EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 71

 

ISSUED BY THE AUTHORITY OF THE

MINISTER FOR THE ENVIRONMENT AND HERITAGE

 

Ozone Protection and Synthetic Greenhouse Gas Management Amendment

Regulations 2005 (No. 1)

 

Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing 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 45A (1) of the Act provides, in part, that regulations may be made that:

▪          regulate the sale, purchase, acquisition and disposal of scheduled substances; and

▪          regulate the storage, use or handling of scheduled substances; and

▪          confer functions on persons or bodies in relation to these matters.

 

Section 22 of the Act provides that the regulations may make provision for the periodic publication of details of licences granted under the Act, applications for licences that have been refused and any licences that have been cancelled or surrendered.

 

The purpose of the Regulations is to:

▪          create a permit system for people who use methyl bromide in feedstock applications. A permit system would allow the sale of methyl bromide to authorised feedstock users and establish appropriate monitoring processes;

▪          minimise avoidable emissions of ozone depleting substances (ODS) and synthetic greenhouse gases (SGG) used as fire extinguishing and explosion suppression agents through implementing a licensing scheme, based on core competencies for people handling these substances, and a system of authorisations which would be required by people to buy and sell ODS and SGG used in the fire protection industry to ensure that these materials are only available for use by licensed persons; and

▪          provide for the periodic publication of licences granted or cancelled in the Gazette.

 

Methyl bromide is controlled as an ozone depleting substance under Schedule 1 of the Act. It contributes to the depletion of the ozone layer when released into the atmosphere. However, in a feedstock application methyl bromide is converted from its original composition to manufacture a different chemical, without atmospheric emissions.  The Regulations would prescribe reporting obligations for persons permitted to use methyl bromide as a feedstock as well as suppliers of methyl bromide for this purpose.

 

The Regulations are consistent with Australia’s obligations under the Montreal Protocol on Substances That Deplete the Ozone Layer (the Protocol) by ensuring stocks of methyl bromide are only sold and used for authorised purposes.  Under the Protocol certain uses of methyl bromide were phased out from 1 January 2005 except where Parties to the Protocol granted a critical use exemption.  Regulations controlling the sale and use of methyl bromide for critical use exemption and quarantine and pre-shipment uses commenced on 1 January 2005. 

 

The Regulations will assist in developing a comprehensive scheme for the management of ODS and SGG used in the fire protection industry in Australia which will replace existing State and Territory licensing and authorisation schemes with one national system.   They would establish a co-regulatory approach to the administration of the licensing and authorisation requirements by providing for the licensing and authorisation system to be administered by an industry board.

 

The Regulations for the management of ODS and SGG in the fire protection industry implement recommendations arising from the Review of the Commonwealth’s Ozone Protection Legislation in 2001.  

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 May 2005.

 

Authority:  Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989

Attachment

 

Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2005 (No. 1)

 

Regulation 1            Provides that the Regulations are to be known as the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2005 (No. 1).

 

Regulation 2            Provides that the Regulations commence on 1 May 2005.

Regulation 3            Provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (the Principal Regulations) are amended in accordance with the amendments contained in Schedule 1. 

Schedule 1              Item 1 inserts regulation 4 after regulation 3C of the Principal Regulations and provides for the publication of information regarding licences. 

                               Subregulation 4 (1) provides that the Secretary of the Department of the Environment and Heritage may publish in the Gazette in March and September of each year the details of licences granted and cancelled. 

                               Subregulation 4 (2) provides that the Secretary may publish the type of licence granted or cancelled, the name of the licensee and the date on which the licence was granted or cancelled.

                               Item 2 amends subparagraphs 100 (a)(i) and 100 (b)(i) to include fire protection as one of the industries that the Principal Regulations impose storage, use and handling controls on.

                               Item 3 amends regulation 200 to insert a definition of feedstock permit, which means a permit granted under regulation 242.

                               Item 4 substitutes the definition of nominated supplier in regulation 200, which means, for an exempt person, a person shown as a nominated supplier for the exempt person on the Non-QPS Exemption List, and means, for a holder of a feedstock permit, a person shown as a nominated supplier on the holder’s permit. 

                               Item 5 amends regulation 200 by substituting “1 January 2005” with “1 May 2005”.

                               Item 6 substitutes regulation 201, which defines the uses of methyl bromide to be used to interpret Division 6A.3, of the Principal Regulations which deals with methyl bromide.  

                               Subregulation 201 (1) provides that the uses of methyl bromide are quarantine and pre-shipment (QPS) applications, non-QPS applications and as a feedstock. 

                               Subregulation 201 (2) provides that methyl bromide is used for a quarantine and pre-shipment (QPS) application when methyl bromide is used to prevent the introduction, establishment or spread of a pest or disease, and this use is performed or authorised by a Commonwealth, State or Territory authority.  It also means that the use of methyl bromide to treat a commodity before it is exported where this is required by the importing country or a law of the Commonwealth is a QPS application. 

                               Subregulation 201 (3) provides that methyl bromide is used for a non-quarantine and pre-shipment (non-QPS) application when methyl bromide is not used for a QPS application or as a feedstock. 

                               Item 7 inserts regulation 214 and regulation 215 in Subdivision 6A.3.2 of the Principal Regulations. 

                               Subregulation 214 (1) provides that it is an offence for a person to use methyl bromide as a feedstock unless the person holds a feedstock permit or is acting on behalf of the holder of a feedstock permit.

                          Subregulation 214 (2) provides that it is an offence if, during a year, the amount of methyl bromide used as a feedstock by or for the holder of a feedstock permit exceeds the amount the holder is permitted to use under the permit. 

                          Subregulation 214 (3) provides that it is an offence for a holder of a feedstock permit to use methyl bromide to manufacture a chemical other than a chemical that the holder is permitted to manufacture under their permit. 

                          Subregulation 214 (4) provides that is an offence for a holder of a feedstock permit, who signs a declaration outlined by paragraph 220 (1) (e) stating the methyl bromide is for use as a feedstock, to use some or all of the methyl bromide for a use other than as a feedstock. 

                          Subregulation 214 (5) provides that the offences in subregulations 214 (1), 214 (2), 214 (3) and 214 (4) are strict liability offences.  The penalty in each case is ten penalty units.  One penalty unit is $110 under the Crimes Act 1914.

                          Subregulation 215 (1) provides that it is an offence for a person (the supplier), other than an importer, to sell methyl bromide to a buyer, who signs a declaration outlined by paragraph 220 (1) (e) stating the methyl bromide is for use as a feedstock and if the following criteria are met:

§          if the buyer does not hold a feedstock permit or is not acting on behalf of the holder of a feedstock permit; and

§          if the buyer holds a feedstock permit or is acting on behalf of the holder of a feedstock permit and the supplier is not a nominated supplier for the holder, or the supplier sells the buyer more methyl bromide for feedstock purposes than is permitted by the feedstock permit for that year.

                          Subregulation 215 (2) provides the definition of importer to be used to interpret regulation 215. “Importer” means a licensee who holds a controlled substances licence that allows the licensee to import methyl bromide and is subject to a condition to the effect that methyl bromide imported for use as a feedstock may only be supplied to a person, or persons, specified on the licence.

                          Subregulation 215 (3) provides that the offence in subregulation 215 (1) is a strict liability offence.  The penalty for breaching this subregulation is ten penalty units. 

                          Item 8 substitutes a new note under the heading to Subdivision 6A.3.3. The note states that regulation numbers 216 to 219 (inclusive) are intentionally not used.   

                          Item 9 amends subparagraph 220 (1) (e) (ii) to substitute “applications.” with “applications;” and provides for subparagraph 220 (1) (e) (iii) to be inserted .

                          Item 10 inserts subparagraph 220 (1) (e) (iii) after subparagraph 220 (1) (e) (ii) to amend record keeping requirements for sellers of methyl bromide. The subparagraph requires that a person who sells methyl bromide needs to record how much of the methyl bromide sold will be used as a feedstock.

                          Item 11 substitutes the heading for regulation 221 to clarify that regulation 221 relates to records of use for QPS and non-QPS applications only.  This item replaces the heading for regulation 221 with “Records of use – QPS and      non-QPS applications”.

                          Item 12 clarifies that subregulation 221 (1) only applies to records of use for QPS or non-QPS applications. This item inserts in the subregulation after “methyl bromide” the phrase “for a QPS or non-QPS application”.

                          Item 13 amends subregulation 221 (2) and only applies to records of use for QPS and non-QPS applications. This item substitutes “person:” with “person for a QPS or non-QPS application:”.

                          Item 14 substitutes the heading in regulation 222 to clarify that regulation 222 relates to summary records of use for QPS and non-QPS applications only.  This item substitutes the heading “Summary records of use – QPS and         non-QPS applications”.

                          Item 15 substitutes subregulation 222 (1) and provides that a person who uses methyl bromide for QPS or non-QPS applications must keep a record of the date on which the methyl bromide was used and a record of the total amount of methyl bromide used on that day for QPS and non-QPS applications. The subregulation requires reports to be submitted in an approved form. The penalty for not completing a record is ten penalty units. The note under subregulation 222 (1) does not change.

                          Item 16 inserts regulation 223 after regulation 222 in Subdivision 6A.3.3.

                          Subregulation 223 (1) provides that a person who uses methyl bromide as a feedstock must make a record for each day on which the methyl bromide is used. The regulation requires that the record contain the date, the amount of methyl bromide used by the person as a feedstock on that day, and what chemical, or chemicals, the methyl bromide was used to manufacture.

                          Subregulation 223 (2) provides that the records made under subregulation 223 (1) must be kept for a period of five years.

                          Subregulation 223 (3) provides that the offences in subregulations 223 (1) and 223 (2) are strict liability offences.  The penalty for breaching these subregulations is ten penalty units.      

                          Item 17 substitutes the note under the Subdivision 6A.3.4 heading to note that regulation numbers 224 to 229 (inclusive) are intentionally not used. 

                          Item 18 amends subparagraph 230 (1) (b) (iv) to require suppliers of methyl bromide to report the amount of methyl bromide that was sold as a feedstock as well as the amount of methyl bromide that was sold for QPS applications and non-QPS applications. 

                          Item 19 deletes the note after subregulation 232 (2) that states that regulation numbers 233 to 899 (inclusive) are reserved for future use.

                          Item 20 inserts regulation 233 and Subdivision 6A.3.5 after regulation 232 in Part 6A of the Principal Regulations.

                          Subregulation 233 (1) provides that a person who holds a feedstock permit during a year must report to the Minister on the amount of methyl bromide used by, or on behalf of the person, as a feedstock in the year, what chemical, or chemicals, the methyl bromide was used to manufacture and if no methyl bromide was used.  This report must be provided to the Minister within 21 days after the end of the year.

                          Subregulation 233 (2) provides that the offence in subregulation 233 (1) is a strict liability offence.  The penalty for breaching this subregulation is ten penalty units.             

                          Subdivision 6A.3.5 Feedstock Permits

                          Regulation 240 provides the definition of permit year to be used to interpret subdivision 6A.3.5. Permit year means, in relation to a feedstock permit, the calendar year for which the permit is granted.

                          Regulation 241 provides the procedure necessary to apply for a feedstock permit.

                          Subregulation 241 (1) provides that any application for a feedstock permit must:

§          be made to the Secretary in an approved form;

§          contain all the information provided by subregulation 241 (2); and

§          be signed by the applicant.

                          Subregulation 241 (2) provides the information that must be included in an application for a feedstock permit. The application must include:

§          the name, address and ABN of the applicant;

§          the name, address, telephone number, facsimile number and e-mail address of a contact person for the applicant;

§          the year for which the applicant is seeking the permit;

§          the amount of methyl bromide that the applicant intends to use as a feedstock during the permit year;

§          what chemicals the applicant will use the methyl bromide to manufacture;

§          an estimate of the methyl bromide emissions that will result from the applicant’s use of the methyl bromide;

§          in relation to the methyl bromide that the applicant intends to buy during the permit year for use as a feedstock:

-         the name, address and ABN of each of the suppliers; and

-         the amount of methyl bromide the applicant intends to buy from each supplier;

§          the amount of methyl bromide the applicant already possesses for use as a feedstock during the permit year; and

§          evidence that the applicant is a fit and proper person to hold the permit.

                          Subregulation 241 (3) provides that if an applicant for a feedstock permit does not provide all the information required in subregulation 241 (2) then the Secretary of the department may ask the applicant for the missing information and need not consider the application until the applicant provides the missing information.                       

                          Subregulation 241 (4) provides that if the Secretary has not made a decision within 30 days after the application is made, or any information sought under subregulation 241 (3) is received, that the Secretary is taken to have refused the application. 

                           Subregulation 242 (1) provides that the Secretary must grant a feedstock permit to a person that makes an application under regulation 241 if: the Secretary is satisfied that

§          methyl bromide can be used as a feedstock for the chemical mentioned in the permit application;

§          the proposed use would result in minimum methyl bromide emissions and;

§          the person is a fit and proper person to hold the permit.

                          Subregulation 242 (2) provides that a feedstock permit granted by the Secretary must specify:

§          the permit year;

§          the conditions of the permit, including:

-         the amount of methyl bromide the person may use;

-         the chemical or chemicals the permit allows the person to manufacture;

-         the amount of methyl bromide that the person may buy; and

-         the nominated supplier or suppliers of the methyl bromide; and

§          that the holder of the permit must not contravene a condition of the permit.

                          Subregulation 242 (3) provides that a feedstock permit is in force from the later date of either 1 January in the permit year, or the date on which the feedstock permit was granted. Feedstock permits remain in force until the end of the permit year.

                          Subregulation 242 (4) provides that for paragraph 242 (1) (b) minimum methyl bromide emissions means that no more than 2% of the total methyl bromide used in the feedstock application is emitted from the process. 

                          Regulation 243 provides that the Secretary, in considering whether a person is a fit and proper person to be granted a feedstock permit must take into account:

§          whether the person has been convicted of an offence against the Act or the Principal Regulations;

§          in the case of an individual:

-         whether the person has been convicted of an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by imprisonment for a period of one year or longer; and

-         whether the person is bankrupt;

§          in the case of a corporation:

-         whether the corporation has been convicted of an offence under a law of the Commonwealth, a State or a Territory that is punishable by a fine of 50 penalty units or more, being an offence committed at a time when a person who is a director, officer or shareholder of the corporation was a director, officer or shareholder of the corporation; and

-         whether the corporation is an externally administered body corporate (within the meaning of the Corporations Act 2001);

§          for any statement by the person in an application that was false or misleading in a material particular – whether the person knew that the statement was false or misleading;

§          whether the person has contravened a condition of a feedstock permit held by the person; and

§          whether the person held a feedstock permit that was cancelled.

                          Regulation 244 specifies the conditions under which the Secretary may cancel or suspend a feedstock permit. 

                          Subregulation 244 (1) provides that the Secretary may cancel or suspend a feedstock permit if he or she is satisfied that the holder is no longer a fit and proper person to hold the permit or is notified in writing by the permit holder that the holder no longer intends to use methyl bromide as a feedstock.

                          Subregulation 244 (2) provides that the Secretary cancels or suspends a feedstock permit by giving the holder a notice that states the permit has been cancelled or suspended, the reasons for the cancellation or suspension and in the case of a suspension, the period of the suspension.

                          Subregulation 244 (3) provides that a feedstock permit is not in force during any period of suspension.

                          Regulation 245 provides that an application may be made to the Administrative Appeals Tribunal to review:

§          under paragraph (a) decisions made under regulation 242:

-         not to grant a feedstock permit; or

-         to grant a permit to use a particular amount of methyl bromide; or

-         to grant a permit to buy a particular amount of methyl bromide from a particular supplier; or

§          under paragraph (b) decisions made to cancel or suspend a permit under paragraph 244 (1) (a).

 

                          Item 21 inserts Division 6A.4, entitled “Fire protection”, after the existing Division 6A.3. 

 

                          New Subdivision 6A.4.1  Preliminary

                         

                          Regulation 301 contains definitions to be used to interpret Division 6A.4. The regulation provides that:

                          approved extinguishing agent destruction facility means a facility described in regulation 306 operated by a person holding an authorisation under that regulation.

                          extinguishing agent means a scheduled substance used for the purpose of extinguishing a fire or suppressing an explosion.

                          extinguishing agent handling licence means a licence granted under Subdivision 6A.4.3 to enable a person to work with extinguishing agents.

                          extinguishing agent trading authorisation means an authorisation granted under regulation 331 enabling a person to buy and/or sell extinguishing agents to licensed persons.

                          fire protection equipment means equipment designed to release a fire protection agent to prevent, control or extinguish fire or suppress or prevent an explosion.

                          Fire Protection Industry (Ozone Depleting Substances and Synthetic Greenhouse Gas) Board or Fire Protection Industry (ODS and SGG) Board means a Board appointed by the Minister under paragraph 311(1)(a).

                          fire protection industry permit means either an extinguishing agent handling licence issued under Subdivision 6A.4.3, an extinguishing agent trading authorisation issued under regulation 331, or a halon special permit issued under new regulation 341.

                          halon special permit means an entitlement for a person to hold and use halon for an approved essential use as provided for in regulation 341.

                          special circumstances exemption means an exemption to enable a person to carry out any activities covered by these regulations, as provided by regulation 342.

 

                          Regulation 302 makes it an offence to handle an extinguishing agent without a licence.  Subregulation 302 (1) provides that from 1 November 2005, a person must not handle an extinguishing agent unless the person holds:

§          an extinguishing agent handling licence; or

§          a special circumstances exemption; or

§          if the agent is a halon, a halon special permit.

The penalty for breaching this subregulation is ten penalty units. 

 

                          Subregulation 302 (2) defines the meaning of handle an extinguishing agent as to do anything with the extinguishing agent (other than use it to prevent, control or extinguish a fire, or suppress an explosion) that carries a risk of emission, including:

§          decanting the extinguishing agent; or

§          installing or maintaining fire protection equipment; or

§          decommissioning or disposing of fir protection equipment.

 

                          Subregulation 303 (1) defines bulk extinguishing agent as an extinguishing agent other than halon, that is, or has been, for use in fire protection equipment, but does not include the agent that is contained in fire protection equipment.

 

                          Subregulation 303 (2) makes it an offence from or after 1 November 2005, for a person to acquire, possess, or dispose of bulk extinguishing agent unless the person is:

§          the operator of an approved extinguishing agent destruction facility; or

§          the holder of an extinguishing agent trading authorisation; or

§          the holder of a special circumstances exemption appropriate for the acquisition, possession or disposition of the agent; or

§          the officer in charge of a fire station.

A penalty of 10 penalty units applies to an offence under this subregulation.

Subregulation 303 (3) creates a defence to a charge of contravening subregulation 303 (2) that the defendant, as soon as practicable after becoming aware that he or she possessed bulk extinguishing agent gave it to:

§          the operator of an approved extinguishing agent destruction facility; or

§          the holder of an extinguishing agent trading authorisation; or

§          the officer in charge of a fire station.

 

                          Subregulation 303 (4) indicate that an offence against subregulation 303 (2) is a strict liability offence.

 

                          Subregulation 304 (1) makes it an offence from or after 1 November 2005, for a person to possess halon that is, or has been, for use in fire protection equipment, unless:

§          subregulation (4) applies to the equipment; or

§          the halon is for use in fire protection equipment and the person is the holder of a halon special permit; or

§          the person is the holder of a special circumstances exemption that covers the possession of halon; or

§          the person is the operator of an approved extinguishing agent destruction facility.

A penalty of 10 penalty units applies to an offence under this subregulation.

 

Subregulation 304 (2), provides a defence to a charge of contravening subregulation (1) if the defendant is:

§          an officer in charge of a fire station or the holder of an extinguishing agent trading authorisation and had acquired the halon for transfer to an approved extinguisher agent destruction facility; or

§          as soon as practicable after becoming aware that he or she possess halon, gives it to the officer in charge of a fire station, or the holder of an extinguishing agent trading authorisation or the operator of an approved extinguishing agent destruction facility.

 

Subregulation 304 (3) makes offences against subregulation (1) strict liability offences.

 

Subregulation 304 (4) provides that subregulation (1) does not apply to equipment that:

§          is used by the Defence Force in:

-     a Collins Class submarine; or

-     an FFG 7 Class destroyer; or

-     an ANZAC Class Frigate; or

-     an Assault Landing Vehicle; or

§          is be installed in, or carried on an aircraft; or

§          is included in an enclosed space containing machinery, including the pump room, of a vessel:

-     of more than 500 tonnes dead weight; or

-     that is entered in the Australian Register of Ships established under the Shipping Registration Act 1981.

 

                          Regulation 305 describes the circumstances under which a fire extinguishing agent can be discharged in accordance with paragraph 45B (1) (e) of the Act.

 

 

                          Subregulation 305 (1) permits a person to discharge a scheduled substance if:

§          the discharge is to test a fire extinguishing system design; or to calibrate leak detection equipment; and

§          the person holds a permit granted by the Fire Protection Industry (ODS & SGG) Board, allowing the discharge.

 

                          Subregulation 305 (2) requires that applications to the Fire Protection Industry (ODS & SGG) Board for fire protection industry permits to be in writing.

 

                          Subregulation 305 (3) lists the information that must accompany an application as follows:

§          the name and address of the applicant; and

§          the information about each proposed discharge, including:

-     the location of the discharge; and

-     if more than one discharge is proposed the number of discharges; and

-     the quantity of substance in each discharge; and

-     the reason it is necessary to discharge the substance; and

§          any other information relevant to the discharge of the substance.

                         

                          Subregulation 305 (4) lists the issues to be determined by the Fire Protection Industry (ODS & SGG) Board in reaching its decision to grant a permit.

 

                          Regulation 306 enables the Minister to give approval for a person to operate an extinguishing agent destruction facility.

                         

                          Subregulation 306 (2) requires the applicant to apply in writing and include:

§          the name and address of the applicant; and

§          the address of the facility; and

§          enough information about the facility to enable the Minister to decide the application; and

§          evidence that the equipment used by the applicant for the destruction of extinguishing agents (the destruction equipment) was, no more than two years before the date of the application, tested and approved by a person accredited by the National Association of Testing Authorities to conduct testing.

 

                          Subregulation 306 (3) imposes a $300 application fee.

 

                          Subregulation 306 (4) ensures that the Minister’s approval is consistent with Australia’s obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer.

 

                          Subregulation 306 (5) imposes a condition that:

§          the destruction equipment is fit for the purpose for which it is to be used; and

§          of each batch of an extinguishing agent given to the facility for destruction, at least 99.99% is converted into something that is not a scheduled substance.

 

                          Subregulation 306 (6) sets an approval period of 2 years.

 

 

 

                           New Subdivision 6A.4.1  Fire Protection Industry Permits

 

                          Subregulation 311 (1) provides that the Minister may appoint a body incorporated under the Corporations Act 2001 as a Fire Protection Industry (ODS & SGG) Board and authorise that Board to exercise any or all of the powers and functions mentioned in subregulation (2).

 

                          Subregulation 311 (2) prescribes the functions of the industry board. The subregulation provides that a Fire Protection Industry (ODS & SGG) Board may:

▪         receive applications for fire protection industry permits; and

▪         collect, on behalf of the Commonwealth, the fees that are payable for those permits; and

▪         grant fire protection industry permits; and

▪         collect information from applicants for industry permits and supplied in response to any request made by the Board under paragraph 332 (1) (b); and

▪         publish information collected from applicants in a way that does not identify any person or disclose confidential information; and

▪         inspect premises used for activities conducted under a fire protection industry permit.

 

Regulation 312 enables the Minister to exercise the powers of the Board if the Minister:

▪         does not appoint a board under subregulation 311 (1); or

▪         appoints a body as the Fire Protection Industry (ODS & SGG) Board but authorises only some of the powers and functions mentioned in subregulation 311 (2); or

▪         revokes or suspends the Board; or

▪         revokes or suspends some of the powers and functions of the Board.

 

Subregulation 312 (2) enables the Minister to:

▪         exercise any powers and functions mentioned in subregulation 311 (2) not being exercised by the Board; or

▪         if there is no Board, exercise all the powers and functions in subregulation 311 (2).

 

Subregulation 312 (3) provides that a reference in Division 6A.4 to the Board, in relation to a power that is being exercised by the Minister, as a reference to the Minister.

 

                          Subregulation 313 (1) prescribes that an application for a fire protection industry permit must be submitted to the Fire Protection Industry (ODS & SGG) Board:

▪         on the form approved by the Minister; and

▪         include the appropriate fee; and

▪         include the information that would be needed by the Board to decide whether to grant the application.  This includes details of the applicant’s training and experience and evidence that the applicant is a fit and proper person to be granted an industry permit.

 

                          Subregulation 313 (2) provides that the Fire Protection Industry (ODS & SGG) Board may request any further information from the applicant that is necessary for the industry board to decide whether to grant an industry permit. Under this subregulation, the industry board would be able to refuse to consider an application until the applicant provides any additional information.

 

                          Subregulation 313 (3) provide that where a decision has not been made by the industry board within 30 days of the board receiving all necessary information, then the application is to considered to have been refused.

 

                          Regulation 314 provides that the Fire Protection Industry (ODS & SGG) Board must consider whether a person is a fit and proper person to hold a fire protection industry permit.  Paragraphs (a) to (f) detail the issues that must be considered by the industry board in determining whether a person is fit and proper to hold a licence.

 

                          Subregulation 315 (1) permits the Minister to cancel or suspend a fire protection industry permit if the Minister is satisfied that the holder of the permit is no longer a fit and proper person to be holding a permit or that the permit holder has breached a condition of their licence.

                         

                          Subregulation 315 (2) provides that if the Minister decides to cancel or suspend a fire protection industry permit, then the Minister must notify the permit holder that the licence has been cancelled or suspended and set out the reasons for the cancellation or suspension. If the Minister decides to suspend a permit, then paragraph 315 (2) (c) provides that the Minister must notify the permit holder of the period of the suspension.

 

                          Paragraph 316 (1) (a) provides for reconsideration by the industry board of:

§          a decision refusing to issue an industry permit; or

§          a decision regarding the period that the permit is in force; or

§          a decision to impose a condition on the permit.

 

                          Paragraph 316 (1) (b) provides that an applicant may also apply to the Minister for reconsideration of a decision by the Minister to cancel or suspend a Fire Protection industry permit.

 

                          Subregulation 316 (2) provides that an application for reconsideration of a decision must be made within 21 days of the person being notified of the decision and must give reasons why he or she wants the decision to be reconsidered.

 

                          Subregulation 316 (3) provides that the industry board or the Minister may confirm, vary or reverse their previous decision.

 

                          Subregulation 316 (4) also provides that if the industry board or the Minister does not confirm, vary or reverse a decision within 30 days, then the industry board or the Minister will be taken to have confirmed the decision.

 

                          Subregulation 317 (1) provides that a person may apply to the Administrative Appeals Tribunal for a review of a decision. The regulation provides that an application to the Administrative Appeals Tribunal may only be made after an initial review by the Fire Protection Industry (ODS & SGG) Board or the Minister has been sought.

 

                          Regulation 318 provides that a fire protection industry permit is not in force during any period of suspension.

                         

                          Regulation 319 prescribes the powers of inspectors appointed under section 49 of the Act with respect to these regulations. The regulation provides that an inspector may use the existing powers granted under section 49 at premises that are used by an industry permit holder for activities permitted by the permit, or for storing records relating to activities permitted by the permit.

 

                          Subdivision 6A.4.3 Extinguishing agent handling licences

 

                          Regulation 321 specifies the application fee payable for the grant of an extinguishing agent handling licence as well as the length of time that a licence would remain in force. When the Fire Protection Industry (ODS & SGG) Board issues a licence, it would be required to specify in writing the period that the licence is to remain in force, which would not exceed 24 months or if the licence is granted under regulation 324, 12 months.

 

                          Under this regulation:

§          an application fee of $100 would be required to accompany all licence applications for periods of less than 12 months;

§          an application fee of $200 would be required to accompany all licence applications for periods longer than 12 months but less than 24 months.

 

                          Subregulation 321 (4) provides that if the Board grants 1 or more licences to a person, it must provide the person with a document setting out the details of each licence granted.

 

                          Under subregulation 321 (5), the holder of a licence (first licence) is be able to apply for another kind of licence (further licence) free of charge.

 

                          Under subregulation 321 (6), a further licence granted by the Board ceases to be in force on or before the day the first licence ceases to exist.

 

                          Regulation 322 provides for the Fire Protection Industry (ODS & SGG) Board to issue licences to applicants entitling them to engage in the work described in column 3 of Table 322.

 

                          Regulation 323 provides that the Fire Protection Industry (ODS & SGG) Board may grant an extinguishing agent handling licence (called a special extinguishing agent handling licence) to a person, entitling him or her to carry out work:

§          at a specified kind of place (for example, an off-shore drilling platform); or

§          on specified fire protection equipment (for example, aviation or maritime equipment); or

§          both at a specified place and on specified equipment;

if:

§          the work covered by the licence requires skills or knowledge (or both skills and knowledge) that are outside the scope of those required for a licence mentioned in regulation 322; and

§          the person provides evidence that he or she is able to carry out the work in a way that is appropriate for the grant of the licence.

 

                          Regulation 324 provides that the Fire Protection Industry (ODS & SGG) Board may grant a licence to an applicant if:

§          the Board is satisfied that the applicant is suitably qualified to hold a licence because he or she has engaged in, or supervised, work of the kind permitted under the licence; and

§          the application is made before 1 November 2005.

 

                          Regulation 325 provide that the Fire Protection Industry (ODS & SGG) Board may grant an extinguishing agent handling licence (called an extinguishing agent trainee licence) to a person, entitling him or her to carry out work mentioned in table 322 while under the supervision of a holder of a licence of that kind.

 

                          Regulation 326 specifies that the licence conditions may be attached to an extinguishing agent handling licences. Under paragraph 326 (1) (a), it is a condition of a licence that the holder carries out all work that the licence relates to in accordance with the standards specified in column 2 of Table 326.

 

                          Paragraph 326 (1) (b) makes it a condition of a licence that a person who holds an extinguishing agent handling licence, gives any extinguishing agent recovered from fire protection equipment to:

§           the holder of a extinguishing agent trading authorisation; or

§          the operator of an extinguishing agent destruction facility.

 

Paragraph 326 (1) (c) makes it a condition that any equipment used to transfer an extinguishing agent from one vessel to another is:

§          fit for purpose; and

§          tested and approved as being fit for the transfer of extinguishing agents, at least once every two years by a person accredited by the National Association of Testing Authorities of Australia; and

§          otherwise properly maintained.

 

                          Paragraph 326 (1) (d) requires a person to submit a report of the circumstances of any lawful emission of an extinguishing agent.

 

                          Subregulation 326 (2) provides that the Fire Protection Industry (ODS & SGG) Board may specify additional conditions for licences. The subregulation provides that any additional conditions will be set out on either the document that provides evidence of the licence or in a written notice given by the industry board to the licensee.

                         

                          Subregulation 326 (3) provides that the Fire Protection Industry (ODS & SGG) Board may impose licence conditions at any time.

 

                          Subregulation 326 (4) provides that a licensee must not contravene a condition of his or her licence.

                         

                          Subregulation 327 (1) specifies transitional arrangements for holders of authorisations issued by a State or Territory authority to handle a fire extinguishing agent.  The regulation provides that a person who holds an authorisation however described in Table 327 may apply to the Fire Protection Industry (ODS & SGG) Board for an extinguishing agent handling licence.

 

                          Subregulation 327 (2) specifies that applications must be in a form approved by the Fire Protection Industry (ODS & SGG) Board and include a description of the work that the applicant is able to safely carry out and that is regularly carried out as part of his or her duties.

 

                          Subregulations 327 (3) & 327 (4) enable the Board to seek additional information and refuse to consider the application until the information is provided; and to ascertain whether the applicant is qualified to hold a licence.  The Fire Protection Industry (ODS & SGG) Board may, with the permission of the applicant, inspect the applicant’s business premises and any relevant work carried out by the applicant.

 

                          Subregulation 327 (5) provides that the Fire Protection Industry (ODS & SGG) Board must, if it is satisfied that the applicant is suitably qualified, grant to the applicant, a licence that has effect until the existing State or Territory authorisation expires; or 1 January 2007 whichever is the earlier.

 

Subdivision 6A.4.4  Extinguishing agent trading authorisations

                         

                          Subregulation 331 (1) provides that the Fire Protection Industry (ODS & SGG) Board may grant an extinguishing agent trading authorisation to a person, permitting the person to acquire, store or dispose of an extinguishing agent (other than halon) that is for use, or has been used, in fire protection equipment.

 

                          Subregulation 331 (2) sets an application fee of $300 for an application for an extinguishing agent trading authorisation.

 

                          Subregulation 331 (3) provides that the Fire Protection Industry (ODS & SGG) Board must not grant an authorisation unless it is satisfied that the applicant:

§          has business premises that are equipped and operating so as to be able to handle, and prevent avoidable emissions of any extinguishing agent; and

§          is able to ensure that extinguishing agents are handled only by persons who are licensed to do so.

 

Subregulation 331 (4) provides that the Fire Protection Industry (ODS & SGG) Board may grant an authorisation to a person if the person:

§          applies before 1 November 2005; and

§          during the 3 months immediately before applying for an authorisation, carried out work of a kind that is to be permitted by the authorisation.

 

                          Subregulation 331 (5) provides that an authorisation is in force from the day it is granted, or another date, and remain in force for a period of no more than 24 months, as specified by the Fire Protection Industry (ODS & SGG) Board.

 

Subregulation 332 (1) specifies the conditions that would be applicable to all authorisations. The conditions require that the holder of an authorisation:

§          keeps records on the amount of extinguishing agent bought, sold and recovered during each quarter;

§          provides those records to the Fire Protection Industry (ODS & SGG) Board within 14 days of a request being made by the Board;

§          has the equipment appropriate for the holders activities, including at least one leak detector, vacuum pump and recovery unit;

§          maintains each piece of equipment, that is necessary to prevent avoidable emissions of extinguishing agent, so that it (the equipment) operates correctly;

§          at least every quarter checks each extinguishing agent container on the holder’s premises for leaks;

§          ensures that containers filled by the holder meets the appropriate standard;

§          implements a risk management plan for the premises;

§          ensures that extinguishing agents are handled in accordance with the standards listed in Table 326; and

§          ensures that extinguishing agent destruction is only conducted by the operator of a extinguishing agent destruction facility.

 

Subregulation 332 (2) enables the holder to satisfy a requirement of subregulation (1) by ensuring that another person satisfied the requirement on behalf of the holder.

                                   

Subregulation 332 (3) requires that a risk management plan for paragraph 1(g):

§          is prepared in accordance with AS 4360:2004;

§          includes information on how emissions from leaks in, or the failure of storage containers, damage by intruders; and transfer of extinguishing agent from a leaking storage vessel would be handled.

§          is be approved by the Board only if the Board thinks that the plan, if put into effect, would allow the premises to operate in a way that is consistent with Australia’s obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer.

 

Subregulation 332 (4) also requires that the holder of an extinguishing agent trading authorisation accepts any surrendered extinguishing agent that appears to be intended for use, in fire protection equipment.

 

Subregulation 332 (5) enables the Board to specify additional conditions on authorisations provided that they are written on the authorisation or notified to the authorisation holder separately in writing.

 

Subregulation 332 (6) provides that where the industry board provides a notice other than on the authorisation, then that notice could be given at any time.

 

Regulation 333 would specify that the holder of an authorisation (however described) mentioned in Table 333 would be taken to hold an extinguishing agent trading authorisation until the earlier of the day on which the State or Territory Authorisation expires; or 1 November 2005.

 

Subdivision 6A.4.5  Halon special permit

 

Subregulation 341 (1) specifies that the Fire Protection Industry (ODS & SGG) Board may grant a person a halon special permit that would entitle the person to possess halon that is for use in fire protection equipment.  Under the subregulation 341 (2), an application fee for a halon special permit is set at $200.

 

Subregulation 341 (3) provides that the Fire Protection Industry (ODS & SGG) Board may only issue a halon special permit if it is satisfied that:

§          the applicant is able to competently carry out the activities covered by the permit;

§          the use of the halon would be for a purpose that is necessary to protect human life or operate equipment that is critical to the community; and

§          there is no practical and safe alternative available at reasonable cost that is likely to result in less damage to the environment.

 

Subregulation 341 (4) provides that halon special permits granted under this section remain in force for 12 months.

 

Subregulation 342 (1) provide that the Fire Protection Industry (ODS & SGG) Board may grant a written exemption (a special circumstances exemption) to a person, entitling the person to the privileges of the holder of and extinguishing agent handling licence; or an extinguishing agent trading authorisation; or a halon special permit; as specified in the exemption.

 

Subregulation 342 (2) provides that the Fire Protection Industry (ODS & SGG) Board may accept an application from a person who applies in writing, to the Board, setting out:

§          the name and address of the person; and

§          the activities to be carried out by the person, for which the exemption is being sought; and

§          any further information relevant to the Board’s decision on whether to grant an exemption.

 

Subregulation 342 (3) provides that the Fire Protection Industry (ODS & SGG) Board may grant the exemption only if it is satisfied that there are special circumstances that justify the grant and:

§          if the applicant is an individual, he or she is able to competently carry out the activities covered by the exemption; or

§          if the applicant is an organisation, the organisation has suitably qualified employees and suitable equipment to carry out activities covered by the exemption.

The exemption shall specify:

§          the period for which it is in force; and

§          the activities that may be carried out under the exemption; and

§          any other information that is relevant to the exemption.