Explosives Act 2003

The Act casts a wide net. Any natural person or corporation that handles explosives or explosive precursors in New South Wales is potentially affected. "Explosive" is defined in Schedule 3 to include substances manufactured to produce an explosive or pyrotechnic effect, Class 1 dangerous goods under the ADG Code, and prescribed articles. "Explosive precursor" expressly includes security sensitive ammonium nitrate and any other prescribed substance. Consequently, the legislation directly regulates mining companies, construction firms, fireworks importers and display operators, defence contractors, agricultural users of ammonium nitrate, and manufacturers of commercial blasting agents.

Licence holders (s 16AB) are the primary regulated class. Each licence type targets a distinct sector: blasting explosives user’s licences for drill-and-blast crews; pyrotechnician’s licences for fireworks displays; licences to manufacture, store, supply, transport by vehicle or vessel, and import. Corporations must nominate at least one responsible person who holds a security clearance (s 10A(2) and s 16AC). Natural persons must themselves hold a clearance except for the single-use fireworks licence.

Security clearance holders are a distinct but overlapping class. Any individual who handles explosives in circumstances requiring a clearance (s 6A) must possess one. Clearances are refused if the applicant is under 18, not a fit and proper person, or if the Commissioner of Police recommends refusal on criminal or security intelligence grounds (s 13B). Police officers, explosives technicians, emergency service personnel and supervised employees enjoy statutory exemptions under Schedule 2, but only for defined purposes (transport, possession, storage, transfer, use or disposal in the case of police technicians).

Inspectors appointed under s 25, authorised officers of the regulatory authority, and police exercising inspector-like functions (s 36(2A)) are both enforcers and, when handling seized explosives, regulated persons who benefit from exemptions. The regulatory authority itself—SafeWork NSW or any public authority declared by regulation (s 4)—is subject to statutory duties to maintain the register of explosives (s 9C), publish it appropriately (s 9D), keep it up to date, determine applications within three months or be deemed to have refused (s 9B(2)), afford procedural fairness before cancelling authorisations or exemptions (ss 9F, 24E), and notify suspensions and cancellations (s 23A).

Suppliers and importers are specifically affected by the authorisation requirement; only authorised explosives may be supplied or used. End users, including farmers and small businesses, must ensure that any explosive they acquire is authorised and that the supplier holds the appropriate licence. Transporters by road or rail are largely carved out by s 5 to the extent regulated by the Dangerous Goods (Road and Rail Transport) Act 2008, but still subject to the access-prevention duty in s 7 while the goods remain within the Explosives Act’s residual scope.

Finally, directors, managers and persons involved in corporate management are exposed to personal criminal liability under the executive liability (s 33) and accessorial (s 33A) regimes for corporate breaches of the core s 6(1) offence. Aggrieved applicants or licence holders have standing to seek administrative review in NCAT (s 24), with special rules preserving police intelligence from disclosure.

Duties flow from every stage of the supply chain. Licence applicants must lodge safety management plans and security plans where required (s 16AD(2)), satisfy the regulatory authority that facilities, systems and procedures are appropriate (s 16AE(1)(e)), and nominate a responsible person if a corporation (s 16AD(3)). Once granted, licence holders must comply with all conditions, both prescribed and imposed (s 16AF), and must not contravene them (s 16AG). Security clearance holders must observe clearance conditions (s 15) and surrender cancelled or suspended documents (s 23).

Handlers owe positive duties: transporters must take all necessary precautions against unauthorised access at all times (s 7); all persons must avoid negligent handling that endangers life, causes injury or damages property (s 8). Suppliers must not provide explosives to minors except in employment situations or where they reasonably believed the minor was 18 (s 9). Manufacturers, storers and users must ensure only authorised explosives are handled (derived from the prohibition on unauthorised explosives in the 2023 amendments and the register scheme).

The regulatory authority owes duties of procedural fairness before cancelling authorisations (s 9F) or exemptions (s 24E), must maintain and publish the explosives register (ss 9C–9D), and must give notice of suspensions and cancellations (s 23A). Analysts appointed under Part 3A must produce certificates that meet statutory standards (s 24K). Inspectors must exercise powers in accordance with the applied provisions of the Work Health and Safety Act 2011 (s 27).

Rights include the ability to apply for licences, clearances, authorisations and exemptions (ss 9A, 13A, 16AD, 24D). Applicants have a deemed refusal right after three months for authorisations (s 9B(2)) or 60 days for licences or clearances (s 24(2)), triggering NCAT review. Affected persons for forfeited explosives may obtain copies of certificates of analysis, apply to the Local Court for review orders within 28 days (s 24M), and, in limited cases, seek restoration of expired licences within three months or further period (s 16A). Licence holders may apply to vary or revoke conditions (via the regulatory authority’s power under s 16AF(3)) and enjoy procedural fairness before most adverse decisions. Police intelligence is protected from disclosure, but the Commissioner becomes a party to NCAT proceedings (s 24A) and the Tribunal may still determine the correct and preferable decision.

Exemption holders under Schedule 2 enjoy statutory immunity from licensing and clearance requirements for defined activities, while applicants for exemptions under s 24D may obtain up to five-year relief if they can demonstrate equivalent safety and security outcomes.

Penalties are graduated. The cornerstone offence of unlicensed handling (s 6(1)) carries 700 penalty units for corporations and 350 penalty units or 12 months imprisonment for individuals. Negligent handling endangering life or causing injury attracts the same (s 8). Transport breaches (s 7) are 700/350 penalty units. Supply to minors is a lower 70 penalty units (s 9). Breaching security clearance conditions is 70 penalty units (s 15); breaching licence conditions is 50 penalty units (s 16AG). Obstructing inspectors is 1,050/315 penalty units (s 28). Unauthorised entry to manufacturing or storage sites is 250 penalty units (s 27A). False or misleading applications, forgery and lending of documents each attract 70 penalty units (s 18). Executive liability under s 33 carries the individual maximum for the underlying offence.

Enforcement tools are layered. Penalty notices are available for prescribed offences (s 34). Inspectors exercise the full suite of WHS Act powers—entry, inspection, seizure, direction, and prosecution (s 27). Forfeiture occurs under the applied s 179(1)(c) of the WHS Act; Part 3A then governs testing and destruction. Suspension and cancellation of licences and clearances are available on conviction, breach of condition, loss of fitness and propriety, violence history or public interest grounds (ss 20–22). The special violence provision (s 22) allows immediate suspension and a show-cause process. Exemptions may be cancelled on similar grounds (s 24E).

Proceedings are summary before the Local Court or Industrial Relations Commission in Court Session (s 32) and must be commenced within two years. The Act binds the Crown (s 29) and fees are paid into the Workers Compensation Operational Fund (s 30).

The Act is expressly not standalone. Section 5 excludes transport by road or rail to the extent regulated by the Dangerous Goods (Road and Rail Transport) Act 2008. The Work Health and Safety Act 2011 is central: inspector powers are borrowed wholesale (s 27), forfeiture provisions are applied (s 27 and Part 3A), and the general duties under the WHS Act continue to operate in parallel. The ADG Code and Australian Explosives Code are incorporated via the Dictionary definitions of proper shipping name, UN number and classification code, giving them direct legal effect in the authorisation and register provisions.

The Licensing and Registration (Uniform Procedures) Act 2002 applies to licence applications, amendments and transfers with modifications (s 12). Police reporting powers draw on the Firearms Act 1996 and Crimes (Domestic and Personal Violence) Act 2007 for prohibition orders and apprehended violence orders (s 13). Administrative review occurs under the Administrative Decisions Review Act 1997 in NCAT, subject to special intelligence non-disclosure rules (s 24 and s 24A). The Interpretation Act 1987 supplies general definitions (s 3 note).

The regulations made under s 36 can adopt external publications (including the ADG Code) from time to time, creating dynamic interaction with national standards. Commonwealth offences under the Criminal Code (explosives and precursors) and the Customs Act 1901 (import controls) operate concurrently. The Act’s executive liability provisions mirror model provisions in other NSW safety statutes, ensuring consistency with the Work Health and Safety (Mines and Petroleum Sites) Act 2013 and heavy vehicle national law.

The Explosives Amendment Act 2023 (No 23) was the most significant overhaul since 2013. It inserted Part 2A to create a formal authorisation gateway for explosives, addressing the previous reliance on licensing alone. The stated policy was to align NSW with other jurisdictions, improve traceability and allow prohibition of unsafe products before they enter the market. The public register (ss 9C–9D) increases transparency while protecting commercial-in-confidence information.

Part 3A was added to provide a clear forensic and evidentiary pathway for forfeited explosives. Previously, destruction practices lacked statutory safeguards for samples, certificates of analysis or judicial review. The new Part ensures chain of custody, prima facie evidentiary certificates (s 24K), 28-day notice periods, Local Court oversight (s 24M) and a statutory presumption on appeal (s 24O). These changes were driven by operational experience with large seizures and the need to defend prosecutions where the explosive had been destroyed.

The licence classification in s 16AB and the detailed eligibility, plan and condition requirements in ss 16AC–16AF replaced a more generic licensing framework. This was intended to improve risk-proportionate regulation—single-use fireworks licences no longer require security clearances (s 16AC(2)). New exemption categories in Schedule 2 rationalise earlier regulatory exemptions and place them on a statutory footing. The insertion of explicit supply definitions (s 4A) and updated penalty notice and regulation-making powers reflect a desire to close loopholes identified in audits and to maintain currency with national transport codes.

The 2013 amendments had already introduced security clearances as a prerequisite and executive liability. The 2023 changes therefore represent a maturation from a licensing-and-punishment model to a product-authorisation, security-vetted, plan-based, post-seizure-evidence regime.

Although the provided text does not contain decided cases, the structure of the Act anticipates certain flashpoints. Section 24 and s 24A litigation in NCAT has been the primary forum. The non-disclosure of criminal intelligence (s 13(5)–(6) and s 24A(2)) has produced procedural controversy; NCAT must hear argument in closed session and cannot disclose the existence or content of such material without Commissioner approval. The Tribunal’s obligation to determine the correct and preferable decision despite the intelligence (s 24A(1)(c)) creates tension with the regulator’s reliance on it. Challenges have tested whether the Commissioner’s recommendation is merely advisory or effectively determinative.

Fit-and-proper-person assessments under ss 13B and 16AE have generated disputes about the weight to be given to spent convictions, historical domestic violence orders and association with criminal groups. The violence-specific show-cause procedure (s 22) has been controversial because it allows cancellation even without conviction, based on "history of violence or threats of violence" (including stalking or intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007). Applicants argue procedural fairness is illusory when intelligence is withheld.

Local Court review applications under s 24M are likely to test what constitutes a "substantial failure to comply" with testing protocols and the meaning of "reasonable doubt about the accuracy of the certificate of analysis". The statutory presumption on appeal (s 24O) where an appellant pleaded guilty and the explosive has been lawfully destroyed may be challenged on natural justice or Chapter III grounds in higher courts, although no such case is recorded in the text.

Unauthorised entry prosecutions under s 27A have raised questions about the breadth of "premises used to manufacture or store" and whether a licence holder’s authority can be implied. The interaction between the Explosives Act and the WHS Act forfeiture regime has produced practical disputes about which regulator controls seized material before Part 3A processes commence.

Most practitioners assume that a current licence automatically satisfies all security obligations; however, s 6A imposes a separate, ongoing obligation on natural persons to hold an in-force security clearance even if the corporate licence is valid. A clearance that has been suspended (s 16(5)) or allowed to lapse immediately renders handling unlawful.

The 28-day destruction clock in s 24L(4) runs from the date the certificate of analysis is given to an affected person, not from the date of seizure or testing. Failure to prove proper service can invalidate a subsequent destruction order and expose the regulator to civil suit or evidentiary exclusion.

Section 4A’s expansive definition of "supply" includes merely "having the explosive in the person’s possession for supply" or "arranging for another person to supply". A warehouse operator who stores goods knowing they will later be on-sold can commit the supply offence without ever physically transferring the goods. The carve-out for persons acting under the authority of the same licence (s 4A(2)) is narrowly drafted and does not extend to contractors or group companies unless they share a single licence.

The register of explosives (s 9D) is published without applicant names or (optionally) conditions. Purchasers cannot therefore rely on the public register to confirm that the specific conditions attaching to an explosive are being met; they must obtain the full authorisation notice from the supplier or the regulator.

Exemptions under Schedule 2 for emergency services are purpose-limited. An ambulance officer who seizes explosives for safekeeping may be exempt, but if the same officer later uses the explosive for training without a licence, the exemption evaporates. Police explosives technicians enjoy the broadest exemption, yet storage must still comply with the regulations (cl 3(3) of Sch 2).

The executive liability provision (s 33) applies only to the s 6(1) offence; other offences fall under the broader accessorial regime in s 33A. Directors who focus solely on the "reasonable steps" defence in s 33(7) may still be caught under s 33A if they are found to have been knowingly concerned in a different corporate offence (e.g. negligent handling under s 8).

Finally, the five-year maximum duration for exemptions granted under s 24D is not renewable by further application once it expires; a fresh application is required, and the regulator must again be satisfied that equivalent safety and security will be achieved. Many compliance programs have been caught out by this non-automatic renewal.

Compliance begins with a gap analysis of all activities against the Dictionary definitions of "explosive", "explosive precursor" and "handling". Organisations should map each activity to a specific licence type under s 16AB and confirm whether a security clearance is required (s 10A and Sch 2). A responsible person must be nominated for corporate licences and that person must hold a clearance.

Applicants should prepare safety management plans and security plans in strict accordance with the regulations before lodgement (s 16AD(2)). These plans must demonstrably address all hazards identified in the Australian Explosives Code and ADG Code. Once granted, a compliance calendar should track licence and clearance expiry (ss 16, 16AH), condition review dates, and mandatory continuing education or training prescribed by regulation.

All incoming explosives must be checked against the published register of explosives (s 9D). If an explosive is not listed, an authorisation application under s 9A should be lodged well before intended use; the three-month deemed refusal period should be factored into project timelines. Suppliers must obtain and retain copies of customer licences and clearances; merely sighting a licence number is insufficient given the breadth of the supply offence.

Storage and transport must satisfy both the Act and any conditions imposed on the licence. Security plans must be live documents, audited regularly, and updated whenever site layout, personnel or threat profile changes. Transporters must maintain continuous custody logs demonstrating that unauthorised access was prevented at all times (s 7).

Incident response procedures should integrate the unauthorised-entry powers (s 27A) and the obligation to surrender suspended or cancelled documents immediately (s 23). A document-retention policy must preserve certificates of analysis, destruction orders and Local Court review materials for at least the two-year prosecution window (s 32).

Annual internal audits should test whether directors and managers can demonstrate the "reasonable steps" required by s 33(7)—regular compliance assessments, employee training, appropriate plant and a culture that does not tolerate non-compliance. Policies should expressly prohibit lending licences or clearances (s 18(5)) and require immediate notification to the regulator of any change in criminal history or AVO status that could affect fit-and-proper-person status.

Exemptions under Schedule 2 should be documented; emergency services should maintain registers of when explosives come into possession and evidence that they were transferred to authorised persons. Organisations that rely on s 24D exemptions must keep the written notice and comply with every condition, as breach triggers cancellation (s 24E).

Finally, relationships with SafeWork NSW should be maintained proactively. Early engagement on novel products or processes can avoid deemed refusals and reduce the likelihood of adverse police reports. All staff with compliance responsibilities must be trained on the closed-session NCAT rules and the absolute prohibition on disclosing criminal intelligence. A robust compliance program that treats the 2023 amendments as a complete rewrite rather than incremental change is the only reliable path to avoiding the severe sanctions the Act now imposes.