Security-sensitive Dangerous Substances Act 2005 (Tas)

Security-sensitive Dangerous Substances Act 2005 An Act to restrict and regulate access to certain dangerous substances whose deliberate misuse would constitute an especial threat to State security and public safety, to regulate and monitor, and improve the security of, commercial, industrial and other activities carried out in connection with such dangerous substances and for related purposes [Royal Assent 11 July 2005] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Security-sensitive Dangerous Substances Act 2005 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – approved form means a form approved by the regulator; authorised means – (a) in relation to an SSDS and an SSDS permit, the SSDS for which the permit is issued; and (b) in relation to a restricted activity and an SSDS permit, the restricted activity that the permit authorises to be carried out; authorised officer means an authorised officer appointed under section 52(1) , and includes a person authorised under section 52(6) ; background check means a police and security check into a person's background, with the particular aim of checking whether the person has engaged in, or encouraged or supported, acts of politically motivated violence; close associate – see section 15 ; conviction, in relation to an offence, includes a finding of guilt without the recording of a conviction for the offence; corresponding Australian law means a law of another State, or of a Territory, that – (a) corresponds, or substantially corresponds, to this Act; or (b) regulates a dangerous substance other than an SSDS and is prescribed to be a corresponding Australian law for the purposes of this Act; corresponding regulator means a person who, under a corresponding Australian law, is responsible for determining or vetting applications for permits or other forms of regulatory authority relating to activities that involve security-sensitive dangerous substances; form of regulatory authority includes a permit, licence, approval, accreditation, authorisation, certification or registration; functions includes duties; identity card means a responsible worker's identity card issued under section 37(1) ; nomination means a nomination under section 39 ; notify means give notice in writing; powers, of the regulator or an authorised officer, includes any functions associated with the exercise of those powers; premises includes – (a) an area of land, whether built on or enclosed; and (b) a building or a part of a building (whether permanent or temporary); and (c) a structure or a part of a structure (whether permanent or temporary) – but does not include a vehicle; qualifications includes expertise, training and experience; register means the register kept under section 28 ; regulations means regulations made and in force under this Act; regulator means the regulator appointed under Part 1 of Schedule 2 to the Work Health and Safety Act 2012 ; related State law means – (a) an Act referred to in section 7 ; or (b) a prescribed law of the State; responsible worker, for an SSDS permit, means a person who, besides the holder of the permit, is authorised by the permit to have either or both of the following: (a) independent and unsupervised access to the authorised SSDS; (b) independent and unsupervised carriage of the authorised restricted activity; restricted activity, in relation to an SSDS, means – (a) manufacturing, importing, exporting, buying, selling, supplying, storing, using or disposing of – (i) if the SSDS is specified in Part 2 of Schedule 1 by reference to a quantity, that quantity of the SSDS; or (ii) in the case of any other SSDS, any quantity of the SSDS; or (b) an activity specified in Part 3 of Schedule 1 ; restrictive personal order means any of the following: (a) a family violence order or interim family violence order within the meaning of the Family Violence Act 2004 ; (b) a police family violence order within the meaning of the Family Violence Act 2004 ; (c) a restraint order or interim restraint order within the meaning of Part XA of the Justices Act 1959 ; (d) an external restraint order within the meaning of Part XA of the Justices Act 1959 ; right of review means a right of review under section 74 ; security threat means an incident or situation, whether or not involving an SSDS, that threatens or has the potential to threaten State security or public safety; sell means sell by wholesale or retail, and includes – (a) offer, display or expose for sale; and (b) keep or possess for sale; and (c) barter or exchange; and (d) deal in or agree to sell; and (e) supply, send, forward or deliver for sale or for, or in expectation of receiving, any payment or consideration; and (f) receive for sale; and (g) authorise, direct, cause, permit or suffer a thing referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) to be done; SSDS means a security-sensitive dangerous substance – see section 4 ; SSDS permit means a permit issued under Part 2 ; State includes Territory; terrorism offence means an offence under Part 5.3 of the Criminal Code of the Commonwealth; vehicle includes any kind of – (a) vessel; and (b) aircraft; and (c) vehicle built or adapted to move on rails; and (d) motor vehicle, being a vehicle built to be propelled by a motor that forms part of the vehicle; and (e) trailer, being a vehicle built or adapted to be towed by a motor vehicle. 4. What is a security-sensitive dangerous substance? (1) A security-sensitive dangerous substance ("SSDS") is a substance specified in Part 2 of Schedule 1 . (2) The specification of a substance under subsection (1) may be absolute or by reference to a quantity of the substance. 5. Application requirements An application to the regulator in relation to a matter under this Act is to be in an approved form and must – (a) be accompanied by the prescribed fee, if any; and (b) be supported by such evidence or information as the regulator requires; and (c) comply with such additional requirements, if any, as relate specifically to the application. 6. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence. 6A. Application of Act (1) This Act does not apply to the carrying out of a restricted activity in relation to an SSDS by – (a) an authorised officer acting in the course of duty; or (b) a police officer acting in the course of duty; or (c) a person acting in the course of a duty that he or she is performing for or on behalf of an emergency service. (2) This Act does not apply to the carrying out, in Tasmania, of a restricted activity in relation to an SSDS by any of the following persons acting in the course of Commonwealth duty or at the request of or with the approval of the Commissioner of Police, an SES authority or any Minister: (a) a police officer of the Commonwealth or another State; (b) a member of the Defence Forces of the Commonwealth; (c) a civilian employee of the Commonwealth. (3) In this section – emergency service means – (a) the State Emergency Service within the meaning of the Emergency Management Act 2006 ; or (b) Ambulance Tasmania established under the Ambulance Service Act 1982 ; or (c) the Tasmania Fire Service established under the Fire Service Act 1979 ; or (d) the Department; SES authority means – (a) the Director of the State Emergency Service appointed under section 27 of the Emergency Management Act 2006 ; or (b) the State Emergency Management Controller referred to in section 10(1) of that Act; or (c) the Deputy State Emergency Management Controller referred to in section 10(2) of that Act. 7. Act does not derogate from other laws dealing with dangerous substances The provisions of this Act are in addition to, and not in derogation of, the provisions of the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 , Dangerous Goods (Road and Rail Transport) Act 2010 , Explosives Act 2012 , Fertilizers Act 1993 , Poisons Act 1971 and Work Health and Safety Act 2012 . PART 2 - Security-sensitive dangerous substances permits Division 1 - Need for permits 8. Offence to carry out certain activities without permit (1) A person must not carry out a restricted activity in relation to an SSDS unless the person – (a) is authorised to carry out the restricted activity by an SSDS permit; and (b) complies with the conditions of the SSDS permit in carrying out the restricted activity. (2) A person must not direct, cause or allow another person to carry out a restricted activity in relation to an SSDS unless – (a) the first-mentioned person is the holder of an SSDS permit that authorises the restricted activity to be carried out, and the other person – (i) is a responsible worker for the SSDS permit; or (ii) carries out the restricted activity under the direct and constant supervision of the first-mentioned person or a responsible worker for the SSDS permit; or (b) the first-mentioned person is a responsible worker for an SSDS permit that authorises the restricted activity to be carried out and the other person carries out the restricted activity under the close and constant supervision of – (i) the first-mentioned person; or (ii) the holder of the SSDS permit. (3) A person who contravenes subsection (1) or (2) is guilty of an offence. Penalty: In the case of – (a) a body corporate, a fine not exceeding 1 000 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues; and (b) an individual – (i) a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues; or (ii) imprisonment for a term not exceeding 12 months. Division 2 - Applications 9. Applications for permits (1) A person may apply to the regulator for an SSDS permit. (2) The application must – (a) specify the SSDS and restricted activity for which the SSDS permit is being sought and explain precisely why and for how long the applicant will need the permit; and (b) be accompanied by a security plan complying with the prescribed requirements, if any, based on a risk assessment of the SSDS and restricted activity for which the permit is being sought; and (c) nominate, if applicable, those persons who the applicant wishes to have as responsible workers; and (d) give the full name, date of birth and address of each person so nominated. (3) The application must also satisfy the regulator that the applicant and each person nominated as a responsible worker knows and accepts that they are liable to be subjected to a background check as part of the application process. (4) The regulator may assist the applicant by providing advice or written guidelines about the security plan requirement. 10. Consideration of applications (1) In considering an application for an SSDS permit, the regulator may – (a) carry out such inquiries, consult such persons and take into account such matters as the regulator considers necessary or expedient having regard to the nature of the application and the proposed restricted activity; and (b) require the applicant to provide any further information or evidence about any matter relating to the application. (2) After considering an application for an SSDS permit, the regulator may, subject to sections 11 , 12 , 13 and 14 – (a) approve the application; or (b) refuse the application. 11. Applications not to be approved without police clearance The regulator must not approve an application for an SSDS permit unless – (a) a copy of it has been referred to the Commissioner of Police; and (b) the Commissioner of Police has notified the regulator to the effect that there is no objection, on security grounds, to the application being approved. 12. Applications not to be approved unless certain general requirements are met The regulator must not approve an application for an SSDS permit unless he or she is satisfied of each of the following: (a) that, having regard to any relevant corporate or business structure, proprietary interests, business practices or occupational responsibilities, the applicant is an appropriate person to be making the application; (b) that, having regard to the guidelines in Schedule 2 , the applicant has demonstrated a legitimate need to carry out the proposed restricted activity; (c) that the applicant has a security plan complying with the prescribed requirements, if any, based on a risk assessment of the proposed restricted activity; (d) that each person nominated as a responsible worker (and the applicant too if it is a natural person) has attained the age of 18 years; (e) that other legislative requirements, if any, specifically governing the proposed restricted activity in relation to the relevant SSDS (whether State or Commonwealth) have been, or are capable of being, met; (f) that any prescribed requirements have been, or are capable of being, met. 13. Applications not to be approved unless applicants are fit and proper persons (1) The regulator must not approve an application for an SSDS permit unless he or she is satisfied that the applicant is a fit and proper person to be issued with the permit. (2) For the purposes of subsection (1) , the regulator must have regard to at least the following matters: (a) the applicant's qualifications in relation to security-sensitive dangerous substances or dangerous substances generally; (b) if applicable, the applicant's mental fitness; (c) the applicant's conduct as regards any other SSDS permit or any similar form of regulatory authority, either in this State or elsewhere; (d) whether the applicant or a close associate or related body corporate of the applicant has given false or misleading information in or in connection with an application or nomination or about another matter under this Act; (e) whether the applicant or a close associate or related body corporate of the applicant has ever contravened this Act, a related law of the State or a corresponding Australian law; (f) whether the applicant or a close associate or related body corporate of the applicant has, in this State or elsewhere, been convicted of an offence involving an SSDS or another dangerous substance; (g) whether the applicant, or a close associate of the applicant, has been convicted of a terrorism offence; (h) whether the applicant or a close associate of the applicant has, in this State or elsewhere, been convicted of an offence involving – (i) violence or weapons; or (ii) dishonesty; or (iii) the obstruction or intimidation of persons exercising statutory powers or functions; (i) whether the applicant is or has ever been subject to a restrictive personal order; (j) any prescribed matter. (3) For the purposes of subsection (2) , the regulator is not required to have regard to the activities of an applicant's close associate under that subsection if that close associate is a prescribed person or a person of a prescribed class. (4) In this section – related body corporate, of an applicant, means a body corporate that the applicant is or has been an officer of. 14. Applications not to be approved unless responsible workers are fit and proper persons (1) The regulator must not approve an application for an SSDS permit unless he or she is satisfied that each person nominated as a responsible worker is a fit and proper person to be a responsible worker for the permit. (2) For the purposes of subsection (1) , the regulator must have regard to at least the following matters: (a) the nominee's qualifications in relation to security-sensitive dangerous substances or dangerous substances generally; (b) the nominee's mental fitness; (c) the nominee's conduct as regards any other SSDS permit or any similar form of regulatory authority, either in this State or elsewhere; (d) whether the nominee has given, or been responsible for the giving of, false or misleading information in or in connection with an application or nomination or about another matter under this Act; (e) whether the nominee has ever contravened this Act, a related law of the State or a corresponding Australian law (whether or not the contravention resulted in a conviction); (f) whether the nominee has, either in this State or elsewhere, been convicted of an offence involving an SSDS or another dangerous substance; (g) whether the nominee has been convicted of a terrorism offence; (h) whether the nominee has, either in this State or elsewhere, been convicted of an offence involving – (i) violence or weapons; or (ii) dishonesty; or (iii) the obstruction or intimidation of persons exercising statutory powers or functions; (i) whether the nominee is or has ever been subject to a restrictive personal order; (j) any prescribed matter. 15. What is a close associate? (1) For the purposes of section 13 , a person is a close associate of someone (in this section referred to as "the related person") if – (a) the person holds an executive position (however described) in the related person's business; or (b) the regulator is satisfied that the person is or will be able to exercise a significant influence in relation to the conduct of the related person's business because the person holds or will hold a financial interest, or is entitled to exercise a relevant power, in the business. (2) In this section – business includes – (a) a business not carried on for profit; and (b) a trade or profession; executive position, in a business, means a position (however described) held by a person who is concerned with, or takes part in, the management of the business; exercise, a power, includes exercise the power on behalf of someone else; financial interest, in a business, means – (a) a share in the capital of the business; or (b) an entitlement to receive income derived from the business (however the entitlement arises); hold, a position, includes hold the position on behalf of someone else; power means a power exercisable – (a) by voting or otherwise; or (b) exercisable alone or with others; relevant power, in a business, means a power to – (a) take part in a directorial, managerial or executive decision for the business; or (b) elect or appoint a person to an executive office in the business. 16. Regard may be had to other checks In deciding or considering any matter that the regulator is required to be satisfied of or have regard to for the purposes of section 12 , 13(2) or 14(2) , the regulator may take into account and accept, either wholly or in part, the findings of any background check or other relevant check or inquiry that may have been – (a) carried out by a corresponding regulator for the purposes of a corresponding Australian law; or (b) carried out for the purposes of a related State law; or (c) previously carried out by the regulator for the purposes of this Act. 17. Amendment of applications (1) If the regulator is of opinion that an application for an SSDS permit ought to be refused but that the application would be capable of being approved with minor amendments, the regulator may – (a) notify the applicant of that opinion and of the specific minor amendments that would render the application capable of being approved; and (b) ask the applicant whether the applicant would like to – (i) have the application considered as if it were so amended; or (ii) have the application considered in its original form; or (iii) withdraw the application. (2) If the applicant chooses the option specified in subsection (1)(b)(i) , the regulator's decision under section 10(2) may be made on the basis of the amended application. 18. Actions to be taken following approval or refusal of applications (1) If an application for an SSDS permit is approved, the regulator is to – (a) notify the applicant of the approval; and (b) issue the applicant with the permit; and (c) if applicable, issue the applicant with any supplementary documents; and (d) if applicable, take the action required by section 37 ; and (e) make an appropriate entry in the register. (2) If an application for an SSDS permit is refused, the regulator is to notify the applicant of – (a) the refusal; and (b) subject to section 73 , the reasons for the refusal; and (c) the applicant's right of review. Division 3 - Nature of SSDS permits 19. Types of permit (1) The regulator, having regard to the SSDS and restricted activity concerned and the applicant's demonstrated legitimate need, may issue an SSDS permit as – (a) a long-term SSDS permit; or (b) a short-term SSDS permit. (2) A long-term SSDS permit is to be issued for a period of 3 years. (3) A short-term SSDS permit may, in the regulator's discretion, be issued for – (a) a period not exceeding 12 months determined by the regulator; or (b) if it is certain or likely that the authorised restricted activity only needs to be carried out for a period of less than 12 months, the expected duration of the restricted activity. 20. Form of permits (1) An SSDS permit is to be in an approved form but it must at least specify – (a) whether it is a long-term or short-term SSDS permit; and (b) the name and business address of the person it is issued to; and (c) the authorised SSDS and authorised restricted activity; and (d) the place where the authorised restricted activity is to be carried out (if that place is different from the permit holder's business address); and (e) its date of issue; and (f) when it expires (either by reference to a period or date or, if section 19(3)(b) applies, to the expected duration of the authorised restricted activity). (2) The responsible workers for an SSDS permit may, in the regulator's discretion – (a) be named in the permit itself; or (b) be named in a supplementary document, in an approved form, issued with the permit. 21. Permit conditions (1) An SSDS permit may be issued unconditionally or on such conditions as the regulator determines having regard to the authorised SSDS and authorised restricted activity. (2) The conditions of an SSDS permit may, in the regulator's discretion, be set out – (a) in the permit itself; or (b) in a supplementary document, in an approved form, issued with the permit. (3) The conditions are to be entered in the register. (4) The holder of an SSDS permit must not – (a) contravene a condition of the SSDS permit; or (b) direct, cause or allow a responsible worker or any other person to contravene a condition of the SSDS permit. Penalty: In the case of – (a) a body corporate, a fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues; and (b) an individual, a fine not exceeding 250 penalty units and, in the case of a continuing offence, a further fine not exceeding 2.5 penalty units for each day during which the offence continues. (5) A responsible worker for an SSDS permit must not – (a) contravene a condition of the SSDS permit; or (b) direct, cause or allow another person to contravene a condition of the SSDS permit. Penalty: Fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 1 penalty unit for each day during which the offence continues. 22. What do permits authorise? (1) An SSDS permit authorises the holder of the permit and each responsible worker to carry out the restricted activity specified in the permit, in relation to the SSDS specified in the permit, in accordance with – (a) the conditions of the permit; and (b) any prescribed conditions. (2) An SSDS permit also authorises other persons to carry out the restricted activity specified in the permit, in relation to the SSDS specified in the permit, if they are – (a) employees or agents of the holder of the permit; and (b) working under the direct and constant supervision of the holder of the permit or a responsible worker. 23. Mutual recognition (1) The regulator, by notice in the Gazette, may certify that a class of permit capable of being issued under a corresponding Australian law is recognised in this State if the regulator is satisfied that the permits of that class correspond, or substantially correspond, to SSDS permits. (2) A permit that is of a class recognised in this State by virtue of a regulator's certification under subsection (1) has force and effect in this State, according to its terms, as an SSDS permit to the same extent to which it is in force and effect in the jurisdiction in which it was issued. (3) Also, a person whose status or authority in respect of a recognised permit corresponds to the status or authority of a responsible worker under an SSDS permit is taken to be a responsible worker for that recognised permit if and when the person is required to work in this State under that recognised permit. (4) Subsection (3) has effect whether the corresponding status and authority referred to in that subsection is derived from the recognised permit itself or from a separate permit issued to the person under a corresponding Australian law. (5) The regulations may provide for the recognition of other matters under corresponding Australian laws for the purpose of enabling persons who are authorised to carry out a restricted activity in relation to an SSDS in another jurisdiction (with or without supervision) to carry out the same restricted activity in this State. (6) A notice under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 . (7) In this section – issued includes granted, conferred and awarded; permit includes any form of regulatory authority besides a permit; recognised permit means a permit, issued under a corresponding Australian law, that has force and effect in this State as an SSDS permit by virtue of a certification under subsection (1) . 24. Permits are not transferable An SSDS permit is not transferable. 25. Renewal of permits (1) A short-term SSDS permit is not renewable. (2) A long-term SSDS permit is from time to time renewable. (3) An application to renew a long-term SSDS permit is to be in an approved form and – (a) is to be made to the regulator at least one month (but not more than 3 months) before the permit is due to expire; and (b) may be made even if the permit is suspended. (4) However, the regulator, in his or her absolute discretion, may accept a late application to renew a long-term SSDS permit if – (a) the permit has not expired; and (b) the applicant pays a prescribed penalty, if any. (5) If an application to renew a long-term SSDS permit is not determined before the day on which it is due to expire, it is, despite section 27 , taken to continue in force on and after that day until whichever of the following first occurs: (a) the 3-month period immediately following that day expires; (b) the permit is renewed or its renewal is refused. (6) However, subsection (5) does not apply to a suspended long-term SSDS permit if it is still suspended immediately before the day on which it is due to expire. (7) Section 10(1) and section 18 have the same application to an application for the renewal of a long-term SSDS permit as they have to an application for the issue of an SSDS permit. (8) Despite subsection (5) , the renewal of a long-term SSDS permit takes effect on the day on which, but for the renewal, it would have expired. (9) A refusal to renew a long-term SSDS permit takes effect on the day on which the holder of the permit is notified of the refusal. (10) The regulator is to issue the holder of a long-term SSDS permit with a fresh permit on its renewal. 26. Surrender of permits (1) The holder of an SSDS permit may surrender it at any time. (2) The surrender takes effect when the regulator is notified of it. (3) However, the surrender is not effective unless the notification to the regulator is accompanied by – (a) the SSDS permit; or (b) a statutory declaration as to its loss, theft or destruction. 27. Expiry of permits (1) Unless it is renewed, a long-term SSDS permit expires 3 years after the day on which it is issued. (2) A short-term SSDS permit expires – (a) if section 19(3)(a) applies, on the expiration of the period for which it is issued; or (b) if section 19(3)(b) applies, on the completion of the authorised restricted activity or after 12 months, whichever occurs first. Division 4 - Regulation of SSDS permits 28. Register of permits (1) The regulator is to keep a register of SSDS permits. (2) The register is to be kept in such manner as the regulator determines and, without limiting that discretion, may be kept wholly or partly by use of a computer. (3) Th