Explosives Act 2012

Explosives Act 2012

This Act may be cited as the Explosives Act 2012.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears –

acceptable level of risk– see section 10;

approved code of practice– see section 23;

approved form means a form approved by the Secretary;

Australian Dangerous Goods Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail published by the Commonwealth, as from time to time amended;

Australian Explosives Code means the Australian Code for the Transport of Explosives by Road and Rail published by the Commonwealth, as from time to time amended;

authorised officer means an authorised officer appointed under section 31(1), and includes a person authorised under section 31(6);

conviction, in relation to an offence, includes a finding of guilt without the recording of a conviction for the offence;

dangerous situation, at any premises, means that, although there is not an explosives emergency at the premises – it is likely that there will be an explosives emergency at the premises if appropriate action is not taken; and it is reasonable to conclude, at the least, that taking the action should not be indefinitely delayed;

emergency services means – the State Emergency Service within the meaning of the Emergency Management Act 2006; and Ambulance Tasmania established under the Ambulance Service Act 1982; and the Tasmania Fire Service established under the Fire Service Act 1979; and the Department;

employee includes a person engaged, either directly or indirectly, under a contract for services;

environment includes – animals and organisms; and ecosystems and their constituent parts; and all natural and physical resources; and the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a), (b), (c) and (d);

explosive means a substance that is – a Class 1 dangerous goods within the meaning of the Australian Dangerous Goods Code; or listed in the Australian Explosives Code Appendix 1 or 2;

explosives emergency means an incident that exposes persons, property or the environment in the vicinity of the place where the incident occurs to an immediate risk of serious harm from one or more of the following:the escape, spillage or leakage of explosives; a fire involving explosives; an explosion; a harmful reaction from explosives; the evolution of flammable, corrosive or toxic vapours from explosives;

explosives location has the meaning given by section 25(1);

export means export from Tasmania;

facility means premises where explosives are, or are to be, handled;

handling system means any of the following used in connection with the handling of explosives:a container; a spill containment system; a pipe or system of pipes; a fire-fighting or fire protection system; any other plant;

hazard means a thing or situation having the potential to do one or more of the following:kill or harm a person; harm property; harm the environment;

import means import into Tasmania;

large explosives location has the meaning given by section 25(3);

material harm is harm that is less extreme than serious harm but which causes or has the potential to cause, either directly or indirectly, one or more of the following:harm to a person of a kind that requires, or may require, medical treatment; harm to property; harm to the environment;

modification, of an explosives location, includes – a change to plant, processes or quantities of explosives at the facility or location; and the introduction of different explosives or new plant, processes or operating procedures at the facility or location; and organisational change at the location; and a change to the safety management system at the facility or location;

occupier, of an explosives location, facility or other place, means an employer, or other person, who has overall management of the explosives location, facility or place;

pipe includes pipeline;

powers, of the Secretary or an authorised officer, includes any functions associated with the exercise of those powers;

premises includes – an area of land, whether built on or enclosed; and a building or a part of a building, whether permanent or temporary; and a structure or a part of a structure, whether permanent or temporary – but does not include a vehicle;

qualifications includes expertise, training and experience;

regulations means regulations made and in force under this Act;

relevant employees, in relation to any facility or location, means employees – whose normal duties expose them to a risk associated with the facility or location; or who have responsibilities or expertise regarding the management of that risk;

risk means the likelihood of harm to a person, property or the environment arising out of a hazard;

safety management system means a safety management system that complies with section 27;

safety obligation– see section 9;

Secretary means the Secretary of the Department;

sell means sell by wholesale or retail, and includes – offer, display or expose for sale; and keep or possess for sale; and barter or exchange; and deal in or agree to sell; and supply, send, forward or deliver for sale or for, or in expectation of receiving, any payment or consideration; and receive for sale; and authorise, direct, cause, permit or suffer a thing referred to in paragraph (a), (b), (c), (d), (e) or (f) to be done;

serious harm is harm that contributes in a substantial way, either directly or indirectly, to one or more of the following:the death of a person; serious personal injury within the meaning of section 11; serious harm to property; serious harm to the environment;

State includes Territory;

workplace means a workplace within the meaning of the Work Health and Safety Act 2012.

A reference in this Act to a code, standard, guideline or rule includes a reference to a code, standard, guideline or rule made outside Australia.

A person handles an explosive for the purposes of this Act if they do one or more of the following:import or export the explosive; manufacture, process or treat the explosive; sell, supply, receive or dispense the explosive; pack the explosive; mark or label articles, containers or packages of the explosive; put up placards or signs in relation to the explosive; possess, or otherwise have custody or control of, the explosive; store or keep the explosive; use the explosive; dispose of the explosive or render it harmless; design, manufacture or import a handling system for the explosive; install, use, alter or maintain a handling system for the explosive; organise, provide or undergo training in relation to the explosive or any aspect of its handling; carry out a prescribed activity in relation to the explosive.

However, a person who is transporting an explosive is not taken to be handling it for the purposes of this Act unless and except in so far as the transportation involves moving the explosive from one place to another by means of pipes.

This Act applies to – the handling of explosives; and the operation of explosives locations.

This Act does not apply to land that is used for obtaining, mining or transporting petroleum under the Petroleum (Submerged Lands) Act 1982.

Also, except as provided by section 5(2), this Act does not apply to – the transportation of explosives; or explosives that are in transit.

For the purposes of subsection (3)(b), explosives are taken to be in transit if they – are on premises to which they have been supplied in unopened containers; and have been at the premises for less than 5 consecutive days (calculated from the time at which they were supplied to the premises); and have not, during that period, been opened or used at the premises.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

If a provision of this Act is inconsistent with a provision of any of the following Acts, the provision of that Act prevails over the provision of this Act to the extent of the inconsistency:Dangerous Goods (Road and Rail Transport) Act 2010;Emergency Management Act 2006;Gas Industry Act 2019;Poisons Act 1971;Radiation Protection Act 2005;Security-sensitive Dangerous Substances Act 2005.

If – this Act imposes a safety obligation on a person; and any of the other Acts referred to in subsection (1) imposes an obligation on the person or on another person that is at least equivalent to the safety obligation – compliance with the obligation under the other Act is taken, for this Act, to be compliance with the safety obligation.

This Act is in addition to but does not derogate from any other Act relating to the health or safety of persons in a workplace.

All persons who handle explosives have the following obligations:to comply with this Act; to take all reasonable precautions and care to achieve an acceptable level of risk.

In addition to their obligations under subsection (1), the following persons have obligations under Division 2:the occupier of an explosives location; an employee at an explosives location; a manufacturer, importer or supplier of explosives; a designer, manufacturer, importer or supplier of handling systems for use at an explosives location; an installer of handling systems at an explosives location; a person that alters or maintains a handling system at an explosives location.

The occupier of an explosives location has, in addition to the obligations under subsections (1) and (2), the obligations under Part 4.

For the purposes of this Act, the obligations referred to in subsection (1), (2) or (3) are called safety obligations.

An acceptable level of risk is achieved when risk is minimised as far as reasonably practicable.

To decide whether risk is minimised as far as reasonably practicable, regard must be had to – the likelihood of harm to a person, property or the environment related to the risk; and the severity of the harm.

The regulations may prescribe the acceptable level of risk in terms of the likelihood and the severity of the consequences of the risk or in another way.

The assessment of risk to decide its acceptability must take account of good industry practice and compliance with approved codes of practice if – the regulations do not prescribe an acceptable level of risk or set performance objectives and measures for the avoidance, reduction or monitoring of risk; or it is not practicable in the circumstances to calculate or estimate the level of risk.

A person who has a safety obligation must discharge that obligation. If – the contravention causes multiple deaths and serious harm to property or the environment – a fine not exceeding 10 000 penalty units or imprisonment for a term not exceeding 5 years; or the contravention causes multiple deaths – a fine not exceeding 8 000 penalty units or imprisonment for a term not exceeding 4 years; or the contravention causes death or serious personal injury – a fine not exceeding 6 000 penalty units or imprisonment for a term not exceeding 3 years; or the contravention involves exposure to a substance likely to cause death or serious personal injury or illness – a fine not exceeding 4 000 penalty units or imprisonment for a term not exceeding 2 years; or the contravention causes minor personal injury or serious harm to property or the environment – a fine not exceeding 2 000 penalty units or imprisonment for a term not exceeding 12 months; or if paragraphs (a), (b), (c), (d) and (e) of the penalty under this subsection do not apply – a fine not exceeding 1 000 penalty units.

However, if – a person is alleged to have contravened subsection (1); and it is alleged that the safety obligation the person failed to discharge is the obligation to comply with this Act; and the specific provision of this Act that the failure relates to provides a penalty for contravening that specific provision; and a circumstance of aggravation mentioned in paragraph (a), (b), (c), (d) or (e) of the penalty under subsection (1) is not proved for the alleged offence – the maximum penalty that can be imposed for the alleged offence is the monetary penalty for that specific provision.

In this section – minor personal injury means bodily injury that interferes with health or comfort; multiple deaths means the death of 2 or more people; serious personal injury means injury that – results in the full or partial loss of a distinct part or organ of the body or of the use of a distinct part or organ of the body; or results in serious disfigurement; or if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health – whether or not treatment is or could have been available.