Dangerous Goods (Road and Rail Transport) Act 2008 (NSW)

Dangerous Goods (Road and Rail Transport) Act 2008 No 95 An Act to make provision for safety in the transport of dangerous goods by road and rail as part of the system of nationally consistent road and rail transport laws; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Dangerous Goods (Road and Rail Transport) Act 2008. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Purpose The purpose of this Act is to regulate the transport of dangerous goods by road and rail in order to promote public safety and protect property and the environment. 4 Definitions (1) In this Act, unless the contrary intention appears— authorised officer means— (a) an authorised officer appointed under section 17, or (b) a police officer. Competent Authority—see section 16. consign—see subsection (1A). consignor of goods means a person who— (a) with the person's authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods, or (b) if paragraph (a) does not apply to the person or anyone else— (i) engages a prime contractor or rail operator, either directly or indirectly or through an agent or other intermediary, to transport the goods, or (ii) has possession of, or control over, the goods immediately before the goods are transported, or (iii) loads a vehicle with the goods, for transport, at a place where the goods are awaiting collection and that is unattended (except by the driver) during loading, or (c) if paragraphs (a) and (b) do not apply to the person or anyone else, and the goods are imported into Australia—imports the goods. corresponding authority means a Competent Authority appointed under a corresponding law. corresponding law means— (a) a law of another jurisdiction corresponding, or substantially corresponding, to this Act, or (b) a law of another jurisdiction that is declared under the regulations to be a corresponding law to this Act. dangerous activity means an activity— (a) that relates to the transport of dangerous goods by road or rail, and (b) that is occurring or may occur in relation to or in the immediate vicinity of the dangerous goods, and (c) that creates or could create an immediate risk of death or injury to a person, significant harm to the environment or significant damage to property. dangerous goods means— (a) a substance or article prescribed by the regulations as dangerous goods, or (b) a substance or article determined by a Competent Authority in accordance with the regulations to be dangerous goods. driver of a vehicle includes— (a) a two-up driver of the vehicle who is present in or near the vehicle, and (b) a person who is driving the vehicle as a driver under instruction or under an appropriate learner licence or learner permit, and (c) if the vehicle is a unit of rolling stock forming part of a train but is not its locomotive—the driver of the train, and (d) if the vehicle is a trailer—the driver of the motor vehicle towing the trailer. employee means an individual who works under a contract of employment, apprenticeship or training. employer means a person who employs persons under— (a) contracts of employment, apprenticeship or training, or (b) contracts for services. EPA means the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991. exercise a function includes perform a duty. function includes a power, authority or duty. goods too dangerous to be transported means— (a) a substance or article prescribed by the regulations as goods too dangerous to be transported, or (b) a substance or article determined by a Competent Authority, in accordance with the regulations, to be goods too dangerous to be transported. involvement in the transport of dangerous goods by road or rail includes— (a) importing, or arranging for the importation of, dangerous goods into Australia, and (b) packing dangerous goods for transport by road or rail, and (c) marking or labelling packages containing dangerous goods for transport by road or rail, and placarding vehicles and packaging on or in which dangerous goods are transported by road or rail, and (d) consigning dangerous goods for transport by road or rail, including the preparation of transport documentation, and (e) loading dangerous goods for transport by road or rail or unloading dangerous goods that have been transported by road or rail, and (f) undertaking, or being responsible for, otherwise than as an employee or sub-contractor, the transport of dangerous goods by road or rail, and (g) driving a vehicle carrying dangerous goods by road or rail, and (h) being the consignee of dangerous goods transported by road or rail, and (i) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition. jurisdiction means the Commonwealth or a State or Territory. motor vehicle has the same meaning as it has in the Road Transport Act 2013. packaging, in relation to goods, is anything that contains, holds, protects or encloses the goods, whether directly or indirectly, to enable them to be received or held for transport, or to be transported, and includes anything declared by the regulations to be packaging. Note— It may be that a container constitutes the whole of the packaging of goods, as in the case of a drum in which dangerous goods are directly placed. placard means a label or emergency information panel that is required by the regulations to be used in transporting dangerous goods. premises includes a structure, whether permanent or temporary, and land, but does not include a vehicle. prime contractor, in respect of the transport of dangerous goods by road, means the person who, in conducting a business for or involving the transport of dangerous goods by road, has undertaken to be responsible for, or is responsible for, the transport of the goods by road. public authority means— (a) the Crown in any capacity, or (b) a body established by or under law, or the holder of an office established by or under law, for a public purpose, including a local government authority, or (c) a police force or police service. rail operator, in respect of the transport of dangerous goods by rail, means the person who has undertaken to be responsible, or is responsible, for— (a) the transport of the goods by rail, or (b) the condition of a unit of rolling stock transporting the goods. road means a road or road related area within the meaning of section 4 (1) of the Road Transport Act 2013. SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011. train means 2 or more units of rolling stock (at least 1 unit of which is a locomotive or self-propelled unit) that are coupled together. transport, in relation to dangerous goods, includes— (a) the packing, loading and unloading of the goods, and the transfer of the goods to or from a vehicle, for the purpose of their transport, and (b) the marking or labelling of packages containing dangerous goods, and the placarding of vehicles and packaging in which dangerous goods are transported, and (c) other matters incidental to their transport. transport documentation means documentation required by the regulations for the transport of dangerous goods. two-up driver means a person accompanying a driver of a vehicle on a journey or part of a journey, who has been, is or will be sharing the task of driving the vehicle during the journey. unit of rolling stock means a vehicle designed to run on rails, but does not include a vehicle designed to operate both on and off rails when the vehicle is not operating on rails. vehicle means— (a) a motor vehicle, or (b) a trailer, or (c) a unit of rolling stock. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) For the purposes of this Act, a person consigns goods if they are the consignor of the goods. (2) Notes included in this Act are explanatory notes and do not form part of this Act. 5 Scope of this Act (1) This Act does not apply to— (a) dangerous goods that are, or form part of, personal safety equipment of persons in a vehicle transporting dangerous goods, and (b) dangerous goods that are in a container that is designed to form part of, and forms part of, the fuel or battery system of a vehicle's engine, auxiliary engine, fuel burning appliance or other part of a vehicle's propulsion equipment. (2) If a provision of this Act is inconsistent with another law that— (a) relates to the storage and handling of dangerous goods, and (b) does not relate to involvement in the transport of dangerous goods by road or rail, the other law prevails. (3) If a provision of this Act is inconsistent with the Protection from Harmful Radiation Act 1990, the Protection from Harmful Radiation Act 1990 prevails. Part 2 Licensing and safety obligations 6 Licensing of vehicles transporting dangerous goods (1) A prime contractor must not use a vehicle to transport dangerous goods by road (other than as the driver of the vehicle) if— (a) the regulations require the vehicle to be licensed to transport the goods, and (b) the vehicle is not licensed under the regulations. Maximum penalty—500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate. (2) A person must not consign dangerous goods for transport by road on a vehicle if the person knows or reasonably ought to know that— (a) the regulations require the vehicle to be licensed to transport the goods, and (b) the vehicle is not licensed under the regulations. Maximum penalty—100 penalty units for an individual or 500 penalty units for a body corporate. (3) A person must not drive a vehicle transporting dangerous goods by road or rail if the person knows or reasonably ought to know that— (a) the regulations require the vehicle to be licensed to transport the goods, and (b) the vehicle is not licensed under the regulations. Maximum penalty—100 penalty units. 7 Licensing of drivers transporting dangerous goods (1) A person must not employ, engage, cause or permit another person to drive a vehicle transporting dangerous goods by road or rail if the other person is required by the regulations to be licensed to drive the vehicle and is not so licensed. Maximum penalty—500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate. (2) A person must not drive a vehicle transporting dangerous goods by road or rail if— (a) the regulations require the person to be licensed to drive the vehicle, and (b) the person is not licensed under the regulations. Maximum penalty—100 penalty units. 8 Goods too dangerous to be transported A person must not— (a) consign goods for transport by road or rail if the regulations identify the goods as being too dangerous to be transported, or (b) arrange the transport of goods that the regulations identify as being too dangerous to be transported on a vehicle owned or controlled by the person. Maximum penalty—500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate. 9 Duties concerning the transport of dangerous goods (1) A person involved in the transport of dangerous goods by road or rail who fails to ensure that the goods are transported in a safe manner is guilty of an offence. (2) If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act or the regulations in circumstances where the person knew, or ought reasonably to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence. (3) It is a defence to any proceedings against a person for an offence against subsection (1) if the person proves that— (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. Maximum penalty—500 penalty units or imprisonment for 2 years, or both, for an individual or 2,500 penalty units for a body corporate. 10 Reckless conduct causing death or serious injury by person with duties under section 9 (1) In this section— conduct includes acts or omissions. (2) A person— (a) whose conduct causes the death or serious injury of another person, and (b) who owes a duty under section 9 when engaging in that conduct, and (c) who is reckless as to the danger of death or serious injury to any person that arises from that conduct, is guilty of an offence. Maximum penalty—1,000 penalty units or imprisonment for 4 years, or both, for an individual or 5,000 penalty units for a body corporate. (3) For the purposes of this section, a person's conduct causes death if it substantially contributes to the death. (4) If, on the trial of a person for an offence against this section, the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 9, the jury may acquit the person of the offence charged and find the person guilty of the offence against section 9, and the person is liable to punishment accordingly. 11 Special defence for owners or operators (1) It is a defence to a prosecution for an offence against this Act or the regulations alleged to have been committed by a person in the capacity of an owner or operator of a vehicle transporting dangerous goods if the person establishes that the vehicle was being used at the relevant time by— (a) another person not entitled (whether by express or implied authority or otherwise) to use it, other than an employee or agent of the alleged offender, or (b) an employee of the alleged offender who was acting at the relevant time outside the scope of the employment, or (c) an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency. (2) If the offence relates to a breach of this Act or the regulations in connection with alleged deficiencies concerning the vehicle or dangerous goods, the defence is not available unless the alleged offender establishes that— (a) the vehicle or dangerous goods had not, before they ceased to be under the alleged offender's control, been driven or transported on a road in Australia in breach of this Act or the regulations or a corresponding law arising in connection with all or any of those alleged deficiencies, and (b) one or more material changes, resulting in the alleged breach, had been made after the vehicle or dangerous goods had ceased to be under the alleged offender's control. (3) In this section— deficiency concerning a vehicle or dangerous goods means a deficiency in anything that is required by the regulations to be carried on or in a vehicle or to be met in relation to dangerous goods. operator means— (a) in the case of a vehicle (not including a vehicle in a group of vehicles that are physically connected)—the person who is responsible for controlling or directing the operations of the vehicle, or (b) in the case of a group of vehicles that are physically connected—the person who is responsible for controlling or directing the operations of the towing vehicle in the group. owner, in respect of a vehicle, means a person who— (a) is the sole owner, a joint owner or a part owner of the vehicle, or (b) has possession or use of the vehicle under a credit, hire-purchase, lease or other agreement, except an agreement requiring the vehicle to be registered in the name of someone else. (4) For the purposes of this section, a person is not an operator merely because the person owns a vehicle or does any or all of the following— (a) drives a vehicle, (b) maintains or arranges for the maintenance of a vehicle, (c) arranges for the registration of a vehicle. 12 Offences by corporations—liability of directors and managers (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 the director or person— (a) was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) 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 been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. Part 3 Regulations 13 Regulation-making powers (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) In particular, the regulations may make provision for or with respect to the following— (a) the identification and classification of dangerous goods, (b) identifying, classifying and regulating goods that are too dangerous to be transported (including prohibiting the transport of such goods), (c) the making of determinations by a Competent Authority for the purposes of the regulations in relation to the following— (i) the identification and classification of goods as dangerous goods, (ii) the identification and classification of dangerous goods, (iii) the specification of what is, and what is not, compatible with dangerous goods for transport purposes, (iv) prohibiting or regulating the transport of dangerous goods by road or rail, (v) regulating the containment of dangerous goods that are being, or that are to be, transported by road or rail, (d) the analysis and testing of dangerous goods, (e) fees that are to be paid for things done under this Act, including the refund and waiver of fees, or particular types of fees, in whole or in part, (f) the marking and labelling of packages containing dangerous goods for transport by road or rail and the placarding of vehicles and packaging on or in which dangerous goods are transported by road or rail, (g) containers, vehicles, packaging, equipment and other items used in the transport of dangerous goods by road or rail, (h) voluntary accreditation schemes, including privileges to be accorded or sanctions to be imposed under the schemes and the cancellation or suspension of the schemes, (i) the loading of dangerous goods for, and the unloading of dangerous goods after, their transport by road or rail, (j) the determination by a Competent Authority of routes along which, the areas in which and the times during which dangerous goods may or may not be transported by road or rail, (k) procedures for the transport of dangerous goods by road or rail, including, but not limited to— (i) the quantities and circumstances in which dangerous goods, or particular types of dangerous goods, may be transported, and (ii) safety procedures and equipment, (l) the licensing of— (i) vehicles and drivers for the purposes of the transport of dangerous goods by road or rail, and (ii) persons involved in the transport of dangerous goods by road or rail or for vehicles used in that transport, (m) the mandatory accreditation of people involved in the transport of dangerous goods by road or rail or particular aspects of that transport, (n) the approval by a Competent Authority of the form in which applications are to be made to the Authority, and the form in which documents are to be issued by the Authority, for the purposes of the regulations, (o) the approval by a Competent Authority of— (i) vehicles, packaging, equipment and other items used in relation to the transport of dangerous goods by road or rail, and (ii) facilities for and methods of testing or using vehicles, packaging, equipment and other items used in relation to the transport of dangerous goods by road or rail, and (iii) processes carried out in relation to the transport of dangerous goods, (p) documents required to be prepared or kept by people involved in the transport of dangerous goods by road or rail and the approval by a Competent Authority of alternative documentation, (q) obligations arising, and procedures to be followed, in the event of a dangerous situation in relation to the transport of dangerous goods by road or rail, (r) the training and qualifications required of authorised officers and other people performing functions under this Act, (s) the training and qualifications required of people involved in, and the approval of training courses and qualifications relating to involvement in, the transport of dangerous goods by road or rail, (t) the recognition of laws of other jurisdictions relating to the transport of dangerous goods by road or rail and of things done under those laws, and the giving effect to those things, (u) the recognition of a body consisting of the Competent Authorities of this jurisdiction and other equivalent bodies in other jurisdictions to provide oversight on decisions made under this Act or the regulations that may have implications for other jurisdictions, and other matters in relation to such a body, including the recognition of decisions made by such a body, (v) the recognition of accredited providers of training, package testing, design verification and other similar activities, (w) the passing of information on persons relevant to licensing or compliance and enforcement matters to another Competent Authority and other authorities involved in the enforcement of road and rail laws, (x) requiring a person involved in the transport of dangerous goods by road or rail to hold insurance, or some other form of indemnity, in relation to that transport, (y) appeals against, and the review of, decisions under this Act, including conferring jurisdiction on— (i) a court or courts to hear appeals against decisions under the regulations, and (ii) the Civil and Administrative Tribunal to conduct administrative reviews under the Administrative Decisions Review Act 1997 of decisions under the regulations, (z) applications for, and consideration of applications for, exemptions, (aa) registers of approvals, exemptions and determinations, (ab) the form of decisions under the Act, (ac) determinations by a Competent Authority, (ad) obligations of passengers in respect of transport of dangerous goods by rail. (3) The Minister is not to recommend the making of a regulation containing provisions for the purposes of subsection (2) (y) (ii) unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions. 14 Regulations may adopt codes, standards and rules (1) The regulations may apply, adopt or incorporate any or all of the provisions of a code, standard or rule relating to dangerous goods or to transport by road or rail. Those provisions may be applied, adopted or incorporated as they currently exist, as amended by the regulations, or as amended from time to time. (2) The regulations may— (a) prescribe a substance or article as being dangerous goods, or (b) prescribe various types of dangerous goods, including goods that are too dangerous to be transported, and methods for deciding which dangerous goods fall into each type, by reference to such a code, standard or rule. (3) A reference in this section to a code, standard or rule includes a reference to one that is made outside Australia. 15 Penalties under the regulations The regulations may create offences, and may provide for a maximum penalty, not exceeding 250 penalty units for an individual or 500 penalty units for a body corporate, for each offence. Part 4 Administration Division 1 Competent Authorities and their authorised officers 16 Competent Authorities (1) For the purposes of this Act, each of the following are Competent Authorities— (a) the EPA, and (b) SafeWork NSW. (2) A Competent Authority— (a) may exercise the functions of an authorised officer, and (b) when exercising those functions, has all the immunities of an authorised officer. 17 Appointment of authorised officers (1) A Competent Authority may appoint a person, or persons included in a class of persons, to be an authorised officer or authorised officers. (2) In appointing authorised officers, a Competent Authority may specify that the appointment is subject to conditions or restrictions relating to— (a) the powers that are exercisable by those officers, or (b) when, where and in what circumstances those officers may exercise powers. (3) A Competent Authority may issue identification cards containing prescribed details to authorised officers. 18 Identification cards Each authorised officer who is not a police officer must— (a) carry his or her identification card as an authorised officer while carrying out duties under this Act, and (b) if requested to do so by any person affected by the exercise of a power by an authorised officer under this Act, produce the officer's identification card to the person. 19 Return of identification cards (1) A person who has been issued with an identification card and who stops being an authorised officer must return his or her identification card to the appropriate Competent Authority as soon as practicable. (2) A person must not contravene subsection (1) without reasonable excuse. Maximum penalty—10 penalty units. 20 Competent Authority may delegate functions A Competent Authority may delegate the exercise of any function of the Competent Authority under this Act (other than this power of delegation) to— (a) an authorised officer appointed by the Competent Authority, or (a1) if the Competent Authority is the EPA, a police officer, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. Division 2 Powers of authorised officers 21 Section 21 General powers of authorised officers who are police officers or appointed by EPA: application of Chapter 7 of Protection of the Environment Operations Act 1997 (1) An authorised officer who is a police officer or who is appointed by the EPA has and may exercise the functions of an authorised officer under Chapter 7 and section 319A of the Protection of the Environment Operations Act 1997 (the POEO Act) for the following purposes— (a) for determining whether there has been compliance with or a contravention of this Act and the regulations, (b) for obtaining information or records for purposes connected with the administration of this Act and the regulations, (c) generally for administering this Act and the regulations. (2) The provisions of Chapter 7 and section 319A of the POEO Act apply to and in respect of this Act as if those provisions were part of this Act, subject to the following modifications— (a) references in those provisions to an authorised officer were references to an authorised officer who is a police officer or who is appointed by the EPA as a Competent Authority under this Act, (b) references in those provisions to "this Act" were references to this Act, (c) references in those provisions to the EPA were references to the EPA as a Competent Authority, (d) the EPA as a Competent Authority was the appropriate regulatory authority for matters concerning this Act. (3) For the avoidance of doubt, a prosecution of a person for an offence against a provision of Chapter 7 of the POEO Act (as applying under this section) is to be taken as if the offence were an offence against this Act. (4) The functions that an authorised officer has under Chapter 7 of the POEO Act are, for the purposes of any provision of this Act, taken to be functions under this Act. (5) If an authorised officer has functions in respect of a matter under both Chapter 7 of the POEO Act (as applying under this section) and under any other provision of this Act, the fact that there is a restriction on the exercise of a function under this Act does not of itself operate to restrict the exercise by an authorised officer of any similar or the same function under Chapter 7 of the POEO Act. 22 General powers of authorised officers appointed by SafeWork NSW: application of Part 9 of Work Health and Safety Act 2011 (1) An authorised officer appointed by SafeWork NSW has and may exercise the functions of an inspector under Part 9 of the Work Health and Safety Act 2011 (the WHS Act) for the following purposes— (a) for determining whether there has been compliance with or a contravention of this Act and the regulations, (b) for obtaining information or records for purposes connected with the administration of this Act and the regulations, (c) generally for administering this Act and the regulations. (2) The provisions of Part 9 of the WHS Act apply to and in respect of this Act as if those provisions were part of this Act, subject to the following modifications— (a) references in those provisions to an inspector were references to an authorised officer appointed by SafeWork NSW as a Competent Authority under this Act, (b) references in those provisions to "this Act" were references to this Act, (c) references in those provisions to the regulator were references to SafeWork NSW as a Competent Authority. (3) For the avoidance of doubt, a prosecution of a person for an