WARNING:
This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
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.
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.
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)
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.
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.
- 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
- ibid.: 7707
- 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.
- 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.
- See Bills Digest, Road Transport Reform (Heavy Vehicles
Registration) Bill 1996, No. 83 1996-7
- Explanatory Memorandum, Road Transport Reform (Dangerous Goods)
Amendment Bill 1996: 5
- (1992-3) 178 Commonwealth Law Reports 477
- ibid.: 8
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
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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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