Commonwealth Numbered Regulations - Explanatory Statements

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EXPLOSIVES AREAS REGULATIONS 2003 2003 NO. 312

Section 21 of the Explosives Act 1961 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted to be prescribed, or necessary or convenient for carrying out or giving effect to the Act.

The object of the Act is to address handling and safety issues relating to the handling and storage of explosives and the safety measures to be observed in the vicinity of explosives handling areas.

The Explosives Areas Regulations 2003 (the Regulations) will declare two areas as "Commonwealth explosives areas". The Regulations also prescribe the observance of certain safety measures in the vicinity of declared explosives areas. The Regulations provide a mechanism for managing and controlling the areas for safety reasons, including the power to remove people, vessels and vehicles from a declared area.

The declared explosives areas encompass the new Naval wharf/jetty facility at Twofold Bay, Eden (New South Wales) and the nearby ammunition storage facility (these facilities are being commissioned to replace the Sydney Harbour facility at Newington and the Point Wilson facility at Port Phillip Bay). The new facilities require robust security regulation, particularly as the security of port facilities is to be generally increased via the adoption, as from 1 July 2004, of the International Ship & Port Facility Security Code.

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

Details of the Regulations are set out in the Attachment.

0308982A

ATTACHMENT

Explosives Areas Regulations 2003

Regulation 1 provides that the Regulations may be cited as the Explosives Areas Regulations 2003.

Regulation 2 provides that the Regulations commence on gazettal.

Regulation 3 defines "Act" to mean the Explosives Act 1961 and "Secretary" as the Secretary of the Department of Defence.

Regulation 4 clarifies that each area set out in Schedule 1 is declared to be a "Commonwealth explosives area" for the purposes of section 13 of the Act.

Subregulation 5(1) provides for the appointment of an area manager by the Secretary. Subregulation 5(2) provides that the appointment may be made subject to conditions outlined in the instrument of appointment. Subregulation 5(3) outlines the responsibilities of the area manager, that is, to:

•       be responsible for the management and control of the area;

•       have the right to enter the area;

•       give directions to persons to ensure the safety of persons and protection from damage of the property; and

•       carry out his or her duties under the proposed Regulations with such assistance as is necessary.

Regulation 6 provides that the Minister may establish a committee or committees to advise on matters relating to explosives and the handling of explosives in Commonwealth explosives areas.

Subregulation 7(1) provides that if the Minister is satisfied that there are circumstances requiring special provision to be made under regulation 7, the Minister may make such provision by order, for safety measures to be observed in or near a Commonwealth explosives area.

Subregulation 7(2) provides for the date of effect of an order. If it is expressed to take effect on a day later than that specified in the Gazette, it will take effect on that later date. Subregulation 7(3) provides that in the event of an inconsistency between an order and the Regulations, the order prevails to the extent of the inconsistency.

Subregulation 7(4) provides that an order ceases to have effect at the end of 12 months after the day when it takes effect or at the end of any shorter period that is specified in the order, unless sooner revoked.

Note 1 to this regulation provides that penalties for a failure to comply with an order are set out in section 20 of the Act. Note 2 provides that an order under this regulation is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. This will ensure that orders made under regulation 7 are subject to Parliamentary scrutiny in accordance with the requirements of section 46A.

Regulation 8 provides that an area manager for a Commonwealth explosives area may give written consent to a person or class of persons to enter the area and that such consent may be given subject to conditions mentioned in the instrument of consent. Furthermore, the area manager may erect a sign in the area indicating times when access to the area is restricted to people with consent.

The area manager is given powers to remove from the area:

•       a person who has entered the area without consent and any vehicle or vessel used by the person; or

•       a person who, in the opinion of the area manager, has endangered or may endanger the safety of persons, or has damaged or may damage property, in or near the area.

Regulation 9 provides that the area manager of a Commonwealth explosives area may determine:

•       places in the area where a person is, or is not, permitted to park or stop a vehicle or a class of vehicles or to moor or stop a vessel or a class of vessels;

•       the conditions under which a person is, or is not, permitted to park or stop a vehicle or a class of vehicles, or moor or stop a vessel or a class of vessels, in those places; and

•       the maximum speed for a vehicle or vessel, or a class of vehicles or vessels, in all or part of the area.

Regulation 10 provides that the area manager of a Commonwealth explosives area may move a vehicle or vessel to another place in the area if:

•       the person in control of the vehicle or vessel refuses or fails to comply with a direction to remove the vehicle or vessel from the place where it is parked, moored or stopped; or

•       for a parked vehicle or moored vessel -- the area manager cannot communicate with the driver or master after taking reasonable steps to do so.

Regulation 11 provides that the area manager for a Commonwealth explosive area may give directions to a person about handling explosives in or near the area if:

•       the explosives have spilled from their container; or

•       the explosives are in a damaged container.

Regulation 12 provides for general offences in respect of a contravention of the regulations. Subregulation 12(1) provides that a person in a Commonwealth explosives area must not hinder or obstruct the area manager of a Commonwealth explosives area in the exercise of his or her powers or functions or fail to comply with a direction under paragraph 5(3)(c) or regulation 11. The note to this subregulation provides that the penalties for a contravention of the proposed regulations are set by section 20 of the Act.

Subregulation 12(2) provides that it is a defence to a prosecution for an offence against paragraph (1) (b) that the person had a reasonable excuse. Subregulation 12(3) provides that a person who does not have a consent mentioned in subregulation 8(1) must not enter a Commonwealth explosives area.

Regulation 13 provides that a person must not park or stop a vehicle, or moor or stop a vessel, in a Commonwealth explosives area in contravention of a sign erected by the area manager, or in a way that would unreasonably obstruct the passage of other vehicles or vessels.

Regulation 14 provides that a person must not drive or ride a vehicle, or operate a vessel, on a part of a Commonwealth explosives area at more than the maximum speed for the vehicle or vessel in that part of the area.

Regulation 15 prohibits smoking and other fire hazards in certain circumstances. Paragraph 15(a) provides that a person must not, within 6 metres of explosives in a Commonwealth explosive area, or in a part of a Commonwealth explosives area indicated by a sign erected by the area manager smoke or be in possession of, or create or use, any fire or naked light. Furthermore, paragraph 15(b) provides that a person must not engage in any other conduct that is likely, having regard to the person's proximity to explosives at the time, to result in a fire or explosion affecting the explosives.

Regulation 16 provides that a person who is under the influence of alcohol or a drug must not be in or near a part of a Commonwealth explosives area in which explosives are being handled.

Schedule 1 declares certain areas to be Commonwealth explosives areas, namely--

Hut Forest Road, South Kiah (Part 1):

Part 1.1       Identifies the land acquired by the Commonwealth as being 151.8 ha at Hut Forest Road, South Kiah, being in the parish of Wonboyn, county of Auckland and State of New South Wales being about 15 kms south of Eden, about 1.9kms east of the junction of the Princes Highway and Edrom Road.

Part 1.2       is a plan of the area described in part 1.1

Part 1.3       describes the land in respect of which the Commonwealth has rights, namely 555.84 ha of land over which the Commonwealth has rights adjacent to the land described in part 1.1. it also identifies the boundaries as those shown on the plan.

Part 1.4       is a plan of the area described in part 1.3.

Twofold Bay, Eden (Part 2)

Part 2.1       describes the land in respect of which the Commonwealth has rights, namely, 598.285 ha at Twofold Bay, Eden in the parish of Kiah, county of Auckland and in the State of New South Wales and being about 5 kms south of Eden. It also identifies the boundaries as being those shown in the plan.

Part 2.2       is a plan of the area described in part 2.1.