The Act contains specific provisions and structural features that create potential pitfalls for regulated parties and for advisers. These are practical, source-grounded risks and compliance traps to watch for.
Broad definition of handling captures many functions (s 5). The statutory definition includes activities beyond manufacturing and storage , it includes marking, labelling, training, design and even keeping explosives "for sale". Parties that provide ancillary services such as packaging, labelling, maintenance of handling systems, or training can be within scope. The common mistaken assumption that only manufacturing or storage is regulated is dangerous given s 5’s breadth.
Transport is largely excluded, but with nuances (s 5(2); s 6(3)-(4)). Ordinary road or rail transport is not "handling" except where transport by pipeline is involved (s 5(2)). However, premises where explosives are delivered and kept in unopened containers for up to five consecutive days are treated as "in transit" and thus excluded from the Act only under narrow conditions (s 6(3)-(4)). If goods are unpacked, used or kept for longer than five days, the occupier may suddenly fall within the Act. Practitioners should not assume transport providers or warehouses are always outside the Act.
Strict record and documentation obligations have operational implications (ss 16(c), 16(g), 27, 29). Occupiers must document how they have complied with duties, maintain a detailed explosives inventory including maximum containment capacity and prescribed information, and keep records of dangerous situations for the life of the operations. Failure to keep or make records available is an offence with fixed penalties (s 29). The "document or be able to demonstrate" standard in s 16(c) can expose occupiers who have undocumented practices.
Regulatory and code-based safe harbours are prescriptive and compulsory where present (s 14). If regulations prescribe a way to achieve acceptable risk, a person may discharge the safety obligation only by following the prescribed way (s 14(1)). Similarly, where an approved code states a way to achieve acceptable risk, following it or an equivalent alternative is required (s 14(3)). This eliminates flexibility where the legislature or regulator has chosen a prescriptive route.
Self-incrimination rules require procedural care (s 41). While s 41(1) states that persons are not excused from providing information on self-incrimination grounds, s 41(2) preserves a limited use immunity in subsequent proceedings, but only where the person claimed before giving the information that it might incriminate them and their entitlement to claim was drawn to their attention. Failure by an authorised officer to draw attention to the entitlement could affect admissibility, but conversely failure by a person to make the claim may leave their answers admissible. Practitioners must advise clients on how to assert the protection properly.
Authorised officers have wide emergency powers, including warrantless entry in emergencies (s 35(4)) and power to take urgent action themselves (s 57). Authorised officers can enter premises without warrant where they believe an explosives emergency exists and may take necessary action to prevent serious harm, including engaging external qualified help whose acts are treated as having authorised officer powers (s 57(2)-(6)). This can lead to immediate operational disruption and cost exposure, with the Crown able to recover reasonable costs from responsible persons (s 58).
Costs for audits, recalls and analyses are borne by regulated persons (ss 51(4), 52(4), 53(2)). The Act expressly disclaims Crown liability for recall and audit costs ordered under the Act. Further, the Crown can recover costs incurred in taking urgent action. Businesses should budget for the possibility of regulator-ordered recalls, audits and analyses.
Short limitation period for prosecutions (s 59). Proceedings must be commenced within 12 months of the alleged offence. This is short relative to many other regulatory offences and may compress investigative timelines. However, the short limitation does not limit the regulator’s ability to issue directions or to seek civil recovery for Crown costs.
Potential for multiple overlapping obligations and triple regulation. The Act is "in addition to" other safety laws (s 8(3)) and recognises equivalence where other Acts impose at least equivalent obligations (s 8(2)). Operators in sectors regulated by overlapping regimes (dangerous goods transport, emergency management, poisons, radiation, gas) should map how compliance with one statute may or may not discharge obligations under this Act.
Evidentiary streamlining and corporate attribution (s 62; ss 63-64). Secretary certificates and analyst reports are admissible as evidence, and bodies corporate expose their managers to secondary criminal liability unless managers can show due diligence or lack of knowledge (s 64). Corporations must maintain clear delegation and compliance records to defend prosecutions.
Requirement to make directions available to employees and document compliance (s 56). Not only must directions be complied with, occupiers must also inform relevant employees and allow inspection, and must document actions taken, with specific fines for non-compliance. Operationally, this creates internal transparency and record-keeping obligations.
Schedules and transitional carry-overs (Schedule 2). Appointments and certain directions under the former Dangerous Substances Act 2005 may continue. Practitioners dealing with transitional compliance should check Schedule 2 provisions and any savings regulations made under Schedule 2 cl 7.
In short, the principal "gotchas" are the breadth of the definition of handling, the prescriptive force of regulations and approved codes when they exist, the substantial documentation and systemisation requirements for occupiers, the regulator’s immediate and costly intervention powers in emergencies, and the consequence that many enforcement costs and directed corrective actions rest with regulated persons.