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Road Transport Reform (Dangerous Goods) Bill 1994



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House: Senate

Portfolio: Transport

Commencement: Apart from the Short Title and Commencement provisions, the legislation commences either on a day fixed by Proclamation or, if no Proclamation is made within 12 months from the date of Royal Assent, then the Act commences on the first day after the end of that 12-month period.

Purpose

The purpose of the Road Transport Reform (Dangerous Goods) Bill 1994 is set out in clause 3 of the Bill and is to regulate the transportation of dangerous goods by road in the ACT and in the Jervis Bay Territory in order to 'promote public safety and protect property and the environment.'

The Bill is also intended to provide a national code that can be adopted by the States and the Northern Territory.

Background

In July 1991, a Special Premiers' Conference agreed to the establishment of a National Road Transport Commission. Subsequently, the National Road Transport Commission Act 1991 was passed by the Commonwealth. The National Road Transport Commission is an independent statutory body which advises the Ministerial Council for Road Transport. Its charter is derived from Intergovernmental Agreements on Heavy Vehicles (1991) and Light Vehicles (1992).

Road transport plays an important role in the Australian economy. Historically, each Australian jurisdiction has had its own regulatory framework to deal with road transport. Variations in these regulatory frameworks are regarded as counterproductive - leading to increases in costs and reductions in productivity.

The Heads of Agreement state that there should be 'improvements in road safety and transport efficiency and reductions in the costs of administration of road transport' and that these goals will be achieved through the establishment of a co-operative legislative scheme. 1

In 1992, the Ministerial Council for Road Transport endorsed a proposal to divide the task of establishing uniform road transport regulation for Australia into modules. To date, the Commonwealth has enacted as model legislation for the rest of Australia, the:

the Road Transport Charges (Australian Capital Territory) Act 1993; and

the Road Transport Reform (Vehicle and Traffic) Act 1993.

Another priority of the National Road Transport Commission has been the transportation of dangerous goods. 2 A draft Bill covering the transportation of dangerous goods was circulated for public comment, for industry comment, 3 and presented to the Ministerial Council on Road Transport 4 where it obtained majority support in September 1994.

The Road Transport Reform (Dangerous Goods) Bill will provide a vehicle for calling up the Australian Code for the Transport of Dangerous Goods and the Australian Explosives Code in a uniform manner. These codes provide common standards. At present, the extent and manner in which these codes are adopted throughout Australia varies. The Bill also puts in place a framework permitting the making, administration and enforcement of regulations relating to the transport of dangerous goods by road. 5

Main Provisions

Regulations

Clause 11.(1) enables the Governor-General to make regulations under the Act. In particular, subclause 11.(3) provides that the regulations may adopt a code or standard relating to dangerous goods or relating to transport by road.

The Regulations may create offences and penalties. The maximum penalty imposed by a regulation cannot exceed $3,000 in the case of an individual or $15,000 in the case of a corporation.

Competent Authorities

Clause 13 enables the Minister to appoint Competent Authorities having all the powers of an authorised officer.

The powers of a Competent Authority include the power to appoint authorised officers ( clause 14), the power to issue identification cards for authorised officers ( clause 15) and the power of delegation ( clause 17).

Powers of Authorised Officers

Powers of authorised officers include the power to:

enter and search premises to establish whether the Act is being complied with. If the premises are unattended or a residence then the authorised officer may only enter with the consent of the occupier ( sub-clause 18(1));

enter and search premises without the consent of the occupier if he or she believes on reasonable grounds that a dangerous situation exists on the premises with regard to the transport of dangerous goods by road ( sub-clause 18(2));

stop, detain and search a vehicle to determine whether the Act is being complied with ( sub-clause 18(3));

take samples ( sub-clause 18(7));

require the production of documents and to make copies of those documents or remove them ( sub-clauses 18(8) (9));

direct a person to answer questions ( sub-clause 18(11));

take photographs, or make mechanical or electronic recordings ( sub-clause 18(12));

require a person's name and address ( clause 19);

search, preserve evidence and seize evidence. These powers may be exercised where the officer believes on reasonable grounds that he or she will find evidence of an offence at premises or on a vehicle or equipment ( clause 20).

Subclause 20(3) provides that the consent of the occupier or a warrant issued under section 24 of the Act must first be obtained by an authorised officer before these actions can be taken if the premises are unattended or are a residence;

take direct action to avert or minimise a dangerous situation in certain circumstances if he or she believes on reasonable grounds that a dangerous situation exists ( clause 31).

In general, powers exercised by an authorised officer must be accompanied by a relevant belief on reasonable grounds.

Clause 22 provides that it is an offence:

to fail to comply with a direction of an authorised officer or to obstruct an authorised officer - without reasonable excuse; or

to give that officer false or misleading information .

The maximum penalty for such an offence is $10,000 or six months' imprisonment, or both for an individual, and $50,000 for a corporation.

Clause 23 provides that a person is not excused from answering a question asked under section 18 on the grounds of self-incrimination. However, such an answer is not admissible in criminal proceedings, other than in proceedings for an offence against section 22.

The issuing of warrants is provided for in clauses 24 and 25. In specified circumstances, a magistrate may issue a warrant by telephone or fax ( clause 25).

Clause 26 enables an authorised officer and a police officer assisting that officer under a warrant to exercise reasonable and necessary force.

An authorised officer may seize evidence of other offences when searching for things other than things specified in a warrant issued under the Act ( clause 27).

An authorised officer may issue a notice requiring a person to remedy a contravention of the Act ( clause 28) or to eliminate or minimise a danger ( clause 29). In either case, a person who contravenes such a notice is guilty of an offence and liable to a penalty of $10,000 in the case of an individual and $50,000 in the case of a corporation.

Exemptions

Exemptions from compliance with the regulations are provided for in clauses 32 and 33. Thus, a Competent Authority may grant an exemption from compliance with regulations relating to the road transportation of dangerous goods. An exemption may be granted by a Competent Authority if:

it is not reasonably practicable for the applicant to comply with the provision; and

the exemption would not be likely to create a risk of death or injury to a person or harm to the environment or property and would not cause unnecessary administrative or enforcement difficulties ( sub-clause 32.(2)).

It is an offence to breach a condition of an exemption.

Offences

Penalties of $50,000 and/or two years imprisonment in the case of an individual and $250,000 in the case of a corporation are provided where:

a person requiring a licence or accreditation to transport dangerous goods by road operates without a licence ( clause 35);

a person transports goods by road that the regulations identify as being too dangerous to transport by road ( clause 36).

Duties of Transporters of Dangerous Goods

Clause 37 provides that a person who fails to ensure that dangerous goods are transported safely is guilty of an offence. The maximum penalty for such an offence is:

- where the failure results in death or serious injury to a person - $100,000 and/or imprisonment for 4 years in the case of an individual and $500,000 for a corporation;

- in any other case - $50,000 and/or imprisonment for two years in the case of an individual and $250,000 for a corporation.

Infringement Notices

Regulations made under the Act may provide for infringement notices to be issued for offences under the Act. A person may choose to pay an infringement notice rather than be prosecuted in court. The maximum penalties in an infringement notice may not exceed the penalty under the regulations that would otherwise apply ( clause 38).

Evidence

Evidential matters are provided for in clause 40. Once evidence is given by an authorised officer on matters listed in subclause 40(2), then if the Court considers the authorised officer's belief in relation to those matters to be reasonable and there is no evidence to the contrary, then those matters must be accepted by the Court as proved.

Corporate Liability

Clause 42 relates to corporate liability. Proceedings under the Act may be brought against the director of a body corporate and/or the body corporate itself. In order to show that the body corporate had the requisite state of mind, it is sufficient to show that the conduct was engaged in by a director, employee or agent acting within the scope of their authority, and that the director, employee or agent had the relevant state of mind ( subclause 42(1)). A defence of due diligence is provided ( subclause 42(2)).

Recovery of costs

Clause 44 enables a government authority to recover costs it incurs as the result of certain incidents relating to the transport of dangerous goods by road. An example would be an incident resulting in the escape of dangerous goods.

Exclusion from the Dangerous Goods Transport Industry

Clause 45 enables a court to order that a person be prohibited from participating in the dangerous goods transport industry. A person who contravenes such a prohibition is liable to substantial penalties. In the case of an individual - $50,000 and/or two years imprisonment. In the case of a corporation - $250,000.

Forfeiture

Clause 46 enables a court to order dangerous goods and their container to be forfeited to the Crown, in addition to imposing any other penalty on an offender.

Remarks

Powers of Authorised Officers

The powers conferred by the Bill on regulatory officials are extensive. In general, they reflect similar powers available to officials acting under dangerous goods legislation in the States and Territories. 6

Infringement Notices

Provision for infringement notices (also called penalty notices) are present in the environmental protection and dangerous goods laws in a number of Australian jurisdictions. 7 These notices are designed to save the judicial system and an offender, both time and money. They are generally used for minor offences. Statutory provisions may set a low limit on the maximum penalty that can be imposed by an infringement notice. Thus, for example, in the case of the Dangerous Goods Act 1975 (NSW), infringement notices are limited to a maximum penalty of 10 penalty units ($1,000) 8 and, in the case of the Environmental Offences and Penalties Act 1989 (NSW), the maximum penalty that can be imposed under an infringement notice for an offence under pollution control legislation is $600.

The Bill's maximum penalty for an infringement notice is $3,000 in the case of an individual and $15,000 in the case of a corporation. Are these amounts are excessive for an infringement notice?

Endnotes

1 Recitals C D, Heads of Agreement, Schedule to the National Road Transport Commission Act 1992.

2 Heads of Agreement (Light Vehicles), paragraph 17.(2)(vi).

3 Second Reading Speech, Road Transport Reform (Dangerous Goods) Bill 1994.

4 National Road Transport Commission, 1993/94 Annual Report.

5 Second Reading Speech, Road Transport Reform (Dangerous Goods) Bill 1994.

6 See, for example, the Dangerous Goods Act 1975 (NSW) and the Dangerous Goods Act 1985 (Vic).

7 See, for example, Environmental Offences and Penalties Act 1989 (NSW); Environment Protection Act 1970 (Vic).

8 Subsection 45B(1), Dangerous Goods Act 1975 (NSW).

Jennifer Norberry (Ph. 06 2772476)

Bills Digest Service 2 February 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995.

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Published by the Department of the Parliamentary Library, 1995.