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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Explosives Amendment Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are:
(a) to amend the Explosives Act 2003 (the Principal Act) as follows:
(i) to require security clearances to be held by natural persons who handle explosives or
explosive precursors and by licence holders, and to provide for the grant, suspension
and cancellation of security clearances (Schedule 1 [1]-[6], [9]-[21] and [28]),
(ii) to enable regulations to be made authorising the disclosure of information obtained
in the administration or execution of the Act to persons or bodies, or persons or
bodies of a class, prescribed by the regulations (Schedule 1 [26]),
(iii) to enable the regulatory authority under the Act to communicate (subject to any
conditions or limitations prescribed by the regulations) to persons or bodies and
persons or bodies of a class prescribed by the regulations, any information which
comes to its knowledge in the exercise of its functions with respect to licences and
security clearances and holders of licences and security clearances (Schedule 1 [27]),
(iv) to enable the Commissioner of Police, at the request of the regulatory authority, to
report under section 13 of the Act on whether there is any available information with
respect to the participation of an applicant for a licence or security clearance or
holder of a licence or security clearance in any criminal activity and any available
information concerning any such conviction that the Commissioner considers to be
relevant to the application or continued holding of the licence or security clearance,
on whether the applicant or holder is a fit and proper person to hold a licence or
b2013-046-19.d11
Explosives Amendment Bill 2013 [NSW]
Explanatory note
security clearance and whether it is contrary to the public interest for the person to
do so (Schedule 1 [7]),
(v) to remove the ability of the Commissioner of Police to make such a report in relation
to whether the applicant or holder has a good reason for holding such a licence or can
be trusted to handle explosives in the manner authorised by the licence without
danger to the public safety or the peace (Schedule 1 [7]),
(vi) to ensure that any part of such a report that could disclose the existence or content of
a criminal or security intelligence report or other confidential criminal information is
not disclosed by the Administrative Decisions Tribunal in giving reasons for its
decisions, or in proceedings before it, without the approval of the Commissioner of
Police (Schedule 1 [8] and [23]),
(vii) to provide for the internal review of decisions concerning licences and security
clearances that are reviewable decisions under the Administrative Decisions Tribunal
Act 1997 by removing a provision that currently prevents such a review
(Schedule 1 [22]),
(viii) to enable inspectors appointed under the Explosives Act 2003 to exercise the kind of
information-gathering powers set out in section 155 of the Work Health and Safety
Act 2011 (Schedule 1 [24]),
(ix) to provide for the making of savings and transitional regulations and to enact certain
savings provisions (Schedule 1 [29]-[31]), and
(b) to amend the Law Enforcement (Powers and Responsibilities) Act 2002 to enable police
officers to seize, retain and destroy explosives, explosive precursors or certain dangerous
goods (Schedule 2.2 and Schedule 1 [25]).
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent to the
proposed Act.
Schedule 1 Amendment of Explosives Act 2003 No 39
Schedule 1 contains the amendments to the Principal Act described in paragraph (a) of the
Overview above.
Schedule 2 Amendment of other legislation
Schedule 2.1 makes amendments to the Explosives Regulation 2013 that are consequential on the
amendments to the Principal Act described in paragraph (a) (i) of the Overview above.
Schedule 2.2 amends the Law Enforcement (Powers and Responsibilities) Act 2002 as described
in paragraph (b) of the Overview above. It amends section 20 of that Act so that the powers for
police officers under Division 1 of Part 4 of that Act to search persons and seize and detain things
without warrant will apply if a police officer suspects on reasonable grounds that a person has in
his or her possession any explosive, explosive precursor or dangerous good to which section 31
of the Principal Act applies used or intended to be used in connection with an offence under Part 2
of the Principal Act. It also amends section 211 of the Law Enforcement (Powers and
Responsibilities) Act 2002 so that seized explosives, explosive precursors and dangerous goods
may be forfeited and destroyed (if not returned).
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First print
New South Wales
Explosives Amendment Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Explosives Act 2003 No 39 3
Schedule 2 Amendment of other legislation 9
b2013-046-19.d11
New South Wales
Explosives Amendment Bill 2013
No , 2013
A Bill for
An Act to amend the Explosives Act 2003 to implement certain recommendations arising from a
statutory review of the Act; to make further provision with respect to security clearances; to amend
the Law Enforcement (Powers and Responsibilities) Act 2002 with respect to the seizure of
explosives, explosive precursors or dangerous goods used in the commission of offences; and for
other purposes.
Explosives Amendment Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Explosives Amendment Act 2013. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
Page 2
Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
Schedule 1 Amendment of Explosives Act 2003 No 39 1
[1] Section 3 Definitions 2
Insert in alphabetical order in section 3 (1): 3
responsible person for a corporation means a person nominated in accordance 4
with the regulations to be a responsible person for the corporation. 5
security clearance means a security clearance granted under Part 3. 6
[2] Section 6A 7
Insert after section 6: 8
6A Security clearance must be held in certain circumstances 9
A natural person must not handle any explosive or explosive precursor if: 10
(a) the regulations require the person to hold a security clearance that is in 11
force when handling the explosive or explosive precursor, and 12
(b) the person does not hold a security clearance to handle the explosive or 13
explosive precursor concerned. 14
Maximum penalty: 250 penalty units. 15
[3] Part 3, heading 16
Insert "and security clearances" after "licences". 17
[4] Section 10A 18
Insert after section 10: 19
10A Security clearance a prerequisite to obtaining licence 20
(1) A natural person is not eligible for a licence unless the person has been granted 21
a security clearance that is in force. 22
(2) A corporation is not eligible for a licence unless there is at least one 23
responsible person for that corporation who has been granted a security 24
clearance that is in force. 25
(3) The regulations may provide that subsections (1) and (2) do not apply to or in 26
respect of a specified class or type of licence. 27
[5] Section 11 Grant of licences and security clearances 28
Insert "and security clearances" after "Licences" in section 11 (1). 29
[6] Section 11 (2) 30
Insert "and security clearances" after "licences". 31
[7] Section 13 Commissioner of Police to report on licences and security clearances 32
Omit section 13 (1). Insert instead: 33
(1) The regulatory authority may request the Commissioner of Police to furnish 34
the regulatory authority with a report in respect of any one or more of the 35
following matters relating to an applicant for the grant or renewal of a licence 36
or security clearance or the holder of a licence or security clearance: 37
(a) whether the applicant or holder has been found guilty or convicted of an 38
offence (whether in New South Wales or elsewhere) and any available 39
information concerning any such conviction that the Commissioner 40
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Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
considers to be relevant to the application or continued holding of the 1
licence or security clearance, 2
(b) whether the applicant or holder is the subject of a firearms prohibition 3
order within the meaning of the Firearms Act 1996, 4
(c) whether the applicant or holder is a fit and proper person to hold, or 5
continue to hold, the licence or security clearance, 6
(d) whether the applicant or holder has a history of violence or threats of 7
violence, with violence including behaviour referred to in section 13 of 8
the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or 9
intimidation with intent to cause fear of physical or mental harm), 10
(e) whether there is an apprehended violence order under the Crimes 11
(Domestic and Personal Violence) Act 2007 in force with respect to the 12
applicant or holder, 13
(f) any available information with respect to the participation of the 14
applicant or holder in any criminal activity, 15
(g) whether the Commissioner considers that it is contrary to the public 16
interest for the applicant or holder to hold, or continue to hold, the 17
licence or security clearance, 18
(h) such other matters as the regulatory authority may specify in the 19
request. 20
[8] Section 13 (5) and (6) 21
Insert after section 13 (4): 22
(5) The Commissioner of Police may identify any information included in a report 23
under this section as information that could disclose the existence or content 24
of a criminal or security intelligence report or other confidential criminal 25
information. 26
(6) The regulatory authority is not, under this or any other Act or law, required to 27
give any reasons for not granting a licence or security clearance to (or for 28
suspending or cancelling a licence or security clearance of) a person on the 29
basis of a report made by the Commissioner about the person under this 30
section if the giving of those reasons would disclose any criminal or security 31
intelligence report or other confidential criminal information as referred to in 32
subsection (5). 33
[9] Section 14 Conditions of licences and security clearances 34
Insert "and security clearances" after "Licences" in section 14 (1). 35
[10] Section 14 (2) and (3) 36
Insert "or security clearance" after "licence" wherever occurring. 37
[11] Section 14 (4) 38
Insert "to which a licence is subject" after "A condition". 39
[12] Section 15 Offence to contravene conditions of licence or security clearance 40
Insert "or security clearance" after "licence" wherever occurring. 41
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Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
[13] Section 16 Duration of licences and security clearances 1
Insert after section 16 (2): 2
(3) A security clearance remains in force (unless sooner cancelled) for the period 3
of 5 years after it is granted. 4
(4) If a licence is issued to a person during the term of a security clearance, the 5
security clearance is taken to continue in force while the licence is in force, 6
unless the security clearance is sooner cancelled. 7
(5) A security clearance is not in force during any period it is suspended. 8
[14] Section 17 Fees for licences and security clearances 9
Insert "and security clearances" after "licences" in section 17 (1). 10
[15] Section 18 Offences relating to licences and security clearances 11
Insert "or security clearance" after "licence" wherever occurring. 12
[16] Section 20 13
Omit the section. Insert instead: 14
20 Suspension of licences and security clearances 15
(1) The regulatory authority may suspend a licence or security clearance: 16
(a) if the holder of the licence or security clearance: 17
(i) is proceeded against for an offence against this Act or the 18
regulations, or 19
(ii) is not complying with any lawful requirement imposed by or 20
under this Act, or 21
(b) for any other reason prescribed by the regulations. 22
(2) The regulatory authority may suspend a licence or security clearance under 23
subsection (1) (a) until the relevant proceeding has been disposed of or 24
requirement complied with. 25
[17] Section 21 26
Omit the section. Insert instead: 27
21 Cancellation of licences and security clearances 28
The regulatory authority may cancel a licence or security clearance: 29
(a) if the holder of the licence or security clearance: 30
(i) is convicted of or found guilty of an offence against this Act or 31
the regulations or a provision of a corresponding Act or 32
regulation of the Commonwealth or of another State or Territory 33
relating to explosives, or 34
(ii) breaches a condition of the licence or security clearance, or 35
(iii) surrenders the licence or security clearance to the regulatory 36
authority, or 37
(iv) supplied information which was (to the holder's knowledge) 38
false or misleading in a material particular in, or in connection 39
with, the application for the licence or security clearance, or 40
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Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
(b) if the regulatory authority is of the opinion that the holder is no longer 1
a fit and proper person to hold, or to continue to hold, the licence or 2
security clearance, or 3
(c) for any other reason prescribed by the regulations. 4
[18] Section 22 Special provision--suspension or cancellation of licences and security 5
clearances where suspicions of violence 6
Insert "or security clearance" after "licence" wherever occurring in section 22 (1)-(4). 7
[19] Section 22 (6) 8
Omit the subsection. Insert instead: 9
(6) This section does not limit any powers of the regulatory authority under 10
section 20 or 21 with respect to a licence or security clearance. 11
[20] Section 23 Suspended and cancelled licences and security clearances 12
Insert "or security clearance" after "licence" wherever occurring. 13
[21] Section 24 Review of decisions by Administrative Decisions Tribunal 14
Insert "or security clearance" after "licence" wherever occurring in section 24 (1), (2), (7) 15
and (9). 16
[22] Section 24 (5) 17
Omit the subsection. 18
[23] Section 24A 19
Insert after section 24: 20
24A Disclosure of criminal intelligence information 21
(1) If an application for a licence or security clearance was refused or a licence or 22
security clearance was suspended or cancelled by the regulatory authority on 23
the ground of a report made by the Commissioner of Police under section 13: 24
(a) the Commissioner (as well as the regulatory authority) is to be a party 25
to any proceedings in the Administrative Decisions Tribunal for a 26
review of the decision of the regulatory authority, and 27
(b) the Tribunal is to be provided with a copy of the report of the 28
Commissioner, and 29
(c) the Tribunal is not prevented from determining whether the regulatory 30
authority made the correct and preferable decision regarding the 31
application or the licence or security clearance concerned merely 32
because of the report. 33
(2) In determining an application for a review of any decision to refuse to grant a 34
licence or security clearance or to suspend or cancel a licence or security 35
clearance that was made on the ground of a report under section 13 made by 36
the Commissioner of Police, the Administrative Decisions Tribunal: 37
(a) is to ensure that it does not, in the reasons for its decision or otherwise, 38
disclose the existence or content of any information identified in the 39
Commissioner's report under section 13 (5) as being from a criminal or 40
security intelligence report or other confidential criminal information 41
without the approval of the Commissioner, and 42
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Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
(b) in order to prevent the disclosure of any such report or other criminal 1
information, is to receive evidence and hear argument in the absence of 2
the public, the applicant for review, the applicant's representative and 3
any other interested party, unless the Commissioner approves 4
otherwise. 5
Note. Section 13 (6) of this Act provides that the regulatory authority and the 6
Commissioner are not, under this or any other Act or law, required to give any reasons 7
in connection with the refusal to grant a licence or security clearance or the suspension 8
or cancellation of a licence or security clearance on the ground of a report under 9
section 13 if the giving of those reasons would disclose the existence or content of any 10
criminal or security intelligence report or other confidential criminal information referred 11
to in section 13 (5). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions 12
Tribunal Act 1997 does not apply to any decision to refuse to grant a licence or security 13
clearance based on such information to the extent that it would require disclosure of 14
the existence or content of any criminal or security intelligence report or other 15
confidential criminal information. 16
(3) If the Tribunal considers that information identified in the Commissioner's 17
determination as being from a criminal or security intelligence report or other 18
confidential criminal information referred to in section 13 (5) has not been 19
properly identified as such, the Tribunal must ask the Commissioner whether 20
the Commissioner wishes to withdraw the information from consideration by 21
the Tribunal in its determination of an application. 22
(4) Information that is withdrawn by the Commissioner must not be: 23
(a) disclosed to any person, or 24
(b) taken into consideration by the Tribunal in determining an application. 25
[24] Section 27 Extension of certain provisions of Work Health and Safety Act 2011 26
relating to inspectors and enforcement of this Act 27
Omit "Part 9" from section 27 (1). Insert instead "Section 155 and Part 9". 28
[25] Section 27, note 29
Insert at the end of section 27: 30
Note. Police officers have powers to search for, seize and detain anything in the 31
possession of a person that the police officer has reasonable grounds to believe has 32
been used in or in connection with an offence under Part 2 of this Act--see Division 1 33
of Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002. Section 211 34
of that Act provides for the return or forfeiture and disposal of seized things. 35
[26] Section 35 Disclosure of information 36
Insert "or to any other person or body prescribed, or of a class prescribed, by the 37
regulations" after "explosives" in section 35 (2). 38
[27] Section 35 (4) 39
Insert after section 35 (3): 40
(4) The regulatory authority may (subject to any conditions or limitations 41
prescribed by the regulations) communicate any information which comes to 42
its knowledge in the exercise of its functions under this Act with respect to 43
licences and security clearances and the holders of licences and security 44
clearances to any person or body prescribed, or of a class prescribed, by the 45
regulations. 46
[28] Section 36 Regulations 47
Omit section 36 (2A). 48
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Explosives Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Explosives Act 2003 No 39
[29] Section 38 Review of Act 1
Omit "to this Act" from section 38 (2). 2
Insert instead "to the Explosives Amendment Act 2013". 3
[30] Schedule 1 Savings, transitional and other provisions 4
Omit clause 1 (1). Insert instead: 5
(1) The regulations may contain provisions of a savings or transitional nature 6
consequent on the enactment of this Act or any Act that amends this Act. 7
[31] Schedule 1, Part 4 8
Insert after clause 7: 9
Part 4 Provisions consequent on enactment of Explosives 10
Amendment Act 2013 11
8 Definition 12
In this Part: 13
amending Act means the Explosives Amendment Act 2013. 14
9 Reports by Commissioner 15
Section 13 (as amended by the amending Act) and section 24A extend to a 16
report made after the commencement of the amending Act that was requested 17
before that commencement. 18
10 Reviews by Administrative Decisions Tribunal 19
Subject to the regulations, a review under section 24 that was pending 20
immediately before the omission of section 24 (5) by the amending Act is to 21
continue to be dealt with as if that subsection were still in force. 22
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Explosives Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other legislation
Schedule 2 Amendment of other legislation 1
2.1 Explosives Regulation 2013 2
[1] Clause 3 Definitions 3
Omit the definition of responsible person from clause 3 (1). 4
[2] Clause 9 5
Omit the clause. Insert instead: 6
9 Security clearance required to handle explosives or explosive precursors 7
Except as provided by clause 10, a natural person is required to hold a security 8
clearance that is in force to handle any explosive or explosive precursor. 9
[3] Clause 13 Duration of security clearance 10
Omit the clause. 11
[4] Clause 34 12
Omit the clause. Insert instead: 13
34 Security clearance not a prerequisite to obtaining a fireworks (single use) 14
licence 15
For the purposes of section 10A (3) of the Act, a security clearance is not 16
required in relation to a fireworks (single use) licence. 17
[5] Schedule 2 Penalty notice offences 18
Insert in appropriate order in Columns 1 and 2 under the heading "Offences under the 19
Act": 20
Section 6A $2,000
[6] Schedule 2 21
Omit the matter relating to clause 9 in Columns 1 and 2 under the heading "Offences under 22
this Regulation". 23
2.2 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 24
[1] Section 20 Relevant offences 25
Insert after section 20 (c): 26
(d) an offence against a provision of Part 2 of the Explosives Act 2003. 27
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Explosives Amendment Bill 2013 [NSW]
Schedule 2 Amendment of other legislation
[2] Section 211 Application of Division 1
Insert after section 211 (1) (b): 2
(c) an explosive, explosive precursor or dangerous good to which 3
section 31 of the Explosives Act 2003 applies that is seized under 4
Division 1 of Part 4 of this Act. 5
Page 10
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