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ROAD TRANSPORT REFORM (DANGEROUS GOODS) AMENDMENT REGULATIONS 1999 (NO. 1) 1999 NO. 211
EXPLANATORY STATEMENTSTATUTORY RULES 1999 NO. 211
Issued by the Authority of the Minister for Transport and Regional Services
Road Transport Reform (Dangerous Goods) Act 1995
Road Transport Reform (Dangerous Goods) Amendment Regulations 1999 (No. 1)
Subsection 11(1) of the Road Transport Reform (Dangerous Goods) Act 1995 (the Act) provides that the Governor-General may make regulations, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 11(3) further provides that, the regulations may make provision for, among other things: types and categories of dangerous goods; containers and packaging used in the transport of dangerous goods by road; documents required to be prepared or kept by people involved in the transport of dangerous goods by road; infringement notices, and documents and costs relating to infringement notices.
The Act and the Road Transport Reform (Dangerous Goods) Regulations (the Regulations) 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.
The Amendment Regulations propose a number of amendments:
* Amendments to satisfy an undertaking provided by the Commonwealth Minister for Transport and Regional Services to the Senate Standing Committee on Regulations and Ordinances. These:
(i) remove the liability for non-compliance of a tank imposed by the Regulations on the y owner of a vehicle to which a tank is attached and place it instead on the owner of the tank;
(ii) reduce the liability of drivers for carrying and producing shipping documentation and emergency information; and
(iii) provide recipients of infringement notices and reminder notices with information about their legal rights.
* Amendments to allow the Regulations to operate successfully in the Australian Capital Territory. As the Regulations do not comprehensively regulate the transport of explosives, radioactive substances and infectious substances, the Amendment Regulations remove these three classes from operation of the Regulations. The ACT will rely on existing legislation regulating these three classes of dangerous goods.
* Machinery amendments suggested by the Office of Legislative Drafting and members of the Parliamentary Counsel's Committee.
The Amendment Regulations have been agreed to by the Australian Transport Council.
Details of the Amendment Regulations are attached. The proposed Amendment Regulations commence on 1 October 1999. A Regulatory Impact Statement is attached, addressing the amendments.
ATTACHMENT
Road Transport Reform (Dangerous Goods) Amendment Regulations 1999 (No. 1)
The amendments to the Regulations contain the following features:
Regulation 1 cites the name of the Regulations as the Road Transport Reform (Dangerous Goods) Amendment Regulations 1999 (No. 1).
Regulation 2 provides that the Regulations commence on 1 October 1999.
Regulation 3 provides that the Road Transport Reform (Dangerous Goods) Regulations are to be amended as set out in Schedule 1.
Schedule 1
Item 1 renames the regulations the Road Transport Reform (Dangerous Goods) Regulations 1997 in line with the new naming conventions for regulations.
Item 2 inserts a new subregulation (3) to exclude dangerous goods of Class 1 (Explosives), 6.2 (Infectious Substances) or 7 (Radioactive substances) from the operation of these regulations. This is to assist the operation of these Regulations in the Australian Capital Territory by ensuring that the laws of the ACT regulate the transport of these classes of goods, as the Regulations do not comprehensively regulate these goods.
Item 3 removes the word 'the' to correct a grammatical error.
Item 4 substitutes the heading "Owner's duties for certain vehicles" for "Owner's duties for certain tanks".
Item 5 removes the liability for non-compliance of a tank from the owner of a vehicle to which a tank is attached and places the responsibility for compliance on the owner of the tank. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 6 removes the word 'be' to correct a grammatical error.
Item 7 omits ",complying with Chapter 11 of the ADG Code" so that although the driver of a vehicle transporting dangerous goods will have to carry shipping documentation for the goods on the vehicle he will no longer be subject to a strict liability offence for any error in the documentation. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 8 inserts new regulation 11.4(1A) which makes it an offence for the driver to knowingly carry shipping documentation that does not comply with the ADG Code. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 9 substitutes paragraph 11.8(1)(b) with a new paragraph that reduces the liability on drivers in relation to emergency information. Drivers will continue to be liable for carrying emergency information in the vehicle's emergency information holder. However, drivers will only be responsible for carrying the emergency information provided by the consignor or prime contractor and not for ensuring that the emergency information complies with the prescribed requirements. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 10 omits "either" and inserts "any" in paragraph 15.9(1)(a) to correct an error.
Item 11 substitutes paragraph 21.3(b) with a new paragraph which ensures that a recipient of an infringement notice is made more clearly aware of their rights. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 12 substitutes paragraph 21.5 (c) with a new paragraph which ensures that recipients of reminder notices are made more clearly aware of their rights. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
Item 13 substitutes the fee table in regulation 23.1 with a table that sets the relevant fees payable in the Australian Capital Territory.
Item 14 amends Schedule 1, item 40 as a consequential amendment caused by the change to regulation 11 .4. The change is required to make clear that the offence included in subregulation 11.4 (1A) is not a strict liability offence. This amendment is to resolve a problem identified by the Senate Committee on Regulations and Ordinances.
NATIONAL ROAD TRANSPORT COMMISSION
PO Box 13105, LAW COURTS VIC 8010, Australia
Telephone (03) 93218444 Facsimile (03) 9326 8964
Website: wwwnrte.gov.au emall: nrte@anrte.gov.au
DANGEROUS GOODS AMENDMENT REGULATIONS
Regulatory Impact Statement
June 1999
REPORT OUTLINE
Date: June 1999
ISBN number:
Title and Sub-title: Dangerous Goods Amendment Regulations
Regulatory Impact Statement
Address: National Road Transport Commission
Level 51326 William Street
MELBOURNE VIC 3000
Internet: www.nrte.gov.au
E-mail: nrtc@nrte.gov.au
Type of report: Regulatory Impact Statement
Objectives: To fulfil a commitment to the Senate Standing Committee on
Regulations and Ordinances to make certain amendments and to allow
the Dangerous Goods Regulations to operate satisfactorily in the ACT.
NRTC Programs: Completion of initial reform package
Key Milestones: Commitment to make amendments provided to the Senate Committee
in November 1997; draft amendments circulated to members of the
Advisory Committee on the Transport of Dangerous Goods (ACTDG)
in April 1998; revised draft sent to ACTDG members in December
1998; draft amendments circulated to Transport Agency Chief
Executives and the Parliamentary Counsel's Committee in late
January 1999.
Abstract: Amendments are required to meet a commitment given to the Senate
Committee and to make the Dangerous Goods Regulations operate
satisfactorily in the ACT. The amendments have been subject to
consultation with industry and regulatory agencies.
The impact of the amendments is expected to be minimal but they will
provide a fairer allocation of responsibilities for drivers, provide
recipients of infringement and reminder notices with better
information about their rights and make the Dangerous Goods
Regulations complete for the ACT.
Purpose: For information and comment
Key words: dangerous goods, road transport, impact study
Comments by.. 27 August 1999
Comments to be address to:
Chief Executive
National Road Transport Commission
PO Box 13 105
LAW COURTS VIC 8010
FOREWORD
This Regulatory Impact Statement (RIS) assesses the impact of introducing the draft Road Transport Reform (Dangerous Goods) Amendment Regulations. The draft regulations propose a number of amendments to the Road Transport Reform (Dangerous Goods) Regulations.
The RIS is provided for information and comment. Comments should be provided to the Commission by 27 August 1999.
Mail: Chief Executive
National Road Transport Commission
PO Box 13105
LAW COURTS VIC 8010
Telephone: 0393218444
Facsimile: 0393268964
Email: nrtc@nrtc.govau
Website: www.nrtc.gov.au
CONTENTS
1. DESCRIPTION 1
2. OBJECTIVES AND NECESSITY 1
3. IDENTIFICATION OF ALTERNATIVES 2
3.1 Senate Committee amendments 2
3.2 Amendments for the ACT 3
3.3 Machinery amendments 3
4. CONSULTATION 3
5. IMPACT ANALYSIS 4
6. SUMMARY JUSTIFICATION 7
7. IMPLEMENTATION .. 7
1. DESCRIPTION
This Regulatory Impact Statement (RIS) assesses the impact of introducing the draft Road Transport Reform (Dangerous Goods) Amendment Regulations (the "Amending Regulations"). The Amending Regulations propose a number of amendments to the Road Transport Reform (Dangerous Goods) Regulations (the "Principal Regulations").
The proposed amendments can be grouped into three categories as follows:
* Amendments to satisfy an undertaking provided by the Commonwealth Minister for Transport and Regional Services to the Senate Standing Committee on Regulations and Ordinances (the "Senate Committee");
* Amendments to allow the Principal Regulations to operate satisfactorily in the Australian Capital Territory; and
* Machinery amendments suggested by the Office of Legislative Drafting and members of the Parliamentary Counsel's Committee.
2. OBJECTIVES AND NECESSITY
The Amending Regulations are necessary for two reasons:
1. To fulfil an undertaking provided by the Commonwealth Minister for Transport and
Regional Services to the Senate Standing Committee on Regulations and Ordinances.
A disallowance motion in relation to the Principal Regulations was withdrawn on the
basis of the Minister's undertaking to make a small number of amendments.
2. To allow the Principal Regulations to operate satisfactorily in the Australian Capital
Territory. (The Principal Regulations are made for the ACT and are operative in that
jurisdiction.)
The problems identified by the Senate Committee and the objectives of the proposed changes are outlined below:
Responsibility for condition of tanks
The Senate Committee identified that the responsibility imposed by regulation 4.9 of the Principal Regulations on the owner of a vehicle to which a tank is attached could be unfair in certain circumstances. The requirement was that the owner of the vehicle must ensure that any tank attached to the vehicle must comply with the ADG Code. This could be unfair on the owner of the vehicle where, for example, a vehicle owner is asked to transport a demountable tank. In such circumstances, the vehicle owner may not be able to ascertain whether the tank complies with the ADG Code. The problem is that tanks can be supplied ready for transport and then simply attached to the vehicle. Responsibility for compliance is therefore better placed on the owner of the tank. The objective of the change suggested by the Senate Committee is to ensure that responsibility for compliance with the ADG Code is placed on the person who has the ability to ensure the tank's compliance.
Liability of drivers for carrying and producing shipping documentation
Regulation 11.4 was considered to be a problem by the Senate Committee because it could place unfair responsibilities on drivers. The regulation made drivers strictly liable for failing to carry and produce shipping documentation. It would be unfair to make the driver liable in a situation where the prime contractor or consignor has not provided shipping documentation to the driver. The objective of changing the regulation is to remove liability from drivers in situations where the driver is not responsible.
Liability of drivers for carrying emergency information
The problem with regulation 11.8 and the objective behind the proposed change are the same as for regulation 11.4. Regulation 11.8 deals with carriage by the driver of emergency information whereas 11.4 is concerned with the carriage of shipping documentation.
Notice of legal rights for recipients of infringement and reminder notices
Another problem raised by the Senate Committee was the lack of notice given to recipients of infringement and reminder notices about their legal rights. The changes suggested are intended to ensure that recipients of notices are fully informed about their rights so that they are able to make informed decisions.
3. IDENTIFICATION OF ALTERNATIVES
3.1 Senate Committee amendments
There is no alternative to making the amendments agreed to by the Commonwealth Minister for Transport unless the Senate Committee agrees. The Principal Regulations were made on the basis that the amendments included in the Minister's undertaking would be made.
Although amendments are required to satisfy the undertaking given to the Senate Committee, some alternative amendments arose from consultation undertaken by the Commission. As discussed in Section 4 (Consultation) of this RIS, the Senate Committee agreed to alter its requirements for the amendments based on the results of consultation.
Where changes have been made to the Senate Committee amendments, the original proposal and the alternative included in the proposed Amending Regulations are provided below.
Liability of drivers for carrying and producing shipping documentation
The Senate Committee suggested that regulation 11.4 be amended so that the driver is only liable for failing to carry or produce shipping documentation that has been provided to the driver by the prime contractor or consignor.
The alternative developed through consultation with some members of ACTDG is to require drivers to carry shipping documentation but not make the driver strictly liable for the documentation's compliance with the ADG Code. The driver would be liable only if the driver knew, or ought reasonably to have known that the shipping documentation did not comply with the ADG Code. This overcomes the problem of a driver being strictly liable for shipping documentation compliance with the ADG Code but ensures that the driver will carry shipping documentation. Consultation with industry and emergency service representatives stressed the importance of the need to carry shipping documentation.
Liabi1ity of drivers for carrying emergency information
Similarly to regulation 11.4, the Senate Committee suggested for regulation 11.8 that a driver only be strictly liable to carry and produce emergency information provided to the driver. If no information is provided, the driver does not have to carry or produce any emergency information.
Consultation with some members of ACTDG resulted in the development of an alternative proposal. The alternative is that a driver only has to carry emergency information provided to the driver. The driver will therefore not be liable for emergency information compliance with the ADG Code but will commit an offence if he or she drives without emergency information provided by the consignor or prime contractor.
3.2 Amendments for the Australian Capital Territory
The amendments in relation to the ACT can be dealt with administratively. Currently, an Emergency Order made under the National Road Transport Commission Act 1991 is in place for the ACT which deals with the situation.
Under the National Road Transport Commission Act, an Emergency Order may only be made for six months at a time. This is not an efficient or durable means of dealing with the problems for the ACT when simple amendments to the Principal Regulations provide a long term solution.
It is also preferable to include the information within the Prinicpal Regulations rather than in an Emergency Order because information contained in regulations is more transparent and publicly accessible. At present, an interested member of the public (including those involved in the road transport industry) would be unlikely to seek out and find information contained in an Emergency Order.
3.3 Machinery amendments
The machinery amendments are only proposed because the need to make the Senate Committee amendments provides an opportunity to do so. The alternative would he not to make the amendments at this stage but to await a more formal review of the Principal Regulations. However, the amendments are purely machinery (for example, the amendment to paragraph 15.9(1)(a) corrects an obvious wording =or) and the opportunity to make the amendments should be used.
4. CONSULTATION
A set of draft Amending Regulations were produced to provide for the changes requested by the Senate Committee. The draft Amending Regulations also included the changes necessary to allow the Dangerous Goods Regulations to operate satisfactorily in the Australian Capital Territory. These changes were developed in cooperation with representatives of the ACT.
The draft Amending Regulations and accompanying explanatory material were circulated to members of the Advisory Committee on the Transport of Dangerous Goods (ACTDG) in April 1998 for comment. The response provided by members of ACTDG highlighted some ~ concerns with the proposed amendments to regulations 11.4 and 11.8.
The National Road Transport Commission held a teleconference on 17 April 1998 with the Federal Office of Road Safety and members of ACTDG who had expressed concern about the proposed amendments. The issues of concern were clarified at the teleconference and an agreement was reached.
A revised version of the Amending Regulations was prepared in accordance with the agreement reached at the teleconference. The members of ACTDG who had concerns about the amendments endorsed the revised Amending Regulations.
As the revised Amending Regulations differ from the amendments agreed to between the Minister and the Senate Committee, it was necessary to obtain clearance for the revised Amending Regulations from the Senate Committee. The Senate Committee has cleared the revised Amending Regulations.
The revised Amending Regulations and further explanatory material were circulated to members of ACTDG in December 1998. Some minor changes were made as a result of this consultation. The Amending Regulations were also circulated in January 1999 for comment to Transport Agency Chief Executives and the Parliamentary Counsel's Committee.
5. IMPACT ANALYSIS
The following groups of people may be affected by the proposed amendments:
* The community in general is affected by the transport of dangerous goods around Australia;
* Dangerous goods regulatory agencies may have to make amendments to infringement and reminder notices, make changes to legislation and provide some further (minimal) training to dangerous goods enforcement officers;
* Owners of tanks will have to ensure that their tanks comply with the ADG Code;
* Owners of vehicles to which a tank is attached will not be responsible for the tank's compliance with the ADG Code unless the owner of the vehicle is also the owner of the tank:,
* Drivers will be subject to fairer obligations relating to the carriage and production of shipping documentation and emergency information;
* Recipients of infringement and reminder notices will be better informed about their legal rights;
* The relevant Australian Capital Territory Minister will not have to arrange for the issue of an Emergency Order for the ACT every six months.
The proposed amendments are individually assessed in this section.
Clause 1 (regulation 1.1) - citation clause
This amendment simply reflects the plain English drafting style preferred by the Office of Legislative Drafting for citation clauses. The change has no impact on the operation of the Principal Regulations.
Clause 2 (now subregulation 2.2(3)) - coverage of certain dangerous goods
An Emergency Order made under section 34 of the Road Transport Reform (Dangerous Goods) Act 1995 is currently in place in the ACT and excludes dangerous goods of Class 1 (explosives), 6.2 (infectious substances) and 7 (radioactive materials) from the meaning of dangerous goods. The ACT wishes to rely on their existing law relating to the transport of dangerous goods of Class 1, 6.2 and 7 because the Principal Regulations do not comprehensively regulate these dangerous goods.
The other States and Territories have the ability to deal with this situation in their own law so the amendment is only aimed at fixing the situation for the ACT, The proposed amendment simply provides a legislative method for fixing a problem which is currently resolved administratively. This amendment will make the application of the Regulations clear without the need to resort to an administrative instrument. It will also remove the need to make an Emergency Order for the ACT every six months.
Clauses 3 and 4 (regulation 4.9) - responsibility for condition of tanks
Regulation 4.9 has been amended to allay the concern of the Senate Committee. The Senate Committee suggested that the imposition of a strict liability offence on the owner of a vehicle to ensure that a tank attached to the vehicle meets the requirements of the Australian Dangerous Goods Code (ADG Code) could be unfair. The clause is onerous in situations where the vehicle owner may not be able to ascertain the tank's compliance with the ADG Code.
Liability for compliance with the ADG Code has therefore been shifted to the owner of the tank rather than the owner of the vehicle. This is consistent with regulations 4.4, 4.5, 4.10, 4.12, 4.18, 4.20, 4.22 and 4.23 under which a person is only strictly liable for the condition of a tank, bulk container or IBC that the person provides. The heading to regulation 4.9 has been amended accordingly.
Clause 5 (subregulation 11.4(1)) - liability of drivers for carrying and producing shipping documentation
The proposed amendment to subregulation 11.4(1) will remove the requirement that shipping documentation carded by the driver comply with the requirements of the ADG Code. The amendment is proposed in response to concerns from the Senate Committee. The driver will still have to carry shipping documentation for the goods on the vehicle but will not be Subject to a strict liability offence for any error in the documentation. The driver will, however, be liable if the driver knows, or reasonably ought to know, that the shipping documentation does not comply with the ADG Code (see clause 5).
This is considered to impose fairer legal obligations on the driver in relation to shipping documentation without having any negative impact on safety. The consignor and prime contractor of the dangerous goods will continue to be subject to a strict liability offence if shipping documentation does not comply with the ADG Code.
Clause 6 (new subregulation 11.4(1A)) - liability of drivers for shipping documentation compliance
As discussed above, a new subregulation 11.4(1A) is proposed to make the driver liable if the driver knows, or reasonably ought to know, that shipping documentation does not comply with the ADG Code.
Clause 7 (paragraph 11.8(1)(b)) - liability of drivers for carrying emergency Information
As suggested by the Senate Committee, it is proposed that paragraph (b) of subregulation 11.8(1) be amended to lessen the legal liability on drivers in relation to emergency information. Drivers will continue to be strictly liable for carrying emergency information in the vehicle's emergency information holder. However, drivers will only be responsible for carrying the emergency information provided by the consignor or prime contractor. It is the responsibility of the consignor and prime contractor to supply the emergency information and to ensure that the information complies with the requirements of the ADG Code.
The impact of this change is expected to be minimal but it does impose a more realistic legal obligation on drivers in relation to the carriage of emergency information.
Clause 8 (paragraph 1 5.9(1)(a)) -correction of wording error
This amendment will correct an obvious wording error in paragraph 15.9(1)(a) and will clarify the operation of subregulation 15.9(1).
Clause 9 (paragraph 21.3(b)) - notice of legal rights for recipients of
Infringement notices
The Senate Committee suggested that the provisions to notify recipients of infringement and reminder notices did not provide the recipient of the notice with sufficient notice of their rights. An undertaking was given to the Senate Committee that an amendment would be made to require the inclusion of the information suggested by the Committee.
The information to be included on infringement and reminder notices is that, upon paying the penalty notice:
* any liability the person may have for the relevant offence will be discharged;
* the person will not be prosecuted in court for the relevant offence; and
* the person will not be regarded as having been convicted of the relevant offence.
Clause 9 makes the required amendment for infringement notices. The change will ensure that those who receive infringement and reminder notices will be fully aware of their rights. Although the amendment will require infringement and reminder notices to be changed, the impact is expected to be minimal given that the jurisdictions have been aware of this change since April 1998. The lead in time should allow this change to occur with minimal impact. The benefit of providing better information to recipients of notices makes the small cost of changing forms worthwhile.
Clause 10 (paragraph 21.5(c)) - notice of legal rights for recipients of reminder notices
The requested amendment for reminder notices is included in clause 10.
Clause 11 (table in regulation 23. 1) - table of fees for the ACT
A new table is included to set the relevant fees for the ACT. The fees included in clause 11 already apply in the ACT under the Emergency Order referred to earlier in relation to clause 2.
Clause 12 (Schedule 1, item 40) - consequential amendment
This is a consequential amendment caused by the change to regulation 11.4. The change is required to make it clear that the offence included in subregulation 11.4(1A) is not a strict liability offence.
6. SUMMARY JUSTIFICATION
The proposed amendments meet a commitment given by the Commonwealth Minister for Transport and Regional Services and have been subject to consultation with industry and regulatory authorities through the Advisory Committee on the Transport of Dangerous Goods.
The impact of the amendments is expected to be minimal but are considered to be necessary. It is expected that the placing of more realistic responsibilities on drivers in the areas identified by the Senate Standing Committee on Regulations and Ordinances as being harsh will be fairer for drivers. The amendments provide a more equitable balance of responsibilities and also require recipients of infringement and reminder notices to be given further information about their rights.
The need to make the amendments required by the Senate Committee also provides an opportunity to make the Principal Regulations operable without the need to continually renew a short term administrative instrument.
7. IMPLEMENTATION
If approved, the Road Transport Reform (Dangerous Goods) Amendment Regulations will be made for the ACT. Other States and Territories may need to make the amendments in their own law depending on the method used to adopt the Principal Regulations.