Explosives Act 2024

This

Act may be cited as the Explosives

Act 2024.

This

Act comes into operation on a day to be fixed by proclamation.

Section 27(6) of the Legislation

Interpretation Act 2021 does not apply to this Act.

The objects of this Act are to—

regulate the handling of, and access to, explosives to protect public health and safety, property and the environment; and

facilitate the safe and secure operations of essential and legitimate explosives industries.

The objects are achieved primarily by—

maintaining a scheme for the authorisation of explosives; and

ensuring that only persons authorised to carry on specified activities or occupations are licensed to handle and use explosives; and

imposing a safety duty, security duty and other obligations on persons who handle explosives; and

enabling investigations and inquiries to be carried out for explosives incidents.

In this Act, unless the contrary intention appears—

authorised explosive means an explosive authorised under Part 4;

authorised person—see

Part 7

Division 1 Subdivision 1;

blasting explosive means an explosive that is used to provide the majority of the force when blasting rock or similar solid material, and includes components for the initiation of the explosive such as a booster, detonator, fuse, shocktube or ignitor;

blasting operation means an operation or part of an operation consisting of the use or disposal of blasting explosives;

building includes a structure and part of a building or structure;

close associate—see subsection (2);

condition includes a limitation;

contravene includes fail to comply with;

corresponding law means a law of the Commonwealth or of another State that is prescribed by regulation to be a corresponding law for the purposes of this definition;

corresponding regulator means the holder of a public office, or a public authority, of the

Commonwealth, or of a State, who or which is responsible for administering a corresponding law;

dangerous situation means a situation that is creating or likely to create—

imminent risk to the health or safety of a person, or the safety of a person's property; or

imminent risk of environmental harm;

deal with, in connection with an explosive, includes any of the following:

produce, manufacture or supply explosives;

import explosives;

buy, sell or dispose of explosives;

acquire or possess explosives;

transport explosives;

experiment with, use or test explosives;

anything prescribed by the regulations as a dealing with, or engaging in a dealing with, explosives;

Department means the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this

Act;

director of a body corporate includes—

a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act;

direct supervision—see subsection (4);

disposal of an explosive includes the destruction of an explosive;

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

explosive—see section 5;

firework means a pyrotechnic device or item containing explosive composition which on activation will burn or explode, or both, to produce a visual or aural effect, or both, but does not include a device or item of a class excluded from the ambit of this definition by the Regulator in accordance with subsection (3);

harbor has the same meaning as in the Harbors and Navigation Act 1993;

import means bring into the State from another country;

improvement notice—see section 60;

licence means a licence under Part 6;

medical practitioner means a person registered under the Health

Practitioner Regulation National Law to practice in the medical profession (other than as a student);

officer, in relation to a body corporate, means—

a director of the body corporate; or

the chief executive officer of the body corporate; or

a receiver or manager of any property of the body corporate or a liquidator of the body corporate, and includes, in relation to a contravention or alleged contravention of this Act by the body corporate, an employee of the body corporate with management responsibilities in respect of the matters to which the contravention or alleged contravention related;

premises includes land and a building on land;

prohibited explosive means an explosive that is declared to be a prohibited explosive under section 28(1);

prohibition notice—see section 64(4);

Regulator—means the person appointed to be the Regulator under section 15;

responsible person means an individual who is, in accordance with section 48, a person responsible for managing the operations authorised under the licence;

safety duty—see section 8;

safety risk means risk of harm to a person, property or the environment;

security duty—see section 9;

spouse—a person is the spouse of another if they are legally married;

State includes a Territory;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

unauthorised explosive means an explosive that is not an authorised explosive;

unsuitable person—see subsection (5);

use includes prepare for use (consequently, in relation to explosives the term includes prepare explosives for the purposes of a blasting operation, a fireworks display or special effects and an activity involving the use of explosives includes the conduct of a blasting operation, the conduct of a fireworks display and the creation of special effects for theatrical, cinematic or other entertainment purposes);

vehicle means a vehicle or vessel that is used or is capable of being used to transport a substance or article and includes a vehicle used on rails and a caravan, trailer and anything attached to a vehicle;

vessel means any seagoing vessel or inland waterway craft used for carrying cargo.

For the purposes of this Act, 2 persons are close associates if—

1 is a spouse, domestic partner, parent, child, brother or sister of the other; or

they are in partnership; or

they are related bodies corporate (within the meaning of the Corporations

Act 2001 of the Commonwealth); or

1 is a body corporate and the other is a director, manager, secretary or public officer of the body corporate; or

1 is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or

1 is a trustee of a trust and the other is a beneficiary of the trust or, in the case of a discretionary trust, an object of the trust; or

1 has a right to participate, or participates, (otherwise than as a shareholder in a body corporate) in income or profits derived from a business conducted by the other; or

1 is in a position to exercise, or exercises, control or significant influence over the conduct of the other.

The

Regulator may, by notice published in the Gazette and on the

Department's website—

exclude an item of a specific class from the definition of firework; and

vary or revoke a notice under this subsection.

For the purposes of this Act, a person is under direct supervision if the supervisor is present within sight and sound of the person while the person is performing the work and is available—

to advise or assist the person in the performance of the work; or

to intervene in the performance of the work.

For the purposes of this Act, a person is an unsuitable person if—

the person has been found guilty or convicted of an offence, or an offence of a class, prescribed by the regulations; or

in the case of an individual, the individual—

is a member of, or a participant in, a prescribed organisation; or

is a close associate of an individual who is a member of a prescribed organisation or is subject to a control order under the Serious and Organised Crime (Control) Act 2008;

or

is the subject of an adverse security assessment within the meaning of the Australian

Security Intelligence Organisation Act 1979 of the Commonwealth; or

is an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

has, during the period of 5 years preceding the application for the licence, been a director of a body corporate that has been wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of 6 months preceding the commencement of the winding up; or

in the case of a body corporate—

the body corporate is a body corporate, or is a body corporate of a class, prescribed by the regulations; or

the body corporate is a prescribed organisation.

An

explosive is a substance, mixture or article that—

is an explosive within the meaning of Chapter 2.1 of the United

Nations Globally Harmonised System of Classification and Labelling of Chemicals (GHS), as in force from time to time; or

is declared by the Regulator under subsection (2) to be an explosive; or

is prescribed by regulation to be an explosive, but does not include a substance, mixture or article that is declared by the Regulator under subsection (2) to not be an explosive.

The

Regulator may, by notice in the Gazette and on the Department's website—

declare a substance, mixture or article to be an explosive for the purposes of this Act; or

declare a substance, mixture or article to not be an explosive for the purposes of this Act; or

vary or revoke a notice under this subsection.

The

Regulator may make a declaration under subsection (2) to declare a substance, mixture or article to be an explosive if, in the opinion of the Regulator, safety or security concerns exist justifying the declaration in relation to the substance, mixture or article.

For the purposes of subsection (1)(c), the regulations may—

establish a scheme for the automatic adoption of a substance, mixture or article that is an explosive under a corresponding law; and

refer to or incorporate, wholly or partially and with or without modification, a specified code, standard or classification scheme as in force at a specified time or as in force from time to time; and

declare that only specified provisions or parts of this Act will apply in relation to the substance, mixture or article adopted by the regulations.

If a code, standard or classification scheme is referred to or incorporated in the regulations—

a copy of the code, standard or classification scheme must be kept available for inspection by members of the public, without charge and during normal office hours, at a prescribed office; and

evidence of the contents of the code, standard or classification scheme may be given in legal proceedings by production of a document apparently certified by the Minister or the Regulator to be a true copy of the code, standard or classification scheme.

This

Act is in addition to and does not limit or derogate from the provisions of the Work

Health and Safety Act 2012 or any other Act.

The provisions of this Act do not limit or affect any civil right or remedy and compliance with the Act does not necessarily indicate that a common law duty of care has been satisfied.

A person must, in carrying on an activity involving an explosive, take reasonable precautions and care to eliminate or minimise the safety risks associated with the activity.

In determining what measures are required to be taken for the purposes of subsection (1), regard is to be had to, amongst other things—

the nature of the explosive, the activity and any plant involved in the activity; and

the locality at which the activity is being carried on; and

the likelihood and severity of any safety risks that may be caused by the activity if the safety risks are not eliminated; and

the extent to which the measures are reasonably practicable in the circumstances taking into account measures taken by persons carrying on similar activities; and

the current state of technical knowledge and likelihood of successful application of the various measures that might be taken; and

other prescribed factors.

A person must, in carrying on an activity involving an explosive, take reasonable precautions and care in order to keep the explosive secure.

In determining what measures are required to be taken for the purposes of subsection (1), regard is to be had to, amongst other things—

the nature of the explosive and the activity; and

the locality at which the activity is being carried on; and

whether the explosive is kept secure from any person who is not authorised to access the explosive; and

the extent to which the measures are reasonably practicable in the circumstances taking into account measures taken by persons carrying on similar activities; and

other prescribed factors.

If—

a person contravenes the safety duty, security duty or the regulations; and

the contravention results in—

the death of, or harm to, a person; or

harm to another person's property or the environment; and

the person knew of, or was recklessly indifferent as to, the risk of death, or harm to a person, property or the environment associated with the contravention, the person is guilty of an offence.

Maximum penalty:

in the case of an individual—$300 000 or imprisonment for

5 years, or both;

in the case of a body corporate—$3 000 000.

If—

a person contravenes the safety duty, security duty or the regulations; and

the contravention results in harm to another person, another person's property or the environment, or in a dangerous situation; and

the person was recklessly indifferent as to the risk of harm to a person, property or the environment, or the dangerous situation, associated with the contravention, the person is guilty of an offence.

Maximum penalty:

in the case of an individual—$100 000 or imprisonment for

2 years, or both;

in the case of a body corporate—$500 000.

If—

a person contravenes the safety duty, security duty or the regulations; and

the contravention gave rise to the risk of harm to another person, another person's property or the environment, or of a dangerous situation, the person is guilty of an offence.

Maximum penalty:

in the case of an individual—$10 000;

in the case of a body corporate—$50 000.