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Dangerous Goods Amendment
(Transport) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill. The main purpose is to amend the
Dangerous Goods Act 1985 (the DGA) to facilitate the
implementation into the DGA of the Model Law contained in the
new national legislative framework for the transport of dangerous
goods by road and rail, having regard to the statutory framework
that exists in Victoria. The Bill also realigns some penalties for
existing general duty offences in the DGA with those for similar
offences for dangerous goods transport.
The legislative scheme is to incorporate provisions of the Model
Law into the existing legislation, the DGA, rather than make a
new, separate Act. The Model Law consists of a Model Act and
Model Subordinate Law (MSL).
Under the Road Transport (Dangerous Goods) Act 1995 (the
"template law") most parts of the Road Transport Reform
(Dangerous Goods) Act 1995 of the Commonwealth currently
apply as Victorian law. The Bill provides for the repeal of the
Road Transport (Dangerous Goods) Act 1995 under which the
existing scheme operates. For the first time administrative
requirements and technical requirements in relation to road and
rail are aligned under one Act in line with the Model law.
Clause 2 provides for the commencement of the Act. Subclause (1)
provides that the provisions of the Act come into operation on a
day or days to be proclaimed. The effect of subclause (2) is that
if a provision of the Act does not come into operation before
1 January 2010, it comes into operation on that day
561197 1 BILL LA INTRODUCTION 9/9/2008
PART 2--AMENDMENT OF DANGEROUS GOODS ACT 1985
Clause 3 has the effect that in Part 2 of the Bill, the DGA is referred to as
the Principal Act.
Clause 4 amends section 3, the definition section of the DGA to define
terms used throughout the Act as amended.
As far as possible the implementation of the Model Law relies on
the definitions already contained in the DGA, with regulation-
specific definitions from the Model Law to be inserted into the
regulations rather than the Act. However, some new terms are
required and some existing terms are required to be amended or
replaced in the Act. For example, the definition of ADG Code
has been amended so that amendments are not required each time
a new edition of the ADG Code is adopted nationally.
Clause 5 amends section 8 of the DGA to clarify the relationship between
the DGA and the Environment Protection Act 1970 and the
National Environment Protection Council (Victoria) Act
1995.
The effect of the provision is that the DGA does not generally
apply to the transport of prescribed waste or prescribed industrial
waste needing a permit or a transport certificate under Part 9A of
the Environment Protection Act 1970 or the transport of waste
undertaken in accordance with the requirements of any national
environment protection measure made under the National
Environment Protection Council (Victoria) Act 1995.
This provision maintains the existing position which is in force
by virtue of section 9(4) of the template law.
Clause 6 amends section 9 of the DGA. Section 9(f) of the DGA excludes
substances that are infectious to humans from the application of
the DGA. The regulations currently in operation for the road
transport of dangerous goods explicitly exclude infectious
substances. Although the DGA currently does not explicitly
exclude substances infectious to animals or plants, or genetically
modified organisms from its application, it was never envisaged
or understood that they were, or should be, within its scope.
The Model Law includes substances under UN Division 6.2
(infectious substances) capable of applying to infectious
substances that can affect animals. In Victoria, control of such
infectious substances affecting animals and plants is through the
Department of Primary Industry with its administration of the
Livestock Disease Control Act 1994 and the Plant Health and
Plant Products Act 1995. Accordingly a new section 9(ec) is
inserted so that the DGA does not apply to these infectious
substances. For similar reasons a new section 9(ed) is inserted to
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exclude genetically modified organisms as defined in the Gene
Technology Act 2001 from the scope of the DGA.
Clause 7 introduces new section 9C into the DGA and consistent with the
Model Act enables the Minister, by notice in the Government
Gazette, to suspend or vary the operation of regulations about the
transport of dangerous goods, other than explosives or High
Consequence Dangerous Goods (HCDG). The provision is based
on regulation 67 of the Model Act. The provision is necessary to
provide contingency arrangements for possible emergencies.
The provision augments the power of the Governor in Council
under existing section 9A of the DGA.
The effect of subsections (3)-(6) of new section 9C is to require
an order made under section 9C to be tabled in Parliament and
makes the order subject to disallowance.
Clause 8 provides for the adoption of ADG code and inserts new
subsections 10(1), 10(1A) 10(1B) and 10(1C). Under subsection
10(1A) a reference to a provision of the ADG Code is a reference
to that provision as in force from time to time. Subsection
10(1B) sets the commencement date for amendments to the
Code. Under subsection 10(1C) when an amendment is made to
the ADG code there is a six month period of grace within which
compliance with either the old or new versions is acceptable,
unless a later date has been set.
Clause 9 inserts new sections 10C, 10D and 10E into the DGA.
The Model Law makes provision for certain information to be
given to a corresponding authority, including the power to give to
any public authority evidence that has been seized (including
things as well as records) and any information obtained through
the use of inspector powers. The Model Law also includes
provisions preventing disclosure of information obtained, except
in prescribed circumstances. Although the DGA does not
currently have equivalent provisions, the Occupational Health
and Safety Act 2004 (OSHA) covers information disclosure to
corresponding authorities and other prescribed persons/bodies in
relation to administration of the DGA. The Accident
Compensation Act 1985 also has information disclosure
provisions.
To provide clarity and transparency as to the circumstances and
limitations on the Authority's power to disclose certain
information acquired under the DGA, clause 9 includes
provisions (new sections 10D and 10E) similar to those currently
set out in sections 10 and 11 of OHSA. New section 10C is
based on regulation 17 of the Model Act.
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Clause 10 amends section 16 of the DGA to clarify that a place is not being
used for residential purposes merely because temporary or casual
sleeping or other accommodation is provided for vehicle drivers
(for example, cabins in long-distance trucks) in line with the
provision in regulation 42 of the Model Act. This clause has
been included in the Bill for the sake of consistency with the
national scheme and to clarify the situation in Victoria.
Clause 11 amends section 20 of the DGA to broaden the provisions in
Part IIA of the DGA for review of administrative decisions of the
Authority. It introduces a regulation-making power in the DGA
to enable regulations to be made prescribing other decisions
made under the regulations to be reviewable decisions.
This clause will enable Victoria to give effect to provisions in the
MSL requiring that there be a reconsideration of decisions made
by the competent authority.
Clause 12 amends section 20B of the DGA to make necessary changes to
the provisions governing review by the Tribunal consequent on
the broadening of the scope for reviews made by clause 11.
Clause 13 amends section 21 of the DGA so that subsection (2) does not
apply in respect of a licence to which section 21AA applies.
Section 21(2) is an offence provision needed for licences required
by other regulations, and this amendment is needed to avoid
overlap with section 21AA.
Clause 14 inserts a new section 21AA into the DGA which contains
provisions relating to the licensing of vehicles involved in the
transport of dangerous goods, and creates a number of offences
based on breaches of licensing obligations. The clause provides a
transition from the specification of offences which is currently set
out in section 35 of the template law, in light of the revised
proposals to be found in regulation 69 of the Model Act.
New section 21AA creates the following offences--
· it prohibits a prime contractor from using a vehicle to
transport dangerous goods (other than as the driver of
the vehicle) if the regulations require the vehicle to be
licensed, and the vehicle is not licensed
(section 21AA(2));
· it prohibits a person from consigning dangerous goods
for transport on a vehicle without a licence if the person
knows or reasonably ought to know that the regulations
require the vehicle to be licensed to transport the goods,
and the vehicle is not licensed (section 21AA(5));
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· it prohibits a person from employing, engaging, causing
or permitting another person to drive a vehicle
transporting dangerous goods if the other person is
required by the regulations to be licensed to drive the
vehicle and the person is not licensed
(section 21AA(6));
· it prohibits a person from driving a vehicle transporting
dangerous goods if the regulations require the vehicle to
be licensed, and the vehicle is not licensed
(section 21AA(8));
· it prohibits a person from driving a vehicle transporting
dangerous goods if the regulations require the person to
be licensed to drive the vehicle, and the person is not
licensed (section 21AA(9));
These offences have no application to HCDG licences and
Explosives licences. The existing licence-related penalties under
section 21(2) of the DGA will continue to apply to these licences.
The maximum penalty under new sections 21AA(5), 21AA(8)
and 21AA(9) is 100 penalty units (except in the case of
section 21AA(5), where a corporate consigner is subject to a
penalty of 500 penalty units). The other offences under new
section 21AA have equivalents under the template law which
attract a maximum penalty of $250 000 for a body corporate, or
for an individual, $50 000 or imprisonment for two years, or
both. Under the new equivalents in sections 21AA(2), and
21AA(6) the maximum penalties are either 500 penalty units for
an individual or 2500 for a body corporate, except where the
failure results in death or serious injury to a person when the
maximum penalty for a body corporate is 2500 penalty units, and
for an individual is 500 penalty units or imprisonment for
two years (not both).
Clauses 15, and 16 amends section 22, and 23 respectively of the DGA as a
consequence of the expansion of the reviewable decisions
through the mechanism contained in clause 11. The amendments
are necessary because some licensing decisions will qualify for
review by being listed under the regulations, and will be
reviewed through the processes set out in Part IIA or the
regulations. So that such reviewable decisions do not also fall
within the review arrangements set out in sections 22 and 23 it is
necessary to insert new provisions to avoid that result. It is
essential to maintain the separation between the different review
processes in Parts IIA and Part III of the DGA.
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Clause 17 amends section 24 of the DGA to enable the regulations to
prescribe grounds on which the Authority may or must amend,
suspend or revoke a licence. The Authority currently has a broad
discretionary power under section 24. Enabling the regulations
to specify grounds for amendment, suspension or revocation will
enhance consistency and transparency.
Clause 18 amends section 25 of the DGA as a consequence of the expansion
of the reviewable decisions through the mechanism contained in
clause 11. The amendment is required for the similar reasons
stated in relation to clauses 15 and 16.
Clause 19 amends the general duty provision in section 31 of the DGA to
better align it with the offences that are being included in the
DGA by clause 20 (existing general duty offences for similar
offences for transport of dangerous goods). The Bill aims to
reduce anomalies between existing penalties for general duty
offences under the DGA and similar offences under the template
law and in regulations 70 and 71 of the Model Act. The existing
penalty in section 31 is substantially lower than the existing
template law road transport penalties for similar offences and the
Bill realigns it with the latter penalties to avoid an anomaly.
The existing penalty under section 31 is the general penalty
found in section 45 of the DGA, namely, 400 penalty units in the
case of the corporation or 100 penalty units in the case of an
individual, together with further penalties for continuing
offences.
Following the approach in the template law and Model Law this
Bill provides for courts to have the ability to impose custodial
sentences for a general duty breach involving serious injury,
death or aggravated offences involving a mental element.
However, having regard to the approach taken in OHSA not to
include custodial sentences for general duty crimes the Bill does
not continue the existing ability under the template law to impose
custodial sentences for less serious breaches of the general duty
or transport related licence offences not involving serious injury
or death.
Under this clause the new maximum penalties applying under
sections 31(1), 31(2) and 31(4) of the DGA are either 500 penalty
units for an individual or 2500 for a body corporate, except
where the failure results in death or serious injury to a person
when the maximum penalty for a body corporate is 2500 penalty
units, and for an individual is 500 penalty units or imprisonment
for two years (not both).
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Clause 20 inserts new sections 31A, 31B and 31C into the DGA.
New section 31A makes an offence to consign, or arrange the
transport of, goods that are too dangerous to be transported.
New section 31B makes an offence to fail to ensure that
dangerous goods are transported in a safe manner. The general
duty under section 31B applies only "so far as is practicable",
retaining this qualification to the general duty from the existing
general duty in the template law, instead of adopting the reverse
onus provision contained in the Model Act.
The maximum penalties applying under new sections 31A, and
31B of the DGA are either 500 penalty units for an individual or
2500 for a body corporate, except where the failure results in
death or serious injury to a person when the maximum penalty
for a body corporate is 2500 penalty units, and for an individual
is 500 penalty units or imprisonment for two years (not both).
The current maximum penalty for a breach of the equivalent
provision to section 31A under the template law for an individual
is $50 000 or imprisonment for two years, or both and in the case
of a body corporate $250 000. The current maximum penalty for
a breach of the equivalent provision to section 31B under the
template law for an individual is $50 000 or imprisonment for
two years, or both and in the case of a body corporate $250 000,
except where the failure results in death or serious injury to a
person; in this case the current maximum penalty for an
individual is $100 000 or imprisonment for four years, or both
and in the case of a body corporate $500 000. The present
equivalent provision to section 31B under the template law
carries a higher penalty than the new offence under section 31B
because it includes a mental element. In the Bill a separate
provision, new section 31C, deals with aggravated offences
involving a mental element.
The offence under new section 31C has a similar penalty to that
applying under the existing template law, carrying a maximum
penalty for an individual of 1000 penalty units or imprisonment
for four years (but not both) and in the case of a body corporate,
5000 penalty units. The aggravated circumstance that justifies a
penal sanction under new section 31C is that the person failed to
comply with section 31, 31A or 31B, or a prescribed regulation,
when they knew, or ought reasonably to have known, of its
likelihood to endanger another person, property or the
environment. The fact that serious injury or death may not have
resulted does not lower the culpability or dangerousness of the
person's act.
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Clause 21 provides that where the driver of a vehicle is convicted of an
offence under section 31A, section 31B or section 31C the court
may order the person's licence to be cancelled, modified or
suspended; the court may also disqualify the driver from
obtaining or holding a licence. Section 24(1) of the DGA
currently provides a broad power to amend, suspend or revoke
any licence. However, the power rests only with the Authority
and not the courts (a court can impose a pecuniary penalty or, in
some cases, imprisonment).
The Model Act gives that power to a court, which may make the
order if it finds the driver of a vehicle guilty of an offence.
Clause 22 amends section 48 of the DGA with the effect of enabling a court
to order the forfeiture of a container containing seized dangerous
goods by a person guilty of an offence. Sections 47A to 47D of
the DGA allow for the forfeiture and disposal of high
consequence dangerous goods as well as containers. Equivalent
provisions dealing with dangerous goods generally do not refer to
forfeiture of the containers. The Bill clarifies that when
dangerous goods are forfeited the relevant containers may also be
forfeited.
Clause 23 amends section 49 of the DGA as a consequence of the
amendment made by clause 22.
Clause 24 amends section 50 of the DGA as a consequence of the
amendment made by clause 22.
Clause 25 inserts additional regulation-making powers needed to implement
the Model law.
Clause 26 provides that the Governor in Council may make regulations of a
savings or transitional nature consequent on the enactment of this
Bill.
This provision expires one year after latest date for the
commencement of the Act.
Clause 27 inserts a new Part X into the DGA containing savings and
transitional provisions. It includes transitional arrangements that
allow the continued effect of existing appointments of authorised
officers, unremedied contravention notices that have been given,
and applications for review. It also allows for the co-existence of
the ADG 6 (the current code) and ADG 7 Codes for 12 months.
In practice this means compliance with either the ADG 6 Code or
the ADG 7 Code will be acceptable during this period.
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Clause 28 amends Schedule 2 to the DGA to add additional heads of power
for the making of regulations needed to fully implement the new
legislative scheme.
PART 3--REPEAL OF ROAD TRANSPORT (DANGEROUS
GOODS) ACT 1995
Clause 29 repeals the template law, the Road Transport (Dangerous
Goods) Act 1995.
Clause 30 makes consequential amendments to the Accident
Compensation Act 1985 to remove outdated references to the
Road Transport (Dangerous Goods) Act 1995 and to substitute
references to the DGA where necessary.
Clause 31 makes a consequential amendment to section 90A(2)(ab)(iii) of
the Melbourne City Link Act 1995, repealing that provision,
thereby removing a reference to the Road Transport
(Dangerous Goods) Act 1995.
Clause 32 makes consequential amendments to the Occupational Health
and Safety Act 2004 to remove outdated references to the Road
Transport (Dangerous Goods) Act 1995 and to substitute
references to the DGA where necessary.
Clause 33 makes a consequential amendment to section 145 of the
Radiation Act 2005, repealing that provision and thereby
removing a reference to the Road Transport (Dangerous
Goods) Act 1995.
PART 4--REPEAL OF AMENDING ACT
Clause 34 provides for the automatic repeal of this amending Act on
1 January 2011. The repeal of this Act does not affect in any way
the operation of the amendments made by this Act (see section
15(1) of the Interpretation of Legislation Act 1984).
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