National Transport Commission (Road Transport Legislation — Dangerous Goods Act) Regulations 20061 Select Legislative Instrument 2006 No. 16
I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the National Transport Commission Act 2003. Dated 15 February 2006 P. M. JEFFERY Governor-General By His Excellency’s Command JAMES ERIC LLOYD Minister for Local Government, Territories and Roads
Contents 1 Name of Regulations 2 2 Commencement 2 3 Road transport legislation — Dangerous Goods Act 2
1 Name of Regulations These Regulations are the National Transport Commission (Road Transport Legislation — Dangerous Goods Act) Regulations 2006.
2 Commencement These Regulations commence on the day after they are registered.
3 Road transport legislation — dangerous goods For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out road transport legislation, in the form of an Act, about the transport of dangerous goods. Note 1 The road transport legislation set out in Schedule 1 does not have the force of law (see paragraph 7 (2) (a) of the NTC Act). Note 2 These Regulations must be made in accordance with the Agreement (see subparagraph 3 (b) (ii) of the NTC Act). Note 3 These Regulations are not subject to disallowance — see the Legislative Instruments Act 2003, subsection 44 (2) (table, item 44) and the Legislative Instruments Regulations 2004, regulation 8 and Schedule 2 item 7. Note 4 These Regulations are not subject to sunsetting — see the Legislative Instruments Act 2003, subsection 54 (2) (table, item 51) and the Legislative Instruments Regulations 2004, regulation 9 and Schedule 3 item 4. Note 5 The text set out in Schedule 1 is that of the Road Transport Reform (Dangerous Goods) Act 1995 (Act No. 34 of 1995) (the DG Act). The text has been reformatted somewhat. Note 6 The Minister’s second reading speech in relation to the DG Act was made in the Senate on 7 December 1994, and in the House of Representatives on 28 March 1995. The DG Act received the Royal Assent on 12 April 1995. No day was fixed under subsection 2 (2).
Schedule 1 Text of the Road Transport Reform (Dangerous Goods) Act 1995 (regulation 3) Contents Part 1 Preliminary 1 Short title 7 2 Commencement 7 3 Purpose 7 4 Status of this Act under Commonwealth and ACT laws 8 5 Applications for review 8 6 Definitions 8 7 Binding the Crown 10 8 Act to cease to be in force 10 9 Application of Commonwealth Acts Interpretation Act 10 10 Scope of this Act 11 Part 2 Regulations 11 Regulation-making powers and adoption of codes or standards 11 12 Penalties under the regulations 14 Part 3 Appointment and powers of competent authorities and authorised officers 13 Appointment of Competent Authorities 14 14 Appointment of authorised officers 14 15 Identification cards 14 16 Return of identification cards 15 17 Competent Authority may delegate powers 15 18 General powers of authorised officers 15 19 Authorised officer may require name and address 17 20 Powers of authorised officer where offence suspected 18 21 Authorised officer to restore vehicle or equipment to original condition after inspection 19 22 Offence to fail to comply with a direction 19 23 Self incrimination no excuse 19 24 Obtaining a warrant 20 25 Magistrates may issue warrants by telephone or facsimile 21 26 Availability of assistance and use of force in executing a warrant 22 27 Search and seizure etc. of other evidence 23 28 Notice to remedy contravention 23 29 Notice to eliminate or minimise danger 24 30 Review of notices 25 31 Preventing injury and damage — taking direct action 25 Part 4 Exemptions 32 Exemptions 26 33 Variation and cancellation of exemptions and conditions 27 34 Application orders and emergency orders 28 Part 5 Offences, penalties, evidence and procedure 35 Failure to be accredited etc. 28 36 Goods too dangerous to transport 29 37 Duties concerning the transport of dangerous goods 29 38 Infringement notices 29 39 Proceedings for an offence 30 40 Evidence 30 41 Use of codes of practice etc. in proceedings 32 42 Conduct of company directors, employees or agents 33 Part 6 Miscellaneous 43 Recovery of costs from convicted person 35 44 Recovery of costs of government action 35 45 Prohibiting a person from involvement in the dangerous goods transport industry 37 46 Forfeiture 37 47 Delegation 38 48 Protection from liability 38 49 Assistance in emergencies or accidents 38
An Act to make provision for safety in the transport of dangerous goods by road as part of the system of nationally consistent road transport laws
Part 1 Preliminary
1 Short title This Act may be cited as the Road Transport Reform (Dangerous Goods) Act 1995.
2 Commencement (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act commence on a day to be fixed by Proclamation. (3) If the provisions referred to in subsection (2) do not commence under that subsection within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
3 Purpose (1) The purpose of this Act is to regulate the transport of dangerous goods by road in the Australian Capital Territory and the Jervis Bay Territory in order to promote public safety and protect property and the environment. (2) It is intended that: (a) the States and the Northern Territory will adopt section 6 and Parts 3, 4, 5 and 6 of this Act and the regulations in accordance with the agreements scheduled to the National Road Transport Commission Act 1991 as part of the uniform national road transport legislation envisaged by that Act; and (b) when so adopted, those provisions of this Act and the regulations will constitute the primary law of the States and the Northern Territory in relation to the transport of dangerous goods by road.
4 Status of this Act under Commonwealth and ACT laws (1) For the purposes of the laws of the Commonwealth and the laws of the Australian Capital Territory, this Act is taken to be a law made by the Legislative Assembly for the Australian Capital Territory under subsection 22 (1) of the Australian Capital Territory (Self-Government) Act 1988. (2) Subsection (1) does not empower the Legislative Assembly for the Australian Capital Territory to make a law amending or repealing this Act. (3) In this section: laws of the Commonwealth does not include: (a) this section or section 7; or (b) sections 31, 33 and 35 of the Australian Capital Territory (Self-Government) Act 1988.
5 Applications for review Applications for review of decisions under this Act are to be made to the Administrative Appeals Tribunal.
6 Definitions In this Act, unless the contrary intention appears: authorised officer means an authorised officer appointed under section 14. Competent Authority means a Competent Authority appointed under section 13. dangerous goods means a substance or article prescribed as dangerous goods. dangerous situation means a situation involving the transport of dangerous goods by road that is causing or is likely to cause imminent risk of death or injury to a person, or harm to the environment or to property. government authority means: (a) a department or an administrative unit of the public service; or (b) an agency or instrumentality of the Crown; or (c) a local government body; or (d) a Competent Authority. involvement in the transport of dangerous goods by road includes: (a) importing, or arranging for the importation of, dangerous goods into Australia; and (b) packing dangerous goods, or labelling packaged dangerous goods, for transport by road; and (c) consigning dangerous goods for transport by road; and (d) loading dangerous goods onto a vehicle, or into a container that is to be put on a vehicle, for transport by road or unloading dangerous goods that have been transported by road; and (e) undertaking, or being responsible for, otherwise than as an employee or sub-contractor, the transport of dangerous goods by road; and (f) driving a vehicle carrying dangerous goods by road; and (g) being the consignee of dangerous goods transported by road; and (h) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition. offence means an offence against this Act. premises includes a structure, whether permanent or temporary, and land, but does not include a vehicle. this Act includes the regulations. transport, in relation to dangerous goods, includes the loading and unloading of the goods for the purpose of their transport by road, and other matters incidental to their transport by road.
7 Binding the Crown (1) This Act binds the Crown in all its capacities. (2) It is intended that an adopting law of a State or of the Northern Territory will bind the Crown in all its capacities. (3) For that purpose, an adopting law of a State or of the Northern Territory may bind the Crown in right of the Commonwealth.
8 Act to cease to be in force This Act ceases to be in force when the National Road Transport Commission Act 1991 ceases to be in force.
9 Application of Commonwealth Acts Interpretation Act (1) The provisions of the Acts Interpretation Act 1901 of the Commonwealth apply to the interpretation of this Act in its application to the Australian Capital Territory and the Jervis Bay Territory, except that, in relation to the Australian Capital Territory: (a) Government Gazette is to refer to the Government Gazette of the Australian Capital Territory; and (b) Minister is to refer to the responsible Minister of the Australian Capital Territory. (2) It is intended that the provisions of the Acts Interpretation Act 1901 of the Commonwealth will be applied to the interpretation of section 6 and Parts 3, 4, 5 and 6 of this Act and the regulations as adopted by a State or the Northern Territory, except that: (a) Government Gazette is to refer to the Government Gazette of the jurisdiction concerned; and (b) Minister is to refer to the responsible Minister of the jurisdiction concerned. (3) This section does not prevent the interpretation legislation of a State or an internal Territory applying to the interpretation of those provisions of this Act as it applies in the State or Territory to the extent that it can do so consistently with the application of the Acts Interpretation Act 1901 of the Commonwealth.
10 Scope of this Act (1) This Act does not apply to dangerous goods that are in a container that is designed to form part of, and forms 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 equipment. (2) Subject to subsection (3), the provisions of this Act have effect despite any other law. (3) If a provision of this Act is inconsistent with a law of the Australian Capital Territory that: (a) relates to the storage and handling of dangerous goods; and (b) does not relate to the transport of dangerous goods by road; the law of the Australian Capital Territory prevails.
Part 2 Regulations
11 Regulation-making powers and adoption of codes or standards (1) The Governor-General may make regulations prescribing matters: (a) required or permitted to be prescribed by this Act; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision relating to the following: (a) categories of dangerous goods and methods for deciding which dangerous goods fall into each category; (b) the analysis of dangerous goods; (c) goods too dangerous to transport; (d) fees that are to be paid for things done under this Act; (e) the marking and labelling of, and placing notices on, dangerous goods for transport by road and equipment or vehicles used in that transport; (f) containers and packaging used in the transport of dangerous goods by road; (g) voluntary accreditation schemes, including privileges to be accorded or sanctions to be imposed under the schemes and the cancellation or suspension of the schemes by the Minister; (h) the loading and unloading of dangerous goods; (i) the designation by the Minister of particular roads on which dangerous goods may or may not be carried; (j) procedures for the transport of dangerous goods by road, including, but not limited to: (i) the quantities and circumstances in which dangerous goods, or particular categories of dangerous goods, may be transported; and (ii) safety procedures and equipment; (k) the licensing of drivers and vehicles for the transport of dangerous goods by road, and the mandatory accreditation of other people involved in the transport of dangerous goods by road; (l) documents required to be prepared or kept by people involved in the transport of dangerous goods by road; (m) obligations arising, and procedures to be followed, in the event of an emergency in relation to the transport of dangerous goods by road; (n) the training and qualifications required of authorised officers and other people performing functions under this Act; (o) the training and qualifications required of people involved in the transport of dangerous goods by road; (p) the recognition of laws of other jurisdictions relating to the transport of dangerous goods by road and of things done under those laws; (q) the review of decisions relating to licensing or accreditation; (r) infringement notices, and documents and costs relating to infringement notices. (3) The regulations may apply, adopt or incorporate any or all of the provisions of a code or standard relating to dangerous goods or to transport by road. Those provisions may be applied, adopted or incorporated as they currently exist, as amended by the regulations, or as amended from time to time. (4) If the regulations apply, adopt or incorporate provisions of a code or standard, the Minister must, as soon as practicable after the regulations are made, publish in the Government Gazette a notice giving details of places where the code or standard may be obtained or inspected. (5) If the provisions of a code or standard are applied, adopted or incorporated as in force from time to time, the Minister must, as soon as practicable after the code or standard is amended or replaced, publish in the Government Gazette a notice stating that the code or standard has been amended or replaced and giving details of places where the amended or replaced code or standard may be obtained or inspected. (6) The regulations may: (a) prescribe a substance or article as being dangerous goods; or (b) prescribe various categories of dangerous goods, including goods that are too dangerous to transport, and methods for deciding which dangerous goods fall into each category; by reference to such a code or standard.
12 Penalties under the regulations The regulations may create offences, and may provide for a maximum penalty, not exceeding $3,000 for an individual or $15,000 for a body corporate, for each offence.
Part 3 Appointment and powers of competent authorities and authorised officers
13 Appointment of Competent Authorities (1) The Minister may, by notice in the Government Gazette, appoint Competent Authorities. (2) A Competent Authority has all the powers of an authorised officer.
14 Appointment of authorised officers (1) A Competent Authority may, by notice in the Government Gazette, appoint as many authorised officers as he or she considers necessary to administer this Act. (2) In appointing an authorised officer, a Competent Authority may specify that the person is appointed subject to conditions or restrictions relating to: (a) the powers that are exercisable by the person; or (b) when, where and in what circumstances the person may exercise powers.
15 Identification cards (1) A Competent Authority must issue each authorised officer with an identification card. (2) An identification card must contain the prescribed details. (3) Each authorised officer must: (a) carry his or her card while carrying out duties under this Act; and (b) if it is practicable, produce it before exercising a power of an authorised officer under this Act.
16 Return of identification cards (1) A person who stops being an authorised officer must return his or her identification card to the appropriate Competent Authority as soon as practicable. (2) A person must not contravene subsection (1) without reasonable excuse. Maximum penalty: $100.
17 Competent Authority may delegate powers A Competent Authority may, by signed instrument, delegate any of his or her powers under this Act, other than the power of appointment under section 14 and this power of delegation, to authorised officers.
18 General powers 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 relation to the transport of dangerous goods by road. However, if the premises are unattended or are a residence, the authorised officer may only enter if the occupier consents. (2) An authorised officer may enter and search premises, whether attended or not and whether or not a residence, if he or she believes on reasonable grounds that a dangerous situation exists as a result of anything occurring at the premises in relation to the transport of dangerous goods by road. (3) If an authorised officer believes on reasonable grounds that a vehicle has been, is being or is likely to be used for the transport of dangerous goods by road, the officer may, to find out whether this Act is being complied with: (a) stop or detain the vehicle or cause the vehicle to be stopped or detained; and (b) search the vehicle for dangerous goods or for documents, equipment or other things relating to the transport of dangerous goods. (4) If an authorised officer believes on reasonable grounds that a vehicle or equipment has been, is being or is likely to be used in relation to the transport of dangerous goods by road, 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. (5) If the inspection is not to take place immediately, the direction must be given by notice in writing specifying the time, date and location for the inspection. (6) An authorised officer may carry out an inspection of the kind referred to in subsection (4) without notice if the authorised officer believes on reasonable grounds that a dangerous situation exists. (7) 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), (2), (3) or (4) 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 dangerous goods, ingredients of dangerous goods or goods that have been transported together with dangerous goods. The authorised officer must give a receipt in a form approved by a Competent Authority. (8) 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), (2), (3) or (4) to produce documents. (9) 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 a form approved by a Competent Authority. (10) 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 dangerous goods, or ingredients of dangerous goods, for examination and testing; or (b) to produce documents that may help the authorised officer. (11) 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. (12) 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.
19 Authorised officer may require name and address (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 transport of dangerous goods by road. (2) When making the requirement, the authorised officer must warn the person that it is an offence to fail to state the person’s name and address unless the person has a reasonable excuse. (3) 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. (4) A person must comply with the authorised officer’s requirement under subsection (1) or (3) unless the person has a reasonable excuse for not complying with it. Maximum penalty: $500.
20 Powers of authorised officer where offence suspected (1) This section applies if an authorised officer believes on reasonable grounds that he or she will find evidence of an offence at premises or on a vehicle or equipment. (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) If the premises are unattended or are a residence, the authorised officer may only enter with the consent of the occupier of the premises or with the authority of a warrant issued under section 24. (4) 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. (5) 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.
21 Authorised officer to restore vehicle or equipment to original condition after inspection After inspecting premises, a vehicle or equipment under section 18 or 20, the authorised officer must take reasonable steps to return the premises, vehicle or equipment to the condition they were in immediately before the inspection.
22 Offence to fail to comply with a direction A person who: (a) without reasonable excuse, fails to comply with a direction made by an authorised officer in accordance with section 18 or 20; or (b) without reasonable excuse, obstructs an authorised officer or a person assisting an authorised officer in the exercise of power of the authorised officer; or (c) gives to an authorised officer who is exercising such a power information that the person knows to be false or misleading in a material particular; is guilty of an offence. Maximum penalty: $10,000 or imprisonment for 6 months, or both, for an individual or $50,000 for a body corporate.
23 Self incrimination no excuse A person is not excused from answering a question asked under section 18 on the ground that the answer to the question might tend to incriminate the person, but: (a) the answer to the question; or (b) any information, document or thing obtained as a direct or indirect consequence of the answer to the question; is not admissible in evidence against the person in criminal proceedings other than proceedings for an offence against section 22.
24 Obtaining a warrant (1) If an authorised officer believes on reasonable grounds that there is, or there will be within the next 72 hours, evidence of an offence at a residence, at unattended premises or at an unattended vehicle or equipment, the authorised officer may apply to a Magistrate for a warrant authorising him or her to enter the premises, vehicle or equipment and seize the evidence. (2) The application must be made by information on oath, and must include: (a) the purpose for which the warrant is to be issued and the nature of the offence the authorised officer suspects has been or is likely to be committed; and (b) a description of the residence, premises, vehicle or equipment; and (c) the type of evidence to be searched for and seized; and (d) whether consent to enter the residence, premises, vehicle or equipment has been sought, and whether: (i) consent has been refused or withdrawn; or (ii) consent has been unable to be obtained after reasonable efforts have been made to obtain it; and (e) if the officer assumes that consent will not be given if it is sought-the grounds on which that assumption was made; and (f) whether the powers authorised by the warrant will need to be exercised at any time of the day or night or between specified hours; and (g) the period for which the authorised officer believes the warrant needs to remain in force. (3) The Magistrate must not issue a warrant unless he or she is satisfied that there are reasonable grounds for doing so. (4) If the Magistrate decides to issue a warrant, the Magistrate must state in the warrant: (a) the name of the authorised officer to whom it is directed; and (b) the purpose for which the warrant is issued and the nature of the offence the authorised officer suspects has been, is being or will be committed; and (c) a description of the residence, premises, vehicle or equipment; and (d) the type of evidence to be searched for and seized; and (e) whether the powers authorised by the warrant may be exercised at any time of the day or night or between specified hours; and (f) the period for which the warrant is to remain in force (not exceeding 7 days).
25 Magistrates may issue warrants by telephone or facsimile (1) An authorised officer may make an application to a Magistrate for a warrant by telephone, facsimile or other electronic means: (a) in an urgent case; or (b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) The Magistrate may require communication by voice with the applicant to the extent that is practicable in the circumstances. (3) An application under this section must include all information required to be given in an application for a warrant under section 24, but the application may, if necessary, be made before the information is sworn. (4) If: (a) an application is made under this section; and (b) the Magistrate has considered the information in the application and any further information the Magistrate requires; and (c) the Magistrate is satisfied that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant; the Magistrate may complete and sign the same form of warrant that would be issued under section 24. (5) If the Magistrate decides to issue the warrant, the Magistrate must inform the applicant, by telephone or facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed. (6) If the information referred to in subsection (3) was not sworn, the authorised officer must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give to the Magistrate the information duly sworn. (7) The Magistrate must attach to the documents given under subsection (6) the form of warrant completed by the Magistrate. (8) If it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised, the court must assume, unless the contrary is proved, that the exercise of the power was not duly authorised unless the form of warrant signed by the Magistrate is produced in evidence. (9) If an application for a warrant is made under this section, section 24 applies as if: (a) subsection 24 (1) referred to 48 hours rather than 72 hours; and (b) paragraph 24 (4) (f) referred to 48 hours rather than 7 days.
26 Availability of assistance and use of force in executing a warrant (1) A warrant may authorise a police officer to assist in executing the warrant. (2) In executing a warrant, an authorised officer or a police officer assisting may use such force as is necessary and reasonable in the circumstances.
27 Search and seizure etc. of other evidence If, in the course of searching under this Act, an authorised officer finds things (other than things specified in a warrant under this Act) that the authorised officer believes on reasonable grounds: (a) would constitute evidence of an offence; and (b) would be concealed, lost or destroyed, or used in committing an offence, if the officer did not seize them; the authorised officer may: (c) seize the things; or (d) do whatever is necessary to preserve the evidence, including placing a seal, lock or guard.
28 Notice to remedy contravention (1) If an authorised officer believes on reasonable grounds that a person: (a) is contravening this Act; or (b) has contravened this Act in circumstances that make it likely that the contravention will be repeated; the authorised officer may give the person a notice requiring the person to remedy the matters causing the contravention. (2) A notice under this section must: (a) be in writing; and (b) state the name of the person to whom it is directed; and (c) state that the authorised officer believes that the person to whom the notice is directed: (i) is contravening a provision of this Act; or (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will be repeated; and (d) state the grounds on which the belief is based; and (e) specify the provision of this Act; and (f) specify a day by which the matters referred to in the notice must be remedied. (3) An authorised officer may include in a notice under this section directions as to the measures to be taken to remedy the contravention, or to avoid further contravention, of this Act. (4) A notice under this section that relates to a vehicle may be given by placing it securely on the vehicle in a conspicuous position. (5) A person who: (a) contravenes a notice under this section; or (b) removes a notice under this section from a vehicle before the matters causing the contravention have been remedied (unless it is necessary to do so to remedy the matters); is guilty of an offence. Maximum penalty for an offence against this subsection: $10,000 for an individual or $50,000 for a body corporate.
29 Notice to eliminate or minimise danger (1) If an authorised officer believes on reasonable grounds that: (a) a dangerous situation exists; and (b) a person is in a position to take measures to avert, eliminate or minimise the danger; the authorised officer may issue a notice requiring the person to take those measures. (2) A notice under this section must: (a) be in writing; and (b) state the name of the person to whom it is directed; and (c) identify the situation that, in the authorised officer’s opinion, is causing the danger; and (d) state the grounds on which the belief is based; and (e) specify the measures to be taken; and (f) specify a day by which the measures are to be taken. (3) A notice under this section that relates to a vehicle may be given by placing it securely on the vehicle in a conspicuous position. (4) A person who: (a) contravenes a notice under this section; or (b) removes a notice under this section from a vehicle before measures have been taken to avert, eliminate or minimise the danger (unless it is necessary to do so to avert, eliminate or minimise the danger); is guilty of an offence. Maximum penalty for an offence against this subsection: $10,000 for an individual or $50,000 for a body corporate.
30 Review of notices A person to whom a notice under section 28 or 29 is directed may apply for a review of the decision to issue the notice.
31 Preventing injury and damage — taking direct action If: (a) an authorised officer believes on reasonable grounds that a dangerous situation exists; and (b) either: (i) a person to whom a notice under section 28 or 29 has been given has not complied with the notice; or (ii) giving such a notice to a person would not be appropriate to avert, eliminate or minimise the danger; the authorised officer may take or cause to be taken any action he or she believes on reasonable grounds to be necessary to avert, eliminate or minimise the danger.
Part 4 Exemptions
32 Exemptions (1) A person or a representative of a class of people may apply to a Competent Authority for an exemption from compliance with a provision of the regulations in relation to the transport of particular dangerous goods by road. (2) A Competent Authority may exempt the person or class of people from compliance with the provision if he or she is satisfied that: (a) it is not reasonably practicable for the person or people to comply with the provision; and (b) granting the exemption: (i) would not be likely to create a risk of death or injury to a person, or harm to the environment or to property, greater than that which would be the case if the person or people were required to comply; and (ii) would not cause unnecessary administrative or enforcement difficulties, particularly with respect to maintaining national uniformity of road transport laws. (3) An exemption may be subject to conditions. (4) If a Competent Authority grants an exemption to one person, he or she must send a notice to the person stating: (a) the provisions of the regulations that are the subject of the exemption; and (b) the dangerous goods to which the exemption applies; and (c) the period of time for which the exemption remains in force; and (d) the conditions to which the exemption is subject; and (e) the geographical area for which the exemption is valid. (5) If a Competent Authority: (a) grants an exemption to a class of people; or (b) grants an exemption that is to remain in force for longer than 6 months; the Competent Authority must place a notice in the Government Gazette specifying all the details in subsection (4) and the person or class of people to which the exemption applies. (6) A person who fails to comply with conditions to which an exemption is subject is guilty of an offence. Maximum penalty: $10,000 or imprisonment for 6 months, or both, for an individual or $50,000 for a body corporate. (7) If an exemption is granted to one person, the person must keep a copy of the notice of exemption in the vehicle or premises to which it applies. (8) If a Competent Authority: (a) grants an exemption to a class of people; or (b) grants an exemption that is to remain in force for longer than 6 months; the Competent Authority must notify a Competent Authority of each other State and Territory of the details of the exemption.
33 Variation and cancellation of exemptions and conditions (1) A Competent Authority may cancel an exemption if: (a) he or she is satisfied that a condition to which the exemption is subject has not been complied with; or (b) he or she is no longer satisfied of the matters referred to in subsection 32 (2). (2) An exemption granted to a person is to be varied or cancelled by notice in writing given to the person, and the variation or cancellation takes effect from the day on which the notice is given, or from a later day specified in the notice. (3) An exemption granted to a class of people is to be varied or cancelled by notice published in the Government Gazette, and the variation or cancellation takes effect on the day of publication, or from a later day specified in the notice. (4) A Competent Authority may vary or cancel conditions to which the exemption is subject or impose new conditions.
34 Application orders and emergency orders (1) The Minister may order, by notice in the Government Gazette, that the operation of the regulations, or of specified parts of the regulations: (a) is suspended for a specified period; or (b) is varied in a manner specified by the Minister. (2) An order must be consistent with the provisions relating to application orders and emergency orders in the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth. (3) An order may have effect in relation to the whole jurisdiction or to a specified area. (4) If the Ministerial Council for Road Transport terminates an emergency order made under this section, the Minister must publish notice of the termination in the Government Gazette.
Part 5 Offences, penalties, evidence and procedure
35 Failure to be accredited etc. A person who: (a) is required by the regulations to be accredited, to hold a licence or to use a licensed vehicle in relation to the transport of dangerous goods by road; and (b) engages in the transport of dangerous goods by road without being so accredited, without holding the licence or without using a licensed vehicle; is guilty of an offence. Maximum penalty: $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.
36 Goods too dangerous to transport A person must not transport by road dangerous goods that the regulations identify as being too dangerous to transport. Maximum penalty: $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.
37 Duties concerning the transport of dangerous goods (1) A person involved in the transport of dangerous goods by road who fails to ensure, as far as is practicable, that the goods are transported in a safe manner is guilty of an offence. (2) If a person involved in the transport of dangerous goods by road fails to comply with a provision of this Act in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence. Maximum penalty: (a) if the failure results in death or serious injury to a person — $100,000 or imprisonment for 4 years, or both, for an individual or $500,000 for a body corporate; or (b) in any other case — $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.
38 Infringement notices (1) The regulations may provide for a person to be served with an infringement notice requiring payment of a penalty for an offence (not exceeding the penalty that would otherwise apply) against the regulations as an alternative to prosecution in court for the offence. (2) The regulations must specify: (a) the offences to which the alternative applies; and (b) the time within which the penalty must be paid. (3) A Competent Authority may withdraw an infringement notice by serving a notice on the person on whom the infringement notice was served. (4) If a person pays the fixed penalty and any prescribed costs, and the infringement notice is later withdrawn, the person is entitled to a refund of the penalty. (5) If a person pays the fixed penalty and any prescribed costs within: (a) the time specified in the infringement notice; or (b) a longer period: (i) specified in a reminder notice given to the person; or (ii) allowed by the person who issued the notice; and before a summons is served on the person in respect of the alleged offence; a prosecution in court is not to be taken against the person for the offence and a conviction must not be recorded against the person for the offence. (6) A prosecution in court may be taken or continued for the offence if: (a) the person served with the infringement notice does not pay the fixed penalty and any prescribed costs within the period referred to in subsection (5); or (b) the infringement notice is withdrawn.
39 Proceedings for an offence A prosecution for an offence may be brought by an authorised officer.
40 Evidence (1) In a prosecution for an offence, if an authorised officer gives evidence that he or she believes any of the matters referred to in subsection (2), the Court must, if: (a) it considers the belief to be reasonable; and (b) there is no evidence to the contrary; accept the matter as proved. (2) The matters are: (a) that dangerous goods described in shipping documents carried in a vehicle are being carried in the vehicle; or (b) that particular goods are dangerous goods or dangerous goods of a particular category; or (c) if markings or labels on or attached to a substance or container indicate that the substance is or the container contains particular dangerous goods-that the substance is or the container contains those dangerous goods; or (d) if markings or labels on or attached to a vehicle or equipment indicate that the vehicle or equipment is being used to transport dangerous goods-that the vehicle or equipment is being used to transport those dangerous goods; or (e) if markings or labels on, or attached to, a substance or container indicate, in relation to the substance, the container or the contents of the container, a particular capacity, tare weight, origin, character, specification, ownership or date of manufacture-that the substance, the container or the contents of the container has that capacity, tare weight, origin, character, specification, ownership or date of manufacture; or (f) if markings or labels on, or attached to, a vehicle or container indicate, in relation to the load of the vehicle or the contents of the container, a particular quantity of dangerous goods-that the vehicle or container contained that quantity of dangerous goods; or (g) that a person was not, at a particular time, accredited or the holder of a licence relating to dangerous goods. (3) A court may admit into evidence: (a) a copy of a document made under subsection 18 (9) and certified by the authorised officer as being a true copy; or (b) a photographic, mechanical or electronic recording made under subsection 18 (12) and certified by the authorised officer as being a true recording. (4) A court may admit the following documents as evidence if they appear to be signed by a Competent Authority or by a person exercising powers delegated by a Competent Authority for the relevant purpose: (a) documents relating to whether a person is exempt from certain requirements under section 32; or (b) documents relating to vehicles, equipment or other items required by the regulations to be approved by a Competent Authority; or (c) documents relating to accreditation or licensing by a Competent Authority. (5) The court must accept the documents as proof of the facts stated in them if there is no evidence to the contrary. (6) All courts must take judicial notice of the signature of a Competent Authority on a document authorised or required to be signed for the purposes of this Act.
41 Use of codes of practice etc. in proceedings (1) This section applies to a code of practice, guideline or other document that is approved by the Ministerial Council for Road Transport for the purpose of providing practical guidance to people engaged in the transport of dangerous goods by road. (2) If: (a) in proceedings against a person for an offence, it is alleged that a person contravened a provision of this Act; and (b) a code of practice, guideline or other document to which this section applies specifies a means of complying with the provision or with a requirement of the provision; and (c) either: (i) the code of practice, guideline or other document has been published in the Government Gazette; or (ii) copies of the code of practice, guideline or other document are available for purchase or inspection within the jurisdiction; then: (d) the code of practice, guideline or other document is admissible in the proceedings; and (e) if the court is satisfied that, at the relevant time, the person acted in accordance with the code of practice, guideline or other document, the person is taken to have complied with the provision or requirement.
42 Conduct of company directors, employees or agents (1) If, in proceedings for an offence, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, employee or agent had the relevant state of mind. (2) For the purposes of a prosecution for an offence, conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct. (3) If, in proceedings for an offence, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and (b) that the employee or agent had the relevant state of mind. (4) Conduct engaged in on behalf of a person other than a body corporate (the employer) by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence, to have been engaged in also by the employer unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct. (5) If a body corporate is convicted of an offence against this Act, a person who is a director, secretary or manager of the body corporate or who is otherwise concerned in the management of the body corporate is liable to be punished as an individual who has been found guilty of the offence unless the person satisfies the court that: (a) the person did not know that the offence was committed; or (b) the person was not in a position to influence the conduct of the body corporate in relation to the offence; or (c) the person took reasonable precautions and exercised due diligence to prevent the commission of the offence. (6) Despite anything in this Act, a person is not liable to be punished by imprisonment for an offence if: (a) a person other than a body corporate is convicted of an offence; and (b) the person would not have been convicted of the offence if subsections (3), (4) and (5) had not been enacted. (7) Proceedings for an offence against this Act may be brought against a director of a body corporate whether or not proceedings for the offence are brought against the body corporate. (8) In this section: director, of a body corporate, includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory; engaging in conduct includes failing or refusing to engage in conduct; state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose.
Part 6 Miscellaneous
43 Recovery of costs from convicted person If a Court convicts a person of an offence following action taken by an authorised officer under section 18 or 20, the Court may, on application by or on behalf of the authorised officer, order that, in addition to any other penalty, the defendant must pay any costs that were reasonably incurred in taking that action and are directly related to the investigation of the offence. Those costs include costs for testing, transporting, storing and disposing of the dangerous goods and other evidence.
44 Recovery of costs of government action (1) This section applies to an incident that relates to the transport of dangerous goods by road, being an incident: (a) wholly or partly constituted by or arising from: (i) the escape of dangerous goods; or (ii) an explosion or fire involving dangerous goods; or (b) that involves the danger of the escape of dangerous goods or an explosion or fire involving dangerous goods. (2) If a government authority incurs costs as a result of the occurrence of an incident to which this section applies, so much of the costs as were reasonably incurred are recoverable as a debt due to the authority or to the Crown by action in a court of competent jurisdiction. (3) The costs are recoverable jointly or severally from the following people: (a) the person who was the owner of the dangerous goods at the time of the incident; (b) the person who was in control or possession of the dangerous goods at the time of the incident; (c) the person who caused the incident; (d) the person responsible, otherwise than as an employee, agent or sub-contractor of another person, for the transport of the dangerous goods by road. (4) Costs are not recoverable from a person who establishes that: (a) the incident was due to the act or default of another person; and (b) the person could not, exercising reasonable care, have prevented the incident; and (c) the incident was not attributable to an employee, agent or sub-contractor of the person. (5) The recovery of costs incurred by one government authority as a result of the occurrence of an incident to which this section applies, including an award or judgment in relation to those costs or expenses, does not preclude the recovery of costs incurred by another government authority as a result of the occurrence of the incident. (6) This section does not affect a right to recover an amount in respect of costs or expenses that exists apart from this section, but a government authority is not entitled to recover, in respect of the same costs or expenses, an amount under this section and an amount in proceedings founded on other rights. (7) In proceedings under this section, a document apparently signed by the principal officer of the relevant government authority specifying details of the costs reasonably incurred as a result of the occurrence of an incident to which this section applies is, in the absence of evidence to the contrary, proof of the matter so specified.
45 Prohibiting a person from involvement in the dangerous goods transport industry (1) In sentencing a person for an offence, 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 imposing any other penalty, order that the person be prohibited for a specified period from involvement in the transport of dangerous goods by road. (2) The matters to which a court must have regard are: (a) the person’s record in the transport of dangerous goods by road; and (b) any prior convictions of the person relating to dangerous goods; 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. Maximum penalty for an offence against this subsection: $50,000 or imprisonment for 2 years, or both, for an individual or $250,000 for a body corporate.
46 Forfeiture (1) If: (a) a person is convicted by a court of an offence in relation to dangerous goods; and (b) the person owns the goods or the owner cannot be identified; the court may, in addition to imposing any other penalty, order the dangerous goods and their container to be forfeited to the Crown. (2) Dangerous goods and containers forfeited to the Crown may be destroyed, sold or otherwise disposed of as directed by a Competent Authority. (3) The person must pay to the Crown the reasonable costs of destruction, sale or other disposal.
47 Delegation The Minister may by instrument in writing delegate all or any of the Minister’s powers under this Act (other than powers under section 34) or the regulations to a Competent Authority.
48 Protection from liability (1) 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. (2) A liability that would, apart from this section, attach to an authorised officer attaches instead to the authorised officer’s employer.
49 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 goods 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.
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.
