Explosives Act Amendment Act 1990 (Qld)

857 EXPLOSIVES ACT AMENDMENT ACT No. 44 of 1990 ANALYSIS OF CONTENTS 1. Short title and citation 2. Amendment of s. 6. Saving of other Acts 3. New s. 6A Act binds Crown 4. New s. 6B Application of Act 5. Amendment of s. 8 6. New ss. 10A and 10B Certificate of appointment Delegation by Minister and Chief Inspector 7. Amendment of s. 11. Issue of licenses 8. Amendment of s. 12. Cancellation of licenses 9. Amendment of s. 12A. Permits 10. Repeal of and new s. 13. Inspection of explosives Inspection of explosives 11. New s. I SA Grievances 12. Amendment of s. 16. Obstruction of inspectors, etc. 13. Repeal of s. 17 and new ss. 17 and 17A. Classification of explosives, definition of the composition, quality, and character thereof, and prohibitions in respect of specially dangerous explosives Classification of explosives Prohibition or restriction on importation of explosives 14. Amendment of s. 18. Explosives to be imported and exported under license 15. Amendment of s. 19. Notice of intention to import explosive 16. Repeal of and new s. 20. Notice of arrival of imported explosive Notice of arrival of imported explosive 17. Amendment of s. 21. Packing of explosives upon importation or exportation 18. Amendment of s. 22. Explosive to be manufactured in licensed factory 19. Amendment of s. 25. Commissioner for Railways exempted 20. Amendment of s. 26 21. Amendment of s. 35A. Explosives to be used by inspector or licensed person or permittee 22. New s. 37A False information 23. Amendment of s. 38. Penalties for offences 24. New s. 38A Employer's responsibility for offence by employee 25. Amendment of s. 44. Forgery of license, etc. 26. Amendment of s. 45. Return of licenses, etc., suspended or revoked 27. New s. 45A Provision of information by Commissioner of Police 28. New s. 46A Disclosure of information 29. Amendment of s. 48. Regulations 30. Repeal of and new s. 50. Publication of Proclamations, Orders in Council, and regulations Orders in Council 28

858 neenstana ANNO TRICESIMO NONO ELIZABETHAE SECUNDAE REGINAE No. 44 of 1990 An Act to amend the Explosives Act 1952 - 1988 in certain particulars [ASSENTED TO 13TH AUGUST, 1990]

Explosives Act Amendment Act 1990, No. 44 859 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . This Act may be cited as the Explosives Act Amendment Act 1990. (2) In this Act the Explosives Act 1952-1988 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Explosives Act 1952-1990. 2. Amendment of s. 6 . Saving of other Acts. Section 6 of the Principal Act is amended by- (a) omitting from subsection (1) the words " "The Navigation Acts, 1876 to 1950" " and the words "The Health Acts, 1937 to 1949" " and substituting the words "the Queensland Marine Act 1958-1989" and the words "the Health Act 1937-1989" respectively; (b) omitting from subsection (2) all words from and including the words "or any by-law" to the end of the subsection; (c) omitting from subsection (4) the words " "The Mines Regulation Acts, 1910 to 1945," or "The Coal Mining Acts, 1925 to 1952." " and substituting the words "the Mines Regulation Act 1964-1989 or the CoalMining Act 1925-198 9. "; (d) omitting subsection (5) and substituting the following subsection:- "(5) The provisions of this Act apply in addition to the provisions of the Petroleum Act 1923-1988 but, in a case of conflict between them, a provision of the Petroleum Act 1923- 1988 shall, to the extent of the inconsistency, prevail over a provision of this Act.". 3. New s. 6A. The Principal Act is amended by inserting after section 6 the following section:- "6A. Act binds Crown. Except where otherwise expressly provided, this Act binds the Crown not only in right of Queensland but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.". 4. New s. 6B. The Principal Act is amended by inserting after section 6A the following section:- "6B. Application of Act. This Act does not apply in respect of explosives under the control of- (a) the armed forces of the Commonwealth; (b) any body established by the Government of Australia or the Government of Queensland for the purpose

860 Explosives Act Amendment Act 1990, No. 44 of the production, testing, transport, storage or use of any explosive or weapon for the armed forces of the Commonwealth; or (c) any department of the Government, body or instrumentality specified by Order in Council as being exempted from the application of this Act to the extent of the exemption specified in the Order in Council. 5. Amendment of s. 8 . Section 8 of the Principal Act is amended by- (a) inserting in and at the beginning of the section the note "Interpretation."; (b) in subsection (1)- (i) omitting the note "Definitions." appearing in and at the beginning of the subsection; (ii) omitting the meaning of the term "Minister" and substituting the meaning "Includes a Minister of the Crown for the time being acting for or on behalf of the Minister;"; (iii) omitting the terms "Person", "Prescribed", "Regulations" and "This Act" and their respective meanings; (c) omitting subsection (3). 6. New ss. 10A and 10B . The Principal Act is amended by inserting after section 10 the following sections: "10A.Certificate of appointment . An inspector shall be furnished with a certificate of his appointment signed by the Minister and shall if required by a person apparently in charge of premises to which he is seeking entry for the purposes of this Act, produce the certificate for inspection by that person. The certificate shall be prima facie evidence of the appointment to which it refers and to the identity of the person who produces it with the appointee named therein. 10B. Delegation by Minister and Chief Inspector . (1) (a) The Minister may, either generally or otherwise as provided by the instrument of delegation, by instrument in writing under his hand, delegate to one or more than one person all or any of his powers, functions, authorities and duties under this Act (other than powers, functions, authorities and duties under sections 11(3) and (3A), 15A (2) and 28 or to order an inquiry by a court of inquiry to be held in respect of any explosion or fire) as may be specified in the instrutnen (other than this power of delegation). (b) The Chief Inspector may, either generally or otherwise as provided by the instrument of delegation, by instrument in writing under his hand, delegate to one or more than one

Explosives Act Amendment Act 1990, No. 44 861 inspector or other person all or any of his powers , functions, authorities and duties under this Act (other than section 15A (1)) as may be specified in the instrument (other than this power of delegation). (2) A delegation made pursuant to subsection (1) may be to an individual named therein or to the holder of an office under the Crown in right of this State, specifying the office but without naming the holder in which case each successive holder of that office and each person who for the time being occupies or performs the duties of that office may exercise or, as the case may be, shall perform (for so long as he holds or occupies or performs the duties of that office) the delegated powers, authorities, functions and duties as are specified in the instrument. (3) A power, function, authority or duty the exercise or performance of which has been delegated under this section may, while the delegation remains unrevoked, be exercised or performed in accordance with the terms of the delegation by the delegate to whom the exercise or performance thereof has been delegated. (4) A delegation may be made subject to such conditions or such limitations as to the exercise or performance of any of the powers, functions, authorities or duties delegated or as to time, place or circumstances as may be specified in the instrument of delegation. (5) Any act or thing done or suffered by a delegate while acting in the exercise of a delegation under this section has the same force and effect as if the act or thing done had been done or suffered by the Minister or, as the case may be, the Chief Inspector. (6) (a) A delegation by the Minister is revocable by him at his will. (b) A delegation by the Chief Inspector is revocable by him at his will. (7) A delegation under this section does not prevent the exercise or performance of a power, function, authority or duty by the Minister or, as the case may be, the Chief Inspector. (8) The Minister or, as the case may be, the Chief Inspector may make such and so many delegations under this section and to such number of delegates as he considers necessary or desirable.". 7. Amendment of s. 11. Issue of licenses . Section 11 of the Principal Act is amended by- (a) omitting subsection (3) and substituting the following subsections:- "(3) Subject to subsection (3A) and section 15A, the Chief Inspector may grant or refuse to grant a license or the renewal or transfer of a license under or for any purpose of this Act.

'862 Explosives Act Amendment Act 1990, No. 44 (3A) If directed by the Minister, the Chief Inspector shall grant or refuse to grant, renew or refuse to renew or transfer or refuse to transfer a license as directed by the Minister. The Minister may act according as he, in his absolute discretion, thinks fit in giving a direction under this subsection which direction shall be final and conclusive."; (b) adding at the end thereof the following subsection: "(6) It is a condition of any license that the holder of that license shall comply with all the requirements of this Act in respect of that license.". 8. Amendment of s. 12. Cancellation of licenses . Section 12 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:- "(3) The Minister may act according as he, in his absolute discretion, thinks fit in giving a direction under this subsection which direction shall be final and conclusive.". 9. Amendment of s. 12A. Permits . Section 12A of the Principal Act is amended by- (a) renumbering subsection (4) as subsection (5); (b) inserting after subsection (3) the following subsection:- "(4) It is a condition of a permit granted under this section that the holder of that permit shall comply with all the requirements of this Act in respect of that permit.". 10. Repeal of and new s. 13. Inspection of explosives . The Principal Act is amended by repealing section 13 and substituting the following section:- "13. Inspection of explosives . Explosives imported, brought or sent into or manufactured in Queensland shall be subject to inspection and examination by an inspector from time to time as considered appropriate by the Chief Inspector.". 11. New s. 15A. The Principal Act is amended by inserting after section 15 the following section:- "15A. Grievances . (1) A person who is aggrieved by a decision of a person acting with authority under this Act (other than the Minister or the Chief Inspector) may refer the matter to the Chief Inspector whose decision therein shall be carried into effect. (2) A person who is aggrieved by a decision of the Chief Inspector made under this Act may refer the matter to the Minister whose decision thereon shall be- (a) final and binding on the person who is aggrieved and the Chief Inspector;

Explosives Act Amendment Act 1990, No. 44 863 and (b) carried into effect.". 12. Amendment of s. 16 . Obstruction of inspectors , etc. Section 16 of the Principal Act is amended by adding at the end of subparagraph (v) the following expression and words:- "; or (vi) wilfully give false or misleading information in purported compliance with a lawful requirement of an inspector under this Act". 13. Repeal of s. 17 and new ss. 17 and 17A. Classification of explosives , definition of the composition , quality, and character thereof, and prohibitions in respect of specially dangerous explosives . The Principal Act is amended by repealing section 17 and substituting the following sections:- "17. Classification of explosives . (1) The Chief Inspector may define the composition, quality and character of an explosive and thereafter may- (a) classify that explosive by reference to the prescribed classification system; (b) declare the classified explosive to be an authorized explosive. (2) The Chief Inspector shall continue to maintain the Register of Explosives maintained under section 17 (3) of the Explosives Act 1952-1981 and shall record therein every authorized explosive specifying the defined composition, quality and character of that explosive and its classification. (3) The Chief Inspector may from time to time publish a list of authorized explosives but shall not include in the list the defined composition, quality or character of those explosives. (4) For the purposes of this Act an explosive is an authorized explosive if and for so long as- (a) it is listed, or the Chief Inspector has determined that it be listed, as an authorized explosive in the Register of Explosives; and (b) it has in every respect the composition, quality and character defined in respect of that authorized explosive in that register. (5) In any proceedings under or for the purposes of this Act a certificate purporting to be under the hand of the Chief Inspector certifying that the composition, quality and character of an explosive as defined by the Chief Inspector is as specified in that certificate shall be received in evidence and shall be evidence of the matters therein contained and, in the absence of evidence to the contrary, shall be conclusive evidence thereof.

864 Explosives Act Amendment Act 1990, No. 44 (6) An explosive that has been classified by the Governor in Council and is, together with the composition, quality and character thereof, the subject of a recording in the Register of Explosives immediately prior to the commencement of the Explosives Act Amendment Act 1990 is an authorized explosive for the purposes of this section for so long as it remains listed in the register. 17A. Prohibition or restriction on importation of explosives. (1) Upon the recommendation of the Minister who considers it expedient for the public safety, the Governor in Council may from time to time by Order in Council prohibit absolutely or except in accordance with any conditions and any restrictions specified in the Order in Council, the importation, the bringing or sending into, the exportation from, or the manufacture, storing, keeping, carriage, sale or use in Queensland of any explosive or the doing of all or any of those things. (2) A person shall not import, bring or send into, or export from or manufacture, store, keep, carry, sell or use in Queensland an explosive contrary to a provision of an Order in Council made under subsection (1). (3) (a) For the purposes of trial, experimentation or examination of an unauthorized explosive the Chief Inspector may approve, upon such terms and conditions as he determines, the importation, the bringing or sending into or the manufacture, storing, keeping, carriage, sale or use in Queensland of an explosive that is not an authorized explosive as defined in section 17 (4) or the doing of all or any of those things. (b) A person shall not import, bring or send into, export from, manufacture, store, keep, carry, sell or use in Queensland an explosive that is not an authorized explosive as defined in section 17 (4) except under and in accordance with the approval in writing granted by the Chief Inspector pursuant to paragraph (c) A person shall not be liable to be punished under any other provision of this Act for or in relation to an act or omission authorized by an approval granted under this subsection. (4) Every other provision of this Act shall be read so as not to limit the application of any provision of this section.". 14. Amendment of s. 18 . Explosives to be imported and exported under license . Section 18 of the Principal Act is amended by- (a) omitting from the note to the section the word " license" and substituting the word " authority"; (b) omitting the words "or bring" and the word "license" and substituting the words ", bring or send" and the words "license or permit" respectively. 15. Amendment of s. 19. Notice of intention to import explosive. Section 19 of the Principal Act is amended by omitting the words "or

Explosives Act Amendment Act 1990, No. 44 865 bringing" and the words "or bring" and substituting the words ", bringing or sending" and the words ", bring or send" respectively. 16. Repeal of and new s. 20 . Notice of arrival of imported explosive. The Principal Act is amended by repealing section 20 and substituting the following section:- "20. Notice of arrival of imported explosive . A person importing, bringing into or sending into Queensland any explosive shall give to the Chief Inspector notice as prescribed of the arrival of that explosive in Queensland.". 17. Amendment of s. 21. Packing of explosives upon importation or exportation . Section 21 of the Principal Act is amended by omitting the words "or bring" and substituting the words ", bring or send". 18. Amendment of s. 22. Explosive to be manufactured in licensed factory. Section 22 of the Principal Act is amended by- (a) omitting from the note to the section the words "in licensed factory" and substituting the words " under license"; (b) omitting subsection (1) and substituting the following subsections:- "(1) Subject to subsection (2), a person shall not manufacture or permit or allow to be manufactured any explosive except under and in accordance with the authority of a license under this Act. (1A) Subsection (1) does not apply to- (a) the manufacture under the direct supervision of a competent person not under the age of 18 years of a quantity of any explosive not exceeding 500 grams in total weight (or in the case of any prescribed explosive, such lesser quantity as may be prescribed) where the manufacture is for the purposes of chemical experiment only and the explosive is not intended for practical use or sale; (b) the reconditioning of any explosive at a Government magazine or under the supervision of an inspector; (c) the filling of cartridges for small arms where those cartridges are not for sale and are intended solely for the personal use of the person filling such cartridges and not for use by any other person; (d) the manufacture by a manual operation carried out in accordance with prescribed conditions of a prescribed explosive by- (i) an inspector; (ii) the holder of a shotfirer's license under this Act; or (iii) the holder of an appropriate permit to use that explosive for his own immediate use.

866 Explosives Act Amendment Act 1990, No. 44 (1 B) For the purposes of this section- "competent person" means a person for the time being prescribed (and, in so far as a person is not prescribed, a person who for the time being is determined by the Chief Inspector) to be competent for the purposes of this section; "explosive", in addition to any explosive as defined in section 8, includes those ingredients of explosives consisting of mixtures of ammonium nitrate, or other oxidising agents , with any carbonaceous, organic, metallic or other fuelling substance with or without water or other ingredients which otherwise may be considered non-explosive.". 19. Amendment of s. 25. Commissioner for Railways exempted. Section 25 of the Principal Act is amended by inserting after the word "explosives" the words "by rail". 20. Amendment of s. 26 . Section 26 of the Principal Act is amended by- (a) inserting as a note to the section the words "Where explosives may be kept"; (b) in subsection (1)- (i) omitting the note to the subsection; (ii) omitting paragraph (iii) and substituting the following paragraph:- "(iii) A place duly approved by the Chief Inspector and specified in an instrument in writing under his hand, as being suitable for the temporary storage of any explosive or of a specified class of explosives and the explosive is stored or kept in accordance with any conditions the Chief Inspector may prescribe."; (c) in subsection (4)- (i) omitting the note to the subsection; (ii) inserting in paragraph (i) after the words "prescribed purpose, where" the words "that person is authorized under this Act to use the explosive for that purpose,". 21. Amendment of s. 35A. Explosives to be used by inspector or licensed person or permittee . Section 35A of the Principal Act is amended by omitting from subsection (1) the paragraph commencing with the word "This". 22. New s. 37A. The Principal Act is amended by inserting after section 37 the following section:- "37A. False information. A person shall not make a statement that is false or misleading in a material matter in or in respect

Explosives Act Amendment Act 1990, No. 44 867 of an application made by him under or for the purposes of this Act.". 23. Amendment of s. 38 . Penalties for offences . Section 38 of the Principal Act is amended by- (a) in subsection (2) (a) omitting the words "penalty not exceeding $500. and substituting the words "penalty- (a) in the case of a natural person-84 penalty units; (b) in any other case-840 penalty units."; (b) omitting subsection (5) and substituting the following subsections:- "(5) Where a corporation commits an offence against this Act- (a) the chairman of directors, managing director or other governing officer, by whatever name called, and every member of the governing body, by whatever name called; and (b) every person who in Queensland manages or acts or takes part in the management or administration of the business of that corporation in Queensland, shall be deemed to have committed an offence against this Act and shall be liable to be proceeded against and punished accordingly. (6) It is a defence to a charge of an offence against this Act brought against a person specified in subsection (5) to prove that- (a) the offence committed by the corporation, was committed without his knowledge; (b) he was not in a position to influence the conduct of the corporation in relation to the commission of the offence by it; or (c) he, being in a position to influence the conduct of the corporation in relation to the commission of the offence by it, used all diligence to prevent the commission of the offence by the corporation. (7) Subsection (5) applies so as not to limit or affect in any way the liability of a corporation to be proceeded against and punished for an offence against this Act.". 24. New s. 38A. The Principal Act is amended by inserting after section 38 the following section:- "38A. Employer ' s responsibility for offence by employee. (1) Where a person, as the employee of another person (in this subsection referred to as the "employer") contravenes this Act,

868 Explosives Act Amendment Act 1990, No. 44 the employer is guilty of an offence against this Act unless he satisfies the court that- (a) he did not authorize or permit the contravention by the employee; and (b) he used all due diligence to prevent such a contravention. (2) The employer may be proceeded against and convicted pursuant to subsection (1) whether or not the employee has been proceeded against or been convicted under this Act. (3) Nothing in subsection (1) prejudices or affects any liability imposed by or under this Act on any person by whom an offence against this Act is actually committed. (4) Prior to employing any person in activities, duties or functions allowing access to explosives, an employer shall take all reasonable steps to determine that the person is a fit and proper person.". 25. Amendment of s. 44 . Forgery of license , etc. Section 44 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:- "(2) A person guilty of an offence against this section shall be liable to- (a) in the case of a natural person, a penalty of 84 penalty units or imprisonment for six months; (b) in any other case , a penalty of 840 penalty units.". 26. Amendment of s. 45 . Return of licenses , etc., suspended or revoked . Section 45 of the Principal Act is amended by omitting from the second paragraph the words "five pounds" and substituting the words "2 penalty units". 27. New s. 45A. The Principal Act is amended by inserting after section 45 the following section:- " 45A. Provision of information by Commissioner of Police. (1) This section applies to- (a) persons making application for licenses and permits issued under this Act; (b) persons employed by licensees and permittees under this Act and having access to explosives in the course of their duties or functions. (2) For the purpose of determining suitability of persons to whom this section applies having access to explosives, the Chief Inspector may request the Commissioner of Police to furnish

Explosives Act Amendment Act 1990, No. 44 869 him with a report in respect of any one or more of the following matters:- (a) whether the person has been convicted in Queensland or elsewhere of any offence against this Act; (b) whether the person is subject to a recognizance, granted in Queensland or elsewhere to be of good behaviour or to keep the peace; (c) whether the person is the subject of a prohibition order under the Firearms and Off ensive Weapons Act 1979-1989; (d) whether the person is of good character and repute; (e) whether , in the opinion of the Commissioner, the person should be trusted to deal with explosives in the manner authorized by this Act without added danger to the public safety or the peace; (f) such other matters as the Chief Inspector may specify in the request. (3) The Commissioner of Police shall upon receiving a request made under subsection ( 2) cause the request to be investigated and furnish to the Chief Inspector a report including such recommendations as he thinks proper in respect of the matter or matters the subject of the request.". 28. New s. 46A. The Principal Act is amended by inserting after section 46 the following section:- "46A. Disclosure of information. (1) Except as provided by subsection (2), a person shall not disclose any information or publish any document or part of a document obtained by him in connexion with the administration or execution of this Act, unless the disclosure or publication is made- (a) with the consent of the person from whom the information was obtained; (b) in connexion with the administration or execution of this Act; or (c) for the purpose of any legal proceedings arising out of this Act or of any report of those proceedings. (2) The Chief Inspector may communicate any matter which comes to his knowledge in the exercise or performance of his powers, authorities, duties or functions under this Act to an officer or authority engaged in administering or executing a law of Queensland, the Commonwealth or of another. State or a Territory of the Commonwealth relating to explosives.".

870 Explosives Act Amendment Act 1990, No. 44 29. Amendment of s. 48. Regulations . Section 48 of the Principal Act is amended by- (a) in subsection (1)- (i) inserting in subparagraph (i) after the word "Act" the words "and prescribing a classification system for the purpose of defining the composition, quality and character of explosives": (ii) inserting in subparagraph (ii) after the word "importation" the words ", bringing or sending into Queensland"; (iii) omitting from subparagraph (xv) the words "$500 for any one offence" and substituting the words "for any one offence- (a) in the case of a natural person, 84 penalty units; (b) in any other case , 840 penalty units"; (b) inserting after subsection (3) the following subsection:- "(3A) The power to regulate, or to control or to regulate and control any act, matter or thing by regulations under this Act shall include power to provide for the granting of exemptions or conditional exemptions from compliance with the regulations or any of them, the entitlements of persons so exempted and revocation of any exemption or conditional exemption so granted.". 30. Repeal of and new s. 50 . Publication of Proclamations , Orders in Council , and regulations . The Principal Act is amended by repealing section 50 and substituting the following section:- "50. Orders in Council . Section 28A of the Acts InterpretationAct 1954-1989 (Tabling of Regulations) shall apply with respect to Orders in Council made for the purposes of this Act and, for the purposes of such application, that section shall be read and construed as if references to regulations were references to Orders in Council made for the purpose of this Act.".