Subdivision Subdivision 4.4.4 - National Transport Commission (Model Legislation—Transport of Dangerous Goods by Road or Rail) Regulations 2007 - Prime contractors and rail operators | Zoe
National Transport Commission (Model Legislation—Transport of Dangerous Goods by Road or Rail) Regulations 2007
Subdivision 4.4.4Prime contractors and rail operators
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4.1.1 Transport of dangerous goods in limited quantities
Despite anything else in this Part, the packing of dangerous goods in limited quantities may be made in accordance with Chapter 3.4 of the ADG Code.
4.1.2 Packages and packaging
(1) A package of dangerous goods or other goods is the complete product of the packing of the goods for transport, and consists of the goods and their packaging.
(2) The packaging of the goods is the container in which the goods are received or held for transport, and includes anything that enables the container:
(a) to receive or hold the goods; or
(b) to be closed. (2.7, amd)
Note 1: It may be that the container constitutes the whole of the packaging as in the case of a drum in which is directly placed dangerous goods.
Note 2: Unlike in United Nations publications relating to the transport of dangerous goods, the term packaging is used in {this subordinate law} in its ordinary meaning. As such, packaging includes inner, outer and composite packaging; overpacks and large packaging; IBCs; MEGCs; tanks; bulk and freight containers; drums; barrels; jerry cans; boxes and bags.
4.1.3 Containment units
In this Part:
containment unit means a tank vehicle or any of the following packaging:
(a) an IBC;
(b) a portable tank;
(c) an MEGC;
(d) a freight container.
Division 4.2—Suitability and design of packaging
4.2.1 Suitability of packaging
(1) Packaging is unsuitable for the transport of dangerous goods if the packaging:
(a) is not approved packaging; or
(b) is not manufactured in accordance with the requirements of Part 6 of the ADG Code. (3.1, amd)
(2) Packaging that is approved packaging and manufactured in accordance with the requirements of Part 6 of the ADG Code is unsuitable for the transport of dangerous goods if it is not packed, filled or used in accordance with Part 4 of the ADG Code.
Note: See Note 2 for {clause} 4.1.2 in respect of the meaning of the term packaging.
4.2.2 Marking packaging
(1) A person must not apply any marking required by Part 6 of the ADG Code on packaging if the packaging is not approved packaging.
Offence provision. (3.2, amd)
(2) A person must not apply a marking mentioned in Part 6 of the ADG Code on packaging that is not appropriate for the packaging.
Offence provision. (3.2, amd)
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.2.3 Applications for approval
(1) The design of packaging required to undergo tests under Part 6 of the ADG Code may be approved by the Competent Authority.
Note: Examples
Note: Portable tanks, MEGCs, tank vehicles, pressure receptacles, aerosol dispensers, IBCs, bulk containers and drums, barrels, jerry cans, boxes, bags and composite packaging are some of the kinds of packaging required to undergo tests under Part 6 of the ADG Code. Performance tests include drop, leakproofness, hydraulic and stacking tests.
(2) An application for approval of a design for a packaging for use in the transport of dangerous goods must:
(a) include the information required under Part 6 of the ADG Code; and
(b) if a fee is prescribed for the application—be accompanied by the prescribed fee. (4.24, amd)
4.2.4 Approvals—packaging designs
(1) The Competent Authority may, on application in accordance with {clauses} 4.2.3 and 17.1.1, approve a design for a packaging for use in the transport of dangerous goods if:
(a) the design complies with Part 6 of the ADG Code; and
(b) the applicant has carried out the tests and inspections required under Part 6 of the ADG Code for the design.
(2) The approval of the design may be subject to any condition about the construction, packing, filling, use or maintenance of a packaging manufactured in accordance with the design necessary for the safe use of the packaging. (3.8, 4.25 and 4.26, amd)
4.2.5 Recognised testing facilities
The following testing facilities are recognised testing facilities for a packaging design type:
(a) a testing facility registered by NATA to conduct performance tests under Chapter 3 of the ADG Code for the packaging design type;
(b) if NATA has not registered a testing facility to conduct performance tests of that kind—a testing facility in Australia capable of conducting the tests;
(c) a facility in a foreign country approved by a public authority of the country to conduct performance tests of that kind.
4.2.6 Test certificates
(1) A recognised testing facility may certify in writing that a packaging design type has passed particular performance tests for particular dangerous goods.
(2) If a performance test is conducted by a testing facility registered by NATA, any test certificate must:
(a) contain any details required under the relevant Chapter of Part 6 of the ADG Code; and
(b) be in the appropriate form used by NATA registered testing facilities.
(3) If a performance test is conducted in Australia by a recognised testing facility that is not registered by NATA:
(a) the test must be observed by or for the Competent Authority; and
(b) any test certificate must contain any details required under the relevant Chapter of Part 6 of the ADG Code.
4.2.7 Approvals—overpacks
(1) The Competent Authority may, on application in accordance with {clause} 17.1.1, approve a method of preparing an overpack for transport that does not comply with section 5.1.2 of the ADG Code if the Authority considers that the risk involved in using the method is not greater than the risk involved in using a method complying with the section.
(2) The approval of a method of preparing an overpack for transport may be subject to any condition necessary for the safe transport of the dangerous goods using the method. (6.5, amd)
4.2.8 Approvals—authorised body may issue approvals
(1) The Competent Authority may, in accordance with the ADG Code and on application made in accordance with {clause} 17.1.1, approve an authorised body to issue approvals under this Division.
(2) The approval of an authorised body may be issued subject to conditions. (New)
Division 4.3—Offences relating to packaging
4.3.1 Manufacturer’s duties
(1) A person must not manufacture in Australia packaging that is designed for use in the transport of dangerous goods other than in accordance with a design that is approved under {clause} 4.2.4.
Offence provision. (new, based on 4.7, also includes 4.16 as amd)
{(2) An offence against {subclause} (1) is an offence of strict liability.}
4.3.2 Consignor’s duties
A person must not consign dangerous goods for transport in packaging if the person knows, or reasonably ought to know, that the packaging is unsuitable for the transport of the goods.
Offence provision. (3.3, amd)
4.3.3 Packer’s duties
A person must not pack dangerous goods for transport in packaging if the person knows, or reasonably ought to know, that the packaging is unsuitable for the transport of the goods.
Offence provision. (3.4, amd)
4.3.4 Loader’s duties
A person must not load dangerous goods for transport in packaging if the person knows, or reasonably ought to know, that the packaging is damaged or defective to the extent that it is not safe to use to transport the goods.
Offence provision. (3.5, amd)
4.3.5 Prime contractor’s and rail operator’s duties
A prime contractor or a rail operator must not transport dangerous goods in packaging if the prime contractor or rail operator knows, or reasonably ought to know, that the packaging is damaged or defective to the extent that it is not safe to use to transport the goods.
Offence provision. (3.6, amd)
4.3.6 Driver’s duties
A person must not drive a road vehicle transporting dangerous goods in packaging if the person knows, or reasonably ought to know, that the packaging is damaged or defective to the extent that it is not safe to use to transport the goods by road.
Offence provision. (3.7‑road only, amd)
Division 4.4—Offences relating to containment units and bulk containers
Subdivision 4.4.1—Manufacturers and owners
4.4.1 Compliance plates for portable tanks, MEGCs and tank vehicles
(1) A person who manufactures a portable tank or MEGC must attach a compliance plate to the tank or MEGC in accordance with Chapter 6.7 of the ADG Code.
Offence provision. (new)
(2) A person who manufactures a tank vehicle must attach a compliance plate to the tank vehicle in accordance with section 6.9.2.2 of the ADG Code.
Offence provision. (new)
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.4.2 Owner’s duties for certain portable tanks and MEGCs
(1) The owner of a portable tank or MEGC that is attached to a vehicle must not use the portable tank or MEGC, or permit the portable tank or MEGC to be used, to transport dangerous goods if the portable tank or MEGC:
(a) is unsuitable for the transport of the goods; or
(b) has not been maintained, tested and inspected in accordance with Chapter 6.7 of the ADG Code.
Offence provision.
{(2) An offence against {subclause} (1) is an offence of strict liability.} (4.9, amd)
Subdivision 4.4.2—Consignors
4.4.3 Consignor’s duties—general
(1) A person must not consign dangerous goods for transport in a containment unit provided by the person if the containment unit is unsuitable for the transport of the goods.
Offence provision.
(2) A person must not consign dangerous goods for transport in a bulk container provided by the person if:
(a) the material of which the bulk container is constructed is incompatible with the dangerous goods; or
(b) the bulk container is damaged or defective to the extent that it is not safe to use to transport the goods; or
(c) the bulk container is otherwise unsuitable for the transport of the goods.
Offence provision.
(3) A person must not consign dangerous goods for transport in a containment unit provided by someone else if the person knows, or reasonably ought to know, that the containment unit is unsuitable for the transport of the goods.
Offence provision.
(4) A person must not consign dangerous goods for transport in a bulk container provided by someone else if the person knows, or reasonably ought to know, that:
(a) the material of which the bulk container is constructed is incompatible with the dangerous goods; or
(b) the bulk container is damaged or defective to the extent that it is not safe to use to transport the goods; or
(c) the bulk container is otherwise unsuitable for the transport of the goods.
Offence provision.
{(5) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.4.4 Consignor’s duties—IBCs
(1) A person must not consign dangerous goods that are listed in the Dangerous Goods List for transport in an IBC unless the transport of the goods in an IBC is authorised under column 8 of the Dangerous Goods List.
Offence provision. (new)
(2) A person must not consign dangerous goods that are authorised under column 8 of the Dangerous Goods List to be transported in an IBC unless the goods are packed in the IBC in accordance with the packing instructions referred to in that column.
Offence provision. (new)
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.4.5 Consignor’s duties—portable tanks
(1) A person must not consign dangerous goods that are listed in the Dangerous Goods List for transport in a portable tank unless the transport of the goods in a portable tank is authorised under column 10 of the Dangerous Goods List.
Offence provision. (new)
(2) A person must not consign dangerous goods that are authorised under column 10 of the Dangerous Goods List to be transported in a portable tank unless the goods are transported in the portable tank in accordance with the portable tank instructions referred to in that column.
Offence provision. (new)
(3) A person must not consign dangerous goods that are listed in the Dangerous Goods List for transport in a portable tank unless the tank has been maintained, tested and inspected in accordance with Chapter 6.7 of the ADG Code.
Offence provision. (new)
{(4) An offence against {subclause} (1), (2) or (3) is an offence of strict liability.}
4.4.6 Consignor’s duties—bulk containers
(1) A person must not consign dangerous goods for transport in a bulk container unless the transport of the goods in the bulk container is authorised under Chapter 4.3 of the ADG Code.
Offence provision.
(2) A person must not consign dangerous goods for transport in a bulk container unless the goods are transported in the bulk container in accordance with Chapter 4.3 of the ADG Code.
Offence provision.
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.4.7 Consignor’s duties—tank vehicles
(1) A person must not consign dangerous goods for transport in a tank vehicle unless the transport of the goods in the tank vehicle is permitted by Section 4.4.2.2 of the ADG Code.
Offence provision.
(2) A person must not consign dangerous goods for transport in a tank vehicle unless the goods are transported in the tank vehicle in accordance Section 4.4.2 of the ADG Code.
Offence provision.
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
4.4.8 Consignor’s duties—MEGCs
(1) A person must not consign dangerous goods that are listed in the Dangerous Goods List for transport in an MEGC unless the transport of the goods in an MEGC is authorised by a packing instruction for an entry under column 8 of the Dangerous Goods List.
Offence provision. (new)
(2) A person must not consign dangerous goods that are authorised under column 8 of the Dangerous Goods List to be transported in an MEGC unless the goods are transported in the MEGC in accordance with the packing instructions referred to in that column.
Offence provision. (new)
{(3) An offence against {subclause} (1) or (2) is an offence of strict liability.}
Subdivision 4.4.3—Loaders
4.4.9 Loader’s duties—general
A person must not load dangerous goods for transport in a containment unit (other than a freight container) if the person knows, or reasonably ought to know, that the containment unit is unsuitable for the transport of the goods.
Offence provision. (4.19, 4.11, amd)
4.4.10 Loader’s duties—freight container
(1) A person must not load dangerous goods into a freight container for transport if the freight container is unsuitable for the transport of the goods.
Offence provision.
(2) A person must not load a freight container that contains dangerous goods onto a vehicle if the person knows, or reasonably ought to know, that the freight container is unsuitable for the transport of the goods.
Offence provision.
{(3) An offence against {subclause} (1) is an offence of strict liability.}
Subdivision 4.4.4—Prime contractors and rail operators
4.4.11 Prime contractor’s and rail operator’s duties—general
(1) A prime contractor or rail operator must not transport dangerous goods in a containment unit (other than a tank vehicle) provided by the prime contractor or rail operator if the containment unit is unsuitable for the transport of the goods.
Offence provision.
(2) A prime contractor or rail operator must not transport dangerous goods in a containment unit (other than a tank vehicle) provided by someone else if the prime contractor or rail operator knows, or reasonably ought to know, that the containment unit is unsuitable for the transport of the goods.
Offence provision.
{(3) An offence against {subclause} (1) is an offence of strict liability.} (4.12, 4.20, amd)
4.4.12 Prime contractor’s and rail operator’s duties—bulk containers
(1) A prime contractor or rail operator must not transport dangerous goods in a bulk container provided by the prime contractor or rail operator unless:
(a) the transport of the goods in the bulk container is authorised in Chapter 4.3 of the ADG Code; and
(b) the goods are transported in accordance with Chapter 4.3 of the ADG Code.
Offence provision.
(2) A prime contractor or rail operator must not transport dangerous goods in a bulk container provided by someone else if the person knows, or reasonably ought to know, that:
(a) the transport of the goods in the bulk container is not authorised in Chapter 4.3 of the ADG Code; or
(b) the goods are not being transported in the bulk container in accordance with Chapter 4.3 of the ADG Code.
{(3) An offence against {subclause} (1) is an offence of strict liability.} (4.5, 4.12 amd)
4.4.13 Prime contractor’s and rail operator’s duties—tank vehicles
(1) A prime contractor or rail operator must not transport dangerous goods in a tank vehicle provided by the prime contractor or rail operator unless:
(a) the material of which the tank vehicle is constructed is compatible with the dangerous goods; and
(b) the tank vehicle is not damaged or defective to the extent that it is not safe to use to transport the goods; and
(c) the transport of the goods in the tank vehicle is permitted by Section 4.4.2.2 of the ADG Code; and
(d) the goods are transported in the tank vehicle in accordance with Section 4.4.2 of the ADG Code.
Offence provision.
(2) A prime contractor or rail operator must not transport dangerous goods in a tank vehicle provided by someone else if the person knows, or reasonably ought to know, that:
(a) the material of which the tank vehicle is constructed is incompatible with the dangerous goods; or
(b) the tank vehicle is damaged or defective to the extent that it is not safe to use to transport the goods; or
(c) the tank vehicle has not been maintained, tested and inspected in accordance with Chapter 6.9 of the ADG Code; or
(d) the transport of the goods in the tank vehicle is not permitted by Section 4.4.2.2 of the ADG Code; or
(e) the goods are not being transported in the tank vehicle in accordance with Section 4.4.2 of the ADG Code.
Offence provision.
{(3) An offence against {subclause} (1) is an offence of strict liability.} (4.5, 4.12 amd)
Subdivision 4.4.5—Drivers duties
4.4.14 Driver’s duties—IBCs, portable tanks and MEGCs
A person must not drive a road vehicle transporting dangerous goods in an IBC, portable tank or MEGC if the person knows, or reasonably ought to know, that the IBC, portable tank or MEGC is unsuitable for the transport of the goods.
Offence provision. (4.13, 4.21‑road only, amd)
4.4.15 Driver’s duties—bulk containers
A person must not drive a road vehicle transporting dangerous goods in a bulk container if the person knows, or reasonably ought to know, that:
(a) the transport of the goods in the bulk container is not authorised in Chapter 4.3 of the ADG Code; or
(b) the goods are not being transported in the bulk container in accordance with Chapter 4.3 of the ADG Code.
Offence provision. (4.6 (1) )
4.4.16 Driver’s duties—road tank vehicles
A person must not drive a road tank vehicle transporting dangerous goods if the person knows, or reasonably ought to know, that:
(a) the material of which the road tank vehicle is constructed is compatible with the dangerous goods; or
(b) the road tank vehicle is not damaged or defective to the extent that it is not safe to use to transport the goods; or
(c) the transport of the goods in the road tank vehicle is not permitted by Section 4.4.2.2 of the ADG Code; or
(d) the goods are not being transported in the road tank vehicle in accordance with Section 4.4.2 of the ADG Code.
Offence provision. (4.11, amd)
Division 4.5—Offences relating to certain foreign approved containment units
Subdivision 4.5.1—Foreign approved IBCs
4.5.1 Consignor’s duties
(1) A person must not consign dangerous goods for transport in a foreign approved IBC provided by the person if the transport of the goods in the IBC is prohibited by a determination under {clause} 1.6.2.
Offence provision.
(2) A person must not consign dangerous goods for transport in a foreign approved IBC provided by someone else if the transport of the goods in the IBC is prohibited by a determination under {clause} 1.6.2.
Offence provision.
{(3) For this {clause):
(a) an offence against {subclause} (1) is an offence of strict liability; and
(b) strict liability applies to the physical element in {subclause} (2) that the transport of the goods in the IBC is prohibited by a determination under {clause} 1.6.2. (4.22, amd)
Subdivision 4.5.2—Foreign approved portable tanks and MEGCs
4.5.2 Consignor’s duties
(1) A person must not consign dangerous goods for transport in a foreign approved portable tank, a foreign approved bulk container or a foreign approved MEGC provided by the person if the transport of the goods in the portable tank, container or MEGC is prohibited by a determination under {subclause} 1.6.2.
Offence provision.
(2) A person must not consign dangerous goods for transport in a foreign approved portable tank, a foreign approved bulk container or a foreign approved MEGC provided by someone else if the transport of the goods in the portable tank, container or MEGC is prohibited by a determination under {subclause} 1.6.2.
Offence provision.
{(3) For this {clause}:
(a) an offence against {subclause} (1) is an offence of strict liability; and
(b) strict liability applies to the physical element in {subclause} (2) that the transport of the goods in the portable tank or MEGC is prohibited by a determination under {subclause} 1.6.2. (4.14, amd)
Division 4.6—Offences relating to overpacks
4.6.1 Consignor’s duties
(1) A person must not consign dangerous goods for transport in an overpack if:
(a) the packages cannot be transported safely in the overpack; or
(b) the overpack does not comply with section 5.1.2 of the ADG Code; or
(c) the overpack does not comply with an approval under {clause} 4.2.7.
Offence provision.
{(2) An offence against {subclause} (1) is an offence of strict liability.} (6.1, amd)
4.6.2 Packer’s duties
A person must not pack dangerous goods for transport in an overpack if the person knows, or reasonably ought to know, that:
(a) the packages cannot be transported safely in the overpack; or
(b) the overpack does not comply with section 5.1.2 of the ADG Code; or
(c) the overpack does not comply with an approval under {clause} 4.2.7.
Offence provision.
4.6.3 Loader’s duties
A person must not load dangerous goods for transport in an overpack if the person knows, or reasonably ought to know, that:
(a) the packages cannot be transported safely in the overpack; or
(b) the overpack does not comply with section 5.1.2 of the ADG Code; or
(c) the overpack does not comply with an approval under {clause} 4.2.7.
Offence provision.
4.6.4 Prime contractor’s and rail operator’s duties
A prime contractor or rail operator must not transport dangerous goods in an overpack if the prime contractor knows, or reasonably ought to know, that:
(a) the packages cannot be transported safely in the overpack; or
(b) the overpack does not comply with section 5.1.2 of the ADG Code; or
(c) the overpack does not comply with an approval under {clause} 4.2.7.
Offence provision.
4.6.5 Driver’s duties
A person must not drive a road vehicle transporting dangerous goods in an overpack if the person knows, or reasonably ought to know, that the packages cannot be transported safely in the overpack.
Offence provision.
4.6.6 Rail operator’s duties
A rail operator must not transport dangerous goods in an overpack if the rail operator knows, or reasonably ought to know, that:
(a) the packages cannot be transported safely in the overpack; or
(b) the overpack does not comply with section 5.1.2 of the ADG Code.