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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
DANGEROUS GOODS (ROAD AND RAIL
TRANSPORT) BILL 2009
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Purpose
4. Definitions
4A. Meaning of associate
4B. Meaning of consign and consignor
4C. Meaning of pack and packer
4D. Meaning of load and loader
4E. Meaning of operator
4F. References to rolling stock
4G. Meaning of qualified, fit or authorised to drive or to run an
engine
4H. Meaning of unattended vehicle and driver of disconnected trailer
4I. Meaning of broken down, in relation to vehicles
4J. Road and road-related areas
4K. Examples
4L. Notes
5. Binding the Crown
[Bill 66]-VI
6. Application of Commonwealth Acts Interpretation Act
7. Scope of this Act
PART 2 - REGULATIONS
8. Powers to make regulations and adoption of codes and standards
9. Penalties under the regulations
10. Applications for review
PART 3 - COMPETENT AUTHORITIES AND AUTHORISED
OFFICERS
Division 1 - Appointment and arrangements
11. Appointment of Competent Authorities
12. Appointment of authorised officers
13. Identity cards
14. Return of identity cards
15. Impersonating authorised officers
16. Competent Authority may delegate powers
17. Competent Authority may provide information to corresponding
authority
18. Reciprocal powers of authorised officers
Division 2 - General powers - road vehicles
Subdivision 1 - Application
19. Application of Division
Subdivision 2 - Directions in respect of road vehicles
20. Direction to stop road vehicle
21. Direction to move road vehicle
22. Direction to produce documents
23. Direction to move road vehicle in case of danger or obstruction
24. Direction to leave vehicle
Subdivision 3 - Other powers in respect of road vehicles
25. Moving unattended road vehicle to enable exercise of other
powers
26. Powers of authorised officers - inspection
2
27. Powers of authorised officers - searches
28. Moving unattended or broken down road vehicle where danger
or obstruction
29. Powers of authorised officers - immobilised road vehicle
30. Powers of authorised officers in emergencies
31. Authorisation not required for driving under this Division
Division 3 - Directions in respect of rolling stock and trains
Subdivision 1 - Application
32. Application
Subdivision 2 - Power to give directions in respect of rolling stock and trains
33. Powers of authorised officers - rail operators
34. Powers of authorised officers - train drivers
35. Powers of authorised officers - others
36. Powers of authorised officers - documents
Subdivision 3 - Other powers in respect of trains
37. Powers of authorised officers - inspection
38. Powers of authorised officers - search
39. Powers of authorised officers - immobilised train
40. Powers of authorised officers in emergencies
Division 4 - Powers to inspect and search premises
Subdivision 1 - Preliminary
41. Application
42. Residential purposes
Subdivision 2 - Power to search premises
43. Power to inspect premises
44. Power to search premises
Division 5 - Other directions
45. Direction to give name and other personal details
46. Direction to produce records, devices or other things
47. Direction to provide information
3
48. Direction to provide reasonable assistance for powers of
inspection and search
Division 6 - Provisions regarding inspections and searches
49. Warrants
50. Use of assistants and equipment
51. Use of equipment to examine or process things
52. Use or seizure of electronic equipment
52A. Sample-taking procedure
Division 7 - Other provisions regarding seizure
53. Receipt for and access to seized material
54. Embargo notices
Division 8 - Miscellaneous
55. Limit on use of force
56. Consent
57. Manner of giving directions under this Part
58. Directions to state when to be complied with
59. Directions may be given under more than one provision
60. Restoring vehicle or premises to original condition after action
taken
61. Self-incrimination no excuse
62. Providing evidence to other authorities
63. Obstructing or hindering authorised officers
PART 4 - EXEMPTIONS
64. Exemptions
65. Variation and cancellation of exemptions and conditions
66. Review of exemption &c.
67. Application orders and emergency orders
PART 5 - OFFENCES AND PENALTIES
68. Reserved
69. Failure to hold licence &c.
70. Goods too dangerous to be transported
4
71. Duties concerning transport of dangerous goods
PART 6 - GENERAL ADMINISTRATIVE SANCTIONS
Division 1 - Improvement notices
72. Improvement notices
73. Contravention of improvement notice
74. Amendment of improvement notices
75. Cancellation of improvement notices
76. Clearance certificates
Division 2 - Formal warnings
77. Formal warnings
78. Withdrawal of formal warnings
Division 3 - Infringement notices
79. Infringement notices
PART 7 - GENERAL COURT-BASED SANCTIONS
Division 1 - Proceedings for offences
80. Proceedings for offences
81. Proceedings for an offence may be brought by authorised
officers
82. Period within which proceedings for offences may be
commenced
Division 2 - Available sanctions
83. Sanctions imposed by courts
Division 3 - Fines
84. Reserved
Division 4 - Commercial benefits penalty orders
85. Commercial benefits penalty orders
Division 5 - Licensing and registration sanctions
86. Power to affect licences
87. Power to affect road vehicle registration
Division 6 - Supervisory intervention orders
88. Supervisory intervention orders
5
89. Contravention of supervisory intervention order
Division 7 - Exclusion orders
90. Exclusion orders
91. Contravention of exclusion order
Division 8 - Forfeiture orders
92. Forfeiture
PART 8 - COMPENSATION ORDERS
Division 1 - Definitions
93. Definitions
93A. Compensation orders
Division 2 - General compensation orders
94. Compensation orders for damage to rail or road infrastructure
95. Assessment of compensation
96. Service of certificates
97. Limits on amount of compensation
Division 3 - Costs compensation orders
98. Recovery of costs
Division 4 - Costs and recovery
99. Costs
100. Enforcement of compensation order and costs
101. Relationship with orders or awards of other courts and tribunals
PART 9 - GENERAL LIABILITY AND EVIDENTIARY PROVISIONS
Division 1 - Basis of liability for offences
102. Multiple offenders
103. Double jeopardy
104. Liability of directors, partners, employers and others for offences
by bodies corporate, partnerships, associations and employees
105. Complicity and common purpose (aiding and abetting)
106. Causing or permitting
107. Coercing, inducing or offering incentive
6
Division 2 - General defences
108. Sudden or extraordinary emergency
109. Lawful authority
110. Other defences
Division 3 - Special defences
111. Special defence for owners or operators
112. Special defence of compliance with direction
Division 4 - General evidentiary provisions
113. Vicarious responsibility
114. Evidence
115. Evidence regarding weighing
116. Proof of appointments and signatures unnecessary
117. Transport documentation
118. Use of codes of practice &c. in proceedings
PART 10 - PROHIBITION NOTICES
119. Definition
120. Prohibition notice may be served
121. Prohibition notice
122. Contravention of prohibition notice
123. Oral direction may be given before prohibition notice is served
124. Withdrawal of prohibition notice
125. Amendment of prohibition notice
126. Proceedings for offence not affected by prohibition notice
PART 11 - MISCELLANEOUS
Division 1 - Indemnities
127. Protection from liability
128. Indemnity not affected by certain matters
129. Other indemnities not affected
7
Division 2 - General
130. Dismissal or other victimisation of employee or contractor
assisting with or reporting breaches
131. Confidentiality
132. False or misleading statements or records provided to Authority
or officials
133. Contracting out prohibited
134. Recovery of costs of public authorities
135. Assistance in emergencies or accidents
136. Minister to notify adoption of code &c.
137. Delegation
138. Administration of Act
139. Consequential amendments
140. Legislation repealed
141. Legislation rescinded
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
SCHEDULE 2 - LEGISLATION REPEALED
SCHEDULE 3 - LEGISLATION RESCINDED
8
DANGEROUS GOODS (ROAD AND RAIL
TRANSPORT) BILL 2009
(Brought in by the Minister for Workplace Relations, the
Honourable Lisa Maria Singh)
A BILL FOR
An Act to regulate by nationally consistent legislation the
transport of dangerous goods by road and rail in order to
promote public safety and protect property and the
environment, to repeal the Dangerous Goods (Safe
Transport) Act 1998 and for related and consequential
purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Dangerous Goods
(Road and Rail Transport) Act 2009.
2. Commencement
The provisions of this Act commence on a day to
be proclaimed.
[Bill 66] 9
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 3 Part 1 - Preliminary
3. Purpose
(1) The purpose of this Act is to regulate the
transport of dangerous goods by road and rail in
order to promote public safety and protect
property and the environment.
(2) It is the intention of Parliament that the purpose
of this Act will be achieved in the context of
nationally consistent road and rail transport laws,
having regard to regional and modal differences.
4. Definitions
(1) In this Act, unless the contrary intention
appears -
"associate" has the meaning given by
section 4A;
"authorised", in relation to the driving of a
vehicle or the running of an engine, has
the meaning given by section 4G(3);
"authorised officer" means an authorised
officer appointed under section 12;
"broken down" has the meaning given by
section 4I;
"combination" means a road vehicle
consisting of a vehicle with a motor and
one or more trailers;
10
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4
"Competent Authority" means the relevant
Competent Authority appointed under
section 11;
"compliance purposes" has the meaning
given by subsection (2);
"consigns" has the meaning given by
section 4B;
"consignor" has the meaning given by
section 4B;
"corresponding authority" means a
Competent Authority appointed under a
corresponding law;
"corresponding law" means -
(a) a law of another jurisdiction
corresponding, or substantially
corresponding, to this Act; or
(b) a law of another jurisdiction that
is declared under the regulations
to be a corresponding law,
whether or not the law
corresponds, or substantially
corresponds, to this Act;
"dangerous goods" means -
(a) a substance or article prescribed
as dangerous goods; or
(b) a substance or article determined
by the Competent Authority, in
11
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4 Part 1 - Preliminary
accordance with the regulations,
to be dangerous goods;
"dangerous situation" means a situation that
is causing, or is likely to cause, imminent
risk of death or serious injury to a person,
significant harm to the environment or
significant damage to property;
"driver", of a vehicle, includes -
(a) a two-up driver of the vehicle
who is present in or near the
vehicle; and
(b) a person who is driving the
vehicle as a driver under
instruction or under an
appropriate learner licence or
learner permit; and
(c) if the vehicle is a unit of rolling
stock forming part of a train but
is not its locomotive, the driver of
the train; and
(d) if the vehicle is a trailer, the
driver of the motor vehicle
towing the trailer;
"driver licence" means a licence (including a
probationary and a conditional licence)
issued under a State law authorising the
licensee to drive a road vehicle, but does
not include -
(a) a licence issued under this Act; or
12
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4
(b) a provisional or learner licence;
"employee" means an individual who works
under a contract of employment,
apprenticeship or training;
"employer" means a person who employs
persons under -
(a) contracts of employment,
apprenticeship or training; or
(b) contracts for services;
"fit", in relation to the driving of a vehicle,
has the meaning given by section 4G(2);
"goods too dangerous to be transported"
means -
(a) a substance or article prescribed
as goods too dangerous to be
transported; or
(b) a substance or article determined
by the Competent Authority, in
accordance with the regulations,
to be goods too dangerous to be
transported;
"government authority" means -
(a) a department or an administrative
unit of the public service; or
(b) an agency or instrumentality of
the Crown; or
13
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4 Part 1 - Preliminary
(c) a local government body; or
(d) the Competent Authority;
"identity card" means a card -
(a) issued to an authorised officer
under section 12(4); or
(b) issued under another Act with an
endorsement under section 12(5);
"improvement notice" means an
improvement notice issued under
section 72;
"involvement in the transport of dangerous
goods" includes -
(a) importing, or arranging for the
importation of, dangerous goods
into Australia; and
(b) packing dangerous goods for
transport; and
(c) marking or labelling packages
containing dangerous goods for
transport and placarding vehicles
and packaging on or in which
dangerous goods are transported;
and
(d) consigning dangerous goods for
transport, including the
preparation of transport
documentation; and
14
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4
(e) loading dangerous goods for
transport or unloading dangerous
goods that have been transported;
and
(f) undertaking, or being responsible
for, otherwise than as an
employee or subcontractor, the
transport of dangerous goods; and
(g) driving a vehicle carrying
dangerous goods; and
(h) being the consignee of dangerous
goods that are transported; and
(i) being involved as a director,
secretary or manager of a body
corporate, or other person who
takes part in the management of a
body corporate, that takes part in
an activity covered by this
definition;
"intelligent transport system" means a
system involving the use of electronic or
other technology (whether located in or
on a vehicle, or on or near a road or rail,
or elsewhere) that has the capacity and
capability to monitor, collect, store,
display, analyse, transmit or report
information relating to -
(a) a vehicle or its equipment or load,
the driver of a vehicle, the
operator of a fleet of vehicles or
15
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4 Part 1 - Preliminary
another person involved in road
or rail transport; and
(b) without limiting the above,
whether a vehicle is being
operated in conformity with this
Act and authorisations issued
under it;
"journey" means the transport of dangerous
goods from where the goods are
consigned to where the goods are
delivered to the consignee;
"jurisdiction" means the Commonwealth or a
State;
"load" has the meaning given by section 4D;
"loader" has the meaning given by
section 4D;
"offence" means an offence against this Act;
"operator" has the meaning given by
section 4E;
"owner", in respect of a vehicle, means a
person who -
(a) is the sole owner, a joint owner or
a part owner of the vehicle; or
(b) has possession or use of the
vehicle under a credit, hire-
purchase, lease or other
agreement, except an agreement
requiring the vehicle to be
16
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4
registered in the name of
someone else;
"pack" has the meaning given by section 4C;
"package", in relation to goods, means the
complete product of the packing of the
goods for transport and consists of the
goods and their packaging;
"packaging", in relation to goods, means
anything that contains, holds, protects or
encloses the goods, whether directly or
indirectly, to enable them to be received
or held for transport, or to be transported,
and includes anything prescribed by the
regulations to be packaging;
Note It may be that the container constitutes the whole of the
packaging, as in the case of a drum, in which dangerous goods
are directly placed. Unlike in United Nations publications
relating to the transport of dangerous goods, the term packaging
is used in this Act in its ordinary meaning.
"packer" has the meaning given by
section 4C;
"placard" means a label or emergency
information panel that is required by the
regulations to be used in the transporting
of dangerous goods;
"premises" includes a structure, whether
permanent or temporary, and land, but
does not include a vehicle;
17
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4 Part 1 - Preliminary
"prime contractor", in respect of the
transport of dangerous goods by road,
means the person who, in conducting a
business for or involving the transport of
dangerous goods by road, has undertaken
to be responsible for, or is responsible
for, the transport of the goods by road;
"public authority" means -
(a) the Crown in any capacity; or
(b) a body established by or under
law, or the holder of an office
established by or under law, for a
public purpose, including a local
government authority; or
(c) a police force or police service;
"public place" includes a place -
(a) of public resort open to or used
by the public as of right; or
(b) for the time being -
(i) used for a public purpose;
or
(ii) open to access by the
public -
whether on payment or otherwise;
or
(c) open to access by the public by
the express or tacit consent or
18
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4
sufferance of the owner of that
place, whether the place is or is
not always open to the public;
"qualified", in relation to the driving of a
vehicle, has the meaning given by
section 4G(1);
"rail operator", in respect of the transport of
dangerous goods by rail, means the
person who has undertaken to be
responsible, or is responsible, for -
(a) the transport of the goods by rail;
or
(b) the condition of a unit of rolling
stock transporting the goods;
"residential purposes" has the meaning
given by section 42;
"road" has the meaning given by section 4J;
"road-related area" has the meaning given
by section 4J;
"road law" means the Traffic Act 1925 and
the Vehicle and Traffic Act 1999;
Note This definition of road law includes all regulations, rules and by-
laws made under the two Acts. In particular, road law includes
the Road Rules.
"State" includes a Territory;
"this Act" includes the regulations;
19
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4 Part 1 - Preliminary
"trailer" means a road vehicle that is
designed to be towed, or is towed, by
another road vehicle but does not include
a road vehicle propelled by a motor that
forms part of that vehicle;
"train" means 2 or more units of rolling stock
(at least one unit of which is a
locomotive or self-propelled unit) that
are coupled together;
"transport", in relation to dangerous goods,
includes -
(a) the packing, loading and
unloading of the goods, and the
transfer of the goods to or from a
vehicle, for the purpose of their
transport; and
(b) the marking or labelling of
packages containing dangerous
goods, and the placarding of
vehicles and packaging in or on
which dangerous goods are
transported; and
(c) other matters incidental to their
transport;
"transport documentation" means
documentation required by the
regulations for the transport of dangerous
goods;
"two-up driver" means a person
accompanying a driver of a vehicle on a
20
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4A
journey or part of a journey, who has
been, is or will be sharing the task of
driving the vehicle during the journey;
"unit of rolling stock" means a conveyance
that is designed to run on rails while it is
on a railway track;
"vehicle" means -
(a) a road vehicle, including a
combination; or
(b) a unit of rolling stock;
"warrant" means a warrant issued under
section 49.
(2) For the purposes of this Act, a power to give a
direction or to inspect a vehicle or premises or to
search premises is exercised for compliance
purposes if the power is exercised -
(a) to find out whether this Act is being
complied with; or
(b) to investigate an offence or suspected
offence.
4A. Meaning of associate
(1) A person is an associate of another person if -
(a) he or she is a spouse, parent, brother,
sister or child of the other person; or
21
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4B Part 1 - Preliminary
(b) they are members of the same household;
or
(c) they are partners; or
(d) they are both trustees or beneficiaries of
the same trust, or one is a trustee and the
other is a beneficiary of the same trust; or
(e) one is a body corporate and the other is a
director or member of the governing
body of the body corporate; or
(f) one is a body corporate (other than a
public company whose shares are listed
on the stock exchange) and the other is a
shareholder in the body corporate; or
(g) they are related bodies corporate within
the meaning of the Corporations Act
2001 of the Commonwealth; or
(h) a chain of relationships can be traced
between them under any one or more of
the above paragraphs.
(2) For the purposes of subsection (1), a beneficiary
of a trust includes an object of a discretionary
trust.
4B. Meaning of consign and consignor
(1) A person consigns dangerous or other goods for
transport, and is the consignor of the goods, if -
(a) subsection (2) applies to the person; or
22
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4B
(b) subsection (2) does not apply to the
person or anyone else, but subsection (3)
applies to the person; or
(c) subsections (2) and (3) do not apply to
the person or anyone else, but
subsection (4) applies to the person.
(2) This subsection applies to a person who, with the
person's authority, is named or otherwise
identified in transport documentation as the
consignor of the goods.
(3) This subsection applies to a person who -
(a) engages a prime contractor or rail
operator, either directly or through an
agent or other intermediary, to transport
the goods; or
(b) if paragraph (a) does not apply, has
possession of, or control over, the goods
in this jurisdiction immediately before
the goods are transported; or
(c) if neither paragraph (a) nor (b) applies,
loads a vehicle with the goods, for
transport, at a place -
(i) where dangerous goods are
awaiting collection; and
(ii) that is unattended (except by the
driver) during loading.
(4) This subsection applies to a person if -
23
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4C Part 1 - Preliminary
(a) the goods are imported into Australia;
and
(b) the person is the importer of the goods.
4C. Meaning of pack and packer
A person packs dangerous or other goods for
transport, and is a packer of the goods, if the
person -
(a) puts the goods in the packaging (even if
that packaging is already on a vehicle);
or
(b) assembles, places or secures packages in
packaging designed to hold, enclose or
otherwise contain more than one package
(even if that packaging is already on a
vehicle); or
(c) supervises an activity mentioned in
paragraph (a) or (b); or
(d) manages or controls an activity
mentioned in paragraph (a), (b) or (c).
Note For example, a person who uses a hose to fill the tank of a tank
vehicle with petrol packs the petrol for transport for the purposes
of this Act.
24
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4D
4D. Meaning of load and loader
(1) A person loads dangerous or other goods for
transport, and is a loader of the goods, if the
person -
(a) loads one or more packages of the goods
in or on a vehicle; or
(b) places or secures one or more packages
of the goods on a vehicle; or
(c) supervises an activity mentioned in
paragraph (a) or (b); or
(d) manages or controls an activity
mentioned in paragraph (a), (b) or (c).
(2) Subsection (1) does not apply to the loading of
goods into packaging that is already on a vehicle
nor to the placing or securing of packages in or
on a further packaging that is already on a
vehicle.
4E. Meaning of operator
(1) A person is the operator of a vehicle if -
(a) in the case of a vehicle (including a
vehicle in a group of vehicles that are
physically connected), the person is
responsible for controlling or directing
the operations of the vehicle; or
(b) in the case of a group of vehicles that are
physically connected, the person is
25
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4F Part 1 - Preliminary
responsible for controlling or directing
the operations of the towing vehicle in
the group.
(2) A person is not an operator merely because the
person owns a vehicle or does any or all of the
following:
(a) drives a vehicle;
(b) maintains or arranges for the
maintenance of a vehicle;
(c) arranges for the registration of a vehicle.
4F. References to rolling stock
For the purposes of this Act, rolling stock that is
designed to operate or be used on the road or on
a railway track is rolling stock only while it is
being operated or used on a railway track.
4G. Meaning of qualified, fit or authorised to drive or to
run an engine
(1) For the purposes of this Act, a person is qualified
to drive a vehicle or to run its engine if he or
she -
(a) holds a driver licence of the appropriate
class to drive the vehicle, and the driver
licence is not suspended; and
(b) is not prevented by or under a law
(including, for example, by the
26
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4G
conditions of the licence) from driving
the vehicle at the relevant time.
(2) For the purposes of this Act, a person is fit to
drive a vehicle or to run its engine if he or she -
(a) is apparently physically and mentally fit
to drive the vehicle; and
(b) without limiting the above, is not
apparently affected by either or both -
(i) alcohol; or
(ii) any drug that affects his or her
fitness to drive; and
(c) does not at the time have a concentration
of alcohol in his or her blood that
exceeds the amount permitted by a law of
Tasmania; and
(d) does not at the time have a concentration
of a drug, that affects his or her fitness to
drive, in his or her blood or oral fluid that
exceeds the amount permitted by a law of
Tasmania.
(3) For the purposes of this Act, a person is
authorised -
(a) to drive a vehicle if he or she is its
operator or has the authority of the
operator to drive it; or
(b) to run the engine of a vehicle if he or she
is its operator or has the authority of the
27
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 4H Part 1 - Preliminary
operator to drive the vehicle or to run the
engine -
regardless of whether or not he or she is
qualified to drive the vehicle or to run its engine.
4H. Meaning of unattended vehicle and driver of
disconnected trailer
(1) For the purposes of this Act, a vehicle is
unattended if -
(a) where the authorised officer concerned -
(i) is present at the scene, there is,
after inspection and enquiry by
the officer that is reasonable in
the circumstances, apparently no
person in, on or in the vicinity of
the vehicle who appears to be a
driver of the vehicle; or
(ii) is not present at the scene but is
able to inspect the scene by
means of a camera or other
remote surveillance system, there
is, after inspection by the officer
that is reasonable in the
circumstances, apparently no
person in, on or in the vicinity of
the vehicle who appears to be a
driver of the vehicle; or
(b) where there is apparently such a person
in, on or in the vicinity of the vehicle, the
28
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 1 - Preliminary s. 4I
officer believes on reasonable grounds
that -
(i) the person is not qualified, not fit
or not authorised to drive it; or
(ii) the person is or appears to be
unwilling to drive it; or
(iii) the person is subject to a
direction under section 24
(Direction to leave vehicle) in
relation to the vehicle.
(2) A reference in this Part to the driver of a vehicle
is, in a case where the vehicle is a trailer and is
not connected (either directly or by one or more
other trailers) to a towing vehicle, a reference to
the driver of the towing vehicle of the
combination to which the trailer was, or
apparently was, last connected.
4I. Meaning of broken down, in relation to vehicles
For the purposes of this Act -
(a) a motor 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; and
(b) a trailer is broken down if it is not
connected (either directly or by one or
more other trailers) to a towing vehicle,
whether or not the trailer is also disabled
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s. 4J Part 1 - Preliminary
through damage, mechanical failure or
any similar reason.
4J. Road and road-related areas
(1) Each reference in this Act to a road includes a
reference to a road-related area.
(2) Road and road-related area have the same
meanings as they have in the Traffic (Road
Rules) Regulations 1999.
4K. Examples
(1) Examples are part of this Act and the
regulations.
(2) An example of the operation of a provision of
this Act or the regulations -
(a) is not exhaustive; and
(b) may extend the meaning of the provision;
and
(c) does not limit the meaning of the
provision, unless the contrary intention
appears.
4L. Notes
(1) Notes that are at the foot of a provision are part
of this Act and the regulations.
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Dangerous Goods (Road and Rail Transport) Act 2009
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Part 1 - Preliminary s. 5
(2) Marginal notes, footnotes at the bottom of a page
and endnotes are not part of this Act or the
regulations.
5. Binding the Crown
(1) This Act binds the Crown in right of this
jurisdiction and, in so far as the legislative power
of Parliament permits, the Crown in all its other
capacities.
(2) Nothing in this Act renders the Crown liable to
be prosecuted for an offence.
6. Application of Commonwealth Acts Interpretation
Act
(1) The Acts Interpretation Act 1901 of the
Commonwealth applies to the interpretation of
this Act, except that Gazette and Minister have
the same meaning as in the Acts Interpretation
Act 1931.
(2) This section does not prevent the Acts
Interpretation Act 1931 from applying to the
interpretation of this Act to the extent that it can
do so consistently with the application of the
provisions of the Acts Interpretation Act 1901 of
the Commonwealth.
(3) This section has effect subject to section 4.
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s. 7 Part 1 - Preliminary
7. Scope of this Act
(1) This Act does not apply to -
(a) dangerous goods that are, or form part of,
personal safety equipment of persons in a
vehicle transporting dangerous goods;
and
(b) dangerous goods that are in a container
that is designed to form part of, and
forms part of, the fuel or battery system
of a vehicle's engine, auxiliary engine,
fuel-burning appliance or other part of a
vehicle's propulsion equipment.
(2) The sections of this Act have effect despite any
other law.
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Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 2 - Regulations s. 8
PART 2 - REGULATIONS
8. Powers to make regulations and adoption of codes
and standards
(1) The Governor may make regulations prescribing
matters -
(a) required or permitted to be prescribed by
this Act; or
(b) necessary or convenient to be prescribed
for carrying out or giving effect to this
Act.
(2) Without limiting the generality of subsection (1),
the regulations may make provision relating to
one or more of the following:
(a) identifying and classifying goods as
dangerous goods and the identification
and classification of dangerous goods;
(b) identifying, classifying and regulating
goods that are too dangerous to be
transported, including prohibiting the
transport of such goods;
(c) the making of determinations by the
Competent Authority in relation to -
(i) the identification and
classification of goods as
dangerous goods; and
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Dangerous Goods (Road and Rail Transport) Act 2009
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s. 8 Part 2 - Regulations
(ii) the identification and
classification of dangerous goods;
and
(iii) the specification, for transport
purposes, of what is, and what is
not, compatible with dangerous
goods; and
(iv) prohibiting or regulating the
transport of dangerous goods by
road or rail; and
(v) regulating the containment of
dangerous goods that are being,
or that are to be, transported by
road or rail;
(d) the analysis and testing of dangerous
goods;
(e) fees that are to be paid for things done
under this Act;
(f) the marking and labelling of packages
containing dangerous goods for transport
and the placarding of containers, vehicles
and packaging on or in which dangerous
goods are transported;
(g) containers, vehicles, packaging,
equipment and other items used in the
transport of dangerous goods;
(h) the manufacture of containers, vehicles,
packaging, equipment and other items for
use in the transport of dangerous goods;
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Dangerous Goods (Road and Rail Transport) Act 2009
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Part 2 - Regulations s. 8
(i) accreditation schemes, including
privileges to be accorded or sanctions to
be imposed under the schemes and the
cancellation or suspension of the
schemes;
(j) the loading of dangerous goods for, and
the unloading of dangerous goods after,
their transport;
(k) the determination by the Competent
Authority of routes along which, the
areas in which and the times during
which dangerous goods may or may not
be transported;
(l) procedures for the transport of dangerous
goods, including -
(i) the quantities and circumstances
in which dangerous goods, or
particular types of dangerous
goods, may be transported; and
(ii) safety procedures and equipment
required;
(m) the licensing of -
(i) vehicles and drivers for the
purpose of the transport of
dangerous goods; and
(ii) persons involved in the transport
of dangerous goods or for
vehicles used in that transport;
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Dangerous Goods (Road and Rail Transport) Act 2009
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s. 8 Part 2 - Regulations
(n) the mandatory accreditation of persons
involved in the transport of dangerous
goods or particular aspects of that
transport;
(o) the approval by the Competent Authority
of the form in which applications are to
be made to the Authority, and the form in
which documents are to be issued by the
Authority, for the purposes of the
regulations;
(p) the approval by the Competent Authority
of -
(i) vehicles, packaging, equipment
and other items used in relation to
the transport of dangerous goods;
and
(ii) facilities for, and methods of,
testing or using vehicles,
packaging, equipment and other
items used in relation to the
transport of dangerous goods; and
(iii) processes carried out in relation
to the transport of dangerous
goods;
(q) documents required to be prepared or
kept by persons involved in the transport
of dangerous goods and the approval by
the Competent Authority of alternative
documentation;
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Dangerous Goods (Road and Rail Transport) Act 2009
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Part 2 - Regulations s. 8
(r) obligations arising, and procedures to be
followed, in the event of a dangerous
situation in relation to the transport of
dangerous goods;
(s) the training and qualifications required of
authorised officers and other persons
performing functions under this Act;
(t) the training and qualifications required of
persons involved in, and the approval of
training courses and qualifications
relating to involvement in, the transport
of dangerous goods;
(u) the recognition of laws of other
jurisdictions relating to the transport of
dangerous goods and of things done
under those laws, and the giving of effect
to those things;
(v) infringement notices, and documents and
costs relating to infringement notices;
(w) the recognition of a body, consisting of
the Competent Authority and other
equivalent bodies in other jurisdictions,
that is to make decisions and to provide
oversight on decisions made under this
Act or the regulations, for the purposes
of national uniformity and other matters
in relation to such a body, including the
recognition of decisions made by such a
body;
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s. 8 Part 2 - Regulations
(x) the recognition of accredited providers of
training, package testing, design
verification and other similar activities;
(y) the passing of information on persons
relevant to licensing or compliance and
enforcement matters to another
Competent Authority and other
authorities involved in the enforcement
of road and rail laws;
(z) requiring a person involved in the
transport of dangerous goods to hold
insurance, or some other form of
indemnity, in relation to that transport.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
(4) The regulations may enable the Minister or the
Competent Authority to authorise another person
or body to perform a specific act or function.
(4A) The regulations -
(a) may require a matter affected by the
regulations to be approved by or to the
satisfaction of a specified person or
body, or a specified class of persons or
bodies; or
(b) may confer a discretionary authority, or
impose a duty, on a specified person or
body, or a specified class of persons or
bodies.
38
Dangerous Goods (Road and Rail Transport) Act 2009
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Part 2 - Regulations s. 8
(5) The regulations may apply, adopt or incorporate
any or all of the provisions of a code, standard or
rule relating to dangerous goods or to their
transport which may be applied, adopted or
incorporated as they currently exist, as amended
by the regulations, or as amended from time to
time.
(6) The regulations may, by reference to such a
code, standard or rule -
(a) prescribe a substance or article as being
dangerous goods; or
(b) prescribe various types of dangerous
goods, including goods that are too
dangerous to be transported, and methods
for deciding which dangerous goods fall
into each type.
(7) The regulations may provide for savings and
transitional arrangements necessary or expedient
for bringing this Act into operation.
(8) Regulations made under subsection (7) may take
effect on the day on which this Act commences
or a later day as specified in the regulations,
whether the day so specified is before, on or
after the day on which the regulations are made.
(9) A reference in this section to a code, standard or
rule includes a reference to one that is made
outside Australia.
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Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 9 Part 2 - Regulations
9. Penalties under the regulations
The regulations may create offences, and may
provide for a maximum penalty, not exceeding
50 penalty units for an individual or 250 penalty
units for a body corporate, for each offence.
10. Applications for review
The regulations may provide a system for review
of decisions made under this Act and identified
in the regulations.
40
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 3 - Competent Authorities and Authorised Officers s. 11
PART 3 - COMPETENT AUTHORITIES AND
AUTHORISED OFFICERS
Division 1 - Appointment and arrangements
11. Appointment of Competent Authorities
(1) The Minister may, by notice in the Gazette,
appoint one or more Competent Authorities for
the purposes of this Act.
(2) The appointment of a Competent Authority takes
effect on -
(a) the date specified in the notice that is a
date on or after the date the Minister
signed the notice; or
(b) if no such date is specified, gazettal.
(3) The Competent Authority -
(a) may exercise all the powers and perform
all the functions of an authorised officer;
and
(b) when exercising those powers or
performing those functions, has all the
immunities of an authorised officer.
(4) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
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Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 12 Part 3 - Competent Authorities and Authorised Officers
12. Appointment of authorised officers
(1) The Competent Authority may, by notice in the
Gazette, appoint an individual, or a class of
individuals, to be authorised officers.
(2) The appointment of an authorised officer takes
effect on -
(a) the date specified in the notice that is a
date on or after the date the notice was
signed; or
(b) if no such date is specified, gazettal.
(3) In appointing an authorised officer, the
Competent Authority may specify that the
appointment is subject to conditions or
restrictions relating to -
(a) the powers that are exercisable by the
officer; or
(b) when, where and in what circumstances
the officer may exercise powers.
(4) The Competent Authority is to issue each
authorised officer who is not a police officer
with an identity card containing any prescribed
details.
(5) However, instead of an identity card issued
under subsection (4), the Competent Authority
may arrange for an endorsement containing the
prescribed details to be placed on -
(a) in the case of an inspector under the
Workplace Health and Safety Act 1995,
42
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 3 - Competent Authorities and Authorised Officers s. 13
the identity card issued under section
34(2)(b) of that Act; or
(b) in the case of an authorised officer under
the Dangerous Substances (Safe
Handling) Act 2005, the identity card
issued under section 57(1) of that Act.
(6) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
13. Identity cards
(1) An authorised officer who is not a police officer
must -
(a) carry his or her identity card while
carrying out duties under this Act; and
(b) if it is practicable, produce it before
exercising a power of an authorised
officer under this Act.
(2) A police officer who is exercising, or is about to
exercise, a power of an authorised officer under
this Act must, if practicable, comply with a
request to identify himself or herself by -
(a) producing his or her police identification,
or identity card (if issued); or
43
Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
s. 14 Part 3 - Competent Authorities and Authorised Officers
(b) stating orally or in writing his or her
name, rank and place of duty, or his or
her identification number.
14. Return of identity cards
A person who has been issued with an identity
card and who stops being an authorised officer
must return his or her identity card to the
appropriate Competent Authority as soon as
practicable.
Penalty: Fine not exceeding 20 penalty units.
15. Impersonating authorised officers
A person must not impersonate an authorised
officer.
Penalty: Fine not exceeding 85 penalty units.
16. Competent Authority may delegate powers
(1) The Competent Authority may delegate any of
its powers under this Act by signed instrument.
(2) Subsection (1) does not apply to the Competent
Authority's power -
(a) to appoint authorised officers; or
(b) to delegate its powers under this section.
44
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Act No. of
Part 3 - Competent Authorities and Authorised Officers s. 17
17. Competent Authority may provide information to
corresponding authority
(1) The Competent Authority may provide
information to a corresponding authority about -
(a) any action taken by the Competent
Authority under this Act; or
(b) any information obtained under this Act,
including any information contained in
any records, devices or other things
inspected or seized under this Act.
(2) This section has effect subject to applicable
privacy legislation.
18. Reciprocal powers of authorised officers
(1) This section has effect in relation to another
jurisdiction while the corresponding law of the
other jurisdiction contains provisions
corresponding to this section.
(2) The Minister may enter into agreements with a
Minister of the other jurisdiction for the
purposes of this section.
(3) To the extent envisaged by such an agreement -
(a) authorised officers of this jurisdiction
may, in this jurisdiction or the other
jurisdiction, exercise powers conferred
on authorised officers of the other
jurisdiction by or under the
45
Dangerous Goods (Road and Rail Transport) Act 2009
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s. 19 Part 3 - Competent Authorities and Authorised Officers
corresponding law of the other
jurisdiction; and
(b) authorised officers of the other
jurisdiction may, in this jurisdiction or
the other jurisdiction, exercise powers
conferred on authorised officers by this
Act.
(4) Anything done by an authorised officer of this
jurisdiction under subsection (3)(a) (including an
omission of an act) is taken to have been done
under this Act as well as under the
corresponding law.
(5) The regulations may make provision for or in
respect of the exercise of powers under this
section.
Division 2 - General powers - road vehicles
Subdivision 1 - Application
19. Application of Division
This Division applies to a road vehicle if -
(a) one of the following applies to the
vehicle:
(i) it has a placard on it;
(ii) it is carrying a container that has
a placard on it;
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Dangerous Goods (Road and Rail Transport) Act 2009
Act No. of
Part 3 - Competent Authorities and Authorised Officers s. 20
(iii) an authorised officer believes on
reasonable grounds that it is
carrying dangerous goods or
goods too dangerous to be
transported;
(iv) 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
(b) the vehicle is situated -
(i) on a road; or
(ii) in or on a public place; or
(iii) in or on premises occupied or
owned by the Competent
Authority or by any other public
authority; or
(iv) in or on any premises where an
authorised officer is lawfully
present after entry under
Division 4 of this Part.
Subdivision 2 - Directions in respect of road vehicles
20. Direction to stop road vehicle
(1) An authorised officer may, for compliance
purposes, direct -
47
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(a) the driver of a vehicle to which this
Division applies to stop the vehicle; or
(b) the driver of the vehicle or any other
person not to do any one or more of the
following:
(i) move the vehicle;
(ii) interfere with it or any equipment
in or on it;
(iii) interfere with its load.
(2) A direction to stop a vehicle may require that it
be stopped without delay, or that it be stopped at
the nearest place for it to be safely stopped as
indicated by the officer.
(3) A direction given under subsection (1) does not
prevent an authorised officer from giving the
driver or another person a later inconsistent
direction under another provision of this Act.
(4) A direction given under subsection (1) ceases to
be operative to the extent that an authorised
officer -
(a) gives the driver or another person a later
inconsistent direction; or
(b) indicates to the driver or another person
that the direction is no longer operative.
(5) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
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Dangerous Goods (Road and Rail Transport) Act 2009
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(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
21. Direction to move road vehicle
(1) An authorised officer may, for compliance
purposes, direct the driver of a vehicle to which
this Division applies to move it or cause it to be
moved to the nearest suitable location that is
within the prescribed distance and specified by
the officer.
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: Fine not exceeding 50 penalty units.
(3) In proceedings for an offence against
subsection (2), it is a defence if the person
charged establishes that -
(a) it was not possible to move the vehicle
concerned because it was broken down;
and
(b) the breakdown occurred for a physical
reason beyond the driver's control; and
(c) the breakdown could not be readily
rectified in a way that would enable the
direction to be complied with within a
reasonable time.
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s. 22 Part 3 - Competent Authorities and Authorised Officers
(4) In this section -
"prescribed distance" means a distance (in
any direction) within a radius of 30
kilometres of -
(a) the location of the vehicle when
the direction is given; or
(b) any point along the forward route
of the journey, if the direction is
given in the course of a journey
of the vehicle;
"suitable location" means a location that the
authorised officer believes on reasonable
grounds to be a suitable location having
regard to any matters the officer
considers relevant in the circumstances.
22. Direction to produce documents
(1) An authorised officer may, for compliance
purposes, direct the driver of a vehicle to which
this Division applies to produce to the authorised
officer -
(a) the driver's driver licence; and
(b) any licence the driver is required to have
by the regulations; and
(c) any transport documentation that is
required to be carried on the vehicle by
the regulations.
50
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Part 3 - Competent Authorities and Authorised Officers s. 23
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: Fine not exceeding 35 penalty units.
(3) The authorised officer may seize a licence, other
than a driver licence, produced to the officer in
response to the direction if the officer reasonably
believes that -
(a) the licence has been cancelled or
suspended; or
(b) the licence has otherwise ceased to have
effect; or
(c) the licence has been varied and the
variation is not recorded on the licence;
or
(d) the person who produced the licence is
not the licensee.
(4) An authorised officer to whom a document that
appears to be a licence is produced in response
to the direction may seize the document if the
officer reasonably believes that the document is
not a licence.
23. Direction to move road vehicle in case of danger or
obstruction
(1) This section applies if an authorised officer
believes on reasonable grounds that a vehicle to
which this Division applies is -
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s. 23 Part 3 - Competent Authorities and Authorised Officers
(a) seriously endangering public safety, the
environment or road infrastructure; or
(b) causing or likely to cause an obstruction
to traffic or any other event lawfully
authorised to be held on the road; or
(c) obstructing or hindering, or likely to
obstruct or hinder, one or more vehicles
from entering or leaving land adjacent to
the road.
(2) The officer may direct the driver of the vehicle,
or a person who is apparently in charge of the
vehicle, to do either or both of the following:
(a) to move the vehicle, or cause it to be
moved, to the extent necessary to avoid
the danger, obstruction or hindrance;
(b) to do anything else reasonably required
by the officer, or to cause anything else
reasonably required by the officer to be
done, to avoid the danger, obstruction or
hindrance.
(3) A person who is given a direction under
subsection (2) must comply with the direction.
Penalty: Fine not exceeding 50 penalty units.
(4) In proceedings for an offence in relation to the
contravention of a direction under
subsection (2)(a), it is a defence if the person
charged establishes that -
52
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(a) it was not possible to move the vehicle
concerned because it was broken down;
and
(b) the breakdown occurred for a physical
reason beyond the driver's control; and
(c) the breakdown could not be readily
rectified in a way that would enable the
direction to be complied with within a
reasonable time.
(4A) For the purposes of subsection (1)(a), road
infrastructure includes things listed in the
definition of rail or road infrastructure in
section 93.
24. Direction to leave vehicle
(1) This section applies if the driver of a vehicle to
which this Division applies fails to comply with
a direction given by an authorised officer under
another provision of this Division.
(2) This section also applies if an authorised officer
believes on reasonable grounds that the driver of
a vehicle to which this Division applies -
(a) is not fit to drive the vehicle in order to
comply with such a direction; or
(b) is not qualified to drive the vehicle in
order to comply with such a direction; or
(c) is not authorised to drive the vehicle in
order to comply with such a direction.
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(3) The officer may direct the driver to do any one
or more of the following:
(a) to vacate the driver's seat;
(b) to leave the vehicle;
(c) not to occupy the driver's seat until
permitted to do so by an authorised
officer;
(d) not to enter the vehicle until permitted to
do so by an authorised officer.
(4) The officer may direct any other person to do
either or both of the following:
(a) to leave the vehicle;
(b) not to enter the vehicle until permitted to
do so by an authorised officer.
(5) A person who is given a direction under
subsection (3) or (4) must comply with the
direction.
Penalty: Fine not exceeding 50 penalty units.
Subdivision 3 - Other powers in respect of road vehicles
25. Moving unattended road vehicle to enable exercise
of other powers
(1) This section applies if an authorised officer -
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(a) believes on reasonable grounds that a
vehicle to which this Division applies is
unattended on a road; and
(b) is seeking to exercise powers in respect
of the vehicle for compliance purposes;
and
(c) believes on reasonable grounds that the
vehicle should be moved to enable or to
facilitate the exercise of those powers.
(2) The officer may -
(a) move the vehicle (by driving or towing it
or otherwise); or
(b) authorise another person to move it (by
driving or towing it or otherwise) -
to the extent reasonably necessary to enable or to
facilitate the exercise of the powers concerned.
(3) The officer may enter the vehicle, or authorise
another person to enter it, for the purpose of
moving the vehicle.
(4) The officer or person authorised by the officer
may use reasonable force to do any or all of the
following:
(a) to open unlocked doors and other
unlocked panels and objects;
(b) to gain access to the vehicle, or its engine
or other mechanical components, to
enable the vehicle to be moved;
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s. 26 Part 3 - Competent Authorities and Authorised Officers
(c) to enable the vehicle to be towed.
(5) An authorised officer must not authorise a
person to move a vehicle in accordance with this
section unless the officer believes on reasonable
grounds that the person is qualified and fit to do
so.
26. Powers of authorised officers - inspection
(1) An authorised officer may, for compliance
purposes, inspect a vehicle to which this
Division applies.
(2) The power to inspect a vehicle includes the
power -
(a) to enter the vehicle; and
(b) to weigh, test, measure or take
photographs of the vehicle or any part of
it or its equipment or load; and
(ba) to take, in accordance with section 52A,
a sample of any part of the vehicles load;
and
(e) to check the existence or details of, or
take photographs of, placards or other
information required by the regulations
to be displayed in or on the vehicle or
any load on it; and
(f) to inspect and take copies of or extracts
from any records that are located in or on
the vehicle and that are required to be
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carried in or on the vehicle by the
regulations; and
(g) to access or download information that is
required to be kept by the regulations and
that is -
(i) stored electronically in equipment
located in or on the vehicle; or
(ii) accessible electronically from
equipment located in or on the
vehicle.
(3) Nothing in this section authorises the use of
force, but an authorised officer may under this
section do any or all of the following:
(a) open unlocked doors and other unlocked
panels and objects;
(b) inspect anything that has been opened or
otherwise accessed;
(c) move but not take away anything that is
locked up or sealed.
(4) The officer may exercise powers under this
section at any time, and without the consent of
the driver or other person apparently in charge of
the vehicle or any other person.
27. Powers of authorised officers - searches
(1) An authorised officer may, for compliance
purposes, search a vehicle to which this Division
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applies if the officer believes on reasonable
grounds that -
(a) the vehicle has been used, is being used,
or is likely to be used, in the commission
of an offence; or
(b) the vehicle has been or may have been
involved in a dangerous situation.
(2) The officer may form the necessary belief during
or after an inspection or independently of an
inspection.
(3) The officer may enter the vehicle for the purpose
of or in connection with conducting the search.
(4) The officer may exercise powers under this
section at any time, and without the consent of
the driver or other person apparently in charge of
the vehicle or any other person.
(5) Without limiting the above, the power to search
a vehicle under this section includes any or all of
the following:
(a) the power to search for evidence of an
offence;
(b) the power to search for and inspect any
records, devices or other things that
relate to the vehicle or any part of its
equipment or load and that are located in
or on the vehicle;
(c) the power to take copies of or extracts
from any or all of the following:
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(i) any records that are located in or
on the vehicle and that are
required to be carried in or on the
vehicle by the regulations;
(ii) any transport documentation
located in or on the vehicle;
(iii) any other records, or any readout
or other data obtained from any
device or thing, located in or on
the vehicle that the officer
believes on reasonable grounds
provide, or may on further
inspection provide, evidence of
an offence;
(d) the power to take, in accordance with
section 52A, a sample of any part of the
vehicle's load.
(6) The power to search a vehicle under this section
does not include a power to search a person.
(7) The officer may seize and remove a record,
device or other thing from the vehicle that the
officer believes on reasonable grounds provides,
or may on further inspection provide, evidence
of an offence.
(8) The officer may use reasonable force in the
exercise of powers under this section.
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28. Moving unattended or broken down road vehicle
where danger or obstruction
(1) This section applies if an authorised officer
believes on reasonable grounds that a vehicle to
which this Division applies -
(a) is unattended or broken down; and
(b) is causing a dangerous situation.
(2) The officer may -
(a) move the vehicle (by driving or towing it
or otherwise); or
(b) authorise another person to move it (by
driving or towing it or otherwise) -
to the extent reasonably necessary to avoid the
dangerous situation.
(3) The officer may enter the vehicle, or authorise
another person to enter it, for the purpose of
moving the vehicle.
(4) The officer may drive the vehicle even though
the officer is not qualified to do so, if the officer
believes on reasonable grounds that there is no
other person in, on or in the vicinity of the
vehicle who is more capable of driving it than
the officer.
(5) A person authorised by the officer may drive the
vehicle even though the authorised person is not
qualified to do so, if the officer believes on
reasonable grounds that there is no other person
in, on or in the vicinity of the vehicle who is
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more capable of driving it than the authorised
person.
(6) The officer or person driving a vehicle under the
authority of this section is exempt from any
other provision of this Act or of a provision of a
road law to the extent that it would require him
or her to be licensed or otherwise authorised to
drive it.
(7) The officer or person authorised by the officer
may use reasonable force to the extent
reasonably necessary to avoid the danger or
obstruction.
29. Powers of authorised officers - immobilised road
vehicle
(1) This section applies if an authorised officer
believes on reasonable grounds that a vehicle to
which this Division applies is broken down or
otherwise immobilised on a road.
(2) The authorised officer may give directions to the
driver or a person apparently in charge of the
vehicle about how -
(a) repair work is to be carried out on the
vehicle; or
(b) the vehicle is to be towed off the road; or
(c) the dangerous goods are to be removed
from the vehicle; or
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(d) the dangerous goods are to be dealt with
after their removal from the vehicle.
(3) A person who is given a direction under
subsection (2) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
30. Powers of authorised officers in emergencies
(1) This section applies if a vehicle to which this
Division applies is involved in an incident
resulting in a dangerous situation.
(2) An authorised officer may give directions to the
driver or a person apparently in charge of the
vehicle about -
(a) the transport of any goods in the vehicle
from the place of the incident; or
(b) how otherwise to deal with the goods.
(3) The direction must -
(a) be in writing and be signed by the
authorised officer; and
(b) state the name of the person to whom it
is given; and
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(c) identify the incident; and
(d) identify the dangerous goods to which it
relates.
(4) However, if it is not practicable to give the
direction in writing, the direction may be given
orally and confirmed in writing within 48 hours.
(5) A person who is given a direction under
subsection (2) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
31. Authorisation not required for driving under this
Division
It is immaterial that an authorised officer or a
person driving a vehicle under the authority of
this Division is not authorised to do so by the
operator of the vehicle.
Division 3 - Directions in respect of rolling stock and trains
Subdivision 1 - Application
32. Application
(1) This Division applies to a unit of rolling stock -
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(a) that has a placard on it; or
(b) that is carrying a container that has a
placard on it; or
(c) that an authorised officer knows or
believes on reasonable grounds is
carrying dangerous goods or is carrying a
container containing dangerous goods.
(2) This Division applies to a train that an authorised
officer knows or believes on reasonable grounds
includes a unit of rolling stock to which this
Division applies.
Subdivision 2 - Power to give directions in respect of rolling
stock and trains
33. Powers of authorised officers - rail operators
(1) An authorised officer may, for compliance
purposes, direct the rail operator in respect of a
train that includes a unit of rolling stock to
which this Division applies to cause the train to
stop at a place where it may be safely inspected
by the officer.
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
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(b) an individual, a fine not
exceeding 50 penalty units.
34. Powers of authorised officers - train drivers
(1) An authorised officer may, for compliance
purposes, direct the driver of a train that includes
a unit of rolling stock to which this Division
applies or any other person not to do any one or
more of the following:
(a) move the train;
(b) interfere with the train or any equipment
in or on it;
(c) interfere with any load on any unit of
rolling stock that forms part of the train.
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
35. Powers of authorised officers - others
(1) If a unit of rolling stock to which this Division
applies does not form part of a unit, an
authorised officer may, for compliance purposes,
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direct a person not to do any one or more of the
following:
(a) move the unit;
(b) interfere with the train or any equipment
or container in or on it;
(c) attach any other rolling stock to the unit.
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
36. Powers of authorised officers - documents
(1) An authorised officer may direct the driver of a
train that includes a unit of rolling stock to
which this Division applies to produce to the
authorised officer any transport documentation
that is required to be carried on the train by the
regulations.
(2) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: Fine not exceeding 35 penalty units.
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Subdivision 3 - Other powers in respect of trains
37. Powers of authorised officers - inspection
(1) An authorised officer may, for compliance
purposes, inspect a unit of rolling stock to which
this Division applies or a train that includes or
that the authorised officer believes on reasonable
grounds includes a unit of rolling stock to which
this section applies.
(2) The power to inspect a unit of rolling stock or a
train includes the power -
(a) to enter the unit or train; and
(b) to weigh, test, measure or take
photographs of the unit or train or any
part of it or its equipment or load; and
(ba) to take, in accordance with section 52A,
a sample of any part of the load of the
unit or train; and
(e) to check the existence or details of, or
take photographs of, placards or other
information required by the regulations
to be displayed in or on the unit or any
load on it; and
(f) to inspect and take copies of or extracts
from any records that are located in or on
the train and that are required to be
carried in or on the train by the
regulations; and
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(g) to access or download information that is
required to be kept by the regulations and
that is -
(i) stored electronically in equipment
located in or on the train; or
(ii) accessible electronically from
equipment located in or on the
train.
(3) Nothing in this section authorises the use of
force, but an authorised officer may under this
section do any or all of the following:
(a) open unlocked doors and other unlocked
panels and objects;
(b) inspect anything that has been opened or
otherwise accessed;
(c) move, but not take away, anything that is
locked up or sealed.
(4) The officer may exercise powers under this
section at any time, and without the consent of
the driver or other person apparently in charge of
the unit of rolling stock or train or any other
person.
38. Powers of authorised officers - search
(1) An authorised officer may, for compliance
purposes, search a unit of rolling stock to which
this Division applies or a train that includes or
that the authorised officer believes on reasonable
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grounds includes a unit of rolling stock to which
this section applies, if the officer believes on
reasonable grounds that -
(a) the unit of rolling stock or train has been
used or is being used, or is likely to be
used, in the commission of an offence; or
(b) the unit of rolling stock or train has been
or may have been involved in a
dangerous situation.
(2) The officer may form the necessary belief during
or after an inspection or independently of an
inspection.
(3) The officer may enter the unit of rolling stock or
train for the purpose of or in connection with
conducting the search.
(4) The officer may exercise powers under this
section at any time, and without the consent of
the driver or other person apparently in charge of
the unit of rolling stock or train or any other
person.
(5) Without limiting the above, the power to search
a unit of rolling stock or train under this section
includes any or all of the following:
(a) the power to search for evidence of an
offence;
(b) the power to search for and inspect any
records, devices or other things that
relate to the unit of rolling stock or train
or any part of its equipment or load and
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that are located in or on the unit of
rolling stock or train;
(c) the power to take copies of or extracts
from any or all of the following:
(i) any records that are located in or
on the unit of rolling stock or
train and that are required to be
carried in or on the unit of rolling
stock or train by the regulations;
(ii) any transport documentation
located in or on the unit of rolling
stock or train;
(iii) any other records, or any readout
or other data obtained from any
device or thing, located in or on
the unit of rolling stock or train
that the officer believes on
reasonable grounds provide, or
may on further inspection
provide, evidence of an offence;
(d) the power to take, in accordance with
section 52A, a sample of any part of the
load of the unit of rolling stock or train.
(6) The power to search a unit of rolling stock or
train under this section does not include a power
to search a person.
(7) The officer may seize and remove a record,
device or other thing from the unit of rolling
stock or train that the officer believes on
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reasonable grounds provides, or may on further
inspection provide, evidence of an offence.
(8) The officer may use reasonable force in the
exercise of powers under this section.
39. Powers of authorised officers - immobilised train
(1) This section applies to a train -
(a) that has failed or is otherwise
immobilised; and
(b) that includes a unit of rolling stock to
which this Division applies.
(2) An authorised officer may give directions to a
person who is involved in the transport of the
dangerous goods on the train about how -
(a) the dangerous goods are to be removed
from the train; or
(b) the dangerous goods are to be dealt with
after their removal from the train.
(3) A person who is given a direction under
subsection (2) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
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40. Powers of authorised officers in emergencies
(1) This section applies if a train that includes a unit
of rolling stock to which this Division applies is
involved in an incident resulting in a dangerous
situation.
(2) An authorised officer may give, to a person who
is involved in the transport of the dangerous
goods on the train, directions about -
(a) the transport of the goods from the place
of the incident; or
(b) how otherwise to deal with the goods.
(3) The direction must -
(a) be in writing and be signed by the
authorised officer; and
(b) state the name of the person to whom it
is given; and
(c) identify the incident; and
(d) identify the dangerous goods to which it
relates.
(4) However, if it is not practicable to give the
direction in writing, the direction may be given
orally and confirmed in writing within 48 hours.
(5) A person who is given a direction under
subsection (2) must comply with the direction.
Penalty: In the case of -
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(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
Division 4 - Powers to inspect and search premises
Subdivision 1 - Preliminary
41. Application
This Division applies to premises occupied or
controlled by a person involved in the transport
of dangerous goods.
42. Residential purposes
For the purposes of this Division, premises are
not being used for residential purposes merely
because temporary or casual sleeping or other
accommodation is provided on the premises for
vehicle drivers.
Subdivision 2 - Power to search premises
43. Power to inspect premises
(1) An authorised officer may, for compliance
purposes, inspect premises to which this
Division applies.
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(2) The officer may enter the premises for the
purpose of conducting the inspection.
(3) Without limiting the above, the officer may
inspect, or enter and inspect, any vehicle at the
premises.
(4) Before an authorised officer enters premises (not
being a public place) under this section, the
officer must give the occupier of the premises
reasonable notice of the intention to enter
unless -
(a) the officer believes on reasonable
grounds that the giving of the notice
would defeat the purpose for which it is
intended to enter the premises; or
(b) entry to the premises is made with the
consent of the occupier of the premises;
or
(c) the officer believes on reasonable
grounds that entry is required as there is
an immediate risk to safety because of
the carrying out of an operation at the
premises in respect of dangerous goods;
or
(d) entry is authorised by a warrant.
(5) This section does not authorise, without consent,
the entry or inspection of -
(a) premises that are apparently unattended,
unless the officer believes on reasonable
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grounds that the premises are not
unattended; or
(b) premises that are, or any part of premises
that is, used predominantly for residential
purposes.
(6) Without limiting the above, the power to inspect
premises under this section includes any or all of
the following:
(a) the power to inspect and take copies of or
extracts from any records located at the
premises and required to be kept by or
under the regulations;
(b) the power to check the existence of and
inspect any devices (including weighing,
measuring, recording or monitoring
devices) required to be installed, used or
maintained by or under the regulations,
and to inspect and take copies of or
extracts from any readout or other data
obtained from any such device;
(c) the power to use photocopying
equipment on the premises free of charge
for the purpose of copying any records or
other material;
(d) the power to take, in accordance with
section 52A, a sample of any substance
or packaging on the premises.
(7) This section does not authorise the use of force,
but the officer may under this section do any or
all of the following:
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(a) open unlocked doors and other unlocked
panels and objects;
(b) inspect anything that has been opened or
otherwise accessed under the power to
use reasonable force in the exercise of a
power to enter or move a vehicle under
this Part;
(c) move, but not take away, anything that is
locked up or sealed.
(8) An authorised officer who enters premises under
this section must not unnecessarily impede any
activities being conducted at the premises.
44. Power to search premises
(1) An authorised officer may, for compliance
purposes, search premises to which this Division
applies, if the officer believes on reasonable
grounds that there may be at the premises
records, devices or other things that may provide
evidence of an offence.
(2) The officer may form the necessary belief during
or after an inspection of the premises or
independently of such an inspection.
(3) The officer may enter the premises for the
purpose of conducting the search.
(4) Without limiting the above, the officer may
search, or enter and search, any vehicle at the
premises.
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(5) The search may be conducted -
(a) at any time under the authority of a
warrant; or
(b) at any time with the consent of the
occupier or other person apparently in
charge of the premises; or
(c) if a business is carried on at the premises,
at any time during the ordinary business
hours applicable at the premises (whether
or not the premises are actually being
used for that purpose), and without a
warrant and without the consent of the
occupier or other person apparently in
charge of the premises or any other
person.
(6) Before an authorised officer enters premises (not
being a public place) under this section, the
officer must give the occupier or other person
apparently in charge of the premises reasonable
notice of the intention to enter unless -
(a) the giving of the notice would be
reasonably likely to defeat the purpose
for which it is intended to enter the
premises; or
(b) entry to the premises is made with the
consent of the occupier of the premises;
or
(c) entry is required in circumstances where
the authorised officer reasonably believes
there is an immediate risk to safety
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because of the carrying out of an
operation at the premises in respect of
dangerous goods; or
(d) entry is authorised by a warrant.
(7) This section does not authorise, without a
warrant or consent, the entry or searching of -
(a) premises that are unattended, unless the
officer believes on reasonable grounds
that the premises are not unattended; or
(b) premises that are, or any part of premises
that is, used predominantly for residential
purposes.
(8) Without limiting the above, the power to search
premises under this section includes any or all of
the following:
(a) the power to search for evidence of an
offence;
(b) the power to search for and inspect any
records, devices or other things that
relate to -
(i) a vehicle or any part of its
equipment or load located at the
premises; or
(ii) any dangerous goods or
packaging located at the
premises;
(c) the power to take copies of or extracts
from any or all of the following:
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(i) any records that are located at the
premises and are required to be
kept by or under the regulations;
(ii) any transport documentation
located at the premises;
(iii) any other records, or any readout
or other data obtained from any
device or thing, located at the
premises that the officer believes
on reasonable grounds provide, or
may on further inspection
provide, evidence of an offence;
(d) the power to use photocopying
equipment on the premises free of charge
for the purpose of copying any records or
other material;
(e) the power to take, in accordance with
section 52A, a sample of any substance
or packaging on the premises.
(9) The power to search premises under this section
does not include a power to search a person.
(10) The officer may seize and remove any records,
devices or other things from the premises that
the officer believes on reasonable grounds
provide, or may on further inspection provide,
evidence of an offence.
(11) The officer may use reasonable force in the
exercise of powers under this section.
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Division 5 - Other directions
45. Direction to give name and other personal details
(1) If an authorised officer suspects on reasonable
grounds that a person -
(a) has committed, is committing or is about
to commit an offence; or
(b) may be able to assist in the investigation
of an offence -
the officer may direct the person to give the
officer then and there any or all of the person's
personal details.
(2) If an authorised officer suspects on reasonable
grounds that a personal detail given by a person
in response to a direction under subsection (1) is
false or misleading, the officer may direct the
person to produce evidence then and there of the
correctness of the detail.
(3) A person who is given a direction under
subsection (1) or (2) must comply with the
direction.
Penalty: Fine not exceeding 35 penalty units.
(4) A person who is given a direction under
subsection (1) must not give, in purported
response to the direction, any details that are
false or misleading in a material particular.
Penalty: Fine not exceeding 35 penalty units.
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(5) A person who is given a direction under
subsection (2) must not produce, in purported
response to the direction, any evidence that is
false or misleading in a material particular.
Penalty: Fine not exceeding 35 penalty units.
(6) In this section -
"personal details", in relation to a person,
means -
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is
living; and
(d) the address of where the person
usually lives; and
(e) the person's business address.
46. Direction to produce records, devices or other
things
(1) An authorised officer may, for compliance
purposes, direct a person to produce -
(a) any records required to be kept by the
person under this Act; or
(b) any records in the person's possession or
under the person's control that are
required to be kept under this Act; or
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(c) 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.
(2) The direction must -
(a) specify -
(i) the records, devices or other
things; or
(ii) the classes of records, devices or
other things -
that are to be produced; and
(b) state where, when and to whom the
records, devices or other things are to be
produced.
(3) The officer may do any or all of the following:
(a) inspect records, devices or other things
that are produced;
(b) make copies of, or take extracts from,
records, devices or other things that are
produced;
(c) seize and remove records, devices or
other things that are produced that the
officer believes on reasonable grounds
may on further inspection provide
evidence of an offence.
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(4) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 170 penalty units; or
(b) an individual, a fine not
exceeding 35 penalty units.
47. Direction to provide information
(1) An authorised officer may, for compliance
purposes, 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 a vehicle.
(2) Without limiting the above, a direction under
subsection (1) may require a person who is
associated with a particular vehicle to provide
information about the current or intended trip of
the vehicle, including -
(a) the location of the start or intended start
of the trip; and
(b) the route or intended route of the trip;
and
(c) the location of the destination or intended
destination of the trip.
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(3) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 170 penalty units; or
(b) an individual, a fine not
exceeding 35 penalty units.
48. Direction to provide reasonable assistance for
powers of inspection and search
(1) An authorised officer may direct a person who is
involved in the transport of dangerous goods to
provide reasonable assistance to the officer to
enable the officer effectively to exercise a power
in relation to goods with which the person is
involved.
(2) Without limiting the above, the assistance may
include helping the officer to do any or all of the
following:
(a) to find and gain access to any records or
information relating to a vehicle,
including but not limited to -
(i) records and information required
to be kept in or on a vehicle; or
(ii) records and information in a
useable form for the purpose of
ascertaining their compliance
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with requirements imposed by
this Act;
(b) to find and gain access to devices on
which information is electronically
stored and the information stored on
them;
(c) to weigh or measure -
(i) the whole or any part of a
vehicle; or
(ii) the whole or any part of its
equipment or load;
(d) to operate equipment or facilities for a
purpose relevant to the power being or
proposed to be exercised;
(e) to provide access free of charge to
photocopying equipment for the purpose
of copying any records or other material;
(f) to take a sample of any substance or
packaging in accordance with
section 52A.
(3) A person who is given a direction under
subsection (1) must comply with the direction.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 250 penalty units; or
(b) an individual, a fine not
exceeding 50 penalty units.
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Division 6 - Provisions regarding inspections and searches
49. Warrants
(1) This section applies if an authorised officer
believes on reasonable grounds that -
(a) there may be at particular premises, then
or within the next 72 hours, records,
devices or other things that may provide
evidence of an offence; or
(b) a vehicle has been or may have been
involved in an offence or a dangerous
situation and -
(i) the vehicle is or has been located
at particular premises; or
(ii) particular premises are or may be
otherwise connected (directly or
indirectly) with the vehicle or any
part of its equipment or load.
(2) The officer may apply to a magistrate for the
issue of a warrant authorising the officer to
exercise a power to enter and search the
premises under this Part.
(3) In this section -
"magistrate" means a magistrate within the
meaning of the Magistrates Court Act
1987.
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50. Use of assistants and equipment
(1) An authorised officer may exercise powers under
this Part with the aid of such assistants and
equipment as the officer considers reasonably
necessary in the circumstances.
(2) Powers that may be exercised by an authorised
officer under this Part may be exercised by an
assistant authorised and supervised by the
officer, but only if the officer considers that it is
reasonably necessary in the circumstances that
the powers be exercised by an assistant.
51. Use of equipment to examine or process things
(1) An authorised officer exercising a power under
this Part may bring to, or on to, a vehicle or
premises any equipment reasonably necessary
for the examination or processing of things
found in, on or at the vehicle or premises in
order to determine whether they are things that
may be seized.
(2) If -
(a) it is not practicable to examine or process
the things at the vehicle or premises; or
(b) the occupier of the vehicle or premises
consents in writing -
the things may be moved to another place so that
the examination or processing can be carried out
in order to determine whether they are things
that may be seized.
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(3) The officer, or a person assisting the officer, may
operate equipment already in, on or at the
vehicle or premises to carry out the examination
or processing of a thing found in, on or at the
vehicle or premises in order to determine
whether it is a thing that may be seized, if the
officer or person assisting believes on reasonable
grounds that -
(a) the equipment is suitable for the
examination or the processing; and
(b) the examination or processing can be
carried out without damage to the
equipment or the thing.
52. Use or seizure of electronic equipment
(1) If -
(a) a thing found in, on or at a vehicle or
premises is, or includes, a disk, tape or
other device for the storage of
information; and
(b) equipment in, on or at the vehicle or
premises may be used with the disk, tape
or other storage device; and
(c) the authorised officer concerned believes
on reasonable grounds that the
information stored on the disk, tape or
other storage device is relevant to
determine whether an offence has been
committed -
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the officer or a person assisting the officer may
operate the equipment to access the information.
(2) If the officer or a person assisting the officer
finds that a disk, tape or other storage device in,
on or at the vehicle or premises contains
information of a kind referred to in
subsection (1)(c), he or she may -
(a) put the information in documentary form
and seize the documents so produced; or
(b) copy the information to another disk,
tape or other storage device and remove
that storage device from the vehicle or
premises; or
(c) if it is not practicable to put the
information in documentary form or to
copy the information, seize the disk, tape
or other storage device and the
equipment that enables the information
to be accessed.
(3) An officer or a person assisting an officer must
not operate or seize equipment for the purpose
mentioned in this section unless the officer or
person assisting believes on reasonable grounds
that the operation or seizure of the equipment
can be carried out without damage to the
equipment.
52A. Sample-taking procedure
(1) In this section -
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"person from whom the sample was taken"
means -
(a) in the case of an inspection or
search under section 26, 27, 37 or
38, the driver of the vehicle, or
the person apparently in charge of
the vehicle; and
(b) in the case of an inspection or
search under section 43 or 44, the
occupier, or apparent occupier for
the time being, of the premises.
(2) Despite anything in this Part to the contrary, an
authorised officer may only take a sample if it is
safe to do so and if the taking of the sample will
not result in a dangerous situation arising.
(3) Unless it is not safe to do so, the authorised
officer must, immediately after taking any
sample of a substance, divide the sample into the
following parts:
(a) one part that is to be retained for future
comparison;
(b) one part that is to be given to the person
from whom the sample was taken;
(c) if the authorised officer intends to have
the sample tested or analysed, one part
for the purposes of that testing or
analysis.
(4) The authorised officer must then -
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(a) enclose each part of the sample in a
container that prevents the contamination
of the sample; and
(b) mark or label the container in a way that
enables the part of the sample to be
identified.
(5) If an authorised officer intends to take a sample
of any packaging under this Part, before
removing the packaging from the vehicle or
premises, as the case may be, he or she must
give a written receipt, that identifies the sample,
to the person from whom the sample was taken.
(6) If an authorised officer finds numerous packages
during an inspection or search and the packages
appear to be identical, the authorised officer may
take one or more of the packages as samples.
(7) If subsection (6) applies, the officer must,
immediately after taking the sample -
(a) enclose each sample in a container that
prevents the contamination of the
sample; and
(b) mark or label the container in a way that
enables the part to be identified; and
(c) give one of the samples to the person
from whom the sample was taken.
(8) If a person who is offered a sample, or part of a
sample, under subsection (3)(b) or
subsection (7)(c) refuses to accept the sample or
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part, the authorised officer must retain the
sample or part.
(9) The authorised officer must give a sample, or
part of a sample, retained under subsection (8) to
the person to whom it was offered if he or she is
subsequently asked to do so by that person.
Division 7 - Other provisions regarding seizure
53. Receipt for and access to seized material
If a record, device or other thing is seized and
removed under this Part, the authorised officer
concerned must -
(a) give a receipt for it to the person from
whom it is seized and removed; and
(b) if practicable, allow the person who
would normally be entitled to possession
of it reasonable access to it.
54. Embargo notices
(1) This section applies if -
(a) an authorised officer is authorised to
seize any record, device or other thing
under this Part; and
(b) the record, device or other thing cannot,
or cannot readily, be physically seized
and removed.
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(2) The authorised officer may issue an embargo
notice under this section.
(3) An embargo notice is a notice forbidding the
movement, sale, leasing, transfer, over-
recording, deletion of information from or other
dealing with the record, device or other thing, or
any part of it, without the written consent of the
authorised officer or the Competent Authority.
(4) The embargo notice must -
(a) be in the prescribed form or contain the
prescribed particulars; and
(b) list each activity that it forbids; and
(c) set out a copy of subsection (8).
(5) The authorised officer may issue the embargo
notice -
(a) by causing a copy of the notice to be
served on the person with responsibility
for the vehicle or premises concerned; or
(b) if that person cannot be located or
ascertained after all reasonable steps
have been taken to do so, by affixing a
copy of the notice to the record, device or
other thing in a prominent position.
(6) A person who knows that an embargo notice
relates to a record, device or other thing must
not -
(a) do anything that is forbidden by the
notice; or
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(b) instruct another person to do so.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 340 penalty units; or
(b) an individual, a fine not
exceeding 70 penalty units.
(7) It is a defence to a charge for an offence against
subsection (6) to establish that the person
charged -
(a) moved the record, device or other thing,
or part of it, to protect or preserve it; or
(b) notified the officer who issued the notice
of the move, and of the new location of
the record, device or other thing or part
of it, within 48 hours after the move.
(8) A person upon whom an embargo notice has
been served must take reasonable steps to
prevent any other person from doing anything
forbidden by the notice.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 340 penalty units; or
(b) an individual, a fine not
exceeding 70 penalty units.
(9) Despite anything in any other Act, a sale, lease
or transfer or other dealing with a record, device
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or other thing, or part of it, in contravention of
this section is void.
Division 8 - Miscellaneous
55. Limit on use of force
A provision of this Part that authorises an
authorised officer to use reasonable force does
not authorise the use of force against an
individual unless the authorised officer is also a
police officer.
56. Consent
(1) Before obtaining the consent of a person for the
purposes of a provision of this Part, an
authorised officer must inform the person that he
or she may refuse to give consent.
(2) An entry by or the exercise of any power under
this Part by an authorised officer by virtue of the
consent of a person is not lawful unless the
person voluntarily consented to the entry.
(3) Consent may be withdrawn after it has been
given, and the power concerned must no longer
be exercised by virtue of the consent.
57. Manner of giving directions under this Part
(1) A direction under this Part may be given orally,
in writing or in any other manner.
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(2) A direction not given in person may be sent or
transmitted by post, telephone, facsimile,
electronic mail, radio or in any other manner.
(3) A direction may be given to a driver orally or by
means of a sign or signal (electronic or
otherwise), or in any other manner.
58. Directions to state when to be complied with
(1) If given orally, a direction under this Part must
state whether it is to be complied with then and
there or within a specified period.
(2) If given in writing, a direction under this Part
must state the period within which it is to be
complied with.
59. Directions may be given under more than one
provision
(1) An authorised officer may, on the same
occasion, give directions under one or more
sections of this Part.
(2) Without limiting the above, an authorised officer
may, in the course of exercising powers under a
provision of this Part, give either or both of the
following:
(a) further directions under the provision;
(b) directions under one or more other
sections of this Part.
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60. Restoring vehicle or premises to original condition
after action taken
(1) This section applies if -
(a) an authorised officer or a person
authorised by the officer has taken action
in the exercise or purported exercise of a
power under this Part in relation to a
vehicle or its equipment or load or in
relation to any premises; and
(b) damage was caused by the unreasonable
exercise of the power or by the use of
force that was not authorised under this
Part.
(2) The officer must take reasonable steps to return
the vehicle, equipment, load or premises to the
condition it was in immediately before the action
was taken.
61. Self-incrimination no excuse
(1) A person is not excused from answering any
question asked, or providing any information
required, by an authorised officer under this Act
on the grounds that the answer or information
may tend to incriminate the person.
(2) However, in proceedings for an offence against
this Act, any answer or information given or
provided to an authorised officer pursuant to a
requirement of an authorised officer under this
Act is not admissible in evidence against the
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person giving the answer or providing the
information -
(a) if the person claims before giving the
answer or providing the information that
the answer or information may tend to
incriminate the person; or
(b) unless the person's entitlement to make a
claim of the kind referred to in
paragraph (a) was drawn to the person's
attention before the answer was given or
the information was provided.
62. Providing evidence to other authorities
Except as provided by any applicable privacy
legislation, the Competent Authority may, for
law enforcement purposes, give a record, device
or other thing seized in accordance with this
Part, or any information obtained in accordance
with this Part, to a public authority, including a
public authority of another jurisdiction.
63. Obstructing or hindering authorised officers
(1) A person must not obstruct or hinder an
authorised officer or a person assisting an
authorised officer in the exercise of a power
under this Part.
Penalty: In the case of -
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(a) a body corporate, a fine not
exceeding 340 penalty units; or
(b) an individual, a fine not
exceeding 70 penalty units.
(2) However, an offence is not committed under this
section unless it is established that the power -
(a) was being exercised lawfully; and
(b) without limiting paragraph (a), was -
(i) exercisable without consent; or
(ii) being exercised with consent or
under the authority of a warrant.
(3) The prosecution bears a legal burden in relation
to the matters in subsection (2).
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s. 64 Part 4 - Exemptions
PART 4 - EXEMPTIONS
64. Exemptions
(1) A person, or a representative of a class of
persons, may apply to the Competent Authority
for an exemption from compliance with a
provision of the regulations in relation to the
transport of particular dangerous goods.
(2) The Competent Authority may, on its own
initiative or on application under subsection (1),
exempt a person or class of persons from
compliance with a provision of the regulations in
relation to the transport of particular dangerous
goods if the Competent Authority is satisfied
that -
(a) it is not reasonably practicable for the
person or class of persons to comply with
the provision; and
(b) granting the exemption -
(i) would not be likely to create a
risk of death or injury to a person,
or harm to the environment or to
property, greater than that which
would be the case if the person or
class of persons were required to
comply; and
(ii) would not cause unnecessary
administrative or enforcement
difficulties, particularly in respect
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of maintaining national
uniformity of road and rail
transport laws.
(3) An exemption may be subject to conditions,
including a condition that it applies to either or
both of the following:
(a) the transport of dangerous goods by road;
(b) the transport of dangerous goods by rail.
(4) If the Competent Authority grants an exemption
to a person, the Competent Authority must send
a notice to the person stating -
(a) the regulations that are the subject of the
exemption; and
(b) the dangerous goods to which the
exemption applies; and
(c) the period of time for which the
exemption remains in force; and
(d) the conditions to which the exemption is
subject; and
(e) the geographical area for which the
exemption is valid.
(5) If the Competent Authority -
(a) grants an exemption to a class of
persons; or
(b) grants an exemption that is to remain in
force for longer than 6 months -
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the Competent Authority must publish a notice
in the Gazette specifying all the details in
subsection (4) and the person or class of persons
to which the exemption applies.
(6) A person operating under an exemption must
comply with any condition subject to which the
exemption was granted.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units or
imprisonment for a term not
exceeding 6 months, or both.
(7) If an exemption is granted to a person, and the
exemption applies to a vehicle or to premises,
the person must keep a copy of the notice of
exemption in the vehicle or premises.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 85 penalty units; or
(b) an individual, a fine not
exceeding 20 penalty units.
(8) If the Competent Authority -
(a) grants an exemption to a class of
persons; or
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(b) grants an exemption that is to remain in
force for longer than 6 months -
the Competent Authority must notify the
Competent Authority of each other State of the
details of the exemption.
(9) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
65. Variation and cancellation of exemptions and
conditions
(1) The Competent Authority may cancel an
exemption if -
(a) the Authority is satisfied that a condition
to which the exemption is subject has not
been complied with; or
(b) the Authority is no longer satisfied of the
matters referred to in section 64(2).
(2) The Competent Authority may vary or cancel
conditions to which an exemption is subject or
impose new conditions.
(3) An exemption granted to a person is to be varied
or cancelled by notice in writing given to the
person, and the variation or cancellation takes
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effect from the day on which the notice is given,
or from a later day specified in the notice.
(4) An exemption granted to a class of persons is to
be varied or cancelled by notice published in the
Gazette, and the variation or cancellation takes
effect on the day of publication, or from a later
day specified in the notice.
(5) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
66. Review of exemption &c.
If the Competent Authority -
(a) refuses to grant an exemption to a person
or a class of persons; or
(b) cancels an exemption granted to a person
or a class of persons; or
(c) grants an exemption to a person or a
class of persons subject to conditions; or
(d) varies or cancels conditions to which an
exemption granted to a person or a class
of persons is subject or imposes new
conditions -
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the person or a representative of the class of
persons may apply for a review of the decision
as prescribed.
67. Application orders and emergency orders
(1) The Minister may order, by notice in the
Gazette, that the operation of the regulations, or
of specified parts of the regulations -
(a) is suspended for a specified period; or
(b) is varied in a manner specified by the
Minister.
(2) An order may have effect in relation to the
whole of this jurisdiction or to a specified area.
(3) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
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PART 5 - OFFENCES AND PENALTIES
68. Reserved
This section has been left blank so as to preserve
uniformity with other jurisdictions with regard to
numbering of the Act.
69. Failure to hold licence &c.
(1) A prime contractor must not use a vehicle to
transport dangerous goods (other than as the
driver of the vehicle) if -
(a) the regulations require the vehicle to be
licensed to transport the goods; and
(b) the vehicle is not licensed under the
regulations.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 100 penalty units;
or
(b) an individual, a fine not
exceeding 450 penalty units or
imprisonment for a term not
exceeding 2 years, or both.
(1A) A person must not consign dangerous goods for
transport by road on a vehicle if the person
knows, or reasonably ought to know, that -
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(a) the regulations require the vehicle to be
licensed to transport the goods; and
(b) the vehicle is not licensed under the
regulations.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(2) A person must not employ, engage or permit
another person to drive a vehicle transporting
dangerous goods if the other person is required
by the regulations to be licensed to drive the
vehicle and is not so licensed.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 2 100 penalty units;
or
(b) an individual, a fine not
exceeding 450 penalty units or
imprisonment for a term not
exceeding 2 years, or both.
(3) A person must not drive a vehicle transporting
dangerous goods if -
(a) the regulations require the vehicle to be
licensed to transport the goods; and
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(b) the vehicle is not licensed under the
regulations.
Penalty: Fine not exceeding 85 penalty units.
(4) A person must not drive a vehicle transporting
dangerous goods if -
(a) the regulations require the person to be
licensed to drive the vehicle; and
(b) the person is not licensed under the
regulations.
Penalty: Fine not exceeding 85 penalty units.
70. Goods too dangerous to be transported
(1) A person must not consign goods for transport if
the regulations identify the goods as being goods
too dangerous to be transported.
Penalty: In the case of -
(a) a body corporate -
(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 4 200
penalty units; or
(ii) in any other case, a fine
not exceeding 2 100
penalty units; or
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(b) an individual -
(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 850 penalty
units or imprisonment
for a term not
exceeding 4 years, or
both; or
(ii) in any other case, a fine
not exceeding 450
penalty units or
imprisonment for a
term not exceeding 2
years, or both.
(2) Subsection (1) includes a person who arranges
for the conveyance of goods too dangerous to be
transported on a vehicle owned or controlled by
the person.
71. Duties concerning transport of dangerous goods
(1) A person involved in the transport of dangerous
goods by road or rail who fails to ensure that the
goods are transported in a safe manner is guilty
of an offence.
Penalty: In the case of -
(a) a body corporate -
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(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 4 200
penalty units; or
(ii) in any other case, a fine
not exceeding 2 100
penalty units; or
(b) an individual -
(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 850 penalty
units or imprisonment
for a term not
exceeding 4 years, or
both; or
(ii) in any other case, a fine
not exceeding 450
penalty units or
imprisonment for a
term not exceeding 2
years, or both.
(2) If a person involved in the transport of
dangerous goods by road or rail fails to comply
with a provision of this Act in circumstances
where the person knew, or reasonably ought to
have known, that the failure would be likely to
endanger the safety of another person or of
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property or the environment, the person is guilty
of an offence.
Penalty: In the case of -
(a) a body corporate -
(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 4 200
penalty units; or
(ii) in any other case, a fine
not exceeding 2 100
penalty units; or
(b) an individual -
(i) if contravention results
in the death of or
serious injury to a
person, a fine not
exceeding 850 penalty
units or imprisonment
for a term not
exceeding 4 years, or
both; or
(ii) in any other case, a fine
not exceeding 450
penalty units or
imprisonment for a
term not exceeding 2
years, or both.
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PART 6 - GENERAL ADMINISTRATIVE SANCTIONS
Division 1 - Improvement notices
72. Improvement notices
(1) This section applies if an authorised officer is of
the opinion that a person has contravened, is
contravening or is likely to contravene a
provision of this Act.
(2) The authorised officer may serve on the person
an improvement notice requiring the person to
remedy the contravention or likely
contravention, or the matters or activities
occasioning the contravention or likely
contravention, before the date specified in the
notice.
(3) The improvement notice must specify a date
(with or without a time) by which the person is
required to remedy the contravention or likely
contravention, or the matters or activities
causing the contravention or likely
contravention, that the officer considers is
reasonable having regard to the severity of any
relevant risks and the nature of the contravention
or likely contravention.
(4) The improvement notice must -
(a) state that the authorised officer is of the
opinion referred to in subsection (1); and
(b) state the reasons for that opinion; and
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(c) specify the sections of this Act in respect
of which that opinion is held; and
(d) include information about obtaining a
review of the notice; and
(e) state that it is issued under this section.
(5) The improvement notice may but need not
specify the method by which the alleged
contravention or likely contravention, or the
matters or activities occasioning the alleged
contravention or likely contravention, are to be
remedied.
73. Contravention of improvement notice
(1) A person on whom an improvement notice is
served must comply with the notice unless the
person has a reasonable excuse for not doing so.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(2) In proceedings for an offence under
subsection (1), it is a defence if the person
establishes that -
(a) the alleged contravention or likely
contravention; or
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(b) the matters or activities occasioning the
alleged contravention or likely
contravention -
specified in the notice were remedied within the
period specified in the notice, albeit by a method
different from that specified in the notice.
74. Amendment of improvement notices
(1) An improvement notice served by an authorised
officer may be amended by that authorised
officer or any other authorised officer.
(2) An amendment of an improvement notice is
effected by service on the person affected of a
notice stating the terms of the amendment.
(3) An amendment of an improvement notice is
ineffective if it purports to deal with a
contravention of a different provision of this Act
from that dealt with in the improvement notice
as first served.
(4) A notice of an amendment of an improvement
notice must -
(a) state the reasons for the amendment; and
(b) include information about obtaining a
review of the notice; and
(c) state that it is issued under this section.
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75. Cancellation of improvement notices
(1) An improvement notice served by an authorised
officer may be cancelled by the authorised
officer or the Competent Authority.
(2) To be effective, a notice of cancellation of an
improvement notice must be served on the
person affected.
76. Clearance certificates
(1) An authorised officer may issue a clearance
certificate to the effect that all requirements, or a
specified requirement, of an improvement notice
have been complied with.
(2) A requirement of an improvement notice ceases
to be operative on receipt, by the person on
whom the improvement notice is served, of a
clearance certificate to the effect that -
(a) all requirements of the notice have been
complied with; or
(b) the specific requirement has been
complied with.
Division 2 - Formal warnings
77. Formal warnings
(1) An authorised officer may, instead of taking
proceedings against a person for a contravention
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of this Act, formally warn the person if the
officer believes -
(a) the person had taken reasonable steps to
prevent the contravention and was
unaware of the contravention; and
(b) the contravention is appropriate to be
dealt with by way of a formal warning
under this section.
(2) A formal warning must be in writing.
(3) In this section -
"proceedings" includes action by way of an
infringement notice.
78. Withdrawal of formal warnings
(1) A formal warning may 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.
(2) After the formal warning has been withdrawn,
proceedings may be taken against the person for
the contravention.
(3) In this section -
"proceedings" includes action by way of an
infringement notice.
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Division 3 - Infringement notices
79. Infringement notices
(1) In this section -
"infringement offence" means an offence
against this Act or the regulations that is
prescribed by the regulations to be an
infringement offence.
(2) An authorised officer may issue and serve an
infringement notice on a person if he or she
reasonably believes that the person has
committed an infringement offence.
(3) An infringement notice may not be served on an
individual who has not attained the age of 16
years.
(4) An infringement notice -
(a) is to be in accordance with section 14 of
the Monetary Penalties Enforcement Act
2005; and
(b) is not to relate to more than 4 offences.
(5) The regulations -
(a) may prescribe the penalty applicable to
each infringement offence that is payable
under an infringement notice; and
(b) may prescribe different penalties for
bodies corporate and individuals.
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(6) In the application of the Monetary Penalties
Enforcement Act 2005 to an infringement notice
issued and served under this section -
(a) an authorised officer who issued and
served the infringement notice is taken to
be a public sector body within the
meaning of that Act; and
(b) a penalty prescribed under subsection (5)
in respect of an infringement offence is
taken to be the prescribed penalty
applicable to that offence for the
purposes of section 14(a)(ii) of that Act.
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Part 7 - General Court-based Sanctions s. 80
PART 7 - GENERAL COURT-BASED SANCTIONS
Division 1 - Proceedings for offences
80. Proceedings for offences
Proceedings for an offence may be dealt with
summarily.
81. Proceedings for an offence may be brought by
authorised officers
A prosecution for an offence may be brought by
an authorised officer.
82. Period within which proceedings for offences may
be commenced
(1) Unless this Act otherwise provides, proceedings
for an offence may be commenced within -
(a) the period of 2 years after the
commission of the alleged offence; or
(b) a further period of 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 considered
reasonably sufficient by the Authority or
officer to warrant commencing
proceedings.
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(2) For the purposes of subsection (1), a certificate
purporting to have been issued by the Competent
Authority or an authorised officer as to the date
when the Authority or the officer first obtained
evidence considered reasonably sufficient by the
Authority or officer to warrant commencing
proceedings is admissible in any proceedings
and is prima facie evidence of the matters stated.
Division 2 - Available sanctions
83. Sanctions imposed by courts
(1) A court that finds a person guilty of an offence
may impose any one or more of the sanctions
provided for by this Part.
(2) Without affecting a court's discretion, the court
is required to take into consideration, when
imposing more than one of the sanctions
provided for by this Part, the combined effect of
the sanctions imposed.
(3) Nothing in this Part affects any discretions or
powers that a court or other person or body has
apart from this Part.
(4) If one or more courts make orders under this Part
that result in both a supervisory intervention
order and an exclusion order being in force at the
same time in relation to the same person, the
supervisory intervention order has no effect
while the exclusion order has effect.
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Division 3 - Fines
84. Reserved
This section has been left blank so as to preserve
uniformity with other jurisdictions with regard to
numbering of the Act.
Division 4 - Commercial benefits penalty orders
85. Commercial benefits penalty orders
(1) The court that finds a person guilty of an offence
may, on the application of the Competent
Authority, make an order under this section.
(2) The court may make a commercial benefits
penalty order requiring the person to pay, as a
fine, an amount not exceeding 3 times the
amount estimated by the court to be the gross
commercial benefit that -
(a) was received or receivable, by the person
or by an associate of the person, from the
commission of the offence; and
(b) in the case of a journey that was
interrupted or not commenced because of
action taken by an authorised officer in
connection with the commission of the
offence, would have been received or
receivable, by the person or by an
associate of the person, from the
commission of the offence had the
journey been completed.
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(3) In estimating the gross commercial benefit that
was or would have been received or receivable
from the commission of the offence, the court
may take into account -
(a) benefits of any kind, whether monetary
or otherwise; and
(b) any other matters that it considers
relevant, including (for example) -
(i) the value of any goods involved
in the offence; and
(ii) the distance over which any such
goods were or were to be carried.
(4) However, in estimating the gross commercial
benefit that was or would have been received or
receivable from the commission of the offence,
the court is required to disregard any costs,
expenses or liabilities incurred by the person or
by an associate of the person.
(5) Nothing in this section prevents the court from
ordering payment of an amount that is -
(a) less than 3 times the estimated gross
commercial benefit; or
(b) less than the estimated gross commercial
benefit.
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Division 5 - Licensing and registration sanctions
86. Power to affect licences
(1) The court that finds the driver of a vehicle guilty
of an offence may make an order for either or
both of the following:
(a) that a licence the driver is required to
have by the regulations is -
(i) cancelled; or
(ii) modified or suspended for a
specified period;
(b) that the driver is disqualified for a
specified period from obtaining or
holding a licence a driver is required to
have by regulations.
(2) An order under this section operates by force of
this Act and takes effect immediately or from a
later specified date.
(3) In this section -
"specified" means specified in the order made
under this section.
87. Power to affect road vehicle registration
(1) This section applies if the registered operator of
a road vehicle is found guilty of an offence
under this Act in relation to the vehicle.
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(2) The court that finds the person guilty of the
offence may make an order that the registration
of the vehicle is -
(a) cancelled; or
(b) suspended for a specified period.
(3) The court may also make an order that the
registered operator, or an associate of the
registered operator, is disqualified from
registering the vehicle for a specified period.
(4) If the court considers that another person who is
not present in court may be substantially affected
by an order under this section, the court may
issue a summons to that other person to show
cause why the order should not be made.
(5) An order under this section operates by force of
this Act and takes effect immediately or from a
later specified date.
(6) In this section -
"registered operator", in relation to a road
vehicle, means the person recorded on a
register maintained in accordance with an
Australian road law as the person
responsible for the vehicle;
"specified" means specified in the order made
under this section.
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Division 6 - Supervisory intervention orders
88. Supervisory intervention orders
(1) The court that finds a person guilty of an offence
may, on the application of the Competent
Authority, if the court considers the person to be
a systematic or persistent offender against this
Act, make an order under this section.
(2) The court may make a supervisory intervention
order requiring the person (at the person's own
expense and for a specified period not exceeding
one year) to do any or all of the following:
(a) to do specified things that the court
considers will improve the person's
compliance with this Act or specified
sections of this Act, including (for
example) the following:
(i) appointing or removing staff to or
from particular activities or
positions;
(ii) training and supervising staff;
(iii) obtaining expert advice as to
maintaining appropriate
compliance;
(iv) installing monitoring,
compliance, managerial or
operational equipment (including,
for example, intelligent transport
system equipment);
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(v) implementing monitoring,
compliance, managerial or
operational practices, systems or
procedures;
(b) to conduct specified monitoring,
compliance, managerial or operational
practices, systems or procedures subject
to the direction of the Competent
Authority or a person nominated by the
Authority;
(c) to furnish compliance reports to the
Competent Authority or the court, or
both, as specified in the order;
(d) to appoint a person to have
responsibilities -
(i) to assist the person in improving
compliance with this Act or
specified sections of this Act; and
(ii) to monitor the person's
performance in complying with
this or specified sections of this
Act and in complying with the
requirements of the order; and
(iii) to furnish compliance reports to
the Competent Authority or the
court or both as specified in the
order.
(3) The court may specify matters that are to be
dealt with in compliance reports and the form,
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manner and frequency in which compliance
reports are to be prepared and furnished.
(4) The court may require that compliance reports or
aspects of compliance reports be made public,
and may specify the form, manner and frequency
in which they are to be made public.
(5) The court may only make a supervisory
intervention order if it is satisfied that the order
is capable of improving the person's ability or
willingness to comply with this Act, having
regard to -
(a) the offences of which the person has
previously been found guilty; and
(b) the offences for which the person has
been proceeded against by way of
unwithdrawn infringement notices; and
(c) any other offences or other matters that
the court considers to be relevant to the
conduct of the person in connection with
the transport of dangerous goods.
(6) The order may direct that any other penalty or
sanction imposed for the offence by the court is
suspended until the court determines that there
has been a substantial failure to comply with the
order.
(7) A court that has power to make supervisory
intervention orders may revoke or amend a
supervisory intervention order on the application
of -
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(a) the Competent Authority; or
(b) the person in respect of whom the order
was made, but in that case only if the
court is satisfied that there has been a
change of circumstances warranting
revocation or amendment.
(8) For the purposes of subsections (1) and (5), if a
person has committed at least one offence
against this Act, the court may treat any offences
that the person has committed under any
corresponding law as if they had also been
committed under this Act.
(9) In this section -
"compliance report", in relation to a person
in respect of whom a supervisory
intervention order is made, means a
report relating to -
(a) the performance of the person in
complying with -
(i) this Act or sections of this
Act specified in the order;
and
(ii) the requirements of the
order; and
(b) without limiting the above -
(i) things done by the person
to ensure that any failure
by the person to comply
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with this or the specified
sections of this Act does
not continue; and
(ii) the results of those things
having been done.
89. Contravention of supervisory intervention order
A person who is subject to a requirement of a
supervisory intervention order must not engage
in conduct that results in a contravention of the
requirement.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
Division 7 - Exclusion orders
90. Exclusion orders
(1) The court that finds a person guilty of an offence
may, on the application of the Competent
Authority, if the court considers the person to be
a systematic or persistent offender against this
Act, make an order under this section.
(2) For the purpose of restricting opportunities for
the person to commit or be involved in the
commission of further offences, the court may
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make an exclusion order prohibiting the person,
for a specified period, from involvement in the
transport of dangerous goods or in any aspect of
that transport.
(3) The court cannot make an exclusion order that
prohibits the person from driving or registering a
vehicle.
(4) The court may only make an order under this
section if it is satisfied -
(a) that the person should not continue the
things that are the subject of the
proposed order; and
(b) that a supervisory intervention order is
not appropriate, having regard to -
(i) the offences of which the person
has previously been found guilty;
and
(ii) the offences for which the person
has been proceeded against by
way of unwithdrawn
infringement notices; and
(iii) any other offences or other
matters that the court considers to
be relevant to the conduct of the
person in connection with
involvement in the transport of
dangerous goods.
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(5) A court that has power to make exclusion orders
may revoke or amend an exclusion order on the
application of -
(a) the Competent Authority; or
(b) the person in respect of whom the order
was made, but in that case only if the
court is satisfied that there has been a
change of circumstances warranting
revocation or amendment.
(6) For the purposes of subsections (1) and (4), if a
person has committed at least one offence
against this Act, the court may treat any offences
that the person has committed under any
corresponding law as if they had also been
committed under this Act.
91. Contravention of exclusion order
A person who is subject to a prohibition
contained in an exclusion order must not engage
in conduct that results in a contravention of the
prohibition.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
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Division 8 - Forfeiture orders
92. Forfeiture
(1) The court that finds a person guilty of an offence
in relation to dangerous goods may, on the
application of the Competent Authority and if
the court is satisfied that the person owns the
goods or that their owner cannot be identified,
order, in addition to imposing any other penalty,
that the dangerous goods and their packaging be
forfeited to the Crown.
(2) Dangerous goods and packaging forfeited to the
Crown may be collected, packaged, transported,
destroyed, sold or otherwise disposed of as
directed by the Competent Authority.
(3) The person found guilty of the offence must pay
to the Crown the reasonable costs of collecting,
packaging, transporting, storing, destroying,
selling or otherwise disposing of the dangerous
goods and packaging.
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PART 8 - COMPENSATION ORDERS
Division 1 - Definitions
93. Definitions
In this Part -
"compensation order" means an order made
under this Part;
"rail or road authority" means a person or
body (whether or not a public authority)
that is responsible for the care, control or
management of a railway or road, as the
case may be;
"rail or road infrastructure" includes -
(a) a road, including its surface or
pavement; and
(ab) a railway including its rails and
junctions; and
(c) anything under or supporting a
road or a railway, its surface,
pavement or rails and maintained
by a rail or road authority; and
(d) any bridge, tunnel, causeway,
road-ferry, ford or other work or
structure forming part of a rail or
road system or supporting a
railway or road; and
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(e) any bridge or other work or
structure located above, in or on a
railway or road and maintained
by a rail or road authority; and
(f) any traffic control devices,
railway or tramway equipment,
electricity equipment, emergency
telephone systems or any other
facilities (whether of the same or
a different kind) in, on, over,
under or connected with anything
referred to in paragraph (a), (ab),
(c), (d) or (e).
93A. Compensation orders
The court that finds a person guilty of an offence
may make an order under this Part.
Division 2 - General compensation orders
94. Compensation orders for damage to rail or road
infrastructure
(1) The court may make a compensation order
requiring the offender to pay a rail or road
authority such amount by way of compensation
as the court thinks fit for damage to any rail or
road infrastructure that the rail or road authority
has incurred or is likely to incur in consequence
of the offence.
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(2) A compensation order may be made on the
application of the rail or road authority or the
Competent Authority.
(3) A compensation order may only be made in
favour of the rail or road authority.
(4) The court may make a compensation order if it is
satisfied on the balance of probabilities that the
commission of the offence caused or contributed
to the damage.
(5) The court may make a compensation order on an
application made when it finds the offender
guilty of the offence, or on an application made
not later than the period within which a
prosecution for the offence could have been
commenced.
95. Assessment of compensation
(1) In making a compensation order, the court may
assess the amount of compensation in such
manner as it considers appropriate, including
(for example) the estimated cost of remedying
the damage.
(2) In assessing the amount of compensation, the
court may take into account such matters as it
considers relevant, including -
(a) any evidence adduced in connection with
the prosecution of the offence; and
(b) any evidence not adduced in connection
with the prosecution of the offence but
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adduced in connection with the making
of the proposed order; and
(c) any certificate of the rail or road
authority stating that it maintains the rail
or road infrastructure concerned; and
(d) any other certificate of the rail or road
authority, such as a certificate -
(i) estimating the monetary value of
all or any part of the rail or road
infrastructure or of the damage to
it; or
(ii) estimating the cost of remedying
the damage; or
(iii) estimating the extent of the
offender's contribution to the
damage.
96. Service of certificates
(1) If a rail or road authority proposes to use a
certificate in proceedings, it must serve a copy of
the certificate on the defendant at least 28
working days before the day on which the matter
is set down for hearing.
(2) Such a certificate cannot be used in the
proceedings unless a copy of it has been served
in accordance with this section.
(3) A defendant who wishes to challenge a
statement in such a certificate must serve a
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notice in writing on the rail or road authority at
least 14 working days before the day on which
the matter is set down for hearing.
(4) The notice must specify the matters in the
certificate that are intended to be challenged.
(5) If the defendant is intending to challenge the
accuracy of any measurement, analysis or
reading in the certificate, the defendant must
specify the reason why the defendant alleges that
it is inaccurate and must specify the
measurement, analysis or reading that the
defendant considers to be correct.
(6) The defendant cannot challenge a matter in the
certificate if the requirements of this section
have not been complied with in relation to the
certificate, unless the court gives leave to do so
in the interests of justice.
97. Limits on amount of compensation
(1) If, in making a compensation order, the court is
satisfied that the commission of the offence
concerned contributed to the damage but that
other factors not connected with the commission
of the offence also contributed to the damage,
the court must limit the amount of the
compensation payable by the offender to the
amount it assesses as being the offender's
contribution to the damage.
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(2) The maximum amount of compensation cannot
exceed the monetary jurisdictional limit of the
court in civil proceedings.
(3) The court may not include in the order any
amount for -
(a) personal injury or death; or
(b) loss of income (whether sustained by a
rail or road authority or any other person
or organisation); or
(c) damage to any property (including a
vehicle) that is not part of the rail or road
infrastructure.
Division 3 - Costs compensation orders
98. Recovery of costs
(1) A court that finds a person guilty of an offence
may, in addition to imposing any other sanction,
order the convicted person to pay the Competent
Authority costs -
(a) that were reasonably incurred in taking
the action; and
(b) that were directly related to the
investigation of the offence.
(2) Those costs include costs for testing,
transporting, storing and disposing of the
dangerous goods and other evidence.
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(3) An order may be made on the application of the
Competent Authority made either at the time of
the finding of guilt, or at any time not later than
the period within which a prosecution for the
offence could have commenced.
Division 4 - Costs and recovery
99. Costs
The court has the same power to award costs in
relation to the proceedings for a compensation
order as it has in relation to civil proceedings,
and the relevant provisions of laws applying to
costs in relation to civil proceedings apply with
any necessary adaptations to costs in relation to
the proceedings for the compensation order.
100. Enforcement of compensation order and costs
A compensation order, and any award of costs,
are enforceable as if they were a judgment of the
court in civil proceedings.
101. Relationship with orders or awards of other courts
and tribunals
(1) A compensation order may not be made if
another court or tribunal has awarded
compensatory damages or compensation in civil
proceedings in respect of the damage, based on
the same or similar facts, and if a court purports
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to make an order under this Part in those
circumstances -
(a) the order is void to the extent that it
covers the same matters as those covered
by the other award; and
(b) any payments made under the order to
the extent to which it is void must be
repaid by the rail or road authority.
(2) The making of a compensation order does not
prevent another court or tribunal from afterwards
awarding damages or compensation in civil
proceedings in respect of the damage, based on
the same or similar facts, but the court or
tribunal must take the order into account when
awarding damages or compensation.
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Part 9 - General Liability and Evidentiary Provisions s. 102
PART 9 - GENERAL LIABILITY AND EVIDENTIARY
PROVISIONS
Division 1 - Basis of liability for offences
102. Multiple offenders
(1) This section applies if a provision of this Act
provides (expressly or impliedly) that each of 2
or more persons is liable for an offence.
(2) Proceedings may be taken against all or any of
the persons.
(3) Proceedings may be taken against any of the
persons -
(a) regardless of whether or not proceedings
have been commenced against any of the
other persons; and
(b) if proceedings have been commenced
against any of the other persons,
regardless of whether or not the
proceedings have been concluded; and
(c) if proceedings have been concluded
against any of the other persons,
regardless of the outcome of the
proceedings.
(4) This section has effect subject to any provision
of this Act to the contrary.
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103. Double jeopardy
(1) A person may be punished only once in relation
to the same failure to comply with a particular
provision of this Act, even if the person is liable
in more than one capacity.
(2) Despite subsection (1), a person may be
punished for more than one breach of a provision
of this Act if the breaches relate to different parts
of the same vehicle or of the same dangerous
goods.
104. Liability of directors, partners, employers and
others for offences by bodies corporate,
partnerships, associations and employees
(1) If a body corporate commits an offence, each
director of the body corporate, and each person
concerned in the management of the body
corporate, is taken to have committed the
offence and is punishable accordingly.
(2) If a person who is a partner in a partnership
commits an offence in the course of the activities
of the partnership, each other person who is a
partner in the partnership, and each other person
concerned in the management of the partnership,
is taken to have committed the offence and is
punishable accordingly.
(3) If a person who is concerned in the management
of an unincorporated association commits an
offence in the course of the activities of the
unincorporated association, each other person
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concerned in the management of the
unincorporated association is taken to have
committed the offence and is punishable
accordingly.
(4) If an employee commits an offence, the
employer is taken to have committed the offence
and is punishable accordingly.
(5) This section does not affect the liability of the
person who actually committed the offence.
(6) A person may be proceeded against and found
guilty of an offence arising under this section
whether or not the body corporate or other
person who actually committed the offence has
been proceeded against or been found guilty of
the offence.
(7) It is a defence to a charge for an offence arising
under subsection (1) if the defendant establishes
that -
(a) the defendant was not in a position to
influence the conduct of the body
corporate in relation to the actual
offence; or
(b) the defendant, being in such a position,
took reasonable precautions and
exercised due diligence to prevent the
commission of the actual offence.
(8) It is a defence to a charge for an offence arising
under subsection (2) or (3) if the defendant
establishes that -
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(a) the defendant was not in a position to
influence the conduct of the person who
actually committed the offence; or
(b) the defendant, being in such a position,
took reasonable precautions and
exercised due diligence to prevent the
commission of the actual offence.
(9) It is a defence to a charge for an offence arising
under subsection (4) if the defendant establishes
that -
(a) the defendant had no knowledge of the
actual offence; and
(b) the defendant took reasonable
precautions and exercised due diligence
to prevent the commission of the actual
offence.
105. Complicity and common purpose (aiding and
abetting)
(1) A person who aids, abets, counsels or procures
the commission of an offence by another person
is taken to have committed that offence and is
punishable accordingly.
(2) For the person who aids, abets, counsels or
procures the commission of an offence to be
guilty -
(a) the person's conduct must have in fact
aided, abetted, counselled or procured the
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commission of the offence by the other
person; and
(b) the offence must have been committed
by the other person.
(3) For the person who aids, abets, counsels or
procures the commission of an offence to be
guilty, the person must -
(a) have intended that -
(i) his or her conduct would aid,
abet, counsel or procure the
commission of any offence of the
type the other person committed;
or
(ii) his or her conduct would aid,
abet, counsel or procure the
commission of an offence; and
(b) have been reckless about the commission
of the offence that the other person in
fact committed.
(4) A person cannot be found guilty of aiding,
abetting, counselling or procuring the
commission of an offence if, before the offence
was committed, the person -
(a) terminated his or her involvement; and
(b) took reasonable steps to prevent the
commission of the offence.
(5) This section does not affect the liability of the
principal offender.
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(6) A person may be found guilty of aiding,
abetting, counselling or procuring the
commission of an offence even if the principal
offender has not been prosecuted or has not been
found guilty.
106. Causing or permitting
(1) A person who causes or permits another person
to commit an offence is taken to have committed
that offence and is punishable accordingly.
(2) This section does not affect the liability of the
person who actually committed the offence.
(3) This section does not apply in relation to
directions given by authorised officers under this
Act.
(4) A person may be found guilty of causing or
permitting another person to commit an offence
even if the person who committed the offence
has not been prosecuted or has not been found
guilty.
107. Coercing, inducing or offering incentive
(1) A person who urges another person to commit an
offence is guilty of an offence and is punishable
accordingly.
(2) Without limiting the above, a person urges
another person to commit an offence if the
person threatens, intimidates, coerces, induces or
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offers an incentive to the other person to commit
the offence.
(3) This section does not affect the liability of the
person who actually committed the offence.
Division 2 - General defences
108. Sudden or extraordinary emergency
(1) It is a defence to a charge for an offence if the
person charged carried out the conduct
constituting the offence in response to
circumstances of sudden or extraordinary
emergency.
(2) This section applies if and only if the person
carrying out the conduct reasonably believed
that -
(a) circumstances of sudden or extraordinary
emergency existed; and
(b) committing the offence was the only
reasonable way to deal with the
emergency; and
(c) the conduct was a reasonable response to
the emergency.
109. Lawful authority
It is a defence to a charge for an offence if the
person charged establishes that the conduct
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constituting the offence was authorised or
excused by or under a law.
110. Other defences
Nothing in this Act affects defences available
under other laws of this jurisdiction.
Division 3 - Special defences
111. Special defence for owners or operators
(1) It is a defence to a charge for an offence alleged
to have been committed by a person in the
capacity of an owner or operator of a vehicle
transporting dangerous goods if the person
establishes that the vehicle was being used at the
relevant time by -
(a) another person not entitled (whether by
express or implied authority or
otherwise) to use it, other than an
employee or agent of the alleged
offender; or
(b) an employee of the alleged offender who
was acting at the relevant time outside
the scope of the employment; or
(c) an agent (in any capacity) of the alleged
offender who was acting at the relevant
time outside the scope of the agency.
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(2) If the offence relates to a breach of this Act in
connection with alleged deficiencies concerning
the vehicle or dangerous goods, the defence is
not available unless the alleged offender
establishes that -
(a) the vehicle or dangerous goods had not,
before they ceased to be under the
alleged offender's control, been driven or
transported in Australia in breach of this
Act or a corresponding law arising in
connection with all or any of those
alleged deficiencies; and
(b) one or more material changes, resulting
in the alleged breach, had been made
after the vehicle or dangerous goods had
ceased to be under the alleged offender's
control.
(3) In this section -
"deficiency concerning the vehicle or
dangerous goods" means a deficiency in
anything that is required by the
regulations to be carried on or in a
vehicle or to be met in relation to
dangerous goods.
112. Special defence of compliance with direction
It is a defence to a charge for an offence if the
person charged establishes that the conduct
constituting the offence was done in compliance
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with a direction given by an authorised officer or
a police officer.
Division 4 - General evidentiary provisions
113. Vicarious responsibility
(1) If, in proceedings for an offence, it is necessary
to establish the state of mind of a body corporate
in relation to particular conduct, it is sufficient to
show -
(a) that the conduct was engaged in by a
director, employee or agent of the body
corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, employee or agent had
the relevant state of mind.
(2) For the purposes of a prosecution for an offence,
conduct engaged in on behalf of a body
corporate by a director, employee or agent of the
body corporate within the scope of his or her
actual or apparent authority is taken to have been
engaged in also by the body corporate, unless the
body corporate establishes that it took reasonable
precautions and exercised due diligence to avoid
the conduct.
(3) If, in proceedings for an offence, it is necessary
to establish the state of mind of a person other
than a body corporate (the employer) in relation
to particular conduct, it is sufficient to show -
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(a) that the conduct was engaged in by an
employee or agent of the employer
within the scope of his or her actual or
apparent authority; and
(b) that the employee or agent had the
relevant state of mind.
(4) For the purposes of a prosecution for an offence,
conduct engaged in on behalf of a person other
than a body corporate (the employer) by an
employee or agent of the employer within the
scope of his or her actual or apparent authority is
taken to have been engaged in also by the
employer, unless the employer establishes that
the employer took reasonable precautions and
exercised due diligence to avoid the conduct.
(5) In this section -
"director" of a body corporate includes a
constituent member of a body corporate
incorporated for a public purpose by a
law of any jurisdiction;
"state of mind" of a person includes -
(a) the knowledge, intention,
opinion, belief or purpose of the
person; and
(b) the person's reasons for the
intention, opinion, belief or
purpose.
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114. Evidence
(1) In a prosecution for an offence, if an authorised
officer gives evidence that he or she believes any
of the matters referred to in subsection (2), the
Court must, if -
(a) it considers the belief to be reasonable;
and
(b) there is no evidence to the contrary -
accept the matter as proved.
(2) The matters are -
(a) that dangerous goods described in
transport documents carried in a vehicle
are being carried in the vehicle; or
(b) that particular goods are dangerous
goods or dangerous goods of a particular
type; or
(c) if markings or placards on or attached to
a substance or packaging indicate that the
substance is, or the packaging contains,
particular dangerous goods, that the
substance is, or the packaging contains,
those dangerous goods; or
(d) if markings on, or attached to, a package
indicate that the package contains
particular dangerous goods, that the
package contains those dangerous goods;
or
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(e) if markings or placards on or attached to
a vehicle or equipment indicate that the
vehicle or equipment is being used to
transport dangerous goods, that the
vehicle or equipment is being used to
transport those dangerous goods; or
(f) if markings or placards on or attached to
a substance or packaging indicate (in
relation to the substance, the packaging
or the contents of the packaging) a
particular capacity, tare weight, origin,
character, specification, ownership or
date of manufacture, that the substance,
the packaging or the contents of the
packaging have that capacity, tare
weight, origin, character, specification,
ownership or date of manufacture; or
(g) if markings on, or attached to, a package
indicate, in relation to the contents of the
package, a particular capacity, tare
weight, origin, character, specification,
ownership or date of manufacture, that
the contents of the package have that
capacity, tare weight, origin, character,
specification, ownership or date of
manufacture; or
(h) if markings or placards on or attached to
a vehicle or packaging indicate, in
relation to the load of the vehicle or the
contents of the packaging, a particular
quantity of dangerous goods, that the
vehicle or packaging contains that
quantity of dangerous goods; or
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(i) that a person was not, at a particular
time, accredited or the holder of a licence
relating to dangerous goods.
(3) A court may admit the following documents as
evidence if they appear to be signed by the
Competent Authority or by a person exercising
powers delegated by the Competent Authority
for the relevant purpose:
(a) documents relating to whether a person is
exempt from certain requirements under
section 64;
(b) documents relating to vehicles,
equipment or other items required by the
regulations to be approved by the
Competent Authority;
(c) documents relating to accreditation or
licensing by the Competent Authority.
115. Evidence regarding weighing
For the purposes of this Act, evidence of a
record made by -
(a) the operator of a weighbridge or
weighing facility; or
(b) an employee of the operator of a
weighbridge or weighing facility -
of the mass of a vehicle transporting dangerous
goods or a container containing dangerous goods
weighed at the weighbridge or facility is
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admissible in any proceedings and is prima facie
evidence of the mass of the vehicle or container
at the time it was weighed.
116. Proof of appointments and signatures unnecessary
(1) For the purposes of this Act, it is not necessary
to prove the appointment of an authorised
officer.
(2) For the purposes of this Act, a signature
purporting to be the signature of an authorised
officer is evidence of the signature it purports to
be.
117. Transport documentation
(1) Transport documentation is admissible in any
proceedings under or for the purposes of this Act
and is prima facie evidence of -
(a) the identity and status of the parties to
the transaction to which it relates; and
(b) the destination or intended destination of
the load to which it relates.
(2) The reference in subsection (1) to the status of
parties includes a reference to their status in
respect of their involvement in the transport of
dangerous goods.
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118. Use of codes of practice &c. in proceedings
(1) This section applies to a code of practice,
guideline or other document that is approved by
the Australian Transport Council for the purpose
of providing practical guidance to persons
engaged in the transport of dangerous goods.
(2) If in proceedings against a person for an
offence -
(a) it is alleged that a person contravened a
provision of this Act; and
(b) a code of practice, guideline or other
document to which this section applies
specifies a means of complying with the
provision or with a requirement of the
provision; and
(c) either -
(i) the code of practice, guideline or
other document has been
published in the Gazette; or
(ii) copies of the code of practice,
guideline or other document are
available for purchase or
inspection within this
jurisdiction -
then -
(d) the code of practice, guideline or other
document is admissible in the
proceedings; and
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(e) if the court is satisfied that, at the
relevant time, the person acted in
accordance with the code of practice,
guideline or other document, the person
is taken to have complied with the
provision or requirement.
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s. 119 Part 10 - Prohibition Notices
PART 10 - PROHIBITION NOTICES
119. Definition
For the purpose of this Part -
"dangerous activity" means an activity -
(a) that relates to the transport of
dangerous goods by road or rail;
and
(b) that is occurring or may occur in
relation to or in the immediate
vicinity of the dangerous goods;
and
(c) that is creating, or that could
create, a dangerous situation or a
risk to the safety of any person.
120. Prohibition notice may be served
(1) This section applies if an authorised officer
believes on reasonable grounds that a dangerous
activity is occurring or may occur.
(2) The authorised officer may serve on a person
who has or appears to have control over the
activity a notice that prohibits the person -
(a) from carrying on, or commencing, the
activity; or
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(b) from carrying on, or commencing, the
activity in a specified way -
until the authorised officer has certified in
writing that the activity is not or is no longer a
dangerous activity.
121. Prohibition notice
(1) A prohibition notice has effect -
(a) upon being served; or
(b) if the notice specifies a later date, on that
date.
(2) A prohibition notice served on a person must -
(a) state that the notice is served in
accordance with this Act; and
(b) require the person to cease the dangerous
activity or to cease carrying it out in a
specified manner; and
(c) state the basis for the authorised officer's
belief that the activity is a dangerous
activity; and
(d) if the authorised officer believes that the
dangerous activity involves a
contravention of a law, specify the law
and the relevant provision of it; and
(e) state how a review of the decision to
serve the notice may be obtained; and
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(f) state the penalty for failing to comply
with the notice.
(3) A prohibition notice may include a direction on
the measures to be taken to minimise or
eliminate the risk caused by the dangerous
activity.
(4) A direction may offer a choice of ways to
minimise or eliminate the risk caused by the
dangerous activity.
(5) A prohibition notice that prohibits the carrying
out of an activity in a specified way may do so
by specifying -
(a) a place where the activity may not be
carried out; or
(b) any thing that may not be used in
connection with the activity; or
(c) any procedure that may not be followed
in connection with the activity.
122. Contravention of prohibition notice
A person upon whom a prohibition notice is
served must comply with the requirements set
out in the notice unless the person has a
reasonable excuse for not doing so.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
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(b) an individual, a fine not
exceeding 85 penalty units.
123. Oral direction may be given before prohibition
notice is served
(1) This section applies if an authorised officer
believes on reasonable grounds -
(a) that a dangerous activity is occurring or
may occur; and
(b) that it is not reasonable or immediately
possible to serve a prohibition notice.
(2) The officer may orally direct a person who has
or appears to have control over the activity to do
or not to do a specified act.
(3) The officer must state the reason for giving the
direction.
(4) A person to whom a direction is given must
comply with it, unless the person has a
reasonable excuse for not doing so.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
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(5) It is a reasonable excuse for not complying with
a direction if the authorised officer did not tell
the person that it is an offence not to do so.
(6) A direction under this section ceases to have
effect if a prohibition notice in respect of the
activity is not served within 5 days of the
direction being given.
124. Withdrawal of prohibition notice
A prohibition notice may be withdrawn by an
authorised officer or the Competent Authority
serving notice of withdrawal on the person
served with the prohibition notice.
125. Amendment of prohibition notice
(1) A prohibition notice may be amended by an
authorised officer serving notice of amendment
on the person served with the prohibition notice.
(2) The notice of amendment must -
(a) state the terms of the amendment; and
(b) state the reasons for the amendment; and
(c) include information about obtaining a
review of the decision to amend the
notice; and
(d) state that it is served under this section.
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(3) An amendment of a prohibition notice is
ineffective if it purports to deal with a
contravention of a different provision of a law
from that dealt with in the prohibition notice.
126. Proceedings for offence not affected by prohibition
notice
The service, amendment or withdrawal of a
prohibition notice does not affect any
proceedings for an offence under this Act.
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s. 127 Part 11 - Miscellaneous
PART 11 - MISCELLANEOUS
Division 1 - Indemnities
127. Protection from liability
(1) An authorised officer or a person who is
authorised under this Act by an authorised
officer to do or to omit to do something does not
incur civil liability for an act or omission done
honestly and in good faith in the course of his or
her duties.
(2) A liability that would, apart from this section,
attach to an authorised officer or to a person
mentioned in subsection (1) attaches instead to
the Competent Authority.
128. Indemnity not affected by certain matters
(1) An indemnity under this Division is not affected
merely because a vehicle was in fact not carrying
dangerous goods.
(2) An indemnity under this Division is not affected
merely because goods were not in fact dangerous
goods.
129. Other indemnities not affected
This Division does not affect any other
indemnity provided under another law, if the
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other indemnity is not inconsistent with an
indemnity provided under this Division.
Division 2 - General
130. Dismissal or other victimisation of employee or
contractor assisting with or reporting breaches
(1) An employer must not dismiss an employee or
contractor, injure an employee or contractor in
his or her employment or alter an employee's or
contractor's position to his or her detriment
because the employee or contractor -
(a) has assisted or has given any information
to a public agency in respect of a breach
or alleged breach of a requirement of this
Act or a corresponding law; or
(b) has made a complaint about a breach or
alleged breach of a requirement of this
Act or a corresponding law to the
employer, a fellow employee or fellow
contractor, a trade union or a public
agency.
(2) An employer or prospective employer must not
refuse or deliberately omit to offer employment
to a prospective employee or prospective
contractor or treat a prospective employee or
prospective contractor less favourably than
another prospective employee or prospective
contractor would be treated in relation to the
terms on which employment is offered because
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the first-mentioned prospective employee or
prospective contractor -
(a) has assisted or has given any information
to a public agency in respect of a breach
or alleged breach of a requirement of this
Act or a corresponding law; or
(b) has made a complaint about a breach or
alleged breach of a requirement of this
Act or a corresponding law to a former
employer, a former fellow employee or
former fellow contractor, a trade union or
a public agency.
(3) A person who is an employer of the person
concerned must not engage in conduct that
results in a contravention of subsection (1).
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(4) A person who is an employer or prospective
employer of the person concerned must not
engage in conduct that results in a contravention
of subsection (2).
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
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(b) an individual, a fine not
exceeding 85 penalty units.
(5) In proceedings for an offence under this section,
if all the facts constituting the offence other than
the reason for the defendant's action are proved,
the onus of proving that the defendant's action
was not actuated by the reason alleged in the
charge lies on the defendant.
(6) If a person is found guilty of an offence under
this section, the court may, in addition to
imposing a penalty on the offender, make either
or both of the following orders:
(a) an order that the offender pay within a
specified period to the employee or
contractor or to the prospective employee
or prospective contractor such damages
as it thinks fit by way of compensation;
(b) an order that -
(i) the employee or contractor be
reinstated or re-employed in the
employee's or contractor's
former position or (if that
position is not available) in a
similar position; or
(ii) the prospective employee or
prospective contractor be
employed in the position for
which the prospective employee
or prospective contractor had
applied or (if that position is not
available) in a similar position.
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(7) The maximum amount of damages cannot
exceed the monetary jurisdictional limit of the
court in civil proceedings.
(8) An order for payment of damages is enforceable
as if it were a judgment of the court sitting in
civil proceedings.
(9) A person must comply with an order for
employment, reinstatement or re-employment.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(10) A person who is subject to an order under
subsection (6)(b) must not engage in conduct
that results in a contravention of the order.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(11) In this section -
"contractor" means an individual who works
under a contract for services;
"public agency" means an authorised officer
or a police officer of this or any other
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jurisdiction or a Competent Authority of
this or any other jurisdiction.
131. Confidentiality
(1) This section applies to a person engaged or
previously engaged in the administration of this
Act and (without limiting the foregoing) to -
(a) a person who is or was a delegate of the
Competent Authority; or
(b) a person who is or was employed by, or
engaged to provide services to or on
behalf of, the Competent Authority; or
(c) a person who is or was employed by, or
engaged to provide services to, a person
or body engaged to provide services to
the Competent Authority.
(2) A person to whom this section applies must not
divulge or communicate information obtained
(whether by that person or otherwise) in the
administration of this Act except -
(a) as required or authorised by or under this
or any other Act; or
(b) with the consent of the person from
whom the information was obtained or to
whom the information relates; or
(c) in connection with the administration of
this Act; or
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(d) to the Competent Authority, a
corresponding authority, an authorised
officer or a police officer; or
(e) to a prescribed public authority of any
jurisdiction; or
(f) to a public authority of any jurisdiction
for law enforcement purposes; or
(g) to a court or in connection with any legal
proceedings; or
(h) in accordance with guidelines approved
by the Minister.
(3) Information that has been disclosed under
subsection (2) for a particular purpose must not
be used for any other purpose by -
(a) the person to whom the information was
disclosed; or
(b) any other person who gains access to the
information (whether properly or
improperly and whether directly or
indirectly) as a result of that disclosure.
(4) A person must not engage in conduct that results
in a contravention of subsection (2) or (3).
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
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(5) Nothing in this section prevents information
from being used -
(a) to assist a person in deciding whether or
not to withdraw a formal warning for any
offence; or
(b) to enable the Competent Authority to
accumulate aggregate data and to enable
it to authorise use of the aggregate data
for the purposes of research or education.
132. False or misleading statements or records provided
to Authority or officials
(1) A person must not make a statement to the
Competent Authority or to an authorised officer
who is exercising a power under this Act that the
person knows, suspects or reasonable ought to
know is false or misleading in a material
particular.
Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(2) A person must not give a record to the
Competent Authority or to an authorised officer
who is exercising a power under this Act that the
person knows, suspects or reasonable ought to
know is false or misleading in a material
particular.
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Penalty: In the case of -
(a) a body corporate, a fine not
exceeding 420 penalty units; or
(b) an individual, a fine not
exceeding 85 penalty units.
(3) Subsection (2) does not apply if, at the time the
person gave the record to the Competent
Authority or officer, the person informed the
Authority or officer that the record was false or
misleading in a material particular and specified
in what respect it was false or misleading.
(4) In this section -
"authorised officer" includes a person who is
assisting an authorised officer or police
officer.
133. Contracting out prohibited
A term of a contract or an agreement that
purports to exclude, limit or modify the
operation of this Act or of a provision of it is
void to the extent that it would otherwise have
that effect.
134. Recovery of costs of public authorities
(1) This section applies to an incident that relates to
the transport of dangerous goods by road or rail,
being an incident -
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(a) wholly or partly constituted by or arising
from -
(i) the escape of dangerous goods; or
(ii) an explosion or fire involving
dangerous goods; or
(b) that involves the danger of the escape of
dangerous goods or an explosion or fire
involving dangerous goods.
(2) If a public authority incurs costs as a result of the
occurrence of an incident to which this section
applies, so much of the costs as were reasonably
incurred are recoverable as a debt due to the
authority by action in a court of competent
jurisdiction.
(3) The costs are recoverable jointly or severally
from the following persons:
(a) the person who was the owner of the
dangerous goods at the time of the
incident;
(b) the person who was in control or
possession of the dangerous goods at the
time of the incident;
(c) the person who caused the incident;
(d) the person responsible, otherwise than as
an employee, agent or subcontractor of
another person, for the transport of the
dangerous goods by road or rail.
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(4) Costs are not recoverable from a person who
establishes that -
(a) the incident was due to the act or default
of another person; and
(b) the person could not, exercising
reasonable care, have prevented the
incident; and
(c) the incident was not attributable to an
employee, agent or subcontractor of the
person.
(5) The recovery of costs incurred by one public
authority as a result of the occurrence of an
incident to which this section applies, including
an award or judgment in relation to those costs
or expenses, does not preclude the recovery of
costs incurred by another public authority as a
result of the occurrence of the incident.
(6) This section does not affect a right to recover an
amount in respect of costs or expenses that exists
apart from this section, but a public authority is
not entitled to recover, in respect of the same
costs or expenses, an amount under this section
and an amount in proceedings founded on other
rights.
(7) In proceedings under this section, a document
apparently signed by the principal officer of the
public authority specifying details of the costs
reasonably incurred as a result of the occurrence
of an incident to which this section applies is, in
the absence of evidence to the contrary, proof of
the matter so specified.
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135. Assistance in emergencies or accidents
(1) A person does not incur civil liability for an act
done honestly and in good faith, and without any
fee, charge or other reward, for the purpose of
assisting or attempting to assist in a situation in
which an emergency or accident involving
dangerous goods occurs or is likely to occur.
(2) Subsection (1) does not apply to a person whose
act or omission was wholly or partly the cause of
the occurrence or likely occurrence.
(3) Subsection (1) applies to a public authority even
though the authority requires payment for a
service provided in connection with the
occurrence or likely occurrence.
(4) This section does not apply to an authorised
officer.
136. Minister to notify adoption of code &c.
(1) If the provisions of a code, standard or rule are
applied, adopted or incorporated by the
regulations, the Minister must, as soon as
practicable after the regulations are made,
publish in the Gazette a notice giving details of
places where the code, standard or rule may be
obtained or inspected.
(2) If -
(a) the provisions of a code, standard or rule
are applied, adopted or incorporated, by
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the regulations, as in force from time to
time; and
(b) the code, standard or rule is amended or
replaced -
the Minister must, as soon as practicable after
the amendment or replacement, publish in the
Gazette a notice stating that the code, standard or
rule has been amended or replaced and giving
details of places where the amended or replaced
code, standard or rule may be obtained or
inspected.
(3) A reference in this section to a code, standard or
rule includes a reference to one that is made
outside Australia.
(4) A notice under this section is not -
(a) a statutory rule for the purposes of the
Rules Publication Act 1953; or
(b) subordinate legislation for the purposes
of the Subordinate Legislation Act 1992.
137. Delegation
The Minister may, by instrument in writing,
delegate all or any of the Minister's powers
under this Act to a Competent Authority other
than the powers under the following sections:
(a) section 11 (Appointment of Competent
Authorities);
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(b) section 67 (Application orders and
emergency orders).
138. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Workplace Relations;
and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
139. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
140. Legislation repealed
The legislation specified in Schedule 2 is
repealed.
141. Legislation rescinded
The legislation specified in Schedule 3 is
rescinded.
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SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
Section 139
Dangerous Substances (Safe Handling) Act 2005
1. Section 12(1)(a) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
and substituting "Dangerous Goods (Road and
Rail Transport) Act 2009".
2. Section 45(2)(a) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
and substituting "Dangerous Goods (Road and
Rail Transport) Act 2009".
3. Section 52(2)(a) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
and substituting "Dangerous Goods (Road and
Rail Transport) Act 2009".
Fire Service Act 1979
1. Section 51(3) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
and substituting "Dangerous Goods (Road and
Rail Transport) Act 2009".
2. Section 133(3)(a) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
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and substituting "Dangerous Goods (Road and
Rail Transport) Act 2009".
Gas Act 2000
1. Section 6 is amended by omitting "Dangerous
Goods (Safe Transport) Act 1998" and
substituting "Dangerous Goods (Road and Rail
Transport) Act 2009".
Gas Pipelines Act 2000
1. Section 6 is amended by omitting "Dangerous
Goods (Safe Transport) Act 1998" and
substituting "Dangerous Goods (Road and Rail
Transport) Act 2009".
Security-sensitive Dangerous Substances Act 2005
1. Section 7 is amended by omitting "Dangerous
Goods (Safe Transport) Act 1998" and
substituting "Dangerous Goods (Road and Rail
Transport) Act 2009".
Vehicle and Traffic Act 1999
1. Section 49(7) is amended by omitting
"Dangerous Goods (Safe Transport) Act 1998"
from paragraph (d) of the definition of "related
Act" and substituting "Dangerous Goods (Road
and Rail Transport) Act 2009".
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SCHEDULE 2 - LEGISLATION REPEALED
Section 140
Dangerous Goods (Safe Transport) Act 1998 (No. 6 of 1998)
Dangerous Goods Amendment Act 2005 (No. 51 of 2005)
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SCHEDULE 3 - LEGISLATION RESCINDED
Section 141
Dangerous Goods (Road and Rail Transport) Regulations
1998 (No. 162 of 1998)
Dangerous Goods (General) Regulations 1998 (No. 163 of
1998)
Dangerous Goods (Fees) Regulations 1998 (No. 164 of 1998)
Dangerous Goods (Road and Rail Transport) Amendment
Regulations 2000 (No. 128 of 2000)
Dangerous Goods (Road and Rail Transport) Amendment
Regulations 2003 (No. 160 of 2003)
Dangerous Goods (Road and Rail Transport) Amendment
Regulations 2009 (No. 44 of 2009)
Government Printer, Tasmania 181