Dangerous Substances Act 2004

1 Name of Act This Act is the Dangerous Substances Act 2004.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘infringement notice—see the Magistrates Court Act 1930, section 117.’ means that the term ‘infringement notice’ is defined in that section and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Chapter 1

5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Purpose of Act (1) The purpose of this Act is to protect the health and safety of people, and to protect property and the environment from damage, from the hazards associated with dangerous substances. (2) The purpose of this Act includes the following: (a) to eliminate the hazards associated with dangerous substances; (b) if it is not reasonably practicable to eliminate the hazards—to minimise as far as reasonably practicable the risks resulting from the hazards by, for example— (i) ensuring that the hazards are identified and the risks are assessed and controlled; and (ii) requiring information and training about the hazards and the safe handling of the substances to be made available to people handling the substances; (c) to allocate responsibilities to people in relation to dangerous substances; (d) to regulate dangerous substances, including by providing for authorisation, licensing, notification and registration schemes for dangerous substances.

7 Exclusions from Act (1) This Act does not apply to the following: (a) the transmission, distribution and use of natural gas to which the Gas Safety Act 2000 or Utilities Act 2000 applies;

Operation of Act Part 2.1 (b) the transmission, distribution and use of LPG to which the Gas Safety Act 2000 applies; (c) ammunition under the Firearms Act 1996, other than the manufacture or transport of ammunition; (d) an infectious substance under the Clinical Waste Act 1990; (e) radioactive material under the Radiation Protection Act 2006; (f) anything else prescribed by regulation. LPG—see the Gas Safety Act 2000, dictionary, definition of gas, paragraph (b).

8 Relationship of Act to other laws (1) The duties under this Act in relation to dangerous substances are in addition to duties in relation to them under any other law in force in the ACT. Note 1 A reference to an Act includes a reference to statutory instruments made Note 2 Other legislation in force in the ACT relating to dangerous substances includes the following: • Dangerous Goods (Road Transport) Act 2009 • Emergencies Act 2004 • Environment Protection Act 1997 • Medicines, Poisons and Therapeutic Goods Act 2008 • Work Health and Safety Act 2011.

Note 3 See the Emergencies Act 2004 for provisions relating to hazardous materials incidents (which may include dangerous occurrences). Note 4 See the Dangerous Goods (Road Transport) Act 2009 for the transport by road of certain dangerous substances that are classified as dangerous goods under that Act. (2) A duty or power under another territory law, other than the WHS Act, in relation to a dangerous substance has no effect to the extent that it is inconsistent with a duty under this Act in relation to the substance. (3) However, a duty or power under another territory law, other than the WHS Act, in relation to a dangerous substance must not be taken to be inconsistent with a duty under this Act to the extent that they can operate concurrently.

8A Relationship of Act to WHS Act (1) A person is taken to have complied with a duty under this Act in relation to a substance, thing or circumstance if the person— (a) has a corresponding duty under the WHS Act in relation to the substance, thing or circumstance; and (b) has complied with the duty under the WHS Act. (2) A duty or power under this Act in relation to a dangerous substance has no effect to the extent that it is inconsistent with a duty under the WHS Act in relation to the substance. (3) However, a duty or power under this Act in relation to a dangerous substance must not be taken to be inconsistent with a duty under the WHS Act to the extent that they can operate concurrently.

Operation of Act Part 2.1

9 Relationship of regulations to approved codes of practice and incorporated documents (1) An approved code of practice or incorporated document has no effect to the extent that it is inconsistent with a regulation. (2) However, an approved code of practice or incorporated document must not be taken to be inconsistent with a regulation to the extent that it can operate concurrently.

10 Meaning of dangerous substance (1) In this Act: dangerous substance means a substance that is— (a) classified— (i) as an explosive under the Australian Explosives Code; or (ii) in class 1 (Explosives) under the ADG Code; or (b) asbestos; or (c) a security sensitive substance; or (d) prescribed by regulation to be a dangerous substance; or (e) declared under subsection (2) to be a dangerous substance. Note Asbestos is also dealt with under the Work Health and Safety Act 2011. See s 8 and s 8A for how these Acts interact. (2) The Minister may declare a substance to be a dangerous substance. (3) A declaration under subsection (2) is a disallowable instrument.

10A Meaning of security sensitive substance (1) In this Act: security sensitive substance means a substance that is— (a) prescribed by regulation to be a security sensitive substance; or (b) declared under subsection (2) to be a security sensitive (2) The Minister may declare a substance (other than an explosive) to be a security sensitive substance. (3) A declaration under subsection (2) is a disallowable instrument.

11 Handle a dangerous substance For this Act, handle a dangerous substance includes the following: (a) import or export the substance; (b) manufacture, process or treat the substance; (c) supply, receive or dispense the substance; (d) mark or label an article, container or package of the substance, or placard or put up signs in relation to the substance; (e) pack, consign or carry the substance; (f) store the substance; (g) possess, or otherwise have custody or control of, the substance; (h) use the substance; (i) dispose of the substance or render it harmless. Examples for par (d) 1 label a container of a dangerous substance in accordance with the ADG Code 2 put up warning signs around a factory about hazards associated with a dangerous substance used at the factory 3 attach a placard to a building that includes the hazchem code under the ADG Code for a dangerous substance stored at the building

12 Non-commercial handling of a dangerous substance For this Act, the handling of a dangerous substance is non- commercial if the handling does not take place in the course of trade or commerce.

13 Correctly classified for a dangerous substance (1) For this Act, a dangerous substance is correctly classified if— (a) if a regulation applies to the classification of the substance—the substance is classified in accordance with the regulation; or

(b) if a declaration under subsection (2) applies to the classification of the substance—the substance is classified in accordance with the declaration; or (c) in any other case—the substance is classified in accordance with an incorporated document applying to the classification of the Note An incorporated document has no effect to the extent that it is inconsistent with a regulation (see s 9 (1)). (2) The Minister may declare— (a) that a dangerous substance belongs, or does not belong, to a stated classification (however described) of dangerous substances; or (b) a method for classifying a stated dangerous substance. (3) A declaration under subsection (2) has no effect to the extent that it is inconsistent with a regulation. (4) A declaration under subsection (2) is a disallowable instrument.

14 Correctly for packed, stored, labelled and placarded (1) For this Act, a dangerous substance is correctly packed or stored if— (a) if a regulation applies to the packing or storage of the substance—the substance is packed or stored in accordance with the regulation; or (b) if an incorporated document applies to the packing or storage of the substance—the substance is packed or stored in accordance with the incorporated document; or

(c) in any other case—the substance is packed or stored in a way that eliminates the hazards associated with the substance or, if this is not reasonably practicable, minimises the risks resulting from the hazards as far as is reasonably practicable. Note An incorporated document has no effect to the extent that it is inconsistent with a regulation (see s 9 (1)). (2) For this Act, a dangerous substance is correctly labelled or placarded if— (a) if a regulation applies to the labelling or placarding of the substance—the substance is labelled or placarded in accordance with the regulation; or (b) in any other case—the substance is labelled or placarded in accordance with an incorporated document (if any) applying to the labelling or placarding of the substance. dangerous substance includes a container or package containing a dangerous substance.

15 Meaning of hazard and risk (1) For this Act, a hazard is a thing (including an intrinsic property of a thing), or a situation, with potential to— (a) cause the death of or harm to a person; or (b) damage property or the environment. (2) For this Act, a risk is the likelihood of death or harm to a person, or damage to property or the environment, from a hazard.

16 Reasonable steps for a risk (1) A regulation may prescribe what are, or are not, reasonable steps in relation to a risk. (2) However, if a regulation does not prescribe what are, or are not reasonable steps in relation to a risk, all of the following must be considered in working out whether reasonable steps have been taken to minimise the risk: (a) the seriousness of the risk; (b) the current state of knowledge about— (i) the hazard giving rise to the risk and the risk itself; and (ii) any ways of eliminating the hazard or minimising the risk; (c) the availability and suitability of ways to eliminate the hazard or minimise the risk; (d) the cost of eliminating the hazard or minimising the risk; (e) anything else prescribed by regulation.

17 Person in control for premises, plant etc (1) For this Act, a person in control is— (a) for the handling of a dangerous substance—anyone who has control of the handling of the substance (including anyone with authority to make decisions about the handling of the substance); or (b) for premises—anyone who has control of the premises (including anyone with authority to make decisions about the management of the premises); or

(c) for plant or a system for handling a dangerous substance— anyone who has control of the plant or system or the operation of the plant or system (including anyone with authority to make decisions about the plant or system or the operation of the plant or system); or (d) for the design, manufacture, import or supply of plant or a system for handling a dangerous substance—anyone who has control of the design, manufacture, import or supply of the plant or system (including anyone with authority to make decisions about the design, manufacture, import or supply); or (e) anyone else prescribed by regulation. Note Plant includes a building or other structure (see dict). (2) To remove any doubt, more than 1 person may be a person in control for a duty under this Act.

18 Responsible person for a dangerous substance (1) For this Act, a person is a responsible person for a dangerous substance if the person is— (a) a person in control of the handling of the substance; or (b) a person in control of premises where the substance is handled; or (c) a person in control of plant or a system for handling the (2) To remove any doubt, more than 1 person may be a responsible person for a duty under this Act.

19 What is a safety management system (1) A safety management system for handling a dangerous substance is a system that does each of the following: (a) identifies the hazards associated with the substance, having regard to the current state of knowledge about the hazards; (b) identifies and assesses the risks resulting from the identified hazards, having regard to the current state of knowledge about the risks; (c) controls the risks by eliminating the hazards or, if this is not reasonably practicable, minimising the risks as far as reasonably practicable; (d) provides for how compliance with the system is to be documented; (e) complies with any requirement prescribed by regulation (either in addition to or instead of a requirement mentioned in paragraphs (a) to (d)). Example for par (e) A regulation may provide that a supplier of a stated dangerous substance may identify the hazards associated with the substance, and identify and assess the risks resulting from the hazards, by reviewing the safety information supplied by the substance’s manufacturer under section 26 (1) (e) instead of complying with subsections (2) and (3). (2) For subsection (1) (a), the matters that must be considered in identifying the hazards include, for example— (a) the chemical and physical properties of the dangerous substance; and (b) any chemical and physical reactions that may happen if the substance comes into contact with other substances; and

(c) the premises, plant and systems for handling the substance; and (d) anything else prescribed by regulation for this subsection. Examples for par (c) 1 access to the premises or plant at the premises, including access by members of the public 2 the design, physical location and arrangement of areas and plant 3 the characteristics of the materials used in plant 4 activities, systems of work and non-dangerous substances that could interact with the substance Note Plant includes a building or other structure (see dict). (3) For subsection (1) (b), the matters that must be considered in identifying and assessing the risks include, for example— (a) the matters mentioned in subsection (2); and (b) the consequences, at premises where the dangerous substance is to be handled and elsewhere, of incidents that may happen because of the handling of the substance at the premises; and (c) anything else prescribed by regulation for this subsection. (4) For subsection (1) (c), the matters that must be considered in controlling the risks include, for example— (a) implementing, operating, maintaining and repairing systems to ensure the dangerous substance is handled safely; and (b) allocating responsibilities to people involved in the handling of the substance to ensure the substance is handled safely; and (c) appropriately inducting or supervising people handling the

(d) giving appropriate information, education and training to people handling the substance about the hazards associated with the substance, and the risks resulting from them; and (e) anything else prescribed by regulation. Examples of systems for par (a) 1 safe systems of work and safe handling systems 2 security systems for premises where the substance is manufactured or stored 3 a system to identify and rectify any incidents of noncompliance (including minimising any risks resulting from the noncompliance) with the safety management system

Complying with Act Part 2.3

20 Person may have more than 1 duty under Act To remove any doubt, a person may be subject to more than 1 duty under this Act. A supplier of a dangerous substance must comply with the general safety duty applying to everyone handling a dangerous substance (see s 23) and with the supplier’s particular duties under section (2). If the supplier is a person in control of premises, the supplier must also comply with the safety duties of a person in control of premises (see s 31). or in force under the Act, any regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

21 Person not relieved of duty because someone else also has same duty (1) This section applies if 2 or more people have the same duty under this Act. (2) To remove any doubt, each person must comply with the duty whether or not someone else may also be required to comply with the duty. (3) However, if this Act requires or allows them to do something, it is sufficient if 1 of them does the thing. If 2 people are in control of premises where a dangerous substance is handled, it is sufficient if 1 of them prepares the safety management system required under section 31 (1). However, if the safety management system is not prepared, each of them is responsible for the failure to comply with the duty to ensure that the safety management system is prepared.

22 Incorporated documents and approved codes of practice may be considered An incorporated document or approved code of practice applying to a duty under this Act may be considered in deciding whether a person has complied with the duty.

Application—ch 3 Part 3.1A Chapter 3 Safety duties for dangerous Part 3.1A Application—ch 3 22A Application This chapter does not apply to asbestos or security sensitive substances. Note Other duties may apply under the Work Health and Safety Act 2011.

23 General safety duty of everyone involved in handling dangerous substances anywhere (1) Everyone involved in handling a dangerous substance must take all reasonable steps to minimise the risks resulting from handling the Note 2 Handling a dangerous substance includes importing, manufacturing, storing, supplying, possessing, receiving or using the substance (see s 11). (2) To remove any doubt, this section applies to the handling of a dangerous substance whether or not the handling is a non-commercial handling of the substance.

Division 3.1.2 Handling of dangerous substances in trade or commerce

24 Application of div 3.1.2 This division does not apply in relation to the non-commercial handling of a dangerous substance.

Handling of dangerous substances in trade or commerce Division 3.1.2

25 Safety management system required for certain people in control of handling dangerous substances (1) This section applies to a person in control of— (a) the manufacture, import or supply of a dangerous substance; or (b) any other handling of a dangerous substance prescribed by (2) The person must— (a) ensure that a safety management system for handling the dangerous substance is prepared and documented; and Note 2 A person in control of premises is also required to have a safety management system for the handling of dangerous substances at the premises (see s 31).

26 Particular safety duties of manufacturers (1) A person in control of the manufacture of a dangerous substance must— (a) ensure that the substance is correctly classified as soon as practicable after its manufacture, but before it is supplied to anyone after its manufacture; and

Division 3.1.2 Handling of dangerous substances in trade or commerce condition that is safe for handling by anyone after its manufacture; and (c) if the substance is packed by the manufacturer—ensure that the substance is correctly packed and labelled before the manufacturer supplies it to anyone; and (d) if the substance is stored by the manufacturer—ensure that the manufacturer correctly stores and placards the substance; and the substance is prepared, kept up to date and supplied in accordance with the regulations.

27 Particular safety duties of importers (1) A person in control of the import of a dangerous substance must— (a) ensure that the substance is correctly classified before it is imported; and condition that is safe for handling by anyone after its import; and (c) if the substance is packed by the importer—ensure that the substance is correctly packed and labelled before the importer supplies it to anyone; and (d) if the substance is stored by the importer—ensure that the importer correctly stores and placards the substance; and

Handling of dangerous substances in trade or commerce Division 3.1.2 the substance is prepared, kept up to date and supplied in accordance with the regulations. Note 2 Import means import into the ACT (see dict).

28 Particular safety duties of suppliers (1) A person in control of the supply of a dangerous substance must— (a) ensure that the substance is correctly classified before the supplier supplies it to anyone; and condition that is safe for handling by anyone after the supplier supplies it; and (c) ensure that the substance is correctly packed and labelled before the supplier supplies it to anyone; and (d) if the substance is stored by the supplier—ensure that the supplier correctly stores and placards the substance; and the substance is prepared, kept up to date, supplied and made available in accordance with the regulations.

Division 3.1.3 Premises where dangerous substances are handled in trade or Division 3.1.3 Premises where dangerous substances are handled in trade or 29 Application of div 3.1.3 (1) This division does not apply in relation to the non-commercial handling of a dangerous substance at premises. Note 2 For the meaning of non-commercial, see s 12. (2) If the premises are residential premises, this division does not apply to the part of the premises used for the non-commercial handling of the substance. Note Premises includes any part of an area of land or a structure or vehicle (see dict).

30 Safety duties of everyone at premises (1) Everyone at premises where a dangerous substance is handled must take all reasonable steps to minimise the risks resulting from the handling of the substance at the premises. Note 2 At premises includes in or on the premises (see dict). (2) A person at premises where a dangerous substance is handled must— (a) comply with any requirement applying to the person under any safety management system for the handling of the substance at the premises; and

Premises where dangerous substances are handled in trade or Division 3.1.3 (b) comply with any instructions relating to the safe handling of the substance at the premises given to the person by a responsible person for the substance; and (c) comply with, or otherwise act in accordance with, notices and signs (including placards and warning signs) at the premises relating to safety or the substance; and (d) not remove, alter, damage, deface or cover any current label, notice, sign or placard at the premises relating to safety or the (e) tell a responsible person for the substance about anything at the premises that the person believes is likely to cause a dangerous occurrence. Examples of things that might be reported for par (e) 1 the misuse of the dangerous substance by someone 2 an accident in relation to the handling of the dangerous substance 3 faulty equipment used for handling the dangerous substance 4 someone not following the requirements of a safety management system Note For the meaning of responsible person, see s 18.

31 Safety duties of people in control of premises (1) A person in control of premises where a dangerous substance is handled must— (a) ensure that a safety management system for handling the substance at the premises is prepared and documented; and

Division 3.1.3 Premises where dangerous substances are handled in trade or (2) A person in control of premises where a dangerous substance is handled must take all reasonable steps to ensure that— (a) the premises (including any plant or systems at the premises for handling the substance) are safe to handle the substance; and (b) if the premises, or anything (including plant or equipment) at the premises, is to be disposed of—the premises or thing is, before its disposal, thoroughly cleaned so that it is free from the substance or is otherwise made safe; and (c) if the premises, or anything (including plant or equipment) at the premises, is no longer to be used for handling the substance— the premises or thing is thoroughly cleaned so that it is free from the substance or is otherwise made safe. Note 1 Premises includes land or a structure or vehicle and any part of an area of land or a structure or vehicle and at premises includes in or on the premises (see dict). Note 2 For other provisions relevant to the decontamination of land, see the Environment Protection Act 1997.

Division 3.1.4 Plant and systems for handling dangerous substances for trade or

32 Application of div 3.1.4 This division (other than section 33) does not apply in relation to plant or a system for the non-commercial handling of a dangerous

33 General safety duties for plant and systems (1) Everyone involved in the design, manufacture, import, supply, installation, commissioning, operation, maintenance, repair, decommissioning, dismantling or disposal of plant or a system for handling a dangerous substance must take all reasonable steps to minimise the risks resulting from the handling of the substance by the plant or system. Note 1 Plant includes a building or other structure (see dict). Note 2 A failure to comply with this section may be an offence (see pt 3.2). (2) A person operating, maintaining or repairing the plant or system must tell a relevant person about— (a) anything in relation to the plant or system that the person believes is likely to cause a dangerous occurrence; and (b) anything else that the person believes is a defect in the plant or system. (3) To remove any doubt, this section applies to all plant and systems for handling a dangerous substance, whether or not the handling is a non- commercial handling of the substance.

Division 3.1.4 Plant and systems for handling dangerous substances for trade or relevant person, for plant or a system, means— (a) a person in control of the plant or system; or (b) a person in control of the premises where the plant or system is located. Note For the meaning of person in control, see s 17.

34 Safety duties of people in control of plant and systems (1) A person in control of plant or a system for handling a dangerous substance must— (a) ensure that a safety management system for the handling of the substance by the plant or system is prepared and documented; and (2) A person in control of plant or a system for handling a dangerous substance must— (a) take all reasonable steps to ensure that the plant or system is safe to handle the substance; and

(b) take all reasonable steps to ensure that the plant or system is installed and operated safely, and appropriately maintained, repaired and tested; and Note For requirements to provide information about the operation, maintenance and repair of plant or a system, see s 35 (1) (b) and s 36 (b). (c) if the person becomes aware of a hazard or defect in relation to the plant or system— (i) take all reasonable steps to ensure that the plant or system is operated, modified, maintained or repaired to eliminate the hazard, correct the defect or minimise the risks resulting from the hazard or defect; and (ii) ensure that the supplier or manufacturer of the plant or system is told about the hazard or defect; and (iii) if the person is not the owner of the plant or system— ensure that the owner of the plant or system is told about the hazard or defect and its significance; and (d) if the plant or system, or a part of the plant or system, is to be disposed of—take all reasonable steps to ensure that the plant or system (or part) is, before its disposal, thoroughly cleaned so that it is free from the dangerous substance or is otherwise made safe; and (e) if the plant or system, or a part of the plant or system, is no longer to be used to handle the dangerous substance—take all reasonable steps to ensure that the plant or system (or part) is thoroughly cleaned so that it is free from the substance or is otherwise made safe.

Division 3.1.4 Plant and systems for handling dangerous substances for trade or

35 Safety duties of people in control of design, manufacture, import and supply of plant and systems (1) A person in control of the design, manufacture, import or supply of plant or a system for handling a dangerous substance must— (a) take all reasonable steps to ensure that the plant or a system is safe to handle the substance; and (b) if the person is a person in control of the supply of the plant or system—take all reasonable steps to ensure that appropriate information about the safe installation, operation, maintenance and repair of the plant or system is given to— (i) a person in control of the plant or system; and (ii) if the person mentioned in subparagraph (i) is not the owner—the owner of the plant or system; and (c) if the person (the appropriate person) becomes aware of a hazard or defect in relation to the plant or system—ensure that the designated person is told— (i) about the hazard or defect and its significance; and (ii) how the plant or system may be operated, modified, maintained or repaired to eliminate the hazard, correct the defect or minimise the risks resulting from the hazard or defect. designated person means— (a) if the appropriate person is a person in control of the design or import of the plant or system—a person in control of the manufacture of the plant or system; or

(b) if the appropriate person is a person in control of the manufacture of the plant or system—a person in control of the design or import (if any) of the plant or system; or (c) if the appropriate person is a person in control of the supply of the plant or system— (i) a person in control of the manufacture or import (if any) of the plant or system; and (ii) the person to whom the plant or system was supplied.

36 Safety duties of people in control of installation of plant and systems A person in control of the installation of plant or a system to handle a dangerous substance must— (a) take all reasonable steps to ensure that the plant or system is safe to handle the substance; and (b) take all reasonable steps to ensure that appropriate information about the safe operation, maintenance and repair of the plant or system is given to— (i) a person in control of the plant or system; and (ii) if the person mentioned in subparagraph (i) is not the owner—the owner of the plant or system; and (c) if the person becomes aware of a hazard or defect in relation to the plant or system—ensure that a person in control of the plant or system is told— (i) about the hazard or defect and its significance; and

(ii) how the plant or system may be operated, modified, maintained or repaired to eliminate the hazard, correct the defect or minimise the risks resulting from the hazard or defect.

37 Application of div 3.1.5 (1) This division does not apply in relation to the non-commercial handling of a dangerous substance at premises. Note 2 For the meaning of non-commercial, see s 12. (2) If the premises are residential premises, this division does not apply to the part of the premises used for the non-commercial handling of the substance. Note Premises includes any part of an area of land or a structure or vehicle (see dict).

38 Meaning of dangerous occurrence In this Act: dangerous occurrence means any of the following at premises used to handle a dangerous substance: (a) an incident causing or creating a substantial risk of— (i) death or serious harm to a person, whether at the premises or elsewhere; or (ii) substantial damage to property or the environment, whether at the premises or elsewhere; (b) anything declared by regulation to be a dangerous occurrence;

Reporting of dangerous occurrences Division 3.1.5 (c) any other incident involving a serious and immediate risk of anything mentioned in paragraph (a) or (b). Examples of incidents 1 a spill or other loss of containment of a dangerous substance 2 an uncontrolled emission of a dangerous substance 3 a fire, explosion or release of energy

39 Person in control of premises—safety duty to report actual or likely dangerous occurrences (1) If a person in control of premises believes there is a substantial likelihood of a dangerous occurrence happening at the premises, the person must— (a) if the occurrence is likely to cause death or serious harm to a person or substantial damage to property or the environment— tell the work health and safety commissioner about the person’s belief immediately after the person forms the belief; and (b) in any other case—tell the work health and safety commissioner about the person’s belief as soon as possible after the person forms the belief or, if a period is prescribed by regulation, within the prescribed period. (2) A person in control of premises where a dangerous occurrence has happened must tell the work health and safety commissioner about the occurrence— (a) if the occurrence causes death or serious harm to a person or substantial damage to property or the environment— immediately after the occurrence happens; and (b) in any other case—as soon as possible after the occurrence happens or, if a period is prescribed by regulation, within the prescribed period.

40 Safety duties do not limit each other To remove any doubt, a duty under a provision of this part does not limit the duties under another provision of this part. Note A person may be subject to more than 1 duty under this Act (see s 20).

Part 3.2 Failure to comply with safety duties

41 Meaning of safety duty for pt 3.2 safety duty means a duty under any of the following provisions: • section 23 (General safety duty of everyone handling dangerous substances anywhere) • section 25 (Safety management system required for certain people in control of handling dangerous substances) • section 26 (Particular safety duties of manufacturers) • section 27 (Particular safety duties of importers) • section 28 (Particular safety duties of suppliers) • section 30 (Safety duties of everyone at premises) • section 31 (Safety duties of people in control of premises) • section 33 (General safety duties for plant and systems) • section 34 (Safety duties of people in control of plant and systems) • section 35 (Safety duties of people in control of design, manufacture, import and supply of plant and systems) • section 36 (Safety duties of people in control of installation of plant and systems) • section 39 (Person in control of premises—safety duty to report actual or likely dangerous occurrences).

42 Failure to comply with safety duty—general offence (b) the person fails to comply with the safety duty.

43 Failure to comply with safety duty—exposing people to substantial risk of death or serious harm (c) the failure exposes anyone to a substantial risk of death or serious harm; and (i) was reckless about whether the failure would expose anyone to a substantial risk of death or serious harm; or (ii) was negligent about whether the failure would expose anyone to a substantial risk of death or serious harm. Maximum penalty: 1 500 penalty units, imprisonment for 5 years or

44 Failure to comply with safety duty—causing death or serious harm to people (c) the failure causes the death of or serious harm to anyone; and (i) was reckless about whether the failure would cause the death of or serious harm to anyone; or (ii) was negligent about whether the failure would cause the death of or serious harm to anyone.

45 Failure to comply with safety duty—exposing property or environment to substantial risk of substantial damage (c) the failure exposes property or the environment to a substantial risk of substantial damage; and (i) was reckless about whether the failure would expose property or the environment to a substantial risk of substantial damage; or

(ii) was negligent about whether the failure would expose property or the environment to a substantial risk of substantial damage. Maximum penalty: 1 000 penalty units, imprisonment for 3 years or Sarah dumps arsenic in a stormwater drain. She is reckless about whether she is exposing the environment to a substantial risk of contamination. Sarah commits an offence against this section because arsenic is a dangerous substance and, under the general safety duty of everyone involved in handling a dangerous substance, she must take all reasonable steps to minimise the risks resulting from handling the substance (see s 23 and s 41). Handling a dangerous substance includes disposing of the substance (see s 11). Sarah has exposed the ACT’s waterways to a substantial risk of contamination.

46 Failure to comply with safety duty—causing substantial damage to property or environment (c) the failure causes substantial damage to property or the environment; and (i) was reckless about whether the failure would cause substantial damage to property or the environment; or (ii) was negligent about whether the failure would cause substantial damage to property or the environment. Maximum penalty: 1 500 penalty units, imprisonment for 5 years or

47 Alternative verdicts for failure to comply with safety duties (1) This section applies if, in a prosecution for an offence for a failure to comply with a safety duty, the trier of fact— (a) is not satisfied beyond reasonable doubt that the defendant is guilty of the offence; but (b) is satisfied beyond reasonable doubt that the defendant is guilty of an alternative offence. (2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to the finding of guilt. alternative offence, for an offence mentioned in table 47, column 2, means an offence mentioned in column 3 for the offence. Table 47 Alternative verdicts column 1 item column 2 prosecuted offence column 3 alternative offence 1 section 42 (which is about failing to comply with a safety duty) section 63 (Failure to comply with conditions of licence) 2 section 43 (which is about exposing a person to substantial risk of death or serious harm) 3 section 44 (which is about causing death or serious harm to a person) section 43

column 1 item column 2 prosecuted offence column 3 alternative offence 4 section 45 (which is about exposing property or the environment to substantial risk of substantial damage) 5 section 46 (which is about causing substantial damage to property or the environment) section 45

Preliminary Part 3A.1 Note Chapter 6 provides compliance measures for contraventions of the Act.

47I Definitions—ch 3A affected building means a building that contains or has contained loose-fill asbestos insulation. affected residential premises— (a) means residential premises on which there is or was an affected building; but (b) does not include premises if the premises have been— (i) removed from the affected residential premises register; or (ii) acquired by the Territory under the buyback scheme or the Lands Acquisition Act 1994. affected residential premises register—see section 47P. approved occupant—see section 47T (1). asbestos assessment report—see section 47K. asbestos contamination means loose-fill asbestos contaminated dust or debris. asbestos contamination report—see section 47J. building work—see the Building Act 2004, section 6. buyback scheme means the scheme involving the acquisition by the Territory of residential premises that contain or have contained loose-fill asbestos insulation.

class, of building—see the Building Act 2004, dictionary. current asbestos contamination report—see section 47J. licensed asbestos removalist—see the Work Health and Safety Regulation 2011, dictionary. loose-fill asbestos insulation means loose-fill amosite or crocidolite asbestos used as ceiling insulation. owner, of affected residential premises— (a) means the person who is registered under the Land Titles Act 1925 as the proprietor of the lease for the residential (b) includes any person registered as a joint tenant or tenant in common in relation to the lease. regulator means the director-general of the administrative unit responsible for the Work Health and Safety Act 2011. residential premises— (a) means a parcel of land on which there is or was a class 1 or class 2 building; and (b) includes any buildings on the land.

47J Meaning of asbestos contamination report and current asbestos contamination report (1) For this chapter, an asbestos contamination report is a report prepared by a licensed asbestos assessor about asbestos contamination at affected residential premises that— (a) expires after— (i) a defined period stated by the assessor in the report; or

Preliminary Part 3A.1 (ii) any building work at, or structural damage to, an affected building at the premises that may have disturbed asbestos contamination in the roof space, wall cavity or sub-floor area of the building; and Examples—structural damage 1 fire damage 2 dislodged fixture or fitting 3 hole in ceiling, wall or floor (b) complies with any requirements prescribed by regulation. (2) For this chapter, a current asbestos contamination report is an asbestos contamination report for affected residential premises that has not expired. defined period means a period of not less than 6 months and not more than 2 years.

47K Meaning of asbestos assessment report For this chapter, an asbestos assessment report is a report prepared by a licensed asbestos assessor about residential premises that— (a) identifies the location, type and condition of asbestos in relation to the premises; and (b) assesses the risk resulting from the identified asbestos; and (c) advises how the asbestos should be managed; and (d) includes anything required by regulation to be included in the report.

Part 3A.2 Asbestos—assessments and register etc

47L Duty to publish educational material The Minister must publish educational material to increase public awareness about risks associated with asbestos.

47M Asbestos advice (1) The Minister must prepare an advice about the likely location of asbestos in buildings built, or the building of which started, before 1990. (2) An advice is a notifiable instrument.

47N Requirement to give asbestos assessment report (a) there is an asbestos assessment report for residential premises; and (b) a person (the engager) engages someone (the worker) to undertake work involving asbestos at the premises. (2) The engager must— (a) tell the worker about the asbestos at the premises; and (b) give the worker a copy of the asbestos assessment report for the (3) However, the engager need not give the worker a copy of the asbestos assessment report for the premises— (a) if the engager cannot obtain a copy of the report after taking reasonable steps; or (b) if the work is a response to an emergency situation.

Asbestos—assessments and register etc Part 3A.2 asbestos containing material means any material or thing that, as part of its design, contains asbestos. involves—work involves asbestos if the work involves supplying, transporting, storing, removing, using, installing, handling, treating, disposing of or disturbing asbestos or asbestos containing material.

47O Requirements—affected residential premises (1) The owner of affected residential premises must have a current asbestos contamination report for the premises. (2) A person (the engager) who engages someone (the worker) to undertake work at affected residential premises must— (a) tell the worker about the asbestos at the premises; and (b) give the worker a copy of the current asbestos contamination report for the premises. (3) A person who undertakes, or engages a person to undertake, work that may disturb asbestos contamination in the defined areas of an affected building at affected residential premises, must tell the regulator about the work at least 5 business days before the day the work begins. (4) A regulation may prescribe requirements for the following in relation to the management of asbestos contamination at affected residential premises: (a) the regulator; (b) the owner of affected residential premises; (c) a property manager of, or real estate agent for, affected residential premises; (d) the occupier of affected residential premises; (e) a licensed asbestos assessor;

(f) a licensed asbestos removalist; (g) a worker or other person at affected residential premises. Examples—requirements 1 undertaking work required under an asbestos contamination report 2 complying with any other requirements under an asbestos contamination report including installing warning signs at affected residential premises 3 displaying a copy of an asbestos contamination report at affected residential premises 4 giving a copy of an asbestos contamination report and any related documents to the people mentioned in pars (a) to (g) (5) In this section: defined areas, in relation to an affected building, means the roof space, wall cavity or sub-floor area of the building.

47P Affected residential premises register (1) The Minister must keep a register of affected residential premises (the affected residential premises register). (2) The Minister must include the following details in relation to affected residential premises in the register: (a) the address where the premises are located; (b) the block and section; (c) the date the premises were included in the register; (d) whether the premises have been acquired by the Territory under the buyback scheme or the Lands Acquisition Act 1994; (e) whether the premises require a current asbestos contamination report;

Asbestos—assessments and register etc Part 3A.2 (f) whether— (i) the premises have a current asbestos contamination report; and (ii) any work mentioned in the report to manage the asbestos contamination has been completed; (g) whether the premises are subject to an occupancy prohibition, and, if so— (i) whether an approved occupant is occupying the premises; and (ii) if an approved occupant is occupying the premises—the name of the approved occupant. Note An approved occupant may occupy affected residential premises that are subject to an occupancy prohibition (see s 47U). (3) The Minister must remove all details about affected residential premises from the register if— (a) each affected building at the premises has been demolished; and (b) the Minister is satisfied that the premises have been remediated. (4) The register may be kept in any form, including electronically, that the Minister decides. (5) The Minister may make the register, or part of the register, publicly available (other than matters mentioned in subsection (2) (g)). Example—publicly available published on an ACT Government website (6) In this section: affected residential premises means residential premises on which there is or was an affected building.

47Q Notice of affected residential premises to registrar-general The Minister must, as soon as possible after including or removing details of residential premises in or from the affected residential premises register, tell the registrar-general about the inclusion or removal. Note An administrative interest may be placed on the title for affected residential premises that includes noting that the premises will be subject to an occupancy prohibition following the transfer or transmission of the premises (see Land Titles Act 1925, s 69A (c)).

Occupancy prohibition Part 3A.3

47R Definitions—pt 3A.3 occupy—a person occupies affected residential premises if the person has the premises as their principal place of residence. transfer—see the Land Titles Act 1925, dictionary. transmission—see the Land Titles Act 1925, dictionary.

47S Meaning of occupancy prohibition The occupation of affected residential premises is prohibited (an occupancy prohibition) if— (a) there has been a transfer or transmission of the premises on or after 1 July 2020; and (b) the premises were included in the affected residential premises register before the transfer or transmission of the premises. Note An approved occupant may occupy affected residential premises that are subject to an occupancy prohibition (see s 47U).

47T Meaning of approved occupant (1) In this chapter: approved occupant, of affected residential premises, means— (a) an individual (a resident) who has occupied the premises continuously on and after the day it was added to the affected residential premises register; or (b) an individual (a support person) who, upon application, is approved by the Minister to occupy the premises to provide support to a resident.

(2) Before making a decision under subsection (1), definition of approved occupant, paragraph (b), the Minister must consider whether— (a) the support is reasonably necessary for the ongoing physical or emotional care of the resident; and (b) it is reasonably necessary for the support person to occupy the premises to provide the support. (3) The Minister must give a written copy of the approval or refusal of the support person’s occupancy of the premises to the applicant within 28 days after receiving the application. (4) If the Minister has not given a written copy of the approval or refusal to the applicant within 28 days after receiving the application, the Minister is taken to have refused the application.

47U Occupancy prohibition—affected residential premises (1) The owner of affected residential premises that are subject to an occupancy prohibition must ensure that the premises are not occupied by a person other than an approved occupant of the premises. Note A residential tenancy agreement for affected residential premises may be terminated under the Residential Tenancies Act 1997, s 64AA. (2) The owner of affected residential premises commits an offence if— (a) the premises are subject to an occupancy prohibition; and (b) there was an administrative interest under the Land Titles Act 1925, section 69A (c) (i) or (iii) on the title for the premises when the premises were transferred or transmitted to the owner; and (c) the owner fails to comply with subsection (1) in relation to the

Occupancy prohibition Part 3A.3

47V Owner must notify regulator of approved occupants The owner of affected residential premises that are subject to an occupancy prohibition following a transfer or transmission of the premises must tell the regulator in writing— (a) that an approved occupant occupies the premises within 10 business days after— (i) for an approved occupant who occupied the premises on the day of the transfer or transmission—the day of the transfer or transmission; or (ii) for an approved occupant who occupied the premises after the day of the transfer or transmission—the day the occupation began; or (b) that an approved occupant has stopped occupying the premises within 10 business days after the day the occupation ends.

Chapter 4 Licences for dangerous Note 1 A regulation may prescribe when a person is required to hold a licence (or some other form of authority) to handle a dangerous substance (see s 214 (for explosives), s 215 (1) (a) and s 217). Note 2 If a person handles a dangerous substance without a licence it may be an offence under ch 5.

48 Meaning of close associate for ch 4 (1) In this chapter: close associate—a person is a close associate of someone (the related person) if— (a) the person holds or will hold an executive position (however described) in the related person’s business; or (b) the work health and safety commissioner is satisfied that the person is or will be able to exercise a significant influence in relation to the conduct of the related person’s business because the person holds or will hold a financial interest, or is entitled to exercise a relevant power, in the business. executive position—a position (however described) in the related person’s business is an executive position if the holder of the position is concerned with, or takes part in, the management of the business. exercise a power includes exercise the power on behalf of someone else. financial interest, in a business, means— (a) a share in the capital of the business; or

(b) an entitlement to receive income derived from the business, however the entitlement arises. hold a position includes hold the position on behalf of someone else. power means a power exercisable— (a) by voting or otherwise; and (b) alone or with others. relevant power, in a business, means a power— (a) to take part in a directorial, managerial or executive decision for the business; or (b) to elect or appoint a person to an executive office in the business.

49 Working out whether person is a suitable person (1) The work health and safety commissioner must have regard to the following matters in deciding whether a person is a suitable person to be issued with, or continue to hold, a licence: (a) the knowledge, experience and training of the person in relation to the kinds of dangerous substances to which the application relates; (b) whether the person or a close associate of the person, or a executive officer, has supplied information or a document that is false or misleading in a material particular in relation to this Act; (c) whether the person or a close associate of the person, or a corporation of which the person was an executive officer, is disqualified under the Act or a corresponding law from holding a licence;

(d) whether the person or a close associate of the person, or a executive officer— (i) has contravened this Act or a corresponding law, whether or not the person, associate or corporation has been convicted or found guilty of an offence for the contravention; or (ii) has failed to comply with a condition of a licence under this Act or a licence or other authority (however described) under a corresponding law, whether or not the person, associate or corporation has been convicted or found guilty of an offence for the failure; (e) any action being taken against the person or a close associate of the person under part 4.4 (Disciplinary action); (f) whether the person or a close associate of the person, or a executive officer, has been convicted or found guilty in the ACT or elsewhere, within the 5-year period before the day the application is made, of an offence involving a dangerous substance; (g) whether the person or a close associate of the person has been convicted or found guilty in the ACT or elsewhere, within the 5- year period before the day the application is made, of an offence involving— (i) a firearm; or (ii) actual or threatened violence; or (iii) fraud or dishonesty;

(h) whether the person or a close associate of the person has, within the 5-year period before the day the application is made, been subject to a protection order or corresponding protection order (other than an order that has been revoked or for which an appeal against the making of the order has been upheld); (i) anything prescribed by regulation. Note 1 For the meaning of found guilty, see the Legislation Act, dict, pt 1. corresponding protection order means an order (however described) under a law of the Commonwealth, a State, another Territory or New Zealand that has the same effect or substantially the same effect as a protection order. protection order means a final order under— (a) the Family Violence Act 2016; or (b) the Personal Violence Act 2016.

50 Applications for licences etc to comply with Act (1) This section applies to— (a) an application for a licence; or (b) an application by a licensee to amend the licence; or (c) any other application prescribed by regulation in relation to a licence.

(2) The application must include any information or documents (including information or documents verified in a particular way) required by regulation or by a form approved under section 222 for the application. (3) The work health and safety commissioner need not decide the application if it does not include the required information and documents.

51 Power to ask for information from applicants, licensees and others designated matter means— (a) an application for a licence; or (b) an application by a licensee to amend the licence; or (c) a change of the kind to which section 57 (2) (Licensee to keep work health and safety commissioner informed) applies; or (d) anything else prescribed by regulation. third party, for an applicant for a licence or a licensee—a person is a third party if the work health and safety commissioner believes on reasonable grounds that the person has an association or connection with the applicant or licensee that is relevant to the consideration of a designated matter. (2) The work health and safety commissioner may, by written notice given to an applicant for a licence or a licensee, ask the person to do 1 or more of the following: (a) give, in accordance with any directions in the notice, stated information (including information in the possession of or under the control of a third party), verified as stated in the notice, that is relevant to the consideration of the designated matter in relation to the person;

(b) produce, in accordance with any directions in the notice, stated documents (including documents in the possession of or under the control of a third party) relevant to the consideration of the designated matter in relation to the person and allow examination of the documents, the taking of extracts from them and the making of copies of them; (c) authorise a third party stated in the notice to comply with a stated request of a kind mentioned in paragraph (a) or (b); (d) give the work health and safety commissioner the authorities and consents that the work health and safety commissioner asks for to allow the work health and safety commissioner to obtain from other people information (including financial and other confidential information) that is— (i) about the person or a close associate of the person; and (ii) relevant to the consideration of the designated matter in relation to the person. 1 the notice may ask the person to give information by preparing a document in a stated way or by completing a document provided by the work health and 2 the notice may ask the person to give the work health and safety commissioner information about a close associate and that the information be verified by a signed statement Example for par (b) a statement supplied by a police officer about the applicant’s criminal history (if any) Example for par (c) The notice may ask the applicant to authorise the applicant’s accountant, or a former close associate, to give the work health and safety commissioner stated information or documents about the applicant.

(3) If the work health and safety commissioner asks for something under this section in relation to an application, the work health and safety commissioner need not decide the application until the request is complied with.

Part 4.2 Issue, amendment, replacement and surrender of licences

52 Licence application and decision (1) A person may apply to the work health and safety commissioner for a licence. (2) The work health and safety commissioner must issue the licence to the person if satisfied that— (a) the person is a suitable person to hold the licence; and (b) the person can comply with this Act in relation to the activities to be authorised by the licence. (3) The work health and safety commissioner must refuse to issue the licence if the work health and safety commissioner is not satisfied about the matters mentioned in subsection (2). Note Section 50 (3) and s 51 (3) contain exceptions to this section.

53 Licence conditions (1) The work health and safety commissioner may include conditions in a licence to protect the health and safety of people, and property and the environment from damage, from hazards associated with, or risks resulting from, the dangerous substances to which the licence applies. (2) A licence is subject to— (a) any conditions included in the licence by the work health and safety commissioner; and (b) any conditions prescribed by regulation.

54 Term of licence (1) A licence is issued for the period stated in the licence. (2) A licence may not be issued for longer than 3 years, or any shorter period prescribed by regulation.

55 Licence not transferable A licence is not transferable.

56 Form of licence (1) A licence must show the following information: (a) the full name of the licensee; (b) if appropriate— (i) details of the premises where the licensee is authorised to carry out activities under the licence; and (ii) the address of the premises or, if the premises are a vehicle, any information prescribed by regulation for the vehicle; (c) the dangerous substances to which the licence relates; (d) the kinds of handling of dangerous substances authorised under the licence (each of which is a handling authority); (e) any conditions included in the licence by the work health and safety commissioner; (f) any exemption given by the Minister or work health and safety commissioner under this Act that is relevant to the licence; (g) a unique identifying number;

(h) when the term of the licence ends. Example for par (d) A licence may authorise a person to manufacture a dangerous substance and to import other dangerous substances (the other dangerous substances are necessary to manufacture the dangerous substance). The licence also authorises the person to store the imported and manufactured dangerous substances and to supply the manufactured dangerous substance. (2) A licence may also include any other information the work health and safety commissioner considers appropriate.

57 Licensee to keep work health and safety commissioner informed (1) This section applies if a person believes that there will be a change to anything stated in— (a) a licence held by the person; or (b) the application for the licence made by the person; or (c) an application to amend the licence made by the person. Note If a person fails to comply with this section the work health and safety commissioner may take disciplinary action under pt 4.4 (see s 67). (2) The person must— (a) give the work health and safety commissioner written notice of the change no later than 7 days before the day the change happens; and (b) if the change affects a particular shown on the licence—return the licence to the work health and safety commissioner with the notice. Examples of changes 1 a change in a licensee’s close associates 2 a structural change in premises relevant to handling a dangerous substance

(3) If the change affects a particular shown on a licence, the work health and safety commissioner must amend the licence or issue another licence for the remainder of the period of the licence it replaces. (4) However, subsection (3) does not apply if the work health and safety commissioner is taking, or considering whether to take, action under part 4.4 (Disciplinary action) in relation to the licensee because of the change.

58 Licence—application to amend by licensee (1) A licensee may apply to the work health and safety commissioner to amend the licence. Examples of amendments 1 to amend or revoke a condition included in the licence by the work health and 2 to change the premises where activities may be carried out under the licence (2) The work health and safety commissioner must amend the licence if, assuming that the application to amend were an application under section 52 (Licence application and decision) for a licence that included the proposed amendment, the work health and safety commissioner would be required to issue a licence. Note 1 For the return of the licence to the work health and safety commissioner, see s 64. Note 2 Pt 4.1 applies to the consideration of the application. (3) If subsection (2) does not apply, the work health and safety commissioner must refuse the application to amend the licence.

59 Licence—imposition etc of conditions on work health and safety commissioner’s initiative (1) This section applies to a licensee if the work health and safety commissioner proposes, on the work health and safety commissioner’s own initiative, to amend the licence to impose a condition, or to amend or revoke a condition included in the licence by the work health and safety commissioner (the proposed action). (2) The work health and safety commissioner must give the licensee a written notice stating— (a) the proposed action; and (b) if the proposed action is to impose a condition—the proposed condition; and (c) if the proposed action is to amend a condition—the condition as proposed to be amended; and (d) an explanation for the proposed action; and (e) that the licensee may, within 14 days after the day the licensee receives the notice, give a written response to the work health and safety commissioner about the notice. (3) In deciding whether to take the proposed action, the work health and safety commissioner must consider any response given to the work health and safety commissioner in accordance with the notice. (4) The work health and safety commissioner must give the licensee written notice of the work health and safety commissioner’s decision. (5) If the work health and safety commissioner decides to take the proposed action, the work health and safety commissioner’s decision takes effect 14 days after the day when notice of the decision is given to the licensee or, if the notice states a later date of effect, that date.

(6) If the licence is amended, the work health and safety commissioner must, as soon as practicable after the licence has been returned to the work health and safety commissioner, amend the licence or give the licensee a replacement licence showing the amendment. Note The licensee must return the licence to the work health and safety commissioner for amendment (see s 64). (7) This section does not affect the taking of action under part 4.4 (Disciplinary action).

60 Replacement of licence (1) The work health and safety commissioner may issue a replacement licence to a licensee if satisfied that the licence has been lost, stolen or destroyed. (2) For subsection (1), the work health and safety commissioner may require the licensee to give the work health and safety commissioner a statement signed by the licensee, verifying that the licence has been lost, stolen or destroyed. (3) A licence issued under this section must be issued for the remainder of the period of the licence it replaces.

61 Surrender of licence (1) A licensee may apply to the work health and safety commissioner to surrender the licensee’s licence. (2) The licensee must, with the application— (a) return the licence to the work health and safety commissioner; or

(b) if the licence has been lost, stolen or destroyed—give the work health and safety commissioner a statement signed by the licensee, verifying that the licence has been lost, stolen or destroyed.

62 Work health and safety commissioner may ask for information etc from licensee (1) This section applies if a change mentioned in section 57 (1) (Licensee to keep work health and safety commissioner informed) happens in relation to a licence, whether or not the licensee gives notice of the change to the work health and safety commissioner under section 57. (2) To decide whether, because of the change, the licensee has ceased to be a suitable person to hold the licence or has failed, or is failing, to comply with this Act, the work health and safety commissioner may give the licensee a notice under section 51 (Power to ask for information from applicants, licensees and others). (3) The licensee must comply with a notice given to the licensee under section 51.

63 Failure to comply with conditions of licence (1) A licensee commits an offence if— (a) the licensee’s licence is subject to a condition; and (b) the licensee fails to comply with a requirement of the condition.

64 Return of amended, suspended or cancelled licences (1) A licensee commits an offence if— (a) the licensee’s licence is— (i) amended under section 58 (Licence—application to amend by licensee); or (ii) amended under section 59 (Licence—imposition etc of conditions on work health and safety commissioner’s initiative); or (iii) amended, suspended or cancelled under part 4.4 (Disciplinary action); and (b) the licensee fails to return the licence to the work health and safety commissioner as soon as practicable (but within 7 days) after the day the licensee is told about the work health and safety commissioner’s action.

Offences relating to licences Part 4.3

65 Pretending to hold licence (1) A person commits an offence if the person pretends to be the holder of a licence. (2) A person commits an offence if the person pretends to be authorised to do something under a licence.

66 Offence to allow someone else to use licence A licensee commits an offence if the licensee lets someone else use the licensee’s licence.

67 Grounds for disciplinary action The work health and safety commissioner may take disciplinary action against— (a) a licensee, if the work health and safety commissioner believes, on reasonable grounds, that the licensee— (i) is not, or is no longer, a suitable person to hold a licence; or (ii) has contravened, or is contravening, this Act; or Note 1 For the meaning of suitable person, see s 49. Note 2 For the meaning of disciplinary action, see s 68 (3) and (4). (b) a former licensee, if the work health and safety commissioner believes, on reasonable grounds, that the former licensee contravened this Act while holding a licence, whether or not the former licensee has been convicted or found guilty of an offence for the contravention.

68 Taking disciplinary action (1) If the work health and safety commissioner proposes to take disciplinary action in relation to a licensee, or a former licensee, the work health and safety commissioner must give the person a written notice (a disciplinary notice) that— (a) states the proposed action (including any proposed disqualification period, suspension period or amendment of a licence); and (b) states the grounds for the proposed action; and (c) tells the person that the person may, within 14 days after the day the person receives the notice, give a written response to the work health and safety commissioner about the notice.

(2) In deciding whether to take disciplinary action, the work health and safety commissioner must consider any response given to the work health and safety commissioner in accordance with the notice under subsection (1) (c). (3) If the work health and safety commissioner is satisfied that a ground for taking action under this section has been established in relation to a licensee, the work health and safety commissioner may do 1 or more of the following (each of which is disciplinary action): (a) reprimand the licensee; (b) require the licensee to complete a stated course of training to the satisfaction of the work health and safety commissioner or another stated person; (c) amend the licence, including by imposing a condition on the licence or amending an existing condition; (d) suspend the licence, or a particular handling authority under the licence, for a stated period or until a stated event happens; (e) cancel the licence, or a particular handling authority under the licence; (f) cancel the licence and disqualify the licensee from applying for a licence, or a particular kind of licence for a stated period or until a stated event happens. (4) If the work health and safety commissioner is satisfied that a ground for taking action under this section has been established in relation to a former licensee, the work health and safety commissioner may do 1 or more of the following (each of which is disciplinary action): (a) reprimand the former licensee; (b) disqualify the former licensee from applying for a licence, or a particular kind of licence— (i) for a stated period; or

(ii) until the former licensee completes a stated course of training to the satisfaction of the work health and safety commissioner or someone else; or (iii) until a stated event happens. (5) The work health and safety commissioner must give the person written notice of the work health and safety commissioner’s decision. (6) A decision to take action under subsection (3) or (4) takes effect 14 days after the day when notice of the decision is given to the person or, if the notice states a later date of effect, that date. Note For the requirement to return of an amended, suspended or cancelled licence to the work health and safety commissioner, see s 64.

69 Immediate suspension of licence (1) This section applies if the work health and safety commissioner has given, or is considering whether to give, a disciplinary notice to a licensee. (2) The work health and safety commissioner may give the licensee a written notice (an immediate suspension notice) suspending the licence or a particular handling authority under the licence. Note For the meaning of handling authority, see s 56 (1) (d). (3) However, the work health and safety commissioner may suspend the licence or handling authority under subsection (2) only if— (a) the work health and safety commissioner has taken into account the circumstances leading to the decision to give or consider giving the disciplinary notice and the grounds stated, or that may be stated, in the disciplinary notice; and (b) the work health and safety commissioner believes, on reasonable grounds, that it is in the public interest that the licence or handling authority be suspended as soon as practicable before a decision is made whether or not to take action against the licensee under section 68.

(4) If an immediate suspension notice is given to the licensee, the licensee’s licence, or the handling authority, is suspended when the notice is given to the licensee. Note For the return of the licence to the work health and safety commissioner, see s 64. (5) If the licensee is given an immediate suspension notice because the work health and safety commissioner is considering whether to give a disciplinary notice to the licensee, the work health and safety commissioner must, as soon as practicable, give a disciplinary notice to the licensee or tell the licensee in writing that a disciplinary notice will not be given to the licensee. (6) An immediate suspension notice ends— (a) if the licence is cancelled or suspended under section 68 (3)— when the cancellation or suspension takes effect; or (b) if a condition is imposed on the licence to which the notice relates, or a condition of the licence is amended—when the condition or amended condition takes effect; or (c) in any other case—when the person is given written notice under section 68 (5) of the decision made on the disciplinary notice or the work health and safety commissioner tells the licensee that a disciplinary notice will not be given to the licensee.

70 Effect of suspension of licence (1) A suspended licence or handling authority does not authorise the licensee to carry on an activity authorised by the licence or handling authority during the suspension. (2) If the work health and safety commissioner suspends a licence or handling authority, the licensee is, during the suspension— (a) taken not to hold the licence or handling authority; and (b) disqualified from applying for a licence or handling authority of that kind.

(3) If the work health and safety commissioner suspends a handling authority under a licence, the licence is taken to be amended under this part to give effect to the suspension.

71 Action by work health and safety commissioner in relation to amended, suspended or cancelled licence (1) If a licence is amended under this part, the work health and safety commissioner must, as soon as practicable after the licence has been returned to the work health and safety commissioner, amend the licence or give the licensee a replacement licence showing the amendment. Note For the requirement to return an amended or suspended licence to the work health and safety commissioner, see s 64. (2) If a licence is suspended under this part and the suspension ends before the end of the term of the licence, the work health and safety commissioner must return the licence to the licensee. (3) If a handling authority under a licence is suspended under this part and the suspension ends before the end of the term of the licence, the work health and safety commissioner must, as soon as practicable after the licence has been returned to the work health and safety commissioner, amend the licence or give the licensee a replacement licence that includes the handling authority.

72 Publication of disciplinary decision by work health and (1) If the work health and safety commissioner takes disciplinary action against a licensee or former licensee, the work health and safety commissioner may publish the following information in a way that the work health and safety commissioner considers appropriate: (a) particulars that allow the public to identify the licensee or former licensee; (b) details of the disciplinary action;

(c) an outline of why the disciplinary action was taken; (d) any other information in relation to the disciplinary action and the safety of the dangerous substance concerned that the work health and safety commissioner considers appropriate. Examples of publication 1 a press release 2 an article in a document published by the Territory or a territory authority 3 an advertisement in a newspaper circulating in the ACT 4 a public notice 1 the licensee’s name and ACN (if any) 2 any name (and, if relevant, ACN) used in the past by the licensee 3 the licensee’s current and previous business addresses Note Public notice means notice on an ACT government website or in a daily (2) However, the information may be published only if— (a) the time for any review or appeal in relation to the disciplinary action has ended and no application for review or appeal has been made; or (b) an application for review or appeal has been made and— (i) the application is withdrawn, struck out or discontinued or lapses; or (ii) the disciplinary action is confirmed on review and the time for appeal has ended without an application for an appeal being made. (3) If the disciplinary action is set aside on review or appeal, the information must not be published. (4) If the disciplinary action is changed on review or appeal (for example, different disciplinary action is substituted), this section applies in relation to the action as changed.

(5) For the Civil Law (Wrongs) Act 2002, section 139 (Defences of fair report of proceedings of public concern), the information published by the work health and safety commissioner under this section about disciplinary action is taken to be a fair report of proceedings of public concern.

Part 5.1 Prohibited and controlled dangerous substances

73 Definitions for ch 5 In this Act: controlled dangerous substance means an explosive or other dangerous substance declared by regulation to be a controlled dangerous substance. explosive means a dangerous substance declared by regulation to be an explosive. prohibited dangerous substance means— (a) an explosive declared by regulation to be a prohibited explosive; or (b) any other dangerous substance declared by regulation to be a prohibited dangerous substance.

74 Unauthorised manufacture of certain dangerous (a) the person manufactures a prohibited dangerous substance; and manufacture the substance. (a) the person manufactures a controlled dangerous substance; and

manufacture the substance.

75 Unauthorised import of certain dangerous substances (a) the person imports a prohibited dangerous substance; and import the substance. Note Import means import into the ACT (see dict). (a) the person imports a controlled dangerous substance; and import the substance.

76 Unauthorised supply of certain dangerous substances (a) the person supplies a prohibited dangerous substance to supply the substance to the recipient.

(a) the person supplies a controlled dangerous substance to supply the substance to the recipient. (a) the person supplies a prohibited dangerous substance to (b) the recipient is not authorised under a licence, or by regulation, to receive the substance; and (c) the person is reckless about whether the recipient is authorised under the licence, or by regulation, to receive the substance. (4) A person commits an offence if— (a) the person supplies a controlled dangerous substance to (b) the recipient is not authorised under a licence, or by regulation, to receive the substance; and (c) the person is reckless about whether the recipient is authorised under the licence, or by regulation, to receive the substance.

77 Unauthorised possession of certain dangerous (a) the person possesses a prohibited dangerous substance; and possess the substance. (a) the person possesses a controlled dangerous substance; and possess the substance. Maximum penalty: 500 penalty units, imprisonment for 2 years or possession, of a dangerous substance by a person, includes— (a) the person receiving or obtaining possession of the substance; and (b) the person having control over the substance; and (c) the person having joint possession of the substance with someone else.

78 Unauthorised storage of certain dangerous substances (a) a regulation requires a dangerous substance to be stored in a particular way; and (b) the person stores the substance; and

(c) the person fails to store the substance in accordance with the

79 Unauthorised use of certain dangerous substances (a) the person uses a prohibited dangerous substance; and use the substance. Maximum penalty: 2 500 penalty units, imprisonment for 10 years or both. (a) the person uses a controlled dangerous substance; and use the substance. Maximum penalty: 750 penalty units, imprisonment for 3 years or

80 Unauthorised carrying of certain dangerous substances (a) a regulation requires a dangerous substance to be carried in a particular way; and (b) the person carries the substance; and (c) the person fails to carry the substance in accordance with the

81 Unauthorised disposal of dangerous substances, plant and systems (a) a regulation requires a dangerous substance to be disposed of in a particular way; and (b) the person disposes of the substance; and (c) the person fails to dispose of the substance in accordance with the regulation. (a) a regulation requires plant or a system used for handling a dangerous substance to be disposed of in a particular way; and (b) the person disposes of the plant or system; and (c) the person fails to dispose of the plant or system in accordance with the regulation.

82 Unauthorised handling of dangerous substances generally (a) a regulation requires a handling of a dangerous substance to be authorised under a licence; and (b) the person handles the substance; and

(c) the person is not authorised under a licence to handle the Note 1 Handling a dangerous substance includes importing, manufacturing, storing, supplying, possessing, receiving or using the substance (see s 11). Note 2 See the Dangerous Goods (Road Transport) Act 2009 for the transport by road of certain dangerous substances that are classified as dangerous goods under that Act.

83 Handling of certain dangerous substances to be notified (1) A person in control of the handling of a dangerous substance commits an offence if— (a) a regulation requires the handling of the substance to be notified to the work health and safety commissioner; and (b) the person fails to ensure that the work health and safety commissioner is notified of the handling of the substance in accordance with the regulation. Note Handling a dangerous substance includes importing, manufacturing, storing, supplying, possessing, receiving or using the substance (see s 11).

84 Certain premises, plant or systems to be registered etc (1) A person in control of premises where a dangerous substance is handled commits an offence if— (a) a regulation requires the premises to be registered or notified under a regulation; and

(b) the person fails to ensure that the premises are registered or notified in accordance with the regulation. (2) A person in control of plant or a system for handling a dangerous substance commits an offence if— (a) a regulation requires the plant or system to be registered or notified under a regulation; and (b) the person fails to ensure that the plant or system is registered or notified in accordance with the regulation.

Preservation of site of dangerous occurrence Part 5.2 Part 5.2 Preservation of site of dangerous occurrence

85 Definitions for pt 5.2 authorised person means— (a) an inspector; or Note An inspector includes a police officer (see s 207 (1)). (b) a person acting in accordance with an inspector’s directions; or (c) a person giving emergency medical assistance to an injured person; or (d) a member of the ambulance service, the fire and rescue service, the rural fire service or the SES. site, of a dangerous occurrence at premises, means the part of the premises where the occurrence happened. site preservation period means the reasonable period notified by the work health and safety commissioner to a person in control of the premises where a dangerous occurrence has happened or is happening.

Part 5.2 Preservation of site of dangerous occurrence

86 Person in control of premises to preserve site of dangerous occurrence (1) A person in control of premises where a dangerous occurrence has happened or is happening commits an offence if the person fails to take all reasonable steps to ensure that the site of the occurrence is not disturbed or interfered with until after the end of the site preservation period. Note 1 An inspector may issue a prohibition notice in relation to the site of a dangerous occurrence (see s 109 (2) (b) (ii)). Note 2 For the power of a coroner to exercise functions in relation to the site of a dangerous occurrence, see the Coroners Act 1997. (2) This section does not apply to anything done by an authorised person.

87 Unauthorised disturbance or interference with site of dangerous occurrence (a) a dangerous occurrence has happened or is happening at (b) the person disturbs or interferes with the site of the occurrence; and (c) the site preservation period for the site has not ended. (2) This section does not apply to anything done by an authorised person.

88 Work health and safety commissioner may require answers to questions and production of documents (1) This section applies if the work health and safety commissioner believes, on reasonable grounds, that a person (the relevant person) may have contravened, or may be contravening, a provision of this Act. (2) The work health and safety commissioner may, by written notice given to a person (including the relevant person), require the person to attend before the work health and safety commissioner at a stated reasonable time and place to do either or both of the following: (a) answer questions that the work health and safety commissioner considers necessary to decide whether the relevant person has contravened or is contravening this Act; (b) produce the documents stated in the notice. Note For how the notice may be served, see the Legislation Act, pt 19.5. (3) The work health and safety commissioner may require a person to produce a document under subsection (2) (b) only if the work health and safety commissioner considers the production necessary to decide whether the relevant person has contravened or is contravening this Act.

(4) The notice must— (a) state that the requirement is made under this section; and (b) contain a statement to the effect that failure to comply with the notice is an offence; and (c) if the notice requires the person to answer questions— (i) contain a statement about the effect of section 92 (Privileges against self-incrimination and exposure to civil penalty); and (ii) state that the person may attend with a lawyer. (5) To remove any doubt, for this section, a person answers a question if the person explains why the person or an entity did or did not do something.

89 Compliance with notice to produce (1) This section applies if a person is required by a notice under section 88 to produce a document but not to answer questions. (2) The person is taken to have complied with the requirement to produce the document if the person— (a) does not attend before the work health and safety commissioner; but (b) gives the document to the work health and safety commissioner before the time stated for attendance in the notice.

90 Failure to attend before work health and safety commissioner or produce documents (a) the person is required by a notice under section 88 to attend and answer questions before the work health and safety (b) the person fails to attend before the work health and safety commissioner in accordance with the notice. (a) the person is required by a notice under section 88 to produce a stated document; and (b) the person fails to produce the document.

91 Attendance before work health and safety commissioner—offences (a) the person is required under section 88 to attend and answer questions before the work health and safety commissioner; and (b) the person attends before the work health and safety (c) the work health and safety commissioner requires the person to answer a question; and (d) the person fails to answer the question.

(a) the person is required by a notice under section 88 to attend and answer questions before the work health and safety (b) the person attends before the work health and safety (c) the person fails to continue to attend as reasonably required by the work health and safety commissioner until excused from further attendance.

92 Privileges against self-incrimination and exposure to civil penalty (a) a person is attending before the work health and safety commissioner in accordance with a requirement under section 88; and (b) the work health and safety commissioner requires the person to answer a question. (2) This section also applies if a person is required by a notice under section 88 to produce a document. (3) The person cannot rely on the common law privileges against self-incrimination and exposure to the imposition of a civil penalty to refuse to answer the question or produce the document. Note The Legislation Act, s 171 deals with client legal privilege.

(4) However, any information, document or thing obtained, directly or indirectly, because of the giving of the answer or the production of the document is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for an offence against this part or the Criminal Code, part 3.4 (False or misleading statements, information and documents).

93 Meaning of relevant responsible person for pt 6.2 relevant responsible person, for a compliance agreement, means the responsible person for a dangerous substance who enters into the agreement.

94 Inspector may seek compliance agreement (1) This section applies if an inspector believes, on reasonable grounds, that a provision of this Act has been, is being or may be contravened in relation to a dangerous substance. (2) The inspector may ask a responsible person for the dangerous substance to enter into an agreement (a compliance agreement) in relation to the contravention. (3) If the responsible person agrees to enter into a compliance agreement, the agreement must— (a) state that it is a compliance agreement under this Act; and (b) state the contravention of this Act in relation to which the agreement is entered into; and (c) state the period for which the agreement is to operate; and (d) state the measures to be taken by the responsible person or anyone else to ensure this Act is complied with and the times within which the measures must be taken; and

Compliance agreements Part 6.2 (e) include a statement to the effect that each person who is required complying with the duty; and (f) be signed by the inspector and the responsible person. Examples of measures for par (d) 1 the dangerous substance is to be handled only by people with a stated qualification 2 the substance is to be handled at temperatures below 5C 3 repair or replace particular premises or plant 4 develop, implement or amend a safety management system (4) The compliance agreement may include anything else the inspector and the relevant responsible person consider appropriate. (5) The inspector must give a copy of the compliance agreement to the relevant responsible person.

95 Term of compliance agreement (1) A compliance agreement commences when the agreement is signed by the inspector and relevant responsible person, or at any later time stated in the agreement. (2) The compliance agreement ends— (a) at the end of the period of operation stated in the agreement; or (b) if the inspector and relevant responsible person agree to extend the period of operation before the end of the stated period—at the end of the extended period. (3) If an inspector is satisfied that the compliance agreement has been complied with before it ends, the inspector must revoke the agreement by written notice given to the relevant responsible person.

96 Compliance agreement not admission of fault etc (1) This section applies if a responsible person for a dangerous substance enters into a compliance agreement in relation to a contravention of (2) Entering into the compliance agreement— (a) is not an express or implied admission of fault or liability by the responsible person in relation to the contravention; and (b) is not relevant to deciding fault or liability in relation to the contravention. (3) Also, evidence of the existence or contents of the compliance agreement is not— (a) admissible in a civil proceeding as evidence of the fault or liability of a person in relation to the contravention; or (b) admissible in a criminal proceeding in relation to the contravention; or (c) relevant to the taking of action under part 4.4 (Disciplinary action) in relation to the contravention. Note This section does not prevent the issue of an improvement notice or prohibition notice in relation to the relevant contravention (see Legislation Act, s 44 and s 197).

97 Notification and display of compliance agreements (1) This section applies to the relevant responsible person for a compliance agreement. (a) tell each person (an affected person) whose work is affected by the measures to be taken under the agreement about the agreement, including the measures; or

Compliance agreements Part 6.2 (b) give a copy of the agreement to each other person in control of each of the premises where an affected person works. copy of the agreement is displayed, while the agreement is operating, in a prominent place at or near each part of the premises affected by the contravention of this Act in relation to which the agreement was entered into.

98 Compliance agreement not to be removed etc (a) a copy of a compliance agreement is displayed at a place; and while the agreement is operating.

99 Meaning of relevant responsible person for pt 6.3 relevant responsible person, for an improvement notice, means the person to whom the inspector gives the notice.

100 Giving improvement notices An inspector may give a notice (an improvement notice) to a responsible person for a dangerous substance if the inspector believes, on reasonable grounds, that a person has contravened, is contravening, or is likely to contravene, this Act. Note 1 For how documents may be served, see the Legislation Act, pt 19.5.

101 Contents of improvement notices (1) An improvement notice may require the relevant responsible person to do 1 or more of the following: (a) put stated premises, plant or a system for handling the dangerous substance into a safe condition, including, for example, by repairing or replacing the premises, plant or system; (b) prepare, implement or amend a safety management system in relation to the handling of the substance; (c) take stated measures to carry out the requirements of a safety management system in relation to the handling of the substance; (d) destroy or otherwise dispose of the substance; (e) comply with a particular provision of this Act in relation to the handling of the substance;

Improvement notices Part 6.3 (f) do anything else to ensure that this Act is complied with in relation to the substance. (2) Also, the improvement notice must— (a) state that it is an improvement notice under this Act; and (b) state the contravention of this Act in relation to which the notice is given; and (c) state the period for complying with the notice; and (d) include a statement to the effect that each person who is required complying with the duty. (3) The improvement notice may include any other information the inspector considers appropriate.

102 Extension of time for compliance with improvement notices (1) This section applies if a responsible person for a dangerous substance has been given an improvement notice. (2) An inspector may, by written notice given to the responsible person, extend the compliance period for the improvement notice on the inspector’s own initiative or if asked by the responsible person. (3) However, the inspector may extend the compliance period only if the period has not ended. compliance period means the period stated in the improvement notice under section 101 (2) (c), and includes that period as extended under

103 Notification and display of improvement notices (1) This section applies to the relevant responsible person for an improvement notice. (a) tell each person (an affected person) whose work is affected by anything required to be done under the notice about the notice, including the things required to be done under it; or (b) give a copy of the notice to each person in control of each of the premises where an affected person works. copy of the notice is displayed, while the notice is in force, in a prominent place at or near each part of the premises affected by the contravention of this Act in relation to which the notice was given.

104 Improvement notice not to be removed etc (a) a copy of an improvement notice is displayed at a place; and while the notice is in force.

Improvement notices Part 6.3

105 Scope of improvement notices (1) An improvement notice for a dangerous substance may relate to 1 or more of the following: (a) premises, or part of premises, for handling the substance; (b) plant or a system for handling the substance; (c) handling the substance in a stated way or for a stated purpose. (2) A requirement in an improvement notice to destroy or otherwise dispose of a dangerous substance may state either or both of the following: (a) how the substance must be destroyed or otherwise disposed of; (b) how the substance must be kept until it is destroyed or otherwise disposed of. Note A requirement to destroy or otherwise dispose of a substance may be made under s 101 (1) (d).

106 Revocation of improvement notice on compliance If an inspector is satisfied that an improvement notice has been complied with, the inspector must revoke the notice by written notice given to the relevant responsible person.

107 Contravention of improvement notices (1) The relevant responsible person for an improvement notice commits an offence if the person fails to take all reasonable steps to comply with a requirement of the notice. Note If an improvement notice is given to 2 or more responsible people for a dangerous substance, each of them must comply with the notice (see s 21).

108 Definitions for pt 6.4 basis, for giving a prohibition notice, means— (a) the contravention of this Act in relation to which the prohibition notice was given and the risk to be prevented or minimised under the notice (see section 109 (1)); or (b) the contravention of the improvement notice in relation to which the prohibition notice was given (see section 109 (2) (a)); or (c) the inspection, testing or monitoring to be allowed under the notice (see section 109 (2) (b) (i)); or (d) the accident or other incident to be investigated under the notice (see section 109 (2) (b) (ii)). relevant responsible person, for a prohibition notice, means the responsible person for the dangerous substance stated in the notice to whom the notice is given.

109 Giving prohibition notices (1) An inspector may give a notice (a prohibition notice) to a responsible person for a dangerous substance at premises if the inspector believes, on reasonable grounds, that— (a) someone at the premises has contravened, is contravening, or is likely to contravene, this Act in relation to the substance; and (b) giving the notice is necessary to prevent or minimise risk of serious harm to the health or safety of people, or substantial damage to property or the environment, from a hazard at the premises associated with the substance.

(2) An inspector may also give a notice (also a prohibition notice) to a responsible person for a dangerous substance at premises if the inspector believes, on reasonable grounds, that— (a) someone at the premises has contravened, is contravening, or is likely to contravene, an improvement notice; or (b) giving the notice is necessary to allow— (i) the inspection, testing or monitoring of anything at the premises used in relation to the handling of the substance; or (ii) the investigation of an accident or other incident (including a dangerous occurrence) at the premises in relation to the Example for par (2) (b) (i) to allow for routine compliance testing of plant and systems if the responsible person has not voluntarily agreed to the plant or system being shut down for the test Note 1 For how documents may be served, see the Legislation Act, pt 19.5. Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation

110 Contents of prohibition notices (1) A prohibition notice in relation to a dangerous substance at premises may require a responsible person for the substance not to do 1 or more of the following until the notice ends: (a) use stated premises, plant, systems, substances or things; (b) disturb stated premises, plant, systems, substances or things; (c) something else at or in relation to the premises.

(2) Also, the prohibition notice— (a) must state the following: (i) that it is a prohibition notice under this Act; (ii) the dangerous substance and premises to which the notice relate; (iii) the basis for giving the notice; and (b) if the notice is given under section 109 (1) or (2) (a) (which are about notices given to prevent or minimise risk of serious harm etc from contravention of this Act or the contravention of an improvement notice)—must include a statement to the effect that the relevant responsible person may ask for a reinspection of the situation or circumstances that caused the notice to be given if the person considers that the situation or circumstances comply with this Act; and (c) if the notice is given under section 109 (2) (b) (which is about notices given to allow inspection, testing, monitoring and investigation)—must state the reasonable period that the inspector considers necessary to carry out the inspection, testing, monitoring or investigation to which the notice relates.

111 Extension of time for inspection etc (1) This section applies if a prohibition notice is given under section 109 (2) (b). (2) An inspector may, by written notice given to the relevant responsible person for the prohibition notice, extend the relevant period for the notice on the inspector’s own initiative or if asked by the relevant responsible person. (3) However, the inspector may extend the relevant period only if the period has not ended.

relevant period means the period stated in the prohibition notice under section 110 (2) (c), and includes that period as extended under

112 Notification and display of prohibition notices (1) This section applies to the relevant responsible person for a prohibition notice. (a) tell each person who works at the premises to which the notice relates about the notice, including anything required not to be done under it; or (b) give a copy of the notice to each other responsible person for the dangerous substance to which the notice relates. copy of the prohibition notice is displayed in a prominent place, at or near each part of the premises to which the notice relates, while the notice is in force.

113 Prohibition notice not to be removed etc (a) a copy of a prohibition notice is displayed at a place; and while the notice is in force.

114 Scope of prohibition notices A prohibition notice for a dangerous substance may relate to either or both of the following: (a) plant or a system for handling the substance; (b) handling of the substance in a stated way or for a stated purpose.

115 Ending of prohibition notices for contravention of Act etc (1) This section applies to a prohibition notice if the notice was given under section 109 (1) or (2) (a) (which are about notices given to prevent or minimise risk of serious harm etc from contravention of this Act or the contravention of an improvement notice). (2) The prohibition notice ends when the notice is revoked under section 117.

116 Request for reinspection (1) This section applies to a prohibition notice given under section 109 (1) or (2) (a). (2) The relevant responsible person for the prohibition notice may ask the work health and safety commissioner, in writing, for a reinspection of the situation or circumstances that caused the notice to be given if the person considers that the situation or circumstances comply with (3) If the request relates to a vehicle or equipment, the vehicle or equipment must be made available for reinspection where it was originally inspected or at another place agreed to by an inspector.

117 Revocation on reinspection (1) This section applies if a request has been made under section 116. (2) If the inspector who carries out the reinspection is satisfied that there are no grounds for the prohibition notice to continue to operate, the inspector may revoke the notice by written notice given to the relevant responsible person for the prohibition notice. (3) Also, the prohibition notice is taken to be revoked on the 3rd business day after the day the request for reinspection is received by the work health and safety commissioner if— (a) an inspector does not make the reinspection within 2 business days after day the request is received; and (b) the person who made the request is not responsible, completely or partly, for the delay in making the reinspection. Note For the meaning of business day, see the Legislation Act, dict, pt 1. (4) Subsection (3) does not prevent an improvement notice or another prohibition notice being given to the same person in relation to the same contravention of this Act.

118 Ending of prohibition notices given for inspection etc (1) This section applies to a prohibition notice if the notice was given under section 109 (2) (b) (which is about notices given to allow inspection, testing, monitoring and investigation). (2) The prohibition notice ends at the end of the period stated in the notice under section 110 (2) (c) (Contents of prohibition notices) or, if the period is extended under section 111, the end of the extended period.

119 Contravention of prohibition notices (1) The relevant responsible person for a prohibition notice commits an offence if the person fails to take all reasonable steps to ensure the notice is not contravened. Maximum penalty: 200 penalty units.

120 Request for compensation for prohibition notice (a) a prohibition notice is given in relation to premises; and (b) a person suffers loss or expense because of the giving of the notice; and (c) the person considers that there were insufficient grounds for giving the notice. (2) The person may apply, in writing, to the Minister for compensation. (3) The application must give reasons why the person considers that there were insufficient grounds for giving the prohibition notice.

121 Compensation for prohibition notice (1) This section applies if a person applies under section 120 for compensation in relation to the giving of a prohibition notice. (2) If, after considering the application, the Minister is satisfied that there were insufficient grounds for giving the prohibition notice, the Territory must pay the person the reasonable compensation decided by the Minister. (3) However, compensation is not payable to the person— (a) in relation to any loss or expense suffered by the person because of an act or omission of the person; or

(b) if the person caused or contributed to the situation or circumstances that caused the prohibition notice to be given. (4) The Minister must give the person written notice of the Minister’s decision on the application. (5) If the Minister does not decide the application within 28 days after the day the Minister receives the application, the Minister is taken to have refused to pay compensation.

Enforceable undertakings Part 6.5

122 Definitions for pt 6.5 alleged contravention—see section 123 (3) (b). enforceable undertaking means a safety undertaking that has been accepted under section 124. relevant person, for an enforceable undertaking, means the person who gave the undertaking. safety undertaking—see section 123 (2).

123 Making of safety undertakings (1) This section applies if the work health and safety commissioner alleges that a person has contravened a provision of this Act in relation to a dangerous substance. (2) The person may give the work health and safety commissioner a written undertaking (a safety undertaking) to comply with the provision in relation to the substance. (3) The safety undertaking must— (a) state that it is an enforceable undertaking under this Act; and (b) acknowledge that the work health and safety commissioner alleges that the person has contravened a stated provision of this Act (the alleged contravention); and (c) identify the facts and circumstances of the alleged contravention; and

(d) include 1 or more undertakings relating to the alleged contravention; and (e) include a statement to the effect that each person who is required complying with the duty. Examples of undertakings 1 to cease a certain conduct 2 to take particular action to compensate people adversely affected by a contravention of this Act 3 to take particular action to rectify a state of affairs that arose as a direct or indirect result of the contravention 4 to take particular action (including implementing particular systems) to prevent future contraventions of this Act 5 to implement publicity or education programs

124 Acceptance of safety undertaking (1) The work health and safety commissioner may accept a safety undertaking by written notice given to the person who gave the undertaking. (2) On the acceptance of the safety undertaking, the undertaking becomes an enforceable undertaking.

125 Withdrawal from or amendment of enforceable undertaking (1) A relevant person for an enforceable undertaking may withdraw from or amend the undertaking only with the work health and safety commissioner’s written agreement. (2) However, the enforceable undertaking may not be amended to provide for a different alleged contravention.

Enforceable undertakings Part 6.5

126 Term of enforceable undertaking (1) A safety undertaking is enforceable from the time it becomes an enforceable undertaking. (2) The work health and safety commissioner may end an enforceable undertaking by written notice to the relevant person for the undertaking if satisfied that the undertaking is no longer necessary or desirable. (3) The work health and safety commissioner may act under subsection (2) on the work health and safety commissioner’s own initiative or on the application of the relevant person for the enforceable undertaking. (4) The undertaking ends when the relevant person for the enforceable undertaking receives the work health and safety commissioner’s notice.

127 Safety undertaking not admission of fault etc (1) This section applies if a person gives the work health and safety commissioner a safety undertaking, whether or not the undertaking is accepted by the work health and safety commissioner. (2) Giving the safety undertaking— (a) is not an express or implied admission of fault or liability by the person in relation to the alleged contravention; and (b) is not relevant to deciding fault or liability in relation to the alleged contravention.

128 Contravention of enforceable undertakings (1) If the work health and safety commissioner believes, on reasonable grounds, that an enforceable undertaking has been contravened by anyone, the work health and safety commissioner may apply to the Magistrates Court for an order under subsection (2). (2) If the Magistrates Court is satisfied that the enforceable undertaking has been contravened, the court may make 1 or more of the following orders: (a) an order requiring the relevant person for the undertaking to ensure that the undertaking is not contravened; (b) an order requiring the relevant person for the undertaking to pay to the Territory the amount assessed by the court as the value of the benefits anyone derived, directly or indirectly, from the contravention of the undertaking; (c) an order that the court considers appropriate requiring the relevant person for the undertaking to compensate someone who has suffered loss or damage because of the contravention of the undertaking; (d) any other order that the court considers appropriate. (3) A person commits an offence if the person fails to take all reasonable steps to comply with an order under subsection (2). Maximum penalty: 200 penalty units.

Injunctions Part 6.6

129 Injunctions to restrain offences against Act (1) This section applies if a person has committed, is committing, or is likely to commit, an offence against this Act. Note 1 A reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189). (2) The work health and safety commissioner or any other interested person may apply to the Magistrates Court for an injunction. (3) On application under subsection (2), the Magistrates Court may grant an injunction restraining the person from contravening this Act (including by requiring the person to do something). (4) The Magistrates Court may grant the injunction— (a) whether or not it appears to the court that the person intends to contravene this Act, contravene this Act again or continue to contravene this Act; and (b) whether or not the person has previously contravened this Act; and (c) whether or not there is a likelihood of the health or safety of a person being affected by, or property or the environment being damaged by, a hazard if the person contravenes this Act; and (d) whether or not a proceeding for an offence against this Act has begun or is about to begin.

(5) The Magistrates Court may grant an interim injunction restraining the person from committing an offence against this Act (including requiring the person to do something) before deciding an application for an injunction under this section.

130 Enforcement of injunctions The Magistrates Court has the same powers as the Supreme Court to enforce an injunction (including an interim injunction) made under this part.

131 Amendment or discharge of injunctions The Magistrates Court may amend or discharge an injunction (including an interim injunction) made under this part on the application of the work health and safety commissioner or any other interested person.

132 Interim injunctions—undertakings about damages (1) If the work health and safety commissioner applies for an injunction under this part, the Magistrates Court must not require the work health and safety commissioner to give an undertaking about costs or damages as a condition of granting an interim injunction. (2) The Magistrates Court must accept an undertaking from the work health and safety commissioner about costs or damages, and not require a further undertaking from anyone else, if— (a) the applicant for an injunction under this part is not the work health and safety commissioner; and (b) the court would, apart from this subsection, require the applicant to give an undertaking about costs or damages; and (c) the work health and safety commissioner gives the undertaking.

Injunctions Part 6.6

133 Magistrates Court’s other powers not limited (1) The powers given to the Magistrates Court under this part are in addition to any other powers of the court. (2) In particular, an application to the Magistrates Court for an injunction under this part may be made without notice to the person against whom the injunction is sought.

134 Inspector may buy samples without complying with pt 6.7 This part does not stop an inspector from buying a sample of a substance for analysis for the routine monitoring of compliance with this Act without complying with the requirements of this part. Note For the admissibility of the analysis of a sample of a substance taken by an inspector, see s 204.

135 Person in charge etc to be told sample to be analysed (1) This section applies if an inspector proposes to take, or takes, a sample of a substance for analysis from premises where a dangerous substance is handled. (2) Before or as soon as practicable after taking the sample, the inspector must tell a person in charge of the premises of the inspector’s intention to have the sample analysed. (3) If a person in charge is not present or readily available, the inspector must instead tell the person from whom the sample was obtained of the inspector’s intention to have the sample analysed.

136 Payment for samples (1) This section applies if an inspector takes a sample of a substance for analysis from premises where a dangerous substance is handled. (2) The inspector must pay, or offer to pay, to the person from whom the sample is taken— (a) the amount (if any) prescribed by regulation as the amount payable for the sample; or (b) if no amount is prescribed—the current market value of the sample.

Taking and analysis of samples Part 6.7

137 Samples from packaged substances If a package of a substance contains 2 or more smaller packages of the same substance, the inspector may take 1 of the smaller packages for analysis.

138 Procedures for dividing samples (1) This section applies to a sample of a substance being taken by an inspector for analysis and is subject to section 139. (2) The inspector must— (a) divide the sample into 3 separate parts, and mark and seal or fasten each part; and (b) leave 1 part with the person told under section 135 (Person in charge etc to be told sample to be analysed) of the inspector’s intention to have the sample analysed; and (c) keep 1 of the parts for analysis; and (d) keep 1 part for future comparison with the other parts of the sample. (3) If a sample of a substance taken by an inspector is in the form of separate or severable objects, the inspector— (a) may take a number of the objects; and (b) if the inspector takes a number of the objects, must— (i) divide them into 3 parts each consisting of 1 or more of the objects, or of the severable parts of the objects, and mark and either seal or fasten each part; and (ii) deal with the sample under subsection (2) (b) to (d).

139 Exception to s 138 (1) This section applies to a sample of a substance being taken by an inspector for analysis if dividing the substance into 3 separate parts would, in the inspector’s opinion— (a) so affect or impair the composition or quality of the sample as to make the separate parts unsuitable for accurate analysis; or (b) result in the separate parts being of an insufficient size for accurate analysis; or (c) otherwise make the sample unsuitable for analysis (including a method of analysis prescribed by regulation for the substance in relation to which the sample was taken). (2) The inspector may take as many samples as the inspector considers necessary to allow an accurate analysis to be made, and may deal with the sample or samples in any way that is appropriate in the circumstances, instead of complying with section 138.

140 Certificates of analysis by authorised analysts (1) The analysis of a sample of a substance for the work health and safety commissioner must be carried out by, or under the supervision of, an authorised analyst. (2) The authorised analyst must give to the work health and safety commissioner a certificate of analysis that— (a) is signed and dated by the analyst; and (b) contains a written report of the analysis that sets out the findings; and (c) identifies the method of analysis. Note For the evidentiary status of a certificate under this section, see s 203.

General Part 7.1

Part 7.1 General

141 Definitions for ch 7 connected—a thing is connected with an offence if— (a) the offence has been committed in relation to it; or (b) it will provide evidence of the commission of the offence; or (c) it was used, is being used, or is intended to be used, to commit the offence. data includes— (a) information in any form; and (b) a program (or part of a program). data storage device means a thing containing, or designed to contain, data for use by a computer. offence includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed. person assisting, in relation to a search warrant, means a person who has been authorised by an inspector to assist in executing the warrant. search warrant means a warrant issued under part 7.3 (Search warrants) that is in force.

142 General power to enter premises (1) For this Act, an inspector may— (a) at any reasonable time, enter premises that the inspector believes, on reasonable grounds, are— (i) premises used in relation to the handling of dangerous substances; or (ii) premises where there are documents relating to the handling of dangerous substances or plant or a system for handling dangerous substances; or (b) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or (c) at any time, enter premises with the consent of a person in charge of the premises; or (d) enter premises in accordance with a search warrant; or (e) at any time, enter premises if the inspector believes, on reasonable grounds, that the circumstances are of such seriousness and urgency as to require immediate entry to the premises without the authority of a search warrant. (2) However, subsection (1) (a) does not authorise entry into a part of premises that is being used only for residential purposes unless that part of the premises is being used in relation to the handling of dangerous substances.

(3) For subsection (1), an inspector may stop and detain a vehicle that the inspector believes, on reasonable grounds— (a) is carrying dangerous substances; or (b) contains documents relating to the handling of dangerous substances or plant or a system for handling dangerous substances. (4) For subsection (3), the inspector— (a) may direct the driver of the vehicle to move the vehicle to a place (or another place) to which the public has access; and (b) may exercise the inspector’s powers in relation to the vehicle at the place; and (c) must not detain the vehicle for longer than is reasonably necessary to exercise the inspector’s powers under this chapter. (5) An inspector may, without the consent of a person in charge of premises, enter the land around the premises to ask for consent to enter the premises. (6) To remove any doubt, an inspector may enter premises under subsection (1) without payment of any entry fee or other charge. (7) For subsection (1) (e), the inspector may enter the premises with any (8) In this section: at any reasonable time means at any time— (a) for subsection (1) (a) (i)—during normal business hours or any other time when the premises are being used in relation to the handling of dangerous substances; or (b) for subsection (1) (a) (ii)—during normal business hours; or

(c) for subsection (1) (b)—when the public is entitled to use the premises, or when the premises are open to or used by the public, whether or not on payment of money.

143 Production of identity card An inspector must not remain at premises entered under this chapter if the inspector does not produce his or her identity card for inspection when asked by a person in charge of the premises.

144 Consent to entry (1) When seeking the consent of a person in charge of premises to enter the premises under section 142 (1) (c) (General power to enter premises), an inspector must— (a) produce his or her identity card; and (b) tell the person— (i) the purpose of the entry; and (ii) that anything found and seized under this chapter may be used in evidence in court; and (iii) that consent may be refused. (2) If the person in charge consents, the inspector must ask the person to sign a written acknowledgment (an acknowledgment of consent)— (a) that the person was told— (i) the purpose of the entry; and (ii) that anything found and seized under this chapter may be used in evidence in court; and (iii) that consent may be refused; and (b) that the person consented to the entry; and (c) stating the time and date when consent was given.

(3) If the person in charge signs an acknowledgment of consent, the inspector must immediately give a copy to the person. (4) A court must find that a person in charge of premises did not consent to an entry to the premises by an inspector under this chapter if— (a) the question whether the person consented to the entry arises in a proceeding in the court; and (b) an acknowledgment of consent for the entry is not produced in evidence for the entry; and (c) it is not proved that the person consented to the entry.

145 General powers of inspectors—premises An inspector who enters premises under this chapter may, for this Act, do 1 or more of the following in relation to the premises or anything at the premises: (a) examine anything at the premises; (b) examine and copy, or take extracts from, documents relating to— (i) the handling of dangerous substances; or (ii) plant or a system used for handling dangerous substances; or (iii) a contravention, or possible contravention, of this Act; (c) examine and copy, or take extracts from, any packaging, labelling or advertising material; (d) open (or require to be opened) any container or package that the inspector believes, on reasonable grounds— (i) contains a dangerous substance or equipment; or (ii) is, or has been, used in relation to the carrying of a dangerous substance;

(e) open or operate (or require to be opened or operated) plant or a system; (f) take for analysis samples of water, soil or anything else that is part of the environment to find out whether the environment poses a risk to the health or safety of people; (g) subject to part 6.7 (Taking and analysis of samples), take for analysis samples of anything else (including any substance) at the premises; (h) carry out any other examination to find out whether this Act has been, or is being, complied with; (i) take measurements, conduct tests and make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings); (j) under section 152, seize a thing at the premises; (k) take onto the premises any people, equipment or material the inspector reasonably needs to exercise a power under this Act; (l) require a person in charge of the premises, or anyone at the premises, to give information, answer questions, or produce documents or anything else, reasonably needed to exercise the inspector’s functions under this Act; Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.

(m) require a person in charge of the premises, or anyone at the premises, to give the inspector reasonable assistance to exercise a function under this chapter. Note 2 Examine includes inspect, weigh, count, test or measure (see dict). Note 3 A reference to an Act includes a reference to statutory instruments made

146 General powers of inspectors for public places (1) An inspector may exercise 1 or more of the powers mentioned in section 145 in relation to a substance at a public place if the inspector suspects, on reasonable grounds, that the substance is a dangerous (2) This Act applies in relation to the exercise of a power under subsection (1) as if— (a) the public place were premises entered by the inspector under this chapter; and (b) all other necessary changes were made. (3) Without limiting subsection (2), if a person is required to do something by an inspector under subsection (1), the person need not comply with the requirement if the inspector does not produce his or her identity card for inspection when asked by the person. (4) However, subsection (3) does not apply in relation to an inspector who is a police officer in uniform.

147 Contravention of requirement by inspector A person must take all reasonable steps to comply with a requirement made of the person under section 145 (l) or (m) (including a requirement made in relation to a substance at a public place). Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.

148 Power to take action to prevent etc imminent risk (1) This section applies if an inspector believes, on reasonable grounds that— (a) there is an imminent risk of serious harm to a person, or of substantial damage to property or the environment, in relation to a dangerous substance at premises or from plant or a system for handling a dangerous substance at the premises; and (b) it is necessary for the inspector to take action without delay to prevent or minimise the risk. Note 2 Premises includes any land, structure or vehicle and any part of an area (2) This section applies even if an inspector has given a responsible person for the premises an improvement or prohibition notice in relation to the premises and the time for complying with the notice has not ended. (3) The inspector may take the action the inspector believes, on reasonable grounds, is necessary to prevent or minimise the risk. (4) For subsection (3), the inspector may enter the premises with any

(5) In deciding the action to be taken, the inspector must, to the extent that is reasonably practicable, consult with a person in charge of the premises and the work health and safety commissioner. (6) The action an inspector may take includes asking someone the inspector believes, on reasonable grounds, has appropriate knowledge and experience to help the inspector prevent or minimise the risk. (7) If an inspector asks someone to help under subsection (6), the person is taken to have the powers of an inspector to the extent reasonably necessary for the person to help prevent or minimise the risk. (8) The power to enter premises under this section is additional to the powers under section 142 (General power to enter premises).

149 Report about action under s 148 As soon as practicable after taking action under section 148, an inspector must— (a) prepare a report that outlines why the action was taken, the action that was taken and any damage to property because of the action; and (b) give a copy of the report to a person in charge of the premises and the work health and safety commissioner.

150 Recovery of Territory’s costs for action under s 148 (1) This section applies if an inspector takes action under section 148 (3) (Power to take action to prevent etc imminent risk) to prevent or minimise a risk. (2) Costs incurred by the Territory in relation to the action are a debt owing to the Territory by, and are recoverable together and separately from, the following people: (a) the person who owned the dangerous substance to which the risk related;

(b) each person in control of the premises where the action was taken; (c) the person who caused the risk. (3) However, costs are not recoverable from a person if the person establishes that— (a) the risk was caused by the act or omission of someone other than the person or the person’s employee or agent; and (b) reasonable precautions were taken and appropriate diligence was exercised by the person to avoid the act or omission. (4) This section does not limit the powers the Territory has apart from

151 Power of entry etc in relation to dangerous occurrences (1) This section applies if an inspector believes, on reasonable grounds, that a dangerous occurrence has happened, is happening or is about to happen at premises. (2) The inspector may enter the premises to investigate the dangerous occurrence, ensure the premises are safe and prevent the concealment, loss or destruction of anything reasonably relevant to the investigation of the occurrence. (3) For subsection (2), the inspector may enter the premises with any (4) The inspector may do anything reasonably necessary for a purpose mentioned in subsection (2). (5) If an inspector acts under this section in the absence of a person in charge of the premises, the inspector must, when leaving the premises, leave a written notice, secured in a conspicuous place, setting out— (a) the inspector’s name; and

(b) the time and date of the entry; and (c) the purpose of the entry; and (d) how to contact the inspector. (6) The power to enter premises under this section is additional to the powers under section 142 (General power to enter premises).

152 Power to seize things (1) An inspector who enters premises under this chapter with the consent of a person in charge of the premises may seize anything at the premises if— (a) the inspector is satisfied, on reasonable grounds, that the thing is connected with an offence against this Act; and (b) seizure of the thing is consistent with the purpose of the entry told to the person when seeking the person’s consent. (2) An inspector who enters premises under a warrant issued under this chapter may seize anything at the premises that the inspector is authorised to seize under the warrant. (3) An inspector who enters premises under this chapter (whether with the consent of a person in charge of the premises, under a warrant or otherwise) may seize anything at the premises if satisfied, on (a) the thing is connected with an offence against this Act; and (b) the seizure is necessary to prevent the thing from being— (i) concealed, lost or destroyed; or (ii) used to commit, continue or repeat the offence.

(4) Also, an inspector who enters premises under this chapter (whether with the consent of a person in charge of the premises, under a warrant or otherwise) may seize anything at the premises if satisfied, on reasonable grounds, that the thing poses a risk to the health or safety of people or of damage to property or the environment. (5) The powers of an inspector under subsections (3) and (4) are additional to any powers of the inspector under subsection (1) or (2) or any other territory law.

153 Action in relation to thing seized (1) This section applies if an inspector has seized a thing at premises (the place of seizure) under section 152. (2) The inspector may— (a) remove the thing from the place of seizure to another place; or (b) leave the thing at the place of seizure but restrict access to it; or (c) for a thing mentioned in section 154 (1)—destroy or otherwise dispose of the thing under section 154 (5) (Power to destroy unsafe things). Example of how access may be restricted The inspector may— (a) place the seized thing in a room or other enclosed area, compartment or cabinet at the place of seizure; and (b) fasten and seal the door or opening providing access to the room, area, compartment or cabinet; and (c) mark the door or opening in a way that indicates that access to it has been restricted under this Act. (a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (2); and

(b) the person does not have an inspector’s approval to interfere with the thing.

154 Power to destroy unsafe things (1) This section applies to anything inspected or seized under this chapter by an inspector if the inspector is satisfied, on reasonable grounds, that the thing poses a risk to the health or safety of people or of damage to property or the environment. (2) The inspector may require a person in charge of the premises where the thing is to destroy or otherwise dispose of the thing. (3) The requirement may state 1 or more of the following: (a) how the thing must be destroyed or otherwise disposed of; (b) how the thing must be kept until it is destroyed or otherwise disposed of; (c) the period within which the thing must be destroyed or otherwise disposed of. (4) A person in charge of the premises where the thing is commits an offence if the person contravenes a requirement given to the person under subsection (2). (5) Alternatively, if the thing has been seized under this chapter, the inspector may destroy or otherwise dispose of the thing. (6) Costs incurred by the Territory in relation to the disposal of a thing under subsection (5) are a debt owing to the Territory by, and are recoverable together and separately from, the following people: (a) the person who owned the thing;

(b) each person in control of the premises where the thing was. (7) An offence against this section is a strict liability offence.

155 Power to require name and address (1) An inspector may require a person to state the person’s name and home address if the inspector suspects, on reasonable grounds, that the person is committing, is about to commit, or has just committed, an offence against this Act. (2) If an inspector makes a requirement of a person under subsection (1), the inspector must— (a) tell the person the reasons for the requirement; and (b) as soon as practicable, record the reasons. (3) A person commits an offence if the person contravenes a requirement under subsection (1). Maximum penalty: 10 penalty units. (4) However, a person is not required to comply with a requirement under subsection (1) if, when asked by the person, the inspector does not produce his or her identity card for inspection by the person. (5) Subsection (4) does not apply in relation to an inspector who is a police officer in uniform. (6) An offence against this section is a strict liability offence.

156 Inspector’s power to require production of licence (a) an inspector suspects, on reasonable grounds, that the person is handling, is about to handle, or has just handled, a dangerous (b) a regulation requires the handling to be authorised under a licence. (2) The inspector may require the person to produce for inspection any licence that authorises the person to handle the dangerous substance. (3) If an inspector makes a requirement of a person under subsection (2), the inspector must— (a) tell the person the reasons for the requirement; and (b) as soon as practicable, record the reasons. (4) A person commits an offence if the person contravenes a requirement under subsection (2). Maximum penalty: 5 penalty units. (5) However, a person is not required to comply with a requirement under subsection (2) if, when asked by the person, the inspector does not produce his or her identity card for inspection by the person. (6) Subsection (5) does not apply in relation to an inspector who is a police officer in uniform. (7) An offence against this section is a strict liability offence. (8) In this section: licence includes an authority (however described) issued under a corresponding law that, under a regulation, authorises a person to handle a dangerous substance.

157 Warrants generally (1) An inspector may apply to a magistrate for a warrant to enter (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. (4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity connected with an offence against this Act; and (b) the thing or activity is, or is being engaged in, at the premises, or may be, or may be engaged in, at the premises within the next 14 days. Note At premises includes in or on the premises (see dict). (5) The warrant must state— (a) that an inspector may, with any necessary assistance and force, enter the premises and exercise the inspector’s powers under this chapter; and (b) the offence for which the warrant is issued; and (c) the things that may be seized under the warrant; and (d) the hours when the premises may be entered; and (e) the date, within 14 days after the day of the warrant’s issue, that the warrant ends.

(6) In this section: connected—an activity is connected with an offence if— (a) the offence has been committed by engaging or not engaging in it; or (b) it will provide evidence of the commission of the offence. Note For the meaning of thing connected with an offence, see s 141.

158 Warrants—application made other than in person (1) An inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances. (2) Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought. (3) The inspector may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately provide a written copy to the inspector if it is practicable to do so. (5) If it is not practicable to provide a written copy to the inspector— (a) the magistrate must— (i) tell the inspector what the terms of the warrant are; and (ii) tell the inspector the date and time the warrant was issued; and

(b) the inspector must complete a form of warrant (the warrant form) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the warrant; and (iii) the warrant’s terms. (6) The written copy of the warrant, or the warrant form properly completed by the inspector, authorises the entry and exercise of the inspector’s powers under this chapter. (7) The inspector must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if the inspector completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant. (9) A court must find that a power exercised by an inspector was not authorised by a warrant under this section if— (a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence; and (c) it is not proved that the exercise of power was authorised by a warrant under this section.

159 Search warrants—announcement before entry (1) An inspector must, before anyone enters premises under a search warrant— (a) announce that the inspector is authorised to enter the premises; and

(b) give anyone at the premises an opportunity to allow entry to the (c) if a person in charge of the premises, or someone else who apparently represents the person, is present at the premises— identify himself or herself to the person. (2) The inspector is not required to comply with subsection (1) if the inspector believes, on reasonable grounds, that immediate entry to the premises is required to ensure— (a) the safety of anyone (including the inspector or any person assisting); or (b) that the effective execution of the warrant is not frustrated.

160 Details of search warrant to be given to person in charge etc If a person in charge of the premises, or someone else who apparently warrant is being executed, the inspector or a person assisting must make available to the person— (a) a copy of the warrant; and (b) a document setting out the rights and obligations of the person.

161 Person in charge entitled to be present during search etc (1) If a person in charge of premises, or someone else who apparently warrant is being executed, the person in charge or the other person is entitled to observe the search being conducted. (2) However, the person is not entitled to observe the search if— (a) to do so would impede the search; or

(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time.

162 Moving things to another place for examination or processing (1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if— (a) both of the following apply: (i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates; (ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or (b) a person in charge of the premises agrees in writing. (2) The thing may be moved to another place for examination or processing for no longer than 72 hours. (3) An inspector may apply to a magistrate for an extension of time if the inspector believes, on reasonable grounds, that the thing cannot be examined or processed within 72 hours. (4) The inspector must give notice of the application to a person in charge of the premises, and the person is entitled to be heard on the application.

(5) If a thing is moved to another place under this section, the inspector must, if practicable— (a) tell a person in charge of the premises the address of the place where, and time when, the examination or processing will be carried out; and (b) allow the person or the person’s representative to be present during the examination or processing. (6) The provisions of this chapter relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

163 Use of electronic equipment at premises (1) An inspector or a person assisting may operate electronic equipment at premises entered under a search warrant to access data (including data not held at the premises) if the inspector or person believes, on (a) the data might be something to which the warrant relates; and (b) the equipment can be operated without damaging the data. (2) If the inspector or person assisting believes, on reasonable grounds, that any data accessed by operating the electronic equipment might be something to which the warrant relates, the inspector or person may— (a) copy the data to a data storage device brought to the premises; or (b) if a person in charge of the premises agrees in writing—copy the data to a data storage device at the premises. (3) The inspector or person assisting may take the device from the

(4) The inspector or person assisting may do the following things if the inspector or person finds that anything to which the warrant relates (the material) is accessible using the equipment: (a) seize the equipment and any data storage device; (b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents produced. (5) An inspector may seize equipment under subsection (4) (a) only if— (a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in subsection (4) (b); or (b) possession of the equipment by a person in charge of the premises or someone else could be an offence.