Dangerous Substances (Safe Handling) Act 2005

Dangerous Substances (Safe Handling) Act 2005

An Act to provide for the safe handling of dangerous substances, for the safe management of places where dangerous substances are handled and for the safe management of incidents and emergencies involving dangerous substances and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Dangerous Substances (Safe Handling) Act 2005 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

acceptable level of risk – see section 14 ;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] agvet chemical has the meaning given by section 8A ;

approved code of practice – see section 27 ;

approved form means a form approved by the Secretary;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] ASCC means the Australian Safety and Compensation Council, being the tripartite (government, employer and employee) body of that name established under the executive power of the Commonwealth (as the successor to the NOHSC) to –

(a) lead and co-ordinate national efforts to improve occupational health and safety and workers compensation arrangements; and

(b) declare national standards and codes of practice on occupational health and safety matters; and

(c) provide government with policy advice on those matters;

Australian Dangerous Goods Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail published by the Commonwealth, as from time to time amended;

Australian Explosives Code means the Australian Code for the Transport of Explosives by Road and Rail published by the Commonwealth, as from time to time amended;

authorised officer means an authorised officer appointed under section 55(1) , and includes a person authorised under section 55(6) ;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009]

combustible liquid has the meaning given by section 7 ;

conviction, in relation to an offence, includes a finding of guilt without the recording of a conviction for the offence;

dangerous goods has the meaning given by section 6 ;

dangerous situation, at any premises, means that although there is not a dangerous substances emergency at the premises –

(a) it is likely that there will be a dangerous substances emergency at the premises if appropriate action is not taken; and

(b) it is reasonable to conclude, at the least, that taking the action should not be indefinitely delayed;

dangerous substance has the meaning given by section 5 ;

dangerous substances emergency means an incident that exposes persons, property or the environment in the vicinity of the place where the incident occurs to an immediate risk of serious harm from one or more of the following:

(a) the escape, spillage or leakage of dangerous substances;

(b) a fire or explosion involving dangerous substances;

(c) a harmful reaction from dangerous substances;

(d) the evolution of flammable, corrosive or toxic vapours from dangerous substances;

dangerous substances location has the meaning given by section 47(1) ;

DSL means a dangerous substances location;

emergency services means –

(a) [Section 3 Amended by No. 12 of 2006, Sched. 5, Applied:01 Jul 2009] [Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] the State Emergency Service within the meaning of the Emergency Management Act 2006 ; and

(b) the Tasmanian Ambulance Service established under the Ambulance Service Act 1982 ; and

(c) the Tasmania Fire Service established under the Fire Service Act 1979 ; and

(d) the Department;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] employee includes a person engaged, either directly or indirectly, under a contract for services;

environment includes –

(a) animals and organisms; and

(b) ecosystems and their constituent parts; and

(c) all natural and physical resources; and

(d) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and

(e) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) , (b) , (c) and (d) ;

executive officer, of a corporation, means a person who –

(a) is a member of the governing body of the corporation; or

(b) is concerned with, or takes part in, the corporation's management, whatever the person's position is called and whether or not the person is a director of the corporation;

explosives means Class 1 dangerous goods within the meaning of the Australian Dangerous Goods Code;

export means export from Tasmania;

facility means premises where dangerous substances are, or are to be, handled;

fire officer means a person who is a fire-fighter, or an officer of the Fire Service, within the meaning of the Fire Service Act 1979 ;

handling system means any of the following used in connection with the handling of dangerous substances:

(a) a bowser;

(b) a container;

(c) a spill containment system;

(d) a pipe or system of pipes;

(e) a fire-fighting or fire protection system;

(f) any other plant;

hazard means a thing or situation having the potential to do one or more of the following:

(a) kill or harm a person;

(b) harm property;

(c) harm the environment;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] hazardous substance has the meaning given by section 8 ;

import means import into Tasmania;

large dangerous substances location has the meaning given by section 47(3) ;

LDSL means a large dangerous substances location;

major hazard facility has the meaning given by section 29(1) ;

material harm is harm that is less extreme than serious harm but which causes or has the potential to cause, either directly or indirectly, one or more of the following:

(a) harm to a person of a kind that requires, or may require, medical treatment;

(b) harm to property;

(c) harm to the environment;

MHF means a major hazard facility;

modification, of an MHF or DSL, includes –

(a) a change to plant, processes or quantities of dangerous substances at the facility or location; and

(b) the introduction of different dangerous substances or new plant, processes or operating procedures at the facility or location; and

(c) organisational change at the facility or location; and

(d) a change to the safety management system at the facility or location;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] NOHSC means the National Occupational Health and Safety Commission (more commonly known as Worksafe Australia) established under the National Occupational Health and Safety Commission Act 1985 of the Commonwealth and abolished under the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Act 2005 ;

notice means signed written notice;

notify means give a notice;

occupier, of an MHF, DSL, facility or other place, means an employer, or other person, who has overall management of the MHF, DSL, facility or place;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] pipe includes pipeline;

PMHF means a possible major hazard facility;

possible major hazard facility has the meaning given by section 29(2) ;

powers, of the Secretary or an authorised officer, includes any functions associated with the exercise of those powers;

premises includes –

(a) an area of land, whether built on or enclosed; and

(b) a building or a part of a building, whether permanent or temporary; and

(c) a structure or a part of a structure, whether permanent or temporary –

but does not include a vehicle;

qualifications includes expertise, training and experience;

regulations means regulations made and in force under this Act;

relevant employees, in relation to any facility or location, means employees –

(a) whose normal duties expose them to a risk associated with the facility or location; or

(b) who have responsibilities or expertise regarding the management of that risk;

risk means the likelihood of harm to a person, property or the environment arising out of a hazard;

safety management system –

(a) for an MHF, means a safety management system that complies with section 42 ; or

(b) for a DSL, means a safety management system that complies with section 51 ;

safety obligation – see section 13 ;

safety report – see section 44 ;

Secretary means the Secretary of the Department;

sell means sell by wholesale or retail, and includes –

(a) offer, display or expose for sale; and

(b) keep or possess for sale; and

(c) barter or exchange; and

(d) deal in or agree to sell; and

(e) supply, send, forward or deliver for sale or for, or in expectation of receiving, any payment or consideration; and

(f) receive for sale; and

(g) authorise, direct, cause, permit or suffer a thing referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) to be done;

serious harm is harm that contributes in a substantial way, either directly or indirectly, to one or more of the following:

(a) the death of a person;

(b) serious personal injury within the meaning of section 15 ;

(c) serious harm to property;

(d) serious harm to the environment;

Standards Australia means Standards Australia International Ltd ACN 087 326 690;

[Section 3 Amended by No. 37 of 2008, s. 8, Applied:01 Jul 2009] State includes Territory;

statutory rule means a statutory rule within the meaning of the Rules Publication Act 1953 ;

systematic risk assessment means a systematic risk assessment under section 38 ;

workplace means a workplace within the meaning of the Workplace Health and Safety Act 1995 .

4.   References to codes, &c.

A reference in this Act to a code, standard, guideline or rule includes a reference to a code, standard, guideline or rule made outside Australia.

5.   Meaning of "dangerous substance"

(1)  A dangerous substance is a substance that has the potential to cause harm to persons, property or the environment because of one or more of the following:

(a) the chemical properties of the substance;

(b) the physical properties of the substance;

(c) the biological properties of the substance.

(2)  [Section 5 Subsection (2) amended by No. 37 of 2008, s. 9, Applied:01 Jul 2009] Without limiting subsection (1) , all dangerous goods, combustible liquids, hazardous substances and agvet chemicals are dangerous substances.

6.   Meaning of "dangerous goods"

Goods are dangerous goods if they are substances or articles that –

(a) are capable of being classified as an explosive substance or explosive article under the Australian Explosives Code; or

(b) are listed in the Australian Explosives Code, appendix 1 or 2; or

(c) are capable of being classified as dangerous goods under the Australian Dangerous Goods Code; or

(d) are listed as dangerous goods or goods too dangerous to be transported under the Australian Dangerous Goods Code; or

(e) [Section 6 Amended by No. 37 of 2008, s. 10, Applied:01 Jul 2009] are prescribed to be dangerous goods.

(f) [Section 6 Amended by No. 37 of 2008, s. 10, Applied:01 Jul 2009] .  .  .  .  .  .  .  .  

7.   Meaning of "combustible liquid"

A liquid is a combustible liquid if it is a combustible liquid under –

(a) Australian Standard AS 1940 The Storage and Handling of Flammable and Combustible Liquids made by Standards Australia, as from time to time amended; or

(b) if another standard is prescribed for the purposes of this section, that other standard.

8.   Meaning of "hazardous substance"

[Section 8 Substituted by No. 37 of 2008, s. 11, Applied:01 Jul 2009] A hazardous substance is a substance that is, or is capable of being, classified according to the Approved Criteria for Classifying Hazardous Substances published by the ASCC.

Note: The Approved Criteria for Classifying Hazardous Substances is available on the ASCC website.

8A.   Meaning of "agvet chemical"

[Section 8A Inserted by No. 37 of 2008, s. 11, Applied:01 Jul 2009] An agvet chemical is –

(a) an agricultural chemical product within the meaning of the Agvet Code of Tasmania; or

(b) a veterinary chemical product within the meaning of the Agvet Code of Tasmania.

Note: The Agvet Code of Tasmania is the code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth. By virtue of section 5 of the Agricultural and Veterinary Chemicals (Tasmania) Act 1994 this code applies as a law of Tasmania.

9.   What constitutes the handling of dangerous substances?

(1)  A person handles a dangerous substance for the purposes of this Act if they do one or more of the following:

(a) import or export the dangerous substance;

(b) manufacture, process or treat the dangerous substance;

(c) sell, supply, receive or dispense the dangerous substance;

(d) pack the dangerous substance;

(e) mark or label articles, containers or packages of the dangerous substance;

(f) put up placards or signs in relation to the dangerous substance;

(g) possess, or otherwise have custody or control of, the dangerous substance;

(h) store or keep the dangerous substance;

(i) use the dangerous substance;

(j) dispose of the dangerous substance or render it harmless;

(k) [Section 9 Subsection (1) amended by No. 37 of 2008, s. 12, Applied:01 Jul 2009] design, manufacture or import a handling system for the dangerous substance;

(l) [Section 9 Subsection (1) amended by No. 37 of 2008, s. 12, Applied:01 Jul 2009] install, use, alter or maintain a handling system for the dangerous substance;

(m) [Section 9 Subsection (1) amended by No. 37 of 2008, s. 12, Applied:01 Jul 2009] organise, provide or undergo training in relation to the dangerous substance or any aspect of its handling;

(n) [Section 9 Subsection (1) amended by No. 37 of 2008, s. 12, Applied:01 Jul 2009] carry out a prescribed activity in relation to the dangerous substance.

(2)  [Section 9 Subsection (2) substituted by No. 37 of 2008, s. 12, Applied:01 Jul 2009] However, a person who is transporting a dangerous substance is not taken to be handling it for the purposes of this Act unless and except in so far as the transportation involves moving the dangerous substance from one place to another by means of pipes.

10.   Scope of Act

(1)  This Act applies to –

(a) the handling of dangerous substances; and

(b) the operation of major hazard facilities and dangerous substances locations.

(2)  [Section 10 Subsection (2) substituted by No. 37 of 2008, s. 13, Applied:01 Jul 2009] However, this Act does not apply to –

(a) class 6.2 or class 7 dangerous goods within the meaning of the Australian Dangerous Goods Code; or

(b) dangerous substances that are in a container that is designed to form part of, and does form part of, the fuel or battery system of a vehicle's engine, auxiliary engine, fuel-burning appliance or other part of a vehicle's propulsion system.

(3)  Also, this Act does not apply to –

(a) land that is used for obtaining, mining or transporting petroleum under the Petroleum (Submerged Lands) Act 1982 ; or

(b) distribution systems, within the meaning of the Gas Act 2000 , that are located outside the boundaries of major hazard facilities or dangerous substances locations.

(4)  [Section 10 Subsection (4) substituted by No. 37 of 2008, s. 13, Applied:01 Jul 2009] Also, except as provided by section 9(2) , this Act does not apply to –

(a) the transportation of dangerous substances; or

(b) dangerous substances that are in transit.

(5)  [Section 10 Subsection (5) inserted by No. 37 of 2008, s. 13, Applied:01 Jul 2009] For the purposes of subsection (4)(b) , dangerous substances are taken to be in transit if they –

(a) are on premises to which they have been supplied in unopened containers; and

(b) have been at the premises for less than 5 consecutive days (calculated from the time at which they were supplied to the premises); and

(c) have not, during that period, been opened or used at the premises.

11.   Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

12.   Inconsistencies, &c., with other Acts

(1)  If a provision of this Act is inconsistent with a provision of any of the following Acts, the provision of that Act prevails over the provision of this Act to the extent of the inconsistency:

(a) [Section 12 Subsection (1) amended by No. 16 of 2010, Sched. 1, Applied:01 Jan 2011] Dangerous Goods (Road and Rail Transport) Act 2010 ;

(b) [Section 12 Subsection (1) amended by No. 12 of 2006, Sched. 5, Applied:01 Jul 2009] Emergency Management Act 2006 ;

(c) Gas Act 2000 ;

(d) Gas Pipelines Act 2000 ;

(e) [Section 12 Subsection (1) amended by No. 37 of 2008, s. 14, Applied:01 Jul 2009] Poisons Act 1971 ;

(f) [Section 12 Subsection (1) amended by No. 37 of 2008, s. 14, Applied:01 Jul 2009] Radiation Protection Act 2005 ;

(g) [Section 12 Subsection (1) amended by No. 37 of 2008, s. 14, Applied:01 Jul 2009] Security-sensitive Dangerous Substances Act 2005 .

(2)  If –

(a) this Act imposes a safety obligation on a person; and

(b) any of the other Acts referred to in subsection (1) imposes an obligation on the person or on another person that is at least equivalent to the safety obligation –

compliance with the obligation under the other Act is taken, for this Act, to be compliance with the safety obligation.

(3)  However, subsection (2) does not apply to a safety obligation regarding an MHF.

PART 2 - Safety Obligations

Division 1 - Preliminary

13.   Safety obligations

(1)  [Section 13 Subsection (1) amended by No. 37 of 2008, s. 15, Applied:01 Jul 2009] All persons who handle dangerous substances have the following obligations:

(a) to comply with this Act;

(b) to take all reasonable precautions and care to achieve an acceptable level of risk.

(2)  In addition to their obligations under subsection (1) , the following persons have obligations under Division 2 :

(a) the occupier of an MHF or DSL;

(b) [Section 13 Subsection (2) amended by No. 37 of 2008, s. 15, Applied:01 Jul 2009] an employee at an MHF or DSL;

(c) a manufacturer, importer or supplier of dangerous substances;

(d) a designer, manufacturer, importer or supplier of handling systems for use at an MHF or DSL;

(e) [Section 13 Subsection (2) amended by No. 37 of 2008, s. 15, Applied:01 Jul 2009] an installer of handling systems at an MHF or DSL;

(f) [Section 13 Subsection (2) amended by No. 37 of 2008, s. 15, Applied:01 Jul 2009] a person that alters or maintains a handling system at an MHF or DSL.

(3)  The occupier of an MHF has, in addition to the obligations under subsections (1) and (2) , the obligations under Part 4 .

(4)  The occupier of a DSL has, in addition to the obligations under subsections (1) and (2) , the obligations under Part 5 .

(5)  For the purposes of this Act, the obligations referred to in subsection (1) , (2) , (3) or (4) are called "safety obligations".

14.   Achieving acceptable levels of risk

(1)  An acceptable level of risk is achieved when risk is minimised as far as reasonably practicable.

(2)  To decide whether risk is minimised as far as reasonably practicable, regard must be had to –

(a) the likelihood of harm to a person, property or the environment related to the risk; and

(b) the severity of the harm.

(3)  The regulations may prescribe the acceptable level of risk in terms of the likelihood and the severity of the consequences of the risk or in another way.

(4)  The assessment of risk to decide its acceptability must take account of good industry practice and compliance with approved codes of practice if –

(a) the regulations do not prescribe an acceptable level of risk or set performance objectives and measures for the avoidance, reduction or monitoring of risk; or

(b) it is not practicable in the circumstances to calculate or estimate the level of risk.

15.   Discharge of obligations

(1)  A person who has a safety obligation must discharge that obligation.

Penalty:  If –

(a) the contravention causes multiple deaths and serious harm to property or the environment – a fine not exceeding 10 000 penalty units or imprisonment for a term not exceeding 5 years; or

(b) the contravention causes multiple deaths – a fine not exceeding 8 000 penalty units or imprisonment for a term not exceeding 4 years; or

(c) the contravention causes death or serious personal injury – a fine not exceeding 6 000 penalty units or imprisonment for a term not exceeding 3 years; or

(d) the contravention involves exposure to a substance likely to cause death or serious personal injury or illness – a fine not exceeding 4 000 penalty units or imprisonment for a term not exceeding 2 years; or

(e) the contravention causes minor personal injury or serious harm to property or the environment – a fine not exceeding 2 000 penalty units or imprisonment for a term not exceeding 12 months; or

(f) if paragraphs (a) , (b) , (c) , (d) and (e) of the penalty under subsection (1) do not apply – a fine not exceeding 1 000 penalty units.

(2)  However, if –

(a) a person is alleged to have contravened subsection (1) ; and

(b) it is alleged that the safety obligation the person failed to discharge is the obligation to comply with this Act; and

(c) the specific provision of this Act that the failure relates to provides a penalty for contravening that specific provision; and

(d) a circumstance of aggravation mentioned in paragraph (a) , (b) , (c) , (d) or (e) of the penalty under subsection (1) is not proved for the alleged offence –

the maximum penalty that can be imposed for the alleged offence is the monetary penalty for that specific provision.

(3)  In this section –

minor personal injury means bodily injury that interferes with health or comfort;

multiple deaths means the death of 2 or more people;

serious personal injury means injury that –

(a) results in the full or partial loss of a distinct part or organ of the body or of the use of a distinct part or organ of the body; or

(b) results in serious disfigurement; or

(c) if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health –

whether or not treatment is or could have been available.

16.   Obligations may be owed in more than one capacity

A person who has a safety obligation in one capacity may have the same or another safety obligation in another capacity.

17.   Obligations are owed even if others also have them

To avoid doubt, it is declared that the imposition of a safety obligation on one person does not relieve another person of a safety obligation that the other person may have.

18.   How to discharge obligations if there are regulations or approved codes of practice

(1)  If the regulations prescribe a way of achieving an acceptable level of risk, a person may discharge the person's safety obligation regarding the risk only by following the prescribed way.

(2)  If the regulations prohibit exposure to a risk, a person may discharge the person's safety obligation regarding the risk only by ensuring that the prohibition is not contravened.

(3)  Subject to subsections (1) and (2) , if an approved code of practice states a way of achieving an acceptable level of risk, a person may discharge the person's safety obligation regarding the risk only by –

(a) adopting and following the stated way; or

(b) adopting and following another way that achieves a level of risk equal to or lower than the acceptable level.

19.   How to discharge obligations if there are no regulations or approved codes of practice

(1)  This section applies if there is no regulation or approved code of practice prescribing or stating a way to discharge a person's safety obligation regarding a risk.

(2)  The person may choose an appropriate way to discharge the person's safety obligation regarding the risk.

(3)  However, the person discharges the person's safety obligation regarding the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure that the obligation is discharged.

Division 2 - Obligations of occupiers and others

20.   Obligations of occupiers regarding risk reduction

The occupier of an MHF or DSL has the following obligations:

(a) as far as practicable, to minimise the risk associated with the MHF or DSL by –

(i) eliminating or minimising hazards at the facility or location; and

(ii) [Section 20 Amended by No. 37 of 2008, s. 16, Applied:01 Jul 2009] implementing measures to minimise the likelihood of a dangerous situation or dangerous substances emergency at the facility or location; and

(iii) implementing measures to limit the consequences if a dangerous substances emergency occurs at the facility or location;

(b) to ensure the safety of the occupier, employees and other persons while at the MHF or DSL, including, for example, by providing and maintaining a safe place of work including safe handling systems;

(c) to document or be able to demonstrate the way the occupier has complied with the occupier's obligations under paragraphs (a) and (b) ;

(d) to provide appropriate induction, information, supervision, education and training to all persons at the facility or location so that they may carry out their roles and duties safely;

(e) to develop, implement and maintain a safety management system for the facility or location;

(f) in consultation with relevant employees, to review the safety management system –

(i) at least once a year; and

(ii) [Section 20 Amended by No. 37 of 2008, s. 16, Applied:01 Jul 2009] before any modification of the facility or location that would significantly alter the risk associated with the facility or location is carried out;

(g) [Section 20 Amended by No. 37 of 2008, s. 16, Applied:01 Jul 2009] to maintain, for the MHF or DSL, a dangerous substances inventory of –

(i) which dangerous substances are at the MHF or DSL; and

(ii) the form of those dangerous substances; and

(iii) the whereabouts and, if applicable, method of storage or containment of those dangerous substances; and

(iv) the maximum containment capacity of the MHF or DSL for those dangerous substances; and

(v) any prescribed information;

(h) [Section 20 Amended by No. 37 of 2008, s. 16, Applied:01 Jul 2009] to ensure that employees at the MHF or DSL can readily consult the inventory in connection with their duties;

(i) [Section 20 Amended by No. 37 of 2008, s. 16, Applied:01 Jul 2009] to make the inventory available to authorised officers and emergency services workers on request.

21.   Obligations of occupiers regarding emergency plans and procedures

The occupier of an MHF or LDSL also has the following obligations:

(a) in consultation with relevant employees, and with the emergency services, to establish and document emergency plans and procedures to –

(i) contain and control a dangerous substances emergency occurring at the facility or location; and

(ii) minimise the effect of the emergency on persons, property and the environment;

(b) in consultation with relevant employees and the emergency services, to review and update emergency plans and procedures before any modification of the facility or location that would significantly alter the risk associated with the facility or location is carried out.

22.   Obligations of employees

[Section 22 Amended by No. 37 of 2008, s. 17, Applied:01 Jul 2009] An employee at an MHF or DSL has the following obligations:

(a) [Section 22 Amended by No. 37 of 2008, s. 17, Applied:01 Jul 2009] to comply with procedures applying to the employee that are part of a safety management system for the facility or location;

(b) to comply with instructions given for the safety of persons by the occupier of the facility or location or a supervisor at the facility or location;

(c) to report to a supervisor at the facility or location any matter at the facility or location that may lead to or cause a dangerous substances emergency;

(d) to take any other reasonable and necessary course of action at the facility or location to ensure that no-one is exposed to an unacceptable level of risk.

23.   Obligations of manufacturers, importers and suppliers of dangerous substances

(1)  A manufacturer, importer or supplier of dangerous substances has the following obligations:

(a) to ensure that the dangerous substances are in a condition that is safe for handling;

(b) to ensure that appropriate information about the safe handling of the dangerous substances is provided with, or before the receipt of, the dangerous substances.

(2)  For subsection (1)(b) , information is appropriate if it clearly identifies the dangerous substances and specifies –

(a) the precautions to be taken for the safe handling of the dangerous substances; and

(b) the hazards associated with the handling of the dangerous substances.

24.   Obligations of designers, manufacturers, importers, suppliers and installers of handling systems

(1)  A designer or importer of a handling system for use at an MHF or DSL has an obligation to ensure that the system is designed in such a way that the risk to persons, property or the environment from its proper use is at an acceptable level.

(2)  A manufacturer or importer of a handling system for use at an MHF or DSL has an obligation to ensure that the system is constructed in such a way that the risk to persons, property or the environment from its proper use is at an acceptable level.

(3)  A designer, manufacturer, importer or supplier of a handling system for use at an MHF or DSL has an obligation to take all reasonable steps to ensure that appropriate information about the safe use and maintenance of the system is available to the occupier of the facility or location.

(4)  For subsection (3) , information is appropriate if it specifies –

(a) the use for which the handling system has been designed and tested; and

(b) any conditions that must be complied with if the handling system is to be used safely so that risk to persons, property or the environment is at an acceptable level.

(5)  An installer of a handling system at an MHF or DSL has an obligation to install the system in such a way that the risk to persons, property or the environment from its proper use is at an acceptable level.

(6)  [Section 24 Subsection (6) inserted by No. 37 of 2008, s. 18, Applied:01 Jul 2009] A person that alters or maintains a handling system at an MHF or DSL has an obligation to alter or maintain the system in such a way that the risk to persons, property or the environment from its proper use is at an acceptable level.

25.   Obligations of suppliers and installers regarding known hazards, &c.

(1)  This section applies to a person if –

(a) the person has –

(i) [Section 25 Subsection (1) amended by No. 37 of 2008, s. 19, Applied:01 Jul 2009] installed, altered or maintained a handling system in an MHF or DSL; or

(ii) supplied a handling system to the occupier of an MHF or DSL for use at the facility or location; and

(b) the person becomes aware of a hazard or defect associated with the system that may create an unacceptable level of risk to users of the handling system.

(2)  As soon as practicable after becoming aware of the hazard or defect, the person has an obligation to take all reasonable steps to inform the present occupier of the MHF or DSL of –

(a) the nature of the hazard or defect and its significance; and

(b) any modifications or controls that the person knows of that have been developed to eliminate or correct the hazard or defect or manage the risk.

Division 3 - Defences

26.   Defences for Division 1 or 2

(1)  It is a defence in proceedings against a person for a contravention of a safety obligation under Division 1 or 2 regarding a risk if the person establishes that –

(a) if regulations have been made about the way to achieve an acceptable level of risk, the person followed the way prescribed in the regulations to prevent the contravention; or

(b) subject to paragraph (a) , if an approved code of practice has been made stating a way to achieve an acceptable level of a risk –

(i) the person adopted and followed the stated way to prevent the contravention; or

(ii) the person adopted and followed another way that achieved a level of risk that is equal to or lower than the acceptable level to prevent the contravention; or

(c) if no regulations or approved code of practice prescribe or state a way to discharge the person's safety obligation regarding the risk, the person took reasonable precautions and exercised proper diligence to prevent the contravention.

(2)  Also, it is a defence in proceedings against a person for an offence against section 15 for the person to establish that the commission of the offence was due to causes over which the person had no control.

PART 3 - Codes of practice

27.   Minister may approve codes of practice

(1)  The Minister may approve codes of practice that state ways of achieving acceptable levels of risk.

(2)  A code of practice may –

(a) consist of any code, standard, guideline, rule or other document relating to dangerous substances formulated, prepared or adopted by the Secretary or by a person who, under the law of another jurisdiction, has powers that are substantially similar to those of the Secretary under this Act; and

(b) apply, incorporate or refer to the whole or any part of any document formulated or published by any body or authority as in force at the time the code of practice is approved or as amended, formulated or published from time to time.

(3)  The Minister may approve any revision of a code of practice or revoke a code of practice.

(4)  Before approving a code of practice or the revision or revocation of a code of practice, the Minister must –

(a) consult with such employer and employee organisations as the Minister considers appropriate having regard to the application of the code of practice; and

(b) by notice published in the Gazette and in 3 daily newspapers published and circulating in the State, give 30 days' notice of the Minister's intention to approve the code of practice or the revision or revocation of the code of practice.

(5)  The Minister must give notice in the Gazette of –

(a) the approval of a code of practice; or

(b) the approval of the revision of the whole or part of a code of practice; or

(c) the revocation of a code of practice.

(6)  The Secretary must cause to be made available for inspection by members of the public without charge during normal office hours a copy of –

(a) every approved code of practice; and

(b) if an approved code of practice has been revised and the revision has been approved, the approved code of practice as so revised; and

(c) if an approved code of practice applies, incorporates or refers to any other document, that other document.

(7)  The Minister may cause copies of an approved code of practice to be made available for purchase.

(8)  The Minister may from time to time cause an approved code of practice to be published in such ways as the Minister thinks fit.

(9)  An approved code of practice and any approved revision of a code of practice have effect on the day on which notice of the approval is published in the Gazette.

(10)  An approved code of practice ceases to have effect on the day on which notice of the revocation of the code is published in the Gazette.

28.   Use of codes of practice in proceedings

An approved code of practice is admissible as evidence in proceedings under this Act if –

(a) the proceedings relate to a contravention of a safety obligation that a person has under Part 2 ; and

(b) it is claimed that the person contravened the obligation by failing to achieve an acceptable level of risk; and

(c) the approved code of practice is, in whole or in part, about achieving an acceptable level of risk.

PART 4 - Major Hazard Facilities

Division 1 - Classification of facilities as major hazard facilities

29.   Meaning of "major hazard facility" and "possible major hazard facility"

(1)  A major hazard facility ("MHF") is a facility that the Secretary classifies as a major hazard facility under this Division.

(2)  A possible major hazard facility ("PMHF") is either of the following:

(a) a facility where a dangerous substance is handled in a greater than prescribed quantity;

(b) a facility that its occupier intends to use for the handling of a dangerous substance in a greater than prescribed quantity.

(3)  However, a facility referred to in subsection (2) is not a PMHF if a declaration under section 31(6) is in force in respect of the facility.

30.   Classification of facilities as major hazard facilities

(1)  The Secretary must classify a facility as an MHF if the Secretary is reasonably satisfied that –

(a) dangerous substances are, or are likely to be, handled at the facility in a greater than prescribed quantity; and

(b) a dangerous substances emergency at the facility could pose a risk to persons, property or the environment outside the facility.

(2)  Also, the Secretary may classify a facility as an MHF if the Secretary, having regard to both of the following matters, is reasonably satisfied that the requirements applying under this Act for major hazard facilities should apply to the facility:

(a) the potential for a dangerous substances emergency to occur at the facility;

(b) the extent to which a dangerous substances emergency at the facility would pose a risk to persons, property or the environment.

(3)  However, the Secretary must not classify a facility as an MHF without first consulting the occupier.

(4)  A failure to comply with subsection (3) renders the classification invalid.

31.   Procedure for classifying facilities as major hazard facilities

(1)  The Secretary classifies a facility as an MHF by publishing notice of the classification in the Gazette.

(2)  The notice is to –

(a) include a description of the area occupied by the MHF; and

(b) indicate in broad terms the reasons for the classification.

(3)  The classification takes effect on –

(a) the day on which the notice is published in the Gazette; or

(b) such later day as the Secretary specifies in the notice.

(4)  The Secretary must also notify the occupier of –

(a) the classification; and

(b) the reasons for the classification; and

(c) the occupier's right of review under section 91 .

(5)  The notification to the occupier must be given within 5 days after notice of the classification is published in the Gazette.

(6)  If the Secretary decides not to classify a facility as an MHF under section 30 , the Secretary, by notice to the occupier, must declare that the facility as described in the declaration is not an MHF.

(7)  The declaration under subsection (6) is to include a statement of the Secretary's understanding of –

(a) which dangerous substances are, or are likely to be, handled at the facility; and

(b) the quantity of dangerous substances that are, or are likely to be, handled at the facility.

32.   Declassification of major hazard facilities

(1)  The Secretary, after consulting the occupier, may declassify an MHF from its status as an MHF if the Secretary reasonably considers that grounds for the classification no longer exist.

(2)  The Secretary declassifies the MHF by publishing notice of the declassification in the Gazette.

(3)  The notice is to –

(a) include a description of the area occupied by the facility being declassified; and

(b) indicate in broad terms the reasons for the declassification.

(4)  The declassification takes effect on –

(a) the day on which the notice is published in the Gazette; or

(b) such later day as the Secretary specifies in the notice.

Division 2 - Notification of possible major hazard facilities

33.   Obligation of occupiers to notify Secretary of existing possible major hazard facilities

(1)  This section applies to a PMHF that is operational when this section commences.

(2)  The occupier of the facility must notify the Secretary about the facility as required by subsection (3) to enable the Secretary to decide whether to classify it as an MHF.

Penalty:  Fine not exceeding 200 penalty units.

(3)  The notification under subsection (2) must be –

(a) in an approved form; and

(b) given within 3 months after this section commences.

34.   Obligation of occupiers to notify Secretary of new possible major hazard facilities

(1)  This section applies to a PMHF that is not operational when this section commences.

(2)  The occupier of the facility must notify the Secretary about the facility as required by subsection (3) to enable the Secretary to decide whether to classify it as an MHF.

Penalty:  Fine not exceeding 200 penalty units.

(3)  The notification under subsection (2) must be –

(a) in an approved form; and

(b) given to the Secretary –

(i) if the facility begins operations within 3 months after this section commences, no later than 14 days after it begins operations; or

(ii) if the facility begins operations within 12 months (but more than 3 months) after this section commences, at least 3 months before it begins operations; or

(iii) if the facility begins operations more than 12 months after this section commences, at least 6 months before it begins operations.

35.   Obligation of occupiers to notify Secretary of certain upgrades of facilities

(1)  This section applies to a facility, other than an MHF, if there is a change in relation to the facility that involves any of the following:

(a) the facility becomes a PMHF;

(b) for a facility that is the subject of a declaration under section 31(6)  –

(i) the quantity of dangerous substances handled, or likely to be handled, at the facility is greater than the quantity stated in the declaration; or

(ii) dangerous substances other than those stated in the declaration are handled, or are likely to be handled, at the facility.

(2)  [Section 35 Subsection (2) amended by No. 37 of 2008, s. 20, Applied:01 Jul 2009] The occupier of the facility must notify the Secretary about the facility as required by subsection (3) to enable the Secretary to decide whether to classify it as an MHF.

Penalty:  [Section 35 Subsection (2) amended by No. 37 of 2008, s. 20, Applied:01 Jul 2009] Fine not exceeding 200 penalty units.

(3)  The notification under subsection (2) must be –

(a) in an approved form; and

(b) given to the Secretary –

(i) if the facility is upgraded within 3 months after this section commences, within 14 days after it begins operations as an upgraded facility; or

(ii) if the facility is upgraded within 12 months (but more than 3 months) after this section commences, at least 3 months before it begins operations as an upgraded facility; or

(iii) if the facility is upgraded more than 12 months after this section commences, at least 6 months before it begins operations as an upgraded facility.

(4)  In this section –

upgraded facility means a facility that, as a result of a change in relation to the facility, is a facility of the type to which this section applies.

36.   Obligation of occupiers to notify Secretary of modifications of major hazard facilities

[Section 36 Amended by No. 37 of 2008, s. 21, Applied:01 Jul 2009] Before an MHF is modified in a way that significantly alters the risks associated with the facility, its occupier must notify the Secretary as prescribed of the proposed modifications.

Penalty:  Fine not exceeding 200 penalty units.

37.   Obligation of occupiers to give Secretary required information about possible major hazard facilities

(1)  This section applies to a facility if the Secretary –

(a) becomes aware of the presence or likely presence of dangerous substances at the facility; and

(b) reasonably considers that the facility might be classifiable as an MHF under section 30 .

(2)  The Secretary, by notice, may require the occupier to give the Secretary specified information about the facility by a specified time to enable the Secretary to decide whether to classify it as an MHF.

(3)  The time specified in the notice is not to be less than 14 days after it is given to the occupier.

(4)  The occupier, on being given the notice, must comply with the Secretary's requirement.

Penalty:  Fine not exceeding 200 penalty units.

Division 3 - Other obligations of occupiers of major hazard facilities

38.   Obligation of occupiers to carry out systematic risk assessments

(1)  The occupier of an MHF must, in consultation with relevant employees, carry out, document, review and update a systematic risk assessment that, as far as practicable –

(a) identifies all hazards that may cause a dangerous substances emergency at the facility; and

(b) assesses the likelihood of a dangerous substances emergency occurring at the facility and its effects if it does occur; and

(c) assesses the overall risk from the MHF.

(2)  The systematic risk assessment must be carried out and documented –

(a) if the facility is classified as an MHF within 12 months after this section commences, within 6 months after it is so classified; or

(b) if the facility is classified as an MHF more than 12 months after this section commences, within 3 months after it is so classified.

(3)  The systematic risk assessment must be reviewed and updated before any modification of the facility that would significantly alter the risk associated with the facility is carried out.

39.   Obligation of occupiers regarding emergency plans and procedures

For section 21(a) in its application to an MHF, the occupier must ensure that the emergency plans and procedures are established and documented –

(a) if the facility is classified as an MHF within 12 months after this section commences, within 8 months after it is so classified; or

(b) if the facility is classified as an MHF more than 12 months after this section commences, within 3 months after it is so classified.

40.   Obligation of occupiers to consult about emergency plans and procedures

The occupier of an MHF must, in establishing, maintaining and documenting emergency plans and procedures, consult with –

(a) the emergency services; and

(b) the council of the municipal area in which the MHF is located; and

(c) persons and owners that must be consulted under section 43(2)(a) .

41.   Obligation of occupiers regarding education and training

(1)  For section 20(d) in its application to an MHF, the occupier must ensure that the education and training –

(a) establishes and maintains the standards of competency of persons at the facility; and

(b) is regularly reviewed and updated so that standards of competency are maintained; and

(c) is conducted as often as is necessary to maintain the standards of competency; and

(d) is conducted before any modification of the facility that would significantly alter the risk associated with the facility is carried out.

(2)  The occupier must keep a written record of the matters mentioned in subsection (1) .

42.   Obligation of occupiers regarding safety management systems

(1)  For section 20(e) in its application to an MHF, the occupier must ensure that the safety management system is a documented, comprehensive integrated system for managing safety at the facility and that it contains details of –

(a) the system's safety objectives; and

(b) the procedures by which the safety objectives are to be achieved; and

(c) the performance criteria that are to be met; and

(d) the way in which adherence to the performance criteria is to be maintained; and

(e) such other matters as may be prescribed.

(2)  The occupier must ensure that the safety management system is developed and implemented –

(a) if the facility is classified as an MHF within 12 months after this section commences, within 12 months after it is so classified; or

(b) if the facility is classified as an MHF more than 12 months after this section commences, within 3 months after it is so classified.

(3)  Without limiting subsection (1) , the occupier –

(a) must not operate the MHF unless there is a safety management system for the facility; and

(b) must ensure that the safety management system is reviewed and updated before any modification of the MHF that would significantly alter the risk associated with the facility is carried out.

43.   Obligation of occupiers to consult and give information about safety measures

(1)  The occupier of an MHF must identify areas, surrounding the facility, in which material harm may be caused if a dangerous substances emergency occurs at the facility.

(2)  The occupier –

(a) must consult with and inform persons in the areas, and owners of property situated in the areas, about the hazards at the MHF and the safety measures that should be taken if a dangerous substances emergency occurs at the facility; and

(b) must update the information as often as necessary to keep the persons and owners informed about the hazards and the way to respond to a dangerous substances emergency at the facility.

(3)  For subsection (2)(a) , the occupier must first consult and inform persons and owners about hazards and safety measures –

(a) if the facility is classified as an MHF within 12 months after this section commences, within 16 months after it is so classified; or

(b) if the facility is classified as an MHF more than 12 months after this section commences, within 3 months after it is so classified.

(4)  If a dangerous substances emergency occurs at the facility, the occupier must ensure that persons and owners who may be affected by the dangerous substances emergency are immediately warned of the danger and advised of the safety measures they should take.

44.   Obligation of occupiers to give safety reports to Secretary

(1)  [Section 44 Subsection (1) amended by No. 37 of 2008, s. 22, Applied:01 Jul 2009] The occupier of an MHF must give the Secretary a written report (called a "safety report") demonstrating that –

(a) risk at the MHF is at an acceptable level; and

(b) the occupier has discharged the occupier's obligations under this Act for the following:

(i) the induction, information, supervision, education and training under section 20 ;

(ii) the systematic risk assessment under section 38 ;

(iii) the emergency plans and procedures under section 39 ;

(iv) the safety management system under section 42 ;

(v) the consultation and giving of information under section 43 ;

(vi) such other obligations as may be prescribed.

(2)  The safety report must be given to the Secretary –

(a) if the facility is classified as an MHF within 12 months after this section commences, within 16 months after it is so classified; or

(b) if the facility is classified as an MHF more than 12 months after this section commences, within 3 months after it is so classified.

(3)  The occupier must review the safety report and give the Secretary an update of it –

(a) at least once every 5 years; and

(b) before any modification of the MHF that would significantly alter the risk associated with the facility is carried out.

(4)  The occupier must –

(a) consult with relevant employees when preparing or updating the safety report; and

(b) keep a written record of those consultations.

45.   Obligation of occupiers to report, &c., dangerous substances emergencies

(1)  The occupier of an MHF or PMHF must, if a dangerous substances emergency occurs at the facility –

(a) [Section 45 Subsection (1) amended by No. 37 of 2008, s. 23, Applied:01 Jul 2009] immediately advise the Secretary that the dangerous substances emergency has occurred and of any resulting serious harm or material harm; and

(b) if that advice is given to the Secretary orally, confirm it in writing within 7 days; and

(c) investigate the dangerous substances emergency as soon as practicable; and

(d) give the Secretary a written report of the investigation and its findings within one month after the dangerous substances emergency occurs or, if the Secretary considers this is not practicable, the longer time allowed by the Secretary; and

(e) consult with relevant employees about ways of avoiding dangerous substances emergencies in the future.

Penalty:  Fine not exceeding 200 penalty units.

(2)  However, the occupier does not have to comply with subsection (1) if the dangerous substances emergency is notified under any of the following:

(a) [Section 45 Subsection (2) amended by No. 16 of 2010, Sched. 1, Applied:01 Jan 2011] the Dangerous Goods (Road and Rail Transport) Act 2010 ;

(b) [Section 45 Subsection (2) amended by No. 12 of 2006, Sched. 5, Applied:01 Jul 2009] the Emergency Management Act 2006 ;

(c) the Gas Act 2000 ;

(d) the Gas Pipelines Act 2000 ;

(e) the Radiation Protection Act 2005 ;

(f) the Security-sensitive Dangerous Substances Act 2005 ;

(g) a prescribed Act.

46.   Obligation of occupiers to record dangerous situations

(1)  The occupier of an MHF or PMHF must, as soon as practicable after a dangerous situation occurs at the facility –

(a) record the occurrence of the dangerous situation; and

(b) investigate the dangerous situation and record the findings of the investigation; and

(c) consult with relevant employees about ways of avoiding dangerous situations in the future.

Penalty:  Fine not exceeding 80 penalty units.

(2)  The occupier must keep a record created under subsection (1) for as long as the MHF or PMHF continues to operate.

Penalty:  Fine not exceeding 80 penalty units.

PART 5 - Dangerous substances locations

Division 1 - Identification of dangerous substances locations

47.   Meaning of "dangerous substances location" and "large dangerous substances location"

(1)  [Section 47 Subsection (1) substituted by No. 37 of 2008, s. 24, Applied:01 Jul 2009] A place is a dangerous substances location ("DSL") if dangerous goods or combustible liquids are, or are likely to be, handled at the place in a greater than prescribed quantity.

(2)  However, an MHF is not a DSL.

(3)  [Section 47 Subsection (3) substituted by No. 37 of 2008, s. 24, Applied:01 Jul 2009] A DSL is a large dangerous substances location ("LDSL") if dangerous goods or combustible liquids are, or are likely to be, handled at the location in a greater than prescribed quantity.

(4)  [Section 47 Subsection (4) inserted by No. 37 of 2008, s. 24, Applied:01 Jul 2009] To avoid doubt, if and when a DSL becomes an LDSL –

(a) it does not cease thereby to be a DSL; and

(b) no provision of this Act applying to a DSL ceases thereby to apply to it; and

(c) the provisions of this Act that apply to it as an LDSL are additional to those that apply to it as a DSL.

Division 2 - Notification of possible dangerous substances locations

48.   Obligation of occupiers to notify Secretary of possible large dangerous substances locations

(1)  This section applies to a place if, having regard to the presence or likely presence of dangerous goods or combustible liquids at the place, the occupier knows or reasonably ought to know that the place is an LDSL.

(2)  The occupier of the place must notify the Secretary, as prescribed, of information about the handling of dangerous goods or combustible liquids at the place.

Penalty:  Fine not exceeding 200 penalty units.

49.   Obligation of occupiers to give Secretary required information about possible dangerous substances locations

(1)  This section applies to a place if the Secretary –

(a) becomes aware of the presence or the likely presence of dangerous goods or combustible liquids at the place; and

(b) reasonably considers that the place is or may be a DSL.

(2)  The Secretary, by notice, may require the occupier to give the Secretary, by a specified time, specified information about the place that will indicate whether the place is a DSL.

(3)  The time specified in the notice is not to be less than 14 days after it is given to the occupier.

(4)  The occupier, on being given the notice, must comply with the Secretary's requirement.

Penalty:  Fine not exceeding 200 penalty units.

Division 3 - Other obligations of occupiers of dangerous substances locations

50.   Obligation of occupiers regarding emergency plans and procedures

For section 21(a) in its application to an LDSL, the occupier must ensure that the emergency plans and procedures are established and documented –

(a) if the LDSL is operational when this section commences, within 12 months after that commencement; or

(b) if the LDSL begins operations within 12 months after this section commences, within 6 months after it begins those operations; or

(c) if the LDSL begins operations within 18 months (but more than 12 months) after this section commences, within 3 months after it begins those operations; or

(d) if the LDSL begins operations more than 18 months after this section commences, before it begins those operations.

51.   Obligation of occupiers regarding safety management systems

(1)  For section 20(e) in its application to a DSL, the occupier must ensure that the safety management system is a documented system for managing the safety of dangerous goods and combustible liquids at the location and that it contains details of –

(a) the system's safety objectives; and

(b) the procedures by which the objectives are to be achieved; and

(c) the performance criteria that are to be met; and

(d) the way in which adherence to the criteria is to be maintained; and

(e) such other matters as may be prescribed.

(2)  The occupier must ensure that the safety management system is developed and implemented –

(a) if the DSL is operational when this section commences, within 12 months after that commencement; or

(b) if the DSL begins operations within 12 months after this section commences, within 6 months after it begins those operations; or

(c) if the DSL begins operations within 18 months (but more than 12 months) after this section commences, within 3 months after it begins those operations; or

(d) if the DSL begins operations more than 18 months after this section commences, before it begins those operations.

(3)  Subject to subsection (2) , the occupier of a DSL must not operate the location unless there is a safety management system, complying with the requirements of subsection (1) , for the location.

52.   Obligation of occupiers to report, &c., dangerous substances emergencies

(1)  The occupier of a DSL must, if a dangerous substances emergency occurs at the location –

(a) [Section 52 Subsection (1) amended by No. 37 of 2008, s. 25, Applied:01 Jul 2009] immediately advise the Secretary that the dangerous substances emergency has occurred and of any resulting serious harm or material harm; and

(b) if that advice is given to the Secretary orally, confirm it in writing within 7 days; and

(c) investigate the dangerous substances emergency as soon as practicable; and

(d) give the Secretary a written report of the investigation and its findings within one month after the dangerous substances emergency occurs or, if the Secretary considers this is not practicable, the longer time allowed by the Secretary; and

(e) consult with relevant employees about ways of avoiding dangerous substances emergencies in the future.

Penalty:  Fine not exceeding 200 penalty units.

(2)  However, the occupier does not have to comply with subsection (1) if the dangerous substances emergency is notified under any of the following:

(a) [Section 52 Subsection (2) amended by No. 16 of 2010, Sched. 1, Applied:01 Jan 2011] the Dangerous Goods (Road and Rail Transport) Act 2010 ;

(b) [Section 52 Subsection (2) amended by No. 12 of 2006, Sched. 5, Applied:01 Jul 2009] the Emergency Management Act 2006 ;

(c) the Gas Act 2000 ;

(d) the Gas Pipelines Act 2000 ;

(e) the Radiation Protection Act 2005 ;

(f) the Security-sensitive Dangerous Substances Act 2005 ;

(g) a prescribed Act.

53.   Obligation of occupiers to record dangerous situations

(1)  The occupier of a DSL must, as soon as practicable after a dangerous situation occurs at the location –

(a) record the occurrence of the dangerous situation; and

(b) investigate the dangerous situation and record the findings of the investigation; and

(c) consult with relevant employees about ways of avoiding dangerous situations in the future.

Penalty:  Fine not exceeding 80 penalty units.

(2)  The occupier must keep a record created under subsection (1) for as long as the DSL continues to operate.

Penalty:  Fine not exceeding 80 penalty units.

PART 6 - Administration and enforcement

Division 1 - Secretary

54.   Powers of Secretary

(1)  The Secretary –

(a) has the powers conferred on the Secretary by this Act; and

(b) has power to do all things necessary or convenient to be done to exercise those powers.

(2)  The Secretary –

(a) may exercise all of the powers of an authorised officer; and

(b) when doing so, has all the immunities of an authorised officer.

Division 2 - Authorised officers

55.   Appointment of authorised officers

(1)  The Secretary, by instrument in writing, may appoint persons to be authorised officers if the Secretary is satisfied that they have the qualifications to exercise the powers of that office competently.

(2)  The persons so appointed may be –

(a) State Service officers or State Service employees employed in the Department; or

(b) with the consent of the Head of another State Service Agency, State Service officers or State Service employees employed in that other Agency; or

(c) with the consent of the Commissioner of Police, police officers.

(3)  If a State Service officer or State Service employee is appointed as an authorised officer –

(a) he or she holds that office in conjunction with State Service employment; and

(b) duties that he or she performs as an authorised officer are taken to be part of his or her duties as a State Service officer or State Service employee.

(4)  If a police officer is appointed as an authorised officer –

(a) [Section 55 Subsection (4) amended by No. 37 of 2008, s. 26, Applied:01 Jul 2009] he or she holds that office in conjunction with police employment; and

(b) duties that he or she performs as an authorised officer are taken to be part of his or her duties as a police officer.

(5)  A person who is not a State Service officer, State Service employee or police officer is not capable of being given an appointment under subsection (1) .

(6)  However, the Secretary may authorise a person who is not a State Service officer, State Service employee or police officer to exercise the powers of an authorised officer if the Secretary is satisfied that the person has the qualifications to do so competently.

(7)  In this section –

persons includes a class of persons.

56.   Powers of authorised officers

(1)  An authorised officer –

(a) has the powers conferred on authorised officers by this Act; and

(b) has power to do all things necessary or convenient to be done to exercise those powers.

(2)  However, an appointment or authorisation under section 55 may specify that the appointment or authorisation is subject to conditions or restrictions relating to –

(a) the powers that are exercisable by the person appointed or authorised; or

(b) when, where and in what circumstances the person may exercise powers.

(3)  Also, a person appointed or authorised under section 55 is subject to the directions of the Secretary in exercising powers.

57.   Identification of authorised officers

(1)  The Secretary –

(a) is to issue an identity card to each authorised officer who is not a police officer; and

(b) may issue an identity card to each authorised officer who is a police officer.

(2)  The identity card is to –

(a) be in an approved form; and

(b) contain a recent photograph of the authorised officer; and

(c) contain the prescribed particulars, if any.

(3)  When a person ceases to be an authorised officer the Secretary is to retrieve the person's identity card, if issued, as soon as practicable.

(4)  An authorised officer who is not a police officer must –

(a) carry his or her identity card while carrying out duties under this Act; and

(b) if practicable, produce the identity card before exercising a power of an authorised officer.

(5)  A police officer who is exercising or about to exercise a power of an authorised officer must, if practicable, comply with a request to identify himself or herself by –

(a) producing the officer's police identification, or authorised officer identity card, if issued; or

(b) stating orally or in writing the officer's name, rank and place of duty, or the officer's identification number.

(6)  This section does not prevent the issue of a single identity card to a person for this Act or other Acts.

58.   Delegation

(1)  The Secretary may delegate any of his or her functions or powers under this Act.

(2)  Notwithstanding subsection (1) , if a function or power has been delegated to a person or to the holder of a particular office or position, that person or the holder of that office or position may, with the approval of the Secretary, delegate any of those functions or powers.

59.   General powers of inspection, &c., of authorised officers

(1)  An authorised officer may, to find out whether this Act is being complied with, enter and search premises if the authorised officer believes on reasonable grounds that he or she will find a thing that has been, is being or is likely to be used in the handling of dangerous substances.

(2)  However, if the premises are unattended or are a residence, the authorised officer may only enter with the consent of the occupier or under the authority of a warrant issued by a magistrate.

(3)  Schedule 1 has effect in relation to the issue, execution, effect and expiry of warrants for the purposes of this section.

(4)  Despite subsection (2) , an authorised officer may enter and search premises, whether attended or not and whether or not a residence, and without consent or a warrant, if he or she believes on reasonable grounds that a dangerous substances emergency exists as a result of anything occurring at the premises in relation to the handling of dangerous substances.

(5)  If an authorised officer believes on reasonable grounds that a vehicle or equipment has been, is being or is likely to be used in the handling of dangerous substances, the officer may, to find out whether this Act is being complied with –

(a) stop or detain the vehicle or equipment or cause the vehicle or equipment to be stopped or detained; and

(b) search the vehicle or equipment for dangerous substances or for documents, equipment or other things relating to the handling of dangerous substances.

(6)  If an authorised officer believes on reasonable grounds that a vehicle or equipment has been, is being or is likely to be used in the handling of dangerous substances, the officer may, to find out whether this Act is being complied with, direct a person in charge or apparently in charge of the vehicle or equipment to move the vehicle or equipment, or to cause it to be moved, to a suitable location for inspection.

(7)  If the inspection is not to take place immediately, the direction is to be given by notice in writing specifying the time, date and location for the inspection.

(8)  An authorised officer may carry out an inspection of the kind referred to in subsection (6) without notice if the authorised officer believes on reasonable grounds that a dangerous substances emergency exists.

(9)  An authorised officer may, to find out whether this Act is being complied with, take samples, or direct a person in charge of premises or a vehicle or equipment referred to in subsection (1) , (4) , (5) or (6) or another person capable of doing so to give samples of a substance for examination and testing if the authorised officer believes on reasonable grounds that the substance is a dangerous substance, an ingredient of a dangerous substance or a substance that has been handled together with dangerous substances.

(10)  If subsection (9) applies, the authorised officer must give a receipt in an approved form to the person who –

(a) appears to be in charge of the premises, vehicle or equipment from or in respect of which the sample is taken; or

(b) gives the sample.

(11)  An authorised officer may, to find out whether this Act is being complied with, direct a person in charge or apparently in charge of premises or a vehicle or equipment referred to in subsection (1) , (4) , (5) or (6) to produce documents.

(12)  The authorised officer may make copies of the documents, or remove them to make copies, but if they are removed the authorised officer must –

(a) if it is practicable to do so, allow the person otherwise entitled to possession of the documents reasonable access to them; and

(b) give a receipt in an approved form.

(13)  An authorised officer may, to find out whether this Act is being complied with, leave at premises written directions to the occupier requiring the occupier, within a specified time –

(a) to give samples of a substance the authorised officer believes on reasonable grounds to be a dangerous substance, or an ingredient of a dangerous substance, for examination and testing; or

(b) to produce documents that may help the authorised officer.

(14)  An authorised officer may, in order to find out whether this Act is being complied with, direct a person to answer questions that may help the authorised officer.

(15)  An authorised officer may make photographic, mechanical or electronic recordings for a purpose incidental to the exercise of a power of the authorised officer under this section.

60.   Authorised officers may require names and addresses

(1)  An authorised officer may require a person to state the person's name and address if the authorised officer believes on reasonable grounds that the person has been involved in the handling of dangerous substances.

(2)  The authorised officer may require the person to give evidence of the correctness of the stated name or address if the authorised officer suspects on reasonable grounds that the stated name or address is false.

(3)  A person must comply with the authorised officer's requirement under subsection (1) or (2) unless the person has a reasonable excuse for not complying with it.

Penalty:  Fine not exceeding 10 penalty units.

61.   Powers of authorised officers regarding suspected offences

(1)  This section applies if an authorised officer believes on reasonable grounds that he or she will find evidence of an offence at premises, including on a vehicle or equipment at the premises.

(2)  The authorised officer may enter the premises and may –

(a) search for or test the evidence; and

(b) do whatever is necessary to preserve the evidence, including placing a seal, lock or guard; and

(c) seize the evidence.

(3)  However, if the premises are unattended or are a residence, the authorised officer may only enter them with the consent of the occupier or under the authority of a warrant issued by a magistrate.

(4)  Schedule 1 has effect in relation to the issue, execution, effect and expiry of warrants for the purposes of this section.

(5)  Without limiting subsection (2) , the authorised officer may –

(a) stop or detain the vehicle or cause the vehicle to be stopped or detained; or

(b) search the vehicle or equipment; or

(c) direct a person in charge or apparently in charge of the vehicle or equipment to move the vehicle or equipment, or to cause it to be moved, to a suitable location for inspection.

(6)  The authorised officer may direct a person in charge or apparently in charge of the premises, vehicle or equipment or another person capable of doing so to give samples of a substance for examination and testing.

62.   Authorised officers to restore premises, &c., to original condition after inspections

(1)  After inspecting premises, a vehicle or equipment under section 59 or 61 , the authorised officer must take reasonable steps to return the premises, vehicle or equipment to the condition they were in immediately before the inspection.

(2)  No action lies against an authorised officer, the Secretary or the Crown in respect of the failure by an authorised officer to comply with subsection (1) .

63.   Offence to obstruct, &c., authorised officers

A person must not –

(a) obstruct or hinder; or

(b) threaten; or

(c) attempt to intimidate; or

(d) attempt to improperly influence –

an authorised officer, or a person assisting the authorised officer, in the exercise of a power of the authorised officer under this Act.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 200 penalty units; or

(b) an individual, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 3 months.

64.   Offence to fail to comply with authorised officer's directions

A person must not, without reasonable excuse, fail to comply with a direction given by an authorised officer under section 59 or 61 .

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 200 penalty units; or

(b) an individual, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 3 months.

65.   Self-incrimination no excuse

[Section 65 Substituted by No. 37 of 2008, s. 27, Applied:01 Jul 2009]

(1)  A person is not excused from answering any question asked, or providing any information required, by an authorised officer under this Act on the ground that the answer or information may tend to incriminate the person.

(2)  However, in proceedings for an offence against this Act, any answer or information given or provided to an authorised officer pursuant to a requirement of an authorised officer under this Act is not admissible in evidence against the person giving the answer or providing the information –

(a) if the person claims before giving the answer or providing the information that the answer or information may tend to incriminate the person; or

(b) unless the person's entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person's attention before the answer was given or the information was provided.

Division 3 - Directions by authorised officers

66.   Authorised officers may give directions

An authorised officer may give directions under and in accordance with this Division.

67.   Procedure for giving directions

(1)  A direction under this Division may be given to a person orally or in writing.

(2)  However, if the direction is given to the person orally, the giver of the direction is to give the person written confirmation of the direction within 3 days.

(3)  An authorised officer is, as soon as practicable after giving a direction under this Division, to inform the Secretary of –

(a) the giving of the direction; and

(b) why it was given; and

(c) its content.

(4)  A failure to comply with subsection (2) or (3) does not affect the validity of a direction.

(5)  A direction under this Division must specify when the actions specified in the direction are required to be taken.

(6)  For the purposes of subsection (5) , a timing requirement may be specified by reference to a date, event, period or other factor.

68.   Directions to carry out risk assessments

(1)  [Section 68 Subsection (1) amended by No. 37 of 2008, s. 28, Applied:01 Jul 2009] This section applies if an authorised officer reasonably suspects that a risk from an MHF, DSL or other facility is not at an acceptable level.

(2)  [Section 68 Subsection (2) amended by No. 37 of 2008, s. 28, Applied:01 Jul 2009] The authorised officer may direct the occupier of the MHF, DSL or other facility to carry out a specified assessment or give specified information to enable the authorised officer to decide whether the risk is at an acceptable level.

69.   Directions to reduce risks

(1)  [Section 69 Subsection (1) amended by No. 37 of 2008, s. 29, Applied:01 Jul 2009] This section applies if an authorised officer reasonably believes that a risk from an MHF, DSL or other facility is not at an acceptable level.

(2)  [Section 69 Subsection (2) amended by No. 37 of 2008, s. 29, Applied:01 Jul 2009] The authorised officer may direct the occupier of the MHF, DSL or other facility to take specified corrective or preventative action to reduce the risk to an acceptable level.

70.   Directions to review safety management systems

(1)  This section applies if an authorised officer reasonably believes that the safety management system for an MHF or DSL is inadequate.

(2)  The authorised officer may direct the occupier of the MHF or DSL to review the safety management system.

71.   Directions to review systematic risk assessments

(1)  This section applies if an authorised officer reasonably believes that the systematic risk assessment for an MHF is inadequate.

(2)  The authorised officer may direct the occupier of the MHF to review the systematic risk assessment.

72.   Directions to review emergency plans and procedures

(1)  This section applies if an authorised officer reasonably believes that the emergency plans and procedures mentioned in section 21(a) for an MHF or LDSL are inadequate.

(2)  The authorised officer may direct the occupier of the MHF or LSDL to review the emergency plans and procedures.

73.   Directions to review safety reports

(1)  This section applies if an authorised officer reasonably believes that the safety report for an MHF is inadequate.

(2)  The authorised officer may direct the occupier of the MHF to review the safety report.

74.   Directions to stop and secure handling systems

(1)  [Section 74 Subsection (1) amended by No. 37 of 2008, s. 30, Applied:01 Jul 2009] This section applies if an authorised officer reasonably believes that a handling system at an MHF, DSL or other facility has caused, or is likely to cause, material harm.

(2)  The authorised officer may direct the person apparently in charge of the handling system to stop the operation of the system and prevent it from being further operated.

75.   Directions to suspend operations for unacceptable levels of risk

(1)  [Section 75 Subsection (1) amended by No. 37 of 2008, s. 31, Applied:01 Jul 2009] This section applies if an authorised officer reasonably believes that a risk from operations being conducted at an MHF, DSL or other facility is not at an acceptable level.

(2)  [Section 75 Subsection (2) amended by No. 37 of 2008, s. 31, Applied:01 Jul 2009] The authorised officer may direct the occupier of the MHF, DSL or other facility to suspend the operations, totally or partially, in all or part of the MHF, DSL or facility.

76.   Directions to isolate sites

(1)  [Section 76 Subsection (1) amended by No. 37 of 2008, s. 32, Applied:01 Jul 2009] This section applies if an authorised officer believes that it is necessary to preserve evidence after a dangerous substances emergency has occurred at an MHF, DSL or other facility

(2)  [Section 76 Subsection (2) amended by No. 37 of 2008, s. 32, Applied:01 Jul 2009] The authorised officer may direct the occupier of the MHF, DSL or other facility to isolate and protect the site of the dangerous substances emergency.

76A.   Directions to address specific manufacturing, import or supply risks

[Section 76A Inserted by No. 37 of 2008, s. 33, Applied:01 Jul 2009]

(1)  This section applies if an authorised officer reasonably believes a risk relating to the manufacture, import or supply of a dangerous substance or handling system is not at an acceptable level.

(2)  The authorised officer may direct the manufacturer, importer or supplier to take specified corrective or preventative action to reduce the risk to an acceptable level.

(3)  Without limiting the generality of subsection (2) , the manufacturer, importer or supplier may be directed to undertake a general, limited or individual recall of the relevant dangerous substance or handling system.

(4)  If subsection (3) applies, the Crown is not liable to pay for or contribute to the costs of the recall.

77.   Directions for independent studies or audits

(1)  An authorised officer may direct the occupier of an MHF or DSL to –

(a) have an independent study or audit carried out into a prescribed matter; and

(b) give the Secretary a copy of the study or audit.

(2)  The direction is to state –

(a) the reasons for requiring the study or audit to be carried out and its objectives; and

(b) that the person who carries out the study or audit must be a person approved by the Secretary.

(3)  For subsection (2)(b) , the Secretary may approve a person only if –

(a) the person has relevant qualifications to carry out the study or audit; and

(b) the Secretary is satisfied that the person is able to provide an independent study or audit.

(4)  The Crown is not liable to pay for or contribute to the costs of the independent study or audit.

(5)  In this section –

prescribed matter means –

(a) risks arising out of the operation of the MHF or DSL; or

(b) the safety of part or all of any handling system, building or other structure at the MHF or DSL; or

(c) a dangerous substances emergency or dangerous situation at the MHF or DSL; or

(d) the adequacy of emergency plans, safety management systems and safety reports for the MHF or DSL.

77A.   Directions to importers or exporters to have explosive analysed, &c.

[Section 77A Inserted by No. 37 of 2008, s. 34, Applied:01 Jul 2009]

(1)  An authorised officer may direct a person who is or has been engaged in importing or exporting an explosive to do either or both of the following:

(a) have the explosive analysed or tested by a specified person in accordance with specified directions;

(b) allow the explosive to be inspected by an authorised officer at a specified time and place or at a time and place negotiated between the person and an authorised officer.

(2)  The Crown is not liable to pay for or contribute to the costs of an analysis or test under this section.

(3)  It is a defence in proceedings for an offence under section 78 relating to a direction under this section involving the export of an explosive if the defendant establishes that, at the relevant time, all of the explosive had been lawfully exported and none of it was available in Tasmania for testing or analysis or inspection.

78.   Offence not to comply with directions

A person who is given a direction under this Division must comply with that direction.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues; and

(b) an individual, a fine not exceeding 250 penalty units and, in the case of a continuing offence, a further fine not exceeding 2.5 penalty units for each day during which the offence continues.

78A.   Orders to secure compliance with directions

[Section 78A Inserted by No. 37 of 2008, s. 35, Applied:01 Jul 2009]

(1)  This section applies if it appears to an authorised officer that –

(a) a person has contravened section 78 ; and

(b) the contravention has caused or contributed to a dangerous situation at any premises or a dangerous substances emergency at any facility.

(2)  The authorised officer may apply to the Supreme Court for an order that the person comply with the relevant direction under this Division.

(3)  If, consequent on the application, the Supreme Court is satisfied that the relevant contravention has occurred and that it has caused or contributed to a dangerous situation or dangerous substances emergency at the relevant facility, the court may make any order it considers appropriate in the circumstances.

(4)  Nothing in this section is to be taken as preventing other proceedings or other actions from being taken in respect of the contravention.

79.   Obligation of occupiers to make directions available for inspection by employees

(1)  [Section 79 Subsection (1) amended by No. 37 of 2008, s. 36, Applied:01 Jul 2009] This section applies to an occupier of an MHF, DSL or other facility who is given a direction under this Division.

(2)  In the case of a written direction, the occupier must take reasonable steps to ensure that relevant employees –

(a) are informed of the direction as soon as practicable after it is given; and

(b) may inspect a copy of the direction.

Penalty:  Fine not exceeding 40 penalty units.

(3)  In the case of an oral direction, the occupier must take reasonable steps to ensure that relevant employees –

(a) are informed of the direction as soon as practicable after it is given; and

(b) may inspect a copy of the written confirmation of the direction.

Penalty:  Fine not exceeding 40 penalty units.

(4)  As soon as practicable after any action is taken to comply with the direction, the occupier must –

(a) document that action; and

(b) take reasonable steps to ensure that relevant employees may inspect a copy of that document.

Penalty:  Fine not exceeding 40 penalty units.

Division 4 - Preventative measures and other matters

80.   Taking urgent direct action to prevent dangerous situations causing serious harm

(1)  This section applies if an authorised officer reasonably believes that –

(a) a dangerous situation exists at a place; and

(b) the dangerous situation threatens to cause serious harm; and

(c) having regard to the nature of the threat, action needs to be taken urgently to prevent, remove or minimise the dangerous situation.

(2)  The authorised officer may –

(a) take the necessary action; or

(b) cause that action to be taken.

(3)  Subsection (2) has effect even if the authorised officer has previously given a person a direction under Division 3 , and the time complying with the direction has not ended.

(4)  However, in determining the nature and extent of the action to be taken, the authorised officer must consult with the occupier of the place and the Secretary to the extent that it is reasonably practicable to do so.

(5)  The action that the authorised officer may take includes engaging the help of a person who the authorised officer reasonably believes has appropriate qualifications to contribute to the prevention, removal or minimisation of the dangerous situation.

(6)  A person whose help is engaged pursuant to subsection (5) is taken to have the powers of an authorised officer to the extent reasonably necessary for the person to contribute to the prevention, removal or minimisation of the dangerous situation.

(7)  As soon as practicable after exercising power under subsection (2) , the authorised officer is to –

(a) prepare a report that –

(i) describes the action taken; and

(ii) specifies why the action was taken; and

(iii) sets out particulars of any resulting property damage; and

(b) give a copy of the report to the occupier and the Secretary.

81.   Recovery of costs of government action

(1)  This section applies if an authorised officer has –

(a) taken an action under section 80 to prevent, remove or minimise a dangerous situation; or

(b) caused such an action to be taken.

(2)  If the Crown incurs costs as a result of the taking of the action, so much of the costs as were reasonably incurred are recoverable as a debt due to the Crown.

(3)  The costs are recoverable jointly and severally from the following persons:

(a) the person who owned the dangerous substances involved in the dangerous situation;

(b) the occupier of the place where the dangerous situation existed;

(c) the person who caused the dangerous situation.

(4)  However, costs are not recoverable from a person who establishes that –

(a) the dangerous situation was due to the act or default of someone else, other than an employee or agent of the person; or

(b) the person could not, exercising reasonable care, have prevented the dangerous situation.

(5)  This section does not limit the powers that the Crown has apart from this Act.

PART 7 - Offence proceedings and related matters

82.   Time limit for prosecuting offences

Proceedings for an offence against this Act may be commenced not later than 12 months after the date on which the offence is alleged to have been committed.

83.   Authorised officers may prosecute offences

A prosecution for an offence against this Act may, but is not required to, be brought by an authorised officer.

84.   Analysts

(1)  The Secretary, by instrument in writing, may authorise appropriately qualified persons to perform analyses for the purposes of this Act.

(2)  A person so authorised may, but is not required to, be –

(a) a person in State Service employment; or

(b) a person appointed or employed by the Commonwealth.

(3)  If a State Service officer or State Service employee is so authorised, he or she may perform analyses for the purposes of this Act in conjunction with State Service employment.

85.   Evidentiary matters

(1)  In any proceedings, the production of a certificate purporting to be signed by the Secretary and stating that, at a time specified in the certificate –

(a) a specified facility was or was not classified, or classifiable, as an MHF or PMHF under this Act; or

(b) a specified place was or was not a DSL or LDSL; or

(c) a specified facility or location was, either generally or in a particular way, operational; or

(d) a specified person was given a specified direction or notice under this Act; or

(e) a specified requirement was imposed on a specified person under this Act; or

(f) a specified person had or had not, to the Secretary's knowledge, been consulted about, or informed of, a matter under this Act; or

(g) [Section 85 Subsection (1) amended by No. 37 of 2008, s. 37, Applied:01 Jul 2009] a specified standard issued or published by the ASCC, the NOHSC or Standards Australia or something in the standard was, or was not, in force –

is evidence of the matters stated in the certificate.

(2)  In any proceedings, the production of a certificate purporting to be signed by the Secretary and stating that –

(a) a specified substance is (or was at a specified time) a dangerous substance or a dangerous substance of a particular class or specific kind; or

(b) a specified amount is payable under this Act by a specified person and has not been paid; or

(c) a specified document is –

(i) a direction, or a copy of a direction, given under this Act; or

(ii) a decision or declaration, or a copy of a decision or declaration, given or made under this Act; or

(iii) a notice, or a copy of a notice, given under this Act; or

(iv) a copy of a receipt given under this Act; or

(v) a record or document, a copy of a record or document, or an extract from a record or document, kept under this Act –

is evidence of the matters stated in the certificate.

(3)  In any proceedings, the production of a report purporting to be signed by an analyst for the purposes of this Act and stating –

(a) that at a specified time the person took or received a specified sample from a specified person; and

(b) that at a specified time and place the person analysed the sample; and

(c) what the results of the analysis were –

is evidence of the matters stated in the report.

(4)  [Section 85 Subsection (4) amended by No. 37 of 2008, s. 37, Applied:01 Jul 2009] In any proceedings, a document purporting to be published by or under the authority of the ASCC, the NOHSC or Standards Australia is evidence of the matters appearing on and in the document.

(5)  In any proceedings, it is not necessary to prove –

(a) the appointment of the Secretary or an authorised officer; or

(b) an authorisation under section 55(6) ; or

(c) the authorisation or qualifications of an analyst.

(6)  In any proceedings –

(a) it is not necessary to prove the authority of the Secretary or an authorised officer to do anything under this Act; and

(b) a signature purporting to be that of the Secretary or an authorised officer is evidence of the signature it purports to be.

(7)  In this section –

analyst means a person who is authorised under section 84 to perform analyses for the purposes of this Act;

proceedings means proceedings for an offence against this Act;

specified, in relation to a certificate or report, means specified in the certificate or report;

time means a time, a day or a period of time.

86.   Responsibility for acts or omissions of representatives

(1)  Subsections (2) and (3) apply in proceedings for an offence against this Act.

(2)  If it is relevant to prove a person's state of mind about a particular act or omission, it is enough to establish that –

(a) the act was done or omitted to be done by a representative of the person within the scope of the representative's actual or apparent authority; and

(b) the representative had the state of mind.

(3)  An act done or omitted to be done for a person by a representative of the person within the scope of the representative's actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person establishes that the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)  In this section –

representative means –

(a) of a corporation, an executive officer, employee or agent of the corporation; or

(b) of an individual, an employee or agent of the individual;

state of mind of a person includes –

(a) the person's knowledge, intention, opinion, belief or purpose; and

(b) the person's reasons for the intention, opinion, belief or purpose.

87.   Offences by bodies corporate

(1)  If a body corporate commits an offence against this Act, each person concerned in the management of the body corporate is taken to have also committed the offence and may be convicted of the offence unless the person establishes that –

(a) the act or omission constituting the offence took place without the person's knowledge or consent; or

(b) the person used all due diligence to prevent that act or omission of the body corporate.

(2)  A person referred to in subsection (1) may be convicted of an offence against this Act whether or not the body corporate is charged with or convicted of the offence.

88.   Recovery of investigation costs from convicted persons

(1)  A court that convicts a person of an offence against this Act may, on application by or on behalf of an authorised officer involved in investigating the offence, order that, in addition to any other penalty, the defendant must pay any costs that were reasonably incurred in, and directly related to, investigating the offence.

(2)  For the purposes of this section, the costs of investigating an offence include, but are not limited to, the cost of testing, transporting, storing and disposing of dangerous substances.

89.   Prohibiting convicted persons from involvement in handling of dangerous substances

(1)  In sentencing a person for an offence against this Act, a court may, having regard to the matters referred to in subsection (2) and to such other matters as it thinks fit, and in addition to any other penalty, order that the person be prohibited for a specified period from having any involvement, or a particular involvement, in the handling of dangerous substances.

(2)  The matters to which the court is to have regard are –

(a) the person's record in the handling of dangerous substances; and

(b) any prior convictions of the person relating to dangerous substances; and

(c) the circumstances surrounding the commission of the offence for which the person is being sentenced.

(3)  A person who contravenes an order under this section is guilty of an offence.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 2 500 penalty units; and

(b) an individual, a fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years, or both.

90.   Forfeiture

(1)  If –

(a) a person is convicted by a court of an offence in relation to a dangerous substance; and

(b) the person owns the dangerous substance or the owner cannot be identified –

the court may, in addition to imposing any other penalty, order the dangerous substance (and, if applicable, its container) to be forfeited to the Crown.

(2)  The dangerous substance so forfeited to the Crown (and, if applicable, its container) may be destroyed, sold or otherwise disposed of as the Secretary, having regard to any relevant safety considerations, thinks fit.

(3)  Any costs reasonably incurred in effecting the destruction, sale or other disposal are recoverable from the convicted person as a debt due to the Crown.

90A.   Infringement notices

[Section 90A Inserted by No. 37 of 2008, s. 38, Applied:01 Jul 2009]

(1)  An authorised officer may issue and serve a person with an infringement notice if the authorised officer considers that the person has committed a prescribed offence.

(2)  An infringement notice is –

(a) to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ; and

(b) not to relate to more than 3 prescribed offences; and

(c) not to be served on a person who has not attained the age of 18 years.

(3)  For the purposes of section 14(a)(ii) of the Monetary Penalties Enforcement Act 2005 , the prescribed penalty for a prescribed offence is not to exceed 25 penalty units.

(4)  Any payments in respect of an infringement notice are payable into the Consolidated Fund.

(5)  In this section –

prescribed means prescribed by the regulations.

PART 8 - Miscellaneous

91.   Applications for review of decisions

(1)  [Section 91 Subsection (1) amended by No. 37 of 2008, s. 39, Applied:01 Jul 2009] A person who is aggrieved by a decision made by the Secretary or an authorised officer under this Act, or a prescribed decision under this Act, may apply to the Magistrates Court (Administrative Appeals Division) for a review of that decision.

(2)  In this section –

decision includes a direction under Division 3 of Part 6 .

92.   False or misleading statements, &c.

A person must not, in giving any information under this Act –

(a) make a statement knowing it to be false or misleading; or

(b) omit any matter from a statement knowing that without the matter the statement is false or misleading.

Penalty:  Fine not exceeding 50 penalty units.

93.   Delegation of Minister's power to Secretary

The Minister may by instrument in writing delegate all or any of the Minister's powers under this Act or the regulations to the Secretary.

94.   Protection from liability

(1)  The Secretary or an authorised officer does not incur civil liability for an act or omission done honestly and in good faith in the course of his or her duties under this Act.

(2)  A liability that would, apart from this section, attach to the Secretary or an authorised officer attaches instead to the Crown.

95.   Assistance in emergencies or accidents

(1)  A person does not incur civil liability for an act done honestly and in good faith, and without any fee, charge or other reward, for the purpose of assisting or attempting to assist in a situation in which an emergency or accident involving dangerous substances occurs or is likely to occur.

(2)  Subsection (1) does not apply to a person whose act or omission was wholly or partly the cause of the occurrence or likely occurrence.

(3)  Subsection (1) applies to a government authority even though the authority requires payment for a service provided in connection with the occurrence or likely occurrence.

(4)  This section does not apply to an authorised officer.

96.   Status of Gazette notices

Except as otherwise expressly provided by this Act, a Gazette notice in respect of any matter under this Act is not –

(a) a statutory rule; or

(b) an instrument of a legislative character for the purposes of the Subordinate Legislation Act 1992 .

97.   Service of documents

A notice or other document is effectively given to or served on a person under this Act if –

(a) in the case of a natural person, it is –

(i) handed to the person; or

(ii) left at, or sent by post to, the person's postal or residential address or place of business or employment last known to the giver or server of the notice or document; or

(iii) faxed to the person's fax number; or

(iv) emailed to the person's email address; and

(b) in the case of any other person, it is –

(i) left at, or sent by post to, the person's principal or registered office or principal place of business; or

(ii) faxed to the person's fax number; or

(iii) emailed to the person's email address.

98.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] provide for the prevention or minimisation of risks associated with the handling of dangerous substances, including for non-commercial purposes; and

(b) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] provide for the prevention or minimisation of risks associated with the operation of major hazard facilities, dangerous substances locations or other facilities; and

(c) prescribe ways of achieving acceptable levels of risk for the purposes of discharging safety obligations; and

(d) provide for the giving of advice and assistance in dangerous substances emergencies and in other incidents involving dangerous substances; and

(e) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] establish licensing, permit or accreditation schemes for places where dangerous substances are handled; and

(f) control and regulate the handling of explosives, including (but not limited to) –

(i) fireworks and fireworks displays; and

(ii) mining, quarrying and building demolition operations; and

(g) without limiting paragraph (f) , establish licensing, permit or accreditation schemes for the handling of explosives; and

(h) control and regulate the import and export of dangerous substances; and

(ha) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] provide for the collection, keeping and disclosure of information by any person in respect of any matter; and

(hb) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] provide for exemptions in respect of any matter; and

(hc) [Section 98 Subsection (2) amended by No. 37 of 2008, s. 40, Applied:01 Jul 2009] provide, in respect of any matter, for the recognition of any kind of qualification, standing or authority under a law of the Commonwealth or another State relating to the handling of dangerous substances; and

(i) prescribe fees and charges in respect of any matter under this Act; and

(j) deal with matters that are incidental or ancillary to any matter referred to in this subsection.

(3)  The regulations may be made so as to apply differently according to such factors as are specified in the regulations.

(4)  The regulations may authorise any matter to be from time to time determined by the Secretary or an authorised officer.

(5)  The regulations may –

(a) provide that a contravention of any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding –

(i) 250 penalty units if the regulation contravened imposes a requirement for the operation of major hazard facilities; and

(ii) 150 penalty units if the regulation contravened imposes a requirement for the handling of dangerous goods or combustible liquids at dangerous substances locations; and

(iii) 50 penalty units for any other contravention.

(6)  The regulations may apply, adopt or incorporate all or any of the provisions of a code, standard, guideline, rule or other document relating to dangerous substances or their handling and those provisions may be applied, adopted or incorporated as they currently exist, as amended by the regulations, or as amended from time to time.

(7)  [Section 98 Subsection (7) inserted by No. 37 of 2008, s. 40, Applied:01 Jul 2009] Regulations of the kind referred to in subsection (2)(ha) may, in so far as they relate to the handling of explosives, authorise the disclosure of personal information to any law enforcement or regulatory agency of the Commonwealth or of another State.

99.   Minister to notify adoption of codes, &c., by regulation

(1)  If the regulations apply, adopt or incorporate provisions of a code, standard, guideline, rule or other document, the Minister must, as soon as practicable after the regulations are made, publish in the Gazette a notice giving details of places where the code, standard, guideline, rule or other document may be obtained or inspected.

(2)  If –

(a) the regulations apply, adopt or incorporate provisions of a code, standard, guideline, rule or other document as in force from time to time; and

(b) the code, standard, guideline, rule or other document is amended or replaced –

the Minister must, as soon as practicable after the amendment or replacement, publish in the Gazette a notice stating that the code, standard, guideline, rule or other document has been amended or replaced and giving details of places where the amended or replaced code, standard, guideline, rule or other document may be obtained or inspected.

99A.   ASCC change of name, &c.

[Section 99A Inserted by No. 37 of 2008, s. 41, Applied:01 Jul 2009]

(1)  If the ASCC undergoes a change of name or ceases to exist, the Governor, by order, may amend this Act by omitting any references to that body (including those in this subsection) and, as the case requires, substituting –

(a) the ASCC's new name; or

(b) the name of a body that the Governor is satisfied has functions equivalent or substantially similar to those of the ASCC.

(2)  An order under subsection (1) is not an instrument of a legislative character for the purposes of the Subordinate Legislation Act 1992 .

99B.   Status of notes

[Section 99B Inserted by No. 37 of 2008, s. 41, Applied:01 Jul 2009] A note in the text of this Act is for explanatory purposes only and does not form part of the Act.

100.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Infrastructure, Energy and Resources; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Infrastructure, Energy and Resources.

SCHEDULE 1 - Provisions with respect to warrants

Section 59(3) and section 61(4)

1.   Interpretation

In this Schedule –

issuing magistrate, in relation to a warrant, means the magistrate who issues the warrant;

occupier includes a person in charge of premises.

2.   Applications for warrant in standard situation

(1) An application to a magistrate for a warrant is to be in writing.

(2) The magistrate may issue the warrant if satisfied that there are reasonable grounds for doing so.

(3) However, the magistrate must not issue the warrant unless –

(a) the applicant for the warrant sets out the grounds for seeking the warrant; and

(b) the applicant for the warrant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds for seeking the warrant; and

(c) the information given by the applicant is verified before the magistrate on oath or by affidavit.

(4) The warrant is to be in such form as the issuing magistrate determines but it must at least specify –

(a) when the warrant is issued; and

(b) the premises it authorises to be entered; and

(c) whether entry is authorised to be made at any time or only during certain hours; and

(d) any conditions that the warrant is subject to; and

(e) when the warrant ceases to have effect.

3.   Warrants may be applied for and issued by telephone, &c., in urgent situations

(1) Despite clause 2 , an authorised officer may apply to a magistrate for a warrant by telephone or radio if the authorised officer believes that the urgency of the situation requires it.

(2) The magistrate may complete and sign the warrant in the same way as for a warrant applied for in person if satisfied that –

(a) there are reasonable grounds for issuing the warrant urgently; and

(b) it is not practicable in the circumstances for the authorised officer to apply for the warrant in person.

(3) The issuing magistrate is to –

(a) inform the authorised officer of –

(i) the terms of the warrant; and

(ii) the date on which, and the time at which, the warrant was signed; and

(iii) the date on which, and the time at which, the warrant ceases to have effect; and

(b) record on the warrant the reasons for issuing it.

(4) The authorised officer is to –

(a) complete a form of warrant in the same terms as the warrant signed by the issuing magistrate; and

(b) write on the form –

(i) the name of the issuing magistrate; and

(ii) the date on which, and the time at which, the warrant was signed; and

(c) send the completed form of warrant to the issuing magistrate not later than the day after the warrant is executed or ceases to have effect.

(5) On receipt of the form of warrant, the issuing magistrate is to attach it to the warrant that the magistrate signed.

(6) The form of warrant completed by the authorised officer has the same force as the warrant signed by the issuing magistrate.

4.   Record of proceedings before issuing magistrate

A magistrate who issues a warrant is to cause a record to be made of all relevant particulars of the grounds the magistrate has relied on to justify the issue of the warrant.

5.   Expiry of warrant

A warrant ceases to have effect –

(a) on the date specified in the warrant as the date on which it ceases to have effect; or

(b) if it is withdrawn before that date by the issuing magistrate; or

(c) after it has been executed; or

(d) if the person to whom it is issued ceases to be an authorised officer –

whichever occurs first.

6.   Report to issuing magistrate following execution of warrant

(1) An authorised officer who is issued with a warrant must furnish a report in writing to the issuing magistrate –

(a) stating whether or not the warrant has been executed; and

(b) if the warrant has been executed, setting out briefly the result of the execution, including a brief description of anything seized; and

(c) if the warrant has not been executed, setting out briefly the reasons why it has not been executed.

(2) The report is to be furnished within 10 days after the warrant is executed or expires, whichever occurs first.

7.   Death, absence, &c., of issuing magistrate

If the magistrate who issued a warrant has died, has ceased to be a magistrate or is absent, a report required to be furnished to that magistrate –

(a) must still be made; but

(b) may be furnished to any other magistrate.

8.   Duty to show warrant

An authorised officer who is executing a warrant must produce it for inspection by an occupier of the premises if requested to do so by the occupier.

9.   Assistance and use of force in executing warrant

(1) An authorised officer may execute a warrant using such assistance as the authorised officer considers necessary.

(2) Except as may be otherwise provided by the terms of the warrant, an authorised officer may execute a warrant using such force as may reasonably be required in the circumstances.

10.   Defect in warrant

A warrant is not invalidated by any defect that does not affect its substance in a material particular.