Part 9Miscellaneous

Part 9—Miscellaneous 79—Exemptions (1) The Regulator may, on application or on the Regulator's own initiative, exempt a person or class of persons from compliance with this Act or specified provisions of this Act. (2) An exemption is subject to conditions stated in the notice of exemption. (3) An exemption may be varied or revoked by further written notice to the holder of the exemption. (4) A person who has been exempted from compliance with this Act or specified provisions of this Act must not contravene a condition of the exemption. 80—Delegation by Minister or Regulator (1) The Minister or Regulator may delegate to a person (including a person for the time being performing particular duties or holding or acting in a particular position) a function or power under this Act (except a function or power prescribed by the regulations). (2) A delegation— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in a matter; and (d) is revocable at will. (3) A delegated function or power may, if the instrument of delegation so provides, be further delegated in accordance with that instrument. 81—Forfeiture of explosive on conviction (1) A court may, on finding a person guilty of an offence against this Act or on declaring a person charged with an offence against this Act liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935, order that an explosive in relation to which the offence was committed (and its container) and that is the property of that person be forfeited to the Crown. (2) An explosive or container forfeited to the Crown may be disposed of in such manner as the Minister may direct and, if an explosive or container is disposed of by way of sale, the proceeds of the sale will be paid into the Consolidated Account. 82—Prohibiting offender from involvement with explosives (1) A court may, on finding a person guilty of an offence against this Act or on declaring a person charged with an offence against this Act liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935, order that the person is prohibited, to a specified extent for a specified period or until further order, from involvement in a specified activity involving explosives or specified explosives. (2) A person who contravenes an order under this section is guilty of an offence. (a) in the case of an individual—$50 000 or imprisonment for 2 years, or both; 83—Adverse publicity orders (1) If a person is found guilty of an offence against this Act, the court may make an order (an adverse publicity order) in relation to the person (the offender) requiring the offender— (a) to take either or both of the following actions within the period specified in the order: (i) to publicise, in the way specified by the order, the offence, its consequences, the penalty imposed and any other related matter; (ii) to notify a specified person or specified class of person, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter; and (b) to give to the Regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order. (2) The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence. (3) The court must, in determining whether to make an adverse publicity order, take into account any material before the court relating to the effect that the taking of action or actions that the court proposes to specify in the order is likely to have on a person other than the offender. (4) If the offender fails to give evidence to the Regulator in accordance with subsection (1)(b), the Regulator, or a person authorised in writing by the Regulator, may take the action or actions specified in the order. (5) However, if— (a) the offender gives evidence to the Regulator in accordance with subsection (1)(b); and (b) despite the evidence, the Regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order, the Regulator may apply to the court for an order authorising the Regulator, or a person authorised in writing by the Regulator, to take the action or actions. (6) If the Regulator, or a person authorised in writing by the Regulator, takes an action or actions in accordance with subsection (4) or an order under subsection (5), the Regulator is entitled to recover from the offender an amount in relation to the reasonable expenses of taking the action or actions, as a debt, due to the Regulator. 84—False or misleading statements A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided, or records kept, under this Act. (a) if the person made the statement knowing that it was false or misleading— (i) in the case of an individual—$10 000; (ii) in the case of a body corporate—$50 000; (b) in any other case—$5 000. 85—Statutory declaration If information is required by or under this Act to be provided to the Minister or the Regulator, the Minister or Regulator may require that the information be verified by statutory declaration and, in that event, the information will not be taken to have been provided as required unless it has been verified in accordance with the requirements of the Minister or Regulator. 86—Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act. (2) The person must not do any of the following: (a) disclose to anyone else— (i) the information; or (ii) the contents of or information contained in the document; (b) give access to the document to anyone else; (c) use the information or document for any purpose. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document— (a) about a person, with the person's consent; or (b) that is necessary for the exercise of a power or function under this Act; or (c) that is made or given by the Regulator or a person authorised by the Regulator if the Regulator reasonably believes the disclosure, access or use— (i) is necessary for administering, or monitoring or enforcing compliance with, this Act; or (ii) is necessary for the administration or enforcement of another Act prescribed by the regulations; or (iii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or (e) that is required for the purpose of ensuring that emergency services and local government authorities are fully informed in relation to activities involving explosives; or (f) that is made or given to an agency or instrumentality of this State, the Commonwealth or another State for the purposes of the performance of its functions; or (g) that is made or given to a prescribed authority of a jurisdiction outside Australia for the purposes of the performance of its functions; or (h) that is required or authorised under a law; or (i) to a Minister. (4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless— (a) the disclosure is made with the consent of the complainant; or (b) the disclosure is required under a law. 87—Giving of notice (1) A notice required or authorised by this Act to be given to a person by the Minister, the Regulator or an authorised person may be given— (a) by delivering it personally to the person or an agent of the person; or (b) by leaving it for the person at the person's place of residence or business with someone apparently over the age of 16 years; or (c) by posting it to the person or agent of the person at the person's or agent's last known place of residence or business. (2) Without limiting subsection (1), a notice required or authorised to be given to an applicant under this Act or to a licensee under this Act may be given— (a) by posting it to the person at the address last provided to the Minister or Regulator by the person for that purpose; or (b) by transmitting it to the person by email to the email address last provided to the Minister or Regulator by the person for that purpose; or (c) in the case of a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth—in accordance with that Act. 88—General defence (1) It will be a defence in criminal proceedings in respect of an alleged contravention of this Act, including— (a) proceedings against a body corporate or an individual where conduct or a state of mind is imputed to the body or person under this Part; and (b) proceedings against an officer of a body corporate under this Part, if it is proved that the alleged contravention did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the contravention or contraventions of the same or a similar nature. (2) Without limiting subsection (1), the defence provided by that subsection includes the defence that the act or omission alleged to constitute the contravention was justified by the need to protect life, property or the environment in a situation of emergency and that the defendant was not guilty of any failure to take all reasonable and practicable measures to prevent or deal with such an emergency. (3) If a body corporate or other employer seeks to establish the defence provided by this section by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of this Act, that proof must be accompanied by proof— (a) that proper systems and procedures were also in place whereby any such contravention or risk of such contravention of this Act that came to the knowledge of a person at any level in the workforce was required to be reported promptly to the governing body of the body corporate or to the employer, or to a person or group with the right to report to the governing body or to the employer; and (b) that the governing body of the body corporate or the employer actively and effectively promoted and enforced compliance with this Act and with all such systems and procedures within all relevant areas of the workforce. (4) A person who would, but for the defence provided by this section, have contravened a provision of this Act is, despite that defence, to be taken to have contravened that provision for the purposes of the issuing or enforcement of a notice under Part 7 Division 2. 89—Notice of defences (1) A person who, in criminal proceedings, intends to rely on a defence under this Act may only do so if the person gives written notice of that intention to the Regulator. (2) The notice must be given— (a) if the proceedings are for a summary offence—within 28 days after the summons to answer the charge is served on the person; or (b) if the proceedings are for a minor indictable offence where the charge is to be dealt with in the same way as a charge of a summary offence—not less than 28 days before the date for hearing of the charge; or (c) in any other case—within 7 days after the person is committed for trial. 90—Proof of intention etc for offences Subject to any express provision in this Act to the contrary, it will not be necessary to prove any intention or other state of mind in order to establish a contravention of this Act. 91—Imputation in proceedings of conduct or state of mind of officer, employee etc (1) For the purposes of proceedings for an offence against this Act— (a) the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of their actual, usual or ostensible authority will be imputed to the body corporate; and (b) the conduct and state of mind of an employee or agent of an individual acting within the scope of their actual, usual or ostensible authority will be imputed to that individual. (2) If— (a) an individual is convicted of an offence against this Act; and (b) the person would not have been convicted of the offence but for the operation of subsection (1), the person is not liable to be punished by imprisonment for the offence. (3) For the purposes of this section, a reference to conduct or acting includes a reference to failure to act. 92—Statement of officer evidence against body corporate In proceedings for an offence against this Act by a body corporate, a statement made by an officer of the body corporate is admissible as evidence against the body corporate. 93—Liability of officers of body corporate (1) If a body corporate contravenes a provision of this Act, a person who is an officer of the body corporate is— (a) subject to the general defence under this Part, guilty of a contravention of this Act; and (b) subject to subsection (2), liable to the same penalty as may be imposed for the principal contravention when committed by an individual. (2) If an officer of a body corporate is convicted of an offence under subsection (1), the officer is not liable to be punished by imprisonment for the offence. (3) If a body corporate contravenes a provision of this Act, an officer of the body corporate who knowingly promoted or acquiesced in the contravention is also guilty of contravening that provision. (4) An officer of a body corporate may be prosecuted and convicted of an offence pursuant to subsection (1) or (3) whether or not there has been a finding by a court that the body corporate committed the contravention. 94—Continuing offences (1) If an offence against this Act is committed by a person by reason of a continuing act or omission— (a) the person is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues of not more than an amount equal to one‑fifth of the maximum penalty fixed for that offence; and (b) if the act or omission continues after the person is convicted of the offence, the person is guilty of a further offence against that provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continues after that conviction of not more than an amount equal to one‑fifth of the maximum penalty fixed for that offence. (2) For the purposes of this section, an obligation to do something is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed. 95—Commencement of proceedings for summary offences (1) Proceedings for a summary offence against this Act may only be commenced by the Regulator. (2) Proceedings for a summary offence against this Act may be commenced— (a) in the case of an expiable offence—within the time limits prescribed for expiable offences by the Criminal Procedure Act 1921; or (b) in any other case—at any time within 3 years after the date of the alleged commission of the offence or, with the authorisation of the Director of Public Prosecutions, at any later time within 6 years after the date of the alleged commission of the offence. (3) An apparently genuine document purporting to be signed by the Director of Public Prosecutions authorising the commencement of proceedings under this Act must be accepted in legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 96—Evidence (1) In proceedings, a certificate apparently executed by the Minister or the Regulator certifying as to a matter relating to— (a) an authorisation; or (b) a licence; or (c) an approval; or (d) the appointment of an authorised person or analyst; or (e) an exemption; or (f) a delegation; or (g) a notice; or (h) an application; or (i) the receipt or non‑receipt of information, under this Act constitutes proof, in the absence of proof to the contrary, of the matters so certified. (2) An allegation on an information that a specified substance or article was an explosive of a specified kind will be accepted as proved in the absence of proof to the contrary. (3) In proceedings, a certificate apparently executed by a person appointed or approved by the Regulator as an analyst for the purposes of this Act and setting out details as to an analysis carried out by or under the direction of the person and the results of the analysis constitutes proof, in the absence of proof to the contrary, of the matters so certified. 97—Recovery of administrative and technical costs associated with contraventions (1) If a person has contravened this Act and an authorised person— (a) has taken action to— (i) investigate the contravention; or (ii) issue a notice under this Part in respect of the contravention; or (iii) ensure that the person has complied with requirements imposed in relation to the contravention by a notice under Part 7 (including taking action or causing action to be taken under Part 7); or (b) has, in taking such action, incurred costs and expenses in taking samples or in conducting tests, examinations or analyses or in storing or disposing of explosives, the Regulator may, by written notice served on the person, require the person to pay to the Regulator— (c) in respect of action to investigate the contravention or to issue a notice under Part 7 in respect of the contravention—a fee fixed by, or calculated in accordance with, the regulations; or (d) in respect of action to ensure that the person has complied with requirements imposed in relation to the contravention by a notice under Part 7—the reasonable costs and expenses incurred in taking that action; or (e) in respect of costs and expenses incurred in taking samples or in conducting tests, examinations or analyses or in storing or disposing of explosives—the reasonable costs and expenses so incurred. (2) Subject to subsection (3), an amount payable to the Regulator in accordance with a notice under this section must be paid within the period specified in the notice. (3) On application by a person who has been served a notice under this section, the Regulator may, by notice in writing— (a) extend the time for payment of an amount payable in accordance with the notice; or (b) waive payment of such an amount or reduce the amount payable. (4) A person who fails to pay an amount payable to the Regulator in accordance with this section is guilty of an offence. Expiation fee: $500. (5) If a notice is issued under this section in respect of a contravention and— (a) the contravention is the subject of an appeal; or (b) the notice requires payment of an amount in respect of the issue of a notice under Part 7 and the notice is the subject of a review or appeal, the notice is suspended until the review or appeal has been determined (but if it is found that the contravention was committed or that the notice was properly issued, as the case may be, the notice will have effect as if the period for payment specified in the notice commenced on the day on which the review or appeal was determined). (6) If an amount payable to the Regulator is not paid in accordance with this section, the amount may be recovered as a debt by the Regulator. 98—Cost recovery for dealing with dangerous situations (1) In this section— agency or instrumentality of the Crown means a body corporate (other than a council) established for a public purpose by, or in accordance with, an Act; council means a council constituted under the Local Government Act 1999; government authority means— (a) an administrative unit of the Public Service; or (b) an agency or instrumentality of the Crown; or (c) a council; principal officer, in relation to a government authority, means— (a) in the case of an administrative unit of the Public Service—the chief executive of that unit; or (b) in the case of an agency or instrumentality of the Crown—the chief executive of that agency or instrumentality or a person designated by the regulations as principal officer of that agency or instrumentality; or (c) in the case of a council—the chief executive officer of that council. (2) This section applies to action taken to avert, eliminate or minimise safety risks arising from a dangerous situation. (3) If a government authority reasonably incurs costs or expenses as a result of taking action to which this section applies or causing such action to be taken, the costs or expenses are recoverable as a debt in a court of competent jurisdiction. (4) The costs or expenses may be recovered by— (a) in the case of costs or expenses incurred by a council—the council; or (b) in the case of costs or expenses incurred by an agency or instrumentality of the Crown—that agency or instrumentality, or the Crown; or (c) in any other case—the Crown. (5) If more than 1 government authority takes action to which this section applies or causes such action to be taken in relation to the same incident, the recovery of costs or expenses incurred by 1 government authority (including an award or judgment in relation to those costs or expenses) does not preclude the recovery of costs and expenses incurred by the other government authorities. (6) The costs or expenses may be recovered (jointly or severally) from— (a) the person who caused the dangerous situation (otherwise than as an employee or agent of another person); or (b) the person who was, at the time the action was taken, the owner of the explosives involved; or (c) the person who was, at the time the action was taken, in control or possession of the explosives involved. (7) For the purposes of subsection (6)— (a) an explosive in the control or possession of an employee or agent while acting in the course of employment will be taken to be in the control or possession of the employer or principal; and (b) an act or omission of an employee or agent while acting in the course of employment will be taken to be the act or omission of the employer or principal, unless it is proved that the incident is attributable to serious and wilful misconduct on the part of the employee or agent. (8) However, costs and expenses are not recoverable against a person who establishes— (a) that the dangerous situation was due to the act or default of another person, or to some cause beyond the person's control; and (b) that the person could not by the exercise of reasonable diligence have prevented the occurrence of the dangerous situation; and (c) that the dangerous situation was not attributable to an act or omission of an employee or agent of the person at the time. (9) This section does not exclude or derogate from any right to recover an amount in respect of costs or expenses that exists apart from this section but the Crown or a government authority is not entitled to recover, in respect of the same costs or expenses, an amount under this section and an amount in proceedings founded on rights that exist apart from this section. (10) For the purposes of this section, a body that forms part, or is established for the purposes, of an agency or instrumentality of the Crown is not to be regarded as itself constituting a separate agency or instrumentality. (11) In proceedings under this section, a document apparently signed by the principal officer of the relevant government authority certifying as to the incurring of costs or expenses as a result of action to which this section applies, and as to the amount of those costs or expenses, constitutes proof, in the absence of proof to the contrary, of the matters so certified. 99—Government magazine (1) The Minister may by notice in the Gazette declare any place to be a Government magazine. (2) The Regulator is responsible for the control and supervision of a Government magazine. (3) The Regulator or an authorised person may direct 1 or more of the following: (a) that explosives be deposited in a Government magazine to be stored— (i) for a period determined by the Regulator or authorised person (as the case requires); or (ii) indefinitely if the Regulator so determines; (b) that explosives stored at the Government magazine be destroyed. (4) The prescribed fee for the storage, rent, destruction or other costs associated with explosives deposited in a Government magazine may— (a) be payable by the person depositing (or directed to deposit) the explosives; and (b) be recoverable from the person that deposited (or was directed to deposit) the explosives as a debt due to the Regulator; and (c) be set on a differential basis depending on the type or quantity of explosives, the length of time that they are in storage and the cost of their destruction. 100—Harbors and vessels (1) The Regulator may, by notice in the Gazette, publish standards (Regulator standards) relating to— (a) the arrival, movement or presence of vessels carrying explosives in harbors; and (b) the unloading and loading of explosives in harbors; and (c) any other matter relating to the control of explosives on or in relation to vessels or harbors. (2) Without limiting subsection (1), the Regulator standards may make provision (including limitations and prohibitions) relating to— (a) vessels carrying explosives, including— (i) the requirements to be observed by operators of vessels carrying explosives; and (ii) the imposition of notification requirements relating to operators of vessels carrying explosives; and (b) vessels nearby or adjacent to vessels carrying explosives; and (c) harbors; and (d) the limitation of quantities or the prohibition of explosives in relation to harbors and vessels. (3) A person who fails to comply with the Regulator standards is guilty of an offence. (a) in the case of an individual—$5 000; (b) in the case of a body corporate—$25 000. (4) The Regulator standards may— (a) be of general or limited application; and (b) provide that a matter or thing in respect of which the standards apply is to be determined according to the discretion of the Regulator, or any other person determined or approved by the Regulator; and (c) provide for exemptions to be granted (with or without conditions) by the Regulator, or any other person authorised by the Regulator; and (d) apply, adopt or incorporate, with or without modification, any code, standard or other document prepared or approved by a body or authority referred to in the standards as in force from time to time or as in force at a specified time. (5) The Regulator may, by subsequent notice in the Gazette, vary or revoke the Regulator standards. (6) A notice published in the Gazette under this section may come into operation on the day on which it is published or on a later day or days specified in the notice. (7) If a code, standard or other document is applied, adopted or incorporated in the Regulator standards— (a) a copy of the code, standard or other document must be published on a website determined by the Regulator; and (b) in any legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document apparently certified by or on behalf of the Regulator as a true copy of the code, standard or other document. (8) Sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 apply to a standard published under subsection (1) or (5) (and a reference in those provisions to a regulation will be taken to be a reference to such a standard). 101—Prohibition of explosives being transported on prescribed roads (1) A vehicle must not be driven or towed on a portion of a road prescribed by regulation if the vehicle contains or is otherwise transporting an explosive of a prescribed kind that exceeds the prescribed quantity. (2) If a vehicle is driven or towed in contravention of subsection (1), the driver and the owner and the operator of the vehicle are each guilty of an offence. (3) In this section— driver, operator and owner of a vehicle have the same meaning as in the Road Traffic Act 1961. 102—Compulsory acquisition of land (1) The Minister may acquire land under this section where the Minister considers that the acquisition of the land is reasonably necessary for the construction and maintenance of— (a) a government magazine; or (b) any other facility to test or hold explosives. (2) The Minister may only act under subsection (1) if the Minister is acting on the advice of the Regulator. (3) The Land Acquisition Act 1969 applies to the acquisition of land in pursuance of this section. 103—Requirement to return licence on request A licensee must, at the request of the Regulator and within the period stated by the Regulator, return the licence to the Regulator in order for the licence to be replaced or altered to record action under this Act. Expiation fee: $160. 104—Regulations and fee notices (1) The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may— (a) provide for the payment, recovery or waiver of fees prescribed by fee notice; and (b) prescribe, or provide for the Regulator to prescribe, forms for the purposes of this Act; and (c) impose fines, not exceeding $25 000 for offences against the regulations; and (d) fix expiation fees, not exceeding $5 000 for alleged offences against the regulations and sections of the Act, specified by the regulations. (3) Regulations under this Act may— (a) be of general application or limited application; and (b) make different provision according to the matters or circumstances to which they are expressed to apply; and (c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the Regulator; and (d) exempt, or provide for the Regulator to exempt, a specified person, explosive or activity, or class of persons, explosives or activities, from the application of this Act or a specified provision of this Act unconditionally or subject to specified conditions; and (e) provide for the designation of persons who are authorised to give expiation notices; and (f) include defences to offences against the regulations and include evidentiary provisions to facilitate proof of contraventions of the regulations for the purposes of proceedings for offences; and (g) include provisions of a savings or transitional nature consequent on the enactment of this Act. (4) Regulations under this Act may impose the requirement to notify or give notice to the Regulator of certain prescribed activities, events or occurrences relating to explosives in circumstances prescribed by the regulations. (5) Regulations under this Act may prescribe a scheme for the sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations. (6) Regulations under this Act may prescribe a scheme relating to the granting to persons who hold a licence under a corresponding law (an interstate licence) a licence of a kind or class under this Act that corresponds to the interstate licence. (7) Regulations under this Act may provide for fees that vary or are determined by the Minister or the Regulator according to factors specified in the regulations. (8) Regulations under this Act may refer to or incorporate, wholly or partially and with or without modification, a specified code or standard as in force at a specified time or as in force from time to time. (9) If a code or standard is referred to or incorporated in the regulations— (a) a copy of the code or standard must be kept available for inspection by members of the public, without charge and during normal office hours, at a prescribed office; and (b) evidence of the contents of the code or standard may be given in legal proceedings by production of a document apparently certified by the Minister or the Regulator to be a true copy of the code or standard. (10) The Minister may prescribe fees for the purposes of this Act by fee notice under the Legislation (Fees) Act 2019. Schedule 1—Amendments, repeals and transitional provisions Part 1—Amendment of Tattooing Industry Control Act 2015 1—Amendment of section 21—Offence to possess certain items in premises where tattooing services provided Section 21(3), definition of prescribed item, (b)—delete "Explosives Act 1936" and substitute: 2—Amendment of section 22—Further powers of police officers—random weapon and explosive searches Section 22(5)—delete "Explosives Act 1936" and substitute: Part 2—Amendment of Work Health and Safety Act 2012 3—Amendment of section 4—Definitions Section 4, definition of corresponding WHS law, (b)—delete paragraph (b) and substitute: (b) the Explosives Act 2024; or Part 3—Repeals 4—Repeal of Explosives Act 1936 The Explosives Act 1936 is repealed. 5—Repeal of regulations under Explosives Act 1936 All regulations made under the Explosives Act 1936 are repealed.