Bills Digest 100 1996-97 Road Transport Reform (Dangerous Goods) Amendment Bill 1996


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Road Transport Reform (Dangerous Goods) Amendment Bill 1996

Date Introduced: 4 December 1996
House: House of Representatives
Portfolio: Transport and Regional Development
Commencement: The Bill does not contain a commencement date. Under section 5(1A) of the Commonwealth Acts Interpretation Act 1901, an Act commences 28 days after Royal Assent has been given, unless a contrary intention appears in the Act.

Purpose

The Bill is part of a package of reforms which aim to provide a national regulatory system for the transportation of dangerous goods. Primarily the Bill seeks to expand the regulation-making power contained in the Road Transport Reform (Dangerous Goods) Act 1995, particularly the powers which can be delegated to Competent Authorities. It also proposes a range of other amendments, including expanding the definitions associated with the transportation of dangerous goods, clarifying the duties of manufacturers and decreasing penalties for individual drivers who breach the Road Transport Reform (Dangerous Goods) Act 1995.

Background

Road transport plays an important role in Australia's regional, national and international economy. Historically, however, Commonwealth, State and Territory jurisdictions have had distinct laws and procedures regulating road transport, a situation which has led to both inefficiency and confusion. Consequently, national road transport reform has been viewed by successive governments as a critical component of micro-economic reform, which will deliver substantial benefits to the industry and its clients, and increase Australia's international competitiveness.

In accordance with these views, a Special Premiers' Conference in July 1991 agreed to the establishment of a National Road Transport Commission, the role of which would be to develop an acceptable policy framework and package of reforms for uniform national rules and regulations for road transport. Subsequently, the National Road Transport Commission Act 1991 ('the Commission Act') was passed by the Commonwealth, establishing the Commission as an independent statutory body to advise the Ministerial Council for Road Transport. Although the initial priority area for the Commission was the regulation of heavy vehicles, pursuant to the 1991 Inter-Governmental Agreement on Heavy Vehicles, the Commission's role was expanded by the 1992 Inter-Governmental Agreement on Light Vehicles which, among other things, required the Commission as a matter of priority to develop and maintain national standards and associated codes of practice in relation to the transportation of dangerous goods. Both Agreements are scheduled to the Commission Act.

The Commission's proposed package for the regulation of dangerous goods consists of three key components:

  • the Road Transport Reform (Dangerous Goods) Act 1995 ('the Act') which primarily provides a framework for the making, administration and enforcement of regulations relating to the transportation of dangerous goods
  • the Road Transport Reform (Dangerous Goods) Regulations, which define the powers and duties of people involved in the transport of dangerous goods
  • the sixth edition of the Australian Dangerous Goods Code, which comprises the technical requirements forming the basis of the duties that are set out in proposed regulations as well as several non-mandatory guidelines.

The amendments in the Bill are required to ensure that the proposed regulations and code can be appropriately administered.

The Ministerial Council for Road Transport voted unanimously in favour of the Bill and the Minister for Transport and Regional Development, the Hon. John Sharp MP, has noted that the Bill has received the support of industry and other major stakeholders.(1) Similarly, the Minister notes that the measures in the Bill have no impact on Commonwealth revenue or expenditure.(2)

The package of reforms relating to the transportation of dangerous goods is one of six modules being developed by the Commission for the new system of national road transport law. The other modules concern road transport charges, vehicles and traffic, dangerous goods, registration, driver licensing, compliance and enforcement. In relation to these modules, the Commonwealth Parliament has so far enacted the Road Transport Charges (Australian Capital Territory) Act 1993(3) and the Road Transport Reform (Vehicles and Traffic) Act 1993.(4) The Road Transport Reform (Heavy Vehicles Registration) Bill 1996 was introduced at the same time as the current Bill.(5)

Main Provisions

Expansion of Definitions Relating to Transportation of Dangerous Goods

Item 2 repeals the current definition of 'dangerous goods', which currently reads 'a substance or article prescribed [by the regulations] as dangerous goods'. The proposed amendment broadens this definition by including:

(b) a substance or article determined by a Competent Authority in accordance with the regulations to be dangerous goods.

The inclusion of the determinations of Competent Authorities is reliant on Item 6, proposed paragraph 11(3)(b), which provides for a sub-delegation power to a Competent Authority to determine what are dangerous goods.

Item 3 widens one aspect of the definition of 'involvement in the transport of dangerous goods by road' by repealing 'packing dangerous goods, or labelling packaged dangerous goods, for transport by road' and substituting:

'marking packages and unit loads containing dangerous goods for transport by road, and placarding containers and vehicles in which dangerous goods are transported.'

Item 4 repeals the definition of 'transport' in relation to dangerous goods, which currently reads 'includes loading and unloading of the goods for the purpose of their transport by road, and other matters incidental to the transport by road', and substitutes:

(a) the packing, loading and unloading of the goods and the transfer of the goods to or from a vehicle, for the purpose of their transport;

(b) the making of packages and unit loads containing dangerous goods, and the placarding of containers and vehicles in which dangerous goods are transported; and

(c) other matters incidental to their transport.

Although these matters are arguably covered by the current definition, this express list avoids doubt.

Extension of Regulation-Making Power

Item 6 is a key provision which incorporates three categories of changes to the regulation-making powers and adoption of codes or standards in the Act: minor drafting changes to current provisions to bring definitions in line with international terminology, consequential amendments and new provisions. The following primarily focuses on the proposed new provisions.

Proposed paragraph 11(3)(b) states that the regulations may provide that a Competent Authority be empowered to determine that goods are dangerous in light of provisions of the Act or regulations. As noted above, this sub-delegation of power supports the proposal in Item 2.

Proposed paragraph 11(3)(h) is a new provision which provides that regulations may be made relating to 'the manufacture of vehicles and containers for use in the transport of dangerous goods by road'.

The Explanatory Memorandum states that this paragraph 'expressly provides that regulations may be made which impose duties on manufacturers of dangerous goods to be transported and of vehicles and containers intended to be used in the transport of dangerous goods by road and removes any doubt that such manufacturers are within the scope of the Act' (emphasis added).(6) However, this explanation appears to be misleading. The proposed paragraph does not cover manufacturers of dangerous goods to be transported per se. It only relates to the manufacture of specific vehicles and containers.

Proposed paragraph 11(3)(k) amends the power to make regulations in relation to routes along which, the areas in which and the times during which dangerous goods may be transported. Currently, the Minister has the power to determine these matters. The Bill proposes that the reference to the Minister be repealed and replaced with a reference to a Competent Authority. This proposal is aimed at shifting decision making procedures in everyday matters to a more accessible authority than the Minister.

Proposed paragraph 11(3)(m) provides for the power to make regulations in relation to the licensing of drivers and vehicles for the purpose of transporting dangerous goods and the licensing of people responsible for the transporting of dangerous goods. Currently, people responsible for the transportation only need to be accredited. This amendment appears aimed at ensuring equitable procedures vis-a-vis drivers and transportation owners.

Proposed paragraph 11(3)(p) reflects the proposal in paragraph 11(3)(b) and provides for regulations to be made in relation to approval by a Competent Authority of packages/containers for the transportation of dangerous goods, and facilities for and testing methods for such packages, containers and so on.

Proposed paragraph 11(3)(q) provides for a new regulation-making power to be made in relation to Competent Authorities approving alternative documentation to that required by people involved in the transportation of dangerous goods.

Further Amendment of Powers and Responsibilities

(These amendments should be read in conjunction with the extension of the regulation-making power discussed above.)

Item 7 extends the powers attached to a Competent Authority by providing that they have 'all the immunities of an authorised officer' when exercising the powers of an authorised officer. This is an equitable measure and ensures that a Competent Authority is in the same legal position as an authorised officer.

Item 8 is primarily aimed at ensuring that a Competent Authority has the power to appoint both individuals and classes of people as authorised officers.

Item 13 clarifies that the reference in subsection 20(1) to 'or on a vehicle or equipment' means such vehicles or equipment at the relevant premises, as section 20 of the Act only relates to investigations on a premise.

Item 14 narrows the search and seizure powers in subsection 20(2) to include only searching and testing for evidence, as the powers to preserve and seize evidence are already provided for in section 27. Similarly Item 15 repeals a power which duplicates the powers in subsections 18(3) and (4).

Item 16 repeals the right of the representative of a corporation to refuse to answer questions on the ground of self-incrimination. That right remains with individuals. The Explanatory Memorandum states that as currently drafted, it could be interpreted that a corporation can claim such a privilege and that this is inconsistent with the High Court decision in Environment Protection Authority v Caltex Refining Co Pty Ltd(7) and the rules in the Commonwealth Evidence Act 1995, which are intended to form the basis of uniform national laws of evidence.(8)

Review of Exemption

Item 17 relates to the right to apply for exemptions under section 32 of the Act. Currently a Competent Authority is empowered to grant exemptions if they are satisfied that it is not reasonably practicable for a person to comply with a provision and that the exemption would not be likely to create a risk of death or injury or harm the environment or property greater than that which would be the case if the person was required to comply. This Item clarifies that a person who is refused an exemption or has an exemption cancelled or varied has a right to apply for a review of that decision. Section 5 of the Act, coupled with Item 1 of the Bill, states that applications for review are to be made to the Administrative Appeals Tribunal of the Australian Capital Territory.

Penalties

Item 18 proposes significant amendment to the section which currently relates to penalties for individuals and corporations engaging in activities without a required license. The critical aspect of the new section is that it provides for much lower penalties for individual drivers than it does for persons other than a driver or corporations using, employing or permitting another person to use, a vehicle to transport dangerous goods, or otherwise being involved in an aspect of the transportation of dangerous goods. The proposed maximum penalty for an individual driver is $10,000 (current maximum is $50,000 or 2 years imprisonment or both). The penalty for an individual who is not a driver remains at the current maximum of $50,000 or 2 years imprisonment or both and the penalty for a corporation remains at the current maximum of $250,000.

Concluding Comments

It is notable that proposed amendments to the regulation-making power significantly expand the current powers to sub-delegate matters to Competent Authorities.

As already indicated, the Explanatory Memorandum's suggestion that the Bill expressly provides that regulations may be made which impose duties on manufacturers of dangerous goods to be transported appears to be misleading. The Bill more narrowly provides that regulations may be made imposing duties on manufacturers of vehicles and containers for use in the transport of dangerous goods.

Endnotes

  1. House of Representatives, Hansard, 4 December 1996: 7706. These comments are made in the context of the Second Reading Speech for the Road Transport (Heavy Vehicles Registration) Bill 1996, which operates as a de facto second reading speech for the Bill. The Bill's formal Second Reading Speech can be found in the House of Representatives, Hansard, 4 December 1996: 7704
  2. ibid.: 7707
  3. The purpose of the Road Transport Reform (Australian Capital Territory) Act 1993 was to provide for annual registration charges for vehicles over 4.5 tonnes and permit charges for vehicles over 125 tonnes.
  4. The purpose of the Road Transport Reform (Vehicles and Traffic) Act 1993 was to enable regulations to be made dealing with vehicles, standards, driving hours, road rules, mass and loading and oversize and overmass vehicles and combinations.
  5. See Bills Digest, Road Transport Reform (Heavy Vehicles Registration) Bill 1996, No. 83 1996-7
  6. Explanatory Memorandum, Road Transport Reform (Dangerous Goods) Amendment Bill 1996: 5
  7. (1992-3) 178 Commonwealth Law Reports 477
  8. ibid.: 8

Contact Officer and Copyright Details

Krysti Guest
11 February 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
Commonwealth of Australia 1996

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 24 March 1997



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