Dangerous Goods Amendment (Transport) Bill 2008

Dangerous Goods Amendment (Transport) Bill 2008

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 9/9/2008

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the purpose of the Bill. The main purpose is to amend the Dangerous Goods Act 1985 (the DGA) to facilitate the implementation into the DGA of the Model Law contained in the new national legislative framework for the transport of dangerous goods by road and rail, having regard to the statutory framework that exists in Victoria. The Bill also realigns some penalties for existing general duty offences in the DGA with those for similar offences for dangerous goods transport.

The legislative scheme is to incorporate provisions of the Model Law into the existing legislation, the DGA, rather than make a new, separate Act. The Model Law consists of a Model Act and Model Subordinate Law (MSL).

Under the Road Transport (Dangerous Goods) Act 1995 (the "template law") most parts of the Road Transport Reform (Dangerous Goods) Act 1995 of the Commonwealth currently apply as Victorian law. The Bill provides for the repeal of the Road Transport (Dangerous Goods) Act 1995 under which the existing scheme operates. For the first time administrative requirements and technical requirements in relation to road and rail are aligned under one Act in line with the Model law.

Clause 2 provides for the commencement of the Act. Subclause (1) provides that the provisions of the Act come into operation on a day or days to be proclaimed. The effect of subclause (2) is that if a provision of the Act does not come into operation before 1January 2010, it comes into operation on that day

PART 2—AMENDMENT OF DANGEROUS GOODS ACT 1985

Clause 3 has the effect that in Part 2 of the Bill, the DGA is referred to as the Principal Act.

Clause 4 amends section 3, the definition section of the DGA to define terms used throughout the Act as amended.

As far as possible the implementation of the Model Law relies on the definitions already contained in the DGA, with regulation-specific definitions from the Model Law to be inserted into the regulations rather than the Act. However, some new terms are required and some existing terms are required to be amended or replaced in the Act. For example, the definition of ADG Code has been amended so that amendments are not required each time a new edition of the ADG Code is adopted nationally.

Clause 5 amends section 8 of the DGA to clarify the relationship between the DGA and the Environment Protection Act 1970 and the National Environment Protection Council (Victoria) Act 1995.

The effect of the provision is that the DGA does not generally apply to the transport of prescribed waste or prescribed industrial waste needing a permit or a transport certificate under Part 9A of the Environment Protection Act 1970 or the transport of waste undertaken in accordance with the requirements of any national environment protection measure made under the National Environment Protection Council (Victoria) Act 1995. Thisprovision maintains the existing position which is in force by virtue of section 9(4) of the template law.

Clause 6 amends section 9 of the DGA. Section 9(f) of the DGA excludes substances that are infectious to humans from the application of the DGA. The regulations currently in operation for the road transport of dangerous goods explicitly exclude infectious substances. Although the DGA currently does not explicitly exclude substances infectious to animals or plants, or genetically modified organisms from its application, it was never envisaged or understood that they were, or should be, within its scope. TheModel Law includes substances under UN Division 6.2 (infectious substances) capable of applying to infectious substances that can affect animals. In Victoria, control of such infectious substances affecting animals and plants is through the Department of Primary Industry with its administration of the Livestock Disease Control Act 1994 and the Plant Health and Plant Products Act 1995. Accordingly a new section 9(ec) is inserted so that the DGA does not apply to these infectious substances. For similar reasons a new section 9(ed) is inserted to exclude genetically modified organisms as defined in the Gene Technology Act 2001 from the scope of the DGA.

Clause 7 introduces new section 9C into the DGA and consistent with the Model Act enables the Minister, by notice in the Government Gazette, to suspend or vary the operation of regulations about the transport of dangerous goods, other than explosives or High Consequence Dangerous Goods (HCDG). The provision is based on regulation 67 of the Model Act. The provision is necessary to provide contingency arrangements for possible emergencies. Theprovision augments the power of the Governor in Council under existing section 9A of the DGA.

The effect of subsections (3)–(6) of new section 9C is to require an order made under section 9C to be tabled in Parliament and makes the order subject to disallowance.

Clause 8 provides for the adoption of ADG code and inserts new subsections 10(1), 10(1A) 10(1B) and 10(1C). Under subsection 10(1A) a reference to a provision of the ADG Code is a reference to that provision as in force from time to time. Subsection 10(1B) sets the commencement date for amendments to the Code. Under subsection 10(1C) when an amendment is made to the ADG code there is a six month period of grace within which compliance with either the old or new versions is acceptable, unless a later date has been set.

Clause 9 inserts new sections 10C, 10D and 10E into the DGA.

The Model Law makes provision for certain information to be given to a corresponding authority, including the power to give to any public authority evidence that has been seized (including things as well as records) and any information obtained through the use of inspector powers. The Model Law also includes provisions preventing disclosure of information obtained, except in prescribed circumstances. Although the DGA does not currently have equivalent provisions, the Occupational Health and Safety Act 2004 (OSHA) covers information disclosure to corresponding authorities and other prescribed persons/bodies in relation to administration of the DGA. The Accident Compensation Act 1985 also has information disclosure provisions.

To provide clarity and transparency as to the circumstances and limitations on the Authority's power to disclose certain information acquired under the DGA, clause 9 includes provisions (new sections 10D and 10E) similar to those currently set out in sections 10 and 11 of OHSA. New section 10C is based on regulation 17 of the Model Act.

Clause 10 amends section 16 of the DGA to clarify that a place is not being used for residential purposes merely because temporary or casual sleeping or other accommodation is provided for vehicle drivers (for example, cabins in long-distance trucks) in line with the provision in regulation 42 of the Model Act. This clause has been included in the Bill for the sake of consistency with the national scheme and to clarify the situation in Victoria.

Clause 11 amends section 20 of the DGA to broaden the provisions in PartIIA of the DGA for review of administrative decisions of the Authority. Itintroduces a regulation-making power in the DGA to enable regulations to be made prescribing other decisions made under the regulations to be reviewable decisions. Thisclause will enable Victoria to give effect to provisions in the MSL requiring that there be a reconsideration of decisions made by the competent authority.

Clause 12 amends section 20B of the DGA to make necessary changes to the provisions governing review by the Tribunal consequent on the broadening of the scope for reviews made by clause 11.

Clause 13 amends section 21 of the DGA so that subsection (2) does not apply in respect of a licence to which section 21AA applies. Section 21(2) is an offence provision needed for licences required by other regulations, and this amendment is needed to avoid overlap with section 21AA.

Clause 14 inserts a new section 21AA into the DGA which contains provisions relating to the licensing of vehicles involved in the transport of dangerous goods, and creates a number of offences based on breaches of licensing obligations. The clause provides a transition from the specification of offences which is currently set out in section 35 of the template law, in light of the revised proposals to be found in regulation 69 of the Model Act.

New section 21AA creates the following offences—

·  it prohibits a prime contractor from using a vehicle to transport dangerous goods (other than as the driver of the vehicle) if the regulations require the vehicle to be licensed, and the vehicle is not licensed (section21AA(2));

·  it prohibits a person from consigning dangerous goods for transport on a vehicle without a licence if the person knows or reasonably ought to know that the regulations require the vehicle to be licensed to transport the goods, and the vehicle is not licensed (section 21AA(5));

·  it prohibits a person from employing, engaging, causing or permitting 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 the person is not licensed (section21AA(6));

·  it prohibits a person from driving a vehicle transporting dangerous goods if the regulations require the vehicle to be licensed, and the vehicle is not licensed (section21AA(8));

·  it prohibits a person from driving a vehicle transporting dangerous goods if the regulations require the person to be licensed to drive the vehicle, and the person is not licensed (section 21AA(9));

These offences have no application to HCDG licences and Explosives licences. The existing licence-related penalties under section 21(2) of the DGA will continue to apply to these licences.

The maximum penalty under new sections 21AA(5), 21AA(8) and 21AA(9) is 100 penalty units (except in the case of section21AA(5), where a corporate consigner is subject to a penalty of 500 penalty units). The other offences under new section 21AA have equivalents under the template law which attract a maximum penalty of $250 000 for a body corporate, or for an individual, $50 000 or imprisonment for two years, or both. Under the new equivalents in sections 21AA(2), and 21AA(6) the maximum penalties are either 500 penalty units for an individual or 2500 for a body corporate, except where the failure results in death or serious injury to a person when the maximum penalty for a body corporate is 2500 penalty units, and for an individual is 500 penalty units or imprisonment for twoyears (not both).

Clauses 15, and 16 amends section 22, and 23 respectively of the DGA as a consequence of the expansion of the reviewable decisions through the mechanism contained in clause 11. The amendments are necessary because some licensing decisions will qualify for review by being listed under the regulations, and will be reviewed through the processes set out in Part IIA or the regulations. So that such reviewable decisions do not also fall within the review arrangements set out in sections 22 and 23 it is necessary to insert new provisions to avoid that result. It is essential to maintain the separation between the different review processes in Parts IIA and Part III of the DGA.

Clause 17 amends section 24 of the DGA to enable the regulations to prescribe grounds on which the Authority may or must amend, suspend or revoke a licence. The Authority currently has a broad discretionary power under section 24. Enabling the regulations to specify grounds for amendment, suspension or revocation will enhance consistency and transparency.

Clause 18 amends section 25 of the DGA as a consequence of the expansion of the reviewable decisions through the mechanism contained in clause 11. The amendment is required for the similar reasons stated in relation to clauses 15 and 16.

Clause 19 amends the general duty provision in section 31 of the DGA to better align it with the offences that are being included in the DGA by clause 20 (existing general duty offences for similar offences for transport of dangerous goods). The Bill aims to reduce anomalies between existing penalties for general duty offences under the DGA and similar offences under the template law and in regulations 70 and 71 of the Model Act. The existing penalty in section 31 is substantially lower than the existing template law road transport penalties for similar offences and the Bill realigns it with the latter penalties to avoid an anomaly. Theexisting penalty under section 31 is the general penalty found in section45 of the DGA, namely, 400 penalty units in the case of the corporation or 100 penalty units in the case of an individual, together with further penalties for continuing offences.

Following the approach in the template law and Model Law this Bill provides for courts to have the ability to impose custodial sentences for a general duty breach involving serious injury, death or aggravated offences involving a mental element. However, having regard to the approach taken in OHSA not to include custodial sentences for general duty crimes the Bill does not continue the existing ability under the template law to impose custodial sentences for less serious breaches of the general duty or transport related licence offences not involving serious injury or death.

Under this clause the new maximum penalties applying under sections 31(1), 31(2) and 31(4) of the DGA are either 500 penalty units for an individual or 2500 for a body corporate, except where the failure results in death or serious injury to a person when the maximum penalty for a body corporate is 2500 penalty units, and for an individual is 500 penalty units or imprisonment for two years (not both).