihood of a dangerous occurrence happening at the premises, the person
must—
(a) if the occurrence is likely to cause death or serious harm to a person
or substantial damage to property or the environment—tell the chief
executive about the person’s belief immediately after the person forms the
belief; and
(b) in any other case—tell the chief executive about the
person’s belief as soon as possible after the person forms the belief or,
if a period is prescribed under the regulations, within the prescribed
period.
(2) A person in control of premises where a dangerous occurrence has
happened must tell the chief executive about the occurrence—
(a) if the occurrence causes death or serious harm to a person or
substantial damage to property or the environment—immediately after the
occurrence happens; and
(b) in any other case—as soon as possible after the occurrence
happens or, if a period is prescribed under the regulations, within the
prescribed period.
Note A failure to comply with this section may be an offence (see pt
3.2).
Division
3.1.6 Miscellaneous
40 Safety
duties do not limit each other
To remove any doubt, a duty under a provision of this part does not limit
the duties under another provision of this part.
Note A person may be subject to more than 1
duty under this Act (see s 20).
Part
3.2 Failure to comply with safety
duties
41 Meaning
of safety duty for pt 3.2
In this part:
safety duty means a duty under any of the following
provisions:
• section 23 (General safety duty of everyone handling dangerous
substances anywhere)
• section 25 (Safety management system required for certain people in
control of handling dangerous substances)
• section 26 (Particular safety duties of manufacturers)
• section 27 (Particular safety duties of importers)
• section (2) (Particular safety duties of suppliers)
• section 30 (Safety duties of everyone at premises)
• section 31 (Safety duties of people in control of
premises)
• section 33 (General safety duties for plant and systems)
• section 34 (Safety duties of people in control of plant and
systems)
• section 35 (Safety duties of people in control of design,
manufacture, import and supply of plant and systems)
• section 36 (Safety duties of people in control of installation of
plant and systems)
• section 39 (Person in control of premises—safety duty to
report actual or likely dangerous occurrences).
42 Failure
to comply with safety duty—general offence
(1) A person commits an offence if—
(a) the person is required to comply with a safety duty; and
(b) the person fails to comply with the safety duty.
Maximum penalty: 100 penalty units.
(2) Absolute liability applies to subsection (1) (a).
(3) Strict liability applies to subsection (1) (b).
43 Failure
to comply with safety duty—exposing people to substantial risk of death or
serious harm
(1) A person commits an offence if—
(a) the person is required to comply with a safety duty; and
(b) the person fails to comply with the safety duty; and
(c) the failure exposes anyone to a substantial risk of death or serious
harm; and
(d) the person either—
(i) was reckless about whether the failure would expose anyone to death or
serious harm; or
(ii) was negligent about whether the failure would expose anyone to death
or serious harm.
Maximum penalty: 1 500 penalty units, imprisonment for 5 years or
both.
(2) Absolute liability applies to subsection (1) (a).
44 Failure
to comply with safety duty—causing death or serious harm to
people
(1) A person commits an offence if—
(a) the person is required to comply with a safety duty; and
(b) the person fails to comply with the safety duty; and
(c) the failure causes the death of or serious harm to anyone;
and
(d) the person either—
(i) was reckless about whether the failure would cause the death of or
serious harm to anyone; or
(ii) was negligent about whether the failure would cause the death of or
serious harm to anyone.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
(2) Absolute liability applies to subsection (1) (a).
45 Failure
to comply with safety duty—exposing property or environment to substantial
risk of substantial damage
(1) A person commits an offence if—
(a) the person is required to comply with a safety duty; and
(b) the person fails to comply with the safety duty; and
(c) the failure exposes property or the environment to a substantial risk
of substantial damage; and
(d) the person either—
(i) was reckless about whether the failure would expose property or the
environment to a substantial risk of substantial damage; or
(ii) was negligent about whether the failure would expose property or the
environment to a substantial risk of substantial damage.
Maximum penalty: 1 000 penalty units, imprisonment for 3 years or
both.
(2) Absolute liability applies to subsection (1) (a).
46 Failure
to comply with safety duty—causing substantial damage to property or
environment
(1) A person commits an offence if—
(a) the person is required to comply with a safety duty; and
(b) the person fails to comply with the safety duty; and
(c) the failure causes substantial damage to property or the environment;
and
(d) the person either—
(i) was reckless about whether the failure would cause substantial damage
to property or the environment; or
(ii) was negligent about whether the failure would cause substantial
damage to property or the environment.
Maximum penalty: 1 500 penalty units, imprisonment for 5 years or
both.
(2) Absolute liability applies to subsection (1) (a).
47 Alternative
verdicts for failure to comply with safety duties
(1) This section applies if, in a prosecution for an offence for a failure
to comply with a safety duty, the trier of fact—
(a) is not satisfied beyond reasonable doubt that the defendant is guilty
of the offence; but
(b) is satisfied beyond reasonable doubt that the defendant is guilty of
an alternative offence.
(2) The trier of fact may find the defendant guilty of the alternative
offence, but only if the defendant has been given procedural fairness in
relation to the finding of guilt.
(3) In this section:
alternative offence, for an offence mentioned in the table of
alternative verdicts, column 2, means an offence mentioned in the table, column
3 for the offence.
Table of alternative verdicts
column 1
item
|
column 2
prosecuted offence
|
column 3
alternative offence
|
1
|
section 42 (which is about failing to comply with a safety duty)
|
section 63 (Failure to comply with conditions of licence)
|
2
|
section 43 (which is about exposing a person to substantial risk of death
or serious harm)
|
section 42
section 63
|
3
|
section 44 (which is about causing death or serious harm to a
person)
|
section 42
section 43
section 63
|
4
|
section 45 (which is about exposing property or the environment to
substantial risk of substantial damage)
|
section 42
section 63
|
5
|
section 46 (which is about causing substantial damage to property or the
environment)
|
section 42
section 45
section 63
|
Chapter
4 Licences for dangerous
substances
Part
4.1 General—licences
Note 1 The regulations prescribe when a person is required to hold a
licence (or some other form of authority) to handle a dangerous substance (see
s 214 (for explosives), s 215 (1) (a) and s 217).
Note 2 If a person handles a dangerous substance without a licence
it may be an offence under ch 5.
48 Meaning
of close associate for ch 4
(1) In this chapter:
close associate—a person is a close associate of
someone (the related person) if—
(a) the person holds or will hold an executive position (however
described) in the related person’s business; or
(b) the chief executive is satisfied that the person is or will be able to
exercise a significant influence in relation to the conduct of the related
person’s business because the person holds or will hold a financial
interest, or is entitled to exercise a relevant power, in the
business.
Note For the meaning of business, see the
dictionary.
(2) In this section:
executive position—a position (however described) in
the related person’s business is an executive position if
the holder of the position is concerned with, or takes part in, the management
of the business.
exercise a power includes exercise the power on behalf of
someone else.
financial interest, in a business, means—
(a) a share in the capital of the business; or
(b) an entitlement to receive income derived from the business, however
the entitlement arises.
hold a position includes hold the position on behalf of
someone else.
power means a power exercisable—
(a) by voting or otherwise; and
(b) alone or with others.
relevant power, in a business, means a power—
(a) to take part in a directorial, managerial or executive decision for
the business; or
(b) to elect or appoint a person to an executive office in the
business.
49 Working
out whether person is a suitable person
(1) The chief executive must have regard to the following matters in
deciding whether a person is a suitable person to be issued with,
or continue to hold, a licence:
(a) the knowledge, experience and training of the person in relation to
the kinds of dangerous substances;
(b) whether the person or a close associate of the person, or a
corporation of which the person was at the relevant time an executive officer,
has supplied information or a document that is false or misleading in a material
particular in relation to this Act;
(c) whether the person or a close associate of the person, or a
corporation of which the person was an executive officer, is disqualified under
the Act or a corresponding law from holding a licence;
(d) whether the person or a close associate of the person, or a
corporation of which the person was at the relevant time an executive
officer—
(i) has contravened this Act or a corresponding law, whether or not the
person, associate or corporation has been convicted or found guilty of an
offence for the contravention; or
(ii) has failed to comply with a condition of a licence under this Act or
a licence or other authority (however described) under a corresponding law,
whether or not the person, associate or corporation has been convicted or found
guilty of an offence for the failure;
(e) any action being taken against the person or a close associate of the
person under part 4.4 (Disciplinary action);
(f) whether the person or a close associate of the person, or a
corporation of which the person was at the relevant time an executive officer,
has been convicted or found guilty in the ACT or elsewhere, within the 5-year
period before the application, of an offence involving a dangerous
substance;
(g) whether the person or a close associate of the person has been
convicted or found guilty in the ACT or elsewhere, within the 5-year period
before the day the application is made, of an offence involving—
(i) a firearm; or
(ii) actual or threatened violence; or
(iii) fraud or dishonesty;
(h) whether the person or a close associate of the person has, within the
5-year period before the day the application is made, been subject to a
protection order or corresponding protection order (other than an order that has
been revoked or for which an appeal against the making of the order has been
upheld);
(i) anything prescribed under the regulations.
Note 1 For the meaning of found guilty, see
Legislation Act, dict, pt 1.
Note 2 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) In this section:
corresponding protection order means an order (however
described) under a law of the Commonwealth, a State, another Territory or New
Zealand that has the same effect or substantially the same effect as a
protection order.
protection order—see the Protection Orders Act
2001, dictionary, definition of final order.
50 Applications
for licences etc to comply with Act
(1) This section applies to—
(a) an application for a licence; or
(b) an application by a licensee to amend the licence; or
(c) any other application prescribed under the regulations in relation to
a licence.
(2) The application must include any information or documents (including
information or documents verified in a particular way) required under the
regulations or by a form approved under section 222 for the
application.
(3) The chief executive need not decide the application if it does not
include the required information and documents.
51 Power
to ask for information from applicants, licensees and
others
(1) In this section:
designated matter means—
(a) an application for a licence; or
(b) an application by a licensee to amend the licence; or
(c) a change of the kind to which section 57 (2) (Licensee to keep
chief executive informed) applies; or
(d) anything else prescribed under the regulations.
third party, for an applicant for a licence or a
licensee—a person is a third party if the chief executive
believes on reasonable grounds that the person has an association or connection
with the applicant or licensee that is relevant to the consideration of a
designated matter.
(2) The chief executive may, by written notice given to an applicant for a
licence or a licensee, ask the person to do 1 or more of the
following:
(a) give, in accordance with any directions in the notice, stated
information (including information in the possession of or under the control of
a third party), verified as stated in the notice, that is relevant to the
consideration of the designated matter in relation to the person;
(b) produce, in accordance with any directions in the notice, stated
documents (including documents in the possession of or under the control of a
third party) relevant to the consideration of the designated matter in relation
to the person and allow examination of the documents, the taking of extracts
from them and the making of copies of them;
(c) authorise a third party stated in the notice to comply with a stated
request of a kind mentioned in paragraph (a) or (b);
(d) give the chief executive the authorities and consents the chief
executive asks for to allow the chief executive to obtain information (including
financial and other confidential information) from other people about the person
or a close associate of the person.
Examples for par (a)
1 the notice may ask the person to give information by preparing a document
in a stated way or by completing a document provided by the chief executive
2 the notice may ask the person to give the chief executive information
about a close associate and that the information be verified by a statutory
declaration
Example for par (b)
a statement supplied by a police officer about the applicant’s
criminal history (if any)
Example for par (c)
The notice may ask the applicant to authorise the applicant’s
accountant, or a former close associate, to give the chief executive stated
information or documents about the applicant.
Note 1 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the chief executive asks for something under this section in
relation to an application, the chief executive need not decide the application
until the request is complied with.
Part
4.2 Issue amendment, replacement and
surrender of licences
52 Licence
application and decision
(1) A person may apply to the chief executive for a licence.
Note 1 A fee may be determined under s 221 for this
section.
Note 2 If a form is approved under s 222 for an application, the
form must be used.
(2) The chief executive must issue the licence to the person if satisfied
that—
(a) the person is a suitable person to hold the licence; and
(b) the person can comply with this Act in relation to the activities to
be authorised by the licence.
(3) The chief executive must refuse to issue the licence if the chief
executive is not satisfied about the matters mentioned in
subsection (2).
Note Section 50 (3) and s 51 (3) contain exceptions to this
section.
(1) The chief executive may include conditions in a licence to protect the
health and safety of people, and property and the environment from damage, from
hazards associated with, or risks resulting from, the dangerous substances to
which the licence applies.
(2) A licence is subject to—
(a) any conditions included in the licence by the chief executive;
and
(b) any conditions prescribed under the regulations.
(1) A licence is issued for the period stated in the licence.
(2) A licence may not be issued for longer than 3 years, or any shorter
period prescribed under the regulations.
55 Licence
not transferable
A licence is not transferable.
(1) A licence must show the following information:
(a) the full name of the licensee;
(b) if appropriate—
(i) details of the premises where the licensee is authorised to carry out
activities under the licence; and
(ii) the address of the premises or, if the premises are a vehicle, any
information prescribed under the regulations for the vehicle;
(c) the dangerous substances to which the licence relates;
(d) the kinds of handling of dangerous substances authorised under the
licence (each of which is a handling authority);
(e) any conditions included in the licence by the chief
executive;
(f) any exemption given by the Minister or chief executive under this Act
that is relevant to the licence;
(g) a unique identifying number;
(h) when the term of the licence ends.
Example for par (d)
A licence may authorise a person to manufacture a dangerous substance and
to import other dangerous substances (the other dangerous substances are
necessary to manufacture the dangerous substance). The licence also authorises
the person to store the imported and manufactured dangerous substances and to
supply the manufactured dangerous substance.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A licence may also include any other information the chief executive
considers appropriate.
57 Licensee
to keep chief executive informed
(1) This section applies if a person believes that there will be a change
to anything stated in—
(a) a licence held by the person; or
(b) the application for the licence made by the person; or
(c) an application to amend the licence made by the person.
Note If a person fails to comply with this section the chief
executive may take disciplinary action under pt 4.4 (see s 67).
(2) The person must—
(a) give the chief executive written notice of the change no later than 7
days before the day the change happens; and
(b) if the change affects a particular shown on the licence—return
the licence to the chief executive with the notice.
Examples of changes
1 a change in a licensee’s close associates
2 a structural change in premises relevant to handling a dangerous
substance
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the change affects a particular shown on a licence, the chief
executive must amend the licence or issue another licence for the remainder of
the period of the licence it replaces.
(4) However, subsection (3) does not apply if the chief executive is
taking, or considering whether to take, action under part 4.4 (Disciplinary
action) in relation to the licensee because of the change.
58 Licence—application
to amend by licensee
(1) A licensee may apply to the chief executive to amend the
licence.
Examples of amendments
1 to amend or revoke a condition included in the licence by the chief
executive
2 to change the premises where activities may be carried out under the
licence
Note 1 A fee may be determined under s 221 for this
section.
Note 2 If a form is approved under s 222 for an application, the
form must be used.
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive must amend the licence if, assuming that the
application to amend were an application under section 52 (Licence application
and decision) for a licence that included the proposed amendment, the chief
executive would be required to issue a licence.
Note 1 For the return of the licence to the chief executive, see s
64.
Note 2 Pt 4.1 applies to the consideration of the
application.
(3) If subsection (2) does not apply, the chief executive must refuse the
application to amend the licence.
59 Licence—imposition
etc of conditions on chief executive’s initiative
(1) This section applies to a licensee if the chief executive proposes, on
the chief executive’s own initiative, to amend the licence to impose a
condition, or to amend or revoke a condition included in the licence by the
chief executive, (the proposed action).
(2) The chief executive must give the licensee a written notice
stating—
(a) the proposed action; and
(b) if the proposed action is to impose a condition—the proposed
condition; and
(c) if the proposed action is to amend a condition—the condition as
proposed to be amended; and
(d) an explanation for the proposed action; and
(e) that the licensee may, within 14 days after the day the licensee
receives the notice, give a written response to the chief executive about the
notice.
(3) In deciding whether to take the proposed action, the chief executive
must consider any response given to the chief executive in accordance with the
notice.
(4) The chief executive must give the licensee written notice of the chief
executive’s decision.
(5) If the chief executive decides to take the proposed action, the chief
executive’s decision takes effect 14 days after the day when notice of the
decision is given to the licensee or, if the notice states a later date of
effect, that date.
(6) If the licence is amended, the chief executive must, as soon as
practicable after the licence has been returned to the chief executive, amend
the licence or give the licensee a replacement licence showing the
amendment.
Note The licensee must return the licence to the chief executive for
amendment (see s 64).
(7) This section does not affect the taking of action under part 4.4
(Disciplinary action).
60 Replacement
of licence
(1) The chief executive may issue a replacement licence to a licensee if
satisfied that the licence has been lost, stolen or destroyed.
(2) For subsection (1), the chief executive may require the licensee to
give the chief executive a statement, verified by a statutory declaration signed
by the licensee, that the licence has been lost, stolen or destroyed.
Note 1 A fee may be determined under s 221 for this
section.
Note 2 The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
(3) A licence issued under this section must be issued for the remainder
of the period of the licence it replaces.
(1) A licensee may apply to the chief executive to surrender the
licensee’s licence.
(2) The licensee must, with the application—
(a) return the licence to the chief executive; or
(b) if the licence has been lost, stolen or destroyed—give the chief
executive a statement, verified by a statutory declaration signed by the
licensee, that the licence has been lost, stolen or destroyed.
Note The Statutory Declarations Act 1959 (Cwlth) applies to
the making of statutory declarations under ACT laws.
62 Chief
executive may ask for information etc from licensee
(1) This section applies if a change mentioned in section 57 (1) (Licensee
to keep chief executive informed) happens in relation to a licence, whether or
not the licensee gives notice of the change to the chief executive under section
57.
(2) To decide whether, because of the change, the licensee has ceased to
be a suitable person to hold the licence or has failed, or is failing, to comply
with this Act, the chief executive may give the licensee a notice under section
51 (Power to request information from applicants, licensees and
others).
(3) The licensee must comply with a notice given to the licensee under
section 51.
Part
4.3 Offences relating to
licences
63 Failure
to comply with conditions of licence
(1) A licensee commits an offence if—
(a) the licensee’s licence is subject to a condition; and
(b) the licensee fails to comply with a requirement of the
condition.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability
offence.
64 Return
of amended, suspended or cancelled licences
(1) A licensee commits an offence if—
(a) the licensee’s licence is—
(i) amended under section 58 (Licence—application for amendment by
licensee); or
(ii) amended under section 59 (Licence—imposition etc of conditions
on chief executive’s initiative); or
(iii) amended, suspended or cancelled under part 4.4 (Disciplinary
action); and
(b) the licensee fails to return the licence to the chief executive as
soon as practicable (but within 7 days) after the day the licensee is told
about the chief executive’s action.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability
offence.
65 Pretending
to hold licence
(1) A person commits an offence if the person pretends to be the holder of
a licence.
Maximum penalty: 100 penalty units.
(2) A person commits an offence if the person pretends to be authorised to
do something under a licence.
Maximum penalty: 100 penalty units.
66 Offence
to allow someone else to use licence
A licensee commits an offence if the licensee lets someone else use the
licensee’s licence.
Maximum penalty: 100 penalty units.
Part
4.4 Disciplinary
action
67 Grounds
for disciplinary action
The chief executive may take disciplinary action against—
(a) a licensee, if the chief executive believes, on reasonable grounds,
that the licensee—
(i) is not, or is no longer, a suitable person to hold a licence;
or
(ii) has contravened, or is contravening, this Act; or
Note 1 For the meaning of suitable person, see s
49.
Note 2 For the meaning of disciplinary action, see s
68 (3) and (4).
(b) a former licensee, if the chief executive believes, on reasonable
grounds, that the former licensee contravened this Act while holding a licence,
whether or not the former licensee has been convicted or found guilty of an
offence for the contravention.
68 Taking
disciplinary action
(1) If the chief executive proposes to take disciplinary action in
relation to a licensee, or a former licensee, the chief executive must give the
person a written notice (a disciplinary notice)
that—
(a) states the proposed action (including any proposed disqualification
period, suspension period or amendment of a licence); and
(b) states the grounds for the proposed action; and
(c) tells the person that the person may, within 14 days after the day the
person receives the notice, give a written response to the chief executive about
the notice.
(2) In deciding whether to take disciplinary action, the chief executive
must consider any response given to the chief executive in accordance with the
notice under subsection (1) (c).
(3) If the chief executive is satisfied that a ground for taking action
under this section has been established in relation to a licensee, the chief
executive may do 1 or more of the following (each of which is disciplinary
action):
(a) reprimand the licensee;
(b) require the licensee to complete a stated course of training to the
satisfaction of the chief executive or another stated person;
(c) amend the licence, including by imposing a condition on the licence or
amending an existing condition;
(d) suspend the licence, or a particular handling authority under the
licence, for a stated period or until a stated event happens;
(e) cancel the licence, or a particular handling authority under the
licence;
(f) cancel the licence and disqualify the licensee from applying for a
licence, or a particular kind of licence for a stated period or until a stated
event happens.
(4) If the chief executive is satisfied that a ground for taking action
under this section has been established in relation to a former licensee, the
chief executive may do 1 or more of the following (each of which is
disciplinary action):
(a) reprimand the former licensee;
(b) disqualify the former licensee from applying for a licence, or a
particular kind of licence—
(i) for a stated period; or
(ii) until the former licensee completes a stated course of training to
the satisfaction of the chief executive or someone else; or
(iii) until a stated event happens.
(5) The chief executive must give the person written notice of the chief
executive’s decision.
(6) A decision to take action under subsection (3) or (4) takes effect
14 days after the day when notice of the decision is given to the person
or, if the notice states a later date of effect, that date.
Note For the requirement to return of an amended, suspended or
cancelled licence to the chief executive, see s 64.
69 Immediate
suspension of licence
(1) This section applies if the chief executive has given, or is
considering whether to give, a disciplinary notice to a licensee.
(2) The chief executive may give the licensee a written notice (an
immediate suspension notice) suspending the licence or a
particular handling authority under the licence.
Note For the meaning of handling authority, see s 56
(1) (d).
(3) However, the chief executive may suspend the licence or handling
authority under subsection (2) only if—
(a) the chief executive has taken into account the circumstances leading
to the decision to give or consider giving the disciplinary notice and the
grounds stated, or that may be stated, in the disciplinary notice; and
(b) the chief executive believes, on reasonable grounds, that it is in the
public interest that the licence or handling authority be suspended as soon as
practicable before a decision is made whether or not to take action against the
licensee under section 68.
(4) If an immediate suspension notice is given to the licensee, the
licensee’s licence, or the handling authority, is suspended when the
notice is given to the licensee.
Note For the return of the licence to the chief executive, see s
64.
(5) If the licensee is given an immediate suspension notice because the
chief executive is considering whether to give a disciplinary notice to the
licensee, the chief executive must, as soon as practicable, give a disciplinary
notice to the licensee or tell the licensee in writing that a disciplinary
notice will not be given to the licensee.
(6) An immediate suspension notice ends—
(a) if the licence is cancelled or suspended under section 68
(3)—when the cancellation or suspension takes effect; or
(b) if a condition is imposed on the licence to which the notice relates,
or a condition of the licence is amended—when the condition or amended
condition takes effect; or
(c) in any other case—when the person is given written notice under
section 68 (5) of the decision made on the disciplinary notice or the
chief executive tells the licensee that a disciplinary notice will not be given
to the licensee.
70 Effect
of suspension of licence
(1) A suspended licence or handling authority does not authorise the
licensee to carry on an activity authorised by the licence or handling authority
during the suspension.
(2) If the chief executive suspends a licence or handling authority, the
licensee is, during the suspension—
(a) taken not to hold the licence or handling authority; and
(b) disqualified from applying for a licence or handling authority of that
kind.
(3) If the chief executive suspends a handling authority under a licence,
the licence is taken to be amended under this part to give effect to the
suspension.
71 Action
by chief executive in relation to amended, suspended or cancelled
licence
(1) If a licence is amended under this part, the chief executive must, as
soon as practicable after the licence has been returned to the chief executive,
amend the licence or give the licensee a replacement licence showing the
amendment.
Note For the requirement to return an amended or suspended licence
to the chief executive, see s 64.
(2) If a licence is suspended under this part and the suspension ends
before the end of the term of the licence, the chief executive must return the
licence to the licensee.
(3) If a handling authority under a licence is suspended under this part
and the suspension ends before the end of the term of the licence, the chief
executive must, as soon as practicable after the licence has been returned to
the chief executive, amend the licence or give the licensee a replacement
licence that includes the handling authority.
72 Publication
of disciplinary decision by chief executive
(1) If the chief executive takes disciplinary action against a licensee or
former licensee, the chief executive may publish the following information in a
way that the chief executive considers appropriate:
(a) particulars that allow the public to identify the licensee or former
licensee;
(b) details of the disciplinary action;
(c) an outline of why the disciplinary action was taken;
(d) any other information in relation to the disciplinary action and the
safety of the dangerous substance concerned that the chief executive considers
appropriate.
Examples of publication
1 a press release
2 an article in a document published by the Territory or a Territory
authority
3 an advertisement in a newspaper circulating in the ACT
Examples for par (a)
1 the licensee’s name and ACN (if any)
2 any name (and, if relevant, ACN) used in the past by the licensee
3 the licensee’s current and previous business addresses
Note An example is part of the regulations, is not exhaustive and
may extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, the information may be published only if—
(a) the time for any review or appeal in relation to the disciplinary
action has ended and no application for review or appeal has been made;
or
(b) an application for review or appeal has been made and—
(i) the application is withdrawn, struck out or discontinued or lapses;
or
(ii) the disciplinary action is confirmed on review and the time for
appeal has ended without an application for an appeal being made.
(3) If the disciplinary action is set aside on review or appeal, the
information must not be published.
(4) If the disciplinary action is changed on review or appeal (for
example, different disciplinary action is substituted), this section applies in
relation to the action as changed.
(5) For the Civil Law (Wrongs) Act 2002, section 128 (Publication
of a proceeding of public concern)—
(a) the disciplinary action is taken to be a proceeding of public concern;
and
(b) the information published by the chief executive under this section
about the disciplinary action is taken to be a fair report of a proceeding of
public concern.
Chapter
5 Other serious
offences
Part
5.1 Prohibited and controlled
dangerous substances
In this Act:
controlled dangerous substance means an explosive or other
dangerous substance declared under the regulations to be a controlled dangerous
substance.
explosive means a dangerous substance declared under the
regulations to be an explosive.
prohibited dangerous substance means—
(a) an explosive declared under the regulations to be a prohibited
explosive; or
(b) any other dangerous substance declared under the regulations to be a
prohibited dangerous substance.
74 Unauthorised
manufacture of certain dangerous substances
(1) A person commits an offence if—
(a) the person manufactures a prohibited dangerous substance;
and
(b) the person is not authorised under a licence, or under the
regulations, to manufacture the substance.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
(2) A person commits an offence if—
(a) the person manufactures a controlled dangerous substance;
and
(b) the person is not authorised under a licence, or under the
regulations, to manufacture the substance.
Maximum penalty: 1 000 penalty units, imprisonment for 4 years or
both.
75 Unauthorised
import of certain dangerous substances
(1) A person commits an offence if—
(a) the person imports a prohibited dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to import the substance.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
Note Import means import into the ACT (see dict).
(2) A person commits an offence if—
(a) the person imports a controlled dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to import the substance.
Maximum penalty: 1 000 penalty units, imprisonment for 4 years or
both.
76 Unauthorised
supply of certain dangerous substances
(1) A person commits an offence if—
(a) the person supplies a prohibited dangerous substance to someone else
(the recipient); and
(b) the person is not authorised under a licence, or under the
regulations, to supply the substance to the recipient.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
(2) A person commits an offence if—
(a) the person supplies a controlled dangerous substance to someone else
(the recipient); and
(b) the person is not authorised under a licence, or under the
regulations, to supply the substance to the recipient.
Maximum penalty: 1 000 penalty units, imprisonment for 4 years or
both.
(3) A person commits an offence if—
(a) the person supplies a prohibited dangerous substance to someone else
(the recipient); and
(b) the recipient is not authorised under a licence, or under the
regulations, to receive the substance; and
(c) the person is reckless about whether the recipient is authorised under
the licence or the regulations to receive the substance.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
(4) A person commits an offence if—
(a) the person supplies a controlled dangerous substance to someone else
(the recipient); and
(b) the recipient is not authorised under a licence, or under the
regulations, to receive the substance; and
(c) the person is reckless about whether the recipient is authorised under
the licence or the regulations to receive the substance.
Maximum penalty: 1 000 penalty units, imprisonment for 4 years or
both.
77 Unauthorised
possession of certain dangerous substances
(1) A person commits an offence if—
(a) the person possesses a prohibited dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to possess the substance.
Maximum penalty: 2 000 penalty units, imprisonment for 7 years or
both.
(2) A person commits an offence if—
(a) the person possesses a controlled dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to possess the substance.
Maximum penalty: 500 penalty units, imprisonment for 2 years or
both.
(3) In this section:
possession, of a dangerous substance by a person,
includes—
(a) the person receiving or obtaining possession of the substance; and
(b) the person having control over the substance; and
(c) the person having joint possession of the substance with someone
else.
78 Unauthorised
storage of certain dangerous substances
(1) A person commits an offence if—
(a) the regulations require a dangerous substance to be stored in a
particular way; and
(b) the person stores the substance; and
(c) the person fails to store the substance in accordance with the
regulations.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability
offence.
79 Unauthorised
use of certain dangerous substances
(1) A person commits an offence if—
(a) the person uses a prohibited dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to use the substance.
Maximum penalty: 2 500 penalty units, imprisonment for 10 years or
both.
(2) A person commits an offence if—
(a) the person uses a controlled dangerous substance; and
(b) the person is not authorised under a licence, or under the
regulations, to use the substance.
Maximum penalty: 750 penalty units, imprisonment for 3 years or
both.
80 Unauthorised
carrying of certain dangerous substances
(1) A person commits an offence if—
(a) the regulations require a dangerous substance to be carried in a
particular way; and
(b) the person carries the substance; and
(c) the person fails to carry the substance in accordance with the
regulations.
Maximum penalty: 100 penalty units.
(2) An offence against this section is a strict liability
offence.
81 Unauthorised
disposal of dangerous substances, plant and systems
(1) A person commits an offence if—
(a) the regulations require a dangerous substance to be disposed of in a
particular way; and
(b) the person disposes of the substance; and
(c) the person fails to dispose of the substance in accordance with the
regulations.
Maximum penalty: 100 penalty units.
(2) A person commits an offence if—
(a) the regulations require plant or a system used for handling a
dangerous substance to be disposed of in a particular way; and
(b) the person disposes of the plant or system; and
(c) the person fails to dispose of the plant or system in accordance with
the regulations.
Maximum penalty: 100 penalty units.
(3) An offence against this section is a strict liability
offence.
82 Unauthorised
handling of dangerous substances generally
(1) A person commits an offence if—
(a) the regulations require a handling of a dangerous substance to be
authorised under a licence; and
(b) the person handles the substance; and
(c) the person is not authorised under a licence to handle the
substance.
Maximum penalty: 100 penalty units.
Note 1 Handling a dangerous substance includes importing,
manufacturing, storing, supplying, possessing, receiving or using the substance
(see s (4)).
Note 2 See the Road Transport Reform (Dangerous Goods) Act
1995 (Cwlth) for the transport of dangerous substances (other than
explosives, infectious substances and radioactive substances) that are
classified as dangerous goods under that Act.
Note 3 Territory laws have no effect to the extent that they are
inconsistent with a Commonwealth law (see Australian Capital Territory
(Self-Government) Act 1988 (Cwlth), s 28).
(2) An offence against this section is a strict liability
offence.
83 Handling
of certain dangerous substances to be notified
(1) A person in control of the handling of a dangerous substance commits
an offence if—
(a) the regulations require the handling of the substance to be notified
to the chief executive; and
(b) the person fails to ensure that the chief executive is notified of the
handling of the substance in accordance with the regulations.
Maximum penalty: 100 penalty units.
Note Handling a dangerous substance includes importing,
manufacturing, storing, supplying, possessing, receiving or using the substance
(see s (4)).
(2) An offence against this section is a strict liability
offence.
84 Certain
premises, plant or systems to be registered etc
(1) A person in control of premises where a dangerous substance is handled
commits an offence if—
(a) the regulations require the premises to be registered or notified
under the regulations; and
(b) the person fails to ensure that the premises are registered or
notified in accordance with the regulations.
Maximum penalty: 100 penalty units.
(2) A person in control of plant or a system for handling a dangerous
substance commits an offence if—
(a) the regulations require the plant or system to be registered or
notified under the regulations; and
(b) the person fails to ensure that the plant or system is registered or
notified in accordance with the regulations.
Maximum penalty: 100 penalty units.
(3) An offence against this section is a strict liability
offence.
Part
5.2 Preservation of site of dangerous
occurrence
85 Definitions
for pt 5.2
In this part:
authorised person means—
(a) an inspector; or
Note An inspector includes a police officer (see s 207
(1)).
(b) a person acting in accordance with an inspector’s directions;
or
(c) a person giving emergency medical assistance to an injured person;
or
(d) a member of the ambulance service or fire service.
site, of a dangerous occurrence at premises, means the part
of the premises where the occurrence happened.
site preservation period means the reasonable period notified
by the chief executive to a person in control of the premises where a dangerous
occurrence has happened or is happening.
86 Person
in control of premises to preserve site of dangerous
occurrence
(1) A person in control of premises where a dangerous occurrence has
happened or is happening commits an offence if the person fails to take all
reasonable steps to ensure that the site of the occurrence is not disturbed or
interfered with until after the end of the site preservation period.
Maximum penalty: 100 penalty units.
Note 1 An inspector may issue a prohibition notice in relation to
the site of a dangerous occurrence (see s 109 (b) (iii)).
Note 2 For the power of a coroner to exercise functions in relation
to the site of a dangerous occurrence, see the Coroners Act
1997.
(2) This section does not apply to anything done by an authorised
person.
(3) An offence against this section is a strict liability
offence.
87 Unauthorised
disturbance or interference with site of dangerous
occurrence
(1) A person commits an offence if—
(a) a dangerous occurrence has happened or is happening at premises;
and
(b) the person disturbs or interferes with the site of the occurrence;
and
(c) the site preservation period for the site has not ended.
Maximum penalty: 100 penalty units.
(2) This section does not apply to anything done by an authorised
person.
(3) An offence against this section is a strict liability
offence.
Chapter
6 Compliance
measures
Part
6.1 Information and
documents
88 Chief
executive may require answers to questions and production of
documents
(1) This section applies if the chief executive believes, on reasonable
grounds, that a person (the relevant person) may have contravened,
or may be contravening, a provision of this Act.
Note A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) The chief executive may, by written notice given to a person
(including the relevant person), require the person to attend before the chief
executive at a stated reasonable time and place to do either or both of the
following:
(a) answer questions that the chief executive considers necessary to
decide whether the relevant person has contravened or is contravening this
Act;
(b) produce the documents stated in the notice.
Note For how the notice may be served, see Legislation Act,
pt 19.5.
(3) The chief executive may require a person to produce a document under
subsection (2) (b) only if the chief executive considers the production
necessary to decide whether the relevant person has contravened or is
contravening this Act.
(4) The notice must—
(a) state that the requirement is made under this section; and
(b) contain a statement to the effect that failure to comply with the
notice is an offence; and
(c) if the notice requires the person to answer questions—
(i) contain a statement about the effect of section 92 (Privileges against
selfincrimination and exposure to civil liability); and
(ii) state that the person may attend with a lawyer.
(5) To remove any doubt, for this section, a person answers a question if
the person explains why the person or an entity did or did not do
something.
89 Compliance
with notice to produce
(1) This section applies if a person is required by a notice under
section 88 to produce a document but not to answer questions.
(2) The person is taken to have complied with the requirement to produce
the document if the person—
(a) does not attend before the chief executive; but
(b) gives the document to the chief executive before the time stated for
attendance in the notice.
90 Failure
to attend before chief executive or produce documents
(1) A person commits an offence if—
(a) the person is required by a notice under section 88 to attend and
answer questions before the chief executive; and
(b) the person fails to attend before the chief executive in accordance
with the notice.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the person is required by a notice under section 88 to produce a
stated document; and
(b) the person fails to produce the document.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
91 Attendance
before chief executive—offences
(1) A person commits an offence if—
(a) the person is required under section 88 to attend and answer questions
before the chief executive; and
(b) the person attends before the chief executive; and
(c) the chief executive requires the person to answer a question;
and
(d) the person fails to answer the question.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if—
(a) the person is required by a notice under section 88 to attend and
answer questions before the chief executive; and
(b) the person attends before the chief executive; and
(c) the person fails to continue to attend as reasonably required by the
chief executive until excused from further attendance.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
92 Privileges
against selfincrimination and exposure to civil liability
(1) This section applies if—
(a) a person is attending before the chief executive in accordance with a
requirement under section 88; and
(b) the chief executive requires the person to answer a
question.
(2) This section also applies if a person is required by a notice under
section 88 to produce a document.
(3) The person cannot rely on the common law privileges against
selfincrimination and exposure to the imposition of a civil penalty to refuse to
answer the question or produce the document.
(4) However, any information, document or thing obtained, directly or
indirectly, because of the giving of the answer or the production of the
document is not admissible in evidence against the person in a civil or criminal
proceeding, other than a proceeding for an offence against this part or the
Criminal Code, part 3.4 (False or misleading statements, information and
documents).
Part
6.2 Compliance
agreements
93 Meaning
of relevant responsible person for pt 6.2
In this part:
relevant responsible person, for a compliance agreement,
means the responsible person for a dangerous substance who enters into the
agreement.
94 Inspector
may seek compliance agreement
(1) This section applies if an inspector believes, on reasonable grounds,
that a provision of this Act has been, is being or may be contravened in
relation to a dangerous substance.
Note A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) The inspector may ask a responsible person for the dangerous substance
to enter into an agreement (a compliance agreement) in relation to
the contravention.
(3) If the responsible person agrees to enter into a compliance agreement,
the agreement must—
(a) state that it is a compliance agreement under this Act; and
(b) state the contravention of this Act in relation to which the agreement
is entered into; and
(c) state the period for which the agreement is to operate; and
(d) state the measures to be taken by the responsible person or anyone
else to ensure this Act is complied with and the times within which the measures
must be taken; and
(e) include a statement to the effect that each person who is required to
comply with a duty under this Act must comply with the duty whether or not
someone else may also be responsible for complying with the duty; and
(f) be signed by the inspector and the responsible person.
Examples of measures for par
(d)
1 the dangerous substance is to be handled only by people with a stated
qualification
2 the substance is to be handled at temperatures below 5°C
3 repair or replace particular premises or plant
4 develop, implement or amend a safety management system
Note An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The compliance agreement may include anything else the inspector and
the relevant responsible person consider appropriate.
(5) The inspector must give a copy of the compliance agreement to the
relevant responsible person.
95 Term
of compliance agreement
(1) A compliance agreement commences when the agreement is signed by the
inspector and relevant responsible person, or at any later time stated in the
agreement.
(2) The compliance agreement ends—
(a) at the end of the period of operation stated in the agreement;
or
(b) if the inspector and relevant responsible person agree to extend the
period of operation before the end of the stated period—at the end of the
extended period.
(3) If an inspector is satisfied that the compliance agreement has been
complied with before it ends, the inspector must revoke the agreement by written
notice given to the relevant responsible person.
96 Compliance
agreement not admission of fault etc
(1) This section applies if a responsible person for a dangerous substance
enters into a compliance agreement in relation to a contravention of this
Act.
(2) Entering into the compliance agreement—
(a) is not an express or implied admission of fault or liability by the
responsible person in relation to the contravention; and
(b) is not relevant to deciding fault or liability in relation to the
contravention.
(3) Also, evidence of the existence or contents of the compliance
agreement is not—
(a) admissible in a civil proceeding as evidence of the fault or liability
of a person in relation to the contravention; or
(b) admissible in a criminal proceeding in relation to the contravention;
or
(c) relevant to the taking of action under part 4.4 (Disciplinary action)
in relation to the contravention.
Note This section does not prevent the issue of an improvement
notice or prohibition notice in relation to the relevant contravention (see
Legislation Act, s 44 and s 197).
97 Notification
and display of compliance agreements
(1) This section applies to the relevant responsible person for a
compliance agreement.
(2) The person commits an offence if the person fails to—
(a) tell each person (an affected person) whose work is
affected by the measures to be taken under the agreement about the agreement,
including the measures; and
(b) give a copy of the agreement to each other person in control of each
of the premises where an affected person works.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that a
copy of the agreement is displayed, while the agreement is operating, in a
prominent place at or near each part of the premises affected by the
contravention of this Act in relation to which the agreement was entered
into.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability
offence.
98 Compliance
agreement not to be removed etc
(1) A person commits an offence if—
(a) a copy of a compliance agreement is displayed at a place;
and
(b) the person removes, alters, damages, defaces or covers the copy while
the agreement is operating.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability
offence.
Part
6.3 Improvement
notices
99 Meaning
of relevant responsible person for pt 6.3
In this part:
relevant responsible person, for an improvement notice, means
the person to whom the inspector gives the notice.
100 Giving
improvement notices
An inspector may give a notice (an improvement notice) to a
responsible person for a dangerous substance if the inspector believes, on
reasonable grounds, that a person has contravened, is contravening, or is likely
to contravene, this Act.
Note 1 For how documents may be served, see Legislation Act, pt
19.5.
Note 2 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
101 Contents
of improvement notices
(1) An improvement notice may require the relevant responsible person to
do 1 or more of the following:
(a) put stated premises, plant or a system for handling the dangerous
substance into a safe condition, including, for example, by repairing or
replacing the premises, plant or system;
(b) prepare, implement or amend a safety management system in relation to
the handling of the substance;
(c) take stated measures to carry out the requirements of a safety
management system in relation to the handling of the substance;
(d) destroy or otherwise dispose of the substance;
(e) comply with a particular provision of this Act in relation to the
handling of the substance;
(f) do anything else to ensure that this Act is complied with in relation
to the substance.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) Also, the improvement notice must—
(a) state that it is an improvement notice under this Act; and
(b) state the contravention of this Act in relation to which the notice is
given; and
(c) state the period for complying with the notice; and
(d) include a statement to the effect that each person who is required to
comply with a duty under this Act must comply with the duty whether or not
someone else may also be responsible for complying with the duty.
(3) The improvement notice may include any other information the inspector
considers appropriate.
102 Extension
of time for compliance with improvement notices
(1) This section applies if a responsible person for a dangerous substance
has been given an improvement notice.
(2) An inspector may, by written notice given to the responsible person,
extend the compliance period for the improvement notice on the inspector’s
own initiative or if asked by the responsible person.
(3) However, the inspector may extend the compliance period only if the
period has not ended.
(4) In this section:
compliance period means the period stated in the improvement
notice under section 101 (2) (c), and includes that period as extended under
this section.
103 Notification
and display of improvement notices
(1) This section applies to the relevant responsible person for an
improvement notice.
(2) The person commits an offence if the person fails to—
(a) tell each person (an affected person) whose work is
affected by anything required to be done under the notice about the notice,
including the things required to be done under it; and
(b) give a copy of the notice to each person in control of each of the
premises where an affected person works.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that a
copy of the notice is displayed, while the notice is in force, in a prominent
place at or near each part of the premises affected by the contravention of this
Act in relation to which the notice was given.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability
offence.
104 Improvement
notice not to be removed etc
(1) A person commits an offence if—
(a) a copy of an improvement notice is displayed at a place; and
(b) the person removes, alters, damages, defaces or covers the copy while
the notice is in force.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability
offence.
105 Scope
of improvement notices
(1) An improvement notice for a dangerous substance may relate to 1 or
more of the following:
(a) premises, or part of premises, for handling the substance;
(b) plant or a system for handling the substance;
(c) handling the substance in a stated way or for a stated
purpose.
Note Premises includes any land, structure or vehicle and any
part of an area of land, a structure or vehicle (see dict).
(2) A requirement in an improvement notice to destroy or otherwise dispose
of a dangerous substance may state either or both of the following:
(a) how the substance must be destroyed or otherwise disposed of;
(b) how the substance must be kept until it is destroyed or otherwise
disposed of.
Note A requirement to destroy or otherwise dispose of a substance
may be made under s 101 (1) (d).
106 Revocation
of improvement notice on compliance
If an inspector is satisfied that an improvement notice has been complied
with, the inspector must revoke the notice by written notice given to the
relevant responsible person.
107 Contravention
of improvement notices
(1) The relevant responsible person for an improvement notice commits an
offence if the person fails to take all reasonable steps to comply with a
requirement of the notice.
Maximum penalty: 100 penalty units.
Note If an improvement notice is given to 2 or more responsible
people for a dangerous substance, each of them must comply with the notice
(see s 21).
(2) An offence against this section is a strict liability
offence.
Part
6.4 Prohibition
notices
108 Definitions
for pt 6.4
In this part:
basis, for giving a prohibition notice,
means—
(a) the contravention of this Act in relation to which the prohibition
notice was given (see section 109 (a)); or
(b) the risk to be prevented or minimised under the notice (see section
109 (b) (i)); or
(c) the inspection, testing or monitoring to be allowed under the notice
(see section 109 (b) (ii)); or
(d) the accident or other incident to be investigated under the notice
(see section 109 (b) (iii)).
dangerous substance, to which a prohibition notice relates,
means the dangerous substance stated in the notice for section 110 (2) (a)
(ii).
premises, to which a prohibition notice
relates, means premises stated in the notice for section 110 (2) (a)
(ii).
relevant responsible person, for a prohibition notice, means
the responsible person for a dangerous substance to whom the notice is
given.
109 Giving
prohibition notices
An inspector may give a notice (a prohibition notice) to a
responsible person for a dangerous substance at premises if the inspector
believes, on reasonable grounds—
(a) that someone at the premises has contravened, is contravening, or is
likely to contravene, this Act in relation to the substance; or
(b) that giving the notice is necessary—
(i) to prevent or minimise risk of serious harm to the health or safety of
people, or substantial damage to property or the environment, from a hazard at
the premises associated with the substance; or
(ii) to allow the inspection, testing or monitoring of anything at the
premises used in relation to the handling of the substance; or
(iii) to allow the investigation of an accident or other incident
(including a dangerous occurrence) at the premises in relation to the
substance.
Example for par (b)
(ii)
to allow for routine compliance testing of plant and systems if the
responsible person has not voluntarily agreed to the plant or system being
shutdown for the test
Note 1 For how documents may be served, see Legislation Act, pt
19.5.
Note 2 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
Note 3 An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
110 Contents
of prohibition notices
(1) A prohibition notice in relation to a dangerous substance at premises
may require a responsible person for the substance not to do 1 or more of the
following until the notice ends:
(a) use stated premises, plant, systems, substances or things;
(b) disturb stated premises, plant, systems, substances or
things;
(c) something else at or in relation to the premises.
Note Premises includes any land, structure or vehicle and any
part of an area of land, a structure or vehicle (see dict).
(2) Also, the prohibition notice—
(a) must state the following:
(i) that it is a prohibition notice under this Act;
(ii) the dangerous substance and premises to which the notice
relate;
(iii) the basis for giving the notice; and
(b) if the notice is given under section 109 (a) or (b) (i) (which are
about notices given in relation to contravention of this Act or to prevent or
minimise risk of serious harm or substantial damage)—must include a
statement to the effect that the relevant responsible person may ask for a
reinspection of the situation or circumstances that caused the notice to be
given if the person considers that the situation or circumstances comply with
this Act; and
(c) if the notice is given under section 109 (b) (ii) or (iii) (which are
about notices given to allow inspection, testing, monitoring and
investigation)—must state the reasonable period that the inspector
considers necessary to carry out the inspection, testing, monitoring or
investigation to which the notice relates.
111 Extension
of time for inspection etc
(1) This section applies if a prohibition notice is given under
section 109 (b) (ii) or (iii).
(2) An inspector may, by written notice given to the relevant responsible
person for the prohibition notice, extend the relevant period for the notice on
the inspector’s own initiative or if asked by the relevant responsible
person.
(3) However, the inspector may extend the relevant period only if the
period has not ended.
(4) In this section:
relevant period means the period stated in the prohibition
notice under section 110 (2) (c), and includes that period as extended under
this section.
112 Notification
and display of prohibition notices
(1) This section applies to the relevant responsible person for a
prohibition notice.
(2) The person commits an offence if the person fails to—
(a) tell each person who works at the premises to which the notice relates
about the notice, including anything required to be done under it; or
(b) give a copy of the notice to each other responsible person for the
dangerous substance to which the notice relates.
Maximum penalty: 20 penalty units.
(3) The person commits an offence if the person fails to ensure that a
copy of the prohibition notice is displayed in a prominent place, at or near
each part of the premises to which the notice relates, while the notice is in
force.
Maximum penalty: 20 penalty units.
(4) An offence against this section is a strict liability
offence.
113 Prohibition
notice not to be removed etc
(1) A person commits an offence if—
(a) a copy of a prohibition notice is displayed at a place; and
(b) the person removes, alters, damages, defaces or covers the copy while
the notice is in force.
Maximum penalty: 20 penalty units.
(2) An offence against this section is a strict liability
offence.
114 Scope
of prohibition notices
A prohibition notice for a dangerous substance may relate to either or both
of the following:
(a) plant or a system for handling the substance;
(b) handling of the substance in a stated way or for a stated
purpose.
115 Ending
of prohibition notices for contravention of Act etc
(1) This section applies to a prohibition notice if the notice was given
under section 109 (a) or (b) (i) (which are about notices given in relation to
contravention of this Act or to prevent or minimise risk of serious harm or
substantial damage).
(2) The prohibition notice ends when the notice is revoked under section
117.
116 Request
for reinspection
(1) This section applies to a prohibition notice given under
section 109 (a) or (b) (i).
(2) The relevant responsible person for the prohibition notice may ask the
chief executive, in writing, for a reinspection of the situation or
circumstances that caused the notice to be given if the person considers that
the situation or circumstances comply with this Act.
(3) If the request relates to a vehicle or equipment, the vehicle or
equipment must be made available for reinspection where it was originally
inspected or at another place agreed to by an inspector.
117 Revocation
on reinspection
(1) This section applies if a request has been made under section
116.
(2) If the inspector was carries out the reinspection is satisfied that
there are no grounds for the prohibition notice to continue to operate, the
inspector may revoke the notice by written notice given to the relevant
responsible person for the prohibition notice.
(3) Also, the prohibition notice is taken to be revoked on the
3rd business day after the day the request
for reinspection is received by the chief executive if—
(a) an inspector does not make the reinspection within 2 business days
after day the request is received; and
(b) the person who made the request is not responsible, completely or
partly, for the delay in making the reinspection.
Note For the meaning of business day, see Legislation
Act, dict, pt 1.
(4) Subsection (3) does not prevent an improvement notice or another
prohibition notice being given to the same person in relation to the same
contravention of this Act.
118 Ending
of prohibition notices given for inspection etc
(1) This section applies to a prohibition notice if the notice was given
under section 109 (b) (ii) or (iii) (which are about notices given to allow
inspection, testing, monitoring and investigation).
(2) The prohibition notice ends at the end of the period stated in the
notice under section 110 (2) (c) (Contents of prohibition notices) or, if the
period is extended under section 111, the end of the extended period.
119 Contravention
of prohibition notices
(1) A relevant responsible person for a dangerous substance to which a
prohibition notice is given commits an offence if the person fails to take all
reasonable steps to ensure the notice is not contravened.
Maximum penalty: 200 penalty units.
(2) An offence against this section is a strict liability
offence.
120 Request
for compensation for prohibition notice
(1) This section applies if—
(a) a prohibition notice is given in relation to premises; and
(b) a person suffers loss or expense because of the giving of the notice;
and
(c) the person considers that there were insufficient grounds for giving
the notice.
(2) The person may apply, in writing, to the Minister for
compensation.
(3) The application must give reasons why the person considers that there
were insufficient grounds for giving the prohibition notice.
121 Compensation
for prohibition notice
(1) This section applies if a person applies under section 120 for
compensation in relation to the giving of a prohibition notice.
(2) If, after considering the application, the Minister is satisfied that
there were insufficient grounds for giving the prohibition notice, the Territory
must pay the person the reasonable compensation decided by the
Minister.
(3) However, compensation is not payable to the person—
(a) in relation to any loss or expense suffered by the person because of
an act or omission of the person; or
(b) if the person caused or contributed to the situation or circumstances
that caused the prohibition notice to be given.
(4) The Minister must give the person written notice of the
Minister’s decision on the application.
(5) If the Minister does not decide the application within 28 days after
the day the Minister receives the application, the Minister is taken to have
refused to pay compensation.
Part
6.5 Enforceable
undertakings
122 Definitions
for pt 6.5
In this part:
alleged contravention—see section 123 (3)
(b).
enforceable undertaking means a safety undertaking that has
been accepted under section 124.
relevant person, for an enforceable undertaking, means the
person who gave the undertaking.
safety undertaking—see section 123 (2).
123 Making
of safety undertakings
(1) This section applies if the chief executive alleges that a person has
contravened a provision of this Act in relation to a dangerous
substance.
Note A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) The person may give the chief executive a written undertaking (a
safety undertaking) to comply with the provision in relation to
the substance.
(3) The safety undertaking must—
(a) state that it is an enforceable undertaking under this Act;
and
(b) acknowledge that the chief executive alleges that the person has
contravened a stated provision of this Act (the alleged
contravention); and
(c) identify the facts and circumstances
of the alleged contravention; and
(d) include 1 or more undertakings relating to the alleged contravention;
and
(e) include a statement to the effect that each person who is required to
comply with a duty under this Act must comply with the duty whether or not
someone else may also be responsible for complying with the duty.
Examples of
undertakings
1 to cease a certain conduct
2 to take particular action to compensate people adversely affected by a
contravention of this Act
3 to take particular action to rectify a state of affairs that arose as a
direct or indirect result of the contravention
4 to take particular action (including implementing particular systems) to
prevent future contraventions of this Act
5 to implement publicity or education programs
Note An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
124 Acceptance
of safety undertaking
(1) The chief executive may accept a safety undertaking by written notice
given to the person who gave the undertaking.
(2) On the acceptance of the safety undertaking, the undertaking becomes
an enforceable undertaking.
125 Withdrawal
from or amendment of enforceable undertaking
(1) A relevant person for an enforceable undertaking may withdraw from or
amend the undertaking only with the chief executive’s written
agreement.
(2) However, the enforceable undertaking may not be amended to provide for
a different alleged contravention.
126 Term
of enforceable undertaking
(1) A safety undertaking is enforceable from the time it becomes an
enforceable undertaking.
(2) The chief executive may end an enforceable undertaking by written
notice to the relevant person for the undertaking if satisfied that the
undertaking is no longer necessary or desirable.
(3) The chief executive may act under subsection (2) on the chief
executive’s own initiative or on the application of the relevant person
for the enforceable undertaking.
(4) The undertaking ends when the relevant person for the enforceable
undertaking receives the chief executive’s notice.
127 Safety
undertaking not admission of fault etc
(1) This section applies if a person gives the chief executive a safety
undertaking, whether or not the undertaking is accepted by the chief
executive.
(2) Giving the safety undertaking—
(a) is not an express or implied admission of fault or liability by the
person in relation to the alleged contravention; and
(b) is not relevant to deciding fault or liability in relation to the
alleged contravention.
128 Contravention
of enforceable undertakings
(1) If the chief executive believes, on reasonable grounds, that an
enforceable undertaking has been contravened by anyone, the chief executive may
apply to the Magistrates Court for an order under subsection (2).
(2) If the Magistrates Court is satisfied that the enforceable undertaking
has been contravened, the court may make 1 or more of the following
orders:
(a) an order requiring the relevant person for the undertaking to ensure
that the undertaking is not contravened;
(b) an order requiring the relevant person for the undertaking to pay to
the Territory the amount assessed by the court as the value of the benefits
anyone derived, directly or indirectly, from the contravention of the
undertaking;
(c) an order that the court considers appropriate requiring the relevant
person for the undertaking to compensate someone who has suffered loss or damage
because of the contravention of the undertaking;
(d) any other order that the court considers appropriate.
(3) A person commits an offence if the person fails to take all reasonable
steps to comply with an order under subsection (2).
Maximum penalty: 200 penalty units.
(4) An offence against this section is a strict liability
offence.
129 Injunctions
to restrain offences against Act
(1) This section applies if a person has committed, is committing, or is
likely to commit, an offence against this Act.
Note 1 A reference to an offence against a Territory law includes a
reference to an offence against the Criminal Code, part 2.4 (Extensions of
criminal responsibility) or the Crimes Act 1900, section 181 (Accessory
after the fact) that relates to the Territory law (see Legislation Act, s
189).
Note 2 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) The chief executive or any other interested person may apply to the
Magistrates Court for an injunction.
(3) On application under subsection (2), the Magistrates Court may grant
an injunction restraining the person from contravening this Act (including by
requiring the person to do something).
(4) The Magistrates Court may grant the injunction—
(a) whether or not it appears to the court that the person intends to
contravene this Act, contravene this Act again or continue to contravene this
Act; and
(b) whether or not the person has previously contravened this Act;
and
(c) whether or not there is a likelihood of the health or safety of a
person being affected by, or property or the environment being damaged by, a
hazard if the person contravenes this Act; and
(d) whether or not a proceeding for an offence against this Act has begun
or is about to begin.
(5) The Magistrates Court may grant an interim injunction restraining the
person from committing an offence against this Act (including requiring the
person to do something) before deciding an application for an injunction under
this section.
130 Enforcement
of injunctions
The Magistrates Court has the same powers as the Supreme Court to enforce
an injunction (including an interim injunction) made under this part.
131 Amendment
or discharge of injunctions
The Magistrates Court may amend or discharge an injunction (including an
interim injunction) made under this part on the application of the chief
executive or any other interested person.
132 Interim
injunctions—undertakings about damages
(1) If the chief executive applies for an injunction under this part, the
Magistrates Court must not require the chief executive to give an undertaking
about costs or damages as a condition of granting an interim
injunction.
(2) The Magistrates Court must accept an undertaking from the chief
executive about costs or damages, and not require a further undertaking from
anyone else, if—
(a) the applicant for an injunction under this part is not the chief
executive; and
(b) the court would, apart from this subsection, require the applicant to
give an undertaking about costs or damages; and
(c) the chief executive gives the undertaking.
133 Magistrates
Court’s other powers not limited
(1) The powers given to the Magistrates Court under this part are in
addition to any other powers of the court.
(2) In particular, an application to the Magistrates Court for an
injunction under this part may be made without notice to the person against whom
the injunction is sought.
Part
6.7 Taking and analysis of
samples
134 Inspector
may buy samples without complying with pt 6.7
This part does not stop an inspector from buying a sample of a substance
for analysis for the routine monitoring of compliance with this Act without
complying with the requirements of this part.
Note For the admissibility of the analysis of a sample of a
substance taken by an inspector, see s 204.
135 Person
in control etc to be told sample to be analysed
(1) This section applies if an inspector proposes to take, or takes, a
sample of a substance for analysis from premises where a dangerous substance is
handled.
(2) Before or as soon as practicable after taking the sample, the
inspector must tell a person in charge of the premises of the inspector’s
intention to have the sample analysed.
(3) If a person in charge is not present or readily available, the
inspector must instead tell the person from whom the sample was obtained of the
inspector’s intention to have the sample analysed.
(1) This section applies if an inspector takes a sample of a substance for
analysis from premises where a dangerous substance is handled.
(2) The inspector must pay, or offer to pay, to the person from whom the
sample is taken—
(a) the amount (if any) prescribed under the regulations as the amount
payable for the sample; or
(b) if no amount is prescribed—the current market value of the
sample.
137 Samples
from packaged substances
If a package of a substance contains 2 or more smaller packages of the
same substance, the inspector may take 1 of the smaller packages for
analysis.
138 Procedures
for dividing samples
(1) This section applies to a sample of a substance being taken by an
inspector for analysis and is subject to section 139.
(2) The inspector must—
(a) divide the sample into 3 separate parts, and mark and seal or fasten
each part; and
(b) leave 1 part with the person told under section 135 (Person in control
etc to be told sample to be analysed) of the inspector’s intention to have
the sample analysed; and
(c) keep 1 of the parts for analysis; and
(d) keep 1 part for future comparison with the other parts of the
sample.
(3) If a sample of a substance taken by an inspector is in the form of
separate or severable objects, the inspector—
(a) may take a number of the objects; and
(b) divide them into 3 parts each consisting of 1 or more of the objects,
or of the severable parts of the objects, and mark and seal or fasten each part;
and
(c) deal with the sample under subsection (2) (b) to (d).
(1) This section applies to a sample of a substance being taken by an
inspector for analysis if dividing the substance into 3 separate parts would, in
the inspector’s opinion—
(a) so affect or impair the composition or quality of the sample as to
make the separate parts unsuitable for accurate analysis; or
(b) result in the separate parts being of an insufficient size for
accurate analysis; or
(c) otherwise make the sample unsuitable for analysis (including a method
of analysis prescribed under the regulations for the substance in relation to
which the sample was taken).
(2) The inspector may take as many samples as the inspector considers
necessary to allow an accurate analysis to be made, and may deal with the sample
or samples in any way that is appropriate in the circumstances, instead of
complying with section 138.
140 Certificates
of analysis by authorised analysts
(1) The analysis of a sample of a substance for the chief executive must
be carried out by, or under the supervision of, an authorised analyst.
(2) The authorised analyst must give to the chief executive a certificate
of analysis that—
(a) is signed and dated by the analyst; and
(b) contains a written report of the analysis that sets out the findings;
and
(c) identifies the method of analysis.
Note 1 If a form is approved under s 222 for the certificate, the
form must be used.
Note 2 For the evidentiary status of a certificate under this
section, see s 203.
Chapter
7 Enforcement
powers
In this chapter:
connected—a thing is connected with an
offence if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence;
or
(c) it was used, is being used, or is intended to be used, to commit the
offence.
data includes—
(a) information in any form; and
(b) a program (or part of a program).
data storage device means a thing containing, or designed to
contain, data for use by a computer.
offence includes an offence that there are reasonable grounds
for believing has been, is being, or will be, committed.
person assisting, in relation to a search warrant, means a
person who has been authorised by an inspector to assist in executing the
warrant.
search warrant means a warrant issued under part 7.3 (Search
warrants) that is in force.
Part
7.2 General powers of
inspectors
142 General
power to enter premises
(1) For this Act, an inspector may—
(a) at any reasonable time, enter premises that the inspector believes, on
reasonable grounds, are—
(i) premises used in relation to the handling of dangerous substances;
or
(ii) premises where there are documents relating to the handling of
dangerous substances or plant or a system for handling dangerous substances;
or
(b) at any reasonable time, enter premises that the public is entitled to
use or that are open to the public (whether or not on payment of money);
or
(c) at any time, enter premises with the consent of a person in charge of
the premises; or
(d) enter premises in accordance with a search warrant; or
(e) at any time, enter premises if the inspector believes, on reasonable
grounds, that the circumstances are of such seriousness and urgency as to
require immediate entry to the premises without the authority of a search
warrant.
Note Premises includes any land, structure or vehicle and any
part of an area of land, a structure or vehicle (see dict).
(2) However, subsection (1) (a) does not authorise entry into a part of
premises that is being used only for residential purposes unless that part of
the premises is being used in relation to the handling of dangerous
substances.
(3) For subsection (1), an inspector may stop and detain a vehicle that
the inspector believes, on reasonable grounds—
(a) is carrying dangerous substances; or
(b) contains documents relating to the handling of dangerous substances or
plant or a system for handling dangerous substances.
(4) For subsection (3), the inspector—
(a) may direct the driver of the vehicle to move the vehicle to a place
(or another place) to which the public has access; and
(b) may exercise the inspector’s powers in relation to the vehicle
at the place; and
(c) must not detain the vehicle for longer than is reasonably necessary to
exercise the inspector’s powers under this chapter.
(5) An inspector may, without the consent of a person in charge of
premises, enter the land around the premises to ask for consent to enter the
premises.
(6) To remove any doubt, an inspector may enter premises under subsection
(1) without payment of any entry fee or other charge.
(7) For subsection (1) (e), the inspector may enter the premises with any
necessary assistance and force.
(8) In this section:
at any reasonable time means at any time—
(a) for subsection (1) (a) (i)—during normal business hours or any
other time when the premises are being used in relation to the handling of
dangerous substances; or
(b) for subsection (1) (a) (ii)—during normal business hours;
or
(c) for subsection (1) (b)—when the public is entitled to use the
premises, or when the premises are open to or used by the public, whether or not
on payment of money.
143 Production
of identity card
An inspector must not remain at premises entered under this chapter if the
inspector does not produce his or her identity card for inspection when asked by
a person in charge of the premises.
(1) When seeking the consent of a person in charge of premises to enter
the premises under section 142 (1) (c) (General power to enter premises), an
inspector must—
(a) produce his or her identity card; and
(b) tell the person—
(i) the purpose of the entry; and
(ii) that anything found and seized under this chapter may be used in
evidence in court; and
(iii) that consent may be refused.
(2) If the person in charge consents, the inspector must ask the person to
sign a written acknowledgment (an acknowledgment of
consent)—
(a) that the person was told—
(i) the purpose of the entry; and
(ii) that anything found and seized under this chapter may be used in
evidence in court; and
(iii) that consent may be refused; and
(b) that the person consented to the entry; and
(c) stating the time and date when consent was given.
(3) If the person in charge signs an acknowledgment of consent, the
inspector must immediately give a copy to the person.
(4) A court must find that a person in charge of premises did not consent
to an entry to the premises by an inspector under this chapter
if—
(a) the question whether the person consented to the entry arises in a
proceeding in the court; and
(b) an acknowledgment of consent for the entry is not produced in evidence
for the entry; and
(c) it is not proved that the person consented to the entry.
145 General
powers of inspectors—premises
An inspector who enters premises under this chapter may, for this Act, do 1
or more of the following in relation to the premises or anything at the
premises:
(a) examine anything at the premises;
(b) examine and copy, or take extracts from, documents relating
to—
(i) the handling of dangerous substances; or
(ii) plant or a system used for handling dangerous substances;
(c) examine and copy, or take extracts from, any packaging, labelling or
advertising material;
(d) open (or require to be opened) any container or package that the
inspector believes, on reasonable grounds—
(i) contains a dangerous substance or equipment; or
(ii) is, or has been, used in relation to the carrying of a dangerous
substance;
(e) open or operate (or require to be opened or operated) plant or a
system;
(f) take for analysis samples of water, soil or anything else that is part
of the environment to find out whether the environment poses a risk to the
health or safety of people;
(g) subject to part 6.7 (Taking and analysis of samples), take for
analysis samples of anything else (including any substance) at the
premises;
(h) carry out any other examination to find out whether this Act is being
complied with;
(i) take measurements, conduct tests and make sketches, drawings or any
other kind of record (including photographs, films, or audio, video or other
recordings);
(j) under section 152, seize a thing at the premises;
(k) take onto the premises any people, equipment or material the inspector
reasonably needs to exercise a power under this Act;
(l) require a person in charge of the premises, or anyone at the premises,
to give information, answer questions, or produce documents or anything else,
reasonably needed to exercise the inspector’s functions under this
Act;
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(m) require a person in charge of the premises, or anyone at the premises,
to give the inspector reasonable assistance to exercise a function under this
chapter.
Note 1 At premises includes in or on the premises (see
dict).
Note 2 Examine includes inspect, weigh, count, test or
measure (see dict).
Note 3 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
146 General
powers of inspectors for public places
(1) An inspector may exercise 1 or more of the powers mentioned in section
145 in relation to a substance at a public place if the inspector suspects, on
reasonable grounds, that the substance is a dangerous substance.
(2) This Act applies in relation to the exercise of a power under
subsection (1) as if—
(a) the public place were premises entered by the inspector under this
chapter; and
(b) all other necessary changes were made.
(3) Without limiting subsection (2), if a person is required to do
something by an inspector under subsection (1), the person need not comply with
the requirement if the inspector does not produce his or her identity card for
inspection when asked by the person.
(4) However, subsection (3) does not apply in relation to an inspector who
is a police officer in uniform.
147 Contravention
of requirement by inspector
A person must take all reasonable steps to comply with a requirement made
of the person under section 145 (l) or (m) (including a requirement made in
relation to a substance at a public place).
Maximum penalty: 50 penalty units.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
148 Power
to take action to prevent etc imminent risk
(1) This section applies if an inspector believes, on reasonable grounds
that—
(a) there is an imminent risk of serious harm to a person, or of
substantial damage to property or the environment, in relation to a dangerous
substance at premises or from plant or a system for handling a dangerous
substance at the premises; and
(b) it is necessary for the inspector to take action without delay to
prevent or minimise the risk.
Note 1 At premises includes in or on the premises (see
dict).
Note 2 Premises includes any land, structure or vehicle and
any part of an area of land, a structure or vehicle (see dict).
(2) This section applies even if an
inspector has given a responsible person for the premises an improvement or
prohibition notice in relation to the premises and the time for complying
with the notice has not ended.
(3) The inspector may take the action the
inspector believes, on reasonable grounds, is necessary to prevent or
minimise the risk.
(4) For subsection (3), the inspector may
enter the premises with any necessary assistance and force.
(5) In deciding the action to be taken,
the inspector must, to the extent that is reasonably practicable, consult with a
person in charge of the premises and the chief
executive.
(6) The action an inspector may take
includes asking someone the inspector believes, on reasonable grounds, has
appropriate knowledge and experience to help the
inspector prevent or minimise the
risk.
(7) If an inspector asks someone to help
under subsection (6), the person is taken to have the powers of an inspector to
the extent reasonably necessary for the person to help
prevent or minimise the risk.
(8) The power to enter premises under this section is additional to the
powers under section 142 (General power to enter premises).
149 Report
about action under s 148
As soon as practicable after taking action under section
148, an inspector must—
(a) prepare a report that outlines why the action was taken, the action
that was taken and any damage to property because of the action; and
(b) give a copy of the report to a person in charge of the premises and
the chief executive.
150 Recovery
of Territory’s costs for action under s 148
(1) This section applies if an inspector
takes action under section 148 (3) (Power to take action to prevent
etc imminent risk) to prevent or minimise a
risk.
(2) Costs incurred by the Territory in
relation to the action are a debt owing to the Territory by, and are recoverable
together and separately from, the following people:
(a) the person who owned the dangerous substance to which the risk
related;
(b) each person in control of the premises where the action was
taken;
(c) the person who caused the risk.
(3) However, costs are not recoverable
from a person if the person establishes
that—
(a) the risk was caused by the act or omission of someone other than the
person or the person’s employee or agent; and
(b) reasonable precautions were taken and appropriate diligence was
exercised by the person to avoid the act or omission.
(4) This section does not limit the powers the Territory has apart from
this Act.
151 Power
of entry etc in relation to dangerous occurrences
(1) This section applies if an inspector believes, on reasonable grounds,
that a dangerous occurrence has happened, is happening or is about to happen at
premises.
(2) The inspector may enter the premises to investigate the dangerous
occurrence, ensure the premises are safe and prevent the concealment, loss or
destruction of anything reasonably relevant to the investigation of the
occurrence.
(3) For subsection (2), the inspector may enter the premises with any
necessary assistance and force.
(4) The inspector may do anything reasonably necessary for a purpose
mentioned in subsection (2).
(5) If an inspector acts under this section in the absence of a person in
charge of the premises, the inspector must, when leaving the premises, leave a
written notice, secured in a conspicuous place, setting out—
(a) the inspector’s name; and
(b) the time and date of the entry; and
(c) the purpose of the entry; and
(d) how to contact the inspector.
(6) The power to enter premises under this section is additional to the
powers under section 142 (General power to enter premises).
152 Power
to seize things
(1) An inspector who enters premises under this chapter with the consent
of a person in charge of the premises may seize anything at the premises
if—
(a) the inspector is satisfied, on reasonable grounds, that the thing is
connected with an offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told
to the person when seeking the person’s consent.
(2) An inspector who enters premises under a warrant issued under this
chapter may seize anything at the premises that the inspector is authorised to
seize under the warrant.
(3) An inspector who enters premises under this chapter (whether with the
consent of a person in charge of the premises, under a warrant or otherwise) may
seize anything at the premises if satisfied, on reasonable grounds,
that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from
being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Also, an inspector who enters premises under this chapter (whether
with the consent of a person in charge of the premises, under a warrant or
otherwise) may seize anything at the premises if satisfied, on reasonable
grounds, that the thing poses a risk to the health or safety of people or of
damage to property or the environment.
(5) The powers of an inspector under subsections (3) and (4) are
additional to any powers of the inspector under subsection (1) or (2) or
any other Territory law.
153 Action
in relation to thing seized
(1) This section applies if an inspector has seized a thing from premises
(the place of seizure) under section 152.
(2) The inspector may—
(a) remove the thing from the place of seizure to another place;
or
(b) leave the thing at the place of seizure but restrict access to it;
or
(c) for a thing mentioned in section 154 (1)—destroy or otherwise
dispose of the thing under section 154 (5) (Power to destroy unsafe
things).
Example of how access may be
restricted
The inspector may—
(a) place the seized thing in a room or other enclosed area, compartment or
cabinet at the place of seizure; and
(b) fasten and seal the door or opening providing access to the room, area,
compartment or cabinet; and
(c) mark the door or opening in a way that indicates that access to it has
been restricted under this Act.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a
seized thing, to which access has been restricted under subsection (2);
and
(b) the person does not have an inspector’s approval to
interfere with the thing.
Maximum penalty: 100 penalty units.
(4) An offence against this section is a strict liability
offence.
154 Power
to destroy unsafe things
(1) This section applies to anything inspected or seized under this
chapter by an inspector if the inspector is satisfied, on reasonable grounds,
that the thing poses a risk to the health or safety of people or of damage to
property or the environment.
(2) The inspector may require a person in charge of the premises where the
thing is to destroy or otherwise dispose of the thing.
(3) The requirement may state 1 or more of the following:
(a) how the thing must be destroyed or otherwise disposed of;
(b) how the thing must be kept until it is destroyed or otherwise disposed
of;
(c) the period within which the thing must be destroyed or otherwise
disposed of.
(4) A person in charge of the premises where a thing is commits an offence
if the person contravenes a requirement given to the person under subsection
(2).
Maximum penalty: 100 penalty units.
(5) Alternatively, if the thing has been seized under this chapter, the
inspector may destroy or otherwise dispose of the thing.
(6) Costs incurred by the Territory in
relation to the disposal of a thing under subsection (5) are a debt owing to the
Territory by, and are recoverable together and separately from, the following
people:
(a) the person who owned the thing;
(b) each person in control of the premises where the thing was.
(7) An offence against this section is a strict liability
offence.
155 Power
to require name and address
(1) An inspector may require a person to state the person’s name and
home address if the inspector suspects, on reasonable grounds, that the person
is committing, is about to commit, or has just committed, an offence against
this Act.
Note A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) If an inspector makes a requirement of a person under
subsection (1), the inspector must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record the reasons.
(3) A person commits an offence if the person contravenes a requirement
under subsection (1).
Maximum penalty: 100 penalty units.
(4) However, a person is not required to comply with a requirement under
subsection (1) if, when asked by the person, the inspector does not produce his
or her identity card for inspection by the person.
(5) Subsection (4) does not apply in relation to an inspector who is a
police officer in uniform.
(6) An offence against this section is a strict liability
offence.
(7) In this section:
home address, of a person, means the address of the place
where the person usually lives.
156 Inspector’s
power to require production of licence
(1) This section applies if—
(a) an inspector suspects, on reasonable grounds, that the person is
handling, is about to handle, or has just handled, a dangerous substance;
and
(b) the regulations require the handling to be authorised under a
licence.
(2) The inspector may require the person to produce for inspection any
licence that authorises the person to handle the dangerous substance.
(3) If an inspector makes a requirement of a person under
subsection (2), the inspector must—
(a) tell the person the reasons for the requirement; and
(b) as soon as practicable, record the reasons.
(4) A person commits an offence if the person contravenes a requirement
under subsection (2).
Maximum penalty: 5 penalty units.
(5) However, a person is not required to comply with a requirement under
subsection (2) if, when asked by the person, the inspector does not produce his
or her identity card for inspection by the person.
(6) Subsection (5) does not apply in relation to an inspector who is a
police officer in uniform.
(7) An offence against this section is a strict liability
offence.
(8) In this section:
licence includes an authority (however described) issued
under a corresponding law that, under the regulations, authorises a person to
handle a dangerous substance.
(1) An inspector may apply to a magistrate for a warrant to enter
premises.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The magistrate may refuse to consider the application until the
inspector gives the magistrate all the information the magistrate requires about
the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are
reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence
against this Act; and
(b) the thing or activity is, or is being engaged in, at the premises, or
may be, or may be engaged in, at the premises within the next 14 days.
Note At premises includes in or on the premises (see
dict).
(5) The warrant must state—
(a) that an inspector may, with any necessary assistance and force, enter
the premises and exercise the inspector’s powers under this chapter;
and
(b) the offence for which the warrant is sought; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant’s issue,
that the warrant ends.
(6) In this section:
connected—an activity is connected with
an offence if—
(a) the offence has been committed by engaging or not engaging in it;
or
(b) it will provide evidence of the commission of the offence.
Note For the meaning of thing connected with an
offence, see s 141.
158 Warrants—application
made other than in person
(1) An inspector may apply for a warrant by phone, fax, radio or other
form of communication if the inspector considers it necessary because
of—
(a) urgent circumstances; or
(b) other special circumstances.
(2) Before applying for the warrant, the inspector must prepare an
application stating the grounds on which the warrant is sought.
(3) The inspector may apply for the warrant before the application is
sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy
to the inspector if it is practicable to do so.
(5) If it is not practicable to fax a copy to the
inspector—
(a) the magistrate must—
(i) tell the inspector what the terms of the warrant are; and
(ii) tell the inspector the date and time the warrant was issued;
and
(b) the inspector must complete a form of warrant (warrant
form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed
by the inspector, authorises the entry and exercise of the inspector’s
powers under this chapter.
(7) The inspector must, at the first reasonable opportunity, send to the
magistrate—
(a) the sworn application; and
(b) if the inspector completed a warrant form—the completed warrant
form.
(8) On receiving the documents, the magistrate must attach them to the
warrant.
(9) A court must find that a power exercised by an inspector was not
authorised by a warrant under this section if—
(a) the question arises in a proceeding before the court whether the
exercise of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a
warrant under this section.
159 Search
warrants—announcement before entry
(1) An inspector must, before anyone enters premises under a search
warrant—
(a) announce that the inspector is authorised to enter the premises;
and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if a person in charge of the premises, or someone else who apparently
represents the person, is present at the premises—identify himself or
herself to the person.
(2) The inspector is not required to comply with subsection (1) if
the inspector believes, on reasonable grounds, that immediate entry to the
premises is required to ensure—
(a) the safety of anyone (including the inspector or any person
assisting); or
(b) that the effective execution of the warrant is not
frustrated.
160 Details
of search warrant to be given to person in charge etc
If a person in charge of the premises, or someone else who apparently
represents the person, is present at the premises while a search warrant is
being executed, the inspector or a person assisting must make available to the
person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
161 Person
in charge entitled to be present during search etc
(1) If a person in charge of premises, or someone else who apparently
represents the person, is present at the premises while a search warrant is
being executed, the person in charge or the other person is entitled to observe
the search being conducted.
(2) However, the person is not entitled to observe the search
if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the
search being conducted would interfere with the objectives of the
search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
162 Moving
things to another place for examination or processing
(1) A thing found at premises entered under a search warrant may be moved
to another place for examination or processing to decide whether it may be
seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or
contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another place and
the availability of expert assistance; or
(b) a person in charge of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing
for no longer than 72 hours.
(3) An inspector may apply to a magistrate for an extension of time if the
inspector believes, on reasonable grounds, that the thing cannot be examined or
processed within 72 hours.
(4) The inspector must give notice of the application to a person in
charge of the premises, and the person is entitled to be heard on the
application.
(5) If a thing is moved to another place under this section, the inspector
must, if practicable—
(a) tell a person in charge of the premises the address of the place
where, and time when, the examination or processing will be carried out;
and
(b) allow the person or the person’s representative to be present
during the examination or processing.
(6) The provisions of this chapter relating to the issue of search
warrants apply, with any necessary changes, to the giving of an extension under
this section.
163 Use
of electronic equipment at premises
(1) An inspector or a person assisting may operate electronic equipment at
premises entered under a search warrant to access data (including data not held
at the premises) if the inspector or person believes, on reasonable grounds,
that—
(a) the data might be something to which the warrant relates;
and
(b) the equipment can be operated without damaging the data.
(2) If the inspector or person assisting believes, on reasonable grounds,
that any data accessed by operating the electronic equipment might be something
to which the warrant relates, the inspector or person may—
(a) copy the data to a data storage device brought to the premises;
or
(b) if a person in charge of the premises agrees in writing—copy the
data to a data storage device at the premises.
(3) The inspector or person assisting may take the device from the
premises.
(4) The inspector or person assisting may do the following things if the
inspector or person finds that anything to which the warrant relates (the
material) is accessible using the equipment:
(a) seize the equipment and any data storage device;
(b) if the material can, by using facilities at the premises, be put in
documentary form—operate the facilities to put the material in that form
and seize the documents produced.
(5) An inspector may seize equipment under subsection (4) (a) only
if—
(a) it is not practicable to copy the data as mentioned in
subsection (2) or to put the material in documentary form as mentioned in
subsection (4) (b); or
(b) possession of the equipment by a person in charge of the premises or
someone else could be an offence.
164 Person
with knowledge of computer or computer system to assist access
etc
(1) An inspector may apply to a magistrate for an order requiring a stated
person to provide any information or assistance that is reasonably necessary to
allow the inspector or a person assisting to do 1 or more of the
following:
(a) access data held in or accessible from a computer that is at the
premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
(2) The magistrate may make an order if satisfied that—
(a) there are reasonable grounds for suspecting that something to which
the warrant relates is accessible from the computer; and
(b) the stated person is—
(i) reasonably suspected of possessing, or having under the person’s
control, something to which the warrant relates; or
(ii) the owner or lessee of the computer; or
(iii) an employee or agent of the owner or lessee of the computer;
and
(c) the stated person has knowledge of—
(i) the computer or a computer network of which the computer forms a part;
or
(ii) measures applied to protect data held in or accessible from the
computer.
(3) A person commits an offence if a person contravenes an order under
this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(4) The provisions of this chapter relating to the issue of search
warrants apply, with any necessary changes, to the making of an order under this
section.
165 Securing
electronic equipment
(1) This section applies if the inspector or a person assisting believes,
on reasonable grounds, that—
(a) something to which the warrant relates (the material)
may be accessible by operating electronic equipment at the premises;
and
(b) expert assistance is required to operate the equipment; and
(c) the material may be destroyed, altered or otherwise interfered with if
the inspector or person does not take action.
(2) The inspector or person may do whatever is necessary to secure the
equipment, whether by locking it up, placing a guard or otherwise.
(3) The inspector or a person assisting must give written notice to a
person in charge of the premises of—
(a) the inspector’s or person’s intention to secure the
equipment; and
(b) the fact that the equipment may be secured for up to 24
hours.
(4) The equipment may be secured until the earliest of the following
events happens:
(a) the end of the 24-hour period;
(b) the equipment is operated by the expert.
(5) If the inspector or a person assisting believes on reasonable grounds
that the expert assistance will not be available within the 24-hour period, the
inspector or person may apply to a magistrate to extend the period.
(6) The inspector or a person assisting must tell a person in charge of
the premises of the intention to apply for an extension, and the person is
entitled to be heard on the application.
(7) The provisions of this chapter relating to the issue of search
warrants apply, with any necessary changes, to the giving of an extension under
this section.
166 Copies
of seized things to be provided
(1) This section applies if—
(a) a person in charge of premises, or someone else who apparently
represents the person, is present at the premises while a search warrant is
executed; and
(b) the inspector seizes—
(i) a document, film, computer file or something else that can be readily
copied; or
(ii) a data storage device containing information that can be readily
copied.
(2) The person in charge or other person may ask the inspector to give the
person a copy of the thing or information.
(3) The inspector must give the person the copy as soon as practicable
after the seizure.
(4) However, the inspector is not required to give the copy
if—
(a) the thing was seized under section 163 (Use of electronic equipment at
premises); or
(b) possession of the thing or information by a person in charge of the
premises or someone else would be an offence.
Part
7.4 Return and forfeiture of things
seized
167 Receipt
for things seized
(1) As soon as practicable after a thing is seized by an inspector under
this chapter, the inspector must give a receipt for it to the person from whom
it was seized.
(2) If, for any reason, it is not practicable to comply with subsection
(1), the inspector must leave the receipt, secured conspicuously, at the place
of seizure under section 153 (1) (Action in relation to thing seized).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) an explanation of the person’s right to apply to a court under
section 170 for an order disallowing the seizure;
(d) if the thing is removed from the premises where it is
seized—where the thing is to be taken to;
(e) the inspector’s name, and how to contact the
inspector.
168 Access
to things seized
(1) This section applies to a document or anything else seized under this
chapter.
(2) If asked by a person who would be entitled to inspect the thing if it
were not seized under this chapter, an inspector must allow the person, at any
reasonable time—
(a) for a document—to inspect it, take extracts from it or make
copies of it; and
(b) for anything else—to inspect it.
(3) This section does not apply to—
(a) a thing seized under section 152 (4) (which is about the seizure of a
thing that poses a risk to the health or safety of people or of damage to
property or the environment); or
(b) a thing seized under section 163 (Use of electronic equipment at
premises); or
(c) a thing or information if possession of it by the person otherwise
entitled to inspect it would be an offence.
169 Return
of things seized
(1) A thing seized under this chapter must be returned to its owner, or
reasonable compensation must be paid to the owner by the Territory for the loss
of the thing, if—
(a) an infringement notice for an offence connected with the thing is not
served on the owner within 6 months after the day of the seizure and
either—
(i) a prosecution for an offence connected with the thing is not begun
within the 6-month period; or
(ii) a prosecution for an offence connected with the thing is begun within
the 6-month period but the court does not find the offence proved; or
(b) an infringement notice for an offence connected with the thing is
served on the owner within 6 months after the day of the seizure, the
infringement notice is withdrawn and—
(i) a prosecution for an offence connected with the thing is not begun
within 6 months after the day of the seizure; or
(ii) a prosecution for an offence connected with the thing is begun within
6 months after the day of the seizure but the court does not find the offence
proved; or
(c) an infringement notice for an offence connected with the thing is
served on the owner within 6 months after the day of the seizure, liability for
the offence is disputed in accordance with the Magistrates Court Act
1930, section 132 (Disputing liability for infringement notice offence)
and—
(i) an infringement notice is not laid in the Magistrates Court against
the person for the offence within 60 days after the day notice is given under
section 132 that liability is disputed; or
(ii) the Magistrates Court does not find the offence proved; or
(d) before the thing is forfeited to the Territory under section 173
(Forfeiture of seized things), the chief executive—
(i) becomes satisfied that there has been no offence against this Act with
which the thing was connected; or
(ii) decides not to prosecute or serve an infringement notice for the
offence.
(2) However, this section does not apply—
(a) to a thing seized under section 152 (4) (which is about the seizure of
things that pose a risk to the health or safety of people or of damage to
property or the environment)); or
(b) to a thing if the chief executive believes, on reasonable grounds,
that the only practical use of the thing in relation to the premises where it
was seized would be an offence against this Act; or
(c) to a thing if possession of it by its owner would be an
offence.
170 Application
for order disallowing seizure
(1) A person claiming to be entitled to anything seized under this chapter
may apply to the Magistrates Court within 10 days after the day of the seizure
for an order disallowing the seizure.
(2) However, this section does not apply to a thing seized under
section 152 (4) (which is about the seizure of things that pose a risk to
the health or safety of people or of damage to property or the
environment)).
(3) The application may be heard only if the applicant has served a copy
of the application on the chief executive.
(4) The chief executive is entitled to appear as respondent at the hearing
of the application.
171 Order
for return of seized thing
(1) This section applies if a person claiming to be entitled to anything
seized under this chapter applies to the Magistrates Court under
section 170 for an order disallowing the seizure.
(2) The Magistrates Court must make an order disallowing the seizure if
the court is satisfied that—
(a) the applicant would, apart from the seizure, be entitled to the return
of the seized thing; and
(b) the thing is not connected with an offence against this Act;
and
(c) possession of the thing by the person would not be an
offence.
(3) The Magistrates Court may also make an order disallowing the seizure
if satisfied there are exceptional circumstances justifying the making of the
order.
(4) If the Magistrates Court makes an order disallowing the seizure, the
court may make 1 or more of the following ancillary orders:
(a) an order directing the chief executive to return the thing to the
applicant or to someone else that appears to be entitled to it;
(b) if the thing cannot be returned or has depreciated in value because of
the seizure—an order directing the Territory to pay reasonable
compensation;
(c) an order about the payment of costs in relation to the application.
172 Adjournment
pending hearing of other proceedings
(1) This section applies to the hearing of an application under
section 170 (Application for order disallowing seizure).
(2) If it appears to the Magistrates Court that the seized thing is
required to be produced in evidence in a pending proceeding in relation to an
offence against a Territory law, the court may, on the application of the chief
executive or its own initiative, adjourn the hearing until the end of that
proceeding.
173 Forfeiture
of seized things
(1) This section applies if—
(a) anything seized under this chapter has not been destroyed or otherwise
disposed of under section 154 (Power to destroy unsafe things) or returned under
section 169 (Return of things seized); and
(b) an application for disallowance of the seizure under section 170
(Application for order disallowing seizure)—
(i) has not been made within 10 days after the day of the seizure;
or
(ii) has been made within that period, but the application has been
refused or has been withdrawn before a decision in relation to the application
had been made.
(2) If this section applies to the seized thing—
(a) it is forfeited to the Territory; and
(b) it may be sold, destroyed or otherwise disposed of as the chief
executive directs.
174 Return
of forfeited things
(1) This section applies to something forfeited under section 173 that has
not been disposed of in a way that would prevent its return.
(2) If the chief executive becomes satisfied that there has been no
offence against this Act with which the thing was connected, the chief executive
must, as soon as practicable, return the thing to the person from whom it was
seized or someone else who appears to the chief executive to be entitled to
it.
(3) On its return, any proprietary and other interests in the thing that
existed immediately before its forfeiture are restored.
175 Cost
of disposal of things forfeited
(1) This section applies if—
(a) a person is convicted, or found guilty, of an offence against this Act
in relation to something forfeited to the Territory under this chapter;
and
(b) the thing was connected with an offence against this Act;
and
(c) the person was the owner of the thing immediately before its
forfeiture.
Note For the meaning of found guilty, see Legislation
Act, dict, pt 1.
(2) If this section applies, costs incurred by or on behalf of the
Territory in relation to the lawful disposal of the thing (including storage
costs) are a debt owing to the Territory by the person.
Part
7.5 Other enforcement
provisions
176 Damage
etc to be minimised
(1) In the exercise, or purported exercise, of a function under this
chapter, an inspector must take all reasonable steps to ensure that the
inspector, and any person assisting, causes as little inconvenience, detriment
and damage as is practicable.
(2) If an inspector, or a person assisting, damages anything in the
exercise or purported exercise of a function under this chapter, the inspector
must give written notice of particulars of the damage to the person whom the
inspector believes, on reasonable grounds, is the owner of the thing.
(3) If the damage happens at premises entered under this chapter in the
absence of a person in charge of the premises, the notice may be given by
leaving it secured in a conspicuous place at the premises.
177 Compensation
to be paid in certain circumstances
(1) A person may claim compensation from the Territory if the person
suffers loss or expense because of the exercise, or purported exercise, of a
function under this chapter by an inspector or person assisting.
(2) Compensation may be claimed and ordered in a proceeding
for—
(a) compensation brought in a court of competent jurisdiction;
or
(b) an order under section 170 (Application for order disallowing
seizure); or
(c) an offence against this Act brought against the person making the
claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss
or expense only if it is satisfied it is just to make the order in the
circumstances of the particular case.
(4) The regulations may prescribe matters that may, must or must not be
taken into account by the court in considering whether it is just to make the
order.
Chapter
8 Emergency
powers
178 Meaning
of recall order for ch 8
In this chapter:
recall order means an emergency order requiring the recall or
disposal, or both, of a dangerous substance.
The Minister may, in writing, make an order (an emergency
order) if the Minister believes, on reasonable grounds, that the order
is necessary to prevent or minimise a risk of serious harm to the health or
safety of people, or substantial damage to property or the environment, from a
hazard associated with a dangerous substance.
Note 1 An order may be made in relation to a particular kind of
dangerous substance (see Legislation Act, s 48).
Note 2 The power to make an instrument includes the power to amend
or repeal the instrument (see Legislation Act, s 46).
180 Nature
of emergency orders
An emergency order in relation to a dangerous substance may do 1 or
more of the following:
(a) require the publication of warnings, in a form approved by the
Minister, that the substance is unsafe;
(b) prohibit the handling of the substance or particular kinds of handling
of the substance, including, for example, the sale of the substance;
(c) prohibit the advertising of the substance;
(d) require the recall of the substance if it has been consigned or
distributed for sale or sold and state how, and the period within which, the
recall is to be conducted;
(e) require the destruction or other disposal of the substance, and state
how the disposal is to be done;
(f) prohibit absolutely the carrying on of an activity in relation to the
substance, or permit the carrying on of the activity only in accordance with
conditions stated in the order;
(g) require the taking and analysis of samples of the substance or of
water, soil or anything else that is part of the environment where the activity
is or has been engaged in in relation to the substance;
(h) require that stated methods be used for analysis of any samples
required to be taken in accordance with the order.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
181 Special
provisions for recall orders
(1) A recall order in relation to a dangerous substance may require a
person bound by the order to tell the public (or a stated part of the public),
in a stated way, 1 or more of the following:
(a) the substance to be recalled or disposed of;
(b) the reasons why the substance is considered to be a hazard;
(c) the circumstances in which the substance may cause a risk;
(d) procedures for disposing of the substance.
(2) A person who is required by a recall order to recall a dangerous
substance must give written notice to the chief executive of the completion of
the recall as soon as practicable after its completion.
(3) A person bound by a recall order is liable to the Territory for any
costs incurred by the Territory in relation to the recall order.
Note The costs may be recovered in a court of competent jurisdiction
(see Legislation Act, s 177).
(4) In a proceeding for the recovery of any costs, a certificate signed by
the chief executive stating the amount of the costs, and how they were incurred,
is evidence of the matters stated in the certificate.
182 How
emergency orders are made
(1) An emergency order may be addressed to—
(a) a person or 2 or more people; or
(b) a class of people or the general public.
(2) A copy of an emergency order mentioned in subsection (1) (a) must be
served on the person or people to whom it is addressed.
Note For how documents may be served, see Legislation Act, pt
19.5.
(3) Notice of an emergency order mentioned in subsection (1) (b) must be
published as soon as practicable after the order is made in a newspaper that, in
the Minister’s opinion, will be most likely to bring the order to the
attention of the people to be bound by it.
(4) The notice must set out the terms of the order and the people to be
bound by it.
(5) An emergency order, when it takes effect, is binding on the person or
people to whom it is addressed.
(6) An emergency order that is served on a person takes effect in relation
to the person when it is served on the person.
(7) An emergency order that is published under subsection (3) takes effect
on the day after the day the order’s
1st published under that
subsection.
(8) An order ends at the end of 90 days after the day it takes effect
unless it is sooner revoked.
(9) Subsection (8) does not prevent a further order being made in the same
terms as an order that has ended.
183 Stay
or variation of emergency orders by Supreme Court
(1) A person bound by an emergency order may apply to the Supreme Court
for an order staying or otherwise affecting the operation of the
order.
(2) The Supreme Court may make an order staying or otherwise affecting the
operation of an emergency order only if satisfied that the making of the order
will not—
(a) create or significantly increase the possibility of a risk of serious
harm to the health or safety of people, or substantial damage to property or the
environment, from a hazard associated with a dangerous substance; or
(b) aggravate significantly the harm to the health or safety of people, or
damage to property or the environment, from a substantial hazard associated with
a dangerous substance.
(3) In deciding whether to make an order under this section, the Supreme
Court must have regard to section 185 (Compensation for emergency
order).
184 Failure
to comply with emergency order
(1) A person commits an offence if—
(a) the person contravenes a prohibition imposed on the person by an
emergency order; or
(b) the person fails to take all reasonable steps to comply with a
direction given by an emergency order.
Maximum penalty: 500 penalty units.
(2) In this section:
emergency order includes an emergency order as affected by
any order of the Supreme Court under section 183.
185 Compensation
for emergency order
(1) This section applies if—
(a) an emergency order has been made that binds, or has bound, a person;
and
(b) the person suffers loss or damage because of the making of the order;
and
(c) the person considers that there were insufficient grounds to make the
order.
(2) The person may apply, in writing, to the Minister for
compensation.
(3) The application must state the reasons why the person considers that
there were insufficient grounds to make the emergency order.
(4) If, after considering the application, the Minister is satisfied that
there were insufficient grounds to make the emergency order, the Territory must
pay the person the reasonable compensation decided by the Minister.
(5) However, compensation is not payable to the person—
(a) in relation to any loss or damage suffered by the person because of an
act or omission of the person; or
(b) if the person caused or contributed to the relevant risk or harm to
the health or safety of people or of damage to property or the
environment.
(6) The Minister must give the person written notice of the
Minister’s decision on the application.
(7) If the Minister does not decide the application within 28 days after
the day the Minister receives the application, the Minister is taken to have
refused to pay compensation.
Chapter
9 Administrative review of
decisions
This chapter applies to a decision (a reviewable
decision)—
(a) made by the Minister, chief executive or an inspector under this Act;
and
(b) prescribed under the regulations for this section.
187 Notice
of reviewable decisions
(1) If the Minister, chief executive or inspector (the
decision-maker) makes a reviewable decision, the decision-maker
must give written notice of the decision to each person prescribed under the
regulations for the decision.
(2) The notice must comply with the requirements of the code of practice
in force under the Administrative Appeals Tribunal Act 1989,
section 25B (1).
(3) In particular, the notice must tell the person—
(a) whether the person has the right to apply for internal review of the
decision or the right to apply to the administrative appeals tribunal for review
of the decision, and how the application must be made; and
(b) if the person has the right to apply for internal review of the
decision—that person has the right to apply to the administrative appeals
tribunal for review of the decision on the internal review if the person is
dissatisfied with that decision; and
(c) about the options available under other ACT laws to have the decision
reviewed by a court or the ombudsman.
188 Internal
review of certain decisions
(1) This section applies if the regulations declare that a reviewable
decision is a decision that is subject to internal review (an internally
reviewable decision).
(2) A person whose interests are affected by an internally reviewable
decision may apply in writing to the chief executive for internal review of the
decision.
(3) The chief executive must arrange for someone else (the internal
reviewer) to review the decision.
(4) However, this section does not apply to a reviewable decision made
personally by the Minister or the chief executive.
Note Section 191 (b) provides for AAT review of decisions exempt
from internal review.
189 Applications
for internal review
(1) An application for internal review of an internally reviewable
decision must be made within—
(a) 28 days after the day when the applicant is told about the decision by
the decision-maker; or
(b) any longer period allowed by the internal reviewer, whether before or
after the end of the 28-day period.
(2) The application must set out the grounds on which internal review of
the decision is sought.
(3) The making of the application for internal review of the decision does
not affect the operation of the decision.
(1) The internal reviewer must review the internally reviewable decision,
and confirm, vary or revoke the decision, within 5 business days after the
decision-maker receives the application for internal review of the
decision.
Note For the meaning of business day, see Legislation
Act, dict, pt 1.
(2) If the decision is not varied or revoked within the 5-day period, the
decision is taken to have been confirmed by the internal reviewer.
(3) As soon as practicable after reviewing the decision, the internal
reviewer must give written notice of the decision on the internal review to the
applicant.
(4) The notice must be in accordance with the requirements of the code of
practice in force under the Administrative Appeals Tribunal
Act 1989, section 25B (1).
191 Review
of decisions by administrative appeals tribunal
A person may apply to the administrative appeals tribunal for review
of—
(a) a decision made by an internal reviewer; or
(b) a reviewable decision, other than an internally reviewable
decision.
Chapter
10 Procedural and evidentiary
provisions
Part
10.1 General provisions about offences
against Act
192 Acts
and omissions of representatives
(1) In this section:
person means an individual.
representative, of a person, means an employee or agent of
the person.
state of mind, of a person, includes—
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(2) This section applies to a prosecution for any offence against this
Act.
(3) If it is relevant to prove a person’s state of mind about an act
or omission, it is enough to show—
(a) the act was done or omission made by a representative of the person
within the scope of the representative’s actual or apparent authority;
and
(b) the representative had the state of mind.
(4) An act done or omitted to be done on behalf of a person by the
person’s representative within the scope of the representative’s
actual or apparent authority is also taken to have been done or omitted to be
done by the person.
(5) However, subsection (4) does not apply if the person establishes that
reasonable precautions were taken and appropriate diligence was exercised to
avoid the act or omission.
(6) A person who is convicted of an offence cannot be punished by
imprisonment for the offence if the person would not have been convicted of the
offence without subsection (3) or (4).
193 Criminal
liability of corporation officers
(1) This section applies to the following provisions:
(a) a provision mentioned in section 41 (Meaning of safety duty for
pt 3.2);
(b) a provision of part 4.3 (Offences relating to licences);
(c) a provision of chapter 5 (Other serious offences);
(d) section 107 (Contravention of improvement notices);
(e) section 119 (Contravention of prohibition notices);
(f) section 128 (Contravention of enforceable undertakings).
(2) An officer of a corporation commits an offence if—
(a) the corporation contravenes a provision to which this section applies;
and
(b) the contravention is an offence against this Act (the relevant
offence); and
(c) the officer was reckless about whether the contravention would happen;
and
(d) the officer was in a position to influence the conduct of the
corporation in relation to the contravention; and
(e) the officer failed to take all reasonable steps to prevent the
contravention.
Maximum penalty: The maximum penalty that may be imposed for the
commission of the relevant offence by an individual.
(3) This section applies whether or not the corporation is prosecuted for,
or convicted of, the relevant offence.
(4) In deciding whether the executive officer took (or failed to take)
reasonable steps to prevent the contravention, a court must have regard to the
following:
(a) any action the officer took directed towards ensuring the following
(to the extent that the action is relevant to the act or omission):
(i) that the corporation arranged regular professional assessments of the
corporation’s compliance with the contravened provision;
(ii) that the corporation implemented any appropriate recommendation
arising from such an assessment;
(iii) that the corporation’s employees, agents and contractors had a
reasonable knowledge and understanding of the requirement to comply with the
contravened provision;
(b) any action the officer took when the officer became aware that the
contravention was, or might be, about to happen.
(5) Subsection (4) does not limit the matters to which the court may have
regard.
(6) This section does not apply if the corporation would have a defence to
a prosecution for the relevant offence.
194 No
defence to claim deterioration of sample
It is not a defence in a proceeding for an offence against this Act for a
defendant to claim that any part of a sample kept for future comparison with a
sample that has been analysed has, from natural causes, deteriorated, perished
or undergone material change.
195 Remedial
orders by courts for offences
(1) This section applies if—
(a) a person is convicted, or found guilty, of an offence against this
Act; and
(b) the prosecutor asks the court to make an order under this section;
and
(c) it appears to the court that the person could partly or completely
rectify a state of affairs that arose as a direct or indirect result of the
conduct that was the subject of the offence.
Note For the meaning of found guilty, see Legislation
Act, dict, pt 1.
(2) The court may order the person to take any steps that it considers are
necessary and appropriate to rectify the state of affairs and that are within
the person’s power to take.
(3) If a court makes an order under this section, it may also make any
other consequential orders (including orders about costs) that it considers
appropriate.
196 Court-directed
publicity for offences
If a person is convicted of an offence against this Act, the court may
direct the person to publish a statement in accordance with the directions of
the court in relation to the offence.
197 Publication
by chief executive of convictions etc
(1) This section applies if a person, or a representative of the person,
is convicted or found guilty of an offence against this Act in relation to a
dangerous substance and—
(a) the time for making an appeal against the conviction, or finding of
guilt, ends without an application for an appeal being made; or
(b) if an appeal is made against the conviction or finding of
guilt—
(i) the conviction or finding is confirmed on appeal, and the time for
making any further appeal in relation to the conviction or finding ends without
an application for an appeal being made; or
(ii) the appeal is withdrawn, struck out or discontinued or lapses;
or
(c) if a retrial has been ordered—the time for making an appeal on
the retrial ends in accordance with paragraph (a) or (b).
(2) The chief executive may publish the following information in relation
to the conviction or finding of guilt in a way that the chief executive
considers appropriate:
(a) particulars that allow the public to identify the person;
(b) details of the offence;
(c) the decision of the court and the penalty imposed on the person or a
representative of the person (including the forfeiture of anything under this
Act);
(d) any other information in relation to the offence and the safety of the
dangerous substance that the chief executive considers appropriate to be
published.
Examples of publication
1 a press release
2 an article in a document published by the Territory or a Territory
authority
3 an advertisement in a newspaper circulating in the ACT
Examples for par (a)
1 the licensee’s name and ACN (if any)
2 any name (and, if relevant, ACN) used in the past by the licensee
3 the licensee’s current and previous business addresses
Note 1 For the meaning of found guilty, see
Legislation Act, dict, pt 1.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the conviction or finding of guilty is quashed or set aside on
appeal, the information must not be published.
(4) If the penalty is changed on appeal, this section applies in relation
to the penalty as changed.
(5) For the Civil Law (Wrongs) Act 2002, section 128 (Publication
of a proceeding of public concern), the information published by the chief
executive under this section is taken to be a fair report of a proceeding of
public concern.
(6) In this section:
representative of the person means—
(a) if the person is an individual—an employee or agent of the
person; or
(b) if the person is a corporation—an employee, agent or executive
officer of the person.
198 Court
may order costs and expenses
(1) A court that hears a proceeding for an offence against this Act may
make any order it considers appropriate in relation to costs and expenses in
relation to the examination, seizure, detention, storage, analysis (including
further analysis), destruction or other disposition of anything the subject of
the proceeding.
(2) This section does not affect any other power of the court to award
costs.
199 Court
may order forfeiture
A court that convicts a person, or finds a person guilty, of an offence
against this Act may order the forfeiture to the Territory of anything that was
used in the commission of the offence.
200 Notices
of noncompliance by Territory entities
(1) This section applies if a Territory entity (other than a Territory
owned corporation) commits an offence against this Act and the offence is an
infringement notice offence.
Note 1 For the meaning of Territory owned corporation,
see Legislation Act, dict, pt 1
Note 2 A reference to an Act includes a reference to statutory
instruments made or in force under the Act, including regulations and any law or
instrument applied, adopted or incorporated by the Act (see Legislation Act, s
104).
(2) An authorised person for the infringement notice offence may serve a
notice of noncompliance on the responsible chief executive for the Territory
entity.
Note For how documents may be served, see Legislation Act,
pt 19.5.
(3) The responsible chief executive must include in the chief
executive’s annual report a statement of the number of notices of
noncompliance serviced on the chief executive and matter to which each notice
related.
(4) In this section:
annual report means a report under the Annual Reports
(Government Agencies) Act 2004.
authorised person, for an infringement notice offence, means
an authorised person for the infringement notice offence under the
Magistrates Court Act 1930,
responsible chief executive—see the Auditor-General
Act 1996, dictionary.
Territory entity means an administrative unit or a Territory
entity under the Auditor-General Act 1996.
Part
10.2 Evidentiary
provisions
In a proceeding for an offence against this Act, it is presumed until the
contrary is proved, on the balance of probabilities, that—
(a) a substance that is part of a batch, lot or consignment of the
substance of the same kind or description is representative of all of the
substance in the batch, lot or consignment; and
(b) each part of a sample of a substance divided for analysis for this Act
is of uniform composition with every other part of the sample; and
(c) a person who sold a substance in the conduct of a business and was not
the holder of a licence sold the substance as the employee of the licensee;
and
(d) a person who appears from any marking or label on an article,
container or package containing a substance for sale to have manufactured,
imported, packed or supplied the substance is a person in control of the
manufacture, import, packing or supply of the substance.
202 Certificate
evidence etc
(1) This section applies in relation to a proceeding for an offence
against this Act.
(2) A document that appears to be a copy of a licence, approval, notice,
order, authority or undertaking under this Act is evidence of the issue or
giving of a licence, approval, notice, order, authority or
undertaking.
(3) A certificate that appears to be signed by or on behalf of the chief
executive, and that states any of the following matters, is evidence of the
matters:
(a) that there was, or was not, in force a licence, approval, notice,
order, authority or undertaking in relation to a stated person or people or
premises;
(b) that a licence, approval, notice, order, authority or undertaking
authorised or required or did not authorise or require a stated activity at a
particular time and place;
(c) that a licence, approval, notice, order, authority or undertaking was
or was not subject to stated conditions;
(d) that a substance is or is not a dangerous substance;
(e) that a dangerous substance belongs to or does not belong to a
particular class or category of dangerous substances;
(f) that an explosive is or is not a particular kind of explosive;
(g) the receipt or otherwise of a notice, application or
payment;
(h) that an amount of fees or another amount is payable under this Act by
a stated person.
(4) A certificate that appears to be signed by or on behalf of the chief
executive, and states anything prescribed under the regulations for this
section, is evidence of the thing.
(5) A certificate mentioned in subsection (3) or (4) may state anything by
reference to a date or period.
(6) A court must accept a certificate or other document mentioned in this
section as proof of the matters stated in it if there is no evidence to the
contrary.
(7) In this section:
authority includes an appointment as an authorised analyst or
inspector.
notice includes a compliance notice, improvement notice or
prohibition notice.
order includes an emergency order (including a recall
order).
undertaking means an enforceable undertaking under part
6.5.
(1) A certificate of the results of an analysis is admissible in a
proceeding for an offence against this Act, and is evidence of the facts stated
in it, if a copy of the certificate is served by the party who obtained the
analysis on the other party to the proceeding at least 14 days before the
day of the hearing.
(2) However, a court may order, at the request of a party to the
proceedings or on its own initiative, that the period mentioned in subsection
(1) be reduced to the period stated in the court’s order.
(3) An analyst who carried out an analysis in relation to which a
certificate is produced as evidence in a proceeding for an offence against this
Act need not be called as a witness in the proceeding by the party producing the
certificate unless the court hearing the proceeding orders, at the request of a
party to the proceedings or on its own initiative, that the analyst be called as
a witness.
204 Admissibility
of analysis of sample taken by inspector
The analysis of a sample of a substance taken by an inspector is admissible
in evidence in a proceeding for an offence against this Act only if the sample
was taken as required or allowed by part 6.7 (Taking and analysis of
samples).
205 Power
of court to order further analysis
(1) This section applies if the court before which a person is being
prosecuted for an offence against this Act is satisfied that there is a
disagreement between the evidence of the analysts for the parties to the
proceeding.
(2) The court may order that the part or parts of a sample kept under
section 138 (Procedures for dividing samples) be sent by the chief executive to
an independent analyst.
(3) For subsection (2), the order may require the sample to be sent to a
particular analyst or to an analyst agreed to by the parties.
(4) An analyst who is sent a part or parts of a sample for analysis under
this section must make the analysis for the information of the court.
(5) Subject to section 198 (Court may order costs and expenses), the cost
of an analysis under this section is payable by the Territory.
Chapter
11 Administration
206 Inspection
of incorporated documents
(1) This section applies to an incorporated document, or an amendment or
replacement of an incorporated document.
Note For the meaning of incorporated document, see the
dictionary.
(2) The chief executive must ensure that the document, amendment or
replacement is made available for inspection free of charge to the public on
business days at reasonable times at the office of an administrative unit
administered by the chief executive.
(3) In this section:
amendment, of an incorporated document—see section 220
(6).
(1) Each of the following is an inspector for this Act:
(a) a police officer;
(b) a public servant appointed under subsection (2).
(2) The chief executive may appoint a public servant as an inspector for
this Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) This section applies only to an inspector appointed under
section 207 (2).
(2) The chief executive must give each inspector an identity card that
states the person’s name and appointment as an inspector, and
shows—
(a) a recent photograph of the person; and
(b) the date of issue of the card; and
(c) the date of expiry of the card; and
(d) anything else prescribed under the regulations.
(3) A person commits an offence if—
(a) the person ceases to be an inspector; and
(b) the person does not return the person’s identity card to the
chief executive as soon as practicable (but within 7 days) after the day the
person ceases to be an inspector.
Maximum penalty: 1 penalty unit.
(4) An offence against this section is a strict liability
offence.
209 Functions
of inspectors
The functions of an inspector under this Act include the
following:
(a) to inspect and monitor the handling of dangerous substances and
premises, plant and systems for handling dangerous substances;
(b) to investigate compliance with this Act and incidents adversely
affecting the safe handling of a dangerous substance.
210 Appointment
of authorised analysts
The chief executive may appoint a person as an authorised analyst for this
Act.
Note 1 For the making of appointments (including acting
appointments), see Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see
s 207).
(1) In this section:
court includes a tribunal or other entity with power to
require the production of documents or the answering of questions.
person to whom this section applies means—
(a) a person who is or has been an inspector; or
(b) anyone else who has exercised a function under this Act.
produce includes allow access to.
protected information means information obtained under this
Act in relation to manufacturing secrets or commercial secrets, working
processes or anything else prescribed under the regulations.
(2) A person commits an offence if—
(a) the person is a person to whom this section applies; and
(b) the person—
(i) makes a record of protected information; or
(ii) directly or indirectly, divulges or communicates protected
information to a person; and
(c) the record is not made, or the information is not divulged or
communicated, in relation to the exercise of a function, as a person to whom
this section applies, under this Act or another Territory law.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) Subsection (2) does not prevent a person to whom this section
applies from divulging or communicating protected information—
(a) with the consent of the person from whom the information was obtained;
or
(b) to a person administering or enforcing a corresponding law;
or
(c) to a law enforcement authority.
212 Protection
from liability
(1) In this section:
official means—
(a) the Minister; or
(b) the chief executive; or
(c) an inspector; or
(d) anyone else exercising functions under this Act.
(2) An official does not incur civil liability for an act or omission done
honestly and without negligence for this Act.
(3) Any civil liability that would, apart from this section, attach to an
official attaches instead to the Territory.
Chapter
12 Regulations about dangerous
substances
213 Regulations
may apply etc instruments
The regulations may apply, adopt or incorporate an instrument, as in force
from time to time.
Note 1 The text of an applied, adopted or incorporated instrument,
whether applied as in force from time to time or as at a particular time, is
taken to be a notifiable instrument if the operation of the Legislation Act,
s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
214 Scheme
for explosives to be prescribed
(1) The regulations are to provide a scheme for regulating the handling of
explosives.
(2) However, subsection (1) does not require all aspects of the handling
of all explosives to be licensed.
Example
a person selling or possessing a distress flare may not be required under
the regulations to hold a licence to sell or possess the flare
Note An example is part of this Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The regulations may make provision in relation to explosives,
including, for example—
(a) the explosives that may or must not be handled,
including—
(i) the authorisation, control and prohibition of explosives for this Act;
and
(ii) the composition, testing and classification of explosives;
and
(b) the kinds of handling of explosives that must be authorised by a
licence or under the regulations; and
(c) the packing, labelling and storage of explosives; and
(d) the qualifications, training and experience of people to handle
explosives; and
(e) the authorisation of people to handle explosives; and
(f) the authorisation of vehicles to carry explosives and the routes over
which explosives may or must not be carried; and
(g) the purposes for which, and the circumstances in which, explosives may
or must not be handled; and
(h) the duties of people, including reporting and notification
requirements, in relation to explosives; and
(i) the advertising, display and sale of explosives; and
(j) the making and keeping of records in relation to explosives and their
inspection.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The regulations may also make provision in relation to dangerous
substances, and other substances, that can be used to manufacture
explosives.
215 Regulations
about licences
(1) The regulations may make provision in relation to licences for
handling dangerous substances, including, for example—
(a) prescribing the circumstances in which a licence is required for
handling dangerous substances by, for example, the class or kind of dangerous
substance, the kind of handling, the circumstances of the handling or the amount
handled; and
(b) the suitability of a person to be licensed to handle dangerous
substances, including—
(i) the knowledge, experience and training of the person; and
(ii) the testing or examination of a person to decide whether the person
is, or continues to be, a suitable person to hold a licence; and
(c) the suitability of premises (including vehicles) in relation to a
licence; and
(d) the kinds of licences that may be issued and the authority given to a
licensee by a particular kind of licence; and
(e) the conditions of a licence; and
(f) the creation and publication of registers in relation to licences;
and
(g) authorising a person to handle a prohibited dangerous substance or
controlled dangerous substance for research, education or any other
purpose.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The regulations may also provide the circumstances in which a licence
or other form of authority (however described) to handle a dangerous substance
under a corresponding law authorises a person to handle the dangerous substance
in the ACT.
216 Regulations
about dangerous substances generally
(1) The regulations may make provision in relation to dangerous substances
(including explosives), including, for example—
(a) the methods and equipment for examining and testing a substance to
decide whether the substance is a dangerous substance; and
(b) the methods and equipment for classifying dangerous substances;
and
(c) the classification of dangerous substances, including the
classification (however described) to which a dangerous substance does or does
not belong; and
(d) the advertising, display and sale of dangerous substances;
and
(e) the safe handling of dangerous substances; and
(f) the authorisation, control, notification and prohibition of the
handling of dangerous substances; and
(g) the containers, plant, premises and systems for handling dangerous
substances, including—
(i) the suitability of premises (including vehicles) for handling
dangerous substances; and
(ii) the design, manufacture, construction, supply, installation,
operation, maintenance, repair and use of containers, premises, plant and
systems for handling dangerous substances; and
(iii) the design, siting, construction and management of plant, premises
and systems for handling dangerous substances; and
(iv) the inspection, examination and testing of containers, plant,
premises and systems for handling dangerous substances; and
(v) the qualifications and authorisation of people installing, maintaining
or repairing containers, plant, premises and systems for handling dangerous
substances; and
(vi) safety requirements and safety procedures in relation to containers,
plant, premises and systems for handling dangerous substances; and
(h) the packing, marking, labelling and packaging of dangerous substances,
including—
(i) the maximum sizes for containers and packages of dangerous substances;
and
(ii) the construction and properties of containers and packages for
dangerous substances; and
(i) the preparation, review, supply and making available of safety
information about dangerous substances; and
(j) placarding in relation to dangerous substances, including the
placarding of manufacturing and storage facilities and other premises where
dangerous substances are handled; and
(k) safety management systems, including—
(i) the preparation, implementation, keeping up to date and documentation
of safety management systems; and
(ii) the documentation of compliance with duties under safety management
systems; and
(l) the making and keeping of records in relation to dangerous substances
(including plant and premises for handling dangerous substances) and their
inspection and auditing; and
(m) the duties of people, including reporting and notification
requirements, in relation to dangerous substances; and
(n) the creation and publication of registers in relation to dangerous
substances and premises, plant and systems for handling dangerous substances;
and
(o) the safety procedures to be complied with in relation to premises used
to handle dangerous substances.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The regulations may also make provision in relation to substances that
can be used to manufacture dangerous substances.
217 Regulations
may exempt people, plant or premises from Act
(1) The regulations may—
(a) exempt plant, premises or a person, from this Act; or
(b) authorise the chief executive to exempt plant, premises or a person,
from this Act.
Note A reference to an Act includes a reference to a provision of an
Act (see Legislation Act, s 7 (3)).
(2) An exemption given under a regulation mentioned in subsection (1)
may be conditional.
(3) The regulations may make provision in relation to the failure to
comply with a condition of an exemption (including an exemption under this
section).
(4) The regulations may provide for the chief executive
to—
(a) suspend the operation of a regulation mentioned in
subsection (1) (a) in a certain way or in certain circumstances;
or
(b) suspend the operation of an exemption given by the chief executive to
plant or premises, or a person, in a certain way or in certain
circumstances.
218 Minister
may exempt people, plant, premises or dangerous substances from
Act
(1) The Minister may, in writing, exempt plant, premises or a person, from
this Act.
Note A reference to an Act includes a reference to a provision of an
Act (see Legislation Act, s 7 (3)).
(2) An exemption may be conditional.
(3) An exemption under subsection (1) has no effect to the extent that it
is inconsistent with the regulations.
(4) An exemption is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The Minister may, in writing, approve codes of practice setting out
guidelines for this Act.
(2) An approved code of practice may apply, adopt or incorporate an
instrument, as in force from time to time.
Note 1 The text of an applied, adopted or incorporated instrument,
whether applied as in force from time to time or as at a particular time, is
taken to be a notifiable instrument if the operation of the Legislation Act,
s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the
Legislation Act.
(3) An approval of a code of practice is a disallowable
instrument.
Note A disallowable instrument must be notified and presented to the
Legislative Assembly, under the Legislation Act.
220 Notification
of certain incorporated documents
(1) This section applies to—
(a) an incorporated document; or
(b) an amendment of, or replacement for, an incorporated
document.
Example of replacement
document
a new edition of the incorporated document
Note 1 For the meaning of incorporated document, see
the dictionary.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may prepare a written notice (an
incorporated document notice) for the incorporated document,
amendment or replacement that contains the following information:
(a) for an incorporated document—details of the document, including
its title, author and date of publication;
(b) for a replacement of an incorporated document—details of the
replacement, including its title, author and date of publication;
(c) for an amendment of an incorporated document—the date of
publication of the amendment (or of the document as amended) and a brief summary
of the effect of the amendment;
(d) for an incorporated document or any amendment or
replacement—
(i) a date of effect (no earlier than the day after the day of
notification of the notice); and
(ii) details of how access to inspect the document, amendment or
replacement may be obtained under section 206 (Inspection of incorporated
documents); and
(iii) details of how copies may be obtained, including an indication of
whether there is a cost involved.
(3) An incorporated document notice is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) An incorporated document (other than a document mentioned in section
10 (3) (Meaning of dangerous substance) as in effect at the commencement
of this section), and any amendment or replacement of an incorporated document,
has no effect under this Act unless—
(a) an incorporated document notice is notified in relation to the
document, amendment or replacement; or
(b) the document, amendment or replacement is notified under the
Legislation Act, section 47 (6).
(5) The Legislation Act, section 47 (7) does not apply in relation to
incorporated documents.
(6) In this section:
amendment, of an incorporated document, includes an amendment
of a replacement for the incorporated document.
replacement, for an incorporated document,
means—
(a) a document that replaces the incorporated document; or
(b) a document (an initial replacement) that replaces a
document mentioned in paragraph (a); or
(c) a document (a further replacement) that replaces an
initial replacement or any further replacement.
221 Determination
of fees
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The Minister may, in writing, approve forms for this Act.
Note For other provisions about forms, see Legislation Act, s
255.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
223 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 30 penalty
units for offences against the regulations.
Chapter
14 Consequential and transitional
matters
The following legislation is repealed:
• Dangerous Goods Act 1975 A1975-68
• Dangerous Goods Regulations 1978
• Dangerous Goods (Exemption) Regulations 1989
SL1989-2.
(1) Despite the repeal of the Dangerous Goods Act 1975, a
prescribed former licence is taken to be a licence in force under this Act.
(2) The prescribed former licence is subject to—
(a) any conditions stated in the licence; and
(b) any conditions prescribed under the regulations.
(3) If the prescribed former licence has not been ended under this Act,
the licence continues in force for the remainder of the term of the
licence.
(4) To remove any doubt, a former explosives licence ends on the
commencement of this Act.
(5) In this section:
former explosives licence means a licence or permit under the
Dangerous Goods Act 1975 that authorised a person to handle (within the
meaning of this Act) an explosive within the meaning of that Act.
prescribed former licence means a licence, other than a
former explosives licence, in force under the Dangerous Goods Act 1975
immediately before the commencement of this Act.
226 Meaning
of LPG for s 7
(1) This section applies despite section 7 (2) (Exclusions from Act)
(which defines LPG for that section).
(2) In section 7 (1):
LPG means a gas in its vapour phase composed predominantly of
1 or more of the following hydrocarbons:
(a) propane;
(b) propene (propylene);
(c) butane;
(d) butene (butylene).
(3) This section expires on 1 July 2004
Note The Construction Occupations Legislation Amendment Act
2003, which commences on 1 July 2004, consequentially amends the Gas
Safety Act 2000 to create the link to the definition as it appears in s 7
(2).
227 Transitional
regulations
(1) The regulations may prescribe savings or transitional matters
necessary or convenient to be prescribed because of the enactment of this
Act.
(2) Without limiting the scope of subsection (1), the regulations may
prescribe matters necessary or convenient to be prescribed for carrying out or
giving effect to the provisions of this Act.
(3) Regulations made for this section must not be taken to be inconsistent
with this Act as far as they can operate concurrently with this Act.
(4) This section is additional to, and does not limit,
section 228.
228 Modification
of ch 14’s operation
The regulations may modify the operation of this chapter to make provision
in relation to any matter that, in the Executive’s opinion, is not, or is
not adequately, dealt with in this chapter.
229 Legislation
amended—sch 1
This Act amends the legislation mentioned in schedule 1.
This chapter expires 2 years after the day it commences.
Schedule
1 Consequential
amendments
(see s 229)
Part
1.1 Court Security Act
2001
[1.1] Dictionary,
definition of explosive
substitute
explosive—see the Dangerous Substances Act 2003,
section 73.
Part
1.2 Firearms Act
1996
[1.2] Section
4, definition of explosive
substitute
explosive—see the Dangerous Substances Act 2003,
section 73.
[1.3] Section
126 (2) (g)
substitute
(g) ammunition and components of ammunition, other than the manufacture or
transport of ammunition;
Note For the manufacture or transport of ammunition, see the
Dangerous Substances Act 2003.
Part
1.3 Firearms Regulations
1997
substitute
(1) A police officer does not require authorisation under a licence or
permit to be in possession of, or to use, a prohibited firearm mentioned in the
Act, schedule 1, item 15 during the ordinary exercise of the police
officer’s functions as an inspector under the Dangerous Substances Act
2003.
Part
1.4 Legislation Act
2001
[1.5] Schedule
1, part 1.2, table, item about Dangerous Goods Act
1975
omit
Part
1.5 Occupational Health and Safety Act
1989
[1.6] Section
5 (1), definition of associated law, paragraph (a)
omit
[1.7] Section
5 (1), definition of associated law
renumber paragraphs when Act next republished under Legislation
Act
Part
1.6 Occupational Health and Safety
Regulations 1991
[1.8] Regulation
2, definitions of blaster, blast plan, dangerous goods,
explosive, firework, permit and
use
omit
omit
substitute
2A Matters that are a dangerous occurrence—Act,
s 5 (1), def dangerous occurrence
(1) Each of the following is declared to be a dangerous
occurrence:
(a) damage to a boiler, pressure vessel, plant, equipment or other thing
that endangers or is likely to endanger the health or safety of people at a
workplace;
(b) damage to, or failure of, a load-bearing member or control device of a
crane, hoist, conveyor, lift, escalator, moving walk, plant, scaffolding, gear,
amusement device or public stand;
(c) an uncontrolled fire, explosion, or escape of gas, a dangerous
substance or steam;
(d) another occurrence involving imminent risk of—
(i) fire, explosion, or an escape of gas, a dangerous substance or steam;
or
(ii) death of, or serious personal injury to, anyone; or
(iii) substantial damage to property.
(2) In this regulation:
dangerous substance—see the Dangerous Substances Act
2003, section 10.
omit
Part
1.7 Road Transport (Alcohol and Drugs)
Act 1977
[1.12] Section
4B (1) (f) (ii)
substitute
(ii) a vehicle on which a sign or marking is required to be displayed
under the Dangerous Substances Act 2003; or
[1.13] Section
4B (5), definition of dangerous goods vehicle
omit
Part
1.8 Road Transport (Safety and Traffic
Management) Regulations 2000
[1.14] Regulation
59 heading
substitute
59 Carrying dangerous substances
[1.15] Regulation
59 (2), definition of dangerous goods
omit
[1.16] Regulation
59 (2), definition of explosives substance
substitute
explosive substance—
(a) see the Dangerous Substances Act 2003, section 73, definition
of explosive; and
(b) includes any other dangerous substance under that Act that can
explode.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• administrative unit
• chief executive
• contravene
• fail
• found guilty
• indictable offence (see s 190)
• instrument (see s 14)
• notification (see s 63)
• penalty unit (see s 133)
• State.
alleged contravention, for part 6.5 (Enforceable
undertakings)—see section 123 (3) (b).
analysis, of a dangerous substance or anything else,
includes examining or testing the substance or thing.
approved code of practice means a code of practice approved
under section 219 (1).
Australian Dangerous Goods Code—see section 10
(3).
Australian Explosives Code—see section 10
(3).
Australian Standard 1940—see section 10 (3).
at premises includes in or on the premises.
authorised analyst means a person appointed as an authorised
analyst under section 210.
authorised person, for part 5.2 (Preservation of site of
dangerous occurrence)—see section 85.
basis, for giving a prohibition notice—see section
108.
business includes—
(a) a business not carried on for profit; and
(b) a trade or profession.
cause death or injury to a person, or substantial damage to
property or the environment, means substantially contribute directly or
indirectly to the death, injury or damage.
close associate, of someone, for chapter 4 (Licences for
dangerous substances)—see section 48.
compliance agreement—see section 94 (2).
condition, of a licence, includes a condition prescribed
under the regulations that applies to the licence.
connected, with an offence, for chapter 7 (Enforcement
powers)—see section 141.
carry a dangerous substance or anything else means move the
substance or thing by any means.
Examples of carry for a dangerous
substance
1 moving, transferring or transporting a dangerous substance within a
processing system or pipeline
2 loading a dangerous substance onto, and unloading the substance from, a
vehicle
3 driving a vehicle carrying a dangerous substance
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
controlled dangerous substance—see section
73.
correctly—
(a) classify a dangerous substance—see section 13; and
(b) pack, store, label or placard a dangerous substance—see
section 14.
corresponding law means—
(a) a law of the Commonwealth, a State, another Territory or New Zealand
corresponding, or substantially corresponding, to this Act; or
(b) a law of the Commonwealth, a State, another Territory or New Zealand
that is declared under the regulations to be a corresponding law, whether or not
the law corresponds, or substantially corresponds, to this Act; or
(c) the Dangerous Goods Act 1975.
dangerous occurrence—see section 38.
dangerous substance—
(a) for part 6.4 (Prohibition notices)—see section 108;
and
(b) for the Act—see section 10.
data, for chapter 7 (Enforcement powers)—see section
141.
data storage device, for chapter 7 (Enforcement
powers)—see section 141.
decision-maker, for chapter 9 (Administrative review of
decisions)—see section 187.
disciplinary action—see section 68 (3) and
(4).
disciplinary notice—see section 68 (1).
dispose, of a dangerous substance or anything else, includes
impound, isolate or destroy the substance or thing.
emergency order—see section 179.
enforceable undertaking, for part 6.5—see section
122.
environment includes the built and natural
environment.
examine includes inspect, weigh, count, test and
measure.
executive officer, of a corporation, means a person, by
whatever name called and whether or not the person is a director of the
corporation, who is concerned with, or takes part in, the corporation’s
management.
explosive—see section 73.
export a dangerous substance or anything else means export
the substance or thing from the ACT.
handle, a dangerous substance—see section 11.
handling authority—see section 56 (1) (d).
hazard—see section
15.
import a dangerous substance or anything else means import
the substance or thing into the ACT.
improvement notice—see section 100.
incorporated document means—
(a) a document mentioned in section 10 (3); or
(b) an instrument applied, adopted or incorporated under the
regulations.
infringement notice—see the Magistrates Court Act
1930, section 117.
infringement notice offence—see the Magistrates
Court Act 1930, section 117.
inspector means an inspector under section 207.
install plant or a system includes construct the plant or
system.
internally reviewable decision—see section 188
(1).
internal reviewer—see section 188 (3).
licence means a licence issued under this Act.
manufacture a dangerous substance or anything else
includes—
(a) make, remake, alter, break-up, process, recondition or treat the
substance or thing; and
(b) change the substance or thing in a way that affects its properties or
performance.
NOHSC approved criteria—see section 10 (3).
NOHSC List of Designated Hazardous Substances—see
section 10 (3).
non-commercial, for the handling of a dangerous
substance—see section 12.
offence, for chapter 7 (Enforcement powers)—see section
141.
officer, of a corporation, means—
(a) a director or secretary of the corporation; or
(b) a person—
(i) who makes, or takes part in making, decisions that affect all, or a
substantial part, of the business of the corporation; or
(ii) in accordance with whose instructions or wishes the directors of the
corporation are accustomed to act (excluding advice given by the person in the
proper exercise of functions attaching to the person’s professional
capacity or business relationship with the directors or the corporation); or
(c) a receiver, or receiver and manager, of the corporation’s
property; or
(d) an administrator of the corporation; or
(e) an administrator of a deed of company arrangement executed by the
corporation; or
(f) a liquidator of the corporation; or
(g) a trustee or other person administering a compromise or arrangement
made between the corporation and someone else.
person assisting, in relation to a search warrant, for
chapter 7 (Enforcement powers)—see section 141.
person in charge, of premises, includes—
(a) a person believed, on reasonable grounds, to be a person in charge of,
or the occupier of, the premises and a person apparently in charge of, or the
occupier of, the premises; and
(b) anyone else in control of the premises.
Note Premises includes any land, structure or vehicle and
any part of an area of land, a structure or vehicle.qza
person in control—see section 17.
plant includes—
(a) machinery or equipment (including scaffolding), or an appliance,
implement or tool; and
(b) a container used for packing, carrying or storing dangerous
substances; and
(c) a vehicle used for handling a dangerous substance; and
(d) a component, fitting or accessory for the plant; and
(e) a building or other structure.
premises—
(a) includes land or a structure or vehicle and any part of an area of
land or a structure or vehicle; and
(b) to which a prohibition notice relates—see section 108.
prohibited dangerous substance—see section
73.
prohibition notice—see section 109.
reasonable steps, in relation to a risk—see
section 16.
recall order, for chapter 8 (Emergency orders)—see
section 178.
relevant person, for an enforceable undertaking—see
section 122.
relevant responsible person—
(a) for a compliance agreement—see section 93; and
(b) for an improvement notice—see section 99; and
(c) for a prohibition notice—see section 108.
responsible person, for a dangerous substance—see
section 18.
reviewable decision—see section 186.
risk—see section
15.
safety duty, for part 3.2 (Failure to comply with safety
duties)—see section 41.
safety management system, for handling a dangerous
substance—see section 19.
safety undertaking, for part 6.5 (Enforceable
undertakings)—see section 123 (2).
search warrant, for chapter 7 (Enforcement powers)—see
section 141.
sell includes—
(a) barter or offer or attempt to sell; and
(b) possess for sale; and
(c) advertise for sale (whether directly or indirectly); and
(d) display for sale; and
(e) cause or allow to be sold or offered for sale; and
(f) dispose of in any way for valuable consideration; and
(g) dispose of to an agent for sale on consignment; and
(h) give away for the purpose of advertisement or for trade or commerce;
and
(i) sell for the purpose of resale.
serious harm, to a person—see the Criminal Code,
dictionary.
site, of a dangerous occurrence at premises, for part 5.2
(Preservation of site of dangerous occurrence)—see section 85.
site preservation period for part 5.2 (Preservation of site
of dangerous occurrence)—see section 85.
substance includes a matter, material or thing, whether
solid, liquid or gas or in a mixture.
suitable person, for a licence—see section
49.
supply a dangerous substance or anything else
includes—
(a) sell the substance or thing; and
(b) transfer ownership of, or responsibility for, the substance or
thing.
system includes the following:
(a) a mechanical system;
(b) an electronic system;
(c) a computer program;
(d) a system of work;
(e) a management system;
(f) a safety management system;
(g) a system prescribed under the regulations;
(h) a system that includes any combination of the systems mentioned in
paragraphs (a) to (g).
trade or commerce includes a business or professional
activity.
vehicle means any kind of vehicle on wheels (including a
vehicle used on railways or tramways), and includes an aircraft or vessel used
on water.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2003.
2 Notification
Notified under the Legislation Act on 2003.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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