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Dangerous Goods Safety Management
DANGEROUS GOODS SAFETY
MANAGEMENT BILL 2000
EXPLANATORY NOTES
Policy Objectives of the Bill
This Bill is a significant community safety initiative designed to prevent
major accidents. Its objective is to protect people, property and the
environment from harm from hazardous materials, such as petrol or
liquefied petroleum gas.
The Bill applies to the following situations:
(a) the operation of large-scale high risk industrial facilities (such as
oil refineries), known as `major hazard facilities' or MHFs;
(b) the storage and handling of dangerous goods and combustible
liquids at smaller facilities, known as `dangerous goods locations'
or DGLs; and
(c) the provision of advice and help by scientific/technical advisers
(`hazmat advisers') to the emergency services and the Police at
the scene of an incident involving hazardous materials (a
`hazardous materials emergency').
Requirements for (a) and (b) are based on two national standards,
developed by the National Occupational Health and Safety Commission, the
National Standard for the Control of Major Hazard Facilities (or MHF
national standard) and the National Standard for the Storage and Handling
of Dangerous Goods (or dangerous goods national standard). These
national standards provide the basis for the obligations of the `occupiers' of
MHFs or DGLs (employers, or other people who have overall management
of a facility).
In line with international initiatives, the Bill requires the occupiers of
MHFs to prepare a `safety report' demonstrating that they have satisfied
their safety obligations. The safety report is then reviewed, in conjunction
with an audit of the MHF, to ensure compliance. The importance of the
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safety report as a measure to prevent major accidents was emphasised by
the Royal Commission inquiry into the Longford incident. This Bill has
been drafted, taking into account the findings of the Royal Commission. All
recommendations will be implemented, either in the Bill, itself, or in
supporting guidelines for industry and regulators.
Alternative Ways of Achieving the Policy Objectives
New legislation is required to achieve the policy objectives of the Bill.
The Bill will provide for a whole-of-government co-ordinated and integrated
approach to the storage and handling of dangerous goods and to the
operation of major hazard facilities.
Estimated Cost of Government Implementation
The administrative arrangements will incur costs to Government of:
(a) for 2000-2001 - $399,360;
(b) for 2001-2002 (and thereon) - $505,814.
This funding is primarily associated with the appointment of five
additional staff in the CHEM Unit, DES:
(a) three extra staff members for the MHF auditing-review program;
(b) one extra staff member for the DGL program; and
(c) one extra staff member for the hazmat advisory service.
The Department of Emergency Services has reprioritised its programs to
enable the Bill to proceed.
FLP Issues
Does the Bill infringe Fundamental Legislative Principles (FLPs)?
In accordance with Cabinet's decision regarding the preparation of this
Bill, the Bill has been drafted with due regard to fundamental legislative
principles (FLPs) as outlined in the Legislative Standards Act 1992. Any
infringement of FLPs occurs only when it has been considered essential in
the public interest, having regard to the potential impact of dangerous goods
and other hazardous materials on public safety.
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Dangerous Goods Safety Management
Does the legislation confer powers to enter premises, etc. only with a
warrant?
1. Under clause 62(1) (d), an authorised officer may enter a place without
consent or a warrant if it is a major hazard facility, dangerous goods
location, or a workplace under the control of a person who has an obligation
under this Act and is
(a) open for carrying on business; or
(b) otherwise open for entry.
Entry to the workplace of persons with obligations under this Act is
necessary because activities outside an MHF or DGL can affect the safety of
operations at the MHF or DGL. The safety of equipment (`storing or
handling systems') is an important example. Under the Bill, a manufacturer
of a storing or handling system for use at a MHF or DGL has an obligation
to ensure the system is constructed so that, when used properly, the risk to
persons, property or the environment from the use of the system is at an
acceptable level. If equipment is involved in a major accident and under
repair, an authorised officer must have ready access to the workplace of the
manufacturer to determine the cause of the accident. A delayed entry might
jeopardise the safety of the employees of the MHF or DGL if other similar
equipment is in use at the MHF or DGL.
2. Clause 62(1) (e) allows an authorised officer to enter a place without
consent or a warrant if the authorised officer reasonably believes a
dangerous situation exists at the place and it is urgent that the authorised
officer enter it to prevent, remove or minimise the danger. This power
cannot be exercised lightly because the strict test of `reasonable belief'
applies. Furthermore, it is confined to urgent situations. Any delay incurred
in obtaining a warrant might result in fatalities and injuries to workers or to
people in the nearby community.
3. Under clause 62(1)(f) an authorised officer may enter a place without
consent or a warrant if the entry is urgently required to investigate the
circumstances of a major accident or near miss at the place. As for 62(1)(e),
this power is confined to urgent circumstances, where delay might result in
further harm to people, property or the environment.
4. Clause 122 allows a hazmat adviser to enter a place at which a
hazardous materials emergency is happening if asked to do so by a
`prescribed person'. A prescribed person, as listed in the Bill, would be the
person in charge of the emergency, namely--
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Dangerous Goods Safety Management
(a) a fire officer; or
(b) a police officer; or
(c) if the place is a mine to which the Coal Act applies - an inspector
under that Act; [the Coal Mining Act 1925 or the Coal Mining
Safety and Health Act 1999, depending on commencement of the
latter];or
(d) if the place is a mine or quarry to which the Mines Act applies -
an inspector under that Act [the Mines Regulation Act 1964 or the
Mining and Quarrying Safety and Health Act 1999, depending on
commencement of the latter]; or
(e) another person, appointed under an Act, prescribed under a
regulation.
This power of entry is confined to an emergency involving hazardous
materials. Entry without delay is essential to prevent the emergency from
escalating and to minimise its consequences.
Does the legislation make rights and liberties, or obligations, dependent on
administrative power, only if the power is sufficiently defined and subject to
appropriate review?
5. Under clause 106, an authorised officer may take direct action if the
officer reasonably believes--
(a) a dangerous situation exists at a place; and
(b) the dangerous situation poses serious danger; and
(c) having regard to the threat of serious danger, it is necessary for
the authorised officer to take appropriate action without delay to
prevent, remove or minimise the dangerous situation.
The Bill safeguards the rights and liberties of individuals in several ways.
For an authorised officer to take direct action, the situation must present
`serious danger'. Serious danger is danger that has the potential to lead to
`serious harm' (a high level of harm). The officer must reasonably believe
that the danger posed by the situation might lead to a person's death or
hospitalisation or harm to property or the environment, incurring costs of
more than $50,000. The officer must also reasonably believe that direct
action is urgently required. To determine the extent of the action to be taken,
the officer must consult with the officer's supervisor and the occupier of the
facility, as far as reasonably practicable.
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Dangerous Goods Safety Management
Does the legislation reverse the onus of proof in criminal proceedings
without adequate justification?
6. Clause 28(3) states that sections 23 and 24 of the Criminal Code do
not apply to a contravention of clause 18 (`Discharge of obligations'). These
two sections of the Criminal Code relate to intention and mistake of fact. In
effect, they place the onus on the prosecution to prove that:
(a) an act or omission did not occur independently of the exercise of a
person's will; or
(b) the event did not occur by accident; or
(c) an act or omission did not stem from an honest and reasonable,
but mistaken, belief in the existence of any state of things
Section 18 of the Dangerous Goods Safety Management Bill imposes
high penalties for breaches of safety obligations with extremely severe
consequences, such as multiple deaths and serious harm to property or the
environment. In the case of such severe consequences, a speedy
investigation (and prosecution, if appropriate) is essential to determine
causes and prevent similar occurrences in the future. If the prosecution has
to disprove a lack of intention or a mistake or fact, the process of attaching
responsibility can be prolonged, if not delayed indefinitely. These two
sections of the Criminal Code are excluded from applying to offences
against section 18 to accelerate the investigative process and to enable the
persons in the positions of responsibility (primarily, the occupiers) to be
held responsible. This exclusion is consistent with exclusions in other
modern safety legislation, such as the Workplace Health and Safety Act, the
Coal Mining Safety and Health Act 1999 and the Mining and Quarrying
Safety and Health Act 1999 The exclusion of these sections of the Criminal
Code is balanced by the fact that defences are written into the Bill in section
28(2). It is a defence for a person to prove that the commission of the
offence was due to causes over which the person had no control.
7. Under clause 107, the State or local government may recover costs
reasonably incurred in taking direct action to prevent, remove or minimise a
dangerous situation. Costs may be recovered jointly and severally from--
(a) the person who owned the hazardous materials involved in the
dangerous situation;
(b) the occupier of the place of the dangerous situation;
(c) the person who caused the dangerous situation.
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Dangerous Goods Safety Management
Clause 107(4) provides the defence against recovery of costs. The person
is required to establish that, exercising reasonable care, he or she could not
have prevented the situation, or the situation was due to the act or default of
another person (other than an employee or agent). This reversal of the onus
of proof is balanced by the provision of the above defence.
8. Under clause 172, an act committed or omitted on behalf of another
person by a representative of the person is taken to have been committed or
omitted also by the person. Like clause 173 (see paragraph 9), this is a
standard feature of modern safety legislation, such as the Workplace Health
and Safety Act, the Coal Mining Safety and Health Act and the Mining and
Quarrying Safety and Health Act. The clause is designed to assist in
meeting evidentiary requirements when attempting to penalise a person for
breach of a safety obligation under the Bill. Clause 172(3) allows the
defence that the person could not, by the exercise of reasonable diligence,
have prevented the act or omission.
9. Under clause 173(3), evidence that a corporation has been convicted of
an offence against a provision of the Act is evidence that each of the
executive officers committed the offence of failing to ensure that the
corporation complies with the provision. This clause is necessary in this Bill
to ensure that executive officers of a company do not escape personal
liability by hiding behind a corporate structure. The persons most likely to
have knowledge of the structure, operations and distribution of
responsibilities in a company are its executive officers. Therefore, it is
appropriate that they bear the burden of proof regarding--
(a) their exercise of diligence to ensure compliance; or
(b) their inability to influence the corporation in relation to the
offence.
These are defences under section 173(4).
Does the Bill allow the delegation of legislative power only in appropriate
cases and to appropriate persons?
10. The Bill provides for breaches of the regulation to incur penalties of
up to 200 penalty units. While this maximum limit might appear high for
regulatory offences, it is consistent with the maximum for regulatory
offences in other legislation protecting the community from harm from
hazardous materials, such as: the Explosives Act 1999 (200 penalty units);
the Coal Mining Safety and Health Act and the Mining and Quarrying
Safety and Health Act (both 400 penalty units); and the Environmental
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Protection Act 1994 (165 penalty units). Furthermore, it is consistent with
the high level of penalties in the Bill (which range from 3000 penalty units
for a contravention causing multiple deaths and serious harm to property or
the environment to 750 penalty units for a contravention causing serious
harm to property or the environment). The level of penalty units in the Bill
and the maximum proposed for the regulation reflect the seriousness of the
consequences of a contravention.
11. A facility may be classified as a DGL or a MHF if the quantities of
materials stored or handled at the facility exceed thresholds for those
materials, as specified in a regulation under the Bill. In the interests of
national uniformity, the thresholds for DGLs and MHFs will be based,
respectively, on schedules in the dangerous goods national standard and the
MHF national standard. The thresholds will be contained in the regulation
rather than the Bill, because some flexibility is necessary to accommodate
possible changes to these national standards. Furthermore, the schedules of
the thresholds will include technical detail. Therefore, they are more in
keeping with the nature of the regulation, than the broad framework
provided by the Bill
Does the Bill subject the exercise of a delegated legislative power to the
scrutiny of the Legislative Assembly?
12. Under clause 29, the Minister may make standards (`recognised
standards') stating ways to achieve an acceptable level of risk. The Coal
Mining Safety and Health Act and the Mining and Quarrying Safety and
Health Act contain similar clauses. Many of the standards that may be
recognised under this Bill exist in some form already, for example, some
industry codes of practice and Australian Standards. However, they will not
become recognised standards, automatically. They will need to undergo a
formal recognition process, which will accommodate input from industry
and the community. The Dangerous Goods Working Group which includes
representatives of both groups will review potential standards for
recognition, as well as developing new standards. Any new standards
developed will undergo a public consultation phase. All recognised
standards would be subject to regular review. The making of standards is
preferable to the development of subordinate legislation for the following
reasons:
(a) It enables extensive consultation in the review and development of
material.
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Dangerous Goods Safety Management
(b) The highly technical and specialist requirements (contained in
codes, etc.) are difficult to translate to legislative format.
(c) Numerous standards will be considered for recognition.
Consultation
Consultation has occurred on a comprehensive national scale in regard to
the two national standards on which the legislation is based. Industry and
community bodies and Government agencies in Queensland have also been
consulted in the development of this legislation.
Purpose and Intended Operation of Each Clause
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 states the short title of the Bill.
Clause 2 provides for the commencement of the Bill.
Division 2--Application and operation of the Bill
Clause 3 identifies the circumstances to which the Bill does not apply.
Sub-section (1) indicates that the Bill does not apply to mining and
petroleum leases or gas pipelines, all of which are covered by specific
legislation administered by the Department of Mines and Energy (DME).
Sub-section (2) provides for the situation where the Bill and legislation
covering specific dangerous goods are in conflict. It recognises that
legislation which covers specific hazards (for example, explosives) should
be more precise than the more general provisions of this Bill. In this
situation, the specified Act must take precedence, but only to the extent of
the conflict.
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Dangerous Goods Safety Management
Sub-section (3) provides for a reduction of overlaps between this Bill and
the specified legislation. It will simplify compliance with safety
requirements for the gas and explosives industries that deal mainly with
DME and the radiation industry that deals mainly with Queensland Health.
If the safety obligations in this Bill and the nominated legislation are
equivalent, compliance with the nominated legislation is taken to be
compliance with this legislation.
Since the requirements for major hazard facilities are set out only in this
Bill, sub-section (4) limits the application of this equivalence policy to sites
other than major hazard facilities.
Clause 4 provides for the binding of all persons, including the State, and
as far as the Queensland legislative powers permit, the Commonwealth and
the other States.
Clause 5 outlines the three types of situations to which the Bill applies.
Clause 6 identifies the people to whom the Bill applies, namely anyone
involved in storing or handling hazardous materials, who may affect
people's safety, or harm property or the environment.
Division 3--Objective of the Bill
Clause 7, sub-section 1 identifies the overall objective of the Bill.
Sub-section (2) provides further detail of the objective.
Division 4--Interpretation
Clause 8 states that the dictionary explaining the meaning of key words is
located in Schedule 2.
Clauses 9 to 15 define words important to understanding the Bill.
Clause 9 defines the term "dangerous goods".
Clause 10 defines the term "environment".
Clause 11 defines the term "hazard".
Clause 12 defines the term "hazardous material".
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Dangerous Goods Safety Management
Clause 13 defines the term "major accident".
Clause 14 defines the term "occupier".
Clause 15 defines the term "risk".
PART 2--SAFETY OBLIGATIONS
Division 1--Preliminary
Clause 16 outlines the people who have safety obligations under this Bill.
Sub-section (1) outlines the broad safety obligation of all persons
involved with the storage or handling of hazardous materials or with storage
or handling systems.
Sub-section (2) defines the persons who have additional obligations
under the Bill.
Sub-sections (3) and (4) note that further obligations for the occupiers of
major hazard facilities and dangerous goods locations are set out in Parts 4
and 5, respectively.
Clause 17 defines an "acceptable level of risk".
Clause 18 sets out the maximum penalties which can be applied for
contravention of the legislation.
Sub-sections (1) (a) to (f) set out the penalties for contraventions causing
harm to people, property or the environment ("circumstances of
aggravation"). The severity of the penalties is directly related to the severity
of the consequences.
Sub-sections (2) and (3) accommodate situations where a person is
charged with contravening sub-section (1), but the circumstances of
aggravation are not proven. The maximum penalty that can be imposed is
the monetary penalty for the specific provision of the Act with which the
person has failed to comply if that provision provides for a penalty.
Clause 19 notes that a person may be subject to more than one safety
obligation. For example, the person may be both a designer of storage and
handling systems and an occupier of a major hazard facility.
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Dangerous Goods Safety Management
Clause 20 states that no safety obligations imposed under this Bill relieve
another person of their safety obligations under the Bill.
Clause 21 describes how a safety obligation can be discharged by
complying with the appropriate regulation or recognised standard.
Sub-section (3) allows an alternative but equivalent method to that set out
in a recognised standard.
Clause 22 describes how a safety obligation can be discharged if there is
no appropriate regulation or recognised standard.
Division 2--Obligations of occupiers and others
Clause 23 defines the obligations that apply to an occupier of a dangerous
goods location and an occupier of a major hazard facility.
Clause 24 defines the obligations of an employee or other person at a
major hazard facility or dangerous goods location.
Clause 25 defines the obligations of manufacturers, importers and
suppliers of dangerous goods.
Clause 26 defines the obligations of designers, manufacturers, importers,
suppliers and installers of storage or handling systems for use at a
dangerous goods location or a major hazard facility.
Clause 27 defines the obligation of a supplier and installer of a storage or
handling system who becomes aware of a hazard or defect associated with
the system.
Division 3--Defences
Clause 28 provides for a defence in a proceeding against a person for a
contravention of an obligation under Division 1 or 2.
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PART 3--RECOGNISED STANDARDS
Clause 29 enables the Minister to recognise standards (such as industry
codes of practice or Australian Standards) as legitimate ways to achieve an
acceptable level of risk.
Clause 30 defines the circumstances when a recognised standard is
admissible in evidence in a proceeding under the Bill.
PART 4--MAJOR HAZARD FACILITIES
Division 1--Classification of places as major hazard facilities
Clause 31 defines the terms "major hazard facility" and "possible major
hazard facility".
Clause 32 allows the chief executive to classify a place as a major hazard
facility.
Sub-sections (2), (3) and (4) set out the method by which this is to be
achieved (consultation, gazette notice, written notice to the occupier, etc.).
Sub-section (5) requires the chief executive to provide written declaration
to the occupier if the facility is not classified as a major hazard facility.
Clause 33 provides the grounds for the chief executive to classify a place
as a major hazard facility.
Sub-section (1) requires the chief executive to classify a facility as a
major hazard facility if the quantity of hazardous materials stored or handled
or likely to be stored or handled exceeds the quantity prescribed under a
regulation and a hazardous materials emergency at the facility could pose a
risk to people, property or the environment off-site .
Sub-section (2) enables the chief executive to classify a facility as a major
hazard facility (e.g. a facility with below threshold quantities) by taking into
account the potential for a hazardous materials emergency and the risk to
people, property or the environment posed by a hazardous materials
emergency.
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Clause 34 provides the grounds and method by which the chief executive
may declassify a major hazard facility.
Division 2--Notification to chief executive about possible major hazard
facilities
Clause 35 defines the obligation of the occupier of an existing possible
major hazard facility to notify the chief executive of the facility within a
specified time frame. It also prescribes the maximum penalty that can be
imposed for a breach of this obligation.
Clause 36 defines the obligation of the occupier of a new possible major
hazard facility to notify the chief executive of the facility within a specified
time frame. It also prescribes the maximum penalty that can be imposed for
a breach of this obligation.
Clause 37 defines the obligation of the occupier of a facility (other than a
major hazard facility) to notify the chief executive of certain upgrades of
facilities. It deals with two types of upgrades: a change whereby a facility
becomes a possible major hazard facility; or (for a facility declared
previously to be not a major hazard facility) a change in the quantities or
types of hazardous materials stored or handled from those stated in the
declaration.
Clause 38 defines the obligation of the occupier of a major hazard facility
to notify the chief executive of a modification to the facility that would
significantly alter the risk.
Clause 39 defines the obligation of the occupier of a major hazard facility
to comply with the chief executive's request for information about a
possible major hazard facility. This information would assist the chief
executive to decide whether the facility should be classified as a major
hazard facility.
Division 3--Other obligations of occupiers of major hazard facilities
Clause 40 provides for further obligations to be imposed on an occupier
of a major hazard facility.
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Dangerous Goods Safety Management
Clause 41 defines the occupier's obligations relating to a systematic risk
assessment.
Sub-section 1 requires the occupier to consult with employees at the
facility in carrying out, documenting, reviewing and updating the systematic
risk assessment. It also outlines what the assessment is required to do (i.e.
identify hazards that might lead to a major accident and assess the likelihood
of a major accident and its consequences).
Sub-sections (2) and (3) specify the time frames for carrying out and
documenting the systematic risk assessment and the circumstances in which
it is to be reviewed and updated.
Clause 42 defines the time frames for establishing and documenting
emergency plans and procedures.
Clause 43 requires the occupier to consult with the emergency services
and people or property owners in the vicinity of the major hazard facility in
establishing, maintaining and documenting emergency plans and
procedures.
Clause 44 defines the standard of training and education that must be
provided by an occupier and the circumstances in which it must be
provided, reviewed and updated.
Sub-section (2) requires the occupier to keep training records.
Clause 45 defines the occupier's obligations relating to a safety
management system (a documented comprehensive integrated system for
managing safety at the facility). It specifies the time frames for developing
and implementing the safety management system and the circumstances in
which it is to be reviewed and updated.
Clause 46 defines the occupier's obligations to consult with, and provide
information about safety measures to, people potentially affected by an
accident. This includes the action to be taken in the event of a major
accident.
Sub-sections (3) and (4) specify the time frames for consulting and
providing information under normal operations, as well as in the event of a
major accident.
Clause 47 defines the obligation of the occupier of a major hazard facility
relating to a safety report.
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Sub-section (1) defines the contents of the safety report: the information,
education, training, etc. provided to employees; the systematic risk
assessment; emergency plans and procedures; the consultation with, and
information provided to the community; and the safety management
system.
Sub-section (2) specifies the time frames for providing the safety report
to the chief executive.
Sub-sections (3) and (4) specify the circumstances in which the safety
report is to be reviewed and updated.
Sub-section (5) specifies the people to be consulted in preparing and
updating the report.
Sub-section (6) requires the occupier to keep a written record of the
consultation required under sub-section (5).
PART 5--STORAGE AND HANDLING OF
DANGEROUS GOODS AND COMBUSTIBLE
LIQUIDS
Division 1--Identification of dangerous goods locations
Clause 48 defines the term "dangerous goods location".
Sub-section (2) indicates that a major hazard facility is not a dangerous
goods location.
Division 2--Notification to chief executive about possible dangerous
goods locations
Clause 49 defines the obligation of the occupier of a possible dangerous
goods location to notify the chief executive of the dangerous goods or
combustible liquids stored or handled at that location.
Clause 50 defines the obligation of the occupier of a possible dangerous
goods location to supply details of the dangerous goods or combustible
liquids at that location in response to a request from the chief executive.
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Division 3--Extra obligations of occupiers of dangerous goods locations
Clause 51 provides for further obligations to be imposed on the occupier
of a dangerous goods location.
Clause 52 defines the time frames for the establishment and
implementation of emergency plans and procedures.
Clause 53 outlines details of the safety management system and defines
the occupier's related obligations.
Sub-section (2) specifies the time frames for developing and
implementing the safety management system.
PART 6--AUTHORISED OFFICERS AND
DIRECTIVES
Division 1--Authorised officers
Clause 54 lists the categories of persons whom the chief executive may
appoint as authorised officers.
Sub-section (2) enables the chief executive of a local government to
appoint an employee of the local government as an authorised officer in
relation to a matter for which the administration and enforcement has been
devolved to local government.
Clause 55 defines the qualifications or training required for an
administering executive to appoint an authorised officer. [The
"administering executive" will be the chief executive, except for matters
devolved to local government, in which case it will be the local
government's chief executive officer.]
Clause 56 states the conditions under which an authorised officer holds
office. It recognises that the conditions of appointment may link
appointment as an authorised officer to the holding of another office (the
"main office").
Clause 57 provides the authorised officer with powers under the Bill and
defines the limits of those powers.
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Clause 58 defines the functions of authorised officers.
Clause 59 requires the administering executive to give each authorised
officer an identity card.
Sub-section (2) describes the content of the identity card.
Sub-section (3) enables the issue of a single identity card for a person
with powers under this Bill and other Acts.
Clause 60 requires a person ceasing to be an authorised officer to return
the identity card to the administering executive.
Clause 61 requires an authorised officer to produce or display an identity
card when exercising a power under the Bill.
Division 2--Powers of authorised officers
Subdivision 1--Entry of places
Clause 62 defines the conditions under which an authorised officer has
the power to enter places.
Subdivision 2--Procedure for entry
Clause 63 defines the procedures to be observed by an authorised officer
seeking the consent of an occupier to enter a place.
Clause 64 enables an authorised officer to apply to a magistrate for a
warrant to enter a place.
Sub-sections (2) and (3) define the procedures for applying for a warrant
and the conditions that may be imposed by a magistrate.
Clause 65 defines the circumstances under which a magistrate may issue
a warrant and the information to be provided on the warrant.
Clause 66 enables an authorised officer to apply to a magistrate for a
special warrant, using electronic communications, under urgent or special
circumstances.
Sub-sections (2) to (8) define the procedures to be adopted.
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Dangerous Goods Safety Management
Sub-section (9) defines the circumstances when the court must find that
an authorised officer did not exercise power under a special warrant.
Clause 67 sets out the procedure to be observed by an authorised officer
before entry into a place with a warrant.
Subdivision 3--General powers
Clause 68 defines the general powers that may be exercised by an
authorised officer after entering a major hazard facility, dangerous goods
location or other place if consent is given or the entry is otherwise
authorised.
Clause 69 requires a person to give reasonable help to an authorised
officer in the exercise of the officer's powers, unless the person has a
reasonable excuse.
Clause 70 requires a person to answer questions to assist an authorised
officer to help determine whether or not the Act is being complied with,
unless the person has a reasonable excuse.
Subdivision 4--Powers to seize evidence
Clause 71 provides for the seizure of a thing at a place entered without
the occupier's consent or a warrant, if the thing is believed to be evidence of
an offence against this Act.
Clause 72 provides for the seizure of things at places that may only be
entered with consent or a warrant.
Clause 73 provides for the authorised officer to move a thing seized or
restrict access to it.
Clause 74 prohibits tampering with things seized to which access has
been restricted.
Clause 75 defines the powers of an authorised officer to support the
seizure of a thing.
Clause 76 provides for an authorised officer to require a seized item
returned to the place from which it was taken.
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Clause 77 requires an authorised officer to issue a receipt for a thing
seized.
Clause 78 provides for the forfeiture by the owner, in certain
circumstances, of a thing seized.
Clause 79 defines the time frames for the return to its owner of a thing
that has been seized but not forfeited.
Clause 80 requires an authorised officer to allow an owner access to a
thing that has been seized.
Subdivision 5--Power to obtain information
Clause 81 provides an authorised officer with the power to require a
person to state the person's name and residential address in specified
circumstances.
Clause 82 requires a person to provide name and address details, if
required to do so by an authorised officer. It prescribes the maximum
penalty for failure to comply, without a reasonable excuse.
Clause 83 provides an authorised officer with the power to require a
person who has safety obligations under the Bill to produce documents
under specified circumstances.
Clause 84 requires a person to produce documents, if required to do so
by an authorised officer. It prescribes the maximum penalty for failure to
comply, without a reasonable excuse.
Clause 85 requires a person to certify documents, if required to do so by
an authorised officer. It prescribes the maximum penalty for failure to
comply, without a reasonable excuse.
Clause 86 provides an authorised officer with the power to require a
person's attendance to answer questions.
Clause 87 requires a person to attend, if required to do so by an
authorised officer. It prescribes the maximum penalty for failure to comply,
without a reasonable excuse.
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Division 3--Directives by authorised officers
Subdivision 1--Power to give and way of giving directives
Clause 88 provides for giving a directive by an authorised officer.
Clause 89 requires a directive to be given in writing to the occupier of the
major hazard facility or dangerous goods location.
Subsection (2) provides an exception. It enables a directive for the urgent
situations covered in clauses 91, 96, 97 and 98 to be given in the way
specified in each of these clauses.
Subdivision 2--Matters for which directives may be given
Clause 90 provides for an authorised officer to require an occupier of a
major hazard facility or dangerous goods location to carry out a stated
assessment or to give stated information to determine the level of risk if a
risk from the facility or location is suspected to be not at an acceptable level.
Clause 91 provides for an authorised officer to require an occupier of a
major hazard facility or a dangerous goods location to reduce the risk from
the facility or location if the risk is believed to be not at an acceptable level.
Clause 92 provides for an authorised officer to give a directive to review
the safety management system of a major hazard facility or dangerous
goods location if it is believed to be inadequate.
Clause 93 provides for an authorised officer to give a directive to review
the systematic risk assessment for a major hazard facility if it is believed to
be inadequate.
Clause 94 provides for an authorised officer to give a directive to review
emergency plans and procedures for a major hazard facility or dangerous
location if they are believed to be inadequate.
Clause 95 provides for an authorised officer to give a directive to review
the safety report for a major hazard facility if it is believed to be inadequate.
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Clause 96 provides for an authorised officer to give a directive to the
person in charge of a storage or handling system to stop the operation of the
system if it is believed to have caused, or to be likely to cause, harm to a
person, requiring medical treatment by a doctor.
Clause 97 allows an authorised officer to give a directive to the occupier
of a major hazard facility or a dangerous goods location to suspend
operations if the risk from operations is believed to be not at an acceptable
level.
Clause 98 provides for an authorised officer to give a directive to the
occupier of a major hazard facility or dangerous goods location to isolate the
site of a major accident or near miss for the preservation of evidence.
Clause 99 enables an authorised officer to give a directive to provide an
independent study or audit relating to safety issues at a major hazard facility
or dangerous goods location.
Subdivision 3--Recording of directives and other matters
Clause 100 requires an occupier of a major hazard facility or dangerous
goods location to keep an accurate record of all directives given, under this
Act, by an authorised officer to the occupier.
Clause 101 specifies the time frames for complying with a directive and
for recording the action taken to comply.
Sub-section (3) requires the occupier of a major hazard facility or
dangerous goods location to make available, for inspection by employees,
copies of written directives and written records of action taken.
Subdivision 4--Review of directives
Clause 102 allows a person given a directive by an authorised officer to
apply for a review of the directive.
Clause 103 outlines the procedures and timing for the review of a
directive.
Clause 104 specifies the time frames for the administering executive to
review a directive and to give notice of the review decision.
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Clause 105 allows a person who has applied for a review of a directive to
apply for a stay of the directive in certain circumstances.
Sub-section (6) disallows the staying of a directive given under clauses
97 or 98.
Division 4--General enforcement offences
Clause 106 provides for an authorised officer to take direct action to
prevent, remove or minimise a dangerous situation.
Sub-section (1) specifies the circumstances when such action may be
taken (i.e. when it poses serious danger and urgent action is necessary).
Sub-section (4) requires the authorised officer to consult, as far as
practicable, with the occupier and the administering executive in deciding the
extent of action to be taken.
Clause 107 provides for State or local government to recover costs
incurred in action taken to prevent, remove or minimise a dangerous
situation.
Sub-section (4) indicates the circumstances when costs are not
recoverable.
Clause 108 defines the procedures to be followed when an authorised
officer damages property while exercising the officer's powers.
Clause 109 provides for a person to claim compensation for damage
caused by an authorised officer in the exercise of the officer's power.
Sub-section (6) disallows a person from whom costs are recovered by
the State or local government under clause 107 from claiming
compensation.
Clause 110 prohibits providing false or misleading statements to an
authorised officer and prescribes the maximum penalty for non-compliance.
Clause 111 prohibits providing false or misleading documents to an
authorised officer and prescribes the maximum penalty for non-compliance.
Clause 112 prohibits obstructing an authorised officer in the exercise of a
power under this Bill, without a reasonable excuse. It also prescribes the
maximum penalty for non-compliance.
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PART 7--HAZARDOUS MATERIALS EMERGENCIES
Division 1--Purpose
Clause 113 defines the purpose of this part of the Bill. It is to provide for
the authorisation of scientific / technical advisers (hazmat advisers) who
provide advice and help at chemical incidents.
Division 2--Appointment of persons as hazmat advisers
Clause 114 provides for the chief executive to appoint persons as
hazardous materials emergency advisers (`hazmat advisers').
Clause 115 defines the qualifications or training required for the chief
executive to appoint a person as a hazmat adviser.
Clause 116 defines the conditions of appointment of a hazmat adviser.
Clause 117 provides the authorised officer with powers under the Bill
and defines the limits of those powers.
Clause 118 describes the function of hazmat advisers.
Clause 119 requires the chief executive to give each hazmat adviser an
identity card.
Clause 120 requires a person ceasing to be a hazmat adviser to return the
identity card to the chief executive. It defines the time frames for the return
of the card.
Clause 121 requires a hazmat adviser to produce or display an identity
card when exercising a power under the Bill.
Division 2--Powers of hazmat advisers
Subdivision 1--Entry of places
Clause 122 defines the powers of entry of a hazmat adviser to a place at
which a hazardous material emergency is occurring. Hazmat advisers may
only enter at the request of a "prescribed person".
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Sub-section (2) provides a list of prescribed persons, such as fire officers
or police officers who would be in charge of the emergency). Sub-sections
(2)(c) and (2)(d) enable entry to mine sites which are otherwise excluded
from the application of the Bill.
Subdivision 2--General powers
Clause 123 defines the general powers that may be exercised by a hazmat
adviser after entering a place.
Clause 124 requires a person to provide help if required by a hazmat
adviser. It also prescribes the maximum penalty for failure to comply,
without a reasonable excuse.
Clause 125 requires a person not to obstruct a hazmat adviser. It
prescribes the maximum penalty for failure to comply, without a reasonable
excuse.
PART 8--INVESTIGATIONS AND INQUIRIES INTO
MAJOR ACCIDENTS AND NEAR MISSES
Division 1--Requirement about major accidents and near misses
Clause 126 requires the occupier of a major hazard facility to notify the
chief executive of a major accident, unless the major accident is notified
under the Explosives Act 1999, the Gas Act 1965, the Petroleum Act 1923
or the Radiation Safety Act 1999.
Clause 127 requires the occupier of a major hazard facility to record a
near miss.
Division 2--Inquiries by board of inquiry
Clause 128 provides for the Minister to establish, by gazette notice, a
board of inquiry to inquire into a major accident.
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Clause 129 defines the role of a board of inquiry.
Clause 130 provides for the remuneration and conditions of appointment
of board members.
Clause 131 provides for staffing and financial matters to be arranged to
support the operation of the board of inquiry.
Clause 132 defines the procedures to be observed by the board of inquiry
in conducting its inquiry.
Clause 133 requires notice of the inquiry to be given to persons
concerned in the major accident (the subject of the inquiry) or others it is
believed should have the opportunity to appear.
Clause 134 requires an inquiry to be held in public, other than in special
circumstances.
Clause 135 provides for the protection and immunity of members of
boards and legal representatives and the protection of witnesses.
Clause 136 requires a board of inquiry to keep a record of proceedings.
Clause 137 requires the board to allow the occupier of the site of the
major accident the opportunity of making a defence against all claims made.
Clause 138 defines the powers of a board of inquiry.
Clause 139 provides for notice to be given to an inquiry witness to
require the witness to attend the inquiry.
Clause 140 provides for the board to inspect, copy, and take possession
of documents or things produced to the board at an inquiry.
Clause 141 provides for an inquiry to continue, despite court or tribunal
proceedings, unless otherwise ordered.
Clause 142 requires a person given notice to attend an inquiry to attend
the inquiry, unless the person has a reasonable excuse.
Sub-section (2) requires a person to take an oath when required, answer
questions or produce documents or things, unless the person has a
reasonable excuse.
Sub-section (3) allows self-incrimination as a reasonable excuse for
failing to answer questions or producing documents or things.
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Clause 143 prohibits a person from stating to the board of inquiry
anything that the persons knows to be false or misleading. It also prescribes
the maximum penalty for non-compliance.
Clause 144 prohibits a person from giving documents to the board of
inquiry that the person knows to be false or misleading. It also prescribes
the maximum penalty for non-compliance.
Clause 145 prohibits a person from displaying contempt of the board of
inquiry, such as insulting or deliberately interrupting the board.
Clause 146 provides for the board of inquiry to report offences and to
make available all relevant material to the appropriate officers of the Crown.
Clause 147 states that an inquiry is not affected by a change in the
membership of a board of inquiry.
PART 9--APPEALS
Division 1--Appeals against classification as a major hazard facility
Clause 148 provides for a person aggrieved by a chief executive's
decision to classify a facility as a major hazard facility to appeal against that
decision.
Clause 149 provides for the appeal against a classification of a facility as
a major hazard facility to be made to a Magistrates Court near the facility.
Clause 150 details the means of starting the appeal process.
Clause 151 provides for the Magistrates Court to grant a stay of a
decision appealed against.
Clause 152 defines the hearing procedures for an appeal.
Clause 153 defines the powers of the Magistrates Court in deciding an
appeal.
Clause 154 limits the ability to appeal to a higher court to be made only
on a question of law.
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Division 2--Appeals against review decisions
Clause 155 provides for a person whose interests are affected by a
review decision of the administering executive to appeal to the Industrial
Court.
Clause 156 details the means of starting the appeal process.
Clause 157 provides for the Industrial Court to grant a stay of a review
decision appealed against.
Clause 158 defines the hearing procedures for an appeal.
Clause 159 provides for the appointment of specialist assessors to assist
in deciding the appeal.
Clause 160 defines the powers of the Industrial Court in deciding an
appeal.
PART 10--LEGAL PROCEEDINGS
Division 1--Evidence
Clause 161 states that it is not necessary to prove, in a proceeding, the
appointment or authority of the administering executive, an authorised
officer or a hazmat adviser.
Clause 162 states that it is not necessary to prove the signatures of the
administering executive, an authorised officer or a hazmat adviser.
Clause 163 states that evidentiary aids, such as certificates purported to
be signed by the chief executive and stating specified matters, are taken to be
evidence of the matters.
Clause 164 defines the circumstances when an expert report is
admissible in evidence.
Clause 165 states that the production of a signed analyst's report stating
specified details is evidence of the details.
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Division 2--Proceedings
Clause 166 defines indictable and summary offences.
Clause 167 describes the proceedings for indictable offences.
Clause 168 defines the persons who may summarily hear indictable
offence proceedings.
Clause 169 defines the time frame for starting summary proceedings.
Clause 170 provides for the forfeiture to the State of things relating to an
offence on conviction of a person for the offence.
Clause 171 provides for dealing with things forfeited to the State.
Clause 172 enables actions committed or omitted by a representative of a
person to be taken to be omitted or committed by the person, unless the
person proves that the person could not, by the exercise of reasonable
diligence, have prevented the act or omission.
Sub-section (3) allows the defence that the person could not, by the
exercise of reasonable diligence, have prevented the act or omission.
Clause 173 provides for executive officers of a corporation which has
committed an offence to be charged with the offence of failing to ensure the
corporation's compliance.
Sub-section (4) provides the following defences: that the officer (who
was in a position to influence the conduct of the corporation) exercised
reasonable diligence to ensure the corporation complied; or the officer was
not in a position to influence the conduct of the corporation.
Clause 174 allows the court to order a person convicted of an offence to
pay a department's, another department's or a local government's
reasonable costs of investigating the offence, including the costs of
preparing for the prosecution.
Clause 175 defines the circumstances when fines are payable to local
government.
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PART 11--MISCELLANEOUS
Clause 176 prescribes the ways in which documents required to be given
to a person may be transmitted by facsimile.
Clause 177 makes it an offence to encourage refusal to answer questions
by an authorised officer or hazmat adviser, except for the provision of legal
advice to an employee by a lawyer. It prescribes the maximum penalty for
non-compliance.
Clause 178 makes it an offence to falsify documents.
Clause 179 makes it an offence to impersonate an authorised officer or a
hazmat adviser.
Clause 180 provides for the chief executive to designate an area
surrounding a major hazard facility as a "MHF consultation zone". It
requires the chief executive to provide a notice to the relevant local
government about the consultation zone to be noted in its planning scheme.
Clause 181 provides for the chief executive to delegate powers under the
Bill to specified persons.
Clause 182 provides for the Governor in Council, by regulation, to
devolve the administration and enforcement of specified matters relating to
flammable and combustible liquids to a local government.
Clause 183 provides for the chief executive officer of a local government
to delegate powers to specified persons for matters devolved in clause 182.
Clause 184 provides for an employee or another person at a major hazard
facility or dangerous goods location to report, to an authorised officer,
offences against this Act.
Sub-section (4) prohibits making a false or frivolous representation, for
which a maximum penalty is imposed.
Clause 185 provides for the protection of an official from civil liability
for acts or omissions made honestly and without negligence.
Sub-section (3) defines an "official".
Clause 186 provides for the chief executive to approve forms for use
under the Bill.
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Clause 187 provides for the making of regulations by the
Governor-in-Council.
PART 12--REPEAL
Clause 188 provides for the repeal of the Building (Flammable and
Combustible Liquids) Regulation 1994.
PART 13--AMENDMENT OF ACTS AND
REGULATIONS
Clause 189 notes that Schedule 1 contains amendments to other Acts and
regulations necessary for the implementation of this legislation.
SCHEDULE 1 `AMENDMENTS OF ACTS AND REGULATIONS'
identifies amendments to other Acts and regulations.
SCHEDULE 2, `DICTIONARY', defines the meanings of particular
words used in this Bill.
� State of Queensland 2000