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TRANSPORT OF DANGEROUS GOODS BY ROAD AND RAIL (NATIONAL UNIFORM LEGISLATION) BILL 2010
2010
LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY
MINISTER FOR JUSTICE AND ATTORNEY-GENERAL
SERIAL NO. 110
EXPLANATORY STATEMENT
Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Bill 2010
GENERAL OUTLINE
This Bill is for an Act to upgrade Northern Territory laws regarding the transport of dangerous goods by road and rail. The Bill replaces and repeals the Dangerous Goods (Road and Rail Transport) Act.
The object of the Bill is to regulate the transport of dangerous goods on land in order to promote public safety and protect property and the environment.
The Bill is also part of a national scheme and substantially duplicates Schedule 1 to the National Transport commission (Model Legislation- Transport of Dangerous Goods by Road or Rail) Regulations 2007, as amended by the National Transport Commission (Model Amendments: Transport of Dangerous Goods by Road or Rail- Package No. 1) Regulations 2009
NOTES ON CLAUSES
Clause 1. Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act 2010.
Clause 2. Commencement
The Act will commence on a date fixed by the Administrator by Gazette notice.
Clause 3. Object of the Act
This clause sets out the main object of the Act, which is to regulate the transport of dangerous goods on land in order to promote public safety and protect property and the environment.
The object is to be achieved in the context of nationally consistent road and rail transport laws, recognising that there are differences between jurisdictions on particular aspects of those laws.
Clause 4. Scope of the Act
This clause sets out the scope of the Act. The Act does not apply to:
· dangerous goods that are, or form part of, personal safety equipment of persons in a vehicle transporting dangerous goods; and
· 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.
The provisions in this Act have effect despite any other law of the Territory.
Clause 5. Definitions
This clause defines numerous terms used in the Act, for example, “authorised officer”, “Competent Authority”, “dangerous goods”, “dangerous situation”, “road or rail authority”, “road vehicle” and “transport documentation”.
The definition of dangerous goods means a substance or article prescribed by the regulations as dangerous goods, or a substance or article determined by the Competent Authority, in accordance with the regulations, to be dangerous goods.
Clause 6. Meaning of associate
This clause defines “associate”. A person is an associate of another person if a relationship exists that is outlined in subsection 6(1). It includes family relationships and partners in a partnership.
Clause 7. Meaning of broken down, in relation to vehicles
This clause provides that a vehicle is “broken down” if it is not possible to drive the vehicle because it is disabled through damage, mechanical failure, lack of fuel or any similar reason.
A trailer is “broken down” if the trailer is not connected to the towing vehicle, whether or not the trailer is also disabled through damage, mechanical failure or similar reason.
Clause 8. Meaning of compliance purpose
This clause defines “compliance purpose”. A power will be exercised for a compliance purpose where the power is used to determine compliance with the Act or to investigate an offence or suspected offence.
Clause 9. Meanings of consign and consignor
This clause provides that a person consigns goods and is the consignor of goods where the person:
· is named on the transport documentation as the consignor of goods;
· engages a prime contractor or rail operator to transport the goods; or
· imports goods into Australia.
Clause 10. Meanings of load and loader
This clause provides that a person loads dangerous or other goods for transport, and is a loader of goods if the person:
· loads one or more packages of the goods in or on a vehicle; or
· places or secures one or more packages of the goods on vehicle; or
· supervises, manages or controls these activities.
This clause does not apply to the loading of goods into packaging that is already on a vehicle, or the placing of packages on a further packaging that is already on a vehicle.
Clause 11. Meaning of operator
This clause provides a definition of “operator”. A person is an operator of a vehicle if the person is responsible for controlling or directing the operations of:
· a single vehicle; or
· a group of vehicles that are physically connected.
A person is not the operator of a vehicle only because the person drives the vehicle, maintains or arranges for maintenance of the vehicle or arranges for the registration of a vehicle.
Clause 12. Meanings of pack and packer
This clause provides that a person packs dangerous or other goods for transport and is a packer of the goods if the person:
· puts the goods in a packaging; or
· assembles, places or secures packages in packaging design to hold more than one package; or
· supervises, manages or controls these activities.
Clause 13. Meanings of qualified, fit or authorised to drive or to run an engine
This clause provides definitions of “qualified”, “fit” to drive or run an engine and “authorised” to drive or to run an engine.
A person is “qualified” to drive a vehicle or run its engine at a particular time if he or she holds a drivers licence of the appropriate class to drive the vehicle and the licence is not suspended, and is not prevented by or under a law from driving the vehicle.
A person is “fit” to drive a vehicle or run its engine at a particular time if he or she is apparently physically and mentally fit to drive the vehicle, and is not apparently affected by alcohol or drugs that affect his or her fitness to drive, and is not found to have a concentration of alcohol or drugs in his or her blood.
A person is “authorised” to drive a vehicle if he or she is the operator of a vehicle or has the operator’s authority to drive it or run its engine.
Clause 14. Meanings of roads and road-related areas
This clause provides that a “road” includes a reference to a road-related area.
A “road” and “road-related area” has the same meaning as in the Australian Road Rules.
Clause 15. Meanings of rolling stock and unit of rolling stock
This clause provides that “rolling stock” is a vehicle:
· consisting of 2 or more vehicles each of which is designed to run on a railway track; and
· that is being operated or used on a railway track.
A “unit of rolling stock” refers to each individual vehicle.
Clause 16. Meanings of unattended vehicle and driver of disconnected trailer
This clause provides the meaning of “unattended vehicle” and “driver” of disconnected trailer.
A vehicle is “unattended” at a place if upon reasonable physical inspection, or inspection by camera or remote surveillance, an authorised officer confirms there is no person in the vicinity of the vehicle who appears to be its driver.
A vehicle will also be “unattended” if a person is located within the vicinity of the vehicle, and the authorised officer believes on reasonable grounds that the person is not qualified, fit, authorised, unwilling to drive the vehicle or the person is subject to a direction under section 35 (direction to leave vehicle).
The “driver” of a disconnected trailer refers to the driver of the towing vehicle to which the trailer was or apparently last connected.
Clause 17. Examples
This clause provides that examples form part of the Act. Examples are not exhaustive, may extend the meaning of a provision and do not limit the meaning of the provision unless the contrary intention appears.
Clause 18. Notes
This clause provides that notes that are at the foot of a provision in this Act are part of the Act. However, marginal notes, footnotes at the bottom of a page of this Act and endnotes are not part of this Act.
Clause 19. Application of Acts Interpretation Act (Cth)
This clause provides that subject to any contrary intention, the provisions of the Acts Interpretation Act 1901 (Cth) apply to the interpretation of this Act (except for the definitions of “Government Gazette”, “Magistrate”, “Minister” and “police officer”).
The NT’s Interpretation Act applies to the interpretation of this Act to the extent to which it can apply consistently with the application of the Acts Interpretation Act 1901 (Cth).
Clause 20. Application of Criminal Code
This clause provides that the criminal responsibility provisions of Part IIAA of the Criminal Code applies to an offence against this Act. Part IIAA describes, for example, the physical and fault elements for offences, and provides for defences to a prosecution for offences in addition to any provided for in this Act.
Clause 21. Act Binds Crown
This clause provides that the Act binds the Crown in right of the Territory, and to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
The Act does not make the Crown liable to be prosecuted for an offence.
Part 2 Competent Authorities and authorised officers
Division 1 Appointments and arrangements
Clause 22. Competent Authorities
New section 22 permits the person holding or occupying the position of Executive Director of NT WorkSafe to act as the Competent Authority for this Act.
The Executive Director of NT WorkSafe may exercise all powers and perform all functions of an authorised officer, and possesses all the immunities of an authorised officer when exercising those powers or performing those functions.
Clause 23. Appointment of authorised officers
New section 23 outlines the process of appointment of authorised officers by the Competent Authority. The Competent Authority may, by notice published in the Government Gazette, appoint an individual or class of individual to be an authorised officer. The appointment may be subject to conditions and restrictions with respect to the powers of the authorised officer.
An identification card must be issued to an authorised officer who is not a police officer.
Clause 24. Authorised officer identification
New section 24 sets out the requirements for an identification card to be issued to an authorised officer who is not a police officer. It also sets out the requirements for the contents of the identification card.
New section 24 also imposes a requirement upon authorised officers to carry his or her identity card while carrying on duties and to produce it before exercising a power under the Act. Similarly, police officers, who are exercising powers under the Act, must produce identification upon request.
Clause 25. Return of authorised officer identity cards
New section 25 requires a person issued with an authorised officer identity card return it to the Competent Authority within 21 days after ceasing to be an authorised officer. This section creates an offence of strict liability for failing to return the identification card in the required time.
Clause 26. Falsely representing to be authorised officer
New section 26 creates an offence for a person to intentionally, falsely represent, by words or conduct, that a person or another person is an authorised officer.
Clause 27. Competent Authority may delegate powers
New section 27 allows a Competent Authority to delegate any of its powers under this Act. However, a Competent Authority may not delegate its power to appoint authorised officers or delegate its power to delegate its powers.
Clause 28. Competent Authority may give information to corresponding authority
New section 28 allows a Competent Authority to provide information to a corresponding authority about any action taken or information obtained under the Act. This clause operates subject to the NT’s Information Act.
The term ‘corresponding authority’ is defined in section 5 as a Competent Authority appointed under a corresponding law of another jurisdiction, substantially the same as the Act or declared in the Regulations.
Clause 29. Reciprocal powers of authorised officers
New section 29 allows the Minister to enter into an agreement with a Minister of another jurisdiction to enable authorised officers of the NT to exercise powers in other jurisdictions, and to enable authorised officers in other jurisdictions to exercise powers in the NT.
Any act taken by an authorised officer of the NT or other jurisdiction is taken to be done under this Act as well as under the corresponding law.
Division 2 General Powers – road vehicles
Subdivision 1 Application
Clause 30. Application of Division
New section 30 sets out the requirements for the application of Division 2. The Division applies to a road vehicle if one of the following applies to the vehicle:
· it has a placard on it;
· it is carrying a container that has a placard on it;
· an authorised officer believes on reasonable grounds that it is carrying dangerous goods or goods too dangerous to be transported;
· an authorised officer believes on reasonable grounds that it is licensed under this Act, or that it is used to carry goods for commercial purposes; and
· the vehicle is situated on a road, or public place or in premises occupied or owned by the public authority or in any premises where an authorised officer is lawfully present after entry under Division 4 (Powers to inspect and search premises).
Subdivision 2 Directions in respect of road vehicles
Clause 31. Direction to stop road vehicle
New section 31 enables an authorised officer, for compliance purposes, to direct the driver of a road vehicle to immediately stop, or cease moving the vehicle or interfering with its equipment or load. An authorised officer is permitted to give a later inconsistent direction under another provision of the Act.
A direction given by an authorised officer ceases to have effect if a later inconsistent direction is given, or the authorised officer indicates that the direction ceases to have effect.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 32. Direction to move road vehicle
New section 32 enables an authorised officer, for compliance purposes, to direct the driver of a road vehicle to move or cause the vehicle to be moved to the nearest location that the officer believes is a suitable location, and within a distance specified by an officer.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 33. Direction to produce documents
New section 33 enables an authorised officer to direct the driver of a road vehicle to produce:
· the driver’s driver licence;
· any licence the driver is required to have in accordance with the regulations; and
· any transport documentation that is required to be carried on the vehicle by the regulations.
It is a strict liability offence not to comply with such a direction, with a defence if the defendant proves a reasonable excuse.
An authorised officer may also seize a licence which the officer reasonably believes has been:
· cancelled or suspended;
· ceased to have effect;
· varied and the variation is not recorded on the licence;
· the person who produces the licence is not the licensee; or
· the licence produced is not a licence.
Clause 34. Direction to move a road vehicle – danger or obstruction
New section 34 applies if an authorised officer believes on reasonable grounds that a road vehicle is:
· seriously endangering public safety, the environment or rail or road infrastructure; or
· causing or is likely to cause an obstruction to traffic or any event lawfully authorised to be held on the road; or
· obstructing or hindering, or likely to obstruct or hinder, one or more vehicles from entering or leaving land adjacent to the road.
The authorised officer may direct the driver of the vehicle to move the vehicle or cause it to be moved to the extent necessary to avoid the danger, obstruction or hindrance; or to do anything else reasonably required.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 35. Direction to leave vehicle
New section 35 applies where the driver of a road vehicle fails to comply with a direction given by an authorised officer, or where an authorised officer believes on reasonable grounds that the driver of a road vehicle is not fit, qualified or authorised to drive the vehicle to comply with the direction.
This section enables an officer to direct the driver to:
· vacate the driver’s seat;
· leave the vehicle;
· not occupy the driver’s seat until permitted to do so by an authorised officer;
· not to enter the vehicle until permitted to do so by an authorised officer.
An authorised officer may direct any other person to:
· leave the vehicle;
· not enter the vehicle until permitted to do so by an authorised officer.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Subdivision 3 Other powers in respect of road vehicles
Clause 36. Moving unattended road vehicle – to enable exercise of other powers
New section 36 empowers an authorised officer to move a vehicle or authorise another person to move a vehicle where the authorised officer:
· believes on reasonable grounds that a road vehicle is unattended on a road; and
· is seeking powers in respect of the road vehicle for compliance purposes; and
· believes on reasonable grounds that the vehicle should be moved to enable or facilitate the exercise of those powers.
An authorised officer may enter the vehicle for the purpose of moving it and use reasonable force to unlock doors, gain access to the vehicle or enable the vehicle to be towed.
An authorised officer can authorise another person to move a vehicle only if the officer believes on reasonable grounds they are qualified to do so.
Clause 37. Powers of authorised officers – inspection
New section 37 permits an authorised officer, for the purposes of compliance, to inspect a road vehicle and may do so without the consent of the driver or person in charge of the vehicle. The power to inspect a vehicle includes the power to weigh, test or take photographs of a vehicle, take samples, inspect, take copies of any records in or on the vehicle and check the existence or details of placards or other information.
An authorised officer may open unlocked doors, inspect and move (but not take away) anything that is locked up or sealed.
Clause 38. Powers of authorised officers – searches
New section 38 allows an authorised officer to search a vehicle for compliance purposes, without the consent of the driver or person in charge of a vehicle, where the officer believes the vehicle has been used in the commission of an offence or may have been involved in a dangerous situation. This belief does not necessarily have to arise out of an inspection of the vehicle.
An authorised officer may search for evidence; inspect any records or devices that relate to the vehicle its equipment or load or are located on the vehicle; take copies of or extracts (from records, documents or data in or on the vehicle). The power does not extend to the power to search a person.
An authorised officer is entitled to use reasonable force in exercising their powers under this section.
Clause 39. Moving unattended or broken down road vehicle
New section 39 empowers an authorised officer to stop a dangerous situation from continuing by moving a vehicle, or authorising another person to move it by driving it, towing it or otherwise. This section applies where a road vehicle has broken down and is causing a dangerous situation.
An authorised officer may drive the vehicle, even though the officer is not qualified to do so, if there is no other person in the vicinity to drive the vehicle.
Furthermore, the officer is exempt from any other provision of this Act or road law that would require him or her to be licensed and may use reasonable force to stop a dangerous situation.
Clause 40. Powers of authorised officers – immobilised road vehicle
New section 40 outlines the powers of authorised officers where a vehicle is broken down or otherwise immobilised on a road.
An authorised officer may give directions to the driver or a person apparently in charge of a vehicle about how:
· repair work is to be carried out on the vehicle;
· the vehicle is to be towed off the road;
· dangerous goods are to be removed from the vehicle; or
· dangerous goods are to be dealt with after their removal from the vehicle.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 41. Powers of authorised officers in emergencies
New section 41 outlines the powers of authorised officers in emergencies, where a road vehicle is involved in an incident resulting in a dangerous situation.
An authorised officer may give directions to the driver or person apparently in charge of the vehicle about:
· the transport of any goods in the vehicle from the place of the incident; or
· how otherwise to deal with the goods.
The direction must be in writing or given orally and confirmed in writing within 48 hours.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 42. Authorisation not required for driving under this Division
New section 42 provides that an authorised officer may drive a vehicle for the purposes of sections 31 to 41 even though they are not authorised to do so by the operator of the vehicle.
Division 3 Directions in respect of rolling stock and trains
Subdivision 1 Application
Clause 43. Application
New clause 43 provides that Division 3 applies to a unit of rolling stock that:
· has a placard on it; or
· is carrying a container that has a placard on it; or
· an authorised officer knows or believes on reasonable grounds is carrying dangerous goods or is carrying a container containing dangerous goods.
A unit of rolling stock is defined in section 16.
Subdivision 2 Power to give directions in respect of rolling stock and trains
Clause 44. Powers of authorised officers – rail operators
New section 44 provides that an authorised officer may, for compliance purposes, direct the rail operator of a train (which includes a unit of rolling stock) to stop at a place where it can be safely inspected by the officer.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 45. Powers of authorised officers – train drivers
New section 45 allows an authorised officer, for compliance purposes, to direct the driver of a train (which includes a unit of rolling stock) not to:
· move the train;
· interfere with the train or any equipment on it; or
· interfere with any load of any unit of rolling stock that forms part of the train.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 46. Powers of authorised officers – others
New section 46 applies to a unit of rolling stock to which Division 3 applies but that does not form part of a train. An authorised officer may, for compliance purposes, direct a person not to:
· move the unit;
· interfere with the unit or any equipment or container in or on it;
· attach any other rolling stock to the unit.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 47. Powers of authorised officers – documents
New section 47 empowers an authorised officer to direct the driver of a train (that includes a unit of rolling stock) to produce transport documentation that is required to be carried on the train by the regulations.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Subdivision 3 Other powers in respect of trains
Clause 48. Powers of authorised officers – inspection
New section 48 permits an authorised officer, without consent of the driver or person in charge, for the purposes of compliance, to inspect a unit of rolling stock or a train that includes a unit of rolling stock to which Division 3 applies.
The power to inspect a vehicle includes the power to weigh, test or take photographs of a vehicle, take samples, inspect, take copies of any records in or on the vehicle and check the existence or details of placards or other information.
An authorised officer may open unlocked doors, inspect and move (but not take away) anything that is locked up or sealed. The authorised officer is not permitted to use force when exercising powers under this section.
Clause 49. Powers of authorised officers – search
New section 49 allows an authorised officer to search a unit of rolling stock or train for compliance purposes, where the officer believes the unit of rolling stock or train has been used in the commission of an offence or may have been involved in a dangerous situation. This belief does not necessarily have to arise out of an inspection of the vehicle
The power to inspect a vehicle includes the power to weigh, test or take photographs of a vehicle, take samples, inspect, take copies of any records in or on the vehicle and check the existence or details of placards or other information. The power does not extend to the power to search a person.
An authorised officer may seize and remove a record, device or other thing that the officer believes on reasonable grounds provides evidence of an offence.
The authorised officer may exercise these powers without consent of the driver or person in charge of the rolling stock or train, and may use reasonable force.
Clause 50. Powers of authorised officers – immobilised train
New section 50 outlines the powers of authorised officers where a train is immobilised and includes a unit of rolling stock to which Division 3 applies.
An authorised officer may give directions to a person who is involved in the transport of dangerous goods on the train about how:
· dangerous goods are to be removed from the train; or
· dangerous goods are to be dealt with after their removal from the train.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 51. Powers of authorised officers in emergencies
New section 51 outlines the powers of authorised officers in emergencies where a train that includes rolling stock is involved in an incident resulting in a dangerous situation.
An authorised officer may give directions to a person who is involved in the transport of the dangerous goods on the train about:
· the transport of the goods from the place of the incident; or
· how otherwise to deal with the goods.
The direction must be in writing or given orally and confirmed in writing within 48 hours.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Division 4 Powers to inspect and search premises
Subdivision 1 Preliminary Matters
Clause 52. Application
New section 52 provides that Division 4 applies to premises occupied or controlled by a person involved in the transport of dangerous goods.
Clause 53. Residential purposes
New section 53 provides that, for the purposes of Division 4, premises are not being used for residential purposes merely because temporary or casual accommodation is provided in the premises for drivers.
Subdivision 2 Power to search premises
Clause 54. Power to inspect premises
New section 54 empowers an authorised officer to enter and inspect premises, to which Division 4 applies, or any vehicle at the premises, for compliance purposes. Unless the premises is in a public place, reasonable notice of the intention to enter the premises must be provided by an authorised officer. The authorised officer does not have to provide notice if it would defeat the purpose of the entry or if entry is made with consent.
An authorised officer may not inspect premises that are unattended or predominantly used for residential purposes, unless the occupier consents.
The power to inspect is broad. It includes the power to take copies of extracts, check the existence and inspect any devices and take samples. An authorised officer may open unlocked doors, inspect and move (but not take away) anything that is locked up or sealed.
An authorised officer is not permitted to use force in the exercise of his or her powers under this section, and must not unnecessarily impede any activities being conducted at the premises.
Clause 55. Power to search premises
New section 55 permits an authorised officer to search premises where the officer believes on reasonable grounds that records, devices or other things at the premises may provide evidence of an offence. This belief does not necessarily have to arise out of an inspection of the premises.
The authorised officer may enter the premises to conduct the search, and may search, or enter and search, any vehicle at the premises.
The authorised officer may conduct the search under the authority of a warrant, with the consent of the occupier, or without consent if it is a business at any time during ordinary business hours.
The authorised officer must give reasonable notice to the occupier before entering the premises unless:
· providing notice would defeat the purpose for which it is intended to enter the premises;
· entry is made with the consent of the occupier of the premises;
· entry is required where the authorised officer reasonably believes there is an immediate risk to safety because of carrying out of operation at the premises in respect of dangerous goods; or
· entry is authorised by warrant.
The power to search premises includes the power to:
· search for evidence of an offence;
· search and inspect any records, devices or other things that relate to a vehicle, part of its equipment or load, or any dangerous goods or its packaging;
· take copies, or extracts of any records located at the premises and are required to be kept by the regulations, any transport documentation located at the premises or any other records, readout or data obtained from any device or thing;
· use photocopying equipment on the premises free of charge for the purpose of copying any records or material; and
· take a sample or any substance or packaging on the premises.
The power to search does not include the power to search a person.
The authorised officer may seize and remove any records, devices or other things that the officer reasonably believes may provide evidence of an offence. An authorised officer is permitted to use reasonable force in the exercise of powers under this section.
Division 5 Other directions
Clause 56. Direction to give name and other personal details
New section 56 empowers an authorised officer to direct a person to provide their personal details (as defined in subsection 56(7)), in circumstances where an officer suspects on reasonable grounds that the person:
· has committed, is committing or is about to commit an offence; or
· may be able to assist in the investigation of an offence.
An authorised officer may also request the person to produce evidence of the correctness of detail of information where the officer suspects the information is misleading.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 57. Direction to produce records, devices or other things
New section 57 empowers an authorised officer to direct a person to produce:
· any records required to be kept by the person under the Act;
· any records required to be kept under this Act in the person’s possession or under the person’s control; or
· any records, or any devices or other things that contain or may contain records, in the person’s possession or under the person’s control relating to or indicating an offence.
The direction must specify the records, devices or things that are to be produced.
An authorised officer may inspect, make copies, take extracts or seize or remove the records, devices or other things.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 58. Direction to provide information
New section 58 allows an authorised officer, for compliance purposes, to direct a person involved in the transport of dangerous goods to provide information to the officer about a vehicle or any load or equipment carried or intended to be carried by the vehicle.
Such a direction may require information about the current or intended trip of the vehicle, such as the route or intended route of the trip.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 59. Direction to provide reasonable assistance
New section 59 allows an authorised officer to direct a person, involved in the transport of dangerous goods, to provide reasonable assistance to the officer to enable the effective exercise of a power under the Act.
Involvement in the transport of goods is defined in section 5.
The assistance may include helping the officer to:
· find and gain access to any records or information relating to a vehicle, including any records or information required in or on a vehicle, or records or information in a useable form for the purpose of ascertaining its compliance with requirements imposed by the Act;
· weigh and measure the whole or part of a vehicle or its equipment or load;
· operate equipment or facilities for a purpose relevant to the power being exercised;
· provide free access to photocopying equipment for the purpose of copying any records or other material; and
· take a sample of any substance or packaging.
This section also makes it a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Division 6 Provisions regarding inspections and searches
Clause 60. Warrants
New section 60 provides that an authorised officer may apply to a Magistrate for a search warrant for particular premises if the officer believes on reasonable grounds, and the Magistrate may grant a warrant if satisfied there are reasonable grounds for a belief, that:
· the premises may have records, then or within the next 72 hours, devices or other things that may provide evidence of an offence;
· a vehicle, located at the premises, may have been involved in an offence or a dangerous situation; or
· the premises are directly or indirectly connected with a vehicle that may have been involved in an offence or a dangerous situation or any part of the equipment or load of a vehicle.
The application may be made orally before a Magistrate (or in another way prescribed by the regulations) and must be supported by evidence on oath or in affidavit.
The search warrant must specify:
· the offence for which the warrant is issued;
· the premises to be searched;
· the thing for which the search is to be made;
· any conditions to which the warrant is subject;
· whether entry to the premises is authorised to be made at any time or during specified hours;
· a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect; and
· any other information prescribed by regulation.
Clause 61. Magistrates may issue warrants by electronic means
New section 61 outlines that a Magistrate may issue a warrant by electronic means, such as telephone or facsimile, where the case is urgent or if delay would frustrate the effective execution of the warrant.
An application must include all information required to be given in an application for a warrant in section 60, but that information may be given before it is sworn if the Magistrate considers it appropriate to do so. If the information is not sworn, the authorised officer must give sworn information the day after expiry of the warrant or day after the execution of the warrant.
Upon issuing the warrant, the Magistrate must inform the applicant (by telephone, facsimile or other electronic means) of the terms of the warrant and the day and time which it was signed.
In any later court proceedings, if the issue of whether a warrant was duly authorised under this section is material, the court must assume it was not duly authorised unless the warrant signed by the Magistrate is produced in evidence.
Clause 62. Use of assistants and equipment
New section 62 enables an authorised officer to exercise their powers under Part 2 with the aid of an assistant and equipment as the officer considers reasonably necessary in the circumstances.
An assistant authorised and supervised by the officer can exercise powers under Part 2 if the officer considers it reasonably necessary to do so.
Clause 63. Use of equipment to examine or process things
New section 63 permits the use of equipment to examine or process things. Specifically, an authorised officer may bring to the location of a vehicle or premises, any equipment reasonably necessary for the examination or processing of things to determine whether they are things that may be seized from a vehicle or premises.
An authorised officer may also move things for the purpose of determining if things may be seized if it is not practicable to examine the things at location or the occupier consents in writing to removal.
The section also allows authorised officers to operate equipment already at the location where the equipment is suitable for examination and the examination can be carried out without damage to the equipment or thing.
Clause 64. Use or seizure of electronic equipment
New section 64 allows an authorised officer to operate equipment to access information stored in a storage device if a storage device is found on a vehicle or at premises, can be used with equipment at the location, and the authorised officer believes on reasonable grounds that the information is relevant to determine whether an offence has been committed.
The authorised officer who finds the storage device may:
· put the information in documentary form and seize the documents produced;
· copy the information to another storage device and remove that storage device; or
· seize the storage device where it is impractical to put the information in documentary form.
The section makes clear that an authorised officer cannot operate or seize equipment unless the officer believes on reasonable grounds that such activity can be carried out without damage to the equipment.
Clause 65. Sample-taking procedures
New section 65 outlines sample-taking procedures. A sample may only be taken if it is safe to do so, and the taking of a sample will not result in a dangerous situation.
Immediately after taking a sample, the authorised officer must divide it into:
· one part for future comparison;
· one part to give to person from whom the sample is taken;
· one part to be tested if required; and
· the authorised officer must provide a written receipt; and
· must retain the sample if the person from whom the sample was taken refuses to take it.
A ‘person from whom the sample was taken’ is described in subsection 65(6).
Division 7 Other provisions regarding seizure
Clause 66. Receipt for and access to seized material
New section 66 provides that an authorised officer must give a receipt for any material which has been seized under Part 2, and must allow reasonable access to a person who would normally be entitled to possession of it.
Clause 67. Embargo notices
New section 67 provides that a notice, called an embargo notice, may be issued in relation to a record, device or other thing that cannot readily be physically seized and removed, but which an authorised officer is authorised by the Competent Authority to seize.
An embargo notice forbids any dealing with the thing or part of it (such as the movement, sale, leasing, transfer or deletion of information) without the authorised officer’s or Competent Authority’s consent.
It is an offence to intentionally engage in conduct forbidden by the notice or to intentionally instruct another person to engage in such conduct. The defendant may not be guilty of this offence if the defendant establishes that he or she:
· moved the relevant thing or part of it to protect or preserve it, and
· notified the officer who issued the notice of the move, and of the new location of the relevant thing or part of it within 48 hours after the move.
It is also a defence available where the person is charged with the offence of instructing another, if the defendant establishes a reasonable excuse.
Clause 68. Return of seized thing
New section 68 requires an authorised officer to return a thing seized as soon as practicable. However, a thing may be retained where the thing may provide evidence in the proceedings, where the thing is forfeited to the Territory, or where the officer is otherwise authorised to retain, destroy or dispose of the thing.
The section allows an authorised officer to impose conditions upon the return of a thing. It is a strict liability offence not to comply with this direction, with a defence if the defendant proves that he or she has a reasonable excuse for not complying.
Clause 69. Forfeiture
New section 69 provides that a sample or thing taken for analysis or seized is forfeited to the Territory if:
· the thing cannot be returned to its owner, after making reasonable efforts;
· cannot find its owner, after making reasonable enquiries; or
· it is necessary to retain the thing to prevent the commission of an offence.
The owner, in this section, includes the person in charge of the thing or place from which the thing was taken.
The section requires a notice to be provided to the owner where the thing has been retained to prevent the commission of an offence. The notice must advise the owner of the forfeiture and advise how an application for review of the decision to forfeit can be made.
Clause 70. Dealing with forfeited sample or thing
New section 70 provides that upon forfeiture of a sample or thing to the Territory, the sample or thing becomes the property of the Territory. It may be dealt with by the Competent Authority in any way the Competent Authority considers appropriate, including destroying or disposing of the sample or thing.
Division 8 Other matters
Clause 71. Limit on use of force
New section 71 provides that where an authorised officer may use reasonable force in the exercise of his or her powers under Part 2, it does not include the use of force against an individual unless the authorised officer is also a police officer.
Clause 72. Consent
New section 72 provides that, before obtaining the consent of a person in order to do something under Part 2, for example, obtaining consent to enter premises for the purposes of searching them under section 54, an authorised officer must inform the person that they may refuse to give consent.
Consent to an entry into premises or a vehicle, or to the exercise of any power under Part 2 by an authorised officer must be voluntary, and so is not lawful unless the person voluntarily gave their consent. Further, if a person withdraws their consent after it has been given, the power concerned must no longer be exercised.
Clause 73. Giving directions under this Part
New section 73 provides that a direction that is given under Part 2 may be given orally, in writing or in any other way. Where the direction is not given in person, the direction may be transmitted by a number of means including post, telephone, facsimile, email or radio.
Clause 74. Directions to specify when to be complied with
New section 74 outlines that an oral direction given under Part 2 must specify whether it is to be complied with then and there or within a specified period. If given in writing, a direction must specify the period within which it is to be complied with.
Clause 75. Directions may be given under more than one provision
New section 75 provides that an authorised officer may, on the same occasion, give directions under more than one provision under Part 2.
An authorised officer is permitted to give further directions under a particular section or give directions under more than one provision of this Part.
Clause 76. Restoring vehicle or premises to original condition after action taken
New section 76 requires an authorised officer to take reasonable steps to return the vehicle, equipment, load or premises to the condition it was in immediately before the action was taken.
This section applies where an authorised officer has taken action in the exercise of a power under Part 2 in relation to a vehicle or its equipment or load or a premises, and damage was caused by the unreasonable exercise of the power or by unauthorised use of force.
Clause 77. Protection from incrimination
New section 77 applies if a person is required to:
· answer a question;
· produce a document; or
· give or provide information.
A person is not excused from doing any of these things even if doing so may tend to show their guilt of an offence or if it makes the person liable to a penalty of some sort (such as a civil penalty).
However any information obtained as a direct result of compliance with the direction to answer a question, produce a document or provide information, is not admissible in evidence against an individual (as opposed to, for example, a body corporate) in proceedings for an offence against the individual. An exception to this protection is in proceedings alleging the individual provided false or misleading information in complying with the direction or the imposition of a penalty.
Clause 78. Providing evidence to other authorities
New section 78 allows the Competent Authority to provide any record, information, device or other thing seized to a public authority including a public authority of another jurisdiction.
Public authority is defined in section 5 to include the Crown, Police or other body such as a body holding a public office.
Clause 79. Obstructing authorised officers
New section 79 creates an offence to intentionally obstruct an authorised officer acting in an official capacity, knowing that the person is acting in an official capacity. Obstructing includes hindering or resisting a person acting in an official capacity.
Part 3 Exemptions
Clause 80. Grant of Exemption
New section 80 provides that a person or representative of a class of persons 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.
The Competent Authority has discretion to exempt a person or class of persons if satisfied:
· it is not reasonably practicable for the person or class of persons to comply with the provision; and
· granting the exemption would not likely create a risk of death or injury to a person, harm the environment or property, to a greater extent that what would arise if compliance was required with the provision, and would not cause unnecessary administrative or enforcement difficulties.
That exemption may be subject to conditions. If the exemption is to remain in force for greater than six months the Competent Authority must:
· publish a notice in the Government Gazette specifying details in subsection 80(4) and the person or class of persons to which the exemption applies; and
· notify the corresponding jurisdiction of the details of the exemption.
It is an offence to engage in conduct reckless as to whether it contravenes a condition of the exemption. It is also an offence not to display notice of exemption in the vehicle or premises.
Clause 81. Variation and cancellation of exemptions and conditions
New section 81 permits a Competent Authority to cancel an exemption if a person has failed to comply with a condition of the exemption.
The Competent Authority may also vary, cancel or impose new conditions by giving written notice to the person, or by notice published in the Government Gazette where the exemption is granted to a class of persons.
The notice takes effect from the day the notice is given or published, or a later day specified in the notice.
Clause 82. Minister’s orders to suspend operation of regulations
New section 82 allows the Minister, by notice published in the Government Gazette, to suspend the operation of all or parts of the regulations for a specified period, or to order that the Regulations are varied in a specified way.
The order has effect for all or parts of the NT as specified in the order.
Part 4 Offences and penalties
Clause 83. Failure to hold licence
New section 83 sets out several offences for failing to hold a licence to transport dangerous goods. The Regulations set out who must hold a licence or what vehicles must be licensed.
The offences are:
· where a prime contractor uses a vehicle (otherwise than as the driver) that is not licensed under to the regulations;
· consigning dangerous goods for transport by road if the vehicle is not licensed under the regulations;
· employing, engaging or permitting another person to drive a vehicle transporting dangerous goods if the person is not licensed under the regulations;
· driving a vehicle transporting dangerous goods if the vehicle is not licensed under the regulations;
· driving a vehicle transporting dangerous goods if the person is not licensed under the regulations.
It is an offence of strict liability to transport dangerous goods without a licence to do so or to use a vehicle to transport dangerous goods if that vehicle is not licenced. It is a defence if the defendant proves that he or she has a reasonable excuse.
The fault elements to be proven for all the other offences in this section are intentionally doing the activity and being reckless as to whether the person or vehicle is licensed under the regulations.
Clause 84. Goods too dangerous to be transported
New section 84 creates an offence to intentionally consign goods for transport, or arrange the transport of goods on a vehicle owned or controlled by them, if the Regulations prescribe those goods as being too dangerous to be transported.
Clause 85. Duties concerning the transport of dangerous goods
New section 85 creates an offence if the person is involved in the transport of dangerous goods by road or rail and fails to ensure the goods are transported in a safe way. The fault elements to be proven for this offence are intentionally engaging in conduct that is included in the definition of involvement in the transport of dangerous goods in section 5, and being reckless as to whether the goods are transported safely.
Part 5 General administrative sanctions
Division 1 Improvement notices
Clause 86. Improvement notices
New section 86 permits an authorised officer, who believes on reasonable grounds that a person has contravened, is contravening or likely to contravene a provision of this Act, to serve upon the person a notice, called an improvement notice, to compel the person to remedy the contravention or likely contravention.
The improvement notice must contain information such as how the person should remedy the contravention and the period in which they can comply with the notice.
When deciding to serve an improvement notice, the authorised officer must have regard to the nature of the contravention and the risk to persons or property resulting from the contravention.
Clause 87. Contravention of improvement notices
New section 87 creates an offence to intentionally contravene an improvement notice. This section also provides for a defence to this offence if the defendant establishes:
· a reasonable excuse; or
· the defendant remedied the alleged contravention, likely contravention or matters or activities to which the notice relates in a different way than specified in the notice.
Clause 88. Amendment of improvement notice
New section 88 allows an authorised officer to amend an improvement notice served under section 87 by serving an amendment notice. The amendment notice must deal with the same contravention or likely contravention as the improvement notice.
The notice must specify the amendment and reasons for the amendment and include information about applying for review of the decision.
Clause 89. Cancellation of improvement notices
New section 89 provides that an improvement notice may be cancelled by an authorised officer or Competent Authority by serving a notice of cancellation on the person served with the improvement notice.
Clause 90. Clearance certificates
New section 90 allows an authorised officer to issue a clearance certificate which confirms that all requirements of an improvement notice have been complied with. Once received, the improvement notice will cease to have effect in relation to a requirement.
Clause 91. Proceedings for an offence not affected
New section 91 makes it clear that the service, amendment or cancellation of an improvement notice under sections 86 to 90 does not affect any proceedings for an offence.
Division 2 Prohibition notices
Clause 92. Definition
New section 92 provides a definition for the purposes of Division 2 of “dangerous activity”.
A dangerous activity is an activity that:
· relates to the transport of dangerous goods by road or rail;
· is occurring or may occur in relation to or in the immediate vicinity of dangerous goods; and
· is creating or could create, a dangerous situation or risk to the safety of any person.
Clause 93. Prohibition notice
New section 93 empowers an authorised officer, who believes on reasonable grounds a dangerous activity is occurring or is likely occur, to serve a notice called a prohibition notice.
The prohibition notice must:
· specify the belief and reasons for the belief;
· require the person to cease the dangerous activity or cease carrying it out in a specified way;
· specify the law, if the authorised officer believes the activity involves the contravention of a law in force in the NT; and
· include information about applying for a review of the decision to serve a notice.
In addition, the prohibition notice may:
· specify a direction on measures to be taken to minimise or eliminate the risk caused by the dangerous activity;
· specify the choice of ways to minimise or eliminate the risk caused by the dangerous activity; and
· if the notice prohibits the carrying out of an activity in a specified way, the notice may state the place where the activity is not to be carried out, specify things not be used in connection with the activity or any procedure that may not be followed in connection with the activity.
The prohibition notice has effect from the date on which it is served or a later date until the authorised officer has certified in writing the activity is no longer a dangerous activity and notified the person of that certification or where the notice has been cancelled.
Clause 94. Convention of prohibition notice
New section 94 creates an offence if a prohibition notice has been served on a person and the person engages in conduct that results in a contravention of the notice.
This is a strict liability offence with a defence if the defendant proves that he or she has a reasonable excuse for not complying with the notice.
Clause 95. Oral direction may be given before prohibition notice is served
New section 95 permits an authorised officer to orally direct a person to cease an action, where a dangerous activity is occurring or may occur and it is not reasonable or immediately possible to serve a prohibition notice.
The direction ceases to have effect if a prohibition notice is not served on the person within five days after the direction is given.
It is an offence to intentionally contravene such a direction. The defendant has a defence if he or she proves:
· a reasonable excuse; and
· establishes that the authorised officer did not tell the person that it is an offence not to do the act.
Clause 96. Amendment of prohibition notice
New section 96 allows an authorised officer to amend a prohibition notice served under section 94 by serving an amendment notice on the person served with the prohibition notice. The amendment notice must deal with the same contravention or likely contravention as the prohibition notice.
Clause 97. Cancellation of prohibition notice
New section 97 allows a prohibition notice to be cancelled by an authorised officer by serving a cancellation notice on the person served with the prohibition notice.
Clause 98. Proceedings for an offence not affected
New section 98 provides that the service, amendment or cancellation or a prohibition notice does not affect any proceedings for an offence.
Division 3 Formal warnings
Clause 99. Formal warnings
New section 99 allows an authorised officer to issue a formal warning, instead of taking proceedings (including those dealt with by way of an infringement notice) against a person for a contravention of this Act. This is permitted where:
· the person has taken reasonable steps to prevent the contravention and was unaware of the contravention; and
· the contravention is appropriate to be dealt with by way of a formal warning under this section.
The formal warning must be in writing.
Clause 100. Withdrawal of formal warnings
New section 100 allows a formal warning to be withdrawn by the Competent Authority by serving on the alleged offender a notice of withdrawal within 21 days after the formal warning was given to them under section 99.
Proceedings may still be taken against the person for the contravention of the Act, after the formal warning has been withdrawn.
Part 6 General court-based sanctions
Division 1 Proceedings for offences
Clause 101. Proceedings for an offence may be brought by authorised officers
New section 101 provides that a prosecution for an offence may be initiated by the Competent Authority or an authorised officer.
Clause 102. Period within which proceedings for offences may be commenced
New section 102 outlines the period within which proceedings for the prosecution of offences must be commenced:
· within two years after the commission of an alleged offence; or
· if evidence of an offence is discovered after that two year period, a period of up to one year commencing on the day on which the Competent Authority or an authorised officer first obtained evidence of the commission of the alleged offence.
Division 2 Available sanctions
Clause 103. Sanctions imposed by courts
New section 103 provides that when a court finds a person guilty of an offence, the court may impose a sanction in addition to any penalty (in the form of a fine or imprisonment term) imposed for the offence. The court must consider the combined effect of the sanction.
This section does not affect any of the discretions or powers of the court.
Where a supervisory intervention order and exclusion order are in force at the same time, as a result of the operation of Part 6, the supervisory intervention order has no effect while the exclusion order is in operation.
Division 3 Commercial benefits penalty orders
Clause 104. Court may make commercial benefits penalty orders
New section 104 allows the court to make a commercial benefits penalty order where a person is found guilty of an offence. An application for a commercial benefits order can be made by the Competent Authority.
A commercial benefits order is a fine that may be imposed that is no greater than three times the estimated gross commercial benefit. The commercial benefit is estimated based on the amount of benefit received or would have been received by the person from the commission of the offence.
In estimating the commercial benefit the court may take into account:
· benefits of any kind, whether monetary or otherwise, and
· any other matters it considers relevant, including the value of goods involved in the offence and the distance over which the goods were or were to be carried.
Division 4 Licensing and registration sanctions
Clause 105. Power to affect licences
New section 105 permits a court who finds the driver of a vehicle guilty of an offence to make an order that:
· cancels, modifies or suspends the person’s licence required under the regulations for a specified period; and/or
· disqualifies the driver from obtaining or holding a licence required under the regulations.
The order takes place immediately or from a later specified date.
Clause 106. Power to affect road vehicle registration
New section 106 allows the court that finds the registered operator of a road vehicle guilty of an offence to make an order which:
· cancels or suspends the registration of the vehicle for a specified period; and/or
· disqualifies the registered operator or associate of the registered operator from registering the vehicle for a specified period.
This order would prevent a vehicle being driven lawfully and extends not only to the registered operator but to an associate of that person as defined in section 7.
The court may summons a person who is substantially affected by such an order to be present in court to show cause as to why such an order should not be made.
The order takes effect immediately or from a later specified date.
Division 5 Supervisory intervention orders
Clause 107. Court may make supervisory intervention order
New section 107 allows a court to make a supervisory intervention order, upon the application of the Competent Authority, where a person is found guilty of an offence and the court considers the person to be a systematic or persistent offender against the Act.
The supervisory intervention order may require a person to do specified things to improve their compliance with the Act, furnish compliance reports to the Competent Authority or appoint a person to ensure compliance with the Act.
The court may specify matters that are to be included in compliance reports, the frequency of them and may require such reports to be made public.
The court may only make a supervisory intervention order where the court believes that it is capable of improving a person’s compliance with the Act. The court must have regard to:
· offences which the person has been previously found guilty;
· offences which the person has been proceeded against by way of unwithdrawn infringement notices; and
· any other offences or any other matter the court considers relevant.
The court may revoke or amend a supervisory intervention order upon the application of the Competent Authority or the person for whom the order was made.
In determining whether a person is a systematic or persistent offender against the Act or whether there has been a substantial failure to comply with the order, the court may treat any offences the person has committed against any corresponding law as if they had also been committed against this Act.
Clause 108. Contravention of supervisory intervention order
New section 108 creates an offence to recklessly contravene a supervisory intervention order.
Division 6 Exclusion orders
Clause 109. Court may make exclusion order
New section 109 allows the court to make an exclusion order, upon the application of the Competent Authority, where a person is found guilty of an offence, and the court considers the person to be a systematic or persistent offender against the Act.
The purpose of an exclusion order is to restrict a person’s opportunities to commit an offence by prohibiting the person from engaging in specified aspects of involvement in the transport of dangerous goods. Involvement in the transport of dangerous goods is defined in section 5.
The court can only make an exclusion order if it is satisfied that the person should not continue the activities constituting involvement in the transport of dangerous goods; and that a supervisory intervention order is not appropriate, having regard to the person’s previous offences.
The court may revoke or amend an exclusion order upon application of the Competent Authority or the person for whom the order was made if the court is satisfied there has been a change of circumstances.
In determining whether a person is a systematic or persistent offender against the Act or whether there has been a substantial failure to comply with the order, the court may treat any offences the person has committed against any corresponding law as if they had also been committed against this Act.
Clause 110. Contravention of exclusion order
New section 110 creates an offence to recklessly contravene an exclusion order.
Division 7 Forfeiture orders
Clause 111. Court may make forfeiture order
New section 111 allows the court who finds a person guilty of an offence in relation to dangerous goods to require dangerous goods and their packaging be forfeited to the Territory. Such an order can be made upon application of the Competent Authority.
To make the order, the court must be satisfied that:
· the person owns the goods; or
· the owner of goods cannot be identified.
When an order is made by the court, the goods and packaging must be forfeited to the Territory, and the goods and packaging may be collected, packaged, transported or disposed of as directed by the Competent Authority. Reasonable costs of removal must be paid by the person who is found guilty of the offence.
Division 9 Compensation orders
Subdivision 1 Interpretation
Clause 112. Definitions
New section 112 provides definitions of “compensation order”, “rail or road authority” and “rail or road infrastructure”.
Subdivision 2 General provisions
Clause 113. Compensation orders for damage to road and rail infrastructure
New section 113 allows a court to make a compensation order requiring an offender guilty of an offence to pay an amount of compensation to a rail or road authority. Compensation is paid for any damage incurred, or likely to be incurred, by any rail or road infrastructure as a result of the offence.
A compensation order may only be imposed in certain circumstances:
· on application made by the rail or road authority or the Competent Authority within two years of the offender being found guilty of the offence; and
· where the court is satisfied on the balance of probabilities that the commission of the offence caused or contributed to the damage.
Clause 114. Assessment of compensation
New section 114 enables the court to assess the amount of compensation, including the estimated costs to remedy the damage, for a compensation order. The court may have regard to a broad range of evidence, whether or not it was adduced in evidence.
This section provides that where a road or rail authority provides a certificate relating to:
· rail or road authority maintaining the rail or road infrastructure; or
· the rail or road authority’s estimate of the monetary value of infrastructure, costs of remedying damage and the extent of the offender’s contribution to the damage;
it is evidence of those matters. Such a certificate must comply with section 115.
Clause 115. Service of certificates
New section 115 requires the rail or road authority to serve a copy of a certificate used under section 114(2) on an offender within 28 working days before the matter is set down for hearing.
Section 115(2) also outlines the procedure by which an offender may challenge a statement in the certificate.
Clause 116. Limits on amount of compensation
New section 116 provides that where a court is satisfied that factors, not connected to an offence contributed to damage, the court must limit the compensation to an amount that reflects the offender’s contribution to the damage.
The amount of compensation cannot exceed the monetary limit the court is permitted to impose in civil proceedings, and must not include an amount for personal injury or death, loss of income, or damage to property that is not part of the rail or road infrastructure.
Subdivision 3 Costs compensation orders
Clause 117. Recovery of costs
New section 117 empowers a court to order an offender who is found guilty of an offence to pay to the Competent Authority costs reasonably incurred by the Competent Authority in the prosecution of an offence and which is directly related to the investigation of an offence. This is in addition to any other sanction. These costs may include costs of testing, transporting and storing dangerous goods and other evidence.
Subdivision 4 Costs and recovery
Clause 118. Costs
New section 118 provides that a court, when making a compensation order, has the same power to award costs as it has in civil proceedings.
Clause 119. Enforcement of compensation order and award of costs
New section 119 provides that a compensation order and award of costs made by a court has is enforceable as if they were a judgment of the court in civil proceedings.
Clause 120. Relationship with orders or awards of other courts and tribunals
New section 120 provides that a compensation order cannot be made if another court or tribunal has awarded compensatory damages or compensation in civil proceedings for damage based on the same or similar facts.
If the court purports to make such an order it is void to the extent of matters covered in the other award of damages and any payments made must be repaid by the rail or road authority.
This section does not, however, prevent another court or tribunal from making an order for compensation or damages based on the same or similar facts. But the other court or tribunal must take the order into account under this Act when awarding damages.
Part 7 General liability and evidentiary provisions
Division 1 Criminal liability for offences
Clause 121. Definitions
New section 121 defines the “representative” for the purposes of
Division 1.
This section also defines “declared provision” for the purposes of sections 124, 125 and 126 which set out the criminal liability of partners in partnerships, managers of inincorporated associations and executive officers of bodies corporate.
The “declared provisions” are sections:
· 26 (falsely representing to be an authorised officer)
· 50(3) (failing to comply with direction regarding immobilised train)
· 51(5) (failing to comply with direction regarding emergency by person involved in transport of goods by train)
· 57(4) (Failing to comply with direction to produce records etc)
· 59(3) (failing to comply with direction to provide assistance)
· 67(5) (contravening embargo notice)
· 67(7) (failing to prevent another person from contravening embargo notice)
· 68(3) (failing to comply with condition regarding seized thing)
· 79(1) (obstructing authorised officers)
· 80(6) (failing to comply with condition of exemption)
· 83(1), (2) and (3) (failing to hold licence or using unlicenced vehicle)
· 84 (transporting goods too dangerous to be transported)
· 85(1) (failing to ensure goods transported safely)
· 87(1) (contravening improvement notice)
· 94(1) (contravening prohibition notice)
· 95(5) (failing to comply with direction not to do specified act)
· 108 (contravening supervisory intervention order)
· 110 (contravening exclusion order)
· 138(2), (3) and (7) (acts of retaliation for reporting breaches of Act)
· 139(4) (disclosing confidential information)
· 140(1), (2) and (4) (providing misleading information)
and any provision prescribed by regulation.
Clause 122. Liability of representative
New section 122 provides that a person cannot rely on the fact that they are a representative of another person (an executive officer of a body corporate, or an agent of another person) as a defence to a prosecution for an offence under the Act. However, it is a defence if the defendant proves that they were acting as another person’s representative under the direct or indirect supervision of that other person.
Clause 123. Conduct of representative
New section 123 deals with actions taken by representatives of individuals. Criminal responsibility is dealt with in Division 5 of Part IIAA of the Criminal Code.
Conduct engaged in by a representative of a person (for example, an agent of a principal) within that representative’s actual or apparent authority, is taken to have been engaged in by the person. This means the person can be found personally liable for offences committed by their representative.
A defence is available if the person can prove that they took all reasonable steps to prevent the conduct of the representative and section 123(4) sets out the matters that can be taken into account in considering whether a person has taken all reasonable steps.
Where it is necessary to show that the person had a particular fault element (except negligence), it is sufficient to show that the representative who engaged in the physical element had the necessary fault element in relation to a physical element of the offence.
Section 43AX of the Criminal Code excuses a person from criminal responsibility for a strict liability offence where the person engaging in the relevant conduct does so under a mistake of fact. This clause makes that defence available for strict liability offences under the Act where a person’s representative has a mistaken but reasonable belief about facts that, if correct, would have meant that their conduct would not have been an offence, and if the person shows that they exercised due care to prevent the conduct.
Section 43BA of the Criminal Code provides a defence for strict and absolute offences where a physical element of an offence is brought about by an intervening act that is outside the control of the defendant. Section 123(8) removes this defence for strict liability offences under the Act where the intervening act is brought about a representative of the defendant.
Section 123(9) provides that a person, who, under this section, is vicariously liable for the actions of their representative, cannot be punished by imprisonment for the offence.
Clause 124. Criminal liability of partner in partnership
New section 124 provide that partners, and anyone else who is involved in the management of a partnership, may be held personally liable for offences committed by another partner or person involved in the management of the partnership in the course of their partnership in contravention of a declared provision if they:
· were in a position to influence the conduct of the person who committed the offence; and
· failed to take reasonable steps to prevent the offence from occurring.
The prosecution must prove that the partner was reckless about whether the contravention would happen.
This section applies whether or not the offender is prosecuted for or convicted of the offence, but does not apply where the defendant has a defence.
Clause 125. Criminal liability of manager of unincorporated association
New section 125 provides that person involved in the management of an unincorporated association may be held personally liable for an offence committed by other people in the management of the association in the course of that involvement in contravention of a declared provision, if they:
· were in a position to influence the conduct of the person who committed the offence; and
· failed to take reasonable steps to prevent the offence occurring.
The prosecution must prove that the manager was reckless about whether the contravention would happen.
This section applies whether or not the offender is prosecuted for or convicted of the offence, but does not apply where the defendant has a defence.
Clause 126. Criminal liability of executive officer of body corporate
New section 126 provides that an executive officer of a body corporate (a director or someone involved in the management of the body corporate) may be held personally liable for an offence committed by the body corporate in contravention of a declared provision as set out in section 121 if the officer:
· was in a position to influence the conduct of the body corporate; and
· failed to take reasonable steps to prevent the contravention from occurring.
This clause also provides guidance as to what should be taken into account by the court in considering whether a director has taken reasonable steps to prevent a contravention of the Act from occurring.
The factors listed include any action the officer took directed towards ensuring the following (to the extent the action is relevant to the particular contravention):
· regular professional assessments of the body corporate’s compliance with the relevant provision of the Act;
· the implementation of any appropriate recommendations arising from an assessment of the body corporate’s compliance with the relevant provision;
· that all representatives and contractors of the body corporate had a reasonable knowledge and understanding of the requirement to comply with the contravened provision; and
· any action taken by the officer once he or she became aware that the particular contravention was, or might be, about to happen.
This section applies whether or not the body corporate is prosecuted, or convicted of the relevant offence, but does not apply if the body corporate has a defence.
Division 2 Special defences
Clause 127. Special defence for owners or operators
New section 127 provides for a defence for a defendant who is an owner or operator of a vehicle transporting dangerous goods if prosecuted for an offence. In order to make out this defence, the defendant must establish the vehicle was used at the time of the offence by:
· another person (not an employee or agent of the defendant) who was not entitled to use it; or
· an employee or agent of the defendant who was acting outside the scope of their employment.
Where the offence relates to deficiencies concerning the vehicle the defendant must prove that an agent of the vehicle or dangerous goods, before they ceased to be under the defendant’s control, had not been driven or transported in Australia in breach of the Act, and one or more material changes, resulting in the alleged breach, had been made to the vehicle or dangerous goods after the vehicle or dangerous goods had ceased to be under the defendant’s control.
Clause 128. Special defence of compliance with direction
New section 128 provides that it is a defence to the prosecution of an offence if the defendant proves that conduct constituting the offence was done in compliance with a direction given by an authorised officer or police officer.
Division 3 General evidentiary provisions
Clause 129. Evidence
New section 129 provides that in a proceeding for an offence, a statement by an authorised officer about the authorised officer’s belief about certain matters listed in section 129 (1)(a) to (i) is evidence of those matters. This section also provides that in proceedings for an offence, a document signed by or on behalf of the Competent Authority about matters in section 129(2)(a) to (c) is evidence of those matters.
Clause 130. Evidence regarding weighing
New section 130 provides that evidence of a record made by the operator or employee of an operator of a weighbridge or weighing of the mass of a vehicle or container weighed at the weighbridge or weighing facility will be admissible in proceedings as evidence of the mass of the vehicle or container at the time it was weighed.
Clause 131. Proof of appointment and signatures necessary
New section 131 clarifies that it is unnecessary to prove the appointment of an authorised officer and that a signature purporting to be a signature of an authorised officer.
Clause 132. Transport documentation
New section 132 provides that transport documentation is admissible in proceedings for this Act as evidence of the identity and status of the parties to the transaction and the destination or intended destination of the load. Transport documentation is defined in section 7 of the Act.
Clause 133. Use of codes of practice etc. in proceedings
New section 133 provides that if a person is alleged to have committed an offence against a provision of this Act and the Australian Transport Council has published in the Gazette a code of practice, guideline or document specifying a means of complying with the provision (the subject of the offence) the code of practice, guideline or document is admissible, and the court may find the person has complied with the provision.
Part 8 Other matters
Division 1 Indemnities
Clause 134. Protection from liability
New section 134 provides protection from civil liability for authorised officers or persons authorised under the Act for acts or omissions done honestly and in good faith in the course of their duties. Instead, liability attaches to the Competent Authority.
Clause 135. Indemnity not affected by certain matters
New section 135 provides that an indemnity under Division 1 (such as under section 134) is not affected merely because the vehicle was not carrying dangerous goods or if the goods were not dangerous.
Clause 136. Other indemnities not affected
New section 136 outlines that Division 1 does not affect any other indemnity that exists under another Territory law and which is consistent with this Division.
Division 2 General matters
Clause 137. Review of decision
New section 137 provides a right of review for certain decisions made by the Competent Authority under the sections of the Act listed in subsection 137(1)(a) to (j). The regulations may prescribe a system of review.
Clause 138. Acts of retaliation for reporting breaches
New section 138 creates an offence where an employer dismisses an employee, injures an employee in relation to the employment or alters an employee’s position to their detriment in retaliation against the employee:
· assisting or providing information in relation to a breach or alleged breach of the Act; or
· making a complaint about a breach or alleged breach of the Act to the employer, another employee, trade union or public agency.
This offence provision also applies to prospective employees if the prospective employer refuses or omits to offer employment to a prospective employee or treats a prospective employee less favourably than another prospective employee and the employee has:
· assisted or provided information in relation to a breach or alleged breach of the Act; or
· made a complaint about a breach or alleged breach of the Act to the employer, another employee, trade union or public agency.
The court may impose, in addition to a penalty, an order that the offender pay compensation to the employee, or reinstate or cause a prospective employee to be employed in the position which they had applied.
Clause 139. Confidentiality
New section 139 imposes a duty of confidentiality which applies to current or former delegates, employees or persons engaged to provide services to the Competent Authority. It is an offence for those persons to recklessly disclose information obtained in the administration of the Act. However, there are some circumstances where disclosure may be authorised by the Act as outlined in subsection 139(2)(a) to (h).
Clause 140. Misleading information
New section 140 creates an offence to intentionally give misleading information or provide a document containing misleading information to a Competent Authority or authorised officer exercising powers under this Act.
No offence will be committed in relation to the provision of a document, where the person draws attention to the misleading information and provides information necessary to remedy the misleading aspect of the document.
Clause 141. Contracting out prohibited
New section 141 makes clear that any contract or agreement which excludes, limits or modifies the operation of this Act is void to the extent that it would otherwise have effect.
Clause 142. Recovery of costs of public authorities
New section 142 allows a public authority to recover costs by way of court action as a result of an incident that involves the escape of dangerous goods or an explosion or fire involving dangerous goods.
The section specifies that costs are recoverable from:
· the person who owned, controlled or possessed the dangerous goods at the time of the incident;
· the person who caused the incident; or
· the person responsible, otherwise than as an employee, agent or subcontractor of another person, for the transport of dangerous goods.
However, costs are not recoverable from a person who establishes that:
· the incident was due to the act or omission of another person; and
· the person could not, exercising reasonable care, have prevented the incident; and
· the incident was not attributable to an employee, agent or subcontractor of the person.
Clause 143. Assistance in emergencies or accidents
New section 143 provides that a person who assists in an emergency situation or accident involving dangerous goods is not civilly liable for an act done honestly, in good faith and without reward. However, this section does not apply to an authorised officer, or person whose act or omission wholly or partly caused the emergency or accident.
Clause 144. Minister to notify adoption of code etc
New section 144 requires the Minister to publish in the Government Gazette a notice giving details of where copies of a code, standard or rule can be obtained or inspected.
Similarly, the a notice must be published regarding any amendment or replacement of a code, standard or rule, and details of where it may be obtained or inspected.
Clause 145. Delegation
New section 145 empowers the Minister to delegate all or any of the Minister’s powers under this Act to the Competent Authority, except for the powers conferred under section 82 of this Act.
Clause 146. Acquisition on just terms
New section 146 applies to the acquisition of property under this Act. The section provides that compensation may be payable to a person if the operation of the Act results in an acquisition of property otherwise than on just terms.
Division 3 Regulations, codes and standards and rules
Clause 147. Powers to make regulations and adoption of codes and standards
New section 147 empowers the Administrator to make regulations and outlines the matters which may be the subject of a regulation. These matters are numerous and are listed in subsection 147(2)(a) to (z).
The regulations may adopt a code, standard or rule relating to dangerous goods, and prescribe a substance or article as being a dangerous good.
The regulations may also stipulate that a matter affected by the regulations be approved by a specified person or confer discretionary authority or impose a duty on specified persons.
Clause 148. Penalties under the regulations
New section 148 provides that the regulations may create offences, including strict liability offences. The section also outlines that maximum penalties that may be prescribed for an offence is 200 penalty units for an individual or 1000 penalty units for a body corporate.
Clause 149. Transitional regulations
New section 149 allows matters of a transitional nature to be included in the regulations. The regulations can have retrospective operation to a day not earlier than the commencement day.
Division 4 Transitional matters for Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act 2010
Clause 150. Definitions
New section 150 defines the terms “commencement day” and “former Act”.
Clause 151. Savings – authorised officers
New section 151 is a savings provision. It allows a person whose appointment as an authorised officer under the repealed Act (defined in section 150 as the Dangerous Goods (Road and Rail Transport) Act) to be appointed as an authorised officer under this Act.
It also provides that an identification card under the former Act is taken to be an identification card under this Act.
Division 5 Repeal and consequential amendments
Clause 152. Repeal
New section 152 confirms that the Dangerous Goods (Road and Rail Transport) Act 2003 (Act No. 19 of 2003) is repealed.
Clause 153. Amendment of Dangerous Goods Act
New section 153 amends the Dangerous Goods Act by substituting references to the former Act with the name of this Act.
Clause 154. Amendment of Dangerous Goods Regulations
New section 154 amends the Dangerous Goods Regulations to incorporate the Australian Code for the Transport of Dangerous Goods by Road and Rail (AGD Code) Seventh Edition.
Clause 155. Amendment of Fines and Penalties (Recovery) Regulations
New section 155 amends the Fines and Penalties (Recovery) Regulations to refer to the Dangerous Goods (Road and Rail Transport) Act.
Clause 156. Expiry of Division
New section 156 provides that this Division expires on the day after this Act commences.
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