Explosives (Authorised Commonwealth Explosives) Order 2024

Four main concepts organise this instrument: (1) delegated specification; (2) reliance on external technical codes (the AE Code); (3) UN number/classification code pairing; and (4) limited scope and operation tied to subsection 43(1) of the Regulations.

Delegated specification: The Order is a schedule‑style instrument that, under the power in subsection 43(1) of the Explosives Regulations 2024 (s 3), specifies the particular explosives that count as authorised Commonwealth explosives. The instrument does not itself elaborate regulatory duties; it creates a defined list that the Regulations (via the cited subsection) will reference.

Reliance on the AE Code: Section 4 explicitly imports key technical meanings from the AE Code. The definitions section states that "AE Code" is defined in the Explosives Regulations 2024 and declares that "classification code has the meaning given by the AE Code" and "UN number has the meaning given by the AE Code" (s 4). The final note to the schedule makes the same point about the dagger symbol †: it indicates there is an explanation in Appendix 5 of the AE Code. Consequently, the Order delegates substantive technical meaning (e.g. what 1.1D, 1.3G, 4.1 etc mean, or what the † explanation covers) to the AE Code and its appendices. The Order therefore functions as a mapping from AE Code concepts to the statutory regime.

UN number / classification code pairing: Section 5 is effectively a table that pairs UN numbers, textual names or descriptions of explosives, and classification codes. The UN number column lists standard UN numbers (for example 0004, 0005, 0144, up to 3474), the name column records the technical description (for example "AMMONIUM PICRATE dry or wetted with less than 10% water, by mass"), and the classification code column records codes such as 1.1D, 1.3G, 4.1, 5.1, 9, 3, and so on. Section 4 makes plain that the meaning of these classification codes is governed by the AE Code. The list contains explicit composition qualifiers (for example "WETTED with not less than 15% water, by mass") or desensitising requirements (for example "DESENSITISED with not less than 25% non‑volatile, water‑insoluble phlegmatiser, by mass") in the name/description column; those text elements operate as part of the specified kinds.

Limited scope: The instrument is expressly made "for the purposes of subsection 43(1) of the Explosives Regulations 2024" (s 5). It does not purport to be comprehensive across every conceivable regulatory head, nor does it create licensing schemes in and of itself. Its legal effect is thus narrow: a specified list that will be used where subsection 43(1) is triggered. The instrument’s powers and its uses are therefore dependent on the text and operation of the Explosives Regulations 2024 and the AE Code.

Two practical technical notes: the table includes entries with blank classification codes (for example UN 0190 "SAMPLES, EXPLOSIVE, other than initiating explosive" shows an empty classification code cell), and the final note identifies the † symbol and directs readers to Appendix 5 of the AE Code. Both facts mean that users cannot fully determine legal application from the Order alone; they must consult the AE Code for classification meanings and for certain term clarifications.

The Order’s text specifies that it identifies "Commonwealth explosives, or kinds of Commonwealth explosives" (s 5). That language signals that the primary legal subject is explosives that are Commonwealth‑owned, Commonwealth‑controlled, or otherwise treated as Commonwealth explosives under the relevant Regulations. The Order does not itself define which explosives are legally Commonwealth property or controlled; it only enumerates which UN numbers and kinds count as authorised for the statutory purpose set out at subsection 43(1) of the Explosives Regulations 2024 (s 3 and s 5). Therefore the group directly affected are persons and entities that, under the Explosives Regulations 2024, deal with "Commonwealth explosives" and that rely on the classification of an explosive as "authorised" under that subsection.

Who the list will matter to in practice, as derived from the instrument’s structure, includes:

• Competent Authority and Commonwealth agencies that possess, transport, store, procure or otherwise manage explosives that are Commonwealth explosives; the instrument is made by the Competent Authority (Commodore James Nash) and is expressly an exercise of that authority (preamble; s 3).

• Contractors, suppliers, logistics providers and custodians who supply or handle items for Commonwealth use where the item’s UN number or composition (for example "wetted with not less than X% water, by mass") determines whether the item is an authorised Commonwealth explosive under the Regulations. The text of the schedule includes specific compositional qualifiers that will be relevant to procurement and supply documentation (s 5).

• Compliance and safety officers within Commonwealth agencies charged with ensuring operations conform to the Explosives Regulations 2024, since the list will be a reference for deciding whether an explosive is "authorised" for Commonwealth purposes under subsection 43(1) (s 3; s 5).

• Manufacturers and formulators who must label products with UN numbers and composition details necessary to match the descriptions in the Order; many entries specify particular percentages (for example wetted with not less than 15% water) that distinguish authorised from unauthorised forms (s 5).

• Insurers, auditors and advisers who rely on a clear statutory list to make decisions about risk management and coverage for Commonwealth explosives; although the Order itself does not create insurance obligations, the specification it contains feeds into any regulatory compliance decisions tied to subsection 43(1).

Who is not directly affected by the Order, based solely on its text: non‑Commonwealth private holdings of the same UN‑numbered goods are not made "Commonwealth explosives" by the Order. The instrument specifies "Commonwealth explosives, or kinds of Commonwealth explosives" (s 5); it does not purport to confer authorisations on private persons’ explosives or to alter private possession laws. Any regulatory treatment of non‑Commonwealth explosives will depend on other parts of the Explosives Regulations 2024 or other legislation; that is not in the instrument itself.

The Order therefore centralises the question "is this an authorised Commonwealth explosive?" into a single, publicly available list. That concentrates legal certainty for those acting on behalf of the Commonwealth, but the list also transfers a compliance task to suppliers and custodians who must ensure product specifications match the textual descriptions (including water/phlegmatiser percentages) in s 5.

The Order is not drafted to set out standalone duties or rights. Instead it performs a classificatory role that other provisions (not contained in the Order) will use to trigger duties or grant rights. The instrument itself states its purpose is to specify particular Commonwealth explosives "for the purposes of subsection 43(1) of the Explosives Regulations 2024" (s 5). Therefore:

• The Order creates no explicit regulatory obligations, offences, licences, permit regimes, procedural steps or appeal rights on its face. It is a specification instrument. Any duties or rights that flow from a given explosive being "authorised" must be found in subsection 43(1) of the Explosives Regulations 2024 or elsewhere in those Regulations or related legislation, not in this Order.

• The Order does impose an indirect compliance requirement: because it fixes specific UN numbers and textual formulations (including precise wetting or desensitisation percentages in the item descriptions in s 5), persons dealing with explosives in Commonwealth contexts will need to match their inventories, procurement specifications and documentation to the listed descriptions if they are to rely on the legal status that attaches to "authorised Commonwealth explosives". For example, an item described as "CYCLOTRIMETHYLENE‑TRINITRAMINE (CYCLONITE; HEXOGEN; RDX), WETTED with not less than 15% water, by mass" (UN 0072) is only within the list if it meets that 15% wetting threshold as described in s 5. The instrument therefore makes accuracy of product composition and labelling a practical compliance concern without itself prescribing how that compliance must be demonstrated.

• The Order confers an administrative right of legal certainty: where the Regulations (via subsection 43(1)) require the identification of authorised Commonwealth explosives, entities may rely on the list in s 5 as the authoritative specification. That reliance will be meaningful only to the extent that subsection 43(1) uses the specified list to confer or modify rights/duties under the Regulations.

• Section 4 imports technical meanings from the AE Code: "classification code has the meaning given by the AE Code" and "UN number has the meaning given by the AE Code" (s 4). Consequently, any duty or right that depends on classification code meaning (for example, handling or storage obligations that hinge on 1.1D vs 1.4S) will require reference to the AE Code to resolve the operative technical content.

• The final note to the list indicates that the dagger symbol † signals an explanation in Appendix 5 of the AE Code; where an entry carries † (many do), the applicable scope or limitation of that term is explained in the AE Code Appendix 5, and the right or duty attached to that entry will depend on that explanation.

In short, the Order delegates the substantive regulatory duties and rights to the parent Regulations and to the AE Code. Its operative effect is to make the identity and technical form of "authorised Commonwealth explosives" certain and public; consequently the practical duties for affected parties are to align inventories, labels and procurement specifications with the listed items and their AE Code meanings.

The instrument contains no express offences, penalties, or enforcement mechanisms. It is a specification order; it lists authorised Commonwealth explosives for the purposes of subsection 43(1) of the Explosives Regulations 2024 (s 5), and it does not itself set out compliance sanctions.

Because the Order is made under subsection 43(1) of the Explosives Regulations 2024 (s 3), any criminal or civil penalties, enforcement powers, inspection regimes, licence suspension or revocation powers, or compliance notices that attach when an explosive is or is not an "authorised Commonwealth explosive" must be found in the Explosives Regulations 2024 and any parent statute or regulatory instruments cited therein. The Order does not restate or reproduce those enforcement provisions.

Practical implications for enforcement and compliance derived from the instrument’s content include the following concrete points:

• Enforcement references will need to cross‑check the AE Code. Section 4 imports the AE Code meanings for classification code and UN number; enforcement officers and decision‑makers will therefore need to consult the AE Code and Appendix 5 where the dagger appears to determine whether a particular physical item matches the Order’s description.

• The Order’s detailed textual descriptions, including compositional thresholds (for example "WETTED with not less than 20% water, by mass"; "DESENSITISED with not less than 25% non‑volatile, water‑insoluble phlegmatiser, by mass"), create measurable criteria that enforcement agencies can use as the basis for compliance determinations. The Order thus supplies technical thresholds for regulatory assessment even though it does not provide the sanctioning machinery.

• The commencement provision matters for enforcement: the instrument took effect the day after registration, recorded as 27 September 2024 (s 2(1) and the commencement table). Any enforcement action turning on whether an explosive was "authorised" under subsection 43(1) of the Regulations must account for the instrument’s commencement date.

• The Order’s final note that the † symbol is explained in Appendix 5 of the AE Code means that particular entries whose text is augmented by † may require the AE Code Appendix 5 explanation to be read in enforcement contexts; enforcement decisions will therefore need to integrate that appendix.

Because the Order itself is silent on penalties, anyone seeking to understand the consequences of non‑compliance (financial penalties, criminal liability, licence cancellation etc) must consult the Explosives Regulations 2024 and the AE Code. The Order should be treated as a technical schedule that enforcement regimes will reference, rather than as a source of enforcement powers in its own right.

The instrument is explicitly subordinate to and dependent upon the Explosives Regulations 2024 and the AE Code. Section 3 says it is made under subsection 43(1) of the Explosives Regulations 2024. Section 4 imports terminology from the AE Code, stating that the "AE Code" is defined in the Explosives Regulations 2024 and that classification code and UN number have the meanings given by the AE Code. The final note directs readers to Appendix 5 of the AE Code for explanations of terms marked with †. Thus, the Order operates as an interlocking piece: it is a statutory schedule whose operative content depends on, and is given meaning by, the parent Regulations and the AE Code.

Specific interaction mechanics visible in the text:

• Delegation and reference: The Order does not, and cannot, replace the Regulations or the AE Code. Instead, it furnishes a list that answers a definitional or specification question that subsection 43(1) poses (s 5). Any legal interplay , for example obligations for storage, transport, possession, or exemptions that rely on the notion of an "authorised Commonwealth explosive" , will be resolved by reading the Regulations (including subsection 43(1)) together with this Order and the AE Code.

• Technical standard‑setting by reference: The Order’s frequent textual qualifiers (percentages, desensitised/wetted descriptions) interact with the AE Code’s classification rules to produce precise regulatory categories. For example, items in the schedule that are described as "WETTED with not less than X% water, by mass" depend on the AE Code to determine whether a given physical product satisfies the wetting requirement and whether that then places it into a particular classification code. The separate classification code column, whose meaning is given by the AE Code, will determine how other safety or transport laws apply where those laws draw on classification codes.

• Non‑duplication note for the commencement table: Section 2(2) records that "Any information in column 3 of the table is not part of this instrument." That provision is procedural but can affect legal interpretation: it clarifies that ancillary editorial or explanatory information in the commencement table is not operative. Users should be careful not to treat any extraneous text in the published instrument (for example website or explanatory notes in column 3) as part of the legal instrument.

• Interface with procurement/contract law: Although the Order does not change contracts directly, it will be read by contracting officers and suppliers against procurement documentation. Where a contract requires provision of an "authorised Commonwealth explosive", parties will have to establish whether the supplied item matches a description in s 5 and the AE Code. That can affect compliance with warranty clauses, specifications, customs declarations and safety declarations, without the Order itself enacting procurement rules.

• Relationship to non‑Commonwealth laws: The Order specifies "Commonwealth explosives" only. The Order does not purport to alter state or territory explosives laws, or private property regimes. If other legislation (Commonwealth, state or territory) treats a UN‑numbered item differently, those differences will not be resolved by this Order alone. Any cross‑jurisdictional application will require reading the Order together with other applicable statutes and regulations.

In sum, the Order functions as a technical node in a network of regulatory texts. Users must read it together with the Explosives Regulations 2024 and the AE Code to determine operational legal outcomes. The Order fixes which items are the referent of the statutory phrase used in subsection 43(1), but leaves substantive legal effects, enforcement and cross‑regulatory interactions to the broader regulatory framework referenced in the Order.

The instrument contains explicit statements about its original making and commencement, and contains a small number of procedural notes relevant to amendment and subsequent publication.

Key dated entries in the Order itself:

• The Order is dated 13 September 2024 and signed by Commodore James Nash, Competent Authority (preamble).

• The commencement clause in section 2 sets out that "The whole of this instrument" commences "the day after this instrument is registered," and the table records "27 September 2024" as the commencement date for the instrument as originally made (s 2(1) and the commencement table). The instrument therefore became operative from that date as originally made.

The instrument’s own amendment history statements are limited but specific:

• Section 2 contains a formal note applicable to its commencement table: "This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument." That indicates the commencement table is historical and will not be updated to reflect later amendments. It is a standard drafting convention but also signals that subsequent amendment changes will be reflected in replacement or amending instruments rather than by editing the original commencement table.

• Section 2(2) states that "Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument." This is a publication note that permits editorial or explanatory material to appear in published versions without altering the legal text. It is not an amendment mechanism for substantive law.

Beyond these statements, the Order contains no historic amendments, schedules of variation, saving provisions or transitional amendments within the text provided. The instrument presents itself as the original, operative text as made. There is no list of subsequent amendment instruments, no retrospective amendments, and no repeals recorded in the document you provided.

Practical consequences for users seeking amendment history:

• To identify any subsequent amendments, rescissions or replacements, users must consult the consolidated legislation database or the register of legislative instruments where this Order is published, and check for later instruments made under the Explosives Regulations 2024 that amend or replace the list in s 5. The Order itself signals that it is the original instrument and is not intended to be re‑annotated internally (s 2(1) note).

• Because the Order imports meanings from the AE Code and the AE Code can itself be updated (the Order does not define AE Code content), changes to the AE Code or to the Explosives Regulations 2024 that materially affect classification meanings or the operation of subsection 43(1) may change how the Order operates in practice without the Order itself being amended. The Order’s linkage to external technical instruments makes its practical application sensitive to changes outside the Order.

• The maker, date and commencement provide fixed temporal anchors for evaluating compliance obligations: the list specified in s 5 applies from 27 September 2024 as originally made.

In short, the Order as provided shows no internal amendment history beyond being "originally made" with a commencement date; tracking changes to its legal effect requires external searches for subsequent amending instruments or changes to the AE Code and the Explosives Regulations 2024.

The Order contains no litigation history, and the text names no cases. It is purely a specification instrument and does not record any judicial decisions, prior determinations or legal challenges. There are no references to court proceedings, appeals, administrative review, or precedent in the Order itself.

If litigation were to arise over the application, interpretation or validity of any part of the Order , for example whether a particular physical product matches the textual description in the schedule (including wetting or desensitising percentages), or whether the Competent Authority properly exercised the power in subsection 43(1) of the Explosives Regulations 2024 , that litigation would involve external sources not contained in the Order. The Order does not provide guidance about review rights, internal review procedures, or the judicial review availability; such matters would be found in the parent Regulations, the relevant enabling statute, or general administrative law.

Practically, users who need to identify whether any litigation has interpreted or contested this Order must search case law databases and administrative law decisions referencing subsection 43(1) of the Explosives Regulations 2024, or taking issue with listings of authorised explosives. The instrument itself contains neither case citations nor a history of disputes.

The instrument is straightforward in function but contains a number of practical traps for the unwary. These are concrete drafting and interaction features that can create implementation risk or mis‑interpretation if overlooked.

1. Dependence on the AE Code for technical meaning: Section 4 expressly assigns the meanings of "classification code" and "UN number" to the AE Code. Many entries in the schedule contain composition qualifiers (for example "WETTED with not less than 15% water, by mass") and symbols (†) that are explained in AE Code Appendix 5. If you examine the Order on its own, you will not be able to resolve the operative technical meaning of classification codes, or the † explanations, without consulting the AE Code. Failing to consult the AE Code is a common operational error.

2. Precise compositional thresholds are part of the description: Several entries hinge on precise percentages or desensitisation parameters (s 5). For procurement, storage and transport purposes the difference between "wetted with not less than 15% water" and "wetted with less than 15% water" is material. The Order does not set out how proof of composition is to be provided. Parties must therefore ensure their technical data sheets, certificates of analysis, or supplier declarations align with the listed thresholds.

3. Blank classification cell: UN 0190 ("SAMPLES, EXPLOSIVE, other than initiating explosive") appears in the list with no classification code in the table as presented. That blank may be deliberate (the Order may intend a catch‑all), or it may require AE Code cross‑reference to assign a classification. However, the Order itself does not state why the classification cell is blank or what classification should apply; do not assume blank equals "no classification" , consult AE Code and the Regulations before acting.

4. Extensive use of military/munitions nomenclature: Many entries are munitions‑type items (bombs, grenades, warheads, torpedoes, etc.). The Order specifies named items with the UN number and classification code. If a particular item contains a mix or variant not described (e.g. an ammunition variant with a different filler composition), matching that physical item to a listed description may be non‑trivial. The Order will govern only the listed descriptions; close technical equivalence may not suffice.

5. The dagger (†) notation: Many entries carry †. The final note makes clear that † indicates there is an explanation in Appendix 5 of the AE Code. That appendix can contain crucial qualification or limitation language; failing to read it can produce mistaken assumptions about scope. For entries with †, the AE Code Appendix 5 explanation will control interpretation.

6. Limited territorial scope: The Order applies to "Commonwealth explosives" as the specified species; it does not purport to regulate private explosives or state/territory regimes. Do not assume this list alters private possession rules or state explosives regimes.

7. Publication vs legal text confusion: Section 2(2) explicitly states "Any information in column 3 of the table is not part of this instrument" and allows editorial insertion into column 3 of published versions. Users must avoid treating editorial or explanatory content in published online versions as legally operative text. Reliance should be placed only on the operative columns and the textual provisions.

8. Compositional descriptions may require laboratory verification: Where the Order depends on physical properties expressed as percentages by mass, enforcement or compliance decisions may require laboratory testing. The Order does not specify dispute resolution or sampling protocols. Prepare to document chain of custody, certificates and testing methods aligned with the AE Code or other standards.

9. No standalone licence or permission: It is a specification instrument, not a licence. Where a user reads the word "authorised" in the title there is a temptation to assume it grants immediate legal permission outside the Regulations. The Order merely identifies the species of explosives that will be treated as authorised under subsection 43(1); any permissive effect depends on the parent Regulations.

10. Potential for silent change via AE Code updates: Because the Order imports the technical meaning from the AE Code, an update to the AE Code could change the meaning of classification codes or † explanations without amending this Order. Users relying on stable meanings should monitor AE Code amendments and the Explosives Regulations 2024.

These are concrete, document‑based risks. Addressing them requires combining the Order with the AE Code, the Explosives Regulations 2024 and contemporaneous technical/supplier documentation.

Compliance with the effect of this Order requires a two‑strand approach: (A) legal alignment with the Order, the Explosives Regulations 2024 and the AE Code; and (B) operational alignment in procurement, labelling, inventory and documentation to ensure physical items match the textual descriptions in the Order.

A. Legal alignment (what to read and check)

1. Read the Order together with subsection 43(1) of the Explosives Regulations 2024. The Order is operative only "for the purposes of subsection 43(1)" (s 5). Determine what rights, obligations, exemptions or procedural consequences subsection 43(1) creates when an explosive is specified as an "authorised Commonwealth explosive". The Order alone does not specify duties.

2. Consult the AE Code in full, including Appendix 5. Section 4 imports the AE Code meanings for "classification code" and "UN number" and the final note identifies Appendix 5 as the place where † explanations live. The AE Code will define what classification codes such as 1.1D, 1.3G, 4.1, 5.1, 9, 3, 6.1, 8, 1.6N etc mean and will explain any †‑marked entries. Failure to consult the AE Code will leave the classification undefined.

3. Determine scope of "Commonwealth explosives" for the entity in question under the Regulations. The Order lists "Commonwealth explosives"; whether a given item in your custody is a Commonwealth explosive will depend on definitions in the Regulations. Confirm whether your item is designated Commonwealth property or otherwise treated as a Commonwealth explosive for regulatory purposes.

4. Check the Order’s commencement date and any subsequent amendments. The Order commenced on 27 September 2024 (s 2). Ensure documentation and inventory changes reflect the effective date and check for later amending instruments or AE Code updates that might change classification.

B. Operational alignment (practical steps)

1. Map inventory to UN numbers and descriptions in s 5. Create or update an asset register that records, for each explosive item, its UN number, exact product name, batch number, composition descriptors (including percentages of water or phlegmatisers where specified), and classification code. Where the Order lists wetting or desensitising thresholds, record certificate of analysis, supplier declarations or laboratory results demonstrating compliance.

2. Update procurement specifications and supplier contracts. Amend procurement templates and contract specifications to require suppliers to provide UN numbers, classification codes, certificates of analysis, and declarations that the product matches the exact textual description used in the Order (for example "NITROGLYCERIN, DESENSITISED with not less than 40% non‑volatile water insoluble phlegmatiser, by mass"). Insert warranty and indemnity provisions for mis‑description of composition.

3. Produce documentation protocols for sampling and verification. Because many entries rely on percentage thresholds and formulation language, establish protocols for verifying compliance: sampling method, testing laboratory accreditation, acceptable test methods, frequency of testing, and documentary proof required to demonstrate that a product in the supply chain matches the Order’s description.

4. Label and manifest accordingly. Ensure transport and storage manifests, labels and dangerous goods documentation use the UN number and classification code as recorded in the AE Code. For entries where the classification code cell in the Order appears blank (for example UN 0190), confirm with the AE Code or relevant authority what classification to use on transport documentation.

5. Train staff and contractors. Ensure those responsible for procurement, storage, handling and transport understand the difference between similar UN numbers and the significance of compositional qualifiers. Provide instruction on how to match a physical item to a line in s 5 and on when to consult the AE Code Appendix 5 for † explanations.

6. Integrate with safety management systems. Update safety cases, risk assessments, security arrangements and emergency plans to reflect the list. Because the Order supplies classification codes that are commonly used to determine safe storage and handling standards, make sure safety procedures are aligned with the AE Code classification meanings.

7. Prepare for audits and enforcement checks. Keep readily available documentation mapping each explosive to the Order’s line items, together with certificates of composition, supplier declarations, testing results and chain‑of‑custody documentation, so that any compliance check referring to subsection 43(1) can be satisfied by documentary evidence.

8. Monitor AE Code and Regulations for changes. Because the Order depends on the AE Code for meaning and is made under the Regulations, monitor both the AE Code and the Explosives Regulations 2024 for amendments that could alter classification meanings or the effect of subsection 43(1).

9. Seek authoritative clarification where ambiguous. If a product does not neatly match the Order’s textual description, or where the classification code is blank or there is uncertainty about whether a particular formulation falls within a listed entry, obtain an authoritative determination from the Competent Authority or the relevant regulatory decision‑maker under the Regulations. The Order itself does not provide dispute resolution processes.

10. Document transitional measures. If existing stock predates 27 September 2024 or differs in composition from listed thresholds, record transitional inventories and legal advice on how older stock is to be treated under the Regulations and the Order.

Conclude with practical checklist items for a compliance owner:

• Identify each explosive stock item and map to the exact s 5 line (UN number + name + composition qualifier).
• Obtain certificate of analysis / supplier declaration confirming composition thresholds where specified.
• Record classification code as per AE Code and ensure transport/manifest uses that code.
• Update procurement documentation to require manufacturer declarations aligned to s 5 textual descriptions.
• Maintain test records and chain of custody documentation for enforcement inspections.
• Monitor AE Code/App 5 and Explosives Regulations 2024 for changes affecting classification meanings.

Following these legal and operational steps will align a Commonwealth agency or its contractors to the Order’s specification role and reduce exposure to technical non‑compliance in contexts where subsection 43(1) is applied.