An Act to provide for the regulation and control of the handling of explosives and explosive precursors; to provide for the regulation of certain other dangerous goods; and for related purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Explosives Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:container includes any receptacle and any covering.convey includes carry, load, unload, transfer, transmit, pump or discharge.exercise a function includes perform a duty.explosive means any article or substance prescribed by the regulations as an explosive for the purposes of this Act.explosive precursor means any article or substance prescribed by the regulations as an explosive precursor for the purposes of this Act.function includes power, duty and authority.handling includes the activities of conveying, manufacturing, processing, possessing, using, preparing for use, treating, dispensing, storing, packing, selling, supplying, importing into the State from another country, rendering harmless, abandoning, destroying and disposing.inspector means an inspector appointed under Part 4.licence means a licence under this Act.manufacture, in relation to any explosive, includes the blending together of any substances to make the explosive, the breaking up of the explosive and the re-making, altering or repairing of the explosive.premises means any land, building or enclosed place, or part of land, building or enclosed place, or any portable structure.—see section 4.sell includes any of the following:(a) sell by tender,(b) barter or exchange,(c) consign or deliver for sale,(d) advertise for sale,(e) offer for sale,(f) have in possession for sale,(g) agree to sell,(h) sell or do any of the above:(i) as an agent or broker, or(ii) by an agent or broker,In paragraphs (c)–(g), the expressions sale and sell are capable of having the extended meaning given by paragraph (a) or (b) or both.(i) cause a sale to take place or cause any of the above to be done.substance means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour.(2) Notes included in this Act do not form part of this Act.
4 Meaning of “regulatory authority”
(1) The WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998 is the regulatory authority for the purposes of this Act, except as provided by this section.(2) A public authority is the regulatory authority for a matter for which it is declared to be the regulatory authority by the regulations (subject to such conditions or limitations as are specified in the regulations).
5 Act not to apply to transport of dangerous goods covered by other scheme
To the extent to which it is regulated by the Road and Rail Transport (Dangerous Goods) Act 1997 or any regulations made under that Act, this Act does not apply to:(a) the transport of dangerous goods (within the meaning of that Act) by road or rail, or(b) any associated activity or matter.
Part 2 Offences relating to explosives
6 Licences required for handling explosives and explosive precursors
(1) A person must not handle an explosive or explosive precursor if:(a) the regulations require the handling to be authorised by a licence under this Act, and(b) the person is not authorised to do so by a licence under this Act.Maximum penalty:(a) in the case of a corporation—500 penalty units, or(b) in the case of an individual—250 penalty units or imprisonment for 12 months, or both.(2) Without limiting subsection (1) (a), the regulations may require licensing by reference to the following:(a) the class or type of explosive or explosive precursor,(b) the kind of handling of the explosive or explosive precursor,(c) the circumstances of the handling of the explosive or explosive precursor.
7 Conveyance of explosives
A person conveying an explosive must at all times take all precautions that are necessary to prevent access to the explosive by persons not lawfully entitled to have access to the explosive.Maximum penalty:(a) in the case of a corporation—500 penalty units, or(b) in the case of an individual—250 penalty units.
8 Negligent handling of explosives
(1) A person must not negligently handle any explosives in such a manner or in such circumstances as:(a) to endanger or be likely to endanger the life of any person, or(b) to cause or be likely to cause injury to any person, or(c) to damage or be likely to cause damage to any property belonging to any other person.Maximum penalty:(a) in the case of a corporation—500 penalty units, or(b) in the case of an individual—250 penalty units or imprisonment for 12 months, or both.(2) A person is not guilty of an offence under subsection (1) (c) if the person satisfies the court that the owner of the property concerned had consented to its damage.
9 Supply of explosives to minors
(1) Subject to subsection (2), a person must not sell or otherwise supply any explosive to a person who is under the age of 18 years (a minor).Maximum penalty: 50 penalty units.(2) A person is not guilty of an offence under this section if the person satisfies the court that:(a) the person believed on reasonable grounds that the minor concerned had attained the age of 18 years, or(b) the minor concerned purchased or otherwise received the explosive in the course of the minor’s employment.
Part 3 Explosives licences
10 Licences may be granted under this Act
(1) Licences authorising the carrying out of an activity that constitutes handling an explosive or explosive precursor may be granted and otherwise dealt with in accordance with this Part.(2) Licences may be granted or varied so as to cover one or more activities involving explosives or explosive precursors.
11 Grant of licence
(1) Licences are to be granted by the regulatory authority.(2) The regulatory authority may approve or refuse applications for licences in accordance with this Act and the regulations.
12 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002
(1) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence, subject to the modifications and limitations prescribed by or under this Act.(2) For the purpose of applying Part 2 of the applied Act to a licence:(a) the licence may be amended under that Act, and(b) the licence may be transferred under that Act.(3) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act.
13 Commissioner of Police to report on licences
(1) The regulatory authority may request the Commissioner of Police to furnish the regulatory authority with a report in respect of any one or more of the following matters:(a) whether an applicant for the grant or renewal of a licence or the holder of a licence has been found guilty or convicted of an offence whether in New South Wales or elsewhere,(b) whether the applicant or licence holder is the subject of a firearms prohibition order within the meaning of the Firearms Act 1996,(c) whether the applicant or licence holder is of good character and repute,(d) whether the applicant or licence holder has a history of violence or threats of violence, with violence including behaviour referred to in section 545AB or 562AB (Stalking or intimidation with intent to cause fear of physical or mental harm) of the Crimes Act 1900,(e) whether there is an apprehended violence order under Part 15A of the Crimes Act 1900 in force with respect to the applicant or licence holder,(f) whether the applicant or licence holder has good reason for holding the licence,(g) whether the applicant or licence holder can be trusted to handle explosives in the manner authorised by the licence without danger to the public safety or the peace,(h) whether the applicant or licence holder has adequate facilities for the safe keeping of explosives,(i) such other matters as the regulatory authority may specify in the request.(2) The Commissioner of Police, on receiving a request made under subsection (1), is to investigate the person to which the request relates and furnish to the regulatory authority a report in respect of the matter or matters that were the subject of the request.(3) The report of the Commissioner of Police may include any of the following information:(a) information in the Commissioner’s possession,(b) information to which the Commissioner ordinarily has access through arrangements with the police service of the Commonwealth or another State or Territory.(4) A reference in this section to an applicant for the grant or renewal of a licence or the holder of a licence includes, if that applicant or holder is a corporation, a reference to each director and manager of the corporation.s 13: Am 2006 No 73, Sch 3.13 [1].
14 Conditions of licences
(1) Licences may be granted unconditionally or subject to conditions.(2) After granting a licence, the regulatory authority may, by notice in writing to the holder of the licence:(a) impose conditions or further conditions on the licence, or(b) vary or revoke any of the conditions to which the licence is subject.(3) A licence is also subject to such conditions as are prescribed by the regulations. Any such prescribed condition cannot be varied or revoked by the regulatory authority under this section.(4) A condition under this section may restrict or limit an activity authorised by the licence.
15 Offence to contravene conditions of licence
The holder of a licence must not contravene any condition to which the licence is subject.Maximum penalty: 50 penalty units.
16 Duration of licence
(1) A licence remains in force (unless sooner cancelled) for the period specified in the licence or (if no such period is specified) until cancelled.(2) A licence is not in force during any period it is suspended.
17 Fees for licences
(1) The fees payable in respect of applications for licences are to be determined by the regulatory authority.(2) Any such fee is not to exceed the maximum amount prescribed by the regulations.
18 Offences relating to licences
(1) A person must not pretend to hold a licence.(2) A person must not, for the purpose of obtaining a licence, provide any information or produce any document that the person knows is false or misleading in a material particular.(3) A person must not, with intent to deceive, forge or alter a licence.(4) A person must not, without reasonable excuse, have another person’s licence in his or her possession.(5) A holder of a licence must not lend the licence or allow it to be used by any other person.Maximum penalty: 50 penalty units.
19 Regulations relating to licences
(1) The regulations may make provision for or with respect to licences.(2) In particular, the regulations may make provision for or with respect to the following:(a) the classes or types of licence,(b) restrictions on the authority conferred by a particular type of licence or class of licence, whether by reference to the activity involving an explosive or explosive precursor authorised by the licence or otherwise,(c) applications for licences,(d) the eligibility of applicants (including age, qualifications, knowledge, experience, training and health),(e) the testing or examination of applicants or the holders of licences to determine whether they are, or continue to be, eligible to hold a licence,(f) the continuing education and training of holders of licences or employees of holders of licences,(g) the granting of different types of licences in the same document,(h) the replacement of licences that are lost, destroyed or defaced,(i) the return of licences that require alteration,(j) procedures relating to the suspension or cancellation of licences,(k) fees payable in connection with licences and applications for licences.
20 Suspension of licences
If the holder of a licence:(a) is proceeded against for an offence against this Act or the regulations, orthe regulatory authority may suspend the licence until the proceeding has been disposed of or until the requirement has been complied with, as the case may be.(b) is not complying with any lawful requirement imposed by or under this Act,
21 Cancellation of licences
The regulatory authority may cancel a licence if the holder of the licence:(a) is convicted or found guilty of an offence against this Act or the regulations or a provision of a corresponding Act or regulation of the Commonwealth or of another State or Territory relating to explosives, or(b) breaches a condition of the licence, or(c) surrenders the licence to the regulatory authority.
22 Special provision—suspension or cancellation of licences where suspicions of violence
(1) If the regulatory authority believes that the holder of a licence cannot be trusted to handle explosives or explosive precursors because the person has a history of violence or threats of violence (whether or not the person has been convicted of any offence involving violence), the regulatory authority may, by notice in writing served on the holder, require the holder, within the time specified in the notice, to show cause why the licence should not be cancelled.(2) The regulatory authority may also, at any time, suspend the licence pending determination of the matter under subsection (3).(3) If the regulatory authority is not satisfied with the matters, if any, put to the regulatory authority by the holder of the licence, the regulatory authority may cancel the licence.(4) If the regulatory authority is satisfied that an apprehended violence order is in force under Part 15A of the Crimes Act 1900 against the holder of a licence (whether or not the person has been served with a notice under subsection (1)), the regulatory authority may suspend the licence for any period determined by the regulatory authority.(5) A period must not be determined under subsection (4) that extends beyond the period during which the apprehended violence order remains in force.(6) This section does not limit any powers of the regulatory authority under sections 20 (Suspension of licences) and 21 (Cancellation of licences) with respect to a licence.(7) In this section, violence includes behaviour referred to in section 545AB or 562AB (Stalking or intimidation with intent to cause fear of physical or mental harm) of the Crimes Act 1900.s 22: Am 2006 No 73, Sch 3.13 [2].
23 Suspended and cancelled licences
The holder of a licence suspended or cancelled under this Act must not use the licence and must deliver the licence to the regulatory authority as soon as practicable after the licence is suspended or cancelled.Maximum penalty: 10 penalty units.
24 Review of decisions by Administrative Decisions Tribunal
(1) A person who is aggrieved with a decision under this Act or the regulations relating to a licence may apply to the Administrative Decisions Tribunal for a review of the decision.(2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days (or such other period as is prescribed by the regulations) after the application was duly made.(3) An application under subsection (1) must be made within 28 days after the directly aggrieved person is notified of the decision (or in a case of the kind referred to in subsection (2), within 28 days after the expiry of the 60-day period referred to in that subsection).(4) Section 48 (Notice of decision and review rights to be given by administrators) of the Administrative Decisions Tribunal Act 1997 is taken to require notification of a decision to be made only to a directly aggrieved person.(5) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to a decision of the kind referred to in subsection (1). Accordingly, section 55 (1) (d) of that Act does not apply to any such decision.(6) If an application is made to the Tribunal under subsection (1) by an aggrieved person who is not a directly aggrieved person, the Tribunal must notify the directly aggrieved person of the application (or may order the regulatory authority to notify the person of the application) as soon as is reasonably practicable after the application is made.(7) In addition to the restrictions set out in section 61 (Restrictions on ordering stay of proceedings) of the Administrative Decisions Tribunal Act 1997, the Tribunal may not make an order under section 60 (Operation and implementation of decisions pending applications for review) of that Act relating to a decision to suspend or cancel a person’s licence unless the Tribunal is satisfied that the person does not present a risk to the health or safety of any other person.(8) Without limiting section 67 (Parties to proceedings before Tribunal) of the Administrative Decisions Tribunal Act 1997, the Tribunal may do either or both of the following:(a) join an aggrieved person as a party to proceedings in the Tribunal brought by any other aggrieved person in respect of the same decision,(b) allow an aggrieved person to make submissions to the Tribunal concerning a decision under review in proceedings brought by another aggrieved person and take those submissions into account in determining the proceedings.(9) In this section:aggrieved person, in relation to a decision relating to a licence, means:(a) a directly aggrieved person, or(b) any other person aggrieved by the decision as referred to in subsection (1).directly aggrieved person, in relation to a decision relating to a licence, means:(a) the person who holds (or held) the licence, or(b) a person who has applied for the licence.
Part 4 Administration
25 Appointment of inspectors
The regulatory authority may appoint as inspectors any of the following persons:(a) a statutory officer,(b) a member of staff of a Department,(c) a person employed by a public or local authority,(d) a person belonging to a class of persons prescribed by the regulations.
26 Identification
(1) Every inspector is to be issued with an identification card as an inspector by the regulatory authority.(2) The identification card must:(a) state that it is issued under this Act, and(b) give the name of the person to whom it is issued, and(c) state the date (if any) on which it expires, and(d) describe the kind of premises to which the powers of the inspector extend, and(e) be signed by the head of the regulatory authority or an officer approved by the head of the regulatory authority for the purposes of this paragraph.
27 Extension of certain provisions of Occupational Health and Safety Act 2000 relating to inspectors and the enforcement of this Act
(1) Division 2 of Part 5 (Powers of inspectors), other than sections 49, 64 and 69, of the Occupational Health and Safety Act 2000 applies to inspectors (within the meaning of this Act) for the purposes of the administration of this Act and the regulations.(2) For the purpose of the application of those provisions:(a) a reference in the Occupational Health and Safety Act 2000 to “this Act or the regulations” is taken to be a reference to this Act or the regulations, and(b) a reference in the Occupational Health and Safety Act 2000 to a place of work is taken to be a reference to premises in which the handling of explosives, explosive precursors or dangerous goods to which section 31 applies is occurring, and(c) a reference in the Occupational Health and Safety Act 2000 to an inspector (within the meaning of that Act) is taken to be a reference to an inspector (within the meaning of this Act).
28 Offence of obstructing or intimidating inspectors
A person must not:(a) obstruct, hinder or impede an inspector in the exercise of the inspector’s functions under this Act or the regulations, or(b) intimidate or threaten or attempt to intimidate an inspector in the exercise of the inspector’s functions under this Act or the regulations.Maximum penalty:(a) in the case of a corporation—750 penalty units, or(b) in the case of an individual—225 penalty units.
Part 5 Miscellaneous
29 Act 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.
30 Fees to be paid into WorkCover Authority Fund
Any fees paid to the WorkCover Authority as the regulatory authority under this Act or the regulations are to be paid into the WorkCover Authority Fund under the Workplace Injury Management and Workers Compensation Act 1998.
31 Regulations relating to dangerous goods
(1) This section applies to dangerous goods within the meaning of section 135A of the Occupational Health and Safety Act 2000 that are not dangerous goods to which that section 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.
32 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before:(a) a Local Court, or(b) the Industrial Relations Commission in Court Session.(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.
33 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under this Act or the regulations.
34 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice may be served personally or by post.(4) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(6) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(7) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.(8) 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.(9) In this section, means any of the following:(a) an inspector,(b) a police officer,(c) a person belonging to a class of persons specified in the regulations.
35 Disclosure 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.(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.
36 Regulations
(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,(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.(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.
37 Savings, transitional and other provisions
Schedule 1 has effect.
38 Review 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 this Act.(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.
Schedule 1 Savings, transitional and other provisions
(Section 37)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
2 Definitions
In this Part:existing licence means a licence:(a) that was issued under a provision of the former Act, and(b) that was in force immediately before the provision was repealed.existing permit means a permit:(a) that was issued under a provision of the former Act, and(b) that was in force immediately before the provision was repealed.former Act means the Dangerous Goods Act 1975.
3 Saving of existing licences and permits relating to explosives
Subject to the regulations, an existing licence or existing permit that authorised an activity involving explosives:(a) is taken to be a licence of the corresponding kind (as determined by the regulatory authority) granted under this Act, and(b) continues to authorise the activity involving explosives in respect of which it was granted for the period of 12 months after the commencement of this clause (unless its term expires during that period or it is sooner surrendered or cancelled in accordance with this Act).
4 Conditions of existing licences and permits
Subject to the regulations, the conditions to which an existing licence or existing permit is subject are taken to be conditions imposed by the regulatory authority under this Act, and any such condition may be varied or revoked in accordance with this Act.
5 Reviews by Administrative Decisions Tribunal
Subject to the regulations, a review under section 29 of the former Act that was pending immediately before the repeal of that Act is to continue to be dealt with under section 24 of this Act.
6 Electronic applications for licences
(1) Despite Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (as applied by section 12 of this Act), an application referred to in section 41 of that Act may not be made by means of electronic communication.(2) Subclause (1) does not limit the effect of the Electronic Transactions Act 2000.(3) This clause ceases to have effect on a day to be appointed by proclamation.