Below is a description of each part of the Explosives Bill 2021 and some questions to consider for providing feedback.
This information should be considered in conjunction with the Bill summary, which provides further detail on the proposed legislation.
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Part 1 - Object and Definitions
Part 1 of the Bill establishes the object and definitions. It should be noted that the definition of explosives will be prescribed by the Regulations and will be consistent with the national policy proposal.
Q1. Do you have any comments or concerns about Part 1 of the Bill? (see clauses 1 to 6)
Part 2 Duties for safety and security
The Bill introduces new safety and security duties. The duties will impose obligations on duty holders to take reasonable precautions and care to eliminate and minimise risks associated with activities involving explosives, and to keep them secure.
This ensures that every person involved in activities within the scope of the legislation complies with these primary duties.
In drafting the duties, consideration has been given to achieving consistency with other jurisdictions, as well as work health and safety laws, with the aim to provide efficiency and certainty for business in regards to their compliance activities, whilst improving public safety and security.
Q2. Do you have any comments or concerns about the new duties? (see clauses 7 and 8)
Part 3 - Offences
The offence provisions have been updated to ensure that all relevant categories of harm including death, harm to a person, property or the environment, or a dangerous situation can be pursued in the event of a contravention. The provisions are structured in tiers providing for four categories of offences. Each category of offence is for a failure to comply with a duty. The offence a person will be prosecuted for will be determined by the degree of harm that resulted from the breach and the degree of reckless indifference. Included in the offence provisions is clause 13 that will enable the Court to find a defendant guilty of an alternative offence.
Q3. Do you have any comments or concerns about the offence provisions? (see clauses 9 to 13)
Part 4 - Authorisations
An explosive is not to be handled unless it is authorised by a Regulator. The authorisation process occurs to ensure the classification of the explosive and that it is fit for purpose and safe to use for its intended purpose.
The authorisation process is undertaken by the Regulator. An applicant will have the ability to seek an authorisation of an explosive or a class of explosive as well as the authorisation of a trial of an unauthorised explosive.
Once an explosive is authorised, a person with the appropriate licence can then manufacture, store, transport, supply, use, import or export the explosive.
The provisions in the Bill provide for the variation, renewal and cancellation of an authorisation.
These provisions will also establish a register of authorisations of explosives, and a requirement for the Regulator to publish a list of authorised explosives on its website. The current Explosives Act 1936 provides for the classification of explosives and the gazettal of a list of classified explosives.
The provisions in the Bill have been drafted in accordance with the national policy proposal for the authorisation of explosives which seeks to achieve a nationally consistent authorisation process and automatic recognition of explosives authorisations in each jurisdiction. Whilst it is acknowledged that automatic recognition will not be achieved until all jurisdictions make the appropriate amendments to implement the national policy proposals, the Bill provides for the recognition of an authorisation granted under a corresponding law.
Q4. Do you have any comments or concerns about the authorisations provisions? (see clauses 16 to 27)
Part 5 - Licensing
The licensing of activities undertaken with explosives provides for the key regulatory control of explosives. The Bill establishes that there will be a licensing scheme and that a person must not carry on any activity involving an explosive unless authorised by licence.
There will be licences to authorise activities, and licences authorising a person to engage in an occupation involving explosives (an occupational licence). The licence classes will be prescribed by the Regulations and will be consistent with the national policy proposals.
Activity Licences will include:
- A licence to manufacture (including fixed site and mobile)
- A licence to import
- A licence to export
- A licence to supply
- A licence to store
- A licence to transport
- A licence to use
Occupational licences will include:
- An explosives driver licence
- A blasting licence
- A fireworks contractor licence
- A fireworks operator licence
This part of the Bill outlines the powers of the Regulator in granting, renewing, refusing, suspending or cancelling a licence, as well as licence conditions.
A significant change from the current explosives laws will mean that an applicant can apply for one class of licence and also be authorised to undertake activities in connection with that licence, as opposed to needing to apply for multiple classes of licences related to the primary activity. For example, a licence to supply explosives would also authorise the licence holder to supply; purchase and possess for the purpose of supply; advertise for sale, and agree/offer to sell, the explosives specified in the licence.
Part 5 of the Bill sets out the required criteria for an applicant to obtain a licence including the requirements to be a fit and proper person, which may require proof of medical fitness and/or competency, as well as to be a security cleared person.
In accordance with the national policy proposals there will also be a requirement for a business to have at least one responsible person to be granted a licence. The responsible person will have to meet the same application criteria i.e. meets the minimum age requirement, is a fit and proper person and is a security cleared person.
A licence may be subject to conditions including a requirement for an applicant to submit a safety and security plan to the Regulator. This will be a new requirement in South Australia. It is an existing requirement in most other jurisdictions including New South Wales, Victoria and Western Australia. It will require a licence holder or potential licence holder to consider and assess the risks associated with explosives and to prepare and implement a plan for safety and security.
The Regulator will have the ability to suspend, cancel, extend or vary a licence.
All of the above criteria requirements will establish a licensing framework that provides a greater level of safety and security by ensuring that only appropriate persons are granted a licence.
Q5. Do you have any comments or concerns about the licensing provisions? (see clauses 28 to 50)
Part 5 - Security
The Bill sets out the requirement that, for an applicant to be granted a licence they must be a security cleared person. The scheme to obtain a security clearance will be determined by the Regulator. This is not a new requirement in South Australia but the national policy proposal provides for a nationally consistent process for obtaining a security clearance. The scheme will outline what types of checks are to be conducted, including an ASIO Security Assessment and a criminal history check through the application for a National Police Clearance.
Q6. Do you have any comments or concerns about the security clearance provisions? (see clauses 39 to 42)
Part 6 - Enforcement measures
The Bill establishes offences for the breach of certain provisions including the duties, and for undertaking activities involving explosives without a licence. To ensure the safety and security of the community, it is imperative that the Regulator has powers and functions to enforce compliance where necessary and be able to investigate incidents for breaches of the law.
The Bill provides for the appointment of authorised persons and sets out their powers and functions, including the ability to issue improvement notices and prohibition notices for non-compliance. Authorised persons will also have the power to enter, in some circumstances, without a warrant, as well as to inspect, require a person to answer questions, produce documents, take samples and seize items.
The Bill and the Regulations will also adopt the recommendations of the national policy proposals in regards to notification requirements. In this part of the Bill is the requirement for notification of a notifiable situation. The definition of notifiable situation in the Bill reflects the recommendation of the national policy proposal. This is a new requirement in explosives legislation but is an existing requirement under work health and safety laws.
Improvement and prohibition notices are a compliance tool that both workplaces and the Regulator are familiar with. They are utilised to improve safety and cease activities to avoid a dangerous situation. There is also a mechanism for internal review of a notice issued by an authorised person and external review to the South Australian Civil and Administrative Tribunal.
Q7. Do you have any comments or concerns about enforcement measures? (see clauses 51 to 66)
Q8. Do you have any comments or concerns about the review provision? (see clause 73)
Part 8 - Miscellaneous
The miscellaneous part of the Bill covers a range of matters that are primarily for the administration of the legislation. As well as standard clauses for the matters such as delegations, exemptions, regulation making powers and transitional provisions, it includes a number of provisions relating to the prosecution process including evidence, the recovery of costs and adverse publicity orders.
Q9. Do you have any comments or concerns about the miscellaneous provisions? (see clauses 74 to 98)