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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-04 Daily Xml
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Explosives Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:31): Obtained leave and introduced a bill for an act to provide for matters relating to explosives, to make related amendments to the Tattooing Industry Control Act 2015 and the Work Health and Safety Act 2012, to repeal the Explosives Act 1936 and for other purposes. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:33): I move:

That this bill be now read a second time.

Today I introduce the Explosives Bill 2023. A wide variety of different industries in South Australia are impacted by the regulation of explosives. Those include transport and logistics, mining and quarrying, agriculture, manufacturing, construction, automotive and aircraft, and the entertainment and pyrotechnic industries.

The licensing, transportation and use of explosives has long been regulated by the Explosives Act 1936. That act has only been amended in an ad hoc manner since its introduction and has long been recognised by industry stakeholders as archaic and out of touch with contemporary standards and practices.

Each jurisdiction in Australia has its own explosives legislation. However, there has recently been a recognition nationally that the explosives industry has been negatively impacted by inconsistent regulation. In 2018, commonwealth, state and territory work health and safety ministers approved a set of consistent national policy proposals that each jurisdiction should reflect in their own legislation. These principles relate to key areas, including the definition of explosives, the licensing framework, the notification processes and the authorisation processes.

This bill seeks to modernise the regulation of explosives in South Australia in line with those national policy proposals, ensuring we deliver the highest level of safety standards whilst also delivering efficiencies for business by way of reduced regulatory and administrative burden. The bill provides for a licensing framework, including security-sensitive substances and fireworks. It offers significant opportunity for bespoke licensing arrangements, better tailored to address the needs of key industry stakeholders without compromising on safety and security requirements.

The key changes proposed in this bill include: improved clarity around the definition of explosives; the establishment of a licensing framework, including the improved capability for issuing of bespoke licence conditions and the use of digital capability to assist in the administration process and red-tape reduction; an improved notifications process, which provides information to explosive regulators about activities, events or incidents; and an authorisation process which better accommodates jurisdictional consistencies and the removal of duplicate processes.

Part 1 of the bill establishes the objects of the act and contains the definitions. The definition of explosives is consistent with the national policy proposals and is supported by industry after consultation. Part 2 of the bill introduces new safety and security duties and contains the offence categories. Duty holders must take reasonable precaution and care to eliminate or minimise safety and security risks for activities involving explosives and ensure that all people involved in activities within the scope of the legislation comply with these primary duties.

There are four categories of offences for failure to apply which is determined by the degree of harm that results from the breach: death, harm (to a person, property or environment), or a dangerous substance. Part 3 of the bill prescribes that the minister may appoint a regulator and sets out the functions of the regulator. It is intended that the regulator will be the executive director of SafeWork SA, consistent with current practice.

Part 4 of the bill prescribes the process for the authorisation of explosives by the regulator. Once an explosive is authorised, a person with an appropriate licence can manufacture, store, transport, supply, use, import or export the explosive. In addition to being consistent with national policy proposals, the authorisation process in the bill provides for the recognition of authorisations from other jurisdictions under corresponding laws.

Part 5 of the bill provides a regulator with the power to declare an explosive as a prohibited explosive and contains offence provisions for dealing with prohibited explosives. Part 6 of the bill establishes a licensing scheme and gives a regulator power to grant, renew, refuse, suspend or cancel a licence and impose conditions on a licence.

Licensing is the key regulatory control of explosives. Under the bill, a person must not carry on an activity involving an explosive unless authorised by licence. The new framework will contain licences to authorise activities (an activity licence), and licences to authorise a person to engage in an occupation involving explosives (an occupational licence). Activity licences include licences to manufacture, import, export, supply, store, transport, or use explosives. Occupational licences include for fireworks contractors and operators and for driving and blasting.

Part 7 of the bill deals with enforcement measures. The bill provides for the appointment of authorised persons and sets out their powers and functions, including the ability to issue improvement notices and prohibition notices for noncompliance. Parts 8 and 9 and schedule 1 of the bill provide for reviews of decisions and matters that relate to the administration of the legislation, such as delegations, exemptions, regulation-making powers and transitional provisions.

Notices and licensing decisions will be externally reviewed by the South Australian Civil and Administrative Appeals Tribunal. Penalties contained in the bill are higher, and in some cases substantially higher, than in the current act. The penalties are consistent with other legislation and reflect the potential for catastrophic harm to people, property and the environment, should the duties be breached.

The bill reflects widespread consultation, incorporating the views of key stakeholders, including the Australasian Explosives Industry Safety Group and South Australia Police. I wish to acknowledge the significant work that has been undertaken at a departmental level by SafeWork SA over a number of years to develop this legislation in consultation with stakeholders. I commend the bill to the chamber and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Objects of Act

This clause establishes the objects of the measure.

4—Interpretation

This clause defines terms for the purposes of the measure.

5—Explosives

This clause provides that an explosive is a substance, mixture or article that—

(a) 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

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

(c) is prescribed by regulation to be an explosive,

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

The clause enables the Regulator to make a declaration declaring a substance, mixture or article to be an explosive in certain circumstances.

The clause also provides that the regulations may refer to or incorporate, wholly or partially and with or without modification, a specified code, standard or classification scheme.

6—Interaction with other Acts

This clause provides that the proposed 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.

7—Civil remedies not affected

This clause provides that he provisions of the proposed 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.

Part 2—Duties for safety and security

Division 1—Duties

8—Safety duty

This clause establishes that 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.

9—Security duty

This clause provides that a person must, in carrying on an activity involving an explosive, take reasonable precautions and care in order to keep the explosive secure.

Division 2—Offences

10—Failure to comply with duty with knowledge or indifference—Category 1

This clause sets out the elements for a category 1 offence.

11—Failure to comply with duty with indifference—Category 2

This clause sets out the elements for a category 2 offence.

12—Failure to comply with duty—Category 3

This clause sets out the elements for a category 3 offence.

13—Failure to comply with duty—Category 4

This clause sets out the elements for a category 4 offence.

14—Alternative with lesser penalty

This clause provides for a court that is not satisfied that a defendant is guilty of an offence charged but is satisfied that the defendant is guilty of some other offence against the Division for which a lesser maximum penalty may be imposed to find the defendant guilty of the latter offence.

Part 3—Regulator

15—Regulator

This clause relates to the appointment of the Regulator for the purposes of the Act.

16—Functions

This clause provides for the functions of the Regulator.

Part 4—Authorisations

Division 1—Register of authorisations

17—Register of authorisations

This clause provides for a register of authorisations for the purposes of the Act.

Division 2—Authorisations—General

18—Authorisations

This clause provides for authorisations relating to explosives.

19—Determination of application

This clause relates to the grant, renewal or variation of an authorisation under the Part.

20—Classification

This clause provides for the classification of explosives authorised under the Part.

21—Period of authorisation

This clause provides for the period for an authorisation has effect.

22—Renewal of authorisation

This clause makes provision in relation to the renewal of authorisations.

23—Variation of authorisation

This clause provides for the Regulator to vary an authorisation under the Part.

24—Cancellation of authorisation

This clause provides for the Regulator to cancel an authorisation under the Part.

25—Corresponding law authorisations

This clause provides for the Regulator to register an authorisation granted under a corresponding law that complies with any requirements prescribed by the regulations.

Division 3—Applications

26—Form of application

The form of applications under the Part is provided for.

Division 4—Unauthorised explosives

27—Unauthorised explosives

An offence of dealing with an unauthorised explosive, or contravening a condition of an authorisation, is provided for.

Part 5—Prohibited explosives

28—Prohibited explosives

This clause provides for the Regulator to declare an explosive to be a prohibited explosive. An offence of dealing with a prohibited explosive is included.

Part 6—Licensing

Division 1—Requirement to hold licence

29—Requirement to hold licence

An offence of carrying on a business or other activity involving explosives as specified in the provision, except as authorised by licence, is set out.

An offence of engaging in specified activities involving explosives, except as authorised by licence, is also set out.

Related offences are also provided for.

It is also provided that a person need not hold a licence in prescribed circumstances or in circumstances determined by the Regulator.

30—Requirement to produce licence

A requirement for licence holders to produce their licence is provided for.

Division 2—Activity licences

31—Activity licence

Activity licences will be of the classes prescribed by the regulations.

Division 3—Occupational licences

32—Occupational licences

Occupational licences will be of the classes prescribed by the regulations.

Division 4—General provisions

33—Grant or renewal of licence

A licence may be granted or renewed by the Regulator on application by a person.

34—Term of licence

The term of licences is provided for.

35—Licence non-transferable

A licence is not transferable.

36—Surrender of licence

The Regulator may approve the surrender of a licence.

37—Corresponding law licences

The granting or renewal of a licence granted under a corresponding law that complies with any requirements prescribed by the regulations is provided for.

38—Application

Provision is made in relation to applications for licences.

39—Safety, security and emergency plans

Applicants for licences may be required to submit safety, security or emergency plans.

40—Criteria—general

Criteria for determining an application under the Part are provided for.

41—Security clearance

Provision is made for applicants for licences to have security cleared persons approved by the Regulator.

42—Fit and proper person

The Regulator may refuse an application for the grant, renewal or variation of a licence if the Regulator is not satisfied that the licensee or proposed licensee is a fit and proper person to hold the licence.

Division 5—Suspension, cancellation, extension or variation

43—Variation of licence

Provision is made for the Regulator to vary a licence (or a condition of a licence).

44—Suspension, cancellation or variation of licence or approval by Regulator

Provision is made for the Regulator to suspend, cancel or vary a licence on certain grounds.

45—Extension or reinstatement of licence

Provision is made for the Regulator to extend a licence or reinstate a licence that has expired in certain circumstances.

Division 6—Licence conditions

46—Licence conditions

A licence is subject to conditions determined by the Regulator.

47—Offence to contravene licence conditions

If a licence condition is contravened, the licensee is guilty of an offence.

48—Responsible person

The business conducted under a licence must be managed by an individual who meets certain criteria (a responsible person).

49—Reporting of loss, theft or unauthorised interference

Provision is made for the reporting of loss, theft or unauthorised interference with an explosive to which a licence relates by a licensee.

Division 7—Reconsideration of decisions

50—Reconsideration of decisions

Provision is made for a person affected by a decision of the Regulator under the Part to apply to the Regulator for reconsideration of the decision.

Part 7—Enforcement measures

Division 1—General

Subdivision 1—Authorised persons

51—Interpretation

Definitions are inserted for the Division.

52—Appointment of authorised persons

The Minister may appoint authorised persons for the purposes of the Act.

53—Identification of authorised persons

Provision is made in relation to the identification of authorised persons.

54—Warrant procedures

The issuing of warrants for the purposes of the Division by magistrates is provided for.

Subdivision 2—Powers of entry

55—Power to enter

An authorised person may enter any place or vehicle to which the Division applies.

56—Entry into residential premises

Residential premises cannot be entered under the Part without the permission of the occupier or the authority of a warrant.

57—General powers of authorised persons

The general powers of authorised persons are set out.

Subdivision 3—Miscellaneous

58—Provisions relating to seizure

Provisions relating to seizure orders are set out.

59—Offence to hinder etc authorised persons

Actions in respect of authorised persons (including hindering or obstructing authorised persons) are set out in an offence provision.

Division 2—Improvement and prohibition notices

Subdivision 1—Improvement notices

60—Issue of improvement notices

The issuing of improvement notices is provided for.

61—Contents of improvement notices

Provisions relating to the contents of improvement notices are set out.

62—Compliance with improvement notice

A person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.

63—Extension of time for compliance with improvement notices

Provision is made for an authorised person to extend the compliance period for an improvement notice.

Subdivision 2—Prohibition notices

64—Power to issue prohibition notice

Provision is made for authorised officers to issue prohibition notices in certain circumstances.

65—Contents of prohibition notice

Provisions relating to the contents of prohibition notices are set out.

66—Compliance with prohibition notice

A person to whom a prohibition notice is issued or a specified direction is given must comply with the direction or notice.

67—Remedial action

Provision is made in relation to remedial action to be taken in certain circumstances.

68—Costs of remedial or other action

Regulator may recover the reasonable costs of any remedial action taken from the person to whom the notice (to take action) is issued.

Subdivision 3—General requirements applying to improvement and prohibition notices

69—Directions in notices

Certain matters about directions in notices are provided for.

70—Changes to notice by authorised person

Provision is made for changes to notices by authorised persons.

71—Regulator may vary or cancel notice

Provision is made for the Regulator vary or cancel notices given under the Division.

72—Formal irregularities or defects in notice

This provision is technical.

Division 3—Other matters

73—Self-incrimination

Provision is made in relation to the privilege against self-incrimination.

74—Notification of certain situations

Certain requirement apply in relation to a notifiable situation (which is defined).

75—Power to recall

If the Regulator considers that the supply or use of an explosive is unreasonably dangerous, the Regulator may give directions relating to recalling the explosive (or a class of explosives).

76—Action in emergencies

Authorised officers are authorised to take action or cause action to be taken in an emergency.

77—Review of notices by Regulator

Review of certain notices by the Regulator is provided for.

Part 8—Reviews

78—Reviews

Provision is made conferring jurisdiction on SACAT to review certain decisions of the Regulator.

Part 9—Miscellaneous

79—Exemptions

Provision is made for the Regulator to grant exemptions from compliance with the Act or specified provisions of the Act.

80—Delegation by Minister or Regulator

Delegation by the Minister or Regulator is provided for.

81—Forfeiture of explosive on conviction

Forfeiture of an explosive on conviction of an offence is provided for.

82—Prohibiting offender from involvement with explosives

The power to grant an order prohibiting an offender from involvement with explosives is conferred on a court that finds a person guilty of an offence against the Act.

83—Adverse publicity orders

A court that finds a person guilty of an offence against the Act may make an adverse publicity order in relation to the person.

84—False or misleading statements

An offence of making a false or misleading statement in information provided under the Act is provided for.

85—Statutory declaration

The Minister or Regulator may require that information required to be provided by or under the Act be verified by statutory declaration.

86—Confidentiality of information

Provision is made in relation to confidentiality of certain information.

87—Giving of notice

The means of giving a notice under the Act is provided for.

88—General defence

A general defence in criminal proceedings in respect of an alleged contravention of the Act is provided for.

89—Notice of defences

Notice of reliance on a defence under the Act must be given to the Regulator.

90—Proof of intention etc for offences

It is declared that it is not necessary to prove any intention or other state of mind in order to establish a contravention of the Act (except if there is an express provision in the Act to the contrary).

91—Imputation in proceedings of conduct or state of mind of officer, employee etc

Provision is made for the imputation of the conduct or state of mind of an officer, employee or agent of a body corporate acting within the scope of their actual, usual or ostensible authority to the body corporate in proceedings. Similar provision is made in relation to employees and agents of individuals.

92—Statement of officer evidence against body corporate

In proceedings for an offence against this Act by a body corporate, a statement made by an officer of the body corporate is admissible as evidence against the body corporate.

93—Liability of officers of body corporate

Provision is made in relation to the liability of officers of body corporate for contraventions of the Act by the body corporate.

94—Continuing offences

Provision is made for additional penalties for continuing acts or omissions constituting an offence against the Act.

95—Commencement of proceedings for summary offences

Provision is made in relation to commencement of proceedings for summary offences against the Act.

96—Evidence

Evidentiary provisions are set out.

97—Recovery of administrative and technical costs associated with contraventions

Provision is made in relation to the recovery of certain costs associated with contraventions of the Act.

98—Cost recovery for dealing with dangerous situations

Provision is made in relation to the recovery of certain costs for dealing with dangerous situations.

99—Government magazine

Provision is made in relation to the establishment, control and supervision of a Government magazine (being a place for the storage of explosives).

100—Harbors and vessels

The Regulator may publish standards relating to certain activities involving explosives in or in relation to vessels or harbors.

101—Prohibition of explosives being transported on prescribed roads

The transport of explosives on prescribed roads is prohibited.

102—Compulsory acquisition of land

A power to compulsorily acquire land for certain purposes is provided for.

103—Requirement to return licence on request

A requirement for a licensee to return a licence on request is provided for.

104—Regulations and fee notices

Provisions relating to making regulations and fee notices under the Act are set out.

Schedule 1—Amendments, repeals and transitional provisions

Part 1—Amendment of Tattooing Industry Control Act 2015

1—Amendment of section 21—Offence to possess certain items in premises where tattooing services provided

2—Amendment of section 22—Further powers of police officers—random weapon and explosive searches

These clauses make related amendments to the Tattooing Industry Control Act 2015.

Part 2—Amendment of Work Health and Safety Act 2012

3—Amendment of section 4—Definitions

This clause makes a related amendment to the Work Health and Safety Act 2012.

Part 3—Repeals

4—Repeal of Explosives Act 1936

This clause repeals the Explosives Act 1936.

5—Repeal of regulations under Explosives Act 1936

This clause repeals all regulations made under the Explosives Act 1936.

Part 4—Transitional provisions

This Part sets out transitional provisions relating to the measure.

Debate adjourned on motion of Hon. D.G.E. Hood.

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