Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
EXPLOSIVES TRANSPORT REGULATIONS 2002 2002 NO. 92
Statutory Rules 2002 No. 92EXPLANATORY STATEMENT
Minute No. 7 of 2002 - Minister for Regional Services, Territories and Local Government for the Minister for Transport and Regional Services
Subject Explosives Act 1961
Explosives Transport Regulations 2002
Section 21 of the Explosives Act 1961 (the Act) provides that the Governor General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 10(1) of the Act provides that the regulations may make provision for matters arising out of or incidental to the handling of explosives to which Part II of the Act - handling of explosives - applies. They may also make provision for safety measures to be observed at, in or upon a place, vehicle, aircraft or vessel at, in, upon or in the vicinity of which there are explosives to which Part II of the Act applies.
Section 15 of the Act provides that the regulations may empower a person to provide, by order, for any matter that may be provided for by the regulations.
The purpose of the Regulations is to give effect to the 'Australian Code for the Transport of Explosives by Road and Rail, March 2000' (the AE Code) and to reduce as far as is practicable the risks of personal injury, property damage or harm to the environment and to public safety arising from the land transport of Commonwealth explosives.
The Regulations harmonise, as far as practicable, the Commonwealth explosive transport practices with those of the commercial explosive transport industry. This will help to improve transport safety, since similar rules will apply, regardless of whether a transport company is transporting Commonwealth explosives or other explosives that are subject to State and Territory laws. The Regulations:
• give effect to the standards, requirements and procedures of the AE Code so far as they apply to the transport of Commonwealth explosives by road and rail;
• provide for the appointment of a Competent Authority to monitor compliance with and grant exemptions to the Regulations;
• prohibit the transport of Commonwealth explosives which have not been authorised by the Competent Authority;
• provide for the appointment of compliance auditors by the Competent Authority so as to conduct audits of road and rail transport operations involving Commonwealth explosives;
• provide for the Regulations not to apply in certain circumstances;
• provide for the making of orders by the Minister;
• provide for the granting of exemptions, from compliance with a provision of the Regulations, by the Competent Authority;
• provide for the development of, and compliance with the requirements of, approved security plans; and
• Provide for amendments to the AE Code to apply to the transport of authorised Commonwealth explosives.
The Regulations provide for compliance with approved security plans by Commonwealth agencies, and by persons who transport authorised Commonwealth explosives on behalf of the Commonwealth.
Exemptions have been provided in the Regulations to cater for some activities of the Commonwealth involving transport of explosives that are unique to the Commonwealth.
Although some transport activities of the Commonwealth are exempted, they remain subject to military or police discipline, and safety and security policies of the Commonwealth. The requirements of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (OHS (CE) Act) and its associated Regulations continue to apply in regard to the duties imposed on Commonwealth employers to protect the health and safety at work of Commonwealth employees and third parties.
The Regulations repeal the Explosives Regulations 1991 and the Explosives Areas Regulations 1962. The former have been repealed, rather than amended due to the extent of amendments required to give effect to the AE Code. The Explosives Areas Regulations 1962 have been repealed, as they no longer reflect explosive activities that are conducted by the Department of Defence at Point Wilson in Victoria and conflict with the Regulations. The Regulations apply to transport activities carried out in the Point Wilson facility.
In order to address concerns about the security of Commonwealth explosives during transport, a requirement to comply with the approved security plans of the Australian Defence Force, the Department of Defence, the Australian Federal Police, and the Australian Customs Service has been included in the Regulations. This gives legal effect to security policies of these Commonwealth agencies with respect to the land transport of explosives.
Extensive consultation occurred with affected Commonwealth agencies, including the Department of Defence, the Australian Federal Police, and the Australian Customs Service.
Details of the Regulations are attached. The Regulations commenced on gazettal.
Authority: Section 21 of the Explosives Act 1961
ATTACHMENT
Explosives Transport Regulations 2002
Item 1 provides for the name of the Regulations to be the Explosives Transport Regulations 2002.
Item 2 provides that the Regulations commenced on gazettal.
Item 3 provides that the objects of the Regulations are to reduce as far as practicable the risks of personal injury, property damage and environmental harm arising from the transport of Commonwealth explosives by road or rail and the risk of that transport endangering public safety. The objects also give effect to the standards, requirements and procedures of the AE Code so far as it applies to the transport of Commonwealth explosives by road or rail and to establish safeguards for ensuring their security.
This Item also inserts Note 1 that identifies the legislation that sets out the requirements in relation to the transport of Commonwealth explosives by air or sea.
This Item also inserts Note 2 that identifies some of the State and Territory laws that apply to the transport of Commonwealth explosives so far as they may operate concurrently with the laws of the Commonwealth.
Item 4 provides for the repeal of the Explosives Regulations 1991 (Statutory Rule No. 329) and the Explosives Areas Regulations 1962 (Statutory Rule No. 64).
Item 5 provides for the definition of a number of terms for the purposes of the Regulations.
Item 5 also inserts a Note to the definition of 'Commonwealth explosives', which is defined by sections 5 and 9 of the Explosives Act 1961 (the Act).
Item 6 provides for specified terms to take the meaning given to them in the AE Code.
Item 7 provides that a reference to 'a person who is involved in the transport of Commonwealth explosives or authorised Commonwealth explosives' includes a person who does one or more of a specified range of transport-related activities.
Item 8 provides for a reference to the Competent Authority in the AE Code to be read as if it were a reference to the Competent Authority appointed by the Minister under regulation 10.
Item 9 provides for the Regulations not to apply in certain circumstances. There are some circumstances where it is not possible for the Commonwealth to comply with the Regulations or with the AE Code, which necessitated exemption of such activities from the Regulations.
Sub-item 9(1)(a) provides that the Regulations do not apply to the packaging and marking by the Australian Defence Force or the Department of Defence of Commonwealth explosives which are recovered in explosive ordnance disposal operations conducted by these organisations. In these situations it is often not possible to identify the type of explosive which has been found (due to age or deterioration of the explosive) and therefore not possible to authorise them or to meet all the requirements of the AE Code.
Sub-item 9(1)(b) provides that the Regulations do not apply to a person who is involved in the .transport of Commonwealth explosives during an approved special activity carried on by the Australian Defence Force, or any training or other activity carried on for that approved special activity. Such activities are defined further in Sub-item 9(2).
Sub-item 9(1)(c) provides that the Regulations do not apply to the transport of an explosive demolition kit by the Australian Defence Force or the Australian Federal Police for the demolition of explosives. Such kits are used during emergencies and may contain unidentifiable explosives to be destroyed. In such a case, it is not possible to comply with the Regulations and the AE Code. (The OHS (CE) Act and operational and safety policies of these organisations continue to apply during such activities.)
Sub-item 9(1)(d) provides that the Regulations do not apply to a person who is involved in the transport of Commonwealth explosives during an authorised covert operation carried on by the Australian Federal Police; or any training or other activity carried on for that operation. During such operations, compliance with the public information (labelling and vehicle) placarding) aspects of the AE Code would expose and may hamper or reduce the rapidity of a response of the Australian Federal Police. (The OHS (CE) Act and Australian Federal Police operational and safety policies apply during such activities.)
Sub-item 9(1)(e) provides that the Regulations do not apply to a person who is involved in the transport of Commonwealth explosives during an operation carried on by the AFP special operations team; or during any training or other activity carried on for that operation. During such an operation, compliance with the public information (labelling and vehicle placarding) aspects of the AE Code would expose and may hamper or reduce the rapidity of a response of the Australian Federal Police. (The OHS (CE) Act and Australian Federal Police operational and safety policies apply during such activities.)
Sub-item 9(1)(f) provides that the Regulations do 1 not apply to explosives subject to the control of the Australian Customs Service under the Customs Act 1901, except where permission has been given under section 71E of the Customs Act 1901 to the owner of the explosives to transport the explosives to a place specified in the section 71E application. The intention of this exemption is not to require authorisation of explosives by the Commonwealth competent authority when explosives are only under the temporary control of Australian Customs Service for the purpose of Customs clearance. During section 71E transport, compliance with the Regulations is required. (Following Customs clearance, explosives either come under the regulatory controls of the States or Territories or, if owned by the Commonwealth, subject to the requirement of the Regulations.)
Sub-item 9(1)(g) provides that the Regulations do not apply where explosives have been detected and seized by a Commonwealth public official in circumstances in which it is reasonable to believe that there is a threat to national security or public safety. In these circumstances, which are often emergency situations, it is not possible to identify and authorise the explosive or to fully comply with aspects of the AE Code, such as the placarding of vehicles.
Sub-item 9(1)(h) provides that the Regulations do not apply to the transport of small quantities of Commonwealth explosives on a light vehicle by a Commonwealth public official if the explosives are authorised explosives within the meaning of the AE Code and the explosives do not include detonators. The NEQ (Net Explosive Quantity) of the explosives cannot exceed 1kg. The intent of this sub-item is to allow the transport of small quantities (up to 1 kilogram) of low-risk and publicly - available explosives (such as emergency marine flares and explosive rivets) and spare ammunition for armed Commonwealth public officials without compliance with the Regulations. However, the OHS (CE) Act and the safety, operational and security policies of the Commonwealth apply to Commonwealth employees under such circumstances.
Sub-item 9(2) defines specified terms for the purposes of Item 9. These include an 'approved special activity' of the Australian Defence Force and an 'authorised covert operation' of the Australian Federal Police. These operations are exempted from the Regulations when authorised by specified ranks. The intention of this sub-item is to ensure that, where strictly necessary, operations of the Commonwealth relating to defence, counter-terrorism or domestic violence are not hampered or exposed by the need to comply with an aspect of the Regulations, thereby jeopardising effective response to a risk.
Item 10 provides for the appointment by the Minister, of a Competent Authority for the purposes of the Regulations. This Item also provides that the Competent Authority may exercise the powers of a compliance auditor. The appointment of the Competent Authority may be subject to conditions. Such an item is necessary to ensure that there is a Competent Authority who can authorise explosives and check compliance with the Regulations.
Item 11 provides for the Competent Authority to appoint compliance auditors for the purposes of the Regulations. The appointment of compliance auditors may be subject to conditions. Such an item is necessary so that the Competent Authority can appoint persons to monitor compliance with the Regulations.
Item 12 provides that the Competent Authority must issue an identity card to a compliance auditor. The Item also specifies the information that is to be contained on the identity card. The Item also requires that a person who ceases to be a compliance auditor must return the identity card to the Competent Authority as soon as practicable. Item 12 also inserts a Note indicating that penalties for failure to comply with the Regulations are set by section 20 of the Act. Such an Item is necessary so as to ensure that the occupier of premises in which an audit is to be conducted can identify compliance auditors.
Item 13 provides for compliance auditors to conduct audits, of any aspects of activities related to the transport of Commonwealth explosives, for the purpose of establishing whether the legislation is being complied with. This Item also sets out the powers of the compliance auditor in relation to carrying out the audit. These powers include entry to premises with the consent of the occupier, inspecting the premises, taking copies of or extracts from any documents inspected, taking measurements and making sketches or taking photographs. This item is necessary to ensure that the role of the compliance auditor is circumscribed.
This Item also provides that the compliance auditor is not authorised to use force to any extent for the purpose of conducting the audit or to conduct the audit against the expressed wishes of the occupier. In the context of the Commonwealth's explosive transport activities, it was considered unnecessary to provide for inspection without prior permission from the occupier of premises. If a coercive inspection regime were considered necessary in the future, the Act would require amendment to provide the necessary powers.
This Item also provides that the compliance auditor must give a written report to the Competent Authority within 14 days of completing the audit. Such a time period would allow time for completion of the report, but ensure that the Competent Authority receives such a report in a reasonable time.
This Item also defines specified terms for the purposes of the regulation. It also inserts a Note indicating that penalties for failure to comply with the sub-regulations (2), (4) or (5) are set by section 20 of the Act.
Item 14 provides for the Minister to make orders in relation to the handling of Commonwealth explosives and in relation to safety measures to be observed at, in or on a place, vehicles, aircraft or vessel at, in, on or in the vicinity of which there are Commonwealth explosives. This regulation is made under section 15 of the Act.
This Item also provides that the order will prevail over the Regulations to the extent of any inconsistency and the order will cease to have effect at the end of 12 months or at the end of any shorter period specified in the order, unless it is sooner revoked. This Item gives effect to section 15 of the Act.
This Item also inserts a Note indicating that penalties for failure to comply with an order are set by section 20 of the Act. This Item also inserts a Note indicating that orders made under the regulation will be disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
Item 15 provides for applications for exemption from compliance with a provision of the Regulations. In making the application, the applicant must, among other things, state how they will ensure that the explosives will be handled in such a way as to meet the object of the Regulations. Such an exemption power is necessary because of the prescriptive nature of the AE Code.
Item 16 provides for the Competent Authority to grant an exemption from compliance with a provision of the Regulations. In deciding whether to grant exemption, the Competent Authority must have regard to whether the explosives proposed to be covered by the exemption will be handled in such a way that reduces as far as practicable the risks of personal injury, property damage, environmental harm, the endangering of public safety and ensures their security. This item is necessary to ensure that in giving permission for an applicant to not comply with a prescriptive requirement of the Regulations or AE Code, the Competent Authority nonetheless has regard to the objects of the Regulations.
This Item also provides that in granting an exemption, the Competent Authority may specify conditions, notify the applicant in writing of the decision state the provisions of the Regulations that are the subject of the exemption. The notice must also specify the person, or class of persons, to whom the exemption applies, specify the Commonwealth explosives to which the exemption relates, state the period for which the exemption is to remain in force, state the conditions to which the exemption is subject and specify the geographical area to which the exemption applies. This Item also inserts a Note that a decision to refuse an exemption is reviewable by the Administrative Appeals Tribunal.
This Item also provides that the exemption remains in force for the period specified in the notice, unless it is revoked sooner, and that the Competent Authority must retain a copy of the each exemption granted for 2 years after the day the exemption was given (see sub-item 16(7)). The Item also inserts a Note indicating that penalties for failure to comply with subregulation (7) are set by section 20 of the Act.
Item 17 provides for the requirements for provision of documentation for road and rail transport of section 8.2.7 and 8.2.8 of Chapter 8 of the AE Code to apply to exemptions granted under regulation 16. This has the effect of requiring copies of exemptions to be carried in the vehicle
Item 18 provides for the Minister to delegate to the Competent Authority all of any of the Minister's powers and functions under the Regulations other than the power to make orders (see Item 14) and the power of delegation set out in this Item.
This Item also provides for the Competent Authority to delegate all or any of its functions and powers under the Regulations other than the power to appoint a person to be a compliance auditor under regulation 11, the grant of exemptions under regulation 16 and the power of delegation set out in subitem 18(2).
Item 19 provides for the review, by the Administrative Appeals Tribunal, of decisions made by the Competent Authority under Regulation 16.
Item 20 provides for the prohibition of the transport of unauthorised Commonwealth explosives. This Item also inserts a Note indicating that penalties for failure to comply with the regulation are set by section 20 of the Act. This item ensures that, prior to transport, the explosive has been authorised (which involves identification and hazard classification) by the Competent Authority.
Item 21 provides that Division 4.1 (titled 'Road and rail transport of authorised Commonwealth explosives') does not apply in certain circumstances. This item exempts certain activities of the Commonwealth involving transport of explosives for which it is not possible to comply with the requirements of the AE Code.
Sub-item 21 (1)(a) provides that Division 4.1 does not apply to transport of authorised Commonwealth explosives in a place that is occupied or controlled by the Defence Force or that is declared under regulation 49 of the Defence Force Regulations 1952 to be a defence practice area or where Commonwealth explosives are manufactured or tested.
This item is necessary because many Defence Force vehicles and other vehicles which transport explosive materials during a manufacturing process cannot comply with the design requirements of the AE Code. (The handling of explosives in manufacturing facilities is subject to State and Territory occupational health and safety and explosive safety legislation.)
Sub-item 21 (1)(b) provides that Division 4.1 does not apply to the transport, between a place that is occupied or controlled by a part of the Defence Force and a nearby place where a particular training exercise is being, or is to be, carried out by that part of the Defence Force, on a vehicle forming part of the equipment of that part of the Defence Force, of authorised Commonwealth explosives to be used for the purposes of that training exercise. This item is necessary because during training exercises, many Defence Force vehicles cannot comply with the design aspects of the AE Code.
This Item also defines the term 'Defence Force' for the purpose of the regulation. This is necessary to ensure that naval, military or air forces of another country that are in Australia with the approval of the Commonwealth and are undertaking joint defence training exercises are included in the scope of the item.
Item 22 provides that a person who is involved in the transport of authorised Commonwealth explosives must comply with the AE Code, as amended by Schedule 1 of the Regulations.
This item is necessary to give effect to the AE Code in the Regulations.
This Item also provides that strict liability applies to the physical element that a requirement of the AE Code is modified by Schedule 1 of the Regulations. This ensures that the
prosecution will not be required to prove, as part of the offence, that the defendant had knowledge that a requirement of the AE Code is modified by Schedule 1.
Item 23 provides that persons (other than those listed in sub-item 23(1)) must not be in, on or in the vicinity of a vehicle if authorised Commonwealth explosives are being loaded onto, or unloaded from the vehicle, without the consent of the person in charge of the vehicle. This item is necessary to ensure that unauthorised persons are not present during loading or unloading.
Sub-item 23(1) inserts a Note indicating that penalties for a contravention of the regulation are set by section 20 of the Act. Sub-item 23(1) also inserts a Note that refers readers to the provisions of the AE Code about person riding in vehicles that are carrying explosives.
This Item also defines certain terms for the purposes of the Regulation.
Item 24 prohibits the transport of authorised Commonwealth explosives that are not stable or are not capable of passing the tests, or meeting the criteria, applicable to the explosives set out or referred to in the manual called 'UN Recommendations: Manual of Tests and Criteria'. Explosives of a kind that are included in class 1.1A are not permitted to be transported without written permission from the Competent Authority. This Item is necessary to ensure that explosives that have become unstable or have deteriorated over time or explosives that are primary explosive substances (which pose extreme danger), regardless of whether they have been previously authorised, are not transported, unless written permission has been obtained from the Competent Authority. (Explosives included in Class 1.1.A are primary explosive substances that have a mass explosion hazard.)
This Item also inserts a Note indicating that penalties for a contravention of the regulation are set by section 20 of the Act. Item 24 also inserts a Note that indicates that the manual, 'UN Recommendations: Manual of Tests and Criteria' is available from the United Nations Sales Section in Geneva.
Item 25 provides that a person must not engage in activities that are likely to result in a fire or explosion affecting the explosives on the vehicle. The purpose of this regulation is to prevent a fire or explosion involving the explosives.
This Item also inserts a Note indicating that penalties for a contravention of the regulation are set by section 20 of the Act. This Item also inserts a Note that refers readers to the provisions of the AE Code about smoking and other fire hazards near vehicles that are carrying explosives.
Item 26 defines, and sets out the requirements for, Commonwealth agency security plans and provides for approval of the security plans by the Competent Authority. The purpose of this item is to ensure that the Commonwealth transports its explosives in accordance with security plans which address not only measures to prevent theft or access to the explosives by unauthorised persons, but also additional measures for emergencies and to ensure consideration of the safest practicable routes.
Sub-item 26(3) defines the term 'Commonwealth agency' for the purposes of the regulation.
Item 27 provides that a person who transports authorised Commonwealth explosives for a Commonwealth agency (as defined at Item 26) must comply with any requirement of an approved security plan that is applicable to the person and that the agency has expressly made known to the person. This item gives effect to the security plans.
This Item also provides that if there is an inconsistency between a requirement of an approved security plan and a requirement of the Regulations, or of an order made under the Regulations the requirement of the Regulations, or of the order, prevails to the extent of the inconsistency.
This Item also inserts a Note indicating that penalties for failure to comply with the Regulations are set by section 20 of the Act.
This Item also inserts a Note with regard to the defendant bearing an evidential burden where the defendant wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence.
This Item also inserts a Note that a security plan of the Australian Customs Service, the Defence Force, the Australian Federal Police or the Department of Defence may be subject to national security classification and may be made available only to security-assessed persons.
Item 28 provides that a consignor who consigns a container that has previously contained Commonwealth explosives must, if the container is free from explosives, give a certificate to that effect. This Item also provides that if the consignor gives a certificate for the container, the consignor must remove from it, or deface or cover, a label or marking on the container that specifies a classification code or United Nations number.
This Item also inserts a Note indicating that penalties for a contravention of sub-regulation (1) or (2) are set by section 20 of the Act.
Item 29 provides that a container that has not been certified as free from explosives in accordance with Item 28 must be handled as if it contains explosives. Item 29 also provides that if a label is affixed to, or any marking on, the container or package specifies a classification code or United Nations number then the label or marking must be left intact and kept unobscured. This is to ensure that any container which may still contain residues of explosive material is treated as if it contains explosive.
Items 28 and 29 give effect to s.5 of the Act.
Schedule 1 sets out the modifications to the AE Code as contemplated by Item 22. The amendments to the AE Code ensure that it is appropriate to the transport of Commonwealth explosives.
Section 3.6(2) of Chapter 3 of the AE Code is amended so that a Commonwealth explosive manufactured prior to commencement of the Regulations may continue to be labelled with an explosive class label that displays the bursting bomb symbol. This item is necessary to ensure that explosives correctly labelled under previous requirements can comply with the Regulations.
Section 6.2(4) of Chapter 6 of the AE Code is amended so that Australian Defence Force registered vehicles, which cannot comply with the AE Code requirements for carrying boxes and enclosed vehicle bodies in Category 3 quantities, are excluded.
Section 6.2(4) of Chapter 6 of the AE Code is amended so that the Competent Authority may approve alternative vehicles for transporting Commonwealth explosives when the size or shape of the load, or the way in which the vehicle must be loaded or unloaded, precludes transport in an enclosed vehicle body. This item is necessary as there are some loads (eg large torpedoes) and some transport operations (eg loading on to vessels) which cannot comply with the requirements of the AE Code in Section 6.2(4).
Section 7.3.2(6) of Chapter 7 of the AE Code is omitted so that- Commonwealth explosives are to be segregated in accordance with the amended Table 7.2 (see next item).
Table 7.2 'Permitted mixed transport for Commonwealth Explosives' in Chapter 7 of the AE Code, is replaced with a new table which allows for the peculiar load segregation requirements of Commonwealth explosives. (Persons transporting explosives which are not Commonwealth explosives must continue to do so in accordance with the unamended Table 7.2 in the AE Code.)