Part 5Miscellaneous
29Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
30Fees to be paid into Workers
Compensation Operational Fund
Any fees paid to SafeWork NSW as the regulatory
authority under this Act or the regulations are to be paid into the Workers
Compensation Operational Fund under the Workplace Injury
Management and Workers Compensation Act
1998.
s 30: Subst 2015 No
19, Sch 15.6 [3].
31Regulations relating to
dangerous goods
(1)
This section applies to dangerous goods within
the meaning of Schedule 1 to the Work Health and
Safety Act 2011 that are not dangerous goods to which that
Schedule applies.
(2)
The regulations may make provision for or with
respect to the control and regulation of dangerous goods to which this section
applies, including but not limited to the following:
(a)
the handling of dangerous
goods,
(b)
premises, vehicles, vessels, containers and any
other equipment or things that are intended for use, are being used or have
been used in connection with dangerous goods,
(c)
smoking, the lighting or use of fire and any
other dangerous, or potentially dangerous, activities in the vicinity of
dangerous goods,
(d)
the inspection, examination and testing of
dangerous goods and equipment intended for use or used in connection with
dangerous goods,
(e)
records relating to dangerous goods and the
furnishing of returns and other information relating to dangerous
goods.
s 31: Am 2011 No 67,
Sch 4.9 [2] [3].
32Proceedings for
offences
(1)
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before:
(a)
the Local Court, or
(b)
the District Court.
(2)
Proceedings for an offence against this Act or
the regulations may be instituted within the period of 2 years after the act
or omission alleged to constitute the offence.
s 32: Am 2007 No 94,
Sch 2; 2016 No 48, Sch 2.19.
33Liability of directors etc for
offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive
liability offence is an offence against any of the following
provisions of this Act that is committed by a corporation:
section 6 (1)
(2)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has
in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
s 33: Subst 2012 No
97, Sch 1.12 [2].
33ALiability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is an offence
against this Act or the regulations that is capable of being committed by a
corporation, whether or not it is an executive liability offence referred to
in section 33.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
s 33A: Ins 2012 No
97, Sch 1.12 [2].
34Penalty
notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(6)
In this section, authorised officer means:
(a)
an inspector, or
(b)
a police officer, or
(c)
a person belonging to a class of persons
specified in the regulations.
s 34: Subst 2017 No
22, Sch 3.22.
35Disclosure of
information
(1)
Except as provided by subsection (2) or (3), a
person must not disclose any information obtained in connection with the
administration or execution of this Act unless that disclosure is made:
(a)
with the consent of the person from whom the
information was obtained, or
(b)
in connection with the administration or
execution of this Act, or
(c)
for the purposes of any legal proceedings arising
out of this Act or of any report of any such proceedings,
or
(d)
in accordance with a requirement imposed under
the Ombudsman Act 1974,
or
(e)
to a person or body prescribed by the
regulations, or
(f)
with other lawful
excuse.
Maximum penalty: 5 penalty
units.
(2)
The regulatory authority may communicate any
matter which comes to its knowledge in the exercise or performance of its
functions under this Act to an officer or authority engaged in administering
or executing a law of the Commonwealth or of another State or a Territory
relating to dangerous goods or explosives or to any other person or body
prescribed, or of a class prescribed, by the
regulations.
(3)
The regulatory authority may communicate any
information concerning the location, type and quantity of explosives, which
comes to its knowledge in the exercise of its functions under this Act, to any
person or authority requiring the information to provide an emergency or
rescue service or some other lawful service.
(4)
The regulatory authority may (subject to any
conditions or limitations prescribed by the regulations) communicate any
information which comes to its knowledge in the exercise of its functions
under this Act with respect to licences and security clearances and the
holders of licences and security clearances to any person or body prescribed,
or of a class prescribed, by the regulations.
s 35: Am 2013 No 81,
Sch 1 [26] [27].
36Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
Without limiting subsection (1), regulations may
be made for or with respect to the following:
(a)
the control and regulation of explosives and
explosive precursors, including but not limited to the following:
(i)
the handling of explosives or explosive
precursors,
(ia)
the security clearances required to be held by
persons who handle explosives or explosive precursors,
(ii)
premises, vehicles, vessels, containers and any
other equipment or things which are intended for use, are being used or have
been used in connection with explosives or explosive
precursors,
(iii)
smoking, the lighting or use of fire and any
other dangerous, or potentially dangerous, prescribed activities in the
vicinity of explosives or explosive precursors,
(iv)
the inspection, examination and testing of
explosives or explosive precursors and equipment intended for use or used in
connection with explosives or explosive precursors,
(v)
records relating to explosives or explosive
precursors and the furnishing of returns and other information relating to
explosives or explosive precursors,
(b)
the fees chargeable or payable for doing any act
or providing any service in connection with this Act or the
regulations,
(c)
forms for the purposes of this Act or the
regulations,
(d)
the manner of serving notices under this Act or
the regulations,
(e)
the review of actions and determinations of an
inspector or other person who has functions under this
Act,
(f)
any information to be provided to any person by
an inspector or other person exercising functions relating to the
administration of this Act.
(2A)
(3)
The regulations may create offences punishable by
a penalty not exceeding 250 penalty units.
(4)
The regulations may apply, adopt or incorporate
any publication as in force at a particular time or from time to
time.
s 36: Am 2012 No 42,
Sch 1.9 [1] [2]; 2013 No 81, Sch 1 [28].
37Savings, transitional and
other provisions
Schedule 1 has effect.
38Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to the Explosives Amendment Act
2013.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
s 38: Am 2013 No 81,
Sch 1 [29].