Subdivision Subdivision 3 - National Transport Commission (Model Legislation—Transport of Dangerous Goods by Road or Rail) Regulations 2007 - Other powers in respect of road vehicles | Zoe
National Transport Commission (Model Legislation—Transport of Dangerous Goods by Road or Rail) Regulations 2007
Subdivision 3Other powers in respect of road vehicles
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This Act may be cited as the {Model Act on the Transport of Dangerous Goods by Road or Rail 2007}. (1)
Note: It is intended that when the model law is adopted by a State or Territory, the adopting State or Territory:
(a) in the case of a provision that is in curly brackets and relates to strict liability for offences, or to defences against prosecution for offences—will adopt, revise or do away with the provision; and
(b) in the case of other words and phrases that are in curly brackets—will replace those words and phrases with appropriate expressions. (new)
2 Approval
This Model Act was approved by the Australian Transport Council on 28 February 2007.
3 Purpose
(1) The purpose of this Act is to regulate the transport of dangerous goods by road and rail in order to promote public safety and protect property and the environment. (3)
(2) It is the intention of Parliament that the purpose of this Act will be achieved in the context of nationally consistent road and rail transport laws, having regard to regional and modal differences. (CEB 3)
4 Definitions
(1) In this Act, unless the contrary intention appears:
ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, approved by the Australian Transport Council.
authorised officer means an authorised officer appointed under section 12. (6)
Competent Authority means the relevant Competent Authority appointed under section 11. (6)
compliance purposes has the meaning given by subsection (2).
corresponding authority means a Competent Authority appointed under a corresponding law.
corresponding law means:
(a) a law of another jurisdiction corresponding, or substantially corresponding, to this Act; or
(b) a law of another jurisdiction that is declared under the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act.
dangerous goods means:
(a) a substance or article prescribed as dangerous goods; or
(b) a substance or article determined by the Competent Authority, in accordance with the {subordinate law}, to be dangerous goods. (6)
dangerous situation means a situation that is causing or is likely to cause imminent risk of serious injury to a person, significant harm to the environment or significant damage to property. (6)
driver of a vehicle includes:
(a) a two‑up driver of the vehicle who is present in or near the vehicle or combination; and
(b) a person who is driving the vehicle as a driver under instruction or under an appropriate learner licence or learner permit;
and where the vehicle is a unit of rolling stock forming part of a train but is not its locomotive, means the driver of the train.
driver licence means a licence (including a probationary and a conditional licence but not including a provisional or learner licence) issued under a State or Territory law authorising the licensee to drive a road vehicle.
employee means an individual who works under a contract of employment, apprenticeship or training.
employer means a person who employs persons under:
(a) contracts of employment, apprenticeship or training; or
(b) contracts for services.
government authority means:
(a) a department or an administrative unit of the public service; or
(b) an agency or instrumentality of the Crown; or
(c) a local government body; or
(d) the Competent Authority. (6)
improvement notice means an improvement notice issued under section 72.
involvement in the transport of dangerous goods includes:
(a) importing, or arranging for the importation of, dangerous goods into Australia; and
(b) packing dangerous goods for transport; and
(c) marking packages and overpacks containing dangerous goods for transport, and placarding containers and vehicles in which dangerous goods are transported; and
(d) consigning dangerous goods for transport, including the preparation of transport documentation; and
(e) loading dangerous goods onto a vehicle, or into a container that is to be put on a vehicle, for transport or unloading dangerous goods that have been transported; and
(f) undertaking, or being responsible for, otherwise than as an employee or sub‑contractor, the transport of dangerous goods; and
(g) driving a vehicle carrying dangerous goods; and
(h) being the consignee of dangerous goods that are transported; and
(i) being involved as a director, secretary or manager of a body corporate, or other person who takes part in the management of a body corporate, that takes part in an activity covered by this definition.
intelligent transport system means a system involving the use of electronic or other technology (whether located in or on a vehicle, or on or near a road or rail, or elsewhere) that has the capacity and capability to monitor, collect, store, display, analyse, transmit or report information relating to:
(a) a vehicle or its equipment or load, the driver of a vehicle, the operator of a fleet of vehicles or another person involved in road or rail transport; and
(b) without limiting the above, whether a vehicle is being operated in conformity with this Act and authorisations issued under it.
jurisdiction means the Commonwealth or a State or Territory.
offence means an offence against this Act. (6)
overpack, in relation to the transport of dangerous goods, means packaging (other than large packaging within the meaning of the {subordinate law}) used to hold and consolidate packages into a single unit for easier handling and stowage. (MSL)
Note: Examples
Note: Pallet, together with strapping or shrink wrapping, designed to hold packages.
Note: Box or crate into which packages are placed.
placard means a label or emergency information panel that is displayed in accordance with Chapter 5.3 of the ADG Code on:
(a) a transport unit; or
(b) a container having one or more receptacles with a capacity of more than 500 kilograms or litres.
premises includes a structure, whether permanent or temporary, and land, but does not include a vehicle. (6)
prime contractor, in respect of the transport of dangerous goods by road, means the person who, in conducting a business for or involving the transport of dangerous goods by road, has undertaken to be responsible for, or is responsible for, the transport of the goods by road.(MSL 1.2.22)
public authority means:
(a) the Crown in any capacity; or
(b) a body established by or under law, or the holder of an office established by or under law, for a public purpose, including a local government authority; or
(c) a police force or police service.
public place includes a place:
(a) of public resort open to or used by the public as of right; or
(b) for the time being:
(i) used for a public purpose; or
(ii) open to access by the public;
whether on payment or otherwise; or
(c) open to access by the public by the express or tacit consent or sufferance of the owner of that place, whether the place is or is not always open to the public.
rail operator, in respect of the transport of dangerous goods by rail, means the person who has undertaken to be responsible, or is responsible, for:
(a) the transport of the goods by rail; or
(b) the condition of a unit of rolling stock transporting the goods. (MSL 1.2.23)
road law has the same meaning as in the {Road Transport Reform (Compliance and Enforcement) Act 200‑}..
Note: Each State or Territory should replace the words in curly brackets with the name of the Act adopted in the State or Territory to implement the Road Transport Reform (Compliance and Enforcement) Bill—Model provisions, approved by the Australian Transport Council and dated 3 November 2003.
this Act includes the {subordinate law}. (6)
train means 2 or more units of rolling stock (at least 1 unit of which is a locomotive or self‑propelled unit) that are coupled together.
transport, in relation to dangerous goods, includes:
(a) the packing, loading and unloading of the goods, and the transfer of the goods to or from a vehicle, for the purpose of their transport; and
(b) the marking of packages and overpacks containing dangerous goods, and the placarding of containers and vehicles in or on which dangerous goods are transported; and
(c) other matters incidental to their transport. (6 + MSL)
transport documentation means documentation that complies with Chapter 11.1 of the ADG Code.
two‑up driver means a person accompanying a driver of a vehicle on a journey or part of a journey, who has been, is or will be sharing the task of driving the vehicle during the journey.
unit of rolling stock means a vehicle designed to run on rails.
vehicle means:
(a) a road vehicle, including an articulated vehicle; or
(b) a unit of rolling stock. (MSL)
warrant means a warrant issued under section 49.
(2) For the purposes of this Act, a power to give a direction or to inspect a vehicle or premises or to search premises is exercised for compliance purposes if the power is exercised:
(a) to find out whether this Act is being complied with; or
(b) to investigate an offence or suspected offence.
5 Binding the Crown
(1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (CEB 4)
(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence. (new)
{6 Application of Commonwealth Acts Interpretation Act
(1) The provisions of the Acts Interpretation Act 1901 of the Commonwealth apply to the interpretation of this Act, except that:
(a) Gazette is to refer to the Government Gazette of this jurisdiction; and
(b) Minister is to refer to the responsible Minister of this jurisdiction. (CEB 7)
(2) This section does not prevent the {interpretation legislation of this jurisdiction} from applying to the interpretation of this Act to the extent that it can do so consistently with the application of the provisions of the Acts Interpretation Act 1901 of the Commonwealth. (CEB 7)
(3) This section has effect subject to section 4.} (CEB 7)
7 Scope of this Act
(1) This Act does not apply to:
(a) dangerous goods that are, or form part of, personal safety equipment of persons in a vehicle transporting dangerous goods; and
(b) dangerous goods that are in a container that is designed to form part of, and forms part of, the fuel or battery system of a vehicle’s engine, auxiliary engine, fuel burning appliance or other part of a vehicle’s propulsion equipment. (10 + new)
(2) The provisions of this Act have effect despite any other law. (10)
Part 2—{Subordinate law}
8 Powers to make {subordinate law} and adoption of codes and standards
(1) The {Governor/Executive} may make {subordinate law} prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (11)
(2) In particular, the {subordinate law} may make provision relating to the following:
(a) a system of classification of dangerous goods;
(b) classes of goods that are too dangerous to be transported;
(c) the determination by the Competent Authority of which class goods belong to;
(d) the analysis and testing of dangerous goods;
(e) fees that are to be paid for things done under this Act;
(f) the marking and labelling of packages and overpacks containing dangerous goods for transport and the placarding of containers and vehicles in or on which dangerous goods are transported;
(g) containers, vehicles, packaging, equipment and other items used in the transport of dangerous goods;
(h) the manufacture of containers, vehicles, packaging, equipment and other items for use in the transport of dangerous goods;
(i) voluntary accreditation schemes, including privileges to be accorded or sanctions to be imposed under the schemes and the cancellation or suspension of the schemes;
(j) the loading of dangerous goods for, and the unloading of dangerous goods after, their transport;
(k) the determination by the Competent Authority of routes along which, the areas in which and the times during which dangerous goods may or may not be transported;
(l) procedures for the transport of dangerous goods, including:
(i) the quantities and circumstances in which dangerous goods, or particular types of dangerous goods, may be transported; and
(ii) safety procedures and equipment;
(m) the licensing of:
(i) vehicles and drivers for the purpose of the transport of dangerous goods; and
(ii) persons responsible for the transport of dangerous goods or for vehicles used in that transport;
(n) the mandatory accreditation of persons involved in the transport of dangerous goods or particular aspects of that transport;
(o) the approval by the Competent Authority of the form in which applications are to be made to the Authority, and the form in which documents are to be issued by the Authority, for the purposes of the {subordinate law};
(p) the approval by the Competent Authority of:
(i) containers, vehicles, packaging, equipment and other items used in relation to the transport of dangerous goods; and
(ii) facilities for, and methods of, testing or using containers, vehicles, packaging, equipment and other items used, and processes carried out, in relation to the transport of dangerous goods;
(q) documents required to be prepared or kept by persons involved in the transport of dangerous goods and the approval by the Competent Authority of alternative documentation;
(r) obligations arising, and procedures to be followed, in the event of a dangerous situation in relation to the transport of dangerous goods;
(s) the training and qualifications required of authorised officers and other persons performing functions under this Act;
(t) the training and qualifications required of persons involved in, and the approval of training courses and qualifications relating to involvement in, the transport of dangerous goods;
(u) the recognition of laws of other jurisdictions relating to the transport of dangerous goods and of things done under those laws, and the giving effect to those things;
(v) infringement notices, and documents and costs relating to infringement notices;
(w) the establishment, powers and functions of a Competent Authorities Panel;
(x) the recognition of accredited providers of training, package testing, design verification and other similar activities;
(y) the passing of information on persons relevant to licensing or compliance and enforcement matters to another Competent Authority and other authorities involved in the enforcement of road and rail laws. (11 + new)
(3) The {subordinate law} may apply, adopt or incorporate any or all of the provisions of a code, standard, or rule relating to dangerous goods or to their transport. Those provisions may be applied, adopted or incorporated as they currently exist, as amended by the {subordinate law}, or as amended from time to time.(11)
(4) The {subordinate law} may:
(a) prescribe a substance or article as being dangerous goods; or
(b) prescribe various types of dangerous goods, including goods that are too dangerous to be transported, and methods for deciding which dangerous goods fall into each type;
by reference to such a code, standard or rule. (11)
(5) The {subordinate law} may provide for transitional arrangements.
(6) A reference in this section to a code, standard or rule includes a reference to one that is made outside Australia. (11)
9 Penalties under the {subordinate law}
The {subordinate law} may create offences, and may provide for a maximum penalty, not exceeding $6 000 for an individual or $30 000 for a body corporate, for each offence. (12)
10 Applications for review
The {subordinate law} may provide a system for review of decisions made under this Act and identified in the {subordinate law}. (CEB 186)
Part 3—Competent Authorities and authorised officers
Division 1—Appointments and arrangements
11 Appointment of Competent Authorities
(1) The Minister may, {by notice in the Government Gazette,} appoint a Competent Authority, or separate Competent Authorities in relation to road transport and to rail transport, for the purposes of this Act. (13)
(2) The Competent Authority:
(a) may exercise all the powers and perform all the functions of an authorised officer; and
(b) when exercising those powers or performing those functions, has all the immunities of an authorised officer. (13)
12 Appointment of authorised officers
(1) The Competent Authority may, {by notice in the Government Gazette,} appoint an individual, or a class of individuals, to be authorised officers. (14)
(2) In appointing an authorised officer, the Competent Authority may specify that the appointment is subject to conditions or restrictions relating to:
(a) the powers that are exercisable by the officer; or
(b) when, where and in what circumstances the officer may exercise powers. (14)
(3) The Competent Authority must issue each authorised officer who is not a police officer with an identification card containing any prescribed details. (14)
13 Identification cards
(1) An authorised officer who is not a police officer must:
(a) carry his or her card while carrying out duties under this Act; and
(b) if it is practicable, produce it before exercising a power of an authorised officer under this Act. (15)
(2) A police officer who is exercising, or is about to exercise, a power of an authorised officer under this Act must, if practicable, comply with a request to identify himself or herself by:
(a) producing the officer’s police identification, or authorised officer identification card (if issued); or
(b) stating orally or in writing the officer’s name, rank and place of duty, or the officer’s identification number.(15)
14 Return of identification cards
(1) A person who has been issued with an identification card and who stops being an authorised officer must return his or her identification card to the appropriate Competent Authority as soon as practicable. (16)
Offence provision.
{(2) It is a defence to a prosecution for an offence against subsection (1) that the person had a reasonable excuse.} (16)
15 Impersonating authorised officers
(1) A person must not impersonate an authorised officer.
Offence provision. (new)
{(2) The offence is an offence of strict liability.}
16 Competent Authority may delegate powers
(1) The Competent Authority may delegate any of its powers under this Act by signed instrument.
(2) Subsection (1) does not apply to the Competent Authority’s power:
(a) to appoint authorised officers; or
(b) to delegate its powers under this section.
17 Competent Authority may provide information to corresponding authority
(1) The Competent Authority may provide information to a corresponding authority about:
(a) any action taken by the Competent Authority under this Act; or
(b) any information obtained under this Act, including any information contained in any records, devices or other things inspected or seized under this Act.
(2) This section has effect subject to applicable privacy legislation.
18 Reciprocal powers of authorised officers
(1) This section has effect in relation to another jurisdiction while the corresponding law of the other jurisdiction contains provisions corresponding to this section.
(2) The Minister may enter into agreements with a Minister of the other jurisdiction for the purposes of this section.
(3) To the extent envisaged by such an agreement:
(a) authorised officers of this jurisdiction may, in this jurisdiction or the other jurisdiction, exercise powers conferred on authorised officers of the other jurisdiction by or under the corresponding law of the other jurisdiction; and
(b) authorised officers of the other jurisdiction may, in this jurisdiction or the other jurisdiction, exercise powers conferred on authorised officers by this Act.
(4) Anything done by an authorised officer of this jurisdiction under paragraph (3) (a) (including an omission of an act) is taken to have been done under this Act as well as under the corresponding law.
(5) The regulations may make provision for or with respect to the exercise of powers under this section.
This Division applies to a road vehicle if:
(a) one of the following applies to the vehicle:
(i) it has a placard on it;
(ii) it is carrying a container that has a placard on it;
(iii) an authorised officer believes on reasonable grounds that it is carrying dangerous goods; and
(b) the vehicle is situated:
(i) on a road; or
(ii) in or on a public place; or
(iii) in or on premises occupied or owned by the Competent Authority or by any other public authority; or
(iv) in or on any premises where an authorised officer is lawfully present after entry under this Division.
Subdivision 2—Directions in respect of road vehicles
20 Direction to stop road vehicle
(1) An authorised officer may, for compliance purposes, direct:
(a) the driver of a vehicle to which this Division applies to stop the vehicle; or
(b) the driver of the vehicle or any other person not to do any one or more of the following:
(i) move the vehicle;
(ii) interfere with it or any equipment in or on it;
(iii) interfere with its load.
(2) A direction to stop a vehicle may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the officer.
(3) A direction given under subsection (1) does not prevent an authorised officer from giving the driver or another person a later inconsistent direction under another provision of this Act.
(4) A direction ceases to be operative to the extent that an authorised officer:
(a) gives the driver or another person a later inconsistent direction; or
(b) indicates to the driver or another person that the direction is no longer operative.
(5) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision. (new)
{(6) An offence against subsection (5) is an offence of strict liability.}
21 Direction to move road vehicle
(1) An authorised officer may, for compliance purposes, direct the driver of a vehicle to which this Division applies to move it or cause it to be moved to the nearest suitable location that is within the prescribed distance and specified by the officer.
(2) In subsection (1):
prescribed distance means a distance (in any direction) within a radius of 30 kilometres of:
(a) the location of the vehicle when the direction is given; or
(b) any point along the forward route of the journey, if the direction is given in the course of a journey of the vehicle.
suitable location means a location that the authorised officer believes on reasonable grounds to be a suitable location having regard to any matters the officer considers relevant in the circumstances.
(3) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
(4) In proceedings for an offence against subsection (3), it is a defence if the person charged establishes that:
(a) it was not possible to move the vehicle concerned because it was broken down; and
(b) the breakdown occurred for a physical reason beyond the driver’s control; and
(c) the breakdown could not be readily rectified in a way that would enable the direction to be complied with within a reasonable time.
{(5) An offence against subsection (3) is an offence of strict liability.}
22 Direction to produce documents
(1) An authorised officer may, for compliance purposes, direct the driver of a vehicle to which this Division applies to produce to the authorised officer:
(a) the driver’s driver licence; and
(b) any licence the driver is required to have by the {subordinate law}; and
(c) any transport documentation that is required to be carried on the vehicle by the {subordinate law}.
(2) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
(3) The authorised officer may seize a licence produced to the officer in response to the direction if the officer reasonably believes that:
(a) the licence has been cancelled or suspended; or
(b) the licence has otherwise ceased to have effect; or
(c) the licence has been varied and the variation is not recorded on the licence; or
(d) the person who produced the licence is not the licensee.
(4) An authorised officer to whom a document that appears to be a licence is produced in response to the direction may seize the document if the officer reasonably believes that the document is not a licence.
{(5) An offence against subsection (2) is an offence of strict liability.}
23 Direction to move a road vehicle: where danger or obstruction
(1) This section applies where an authorised officer believes on reasonable grounds that a vehicle to which this Division applies is:
(a) seriously endangering public safety, the environment or road infrastructure; or
(b) causing or likely to cause an obstruction to traffic.
(2) The officer may direct the driver of the vehicle to do either or both of the following:
(a) to move it, or cause it to be moved, to the extent necessary to avoid the danger or obstruction;
(b) to do anything else reasonably required by the officer, or to cause anything else reasonably required by the officer to be done, to avoid the harm or obstruction.
(3) A person who is given a direction under subsection (2) must comply with the direction.
Offence provision.
(4) In proceedings for an offence in relation to the contravention of a direction under paragraph (2) (a), it is a defence if the person charged establishes that:
(a) it was not possible to move the vehicle concerned because it was broken down; and
(b) the breakdown occurred for a physical reason beyond the driver’s control; and
(c) the breakdown could not be readily rectified in a way that would enable the direction to be complied with within a reasonable time.
{(5) An offence against subsection (3) is an offence of strict liability.}
24 Direction to leave vehicle
(1) This section applies where the driver of a vehicle to which this Division applies fails to comply with a direction given by an authorised officer under another provision of this Division.
(2) It also applies where an authorised officer believes on reasonable grounds that the driver of a vehicle to which this Division applies:
(a) is not fit to drive the vehicle in order to comply with such a direction because the person:
(i) is apparently not physically or mentally fit to do so; or
(ii) is so affected by alcohol or a drug as to be unfit to do so; or
(b) is not qualified to drive the vehicle in order to comply with such a direction; or
(c) is not authorised to drive the vehicle in order to comply with such a direction because the person does not have the approval to do so of the person who is responsible for controlling or directing the operations of the vehicle.
(3) The officer may direct the driver to do any one or more of the following:
(a) to vacate the driver’s seat;
(b) to leave the vehicle;
(c) not to occupy the driver’s seat until permitted to do so by an authorised officer;
(d) not to enter the vehicle until permitted to do so by an authorised officer.
(4) The officer may direct any other person to do either or both of the following:
(a) to leave the vehicle;
(b) not to enter the vehicle until permitted to do so by an authorised officer.
(5) A person who is given a direction under subsection (3) or (4) must comply with the direction.
Offence provision. (36)
{(6) An offence against subsection (5) is an offence of strict liability. }
Subdivision 3—Other powers in respect of road vehicles
25 Moving unattended road vehicle: to enable exercise of other powers
(1) This section applies where an authorised officer:
(a) believes on reasonable grounds that a vehicle to which this Division applies is unattended on a road; and
(b) is seeking to exercise powers in respect of the vehicle for compliance purposes; and
(c) believes on reasonable grounds that the vehicle should be moved to enable or to facilitate the exercise of those powers.
(2) The officer may:
(a) move the vehicle (by driving or towing it or otherwise); or
(b) authorise another person to move it (by driving or towing it or otherwise);
to the extent reasonably necessary to enable or to facilitate the exercise of the powers concerned.
(3) The officer may enter the vehicle, or authorise another person to enter it, for the purpose of moving the vehicle.
(4) The officer or person authorised by the officer may use reasonable force to do any or all of the following:
(a) to open unlocked doors and other unlocked panels and objects;
(b) to gain access to the vehicle, or its engine or other mechanical components, to enable the vehicle to be moved;
(c) to enable the vehicle to be towed.
(5) An authorised officer must not authorise a person to move a vehicle in accordance with this section unless the officer believes on reasonable grounds that the person is qualified and fit to do so.
26 Powers of authorised officers—inspection
(1) An authorised officer may, for compliance purposes, inspect a vehicle to which this Division applies.
(2) The power to inspect a vehicle includes the power:
(a) to enter the vehicle; and
(b) to weigh, test, measure or take photographs of the vehicle or any part of it or its equipment or load; and
(c) to check the existence or details of, or take photographs of, placards or other information required by the {subordinate law} to be displayed in or on the vehicle or any load on it; and
(d) to inspect and take copies of or extracts from any records that are located in or on the vehicle and that are required to be carried in or on the vehicle by the {subordinate law}; and
(e) to access or download information that is required to be kept by the {subordinate law} and that is:
(i) stored electronically in equipment located in or on the vehicle; or
(ii) accessible electronically from equipment located in or on the vehicle.
(3) Nothing in this section authorises the use of force, but an authorised officer may under this section do any or all of the following:
(a) open unlocked doors and other unlocked panels and objects;
(b) inspect anything that has been opened or otherwise accessed;
(c) move but not take away anything that is locked up or sealed.
(4) The officer may exercise powers under this section at any time, and without the consent of the driver or other person apparently in charge of the vehicle or any other person.
27 Powers of authorised officers—searches
(1) An authorised officer may, for compliance purposes, search a vehicle to which this Division applies if the officer believes on reasonable grounds that:
(a) the vehicle has been used, is being used, or is likely to be used, in the commission of an offence; or
(b) the vehicle has been or may have been involved in a dangerous situation.
(2) The officer may form the necessary belief during or after an inspection or independently of an inspection.
(3) The officer may enter the vehicle for the purpose of or in connection with conducting the search.
(4) The officer may exercise powers under this section at any time, and without the consent of the driver or other person apparently in charge of the vehicle or any other person.
(5) Without limiting the above, the power to search a vehicle under this section includes any or all of the following:
(a) the power to search for evidence of an offence;
(b) the power to search for and inspect any records, devices or other things that relate to the vehicle or any part of its equipment or load and that are located in or on the vehicle;
(c) the power to take copies of or extracts from any or all of the following:
(i) any records that are located in or on the vehicle and that are required to be carried in or on the vehicle by the {subordinate law};
(ii) any transport documentation located in or on the vehicle;
(iii) any other records, or any readout or other data obtained from any device or thing, located in or on the vehicle that the officer believes on reasonable grounds provide, or may on further inspection provide, evidence of an offence.
(6) The power to search a vehicle under this section does not include a power to search a person.
(7) The officer may seize and remove a record, device or other thing from the vehicle that the officer believes on reasonable grounds provides, or may on further inspection provide, evidence of an offence.
(8) The officer may use reasonable force in the exercise of powers under this section.
28 Moving unattended or broken down road vehicle: where danger or obstruction
(1) This section applies where an authorised officer believes on reasonable grounds that a vehicle to which this Division applies:
(a) is unattended or broken down; and
(b) is causing a dangerous situation.
(2) The officer may:
(a) move the vehicle (by driving or towing it or otherwise); or
(b) authorise another person to move it (by driving or towing it or otherwise);
to the extent reasonably necessary to avoid the dangerous situation.
(3) The officer may enter the vehicle, or authorise another person to enter it, for the purpose of moving the vehicle.
(4) The officer may drive the vehicle even though the officer is not qualified to do so, if the officer believes on reasonable grounds that there is no other person in, on or in the vicinity of the vehicle who is more capable of driving it than the officer.
(5) A person authorised by the officer may drive the vehicle even though the authorised person is not qualified to do so, if the officer believes on reasonable grounds that there is no other person in, on or in the vicinity of the vehicle who is more capable of driving it than the authorised person.
(6) The officer or person driving a vehicle under the authority of this section is exempt from any other provision of this Act or of a provision of a road law to the extent that it would require him or her to be licensed or otherwise authorised to drive it.
(7) The officer or person authorised by the officer may use reasonable force to the extent reasonably necessary to avoid the danger or obstruction.
29 Powers of authorised officers—immobilised road vehicle
(1) This section applies where an authorised officer believes on reasonable grounds that a vehicle to which this Division applies is broken down or otherwise immobilised on a road.
(2) The authorised officer may give directions to the driver or a person apparently in charge of the vehicle about how:
(a) repair work is to be carried out on the vehicle; or
(b) the vehicle is to be towed off the road; or
(c) the dangerous goods are to be removed from the vehicle; or
(d) the dangerous goods are to be dealt with after their removal from the vehicle.
(3) A person who is given a direction under subsection (2) must comply with the direction.
Offence provision.
{(4) An offence against subsection (3) is an offence of strict liability.} (13.3‑road, amd/2)
30 Powers of authorised officers in emergencies
(1) This section applies if a vehicle to which this Division applies is involved in an incident resulting in a dangerous situation. (new)
(2) An authorised officer may give directions to the driver or a person apparently in charge of the vehicle about:
(a) the transport of the goods from the place of the incident; or
(b) how otherwise to deal with the goods. (new)
(3) The direction must:
(a) be in writing and be signed by the authorised officer; and
(b) state the name of the person to whom it is given; and
(c) identify the incident; and
(d) identify the dangerous goods to which it relates. (new)
(4) However, if it is not practicable to give the direction in writing, the direction may be given orally and confirmed in writing within 48 hours. (new)
(5) A person who is given a direction under subsection (2) must comply with the direction. (new)
Offence provision. (new)
{(6) An offence against subsection (5) is an offence of strict liability.} (new)
31 Authorisation not required for driving under this Division
It is immaterial that an authorised officer or a person driving a vehicle under the authority of this Division is not authorised to do so by the person with responsibility for controlling or directing the operations of the vehicle.
Division 3—Directions in respect of rolling stock and trains
Subdivision 1—Application
32 Application
This Division applies to a unit of rolling stock:
(a) that has a placard on it; or
(b) that is carrying a container that has a placard on it; or
(c) that an authorised officer knows or believes on reasonable grounds is carrying dangerous goods or is carrying a container containing dangerous goods.
Subdivision 2—Power to give directions in respect of rolling stock and trains
33 Powers of authorised officers—rail operators
(1) An authorised officer may, for compliance purposes, direct the rail operator in respect of a train that includes a unit of rolling stock to which this Division applies to cause the train to stop at a place where it may be safely inspected by the officer.
(2) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(3) An offence against subsection (2) is an offence of strict liability.}
34 Powers of authorised officers—train drivers
(1) An authorised officer may, for compliance purposes, direct the driver of a train that includes a unit of rolling stock to which this Division applies or any other person not to do any one or more of the following:
(a) move the train;
(b) interfere with the train or any equipment in or on it;
(c) interfere with any load on any unit of rolling stock that forms part of the train.
(2) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(3) An offence against subsection (2) is an offence of strict liability.}
35 Powers of authorised officers—others
(1) Where a unit of rolling stock to which this Division applies does not form part of a train, an authorised officer may, for compliance purposes, direct a person not to do any one or more of the following:
(a) move the unit;
(b) interfere with the train or any equipment or container in or on it;
(c) attach any other rolling stock to the unit.
(2) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(3) An offence against subsection (2) is an offence of strict liability.}
36 Powers of authorised officers—documents
(1) An authorised office may direct the driver of a train that includes a unit of rolling stock to which this Division applies to produce to the authorised officer any transport documentation that is required to be carried on the train by the {subordinate law}.
(2) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(3) An offence against subsection (2) is an offence of strict liability.}
Subdivision 3—Other powers in respect of trains
37 Powers of authorised officers—inspection
(1) An authorised officer may, for compliance purposes, inspect a unit of rolling stock to which this Division applies or a train that includes or that the authorised officer believes on reasonable grounds includes a unit of rolling stock to which this section applies.
(2) The power to inspect a unit of rolling stock or a train includes the power:
(a) to enter the unit or train; and
(b) to weigh, test, measure or take photographs of the unit or train or any part of it or its equipment or load; and
(c) to check the existence or details of, or take photographs of, placards or other information required by the {subordinate law} to be displayed in or on the unit or any load on it; and
(d) to inspect and take copies of or extracts from any records that are located in or on the train and that are required to be carried in or on the train by the {subordinate law}; and
(e) to access or download information that is required to be kept by the {subordinate law} and that is:
(i) stored electronically in equipment located in or on the train; or
(ii) accessible electronically from equipment located in or on the train.
(3) Nothing in this section authorises the use of force, but an authorised officer may under this section do any or all of the following:
(a) open unlocked doors and other unlocked panels and objects;
(b) inspect anything that has been opened or otherwise accessed;
(c) move, but not take away, anything that is locked up or sealed.
(4) The officer may exercise powers under this section at any time, and without the consent of the driver or other person apparently in charge of the rolling stock or train or any other person.
38 Powers of authorised officers—search
(1) An authorised officer may, for compliance purposes, search a unit of rolling stock to which this Division applies or a train that includes or that the authorised officer believes on reasonable grounds includes a unit of rolling stock to which this section applies, if the officer believes on reasonable grounds that:
(a) the unit of rolling stock or train has been used, is being used, or is likely to be used, in the commission of an offence; or
(b) the unit of rolling stock or train has been or may have been involved in a dangerous situation.
(2) The officer may form the necessary belief during or after an inspection or independently of an inspection.
(3) The officer may enter the unit of rolling stock or train for the purpose of or in connection with conducting the search.
(4) The officer may exercise powers under this section at any time, and without the consent of the driver or other person apparently in charge of the unit of rolling stock or train or any other person.
(5) Without limiting the above, the power to search a unit of rolling stock or train under this section includes any or all of the following:
(a) the power to search for evidence of an offence;
(b) the power to search for and inspect any records, devices or other things that relate to the unit of rolling stock or train or any part of its equipment or load and that are located in or on the unit of rolling stock or train;
(c) the power to take copies of or extracts from any or all of the following:
(i) any records that are located in or on the unit of rolling stock or train and that are required to be carried in or on the unit of rolling stock or train by the {subordinate law};
(ii) any transport documentation located in or on the unit of rolling stock or train;
(iii) any other records, or any readout or other data obtained from any device or thing, located in or on the unit of rolling stock or train that the officer believes on reasonable grounds provide, or may on further inspection provide, evidence of an offence.
(6) The power to search a unit of rolling stock or train under this section does not include a power to search a person.
(7) The officer may seize and remove a record, device or other thing from the unit of rolling stock or train that the officer believes on reasonable grounds provides, or may on further inspection provide, evidence of an offence.
(8) The officer may use reasonable force in the exercise of powers under this section.
39 Powers of authorised officers—immobilised train
(1) This section applies to a train:
(a) that has failed or is otherwise immobilised; and
(b) that includes rolling stock to which this Division applies.
(2) An authorised officer may give directions to a person who is involved in the transport of the dangerous goods on the train about how:
(a) the dangerous goods are to be removed from the train; or
(b) the dangerous goods are to be dealt with after their removal from the train.
(3) A person who is given a direction under subsection (2) must comply with the direction.
Offence provision.
{(4) An offence against subsection (3) is an offence of strict liability.} (13.3‑rail, amd)
40 Powers of authorised officers in emergencies
(1) This section applies if a train that includes rolling stock to which this Division applies is involved in an incident resulting in a dangerous situation. (new)
(2) An authorised officer may give, to the driver of the train or the rail operator, directions about:
(a) the transport of the goods from the place of the incident; or
(b) how otherwise to deal with the goods. (new)
(3) The direction must:
(a) be in writing and be signed by the authorised officer; and
(b) state the name of the person to whom it is given; and
(c) identify the incident; and
(d) identify the dangerous goods to which it relates. (new)
(4) However, if it is not practicable to give the direction in writing, the direction may be given orally and confirmed in writing within 48 hours. (new)
(5) A person who is given a direction under subsection (2) must comply with the direction. (new)
Offence provision. (new)
{(6) An offence against subsection (5) is an offence of strict liability.} (new)
Division 4—Powers to inspect and search premises
Subdivision 1—Preliminary
41 Application
This Division applies to premises occupied or controlled by a person involved in the transport of dangerous goods.
42 Residential purposes
For the purposes of this Division, premises are not being used for residential purposes merely because temporary or casual sleeping or other accommodation is provided in the premises for vehicle drivers.
Subdivision 2—Power to search premises
43 Power to inspect premises
(1) An authorised officer may, for compliance purposes, inspect premises to which this Division applies.
(2) The officer may enter the premises for the purpose of conducting the inspection.
(3) Without limiting the above, the officer may inspect, or enter and inspect, any vehicle at the premises.
(4) Before an authorised officer enters premises (not being a public place) under this section, the officer must give the occupier of the premises reasonable notice of the intention to enter unless:
(a) the giving of the notice would be reasonably likely to defeat the purpose for which it is intended to enter the premises; or
(b) entry to the premises is made with the consent of the occupier of the premises; or
(c) entry is required in circumstances where the authorised officer reasonably believes there is an immediate risk to safety because of the carrying out of an operation at the premises in respect of dangerous goods; or
(d) entry is authorised by a warrant.
(5) This section does not authorise, without consent, the entry or inspection of:
(a) premises that are apparently unattended, unless the officer believes on reasonable grounds that the premises are not unattended; or
(b) premises that are, or any part of premises that is, used predominantly for residential purposes.
(6) Without limiting the above, the power to inspect premises under this section includes any or all of the following:
(a) the power to inspect and take copies of or extracts from any records located at the premises and required to be kept by or under the {subordinate law};
(b) the power to check the existence of and inspect any devices (including weighing, measuring, recording or monitoring devices) required to be installed, used or maintained by or under the {subordinate law}, and to inspect and take copies of or extracts from any readout or other data obtained from any such device;
(c) the power to use photocopying equipment on the premises free of charge for the purpose of copying any records or other material.
(7) This section does not authorise the use of force, but the officer may under this section do any or all of the following:
(a) open unlocked doors and other unlocked panels and objects;
(b) inspect anything that has been opened or otherwise accessed under the power to use reasonable force in the exercise of a power to enter or move a vehicle under this Part;
(c) move, but not take away, anything that is locked up or sealed.
(8) An authorised officer who enters premises under this section must not unnecessarily impede any activities being conducted at the premises.
44 Power to search premises
(1) An authorised officer may, for compliance purposes, search premises to which this Division applies, if the officer believes on reasonable grounds that there may be at the premises records, devices or other things that may provide evidence of an offence.
(2) The officer may form the necessary belief during or after an inspection of the premises or independently of such an inspection.
(3) The officer may enter the premises for the purpose of conducting the search.
(4) Without limiting the above, the officer may search, or enter and search, any vehicle at the premises.
(5) The search may be conducted:
(a) at any time under the authority of a warrant; or
(b) at any time with the consent of the occupier or other person apparently in charge of the premises; or
(c) if a business is carried on at the premises—at any time during the ordinary business hours applicable at the premises (whether or not the premises are actually being used for that purpose), and without a warrant and without the consent of the occupier or other person apparently in charge of the premises or any other person.
(6) Before an authorised officer enters premises (not being a public place) under this section, the officer must give the occupier or other person apparently in charge of the premises reasonable notice of the intention to enter unless:
(a) the giving of the notice would be reasonably likely to defeat the purpose for which it is intended to enter the premises; or
(b) entry to the premises is made with the consent of the occupier of the premises; or
(c) entry is required in circumstances where the authorised officer reasonably believes there is an immediate risk to safety because of the carrying out of an operation at the premises in respect of dangerous goods; or
(d) entry is authorised by a warrant.
(7) This section does not authorise, without a warrant or consent, the entry or searching of:
(a) premises that are unattended, unless the officer believes on reasonable grounds that the premises are not unattended; or
(b) premises that are, or any part of premises that is, used predominantly for residential purposes.
(8) Without limiting the above, the power to search premises under this section includes any or all of the following:
(a) the power to search for evidence of an offence;
(b) the power to search for and inspect any records, devices or other things that relate to:
(i) a vehicle or any part of its equipment or load located at the premises; or
(ii) any dangerous goods located at the premises;
(c) the power to take copies of or extracts from any or all of the following:
(i) any records that are located at the premises and are required to be kept by or under the {subordinate law};
(ii) any transport documentation located at the premises;
(iii) any other records, or any readout or other data obtained from any device or thing, located at the premises that the officer believes on reasonable grounds provide, or may on further inspection provide, evidence of an offence;
(d) the power to use photocopying equipment on the premises free of charge for the purpose of copying any records or other material.
(9) The power to search premises under this section does not include a power to search a person.
(10) The officer may seize and remove any records, devices or other things from the premises that the officer believes on reasonable grounds provide, or may on further inspection provide, evidence of an offence.
(11) The officer may use reasonable force in the exercise of powers under this section.
Division 5—Other directions
45 Direction to give name and other personal details
(1) If an authorised officer suspects on reasonable grounds that an individual person:
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence;
the officer may direct the person to give the officer then and there any or all of the person’s personal details.
(2) If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(3) A person who is given a direction under subsection (1) or (2) must comply with the direction.
Offence provision.
(4) A person who is given a direction under subsection (1) must not give, in purported response to the direction, any details that are false or misleading in a material particular.
Offence provision.
(5) A person who is given a direction under subsection (2) must not produce, in purported response to the direction, any evidence that is false or misleading in a material particular.
Offence provision.
(6) In this section:
personal details, in relation to a person, means:
(a) the person’s full name; and
(b) the person’s date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person’s business address.
{(7) An offence against subsection (5) is an offence of strict liability.}
46 Direction to produce records, devices or other things
(1) An authorised officer may, for compliance purposes, direct a person to produce:
(a) any records required to be kept by the person under this Act; or
(b) any records required to be kept under this Act in the person’s possession or under the person’s control; or
(c) any records, or any devices or other things that contain or may contain records, in the person’s possession or under the person’s control relating to or indicating an offence.
(2) The direction must:
(a) specify:
(i) the records, devices or other things; or
(ii) the classes of records, devices or other things;
that are to be produced; and
(b) state where and to whom the records, devices or other things are to be produced.
(3) The officer may do any or all of the following:
(a) inspect records, devices or other things that are produced;
(b) make copies of, or take extracts from, records, devices or other things that are produced;
(c) seize and remove records, devices or other things that are produced that the officer believes on reasonable grounds may on further inspection provide evidence of an offence.
(4) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(5) The offence is an offence of strict liability.}
47 Direction to provide information
(1) An authorised officer may, for compliance purposes, direct a person involved in the transport of dangerous goods to provide information to the officer about a vehicle or any load or equipment carried or intended to be carried by a vehicle.
(2) Without limiting the above, a direction under subsection (1) may require a person who is associated with a particular vehicle to provide information about the current or intended trip of the vehicle, including:
(a) the location of the start or intended start of the trip; and
(b) the route or intended route of the trip; and
(c) the location of the destination or intended destination of the trip.
(3) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
{(4) The offence is an offence of strict liability.}
48 Direction to provide reasonable assistance for powers of inspection and search
(1) An authorised officer may direct a person who is involved in the transport of dangerous goods to provide reasonable assistance to the officer to enable the officer effectively to exercise a power in relation to goods with which the person is involved..
(2) Without limiting the above, the assistance may include helping the officer to do any or all of the following:
(a) to find and gain access to any records or information relating to a vehicle, including but not limited to:
(i) records and information required to be kept in or on a vehicle; or
(ii) records and information in a useable form for the purpose of ascertaining its compliance with requirements imposed by this Act;
(b) to find and gain access to devices on which information is electronically stored and the information stored on them;
(c) to weigh or measure:
(i) the whole or any part of a vehicle; or
(ii) the whole or any part of its equipment or load;
(d) to operate equipment or facilities for a purpose relevant to the power being or proposed to be exercised;
(e) to provide access free of charge to photocopying equipment for the purpose of copying any records or other material.
(3) A person who is given a direction under subsection (1) must comply with the direction.
Offence provision.
Division 6—Provisions regarding inspections and searches
49 Warrants
(1) This section applies where an authorised officer believes on reasonable grounds that:
(a) there may be at particular premises, then or within the next 72 hours, records, devices or other things that may provide evidence of an offence; or
(b) a vehicle has been or may have been involved in an offence or a dangerous situation and:
(i) the vehicle is or has been located at particular premises; or
(ii) particular premises are or may be otherwise connected (directly or indirectly) with the vehicle or any part of its equipment or load.
(2) The officer may apply to a [magistrate/authorised justice] for a warrant authorising the officer to exercise a power to enter and search the premises under this Part.
50 Use of assistants and equipment
(1) An authorised officer may exercise powers under this Part with the aid of such assistants and equipment as the officer considers reasonably necessary in the circumstances.
(2) Powers that may be exercised by an authorised officer under this Part may be exercised by an assistant authorised and supervised by the officer, but only if the officer considers that it is reasonably necessary in the circumstances that the powers be exercised by an assistant.
51 Use of equipment to examine or process things
(1) An authorised officer exercising a power under this Part may bring to, or on to, a vehicle or premises any equipment reasonably necessary for the examination or processing of things found in, on or at the vehicle or premises in order to determine whether they are things that may be seized.
(2) If:
(a) it is not practicable to examine or process the things at the vehicle or premises; or
(b) the occupier of the vehicle or premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized.
(3) The officer, or a person assisting the officer, may operate equipment already in, on or at the vehicle or premises to carry out the examination or processing of a thing found in, on or at the vehicle or premises in order to determine whether it is a thing that may be seized, if the officer or person assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or the processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
52 Use or seizure of electronic equipment
(1) If:
(a) a thing found in, on or at a vehicle or premises is, or includes, a disk, tape or other device for the storage of information; and
(b) equipment in, on or at the vehicle or premises may be used with the disk, tape or other storage device; and
(c) the authorised officer concerned believes on reasonable grounds that the information stored on the disk, tape or other storage device is relevant to determine whether an offence has been committed;
the officer or a person assisting the officer may operate the equipment to access the information.
(2) If the officer or a person assisting the officer finds that a disk, tape or other storage device in, on or at the vehicle or premises contains information of a kind referred to in paragraph (1) (c), he or she may:
(a) put the information in documentary form and seize the documents so produced; or
(b) copy the information to another disk, tape or other storage device and remove that storage device from the vehicle or premises; or
(c) if it is not practicable to put the information in documentary form or to copy the information, seize the disk, tape or other storage device and the equipment that enables the information to be accessed.
(3) An officer or a person assisting an officer must not operate or seize equipment for the purpose mentioned in this section unless the officer or person assisting believes on reasonable grounds that the operation or seizure of the equipment can be carried out without damage to the equipment.
Division 7—Other provisions regarding seizure
53 Receipt for and access to seized material
If a record, device or other thing is seized and removed under this Part, the authorised officer concerned must:
(a) give a receipt for it to the person from whom it is seized and removed; and
(b) if practicable, allow the person who would normally be entitled to possession of it reasonable access to it.
54 Embargo notices
(1) This section applies where:
(a) an authorised officer is authorised to seize any record, device or other thing under this Part; and
(b) the record, device or other thing cannot, or cannot readily, be physically seized and removed.
(2) The officer may issue an embargo notice under this section.
(3) An embargo notice is a notice forbidding the movement, sale, leasing, transfer, deletion of information from or other dealing with the record, device or other thing, or any part of it, without the written consent of the officer or the Competent Authority.
(4) The embargo notice:
(a) must be in any form, or contain any particulars, required by the {subordinate law}; and
(b) must list the activities that it forbids; and
(c) must set out a copy of subsection (8).
(5) The officer may issue the notice:
(a) by causing a copy of the notice to be served on the person with responsibility for the vehicle or premises concerned; or
(b) if that person cannot be located or ascertained after all reasonable steps have been taken to do so, by affixing a copy of the notice to the record, device or other thing in a prominent position.
(6) A person who knows that an embargo notice relates to a record, device or other thing must not:
(a) do anything that is forbidden by the notice; or
(b) instruct another person to do so.
Offence provision.
(7) It is a defence to a prosecution for an offence against subsection (6) to establish that the person charged:
(a) moved the record, device or other thing, or part of it, to protect or preserve it; or
(b) notified the officer who issued the notice of the move, and of the new location of the record, device or other thing or part of it, within 48 hours after the move.
(8) A person upon whom an embargo notice has been served must take reasonable steps to prevent any other person from doing anything forbidden by the notice.
Offence provision.
(9) Despite anything in any other Act, a sale, lease or transfer or other dealing with a record, device or other thing, or part of it, in contravention of this section is void.
{(10) Offences under this section are offences of strict liability.}
Division 8—Miscellaneous
55 Limit on use of force
A provision of this Part that authorises an authorised officer to use reasonable force does not authorise the use of force against an individual unless the authorised officer is also a police officer.
56 Consent
(1) Before obtaining the consent of a person for the purposes of a provision of this Part, an authorised officer must inform the person that he or she may refuse to give consent.
(2) An entry by or the exercise of any power under this Part by an authorised officer by virtue of the consent of a person is not lawful unless the person voluntarily consented to the entry.
(3) Consent may be withdrawn after it has been given, and the power concerned must no longer be exercised by virtue of the consent.
57 Manner of giving directions under this Part
(1) A direction under this Part may be given orally, in writing or in any other manner.
(2) A direction not given in person may be sent or transmitted by post, telephone, facsimile, electronic mail, radio or in any other manner.
(3) A direction may be given to a driver orally or by means of a sign or signal (electronic or otherwise), or in any other manner.
58 Directions to state when to be complied with
(1) If given orally, a direction under this Part must state whether it is to be complied with then and there or within a specified period.
(2) If given in writing, a direction under this Part must state the period within which it is to be complied with.
59 Directions may be given under more than one provision
(1) An authorised officer may, on the same occasion, give directions under one or more provisions of this Part.
(2) Without limiting the above, an authorised officer may, in the course of exercising powers under a provision of this Part, give:
(a) further directions under the provision; or
(b) directions under one or more other provisions of this Part;
or both.
60 Restoring vehicle or premises to original condition after action taken
(1) This section applies where:
(a) an authorised officer or a person authorised by the officer has taken action in the exercise or purported exercise of a power under this Part in relation to a vehicle or its equipment or load or in relation to any premises; and
(b) damage was caused by the unreasonable exercise of the power or by the use of force that was not authorised under this Part.
(2) The officer must take reasonable steps to return the vehicle, equipment, load or premises to the condition it was in immediately before the action was taken.
{61 Self‑incrimination
(1) A person is not excused from complying with a direction given under this Part on the ground that compliance with the direction may result in information being provided that might incriminate the person.
(2) A person required, in accordance with this Part:
(a) to produce a record, or a device or other thing that contains or may contain a record; or
(b) to provide information; or
(c) to provide assistance;
is not excused from doing so on the ground that doing so may result in information being provided that might incriminate the person.
(3) In proceedings for an offence of failing to comply with a direction under section 47 (Direction to provide information) or section 48 (Direction to provide reasonable assistance for powers of inspection and search), it is a defence if the person charged establishes that:
(a) the person, in complying with the direction, would have been required to answer a question; and
(b) the person objected to complying with the direction on the ground that the answer might incriminate the person; and
(c) there were reasonable grounds for the objection.
(4) In proceedings for an offence of failing to comply with a direction to produce records, devices or other things, to provide information or to provide reasonable assistance, it is a defence if the person charged establishes that:
(a) the person, in complying with the direction, would have been required:
(i) to locate, identify or reveal the whereabouts of a record; or
(ii) to explain the contents of a record; and
(b) the person objected to complying with the direction on the ground that the record (or the information in it) might incriminate the person; and
(c) there were reasonable grounds for the objection.}
Note: Self‑incrimination will be dealt with as appropriate for each jurisdiction. These provisions are provided by way of example.
62 Providing evidence to other authorities
Except as provided by any applicable privacy legislation, the Competent Authority may, for law enforcement purposes, give a record, device or other thing seized in accordance with this Part, or any information obtained in accordance with this Part to a public authority, including a public authority of another jurisdiction.
63 Obstructing or hindering authorised officers
(1) A person must not obstruct or hinder an authorised officer or a person assisting an authorised officer in the exercise of a power under this Part.
Offence provision.
(2) However, an offence is not committed under this section unless it is established that the power:
(a) was being exercised lawfully; and
(b) without limiting paragraph (a), was:
(i) exercisable without consent; or
(ii) being exercised with consent or under the authority of a warrant.
(3) The prosecution bears a legal burden in relation to the matters in subsection (2).
Part 4—Exemptions
64 Exemptions
(1) A person, or a representative of a class of persons, may apply to the Competent Authority for an exemption from compliance with a provision of the {subordinate law} in relation to the transport of particular dangerous goods. (32)
(2) The Competent Authority may, on its own initiative or on application under subsection (1), exempt a person or class of persons from compliance with a provision of the {subordinate law} in relation to the transport of particular dangerous goods if the Competent Authority is satisfied that:
(a) it is not reasonably practicable for the person or class of persons to comply with the provision; and
(b) granting the exemption:
(i) would not be likely to create a risk of death or injury to a person, or harm to the environment or to property, greater than that which would be the case if the person or class of persons were required to comply; and
(ii) would not cause unnecessary administrative or enforcement difficulties, particularly with respect to maintaining national uniformity of road and rail transport laws. (32)
(3) An exemption may be subject to conditions, including a condition that it applies to either or both of the following:
(a) the transport of dangerous goods by road;
(b) the transport of dangerous goods by rail. (new +32)
(4) If the Competent Authority grants an exemption to a person, the Competent Authority must send a notice to the person stating:
(a) the provisions of the {subordinate law} that are the subject of the exemption; and
(b) the dangerous goods to which the exemption applies; and
(c) the period of time for which the exemption remains in force; and
(d) the conditions to which the exemption is subject; and
(e) the geographical area for which the exemption is valid. (32)
(5) If the Competent Authority:
(a) grants an exemption to a class of persons; or
(b) grants an exemption that is to remain in force for longer than 6 months;
the Competent Authority must place a notice in the Government Gazette specifying all the details in subsection (4) and the person or class of persons to which the exemption applies. (32)
(6) A person operating under an exemption must comply with any condition subject to which the exemption was granted. (32)
Offence provision. (32)
(7) If an exemption is granted to a person, and the exemption applies to a vehicle or to premises, the person must keep a copy of the notice of exemption in the vehicle or premises. (32)
(8) If the Competent Authority:
(a) grants an exemption to a class of persons; or
(b) grants an exemption that is to remain in force for longer than 6 months;
the Competent Authority must notify the Competent Authority of each other State and Territory of the details of the exemption. (32)
65 Variation and cancellation of exemptions and conditions
(1) The Competent Authority may cancel an exemption if:
(a) the Authority is satisfied that a condition to which the exemption is subject has not been complied with; or
(b) the Authority is no longer satisfied of the matters referred to in subsection 64 (2). (33)
(2) The Competent Authority may vary or cancel conditions to which an exemption is subject or impose new conditions. (33)
(3) An exemption granted to a person is to be varied or cancelled by notice in writing given to the person, and the variation or cancellation takes effect from the day on which the notice is given, or from a later day specified in the notice. (33)
(4) An exemption granted to a class of persons is to be varied or cancelled by notice published in the Government Gazette, and the variation or cancellation takes effect on the day of publication, or from a later day specified in the notice. (33)
66 Review of exemption etc
If the Competent Authority:
(a) refuses to grant an exemption to a person or a class of persons; or
(b) cancels an exemption granted to a person or a class of persons; or
(c) grants an exemption to a person or a class of persons subject to conditions; or
(d) varies or cancels conditions to which an exemption granted to a person or a class of persons is subject or imposes new conditions;
the person or a representative of the class of persons may apply for a review of the decision. (new + 33A)
67 Application orders and emergency orders
(1) The Minister may order, by notice in the Government Gazette, that the operation of the {subordinate law}, or of specified parts of the {subordinate law}:
(a) is suspended for a specified period; or
(b) is varied in a manner specified by the Minister. (34)
(2) An order may have effect in relation to the whole jurisdiction or to a specified area. (34)
Part 5—Offences and penalties
68 Offence provisions
(1) In this section, a reference to this Act does not include the {subordinate law}. (new)
(2) If a provision of this Act is followed by the phrase ‘Offence provision’, an individual who fails to comply with the provision is guilty of an offence punishable by a penalty (whether a fine, imprisonment or both) not exceeding the penalty set out for the offence in column 3 of Schedule 1.1. (new)
(3) If a body corporate is found guilty of the offence, the maximum fine for the body corporate is 5 times the maximum fine that could be imposed on an individual for the offence. (new)
69 Failure to hold licence etc
(1) A prime contractor must not use a vehicle to transport dangerous goods (other than as the driver of the vehicle) if:
(a) the {subordinate law} requires the vehicle to be licensed to transport the goods; and
(b) the vehicle is not licensed under the {subordinate law}. (35)
Offence provision. (35)
(2) A person must not employ, engage or permit another person to drive a vehicle transporting dangerous goods if the other person is required by the {subordinate law} to be licensed to drive the vehicle and is not so licensed. (35)
Offence provision. (35)
(3) A person must not drive a vehicle transporting dangerous goods if:
(a) the {subordinate law} requires the vehicle to be licensed to transport the goods; and
(b) the vehicle is not licensed under the {subordinate law}. (35)
Offence provision. (35)
(4) A person who is required by the {subordinate law} to be accredited to be involved in the transport of dangerous goods, or a particular aspect of that transport, must not be so involved without being so accredited. (35)
Offence provision. (35)
(5) A person must not drive a vehicle transporting dangerous goods if:
(a) the {subordinate law} requires the person to be licensed to drive the vehicle; and
(b) the person is not licensed under the {subordinate law}. (35)
Offence provision. (35)
{(6) For this section:
(a) an offence against subsection (1), (3), (4) or (5) is an offence of strict liability; and
(b) strict liability applies to the physical element in subsection (2) that the other person is required by the {subordinate law} to be licensed to drive the vehicle.} (new)
70 Goods too dangerous to be transported
(1) A person must not consign goods for transport if the {subordinate law} identifies the goods as being goods too dangerous to be transported. (36 + new)
Offence provision. (36)
(2) An offence against subsection (1) is an offence of strict liability.
(3) Subsection (1) includes a person who arranges for the conveyance of goods too dangerous to be transported on a vehicle owned or controlled by the person. (new)
(4) For the purposes of this section, a person consigns goods too dangerous to be transported if:
(a) subsection (5) applies to the person; or
(b) subsection (5) does not apply to the person or anyone else, but subsection (6) applies to the person; or
(c) subsections (5) and (6) do not apply to the person or anyone else, but subsection (7) applies to the person.
(5) This subsection applies to a person who, with the person’s authority, is named or otherwise identified in transport documentation as the consignor of the goods too dangerous to be transported.
(6) This subsection applies to a person who:
(a) engages a prime contractor or rail operator, either directly or through an agent or other intermediary, to transport the goods too dangerous to be transported; or
(b) if {clause} (a) does not apply, has possession of, or control over, the goods immediately before the goods are transported; or
(c) if neither {clause} (a) or (b) applies, loads a vehicle with the goods, for transport, at a place:
(i) where the goods are awaiting collection; and
(ii) that is unattended (except by the driver) during loading.
(7) This subsection applies to a person if:
(a) the goods too dangerous to be transported are imported into Australia; and
(b) the person is the importer of the goods.
71 Duties concerning the transport of dangerous goods
(1) A person involved in the transport of dangerous goods by road or rail who fails to ensure that the goods are transported in a safe manner is guilty of an offence. (37)
Offence provision. (new)
(2) If a person involved in the transport of dangerous goods by road or rail fails to comply with a provision of this Act in circumstances where the person knew, or reasonably ought to have known, that the failure would be likely to endanger the safety of another person or of property or the environment, the person is guilty of an offence. (37)
Offence provision. (37)
{(3) It is a defence to a prosecution for an offence against subsection (1) that the person complied with the subsection as far as practicable.} (37 (1))
Part 6—General administrative sanctions
Division 1—Improvement notices
72 Improvement notices
(1) This section applies where an authorised officer is of the opinion that a person has contravened, is contravening or is likely to contravene a provision of this Act.
(2) The authorised officer may serve on the person an improvement notice requiring the person to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention, before the date specified in the notice.
(3) The notice must specify a date (with or without a time) by which the person is required to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, that the officer considers is reasonable having regard to the severity of any relevant risks and the nature of the contravention or likely contravention.
(4) The improvement notice must:
(a) state that the authorised officer is of the opinion referred to in subsection (1); and
(b) state the reasons for that opinion; and
(c) specify the provisions of this Act in respect of which that opinion is held; and
(d) include information about obtaining a review of the notice; and
(e) state that it is issued under this section.
(5) The improvement notice may but need not specify the method by which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, are to be remedied.
73 Contravention of improvement notice
(1) A person who is subject to an improvement notice must not engage in conduct that results in a contravention of a requirement of the improvement notice.
Offence provision.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
(3) The person charged bears an evidential burden in relation to the matter in subsection (2).
(4) In proceedings for an offence of engaging in conduct that results in a contravention of a requirement of an improvement notice, it is a defence if the person charged establishes that:
(a) the alleged contravention or likely contravention; or
(b) the matters or activities occasioning the alleged contravention or likely contravention;
were remedied within the period specified in the notice, though by a method different from that specified in the improvement notice.
{(5) An offence under subsection (1) is an offence of strict liability.}
74 Amendment of improvement notices
(1) An improvement notice served by an authorised officer may be amended by that authorised officer or any other authorised officer.
(2) An amendment of an improvement notice is effected by service on the person affected of a notice stating the terms of the amendment.
(3) An amendment of an improvement notice is ineffective if it purports to deal with a contravention of a different provision of this Act from that dealt with in the improvement notice as first served.
(4) A notice of an amendment of an improvement notice must:
(a) state the reasons for the amendment; and
(b) include information about obtaining a review of the notice; and
(c) state that it is issued under this section.
75 Cancellation of improvement notices
(1) An improvement notice served by an authorised officer may be cancelled by the Competent Authority.
(2) To be effective a notice of cancellation of an improvement notice must be served on the person affected.
76 Clearance certificates
(1) An authorised officer may issue a clearance certificate to the effect that all or a specified requirement of an improvement notice have been complied with.
(2) A requirement of an improvement notice ceases to be operative on receipt, by the person on whom the notice was served, of a clearance certificate to the effect that:
(a) all requirements of the notice have been complied with; or
(b) that specific requirement has been complied with.
Division 2—Formal warnings
77 Formal warnings
(1) An authorised officer may, instead of taking proceedings against a person for a contravention of this Act, formally warn the person if the officer believes:
(a) the person had taken reasonable steps to prevent the contravention and was unaware of the contravention; and
(b) the contravention is appropriate to be dealt with by way of a formal warning under this section.
(2) A formal warning must be in writing.
(3) In this section:
proceedings includes action by way of an infringement notice.
78 Withdrawal of formal warnings
(1) A formal warning may be withdrawn by the Competent Authority by serving on the alleged offender a written notice of withdrawal within 21 days after the formal warning was given.
(2) After the formal warning has been withdrawn, proceedings may be taken against the person for the contravention.
(3) In this section:
proceedings includes action by way of an infringement notice.
Division 3—Infringement notices
79 Infringement notices and infringement penalties
(1) An authorised officer who believes on reasonable grounds that a person has committed an infringement notice offence may serve the person with an infringement notice as an alternative to prosecution in court for the offence. (CEB 125)
(2) The infringement penalty for an infringement notice offence is:
(a) for an offence against this Act (other than an offence against the {subordinate law})—the amount specified in column 2 of Schedule 1.1 for the offence; or
(b) for an offence against the {subordinate law}—the amount specified in the {subordinate law} as the infringement penalty for the offence. (CEB 125 + new)
(3) The infringement penalty for an offence must not exceed 20% of the maximum penalty that could be imposed on an individual by a court in respect of the offence. (CEB 125)
(4) In this section:
infringement notice offence means an offence declared to be an offence for which an infringement notice may be served. (new)
infringement penalty means the monetary penalty that a person who is served with an infringement notice may, as an alternative to having the matter dealt with by a court, pay to dispose of the matter. (new)
Part 7—General court‑based sanctions
Division 1—Proceedings for offences
80 Proceedings for offences
Proceedings for an offence may be dealt with summarily.
81 Proceedings for an offence may be brought by authorised officers
A prosecution for an offence may be brought by an authorised officer. (39)
82 Period within which proceedings for offences may be commenced
(1) Unless this Act otherwise provides proceedings for an offence may be commenced within:
(a) the period of 2 years after the commission of the alleged offence; or
(b) a further period of 1 year commencing on the day on which the Competent Authority or an authorised officer first obtained evidence of the commission of the alleged offence considered reasonably sufficient by the Authority or officer to warrant commencing proceedings.
(2) For the purposes of subsection (1), a certificate purporting to have been issued by the Authority or an authorised officer as to the date when the Authority or the officer first obtained evidence considered reasonably sufficient by the Authority or officer to warrant commencing proceedings is admissible in any proceedings and is prima facie evidence of the matters stated.
Division 2—Available sanctions
83 Penalties imposed by courts
(1) A court that finds a person guilty of an offence may impose any one or more of the penalties provided for by this Part.
(2) Without affecting a court’s discretion, the court is required to take into consideration, when imposing more than one of the penalties provided for by this Part, the combined effect of the penalties imposed.
(3) Nothing in this Part affects any discretions or powers that a court or other person or body has apart from this Part.
(4) If one or more courts make orders under this Part that result in both a supervisory intervention order and an exclusion order being in force at the same time in relation to the same person, the supervisory intervention order has no effect while the exclusion order has effect.
Division 3—Fines
84 Penalty levels: offences referred to in Schedule 1
(1) A court may impose on an individual who is found guilty of an offence a penalty not exceeding the maximum penalty indicated in respect of the offence in Column 3 of Schedule 1.1.
(2) A court may impose on a body corporate that is found guilty of an offence a penalty not exceeding 5 times the maximum penalty that could be imposed on an individual in respect of the offence.
Division 4—Commercial benefits penalty orders
85 Commercial benefits penalty orders
(1) The court that finds a person guilty of an offence may, on the application of the Competent Authority, make an order under this section.
(2) The court may make a commercial benefits penalty order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that:
(a) was received or receivable, by the person or by an associate of the person, from the commission of the offence; and
(b) in the case of a journey that was interrupted or not commenced because of action taken by an authorised officer in connection with the commission of the offence—would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed.
(3) In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account:
(a) benefits of any kind, whether monetary or otherwise; and
(b) any other matters that it considers relevant, including (for example):
(i) the value of any goods involved in the offence; and
(ii) the distance over which any such goods were or were to be carried.
(4) However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.
(5) Nothing in this section prevents the court from ordering payment of an amount that is:
(a) less than 3 times the estimated gross commercial benefit; or
(b) less than the estimated gross commercial benefit.
Division 5—Licensing and registration sanctions
86 Power to affect licences
(1) The court that finds the driver of a vehicle guilty of an offence may make an order for either or both of the following:
(a) that a licence the driver is required to have by the {subordinate law} is:
(i) cancelled; or
(ii) modified or suspended for a specified period;
(b) that the driver is disqualified from obtaining or holding a licence a person is required to have by {the subordinate law} for a specified period.
(2) An order under this section operates by force of this Act and takes effect immediately or from a later specified date.
87 Power to affect road vehicle registration
(1) This section applies where the registered operator of a road vehicle is convicted of an offence under this Act in relation to the vehicle.
(2) The court that finds the person guilty of the offence may make an order that the registration of the vehicle is:
(a) cancelled; or
(b) suspended for a specified period.
(3) The court may also make an order that the registered operator or an associate of the registered owner, is disqualified from registering the vehicle for a specified period.
(4) If the court considers that another person who is not present in court may be substantially affected by an order under this section, the court may issue a summons to that other person to show cause why the order should not be made.
(5) An order under this section operates by force of this Act and takes effect immediately or from a later specified date.
(6) In this section registered operator, in relation to a road vehicle, means the person recorded by an Australian Authority on a register maintained in accordance with an Australian road law as the person responsible for the vehicle.
Division 6—Supervisory intervention orders
88 Supervisory intervention orders
(1) The court that finds a person guilty of an offence may, on the application of the Competent Authority, if the court considers the person to be a systematic or persistent offender against this Act, make an order under this section.
(2) The court may make a supervisory intervention order requiring the person (at the person’s own expense and for a specified period not exceeding one year) to do any or all of the following:
(a) to do specified things that the court considers will improve the person’s compliance with this Act or specified provisions of this Act, including (for example) the following:
(i) appointing or removing staff to or from particular activities or positions;
(ii) training and supervising staff;
(iii) obtaining expert advice as to maintaining appropriate compliance;
(iv) installing monitoring, compliance, managerial or operational equipment (including, for example, intelligent transport system equipment);
(v) implementing monitoring, compliance, managerial or operational practices, systems or procedures;
(b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Competent Authority or a person nominated by the Authority;
(c) to furnish compliance reports to the Competent Authority or the court or both as specified in the order;
(d) to appoint a person to have responsibilities:
(i) to assist the person in improving compliance with this Act or specified provisions of this Act; and
(ii) to monitor the person’s performance in complying with this or specified provisions of this Act and in complying with the requirements of the order; and
(iii) to furnish compliance reports to the Competent Authority or the court or both as specified in the order.
(3) The court may specify matters that are to be dealt with in compliance reports and the form, manner and frequency in which compliance reports are to be prepared and furnished.
(4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form, manner and frequency in which they are to be made public.
(5) The court may only make a supervisory intervention order if it is satisfied that the order is capable of improving the person’s ability or willingness to comply with this Act, having regard to:
(a) the offences of which the person has been previously found guilty; and
(b) the offences for which the person has been proceeded against by way of unwithdrawn infringement notices; and
(c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the transport of dangerous goods.
(6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order.
(7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of:
(a) the Competent Authority; or
(b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
(8) In this section:
compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to:
(a) the performance of the person in complying with:
(i) this Act or provisions of this Act specified in the order; and
(ii) the requirements of the order; and
(b) without limiting the above:
(i) things done by the person to ensure that any failure by the person to comply with this or the specified provisions of this Act does not continue; and
(ii) the results of those things having been done.
89 Contravention of supervisory intervention order
A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in a contravention of the requirement.
Offence provision.
Division 7—Exclusion orders
90 Exclusion orders
(1) The court that finds a person guilty of an offence may, on the application of the Competent Authority, if the court considers the person to be a systematic or persistent offender against this Act, make an order under this section.
(2) For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences, the court may make an exclusion order prohibiting the person, for a specified period, from involvement in the transport of dangerous goods or in any aspect of that transport.
(3) The court cannot make an exclusion order that prohibits the person from driving or registering a vehicle.
(4) The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to:
(a) the offences of which the person has been previously found guilty; and
(b) the offences for which the person has been proceeded against by way of unwithdrawn infringement notices; and
(c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with involvement in the transport of dangerous goods.
(5) A court that has power to make exclusion orders may revoke or amend an exclusion order on the application of:
(a) the Competent Authority; or
(b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
91 Contravention of exclusion order
A person who is subject to a prohibition contained in an exclusion order must not engage in conduct that results in a contravention of the prohibition.
Offence provision.
Division 8—Forfeiture orders
92 Forfeiture
(1) The court that finds a person guilty of an offence in relation to dangerous goods may, on the application of the Competent Authority, if the court is satisfied that the person owns the goods or that their owner cannot be identified, order, in addition to imposing any other penalty, that the dangerous goods and their containers to be forfeited to the Crown.
(2) Dangerous goods and containers forfeited to the Crown may be collected, packaged, transported destroyed, sold or otherwise disposed of as directed by the Competent Authority.
(3) The person found guilty of the offence must pay to the Crown the reasonable costs of collecting, packaging, transporting, storing destroying, selling or otherwise disposing of the dangerous goods and containers.
Part 8—Compensation orders
Division 1—Definitions
93 Definitions
In this Part:
compensation order means an order made under this Part.
rail or road authority means a person or body (whether or not a public authority) that is responsible for the care, control or management of a railway or road, as the case may be.
rail or road infrastructure includes:
(a) a road, including its surface or pavement and a railway including its rails and junctions; and
(b) anything under or supporting a road or a railway, its surface, pavement or rails and maintained by a rail or road authority; and
(c) any bridge, tunnel, causeway, road‑ferry, ford or other work or structure forming part of a rail or road system or supporting a railway or road; and
(d) any bridge or other work or structure located above, in or on a railway or road and maintained by a rail or road authority; and
(e) any traffic control devices, railway or tramway equipment, electricity equipment, emergency telephone systems or any other facilities (whether of the same or a different kind) in, on, over, under or connected with anything referred to in paragraphs (a) to (d).
Division 2—General compensation orders
94 Compensation orders for damage to road and rail infrastructure
(1) The court that finds a person guilty of an offence may make an order under this Part.
(2) The court may make a compensation order requiring the offender to pay a rail or road authority such amount by way of compensation as the court thinks fit for damage to any rail or road infrastructure that the rail or road authority has incurred or is likely to incur in consequence of the offence.
(3) A compensation order may be made on the application of the rail or road authority or the Competent Authority.
(4) A compensation order may only be made in favour of the rail or road authority.
(5) The court may make a compensation order where it is satisfied on the balance of probabilities that the commission of the offence caused or contributed to the damage.
(6) The court may make a compensation order when it finds the offender guilty of the offence or at any time afterwards, but not later than the period within which a prosecution for the offence could have been commenced.
95 Assessment of compensation
(1) In making a compensation order, the court may assess the amount of compensation in such manner as it considers appropriate, including (for example) the estimated cost of remedying the damage.
(2) In assessing the amount of compensation, the court may take into account such matters as it considers relevant, including:
(a) any evidence adduced in connection with the prosecution of the offence; and
(b) any evidence not adduced in connection with the prosecution of the offence but adduced in connection with the making of the proposed order; and
(c) any certificate of the rail or road authority stating that it maintains the railway or road infrastructure concerned; and
(d) any other certificate of the rail or road authority, such as a certificate:
(i) estimating the monetary value of all or any part of the rail or road infrastructure or of the damage to it; or
(ii) estimating the cost of remedying the damage; or
(iii) estimating the extent of the offender’s contribution to the damage.
96 Service of certificates
(1) If a rail or road authority proposes to use a certificate in proceedings, it must serve a copy of the certificate on the defendant at least 28 working days before the day on which the matter is set down for hearing.
(2) Such a certificate cannot be used in the proceedings unless a copy of it has been served in accordance with this section.
(3) A defendant who wishes to challenge a statement in such a certificate must serve a notice in writing on the rail or road authority at least 14 working days before the day on which the matter is set down for hearing.
(4) The notice must specify the matters in the certificate that are intended to be challenged.
(5) If the defendant is intending to challenge the accuracy of any measurement, analysis or reading in the certificate, the defendant must specify the reason why the defendant alleges that it is inaccurate and must specify the measurement, analysis or reading that the defendant considers to be correct.
(6) The defendant cannot challenge a matter in the certificate if the requirements of this section have not been complied with in relation to the certificate, unless the court gives leave to do so in the interests of justice.
97 Limits on amount of compensation
(1) If, in making a compensation order, the court is satisfied that the commission of the offence concerned contributed to the damage but that other factors not connected with the commission of the offence also contributed to the damage, the court must limit the amount of the compensation payable by the offender to the amount it assesses as being the offender’s contribution to the damage.
(2) The maximum amount of compensation cannot exceed the monetary jurisdictional limit of the court in civil proceedings.
(3) The court may not include in the order any amount for:
(a) personal injury or death; or
(b) loss of income (whether sustained by a rail or road authority or any other person or organisation); or
(c) damage to any property (including a vehicle) that is not part of the rail or road infrastructure.
Division 3—Costs compensation orders
98 Recovery of costs from convicted person
(1) A court that convicts a person of an offence may, in addition to imposing any other penalty, order the convicted person to pay the Competent Authority costs:
(a) that were reasonably incurred in taking the action; and
(b) that were directly related to the investigation of the offence.
(2) Those costs include costs for testing, transporting, storing and disposing of the dangerous goods and other evidence.
Division 4—Costs and recovery
99 Costs
The court has the same power to award costs in relation to the proceedings for a compensation order as it has in relation to civil proceedings, and the relevant provisions of laws applying to costs in relation to civil proceedings apply with any necessary adaptations to costs in relation to the proceedings for the compensation order.
100 Enforcement of compensation order and costs
A compensation order, and any award of costs, are enforceable as if they were a judgment of the court in civil proceedings.
101 Relationship with orders or awards of other courts and tribunals
(1) A compensation order may not be made if another court or tribunal has awarded compensatory damages or compensation in civil proceedings in respect of the damage based on the same or similar facts, and if a court purports to make an order under this Part in those circumstances:
(a) the order is void to the extent that it covers the same matters as those covered by the other award; and
(b) any payments made under the order to the extent to which it is void must be repaid by the rail or road authority.
(2) The making of a compensation order does not prevent another court or tribunal from afterwards awarding damages or compensation in civil proceedings in respect of the damage based on the same or similar facts, but the court or tribunal must take the order into account when awarding damages or compensation.
Part 9—General liability and evidentiary provisions
Division 1—Basis of liability for offences
102 Multiple offenders
(1) This section applies where a provision of this Act provides (expressly or impliedly) that each of 2 or more persons is liable for an offence.
(2) Proceedings may be taken against all or any of the persons.
(3) Proceedings may be taken against any of the persons:
(a) regardless of whether or not proceedings have been commenced against any of the other persons; and
(b) if proceedings have been commenced against any of the other persons—regardless of whether or not the proceedings have been concluded; and
(c) if proceedings have been concluded against any of the other persons—regardless of the outcome of the proceedings.
(4) This section has effect subject to any provision of this Act to the contrary.
103 Double jeopardy
(1) A person may be punished only once in relation to the same failure to comply with a particular provision of this Act, even if the person is liable in more than one capacity.
(2) Despite subsection (1), a person may be punished for more than one breach of a provision of this Act where the breaches relate to different parts of the same vehicle or of the same dangerous goods.
104 Liability of directors, partners, employers and others for offences by bodies corporate, partnerships, associations and employees
(1) If a body corporate commits an offence, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly.
(2) If a person who is a partner in a partnership commits an offence in the course of the activities of the partnership, each other person who is a partner in the partnership, and each other person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly.
(3) If a person who is concerned in the management of an unincorporated association commits an offence in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly.
(4) If an employee commits an offence, the employer is taken to have committed the offence and is punishable accordingly.
(5) This section does not affect the liability of the person who actually committed the offence.
(6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence.
(7) It is a defence to a charge for an offence arising under subsection (1) if the defendant establishes that:
(a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence; or
(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.
(8) It is a defence to a charge for an offence arising under subsection (2) or (3) if the defendant establishes that:
(a) the defendant was not in a position to influence the conduct of the person who actually committed the offence; or
(b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.
(9) It is a defence to a charge for an offence arising under subsection (4) if the defendant establishes that:
(a) the defendant had no knowledge of the actual offence; and
(b) the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.
105 Complicity and common purpose (aiding and abetting)
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must:
(a) have intended that:
(i) his or her conduct would aid, abet, counsel or procure the commission of any offence of the type the other person committed; or
(ii) his or her conduct would aid, abet, counsel or procure the commission of an offence; and
(b) have been reckless about the commission of the offence that the other person in fact committed.
(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took reasonable steps to prevent the commission of the offence.
(5) This section does not affect the liability of the principal offender.
(6) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.
106 Causing or permitting
(1) A person who causes or permits another person to commit an offence is taken to have committed that offence and is punishable accordingly.
(2) This section does not affect the liability of the person who actually committed the offence.
(3) This section does not apply in relation to directions given by authorised officers under this Act.
107 Coercing, inducing or offering incentive
(1) A person who urges another person to commit an offence is guilty of an offence.
(2) Without limiting the above, a person urges another person to commit an offence if the person threatens, intimidates, coerces, induces or offers an incentive to the other person to commit the offence.
(3) This section does not affect the liability of the person who actually committed the road law offence.
Division 2—General defences
108 Sudden or extraordinary emergency
(1) It is a defence to a charge for an offence if the person charged carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believed that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
109 Lawful authority
It is a defence to a charge for an offence if the person charged establishes that the conduct constituting the offence is authorised or excused by or under a law.
110 Other defences
Nothing in this Act affects defences available under other laws of this jurisdiction.
Division 3—Special defences
111 Special defence for owners or operators
(1) It is a defence to a charge for an offence alleged to have been committed by a person in the capacity of an owner or operator of a vehicle transporting dangerous goods if the person establishes that the vehicle was being used at the relevant time by:
(a) another person not entitled (whether by express or implied authority or otherwise) to use it, other than an employee or agent of the alleged offender; or
(b) an employee of the alleged offender who was acting at the relevant time outside the scope of the employment; or
(c) an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency.
(2) If the offence relates to a breach of this Act in connection with alleged deficiencies concerning the vehicle or dangerous goods, the defence is not available unless the alleged offender establishes that:
(a) the vehicle or dangerous goods had not, before they ceased to be under the alleged offender’s control, been driven or transported on a road in Australia in breach of this Act or a corresponding law arising in connection with all or any of those alleged deficiencies; and
(b) one or more material changes, resulting in the alleged breach, had been made after the vehicle or dangerous goods had ceased to be under the alleged offender’s control.
(3) In this section:
deficiency concerning a vehicle or dangerous goods means a deficiency in anything that is required by the {subordinate law} to be carried on or in a vehicle or on or in dangerous goods.
owner, in respect of a vehicle, means a person who:
(a) is the sole owner, a joint owner or a part owner of the vehicle; or
(b) has possession or use of the vehicle under a credit, hire‑purchase, lease or other agreement, except an agreement requiring the vehicle to be registered in the name of someone else.
112 Special defence of compliance with direction
It is a defence to a charge for an offence if the person charged establishes that the conduct constituting the offence was done in compliance with a direction given by an authorised officer or a police officer.
Division 4—General evidentiary provisions
113 Vicarious responsibility
(1) If, in proceedings for an offence, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the relevant state of mind.
(2) For the purposes of a prosecution for an offence, conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
(3) If, in proceedings for an offence, it is necessary to establish the state of mind of a person other than a body corporate (the employer) in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the employer within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the relevant state of mind.
(4) For the purposes of a prosecution for an offence, conduct engaged in on behalf of a person other than a body corporate (the employer) by an employee or agent of the employer within the scope of his or her actual or apparent authority is taken to have been engaged in also by the employer, unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct.
(5) In this section:
director of a body corporate includes a constituent member of a body corporate incorporated for a public purpose by a law of any jurisdiction.
state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
114 Evidence
(1) In a prosecution for an offence, if an authorised officer gives evidence that he or she believes any of the matters referred to in subsection (2), the Court must, if:
(a) it considers the belief to be reasonable; and
(b) there is no evidence to the contrary;
accept the matter as proved. (40 (1))
(2) The matters are:
(a) that dangerous goods described in transport documents carried in a vehicle are being carried in the vehicle; or
(b) that particular goods are dangerous goods or dangerous goods of a particular type; or
(c) if markings or placards on or attached to a substance or container indicate that the substance is or the container contains particular dangerous goods—that the substance is or the container contains those dangerous goods; or
(d) if markings on, or attached to, a package or overpack indicates that the package or overpack contains particular dangerous goods—that the package or overpack contains those dangerous goods; or
(e) if markings or placards on or attached to a vehicle or equipment indicate that the vehicle or equipment is being used to transport dangerous goods—that the vehicle or equipment is being used to transport those dangerous goods; or
(f) if markings or placards on or attached to a substance or container indicate, in relation to the substance, the container or the contents of the container, a particular capacity, tare weight, origin, character, specification, ownership or date of manufacture—that the substance, the container or the contents of the container has that capacity, tare weight, origin, character, specification, ownership or date of manufacture; or
(g) if markings on, or attached to, a package or overpack indicates, in relation to the contents of the package or overpack, a particular capacity, tare weight, origin, character, specification, ownership or date of manufacture—that the contents of the package or overpack has that capacity, tare weight, origin, character, specification, ownership or date of manufacture; or
(h) if markings or placards on or attached to a vehicle or container indicate, in relation to the load of the vehicle or the contents of the container, a particular quantity of dangerous goods—that the vehicle or container contained that quantity of dangerous goods; or
(i) that a person was not, at a particular time, accredited or the holder of a licence relating to dangerous goods. (40 (2) + new)
(3) A court may admit the following documents as evidence if they appear to be signed by the Competent Authority or by a person exercising powers delegated by the Competent Authority for the relevant purpose:
(a) documents relating to whether a person is exempt from certain requirements under section 64; or
(b) documents relating to vehicles, equipment or other items required by the {subordinate law} to be approved by the Competent Authority; or
(c) documents relating to accreditation or licensing by the Competent Authority. (40 (4))
(4) The court must accept the documents as proof of the facts stated in them if there is no evidence to the contrary. (40 (5))
115 Evidence regarding weighing
Evidence of a record made by:
(a) the operator of a weighbridge or weighing facility; or
(b) an employee of the operator of the weighbridge or weighing facility;
of the mass of a vehicle transporting dangerous goods or a container containing dangerous goods weighed at the weighbridge or facility is admissible in any proceedings and is prima facie evidence of the mass of the vehicle or container at the time it was weighed.
116 Proof of appointments and signatures unnecessary
(1) For the purposes of this Act, it is not necessary to prove the appointment of an authorised officer.
(2) For the purposes of this Act, a signature purporting to be the signature of an authorised officer is evidence of the signature it purports to be.
117 Transport documentation
(1) Transport documentation is admissible in any proceedings under or for the purposes of this Act and is prima facie evidence of:
(a) the identity and status of the parties to the transaction to which it relates; and
(b) the destination or intended destination of the load to which it relates.
(2) The reference in subsection (1) to the status of parties includes a reference to their status in respect of their involvement in the transport of dangerous goods.
118 Use of codes of practice etc in proceedings
(1) This section applies to a code of practice, guideline or other document that is approved by the Australian Transport Council for the purpose of providing practical guidance to persons engaged in the transport of dangerous goods. (41)
(2) If:
(a) in proceedings against a person for an offence, it is alleged that a person contravened a provision of this Act; and
(b) a code of practice, guideline or other document to which this section applies specifies a means of complying with the provision or with a requirement of the provision; and
(c) either:
(i) the code of practice, guideline or other document has been published in the Government Gazette; or
(ii) copies of the code of practice, guideline or other document are available for purchase or inspection within this jurisdiction;
then:
(d) the code of practice, guideline or other document is admissible in the proceedings; and
(e) if the court is satisfied that, at the relevant time, the person acted in accordance with the code of practice, guideline or other document, the person is taken to have complied with the provision or requirement. (41)
Part 10—Prohibition notices
119 Definitions
For the purpose of this Part:
dangerous activity means an activity:
(a) that relates to the transport of dangerous goods by road or rail; and
(b) that is occurring or may occur in relation to or in the immediate vicinity of the dangerous goods; and
(c) that involves or could involve an immediate risk to safety.
prohibition notice means a notice served in accordance with section 120.
120 Prohibition notice may be served
(1) This section applies if an authorised officer believes on reasonable grounds that a dangerous activity is occurring or may occur.
(2) The authorised officer may serve on a person who has or appears to have control over the activity a notice that prohibits the person :
(a) from carrying on the activity; or
(b) from carrying on the activity in a specified way,
until the authorised officer has certified in writing that the activity is not or is longer a dangerous activity.
121 Prohibition notice
(1) A prohibition notice has effect:
(a) upon being served; or
(b) if the notice specifies a later date, on that date.
(2) A prohibition notice served on a person must:
(a) state that the notice is served in accordance with this Act; and
(b) require the person to cease the dangerous activity or to cease carrying it out in a specified manner; and
(c) state the basis for the authorised officer’s belief that the activity is a dangerous activity; and
(d) if the authorised officer believes that the dangerous activity involves a contravention of a law, specify the law and the relevant provision of it; and
(d) state how a review of the decision to serve the notice may be obtained; and
(e) state the penalty for failing to comply with the notice.
(3) A prohibition notice may include a direction on the measures to be taken to minimise or eliminate the risk caused by the dangerous activity.
(4) A direction may:
(a) require measures be taken in accordance with a compliance code; or
(b) offer a choice of ways to minimise or eliminate the risk caused by the dangerous activity.
(5) A prohibition notice that prohibits the carrying out of an activity in a specified way may do so by specifying:
(a) a place where the activity may not be carried out; or
(b) any thing that may not be used in connection with the activity; or
(c) any procedure that may not be followed in connection with the activity.
122 Contravention of prohibition notice
A person upon whom a prohibition notice is served must comply with the requirements set out in the notice unless the person has a reasonable excuse for not doing so.
Offence provision.
123 Oral direction may be given before prohibition notice is served
(1) This section applies where an authorised officer believes on reasonable grounds:
(a) that a dangerous activity is occurring or may occur; and
(b) that it is not reasonable or immediately possible to serve a prohibition notice.
(2) The officer may direct a person who has or appears to have control over the activity to do or not to do a specified act.
(3) The officer must state the reason for giving the direction.
(4) A person to whom a direction is given must comply with it, unless the person has a reasonable excuse for not doing so.
Offence provision.
(5) It is a reasonable excuse for not complying with a direction if the authorised officer did not tell the person that it is an offence not to do so.
(6) A direction ceases to have effect if a prohibition notice in respect the activity is not served within 5 days of the direction being given.
124 Withdrawal and amendment of prohibition notice
A prohibition notice may be withdrawn by an authorised officer serving notice of withdrawal on the person served with the prohibition notice.
125 Amendment of prohibition notice
(1) A prohibition notice may be amended by an authorised officer serving notice of amendment on the person served with the prohibition notice.
(2) The notice of amendment must:
(a) state the terms of the amendment; and
(b) state the reasons for the amendment; and
(c) include information about obtaining a review of the decision to amend the notice; and
(d) state that it is served under this section.
(3) An amendment of a prohibition notice is ineffective if it purports to deal with a contravention of a different provision of a law from that dealt with in the prohibition notice.
126 Proceedings for an offence not affected by prohibition notice
The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a rail safety law.
Part 11—Miscellaneous
Division 1—Indemnities
127 Protection from liability
(1) An authorised officer or a person who is authorised under this Act by an authorised officer to do or to omit to do something does not incur civil liability for an act or omission done honestly and in good faith in the course of his or her duties.
(2) A liability that would, apart from this section, attach to an authorised officer or to a person mentioned in subsection (1) attaches instead to the Competent Authority.
128 Indemnity not affected by certain matters
(1) An indemnity under this Division is not affected merely because a vehicle was in fact not carrying dangerous goods.
(2) An indemnity under this Division is not affected merely because goods were not in fact dangerous goods.
129 Other indemnities not affected
This Division does not affect any other indemnity provided under another law, if the other indemnity is not inconsistent with an indemnity provided under this Division.
Division 2—General
130 Dismissal or other victimisation of employee or contractor assisting with or reporting breaches
(1) An employer must not dismiss an employee or contractor, injure an employee or contractor in his or her employment or alter an employee’s or contractor’s position to his or her detriment because the employee or contractor:
(a) has assisted or has given any information to a public agency in respect of a breach or alleged breach of a requirement of this Act; or
(b) has made a complaint about a breach or alleged breach of a requirement of this Act to the employer, a fellow employee or fellow contractor, a trade union or a public agency.
(2) An employer or prospective employer must not refuse or deliberately omit to offer employment to a prospective employee or prospective contractor or treat a prospective employee or prospective contractor less favourably than another prospective employee or prospective contractor would be treated in relation to the terms on which employment is offered because the first‑mentioned prospective employee or contractor:
(a) has assisted or has given any information to a public agency in respect of a breach or alleged breach of a requirement of this Act; or
(b) has made a complaint about a breach or alleged breach of a requirement of this Act to a former employer, a former fellow employee or former fellow contractor, a trade union or a public agency.
(3) A person who is an employer of the person concerned, must not engage in conduct that results in a contravention of subsection (1).
Offence provision.
(4) A person who an employer or prospective employer of the person concerned must not engage in conduct that results in a contravention of subsection (2).
Offence provision.
(5) In proceedings for an offence under this section, if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the defendant’s action was not actuated by the reason alleged in the charge lies on the defendant.
(6) If a person is found guilty of an offence under this section, the court may, in addition to imposing a penalty on the offender, make either or both of the following orders:
(a) an order that the offender pay within a specified period to the employee or contractor or to the prospective employee or prospective contractor such damages as it thinks fit by way of compensation;
(b) an order that:
(i) the employee or contractor be reinstated or re‑employed in the employee’s or contractor’s former position or (if that position is not available) in a similar position; or
(ii) the prospective employee or prospective contractor be employed in the position for which the prospective employee or prospective contractor had applied or (if that position is not available) in a similar position.
(7) The maximum amount of damages cannot exceed the monetary jurisdictional limit of the court in civil proceedings.
(8) An order for payment of damages is enforceable as if it were a judgment of the court sitting in civil proceedings.
(9) A person must comply with an order for employment, reinstatement or re‑employment.
Offence provision.
(10) A person who is subject to an order under paragraph (6) (b) must not engage in conduct that results in a contravention of the order.
Offence provision.
(11) In this section:
contractor means an individual who works under a contract for services.
public agency means an authorised or a police officer of this or any other jurisdiction or a Competent Authority of this or any other jurisdiction.
{(12) The offence under subsection (10) is an offence of strict liability.}
131 Confidentiality
(1) This section applies to a person engaged or previously engaged in the administration of this Act and (without limiting the foregoing) to:
(a) a person who is or was a delegate of the Competent Authority; or
(b) a person who is or was employed by, or engaged to provide services to or on behalf of, the Competent Authority; or
(c) a person who is or was employed by, or engaged to provide services to, a person or body engaged to provide services to the Competent Authority.
(2) A person to whom this section applies must not divulge or communicate information obtained (whether by that person or otherwise) in the administration of this Act except:
(a) as required or authorised by or under this or any other Act; or
(b) with the consent of the person from whom the information was obtained or to whom the information relates; or
(c) in connection with the administration of this Act; or
(d) to the Competent Authority or an authorised officer or a police officer; or
(e) to a prescribed public authority of any jurisdiction; or
(f) to a public authority of any jurisdiction for law enforcement purposes; or
(g) to a court or in connection with any legal proceedings; or
(h) in accordance with guidelines approved by the Minister.
(3) Information that has been disclosed under subsection (2) for a particular purpose must not be used for any other purpose by:
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.
(4) A person must not engage in conduct that results in a contravention of subsection (2) or (3).
Offence provision.
(5) Nothing in this section prevents information from being used:
(a) to assist a person in deciding whether or not to withdraw a formal warning for any offence; or
(b) to enable the Competent Authority to accumulate aggregate data and to enable it to authorise use of the aggregate data for the purposes of research or education.
{(6) An offence under subsection (4) is an offence of strict liability.}
132 False or misleading statements or records provided to Authority or officials
(1) A person must not make a statement to the Competent Authority or to an authorised officer who is exercising a power under this Act that the person knows is false or misleading in a material particular.
Offence provision.
(2) A person must not make a statement that is false or misleading in a material particular to the Competent Authority or to an authorised officer who is exercising a power under a road law reckless as to whether the statement is false or misleading in a material particular.
Offence provision.
(3) A person must not give a record to the Competent Authority or to an authorised officer who is exercising a power under this Act that the person knows is false or misleading in a material particular.
Offence provision.
(4) A person must not give to the Competent Authority or to an authorised officer who is exercising a power under this Act a record that is false or misleading in a material particular reckless as to whether the record is false or misleading in a material particular.
Offence provision.
(5) Subsection (3) does not apply if, at the time the person gave the record to the Competent Authority or officer, the person informed the Authority or officer that the record was false or misleading in a material particular and specified in what respect it was false or misleading.
(6) In this section:
authorised officer includes a person who is assisting an authorised officer and a police officer.
133 Contracting out prohibited
A term of a contract or an agreement that purports to exclude, limit or modify the operation of this Act or of a provision of it is void to the extent that it would otherwise have that effect.
134 Recovery of costs of public authorities
(1) This section applies to an incident that relates to the transport of dangerous goods by road or rail, being an incident:
(a) wholly or partly constituted by or arising from:
(i) the escape of dangerous goods; or
(ii) an explosion or fire involving dangerous goods; or
(b) that involves the danger of the escape of dangerous goods or an explosion or fire involving dangerous goods. (44)
(2) If a public authority incurs costs as a result of the occurrence of an incident to which this section applies, so much of the costs as were reasonably incurred are recoverable as a debt due to the authority by action in a court of competent jurisdiction. (44)
(3) The costs are recoverable jointly or severally from the following persons:
(a) the person who was the owner of the dangerous goods at the time of the incident;
(b) the person who was in control or possession of the dangerous goods at the time of the incident;
(c) the person who caused the incident;
(d) the person responsible, otherwise than as an employee, agent or sub‑contractor of another person, for the transport of the dangerous goods by road or rail. (44)
(4) Costs are not recoverable from a person who establishes that:
(a) the incident was due to the act or default of another person; and
(b) the person could not, exercising reasonable care, have prevented the incident; and
(c) the incident was not attributable to an employee, agent or sub‑contractor of the person. (44)
(5) The recovery of costs incurred by one public authority as a result of the occurrence of an incident to which this section applies, including an award or judgment in relation to those costs or expenses, does not preclude the recovery of costs incurred by another public authority as a result of the occurrence of the incident. (44)
(6) This section does not affect a right to recover an amount in respect of costs or expenses that exists apart from this section, but a public 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 other rights. (44)
(7) In proceedings under this section, a document apparently signed by the principal officer of the public authority specifying details of the costs reasonably incurred as a result of the occurrence of an incident to which this section applies is, in the absence of evidence to the contrary, proof of the matter so specified. (44)
135 Assistance in emergencies or accidents
(1) A person does not incur civil liability for an act done honestly and in good faith, and without any fee, charge or other reward, for the purpose of assisting or attempting to assist in a situation in which an emergency or accident involving dangerous goods occurs or is likely to occur. (49)
(2) Subsection (1) does not apply to a person whose act or omission was wholly or partly the cause of the occurrence or likely occurrence. (49)
(3) Subsection (1) applies to a public authority even though the authority requires payment for a service provided in connection with the occurrence or likely occurrence. (49)
(4) This section does not apply to an authorised officer. (49)
136 Minister to notify adoption of code etc
(1) If the provisions of a code, standard or rule are applied, adopted or incorporated by the {subordinate law}, the Minister must, as soon as practicable after the {subordinate law} is made, publish in the Government Gazette a notice giving details of places where the code, standard or rule may be obtained or inspected. (50)
(2) If:
(a) the provisions of a code, standard or rule are applied, adopted or incorporated, by the {subordinate law}, as in force from time to time; and
(b) the code, standard or rule is amended or replaced;
the Minister must, as soon as practicable after the amendment or replacement, publish in the Government Gazette a notice stating that the code, standard or rule has been amended or replaced and giving details of places where the amended or replaced code, standard or rule may be obtained or inspected. (50)
(3) A reference in this section to a code, standard or rule includes a reference to one that is made outside Australia. (50)
137 Delegation
The Minister may, by instrument in writing, delegate all or any of the Minister’s powers under this Act (other the power to appoint a Competent Authority) to a Competent Authority. (47)
138 Repeal
The following Acts are repealed {as the case may be}