Dangerous Substances (General) Regulation 2004

“Ensure” is defined in section 6. A requirement to ensure that something is or is not done in relation to a dangerous substance is satisfied if the person takes reasonable steps to eliminate the hazards and eliminate or minimise the risks that might result if the requirement were not met. This is a relative, not absolute, standard; subsection (3) provides that it does not limit the ways in which the requirement may be satisfied. The Act defines “hazard”, “risk” and “reasonable steps” and those definitions apply.

“Asbestos containing material (ACM)” for Chapter 3 takes its meaning from the Work Health and Safety Regulation 2011 dictionary (section 301). The object of Chapter 3 is to protect people against the risk of asbestos-related disease from exposure to airborne asbestos fibres (section 300). Part 3.5 introduces several specialised concepts: “affected residential premises” (premises with loose-fill asbestos insulation, as defined in the Act), “approved warning sign” and “approved display case” (approved by the Minister by notifiable instrument under section 339), “contamination management plan” (a plan within the asbestos contamination report advising how contamination should be managed, section 341(1)(c)), and “living areas” (all internal areas except roof space, wall cavity, sub-floor area, and unattached structures, section 338).

“Security sensitive substance” is prescribed by section 400 as a substance listed in Schedule 4 table 4.1. At present, only one item appears: security sensitive ammonium nitrate, with specified UN numbers (1942, 2067, 2068, 2069, 2070, 2071, 2072, 3375) and including ammonium nitrate emulsions or mixtures containing greater than 45% ammonium nitrate, but excluding ammonium nitrate solutions and any form that is an explosive (section 4.1 of Schedule 4). Section 401 declares that a security sensitive substance is a “controlled dangerous substance” for the Act, triggering additional controls.

The regime pivots on the “security cleared responsible person” defined in section 402. To qualify, a person must be a responsible person for the substance (as defined in Act section 18), be an adult, have no adverse security assessment or qualified security assessment in relation to themselves or a close associate, and have not been convicted or found guilty in the previous five years of an offence involving a dangerous substance, a firearm, actual or threatened violence, or fraud or dishonesty. “Unsupervised access” means access when not under the supervision of a licence holder or a security cleared responsible person (section 402).

“Security plan” is defined as a plan in the form required to be included in an application for a licence, as amended from time to time under Chapter 4. It must be based on a security risk assessment (a written assessment identifying and assessing external and internal security risks associated with handling the substance). Each licence type requires a security plan with specific content: for manufacturing (section 410), carrying (section 428) and storing (section 436). Security plans must be reviewed and amended as necessary, at least once every five years (sections 412, 430, 438).

“Incident of theft or loss” is defined in section 403(3) to include the theft or loss of a security sensitive substance from premises, a break-in at premises, or an attempt at either. This triggers an immediate duty to report.

The Regulation imposes obligations on a range of persons involved in the handling of asbestos and security sensitive substances within the Australian Capital Territory.

For asbestos, the key affected persons are licensed asbestos removalists and licensed asbestos assessors. A licensed asbestos removalist is required to prepare an asbestos removal control plan for any licensed removal work (section 313), keep it available, and, if a notifiable incident occurs, retain it for at least two years (section 314). That removalist must also be licensed specifically to remove the asbestos or ACM (section 312). Owners of affected residential premises (those with loose-fill asbestos insulation) are required to display approved warning signs (section 340) and ensure that work required under a contamination management plan is done within six months after the inspection date (section 342(1)). They must also display the current asbestos contamination report in an approved display case (section 342(3)). Occupiers and other persons at affected residential premises are prohibited from tampering with sealing, locking or cleaning work, warning signs, or display cases (section 342A). Licensed asbestos assessors must give copies of contamination reports to the regulator and the owner (section 343). Licensed asbestos removalists who perform the required work must certify completion and give the certification to the regulator, owner and occupier (section 344).

For security sensitive substances, the Regulation primarily affects persons who manufacture, import, carry, store, supply, use or dispose of security sensitive ammonium nitrate within the ACT. Each such activity requires a licence, so the persons affected are licence applicants and licence holders (individuals and corporations). Sections 407, 415, 423, 424, 433, 441, 450 and 458 specify who is authorised to perform each activity, including employees or contractors engaged under the supervision of a licence holder. Responsible persons (as defined in Act section 18) are subject to the general duty to report loss or theft (section 403). Corporations must provide their ACN in licence applications. The work health and safety commissioner is the decision-maker for licences, security plan reviews, route and time restrictions, and exemptions. ASIO may provide security assessments that affect suitability. Police officers and inspectors exercising functions under the Act are exempt from certain carrying and use provisions (sections 422(2), 449(2), 457(2)).

The review of decisions under Chapter 5 and Schedule 5 applies to any person who is the subject of an internally reviewable or reviewable decision, such as refusal to issue a licence, imposition of a licence condition, suspension or cancellation of a licence, or refusal to end an enforceable undertaking. Affected persons include licence applicants, licensees, former licensees, owners of affected residential premises, and responsible persons given improvement or prohibition notices.

The Regulation imposes numerous specific duties, many enforceable as strict liability offences, and provides corresponding rights of review.

Asbestos duties. A person must not remove asbestos or ACM from premises unless they are a licensed asbestos removalist licensed to remove that asbestos (section 312). The removalist must prepare an asbestos removal control plan containing details of the removal method, tools, equipment and personal protective equipment, as well as the location, type and condition of the asbestos (section 313). The plan must be given to the person who commissioned the work (section 313(3)). The removalist must keep the plan until the work is completed, or for two years after a notifiable incident, and ensure it is readily accessible to the commissioning person and, for residential premises, the occupants, and available for inspection (section 314). Owners of affected residential premises must ensure an approved warning sign is displayed in the manner approved by the Minister (section 340). They must also ensure that work required under the contamination management plan (sealing, locking or cleaning living areas) is carried out within six months of inspection, that additional warning signs are installed, and that a readable copy of the current contamination report is displayed in an approved display case (section 342). A person at affected residential premises must not tamper with sealing/locking/cleaning work, warning signs, or display cases (section 342A). Licensed asbestos assessors must give copies of contamination reports to the regulator and owner (section 343). Licensed asbestos removalists who do the required work must certify completion to the regulator, owner and occupier (section 344).

Security sensitive substance duties. A responsible person who becomes aware of an incident of theft or loss must immediately tell the work health and safety commissioner and a police officer, and as soon as practicable give a written report with details of the kind and amount lost or stolen (section 403). Licence holders for each activity must comply with mandatory conditions set out in the Regulation. For example, a manufacturing licensee must ensure the substance is manufactured only for the stated purpose, implement the security plan, make the plan available for inspection at each premises, ensure only security cleared responsible persons have unsupervised access, apply to amend the licence for changes in security cleared responsible persons, and comply with all obligations under Part 4.4 (section 411). Similar conditions apply to import, carrying, storage, supply and user licences (sections 418, 429, 437, 444, 453). A person must not discard a security sensitive substance (section 460); the method of disposal must provide the greatest degree of security possible and be appropriate to the substance (section 461). An inspector may direct a particular disposal method, and that direction must be complied with (section 462). Supply is restricted to persons authorised to receive the substance who show their licence or a certified copy and identification papers (section 445). False or misleading statements about authority to supply security sensitive substances to the public, made in trade or commerce, are offences (section 447).

Record-keeping duties. Detailed records must be kept for manufacture (section 413), import (section 420), storage (section 439), supply (section 446), use (section 455) and disposal (section 463). Retention periods are generally three years from the date of manufacture, import, use or disposal, but supply records must be kept for five years (section 446(3)). Offences for failing to keep records are strict liability with a maximum penalty of 20 penalty units.

Rights. Persons affected by decisions made under the Act and the Regulation have rights to internal review and ACAT review as prescribed in Chapter 5 and Schedule 5. For example, an applicant may seek review of a refusal to issue a licence (Schedule 5 part 5.1 item 2), a licensee may seek review of the imposition of a licence condition (item 3) or suspension/cancellation (item 7), and an owner of affected residential premises may seek internal review of a decision to state an expiry date of less than two years for an asbestos contamination report (Schedule 5 part 5.2 item 1). The Regulation also prescribes who may apply for review (sections 502, 503).

The Regulation creates numerous criminal offences, most of which are strict liability (meaning the prosecution does not need to prove fault; the defence of honest and reasonable mistake may still be available). Penalties are expressed in penalty units. At the republication date (22 June 2023), the value of a penalty unit is $160 for an individual and $810 for a corporation, as determined by the Legislation Act 2001, section 133.

Asbestos offences. A person who removes asbestos or ACM from premises without being a licensed removalist faces a maximum penalty of 30 penalty units ($4,800 individual; $24,300 corporation) - section 312(1). Failure to prepare an asbestos removal control plan (section 313(1)) also carries 30 penalty units. Failure to give a copy of the plan to the commissioning person (section 313(3)) is 24 penalty units. Similar penalties apply to failures to keep the plan and make it available (section 314). An owner who fails to display an approved warning sign (section 340) is liable to 30 penalty units.

Security sensitive substance offences. Discarding a security sensitive substance (section 460) attracts a maximum of 30 penalty units. Engaging someone else to carry a security sensitive substance without proper authorisation (section 425) also carries 30 penalty units. The reporting duty for loss or theft (section 403) is a strict liability offence with 30 penalty units. False or misleading statements about authority to supply (section 447) carry 30 penalty units and require recklessness about the falsity or misleading nature; absolute liability applies to the element that the statement is made in the course of trade or commerce. Record-keeping breaches (sections 413, 420, 439, 446, 455, 463) are each strict liability offences with 20 penalty units.

Enforcement mechanisms. The Act provides for enforcement tools that apply to contraventions of the Regulation. These include improvement notices (Act section 100), prohibition notices (Act section 109), compliance agreements, enforceable undertakings, and safety undertakings. Schedule 5 part 5.2 lists decisions to give, revoke, extend or refuse to revoke improvement and prohibition notices as internally reviewable decisions. The work health and safety commissioner may also impose conditions on licences, amend, suspend or cancel licences, and disqualify former licensees (Schedule 5 part 5.1 items 7-9). Immediate suspension of a licence is possible (Act section 69(2); Schedule 5 part 5.1 item 9). The Criminal Code 2002 (ACT) Chapter 2 applies to all offences against the Regulation (section 7), setting out general principles of criminal responsibility including burdens of proof and defences.

The Regulation operates as a subordinate instrument under the Dangerous Substances Act 2004 (the Act). It fills out the Act’s framework by prescribing substances, licence application details, mandatory licence conditions, record-keeping requirements, and reviewable decisions.

It interacts heavily with the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011. The definition of “asbestos containing material (ACM)” in Chapter 3 is cross-referenced to the Work Health and Safety Regulation 2011 dictionary (section 301). The term “asbestos-related work” is similarly defined in that dictionary. Part 3.3 of the Regulation applies only when premises are not a “workplace” as defined by the Work Health and Safety Act 2011, section 8 (section 311(3)). This means that asbestos removal at workplaces is regulated under the work health and safety regime, not under this Regulation. The work health and safety commissioner is the regulator for both the Dangerous Substances Act and the Work Health and Safety Act, and many references in the Regulation are to that commissioner.

The Regulation incorporates the ADG Code (Australian Code for the Transport of Dangerous Goods by Road and Rail) for the meaning of UN numbers (Schedule 4, section 4.1(4)). The Australian Security Intelligence Organisation Act 1979 (Cwlth) is referenced for the definitions of “adverse security assessment” and “qualified security assessment” (section 402; dictionary). The Criminal Code 2002 (ACT) applies to all offences (section 7). The Legislation Act 2001 governs the making of notifiable instruments (section 339), disallowable instruments (section 431), and the value of penalty units. The ACT Civil and Administrative Tribunal Act 2008 provides the forum for review of reviewable decisions.

Chapter 2 of the Regulation (dealing with general dangerous substances such as flammable liquids, corrosives, etc.) was entirely omitted by the Work Health and Safety Legislation Amendment Act 2018 (A2018-8). Those matters are now covered by the Work Health and Safety Regulation 2011. The dictionary of the Regulation has been progressively stripped of definitions that were relevant only to the deleted Chapter 2.

The Regulation was originally notified on 14 December 2004 as SL2004-56 and commenced in stages: some provisions on 15 December 2004, the remainder (including Chapter 4 on security sensitive substances) on 31 March 2005 and 30 June 2005. It has been amended numerous times.

Key amendments include:

• SL2007-23 and SL2007-38 (minor amendments to asbestos provisions).
• A2008-37 substituted Chapter 5 to refer to the then-new ACT Civil and Administrative Tribunal.
• A2009-28 and A2009-34 made consequential amendments for work safety and dangerous goods transport legislation.
• A2011-10 amended dictionary definitions.
• A2011-22 changed references from “chief executive” to “director-general” and then to “work health and safety commissioner”.
• A2011-55 made consequential amendments for the Work Health and Safety Act 2011.
• A2014-53 (asbestos safety reform) substituted Chapter 3 headings and definitions, and omitted former Part 3.4.
• SL2014-19 inserted Part 3.5 (asbestos management - residential premises).
• SL2014-32 inserted Part 3.3 (asbestos management - non-workplace premises).
• A2015-6 and A2015-42 made further asbestos eradication amendments.
• SL2015-10 and SL2015-13 inserted sections 341-344.
• A2018-8 was the most significant amendment: it omitted the entire Chapter 2 (general dangerous substances) and its associated schedules 1-3, and made consequential dictionary deletions. This reduced the Regulation to asbestos and security sensitive substances only.
• A2019-38 updated references to “work health and safety commissioner”.
• A2020-20 substantially rewrote Part 3.5, replacing provisions on asbestos contamination reports and inserting sections 342A and new definitions (approved display case). It also updated Schedule 5.
• A2023-20 (Planning and Environment Legislation Amendment Act 2023) made a minor dictionary amendment effective 22 June 2023, which is the republication date.

The endnotes show 31 republications, reflecting the frequency of amendment.

The text of the Regulation as provided does not cite any decided cases. No judicial decisions are mentioned in the body of the law or its notes. This is typical for a subordinate regulation that is heavily administrative. The Regulation’s interaction with the Act may have been considered in ACT courts and tribunals, but the provided source does not refer to any such proceedings. The reviewable decisions listed in Schedule 5 indicate the types of decisions that may be litigated: refusals to issue or amend licences, imposition of conditions, suspension or cancellation of licences, and various notice decisions. The ACT Civil and Administrative Tribunal would be the primary forum. Without further information from the source, no specific litigation history can be described.

Several provisions in the Regulation contain traps for the unwary practitioner.

Strict liability is the default. Many offences are expressly stated to be strict liability (sections 312(2), 313(4), 314(4), 403(2), 413(4), 420(3), 425(3), 439(4), 446(4), 454(3), 455(4), 460(2), 463(4)). This means the prosecution does not need to prove fault (intention, recklessness, negligence) for the physical elements. The defence of honest and reasonable mistake of fact may still be available, but it is an evidentiary burden on the accused. For example, a licensee who fails to keep a required record for three years commits an offence regardless of whether they knew the retention period.

“Ensure” is not absolute. Section 6 defines a requirement to “ensure” something as satisfied by taking reasonable steps to eliminate hazards and eliminate or minimise risks. This is a due diligence defence, but the person must show they took all reasonable steps in the circumstances. Reliance on this provision requires proactive risk management.

Security plans must be reviewed every five years, not just prepared once. Sections 412, 430 and 438 require the holder of a manufacturing, carrying or storage licence to review the security plan at least once every five years and amend it whenever necessary. Failure to do so could lead to non-compliance with licence conditions and potential prosecution under Act section 63.

Record-keeping periods vary. The general retention period is three years (manufacture, import, storage, use, disposal), but supply records must be kept for five years (section 446(3)). Storage records must be kept from the day the substance is stored until at least three years after removal (section 439(3)). Missing a deadline by even a day is an offence.

No discarding of security sensitive substances. Section 460 creates an absolute prohibition: “A person must not discard a security sensitive substance.” The examples include throwing away the substance or dumping it in a waterway. The only lawful disposal is through an authorised method under an existing licence, and the method must provide the greatest degree of security possible (section 461). An inspector may direct a particular method, and that direction overrides the general rules (section 462).

Supply only to authorised persons - strict conditions. Section 445 requires that the recipient not only be authorised under a licence but also show the supplier the licence or a certified copy and identification papers. The supplier must record the licence details (section 446(2)(e)) plus the signature of the person taking delivery. Failure to verify both authorisation and identity before supply could result in a breach of licence conditions and an offence.

Asbestos removal control plan must be kept after a notifiable incident. Section 314(2) imposes a two-year retention period if a notifiable incident occurs in connection with the asbestos removal work. Many removalists might discard the plan after the job is finished, but the two-year clock starts from the incident, not from completion.

Tampering with asbestos signs or seals. Section 342A makes it an offence for any person at affected residential premises to tamper or attempt to tamper with sealing/locking/cleaning work, approved warning signs, or display cases. This applies broadly to occupants and visitors, not just owners.

Import notice timing. Section 419 requires written notice of intention to import a security sensitive substance no later than two business days before the substance arrives in the ACT. The notice must include detailed information, including the transporter’s details. Missing this deadline could lead to the import being unauthorised.

Compliance with the Regulation requires a systematic approach tailored to the specific activity and substance.

For asbestos removal at non-workplace premises. Engage only a licensed asbestos removalist. Before work begins, ensure the removalist prepares an asbestos removal control plan containing the required details (section 313(2)). The plan must be provided to the person who commissioned the work. Keep a copy at the site until the work is completed. If a notifiable incident occurs (e.g., an uncontrolled release of asbestos fibres), retain the plan for at least two years after the incident. Ensure the plan is readily accessible to the occupiers and available for inspection by the regulator.

For owners of affected residential premises with loose-fill asbestos insulation. Obtain an asbestos contamination report from a licensed asbestos assessor. The report must include identification of contamination in living areas, risk assessment, and a contamination management plan. Within six months of the inspection date, have a licensed asbestos removalist carry out any sealing, locking or cleaning work identified in the plan and install all additional approved warning signs. Display an approved warning sign in the manner and places approved by the Minister. Display the current contamination report in an approved display case. Do not allow any tampering with the protective works or signs. If the report is less than two years old but the expiry date is shorter, that decision is internally reviewable.

For handling security sensitive ammonium nitrate. First, determine which activity (manufacture, import, carry, store, supply, use, dispose) applies. Each requires a separate licence from the work health and safety commissioner. Applications must include identification papers for individuals, ACN for corporations, purpose, premises addresses, and (for manufacturing, carrying and storage) a security plan based on a security risk assessment. Security plans must address specific content: for manufacturing, production process details, ingredient sources, recording and reconciliation protocols, and loss/theft reporting procedures (section 410); for carrying, security precautions for the journey, route planning, and reconciliation protocols (section 428); for storage, premises security, access controls, and reconciliation (section 436). Once licensed, implement the security plan immediately. Review the plan at least every five years and amend it whenever necessary. Maintain records as required (three years generally, five years for supply). Ensure only security cleared responsible persons have unsupervised access. Report any theft, loss or break-in to the work health and safety commissioner and a police officer without delay, followed by a written report. For import, give the commissioner written notice at least two business days before arrival. For supply, verify the recipient holds an appropriate licence and show identification; keep records of supply for five years. Never discard a security sensitive substance; dispose only through an authorised method, preferably in accordance with an inspector’s instructions. If an inspector gives disposal directions, comply.

General compliance steps. Keep copies of all licences, security plans, records and reports. Know the relevant penalty unit values (currently $160/$810) and adjust records retention schedules accordingly. If a decision is made that affects a licence or an asbestos report, check Schedule 5 to determine whether internal review or ACAT review is available and the prescribed person who may apply. Seek legal advice promptly, as strict liability offences leave limited defences.