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1996
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
ROAD
TRANSPORT REFORM (DANGEROUS GOODS)
AMENDMENT
BILL 1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Transport
and
Regional Development, the Honourable John Sharp
MP)
79478 Cat. No. 96 5441 0
ISBN 0644 48148X
ROAD TRANSPORT REFORM (DANGEROUS
GOODS) AMENDMENT BILL
1996
OUTLINE
The Road Transport Reform (Dangerous Goods) Act
1995 (the Act) received Royal Assent on 12 April 1995. Sections 1 and 2
commenced on Royal Assent. The remainder of the Act commenced on 13 April 1996
in accordance with subsection 2(3) of the Act. The Act establishes a
legislative framework for a national regulatory scheme for the transport of
dangerous goods by road.
The national scheme
has been developed by the National Road Transport Commission under the
intergovernmental road transport agreements, the Heavy Vehicles Agreement of
1991 and the Light Vehicles Agreement of 1992 which are scheduled to the
National Road Transport Commission Act 1991. In addition to the Act, the
national scheme will eventually be comprised of the proposed Road Transport
Reform (Dangerous Goods) Regulations (the proposed Regulations), and the
proposed revised Australian Code for the Transport of Dangerous Goods by Road
and Rail (the proposed Code).
The substantive
regulatory scheme will be established by the proposed Regulations which have
been developed by the National Road Transport Commission in consultation with
State and Territory Competent Authorities and major stakeholders. The proposed
Regulations set out the administrative basis of the scheme and the obligations
of each of the parties involved in the transport of dangerous goods. The
proposed Code, which has been prepared by the National Road Transport Commission
in consultation with the Drafting Subcommittee of the Advisory Committee on the
Transport of Dangerous Goods, sets out the technical subject matter of the
obligations provided for in the
Regulations.
The development of the proposed
Regulations and the proposed Code has given rise to the need to make some
technical amendments to the Act. Part 2 of the Act provides for the making of
regulations. Subsection 11(1) provides that the Governor-General may make
regulations prescribing matters required or permitted to be prescribed by the
Act, or necessary or convenient to be prescribed for carrying out or giving
effect to the Act. Subsection 11(2) provides specific heads of powers under
which regulations may be made. Subsection 11(3) provides that the regulations
may apply, adopt or incorporate any or all of the provisions of a code or
standard relating to dangerous goods or to transport by
road.
Considering the specific heads of power to
make regulations under subsection 11(2), the Road Transport Reform (Dangerous
Goods) Amendment Bill 1996 (the Bill) is necessary for the following
reasons:
• to clarify, or put beyond
doubt, the power to make regulations in respect of specific subject matter,
particularly where it appears prudent to make express provision rather than rely
on the “necessary or convenient” regulation-making power contained
in subsection 11(1) of the
Act;
• to
reflect changes arising from the development of the proposed Regulations,
particularly in relation to terminology, which have been agreed to by the States
and
Territories;
• to
deal with consequential amendments.
This Bill
makes those amendments.
FINANCIAL IMPACT
STATEMENT
The amendments proposed by the
Bill are of a technical or drafting nature, or are consequential on matters
arising during the development of the proposed Regulations. As a result, the
Bill does not, in itself, have any impact on Commonwealth revenues or
expenditure.
ROAD TRANSPORT REFORM (DANGEROUS
GOODS) AMENDMENT BILL 1996
NOTES ON
CLAUSES
Clause 1 - Short
Title
This clause provides for the
proposed Act to be cited as the Road Transport Reform (Dangerous Goods)
Amendment Act 1996.
Clause 2 -
Schedule(s)
This clause makes provision
for the Road Transport Reform (Dangerous Goods) Act 1995 (the Act) to be
amended as set out in the Schedule.
Schedule
1
Schedule 1 sets out the provisions
relating to the amendment of the
Act.
Item 1, Section
5
This item amends section 5 to specify
that applications for review of decisions under the Act are to be made to the
Administrative Appeals Tribunal of the Australian Capital
Territory.
Item 2, Section 6 (definition of
dangerous goods)
This item amends
the existing definition of “dangerous goods” by inserting a new
definition which includes substances or articles determined by a Competent
Authority in accordance with the regulations to be dangerous goods. This
amendment is consequential on the amendment of the regulation-making power to
expressly provide for sub-delegation of the power to classify dangerous
goods.
Item 3, Section 6 (paragraph (b) of
the definition of involvement in the transport of dangerous goods by
road)
This item amends paragraph (b) of
the definition of “involvement in the transport of dangerous goods by
road” and replaces the references in that paragraph to packing and
labelling of packaged dangerous goods with references to marking and placarding.
The terms “marking” and “placarding” are used
internationally for dangerous goods transport, and are used throughout the
proposed Regulations. The change in terminology has also been made in the
proposed amendments to the definition of “transport” in
section 6, the regulation-making power in paragraph 11(2)(e) and paragraphs
40(2)(c), (d), (e) and (f), to ensure consistency throughout the
Act.
Item 4, Section 6 (definition of
transport)
This item amends the
definition of “transport” by inserting a new definition that
includes the activities of packing and transferring dangerous goods, and marking
and placarding of dangerous goods. These activities are likely to be within the
meaning of “matters incidental to transport” used in the Act,
but they have been listed expressly in paragraph (c) of the definition to avoid
any doubt.
Item 5, Subsection
9(1)
This item omits the words “in
relation to the Australian Capital Territory”, which are unnecessary as
the definitions of “Government Gazette” and “Minister”
in paragraphs 9(1)(a) and (b) refer to the Australian Capital
Territory.
Item 6, Section 11
This item amends section 11 to incorporate a
number of changes. The changes fall into three categories: drafting changes to
existing provisions to clarify the effect of particular regulation-making
powers; new provisions included for the avoidance of doubt; and consequential
numbering changes.
Subsection 11(1) remains
unchanged.
New subsection 11(2) inserts a new
express provision which allows for regulations to commence on a day later than
the day on which they are notified in the Commonwealth Gazette. This provision
is intended to allow for the commencement of the Commonwealth regulations and
the regulations as adopted by the States and Territories to commence on the same
day, thereby ensuring coordinated commencement of the national regulatory
scheme.
New paragraph 11(3)(a) replaces
paragraph 11(2)(a) but substitutes the word “types” for
“categories” to ensure consistency with industry usage. This
terminology change has also been made in the amendments proposed to paragraphs
11(2)(j), 11(6)(b) and 40(2)(b).
New
paragraph 11(3)(b) has been inserted to provide for regulations to be made which
allow a Competent Authority to determine dangerous good and whether they are too
dangerous to transport.
New paragraph 11(3)(c)
re-enacts paragraph 11(2)(b). The words “and testing” have
been added to remove any doubt that regulations may be made relating to either
or both of the analysis and testing of dangerous
goods.
New paragraph 11(3)(d) replaces paragraph
11(2)(c). The expression “goods too dangerous to transport”
is replaced with “goods too dangerous to be transported”, in
line with the terminology used in the United Nations’ Recommendations on
the Transport of Dangerous Goods. The same terminology change has been made in
the proposed amendment to section 36. A power to make regulations relating to
“goods too dangerous to be transported in bulk” is also
included in proposed paragraph
11(3)(d).
New paragraph 11(3)(f)
replaces paragraph 11(2)(e). The references to packaging and labelling are
replaced with the “marking and placarding” terminology that is used
internationally. This change has also been made in the amendments proposed in
section 6 in the definitions of “involvement in the transport of dangerous
goods by road and transport” and in paragraphs 40(2)(c),
(d), (e) and (f).
New paragraph 11(3)(g)
reproduces existing paragraph 11(2)(f).
New
paragraph 11(3)(h) expressly provides that regulations may be made which impose
duties on manufacturers of dangerous goods to be transported and of vehicles and
containers intended to be used in the transport of dangerous goods by road, and
removes any doubt that such manufacturers are within the scope of the
Act.
New paragraph 11(3)(i) replaces existing
paragraph 11(2)(g), except that the words “by the Minister” have
been deleted, as these are not necessary.
New
paragraph 11(3)(j) reproduces existing paragraph
11(2)(h).
New paragraph 11(3)(k) replaces
paragraph 11(2)(i), but changes the reference to the “designation by the
Minister” to a reference to the “determination by a Competent
Authority”. This change allows regulations to be made where the Competent
Authority has the power to make determinations on every day matters, such as
route and travel times, rather than the
Minister.
New paragraph 11(3)(l) replaces
paragraph 11(2)(j). The word “categories” is replaced with
“types” to ensure consistency with industry usage. This
change has also been made in the amendments proposed to paragraphs 11(2)(a),
11(6)(b) and 40(2)(b).
New paragraph 11(3)(m)
replaces paragraph 11(2)(k) and makes it clear that this head of power will
allow regulations to be made relating to both the licensing of vehicles and
drivers for the purposes of the transport of dangerous goods, and, the licensing
of people responsible for the transport of dangerous goods by road or for
vehicles used in that transport.
New paragraph
11(3)(n) makes it clear that this head of power will allow regulations to be
made relating to the mandatory accreditation of people involved in the transport
of dangerous goods by road, including the accreditation of people involved in
“particular aspects” of that
transport.
New paragraph 11(2)(o) makes it
clear that regulations may be made relating to the approval by a Competent
Authority of forms in which applications are to be made for the purposes of the
regulations, in addition to allowing forms to be prescribed by the
regulations.
New paragraph
11(3)(p) makes explicit provision for regulations relating to the approval by a
Competent Authority of equipment used, testing methods and facilities and
processes carried out in relation to the transport of dangerous goods.
New paragraph 11(3)(q) replaces paragraph
11(2)(l) and includes the power to make regulations relating to the approval by
a Competent Authority of alternative transportation
documentation.
New paragraphs 11(3)(r), (s)
and (t) reproduce existing paragraphs 11(2)(m), (n) and (o), respectively. New
paragraph 11(3)(r) replaces the word “emergency” with the words
“dangerous situation” which is defined in section 6 of the Act. New
paragraph 11(3)(t) inserts a new head of power allowing regulations to be made
with respect to the approval of training courses and qualifications relating to
the involvement in the transport of dangerous goods by
road.
New paragraph 11(3)(u) replaces
paragraph 11(2)(p). The words “and giving effect to those things”
have been added to make it clear that the regulations may give effect to the
administrative action of a Competent Authority in another jurisdiction as if it
were the action of the Competent Authority in the jurisdiction in which the
legislation is in force.
New paragraph
11(3)(v) replaces paragraph 11(2)(q) and removes any doubt that regulations may
provide for the review of any of the administrative decisions that are made
under the Act, not just the review of decisions relating to licensing and
accreditation.
New paragraph 11(3)(w)
reproduces paragraph 11(2)(r).
Proposed
subsections 11(4) and (5) replace subsections 11(3) and (6), respectively. The
present subsections 11(4) and 11(5) have been substantially repositioned in new
subsections 50(1) and (2), to ensure the reference to the “Minister”
in those provisions is read correctly as a reference to the responsible Minister
of the jurisdiction in which the legislation is in
force.
The word “categories” is
replaced with “types” in proposed paragraph 11(5)(b), to ensure
consistency with the international requirements. This terminology change has
also been made in the amendments proposed to paragraphs 11(2)(a), 11(2)(j), and
40(2)(b).
Item 7, Subsection
13(2)
This item provides that a Competent
Authority not only has the same powers of an authorised officer, but has the
same immunities as an authorised officer when exercising the powers of an
authorised officer. This express provision will make it clear that a Competent
Authority exercising the powers of an authorised officer is in the same legal
position as an authorised officer.
Item 8,
Section 14
This item puts beyond doubt a
Competent Authority’s power to appoint both individuals and classes
of people as authorised officers. New subsection 14(3) replaces subsection
15(1), which is to be repealed by item 9. It also removes the mandatory
requirement that a Competent Authority must issue an identification card to each
authorised officer, because where there is more than one Competent Authority in
a jurisdiction it is not necessary for each Competent Authority to issue each
officer in the jurisdiction with an identification card. Nor is it necessary to
issue identification cards to police officers who are appointed as authorised
officers, as police officers are already subject to separate police
identification procedures.
Item 9, Subsections 15(1) and (2)
This item repeals subsections 15(1) and
(2), which respectively provide for a Competent Authority to issue
identification cards and the require identification cards to contain prescribed
details. These provisions have been combined and remade as proposed subsection
14(3).
Item 10, Subsection
15(3)
This item clarifies that the
obligation to carry and produce identification cards shall only apply to
authorised officers who are not police officers. That obligation does not
relate to police officers appointed as authorised officers because police
officers are subject to the police identification procedures set out in new
subsection 15(4).
Item 11, After subsection
15(3)
This item inserts new subsection
15(4) that sets out the identification requirements that apply to police
officers who have been appointed as authorised
officers.
Item 12, Subsection
16(1)
Consequential upon the amendments to
sections 14 and 15 by items 9, 10 and 11, this item clarifies that only those
authorised officers who have been issued with identification cards must return
those cards when they cease to be authorised
officers.
Item 13, Subsection
20(1)
This item amends subsection 20(1) to
make it clear that the powers of an authorised officer under section 20 in
respect of evidence of an offence at premises apply equally in respect of
evidence of an offence on “a vehicle or equipment at the
premises”.
Item 14, Subsection
20(2)
This item amends subsection 20(2).
The provisions in paragraphs (b) and (c) have been omitted, to remove an overlap
with the provisions in section 27 that relate to the preservation and seizure of
evidence of an offence.
Item 15, Subsection
20(4)
This item deletes subsection 20(4) to
remove an unintended duplication of the powers in section 20 and the general
investigative powers in subsections 18(3) and
18(4).
Item 16, Section 23
This item makes clear that the substantive
provisions of section 23 do not apply to a corporation. Section 23 provides
that a person (including a corporation) is not excused from answering a question
asked by an authorised officer on the ground that the answer might tend to
incriminate the person, but any response given to the question is not admissible
in evidence against that person in any criminal proceedings except for an
offence set out in section 22 relating to failure to comply with a lawful
direction, obstruction of an authorised officer, or giving false or misleading
information. An unintended consequence of that provision may have been to allow
a corporation to invoke the privilege against self incrimination. This would be
inconsistent with the 1993 decision of the High Court in Environment
Protection Authority v Caltex Refining Co Pty Ltd and the rules in the
Commonwealth Evidence Act 1995, which are intended to form the
basis of the uniform national laws of
evidence.
Item 17, After section
33
This item inserts new section 33A which
makes clear that a person has a right to apply for a review of a decision by a
Competent Authority who has refused to grant an exemption, cancelled an
exemption, varied or cancelled conditions to which an exemption is subject, or
imposed new conditions.
Item 18, Section
35
This item remakes section 35 to set out
with greater clarity the offences and penalties relating to the failure to hold
a licence or to be accredited as required by the regulations. This item also
removes an inequity in the penalty structure that applies to unlicensed drivers
and unlicensed operators of vehicles.
Item
19, Section 36
This item omits the words
“dangerous goods” from section 36 and substitutes
“goods”, because goods that are too dangerous to be
transported are not necessarily also “dangerous goods” as defined in
section 6.
Item 20, Section 36
This item changes the terminology used in
section 36 from “goods too dangerous to transport” with the
expression “goods too dangerous to be transported”, in line with the
terminology used in the Recommendations of the United Nations’ Committee
of Experts on Dangerous Goods. The heading of this section has been amended as
a consequence (refer to the Note at the end of this Bill). The same change has
been made by the amendment proposed to paragraph
11(2)(c).
Item 21, Paragraph
40(2)(b)
This item inserts the word
“types” in this paragraph, to ensure consistency with
industry usage. Paragraphs 11(2)(a), 11(2)(j) and 11(6)(b) have also
been amended to replace “categories” with
“types”.
Item 22, Paragraphs
40(2)(c), (d), (e) and (f)
This item
replaces “labels” with “placards”, to conform to the
terminology used in international dangerous goods
requirements.
Item 23, Subsection
42(5)
This item replaces the requirement
that a company must actually be convicted of an offence against the Act
before a director of the company may be deemed liable for that offence with the
requirement that the company must have committed the offence. Thus, it
is the finding of guilt against the company, rather than the particular sentence
imposed on the company that is relevant. The effect of this change is to avoid
a procedural and technical impediment which may enable a company director to
avoid liability if a court finds the company has committed the offence but
exercises its discretion not to record a
conviction.
Item 24, Subsection 48(2)
This item replaces the reference to the
“authorised officer’s employer” in this subsection with
a reference to the “relevant Competent Authority”. This makes clear
that civil liability of authorised officers is to fall upon the person who
appointed the authorised officer.
Item 25,
After section 49
This item remakes
subsections 11(4) and 11(5) which have been repealed by item 6. The provisions
in these subsections are remade in Part 6 (Miscellaneous) of the Act to avoid
the operation of section 9 (Application of the Commonwealth Acts
Interpretation Act 1901) which would have the effect of limiting the
references to “Minister” to references to the “responsible
Minister for the Australian Capital Territory”,
only.
Note
This
note provides for an amendment of the heading for section 36 consequential on
the amendment of the terminology in that section from goods “too dangerous
to transport” to goods “too dangerous to be
transported”.