Explosives Act 2003 (NSW)

Explosives Act 2003 No 39 An Act to provide for the regulation and control of the handling of explosives and explosive precursors; to provide for the regulation of certain other dangerous goods; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Explosives Act 2003. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions The dictionary in Schedule 3 defines words used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 4 Meaning of "regulatory authority" (1) SafeWork NSW (as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011) is the regulatory authority for the purposes of this Act, except as provided by this section. (2) A public authority is the regulatory authority for a matter for which it is declared to be the regulatory authority by the regulations (subject to such conditions or limitations as are specified in the regulations). 4A Meaning of "supply" (1) A person supplies an explosive or explosive precursor by— (a) transferring ownership of the explosive or explosive precursor to another person, whether by sale, gift or otherwise, or (b) transferring possession of the explosive or explosive precursor to another person, or (c) providing another person with the means to take possession of the explosive or explosive precursor, or (d) offering or negotiating to supply the explosive or explosive precursor, or (e) receiving the explosive or explosive precursor for supply, or (f) having the explosive or explosive precursor in the person's possession for supply, or (g) exposing or exhibiting the explosive or explosive precursor for supply, or (h) consigning or delivering the explosive or explosive precursor for supply, or (i) arranging for or allowing another person to supply the explosive or explosive precursor. (2) Subsection (1)(b) and (c) do not apply to persons acting under the authority of the same licence. 5 Act not to apply to transport of dangerous goods covered by other scheme To the extent to which it is regulated by the Dangerous Goods (Road and Rail Transport) Act 2008 or any regulations made under that Act, this Act does not apply to— (a) the transport of dangerous goods (within the meaning of that Act) by road or rail, or (b) any associated activity or matter. Part 2 Offences relating to explosives 6 Licences required for handling explosives and explosive precursors (1) A person must not handle an explosive or explosive precursor if— (a) this Act or the regulations require the handling to be authorised by a licence under this Act, and (b) the person is not authorised to do so by a licence under this Act. Maximum penalty— (a) in the case of a corporation—700 penalty units, or (b) in the case of an individual—350 penalty units or imprisonment for 12 months, or both. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 33. (2) Without limiting subsection (1) (a), the regulations may require licensing by reference to the following— (a) the class or type of explosive or explosive precursor, (b) the kind of handling of the explosive or explosive precursor, (c) the circumstances of the handling of the explosive or explosive precursor. 6A Security clearance must be held in certain circumstances A natural person must not handle any explosive or explosive precursor if— (a) this Act or the regulations require the person to hold a security clearance that is in force when handling the explosive or explosive precursor, and (b) the person does not hold a security clearance to handle the explosive or explosive precursor concerned. Maximum penalty—350 penalty units. 7 Transport of explosives A person transporting an explosive must at all times take all precautions that are necessary to prevent access to the explosive by persons not lawfully entitled to have access to the explosive. Maximum penalty— (a) in the case of a corporation—700 penalty units, or (b) in the case of an individual—350 penalty units. 8 Negligent handling of explosives (1) A person must not negligently handle any explosives in such a manner or in such circumstances as— (a) to endanger or be likely to endanger the life of any person, or (b) to cause or be likely to cause injury to any person, or (c) to damage or be likely to cause damage to any property belonging to any other person. Maximum penalty— (a) in the case of a corporation—700 penalty units, or (b) in the case of an individual—350 penalty units or imprisonment for 12 months, or both. (2) A person is not guilty of an offence under subsection (1) (c) if the person satisfies the court that the owner of the property concerned had consented to its damage. 9 Supply of explosives to minors (1) Subject to subsection (2), a person must not supply an explosive to a person who is under the age of 18 years (a minor). Maximum penalty—70 penalty units. (2) A person is not guilty of an offence under this section if the person satisfies the court that— (a) the person believed on reasonable grounds that the minor concerned had attained the age of 18 years, or (b) the minor concerned purchased or otherwise received the explosive in the course of the minor's employment. Part 2A Authorisation of explosives Division 1 Authorisation process 9A Application to have explosive authorised (1) A person may apply to the regulatory authority for the authorisation of an explosive. (2) An application must be— (a) made in the approved form, and (b) accompanied by— (i) the documents specified in the approved form, and (ii) the application fee determined by the regulatory authority. (3) The applicant must, if asked by the regulatory authority, give the regulatory authority— (a) additional information the regulatory authority reasonably requires to determine the application, and (b) 1 or more samples of the explosive for testing. (4) A sample of an explosive given to the regulatory authority under subsection (3)(b) must be given at no cost to the regulatory authority. 9B Authorisation (1) The regulatory authority may, after receiving an application under section 9A, by written notice to the applicant— (a) grant the application and authorise the explosive, with or without conditions, or (b) refuse the application. (2) An application is taken to have been refused if the regulatory authority has not decided the application within 3 months after receiving the application. (3) After authorising an explosive, the regulatory authority may, by written notice to the applicant— (a) impose conditions or further conditions on the authorisation, or (b) vary or revoke a condition of the authorisation. (4) Without limiting the grounds on which an application may be refused, an application may be refused if— (a) the application has not been properly made, or (b) the applicant has failed to give the regulatory authority additional information requested by the regulatory authority, or (c) the applicant has failed to give the regulatory authority a sample of the explosive requested by the regulatory authority. (5) An authorisation remains in force until cancelled by the regulatory authority. Division 2 Register of explosives 9C Register of explosives (1) The regulatory authority must keep a register of explosives. (2) The register of explosives must be kept in the way determined by the regulatory authority. (3) The register of explosives must include the following particulars for each authorised explosive— (a) the commercial name, (b) the proper shipping name, (c) the UN number, (d) the classification code, (e) the name of the applicant, (f) the conditions of the authorisation, (g) the information prescribed by the regulations. (4) In this section— proper shipping name has the same meaning as in the ADG Code. UN number, for an explosive, means the identification number shown in the ADG Code in relation to the explosive. 9D Publication of register (1) The regulatory authority must make the register of explosives publicly available in the way prescribed by the regulations. (2) When making the register publicly available, the regulatory authority— (a) must not include the name of an applicant, and (b) need not include the conditions of an authorisation. (3) The regulatory authority must keep the register up to date. Division 3 Cancellation of authorisation 9E Grounds to cancel an authorisation (1) The regulatory authority may cancel the authorisation of an explosive on 1 or more of the following grounds— (a) the authorisation of the explosive in another State or Territory has been cancelled, (b) the regulatory authority reasonably considers the authorisation should be cancelled— (i) on safety grounds, or (ii) on public interest grounds, or (iii) because the regulatory authority considers the authorisation to have no ongoing effect, or (iv) on grounds prescribed by the regulations. (2) The cancellation of an authorisation does not entitle a person to compensation. 9F Cancellation process (1) Before cancelling the authorisation of an explosive, the regulatory authority must make reasonable efforts to give the applicant— (a) at least 30 days written notice of the regulatory authority's intention to cancel the authorisation, and (b) an opportunity to make submissions to the regulatory authority, in the way and within the time specified in the notice, about the proposed cancellation. (2) The regulatory authority cancels the authorisation of an explosive by— (a) giving public notice of the cancellation in the way prescribed by the regulations, and (b) removing the particulars of the explosive from the register of explosives. (3) The regulatory authority must make reasonable efforts to give the applicant written notice that the authorisation of the explosive has been cancelled. Part 3 Explosives licences and security clearances Division 1 Preliminary 10 Licences may be granted under this Act (1) Licences authorising the carrying out of an activity that constitutes handling an explosive or explosive precursor may be granted and otherwise dealt with in accordance with this Part. (2) Licences may be granted or varied so as to cover one or more activities involving explosives or explosive precursors. 10A Security clearance a prerequisite to obtaining licence (1) A natural person is not eligible for a licence unless the person has been granted a security clearance that is in force. (2) A corporation is not eligible for a licence unless there is at least one responsible person for that corporation who has been granted a security clearance that is in force. (3) The regulations may provide that subsections (1) and (2) do not apply to or in respect of a specified class or type of licence. 11 Grant of licences and security clearances (1) Licences and security clearances are to be granted by the regulatory authority. (2) The regulatory authority may approve or refuse applications for licences and security clearances in accordance with this Act and the regulations. 12 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 (1) Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence, subject to the modifications and limitations prescribed by or under this Act. (2) For the purpose of applying Part 2 of the applied Act to a licence— (a) the licence may be amended under that Act, and (b) the licence may be transferred under that Act. (3) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act. 13 Commissioner of Police to report on licences and security clearances (1) The regulatory authority may request the Commissioner of Police to furnish the regulatory authority with a report in respect of any one or more of the following matters relating to an applicant for the grant or renewal of a licence or security clearance or the holder of a licence or security clearance— (a) whether the applicant or holder has been found guilty or convicted of an offence (whether in New South Wales or elsewhere) and any available information concerning any such conviction that the Commissioner considers to be relevant to the application or continued holding of the licence or security clearance, (b) whether the applicant or holder is the subject of a firearms prohibition order within the meaning of the Firearms Act 1996, (c) whether the applicant or holder is a fit and proper person to hold, or continue to hold, the licence or security clearance, (d) whether the applicant or holder has a history of violence or threats of violence, with violence including behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or intimidation with intent to cause fear of physical or mental harm), (e) whether there is an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 in force with respect to the applicant or holder, (f) any available information with respect to the participation of the applicant or holder in any criminal activity, (g) whether the Commissioner considers that it is contrary to the public interest for the applicant or holder to hold, or continue to hold, the licence or security clearance, (h) such other matters as the regulatory authority may specify in the request. (2) The Commissioner of Police, on receiving a request made under subsection (1), is to investigate the person to which the request relates and furnish to the regulatory authority a report in respect of the matter or matters that were the subject of the request. (3) The report of the Commissioner of Police may include any of the following information— (a) information in the Commissioner's possession, (b) information to which the Commissioner ordinarily has access through arrangements with the police service of the Commonwealth or another State or Territory. (4) A reference in this section to an applicant for the grant or renewal of a licence or the holder of a licence includes, if that applicant or holder is a corporation, a reference to each director and manager of the corporation. (5) The Commissioner of Police may identify any information included in a report under this section as information that could disclose the existence or content of a criminal or security intelligence report or other confidential criminal information. (6) The regulatory authority is not, under this or any other Act or law, required to give any reasons for not granting a licence or security clearance to (or for suspending or cancelling a licence or security clearance of) a person on the basis of a report made by the Commissioner about the person under this section if the giving of those reasons would disclose any criminal or security intelligence report or other confidential criminal information as referred to in subsection (5). Division 2 Security clearances 13A Application for security clearance (1) An individual may apply to the regulatory authority for a security clearance. (2) An application for a security clearance must be— (a) made in the approved form, and (b) accompanied by— (i) the documents, including photographs, specified in the approved form, and (ii) the fee determined under section 17. 13B Grant or refusal of application for security clearance (1) The regulatory authority must consider an application made under section 13A and decide to— (a) grant the application and issue a security clearance, or (b) refuse the application. (2) The regulatory authority must refuse the application if— (a) the regulatory authority is not satisfied the individual applying for the security clearance is— (i) at least 18 years of age, and (ii) a fit and proper person to be granted a security clearance, or (b) the Commissioner of Police, in a report given under section 13, recommends that the application should be refused on the basis of criminal or security intelligence or other information available to the Commissioner. (3) The regulations may prescribe additional grounds on which an application for a security clearance must or may be refused. 14 Conditions of security clearances (1) Security clearances may be granted unconditionally or subject to conditions. (2) After granting a security clearance, the regulatory authority may, by notice in writing to the holder of the security clearance— (a) impose conditions or further conditions on the security clearance, or (b) vary or revoke any of the conditions to which the security clearance is subject. (3) A security clearance is also subject to such conditions as are prescribed by the regulations. Any such prescribed condition cannot be varied or revoked by the regulatory authority under this section. (4) (Repealed) 15 Offence to contravene conditions of security clearance The holder of a security clearance must not contravene any condition to which the security clearance is subject. Maximum penalty—70 penalty units. 16 Duration of security clearances (1), (2) (Repealed) (3) A security clearance remains in force (unless sooner cancelled) for the period of 5 years after it is granted. (4) If a licence is issued to a person during the term of a security clearance, the security clearance is taken to continue in force while the licence is in force, unless the security clearance is sooner cancelled. (5) A security clearance is not in force during any period it is suspended. Division 3 Licences 16AA Definitions In this division— safety management plan means a plan— (a) describing the procedures in place to manage hazards and risks to safety associated with the activities that are to be authorised by a licence, and (b) prepared in accordance with the regulations. security plan means a plan— (a) describing the facilities, systems and procedures in place for the safe and secure handling of explosives or explosive precursors under a licence, and (b) prepared in accordance with the regulations. 16AB Licence types (1) The following types of licences may be granted by the regulatory authority— (a) blasting explosives user's licence, (b) fireworks, single use, licence, (c) licence to import, (d) licence to manufacture, (e) licence to store, (f) licence to supply, (g) licence to transport by vehicle, (h) licence to transport by vessel, (i) licence to use security sensitive dangerous substances, (j) pyrotechnician's licence, (k) a type of licence prescribed by the regulations. (2) The regulations may prescribe the activities permitted to be carried out under each type of licence. 16AC Eligibility for licence (1) A person is eligible to be granted a licence if— (a) for an individual—the individual— (i) is at least 18 years of age, and (ii) holds a security clearance, and (iii) complies with the eligibility criteria prescribed by the regulations for the type of licence, or (b) for a corporation— (i) a responsible person for the corporation holds a security clearance, and (ii) the corporation complies with the eligibility criteria prescribed by the regulations for the type of licence. (2) Subsection (1)(a)(ii) and (b) do not apply to a fireworks, single use, licence. 16AD Application for licence (1) An application for a licence must be— (a) made in the approved form, and (b) accompanied by— (i) the documents, including photographs, specified in the approved form, and (ii) the fee determined under section 17. (2) The regulatory authority may require an applicant to lodge the following— (a) a safety management plan, (b) a security plan. (3) If the applicant is a corporation, the applicant must nominate a responsible person for the corporation. (4) The applicant must, if asked by the regulatory authority, give the regulatory authority additional information the regulatory authority reasonably requires to determine the application. 16AE Grounds to refuse licence (1) The regulatory authority must not grant a licence unless the regulatory authority is satisfied of the following— (a) the applicant is eligible for the licence, (b) the application has been properly made in accordance with section 16AD, (c) if the regulatory authority required the applicant to lodge a safety management plan—the plan is appropriate for managing the hazards and risks to safety associated with the activities authorised by the licence, (d) if the regulatory authority required the applicant to lodge a security plan—the plan is appropriate for the safe and secure handling of the explosives or explosive precursors to be handled under the licence, (e) the applicant has appropriate facilities, systems and procedures in place for the safe and secure handling of the explosives and explosive precursors to be handled under the licence. (2) The regulations may prescribe additional grounds on which a licence must or may be refused. 16AF Conditions of licences (1) A licence is subject to— (a) conditions prescribed by the regulations for the licence, and (b) conditions imposed by the regulatory authority. (2) The regulatory authority may impose conditions on a licence— (a) when granting the licence, or (b) at another time by written notice to the licence holder. (3) The regulatory authority may, by written notice to the licence holder, vary or revoke a condition imposed on the licence. (4) The regulatory authority may not vary or revoke a condition prescribed by the regulations. 16AG Offence to contravene conditions of licence A licence holder must not contravene a condition to which the licence is subject. Maximum penalty—50 penalty units. 16AH Duration of licences (1) A licence remains in force— (a) for the period specified in the licence, or (b) if no period is specified in the licence—until cancelled under Division 5. (2) Also, a licence is not in force during a period in which the licence is suspended. 16A Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the regulatory authority on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the regulatory authority may extend the period within which an application for the restoration of a licence may be made if the regulatory authority is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored on and from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. Division 4 Other matters relating to security clearances and licences 17 Fees for licences and security clearances (1) The fees payable in respect of applications for licences and security clearances are to be determined by the regulatory authority. (2) Any such fee is not to exceed the maximum amount prescribed by the regulations. 18 Offences relating to licences and security clearances (1) A person must not pretend to hold a licence or security clearance. (2) A person must not, for the purpose of obtaining a licence or security clearance, provide any information or produce any document that the person knows is false or misleading in a material particular. (3) A person must not, with intent to deceive, forge or alter a licence or security clearance. (4) A person must not, without reasonable excuse, have another person's licence or security clearance in his or her possession. (5) A holder of a licence or security clearance must not lend the licence or security clearance or allow it to be used by any other person. Maximum penalty—70 penalty units. 19 Regulations relating to licences (1) The regulations may make provision for or with respect to licences. (2) In particular, the regulations may make provision for or with respect to the following— (a) the classes or types of licence, (b) restrictions on the authority conferred by a particular type of licence or class of licence, whether by reference to the activity involving an explosive or explosive precursor authorised by the licence or otherwise, (c) applications for licences, including applications for the restoration of licences, (d) the eligibility of applicants (including age, qualifications, knowledge, experience, training and health), (e) the testing or examination of applicants or the holders of licences to determine whether they are, or continue to be, eligible to hold a licence, (f) the continuing education and training of holders of licences or employees of holders of licences, (g) the granting of different types of licences in the same document, (h) the replacement of licence documents that are lost, destroyed or defaced, (i) the return of licence documents that require alteration, (j) procedures relating to the suspension or cancellation of licences, (k) fees payable in connection with licences and applications for licences. 19A Regulations relating to security clearances The regulations may make provision for security clearances, including for the following— (a) applications for security clearances and the restoration of security clearances, including fees, (b) the eligibility of individuals to apply for a security clearance, (c) continuing education and training for persons who hold security clearances, (d) the replacement of lost, destroyed or defaced security clearance documents, (e) the return of security clearance documents requiring alteration, (f) procedures relating to the suspension or cancellation of security clearances. Division 5 Suspension and cancellation 20 Suspension of licences and security clearances (1) The regulatory authority may suspend a licence or security clearance— (a) if the holder of the licence or security clearance— (i) is proceeded against for an offence against this Act or the regulations, or (ii) is not complying with any lawful requirement imposed by or under this Act, or (b) for any other reason prescribed by the regulations. (2) The regulatory authority may suspend a licence or security clearance under subsection (1) (a) until the relevant proceeding has been disposed of or requirement complied with. 21 Cancellation of licences and security clearances The regulatory authority may cancel a licence or security clearance— (a) if the holder of the licence or security clearance— (i) is convicted of or found guilty of an offence against this Act or the regulations or a provision of a corresponding Act or regulation of the Commonwealth or of another State or Territory relating to explosives, or (ii) breaches a condition of the licence or security clearance, or (iii) surrenders the licence or security clearance to the regulatory authority, or (iv) supplied information which was (to the holder's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or security clearance, or (b) if the regulatory authority is of the opinion that the holder is no longer a fit and proper person to hold, or to continue to hold, the licence or security clearance, or (c) for any other reason prescribed by the regulations. 22 Special provision—suspension or cancellation of licences and security clearances where suspicions of violence (1) If the regulatory authority believes that the holder of a licence or security clearance cannot be trusted to handle explosives or explosive precursors because the person has a history of violence or threats of violence (whether or not the person has been convicted of any offence involving violence), the regulatory authority may, by notice in writing served on the holder, require the holder, within the time specified in the notice, to show cause why the licence or security clearance should not be cancelled. (2) The regulatory authority may also, at any time, suspend the licence or security clearance pending determination of the matter under subsection (3). (3) If the regulatory authority is not satisfied with the matters, if any, put to the regulatory authority by the holder of the licence or security clearance, the regulatory authority may cancel the licence or security clearance. (4) If the regulatory authority is satisfied that an apprehended violence order is in force under the Crimes (Domestic and Personal Violence) Act 2007 against the holder of a licence or security clearance (whether or not the person has been served with a notice under subsection (1)), the regulatory authority may suspend the licence or security clearance for any period determined by the regulatory authority. (5) A period must not be determined under subsection (4) that extends beyond the period during which the apprehended violence order remains in force. (6) This section does not limit any powers of the regulatory authority under section 20 or 21 with respect to a licence or security clearance. (7) In this section, violence includes behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or intimidation with intent to cause fear of physical or mental harm). 23 Suspended and cancelled licences and secur