Independent Review Of The Dangerous Goods Act 1985 And .
Independent Review of theDangerous Goods Act 1985and associated regulationsConsultationPaperAndrew Palmer QCOctober 2020
Independent Review of the Dangerous GoodsAct 1985 and associated regulations1Table of ContentsTerms and abbreviations used in this Paper4A note from the Independent Reviewer6About the Independent Review of the Dangerous Goods Act 1985 andassociated regulationsHow to make a submissionVictoria’s dangerous goods landscape101112What are dangerous goods?12The lifecycle of dangerous goods14Key aspects of the dangerous goods market15The dangerous goods regulatory framework20Overview of the current dangerous goods regulatory framework20Intersection of the DG regulatory framework with other regulatory frameworks22Duties across the DG lifecycle30The Review’s Terms of Reference32Term of Reference A: Promoting safety and the effective management ofdangerous goods33Term of Reference B: Being more risk-based and prevention focused36Regulatory duties38A new general duty for dangerous goods?41The role of regulations44The role of codes45Guidance as an alternative to a code45Permissioning frameworks46Incident notificationTerm of Reference C: Deterring non-compliance and illegal activity5152Intelligence gathering53Interagency coordination54Investigation and inspection powers56Redirection of corporate obligations60Cost recovery powers and financial assurances60Responsibility for disposing of dangerous goods waste62Enforcement proceedings63Term of Reference D: Emerging issues and challenges67Term of Reference E: Streamlining and modernising69Harmonising the DG Act with the OHS ActIncorporating dangerous goods legislation within the OHS Act7071
2Independent Review of the Dangerous GoodsAct 1985 and associated regulationsTransport of dangerous goods74Other opportunities for streamlining76Term of Reference F: Other relevant matters81Appendix A: Terms of Reference82Appendix B: Table of questions84Appendix C: Examples of goods in ADG Code classes88
Independent Review of the Dangerous GoodsAct 1985 and associated regulations3Table of BoxesBox 1Definition of dangerous goods13Box 2Definition of hazardous substances24Box 3Overlap of dangerous goods and hazardous substancesregulation26Box 4Duty-holder archetypes35Box 5Larger quantities and MHFs50Box 6Comparison with the Model WHS Laws73Box 7Classification systems and threshold quantities78Table of FiguresFigure 1Lifecycle of dangerous goods14Figure 2Dangerous goods storage and handling spectrum16Figure 3Principal activities involving dangerous goods reported byoccupiers of premises from 1 July 2014 to 30 June 201919Figure 4Interaction of DG Act with other legislation22Figure 5Comparison of relevant quantities for kerosene underthe Storage and Handling Regulations and the OHSRegulations76
4Independent Review of the Dangerous GoodsAct 1985 and associated regulationsTerms and abbreviationsused in this PaperTerm/AbbreviationDescriptionADG CodeAustralian Code for the Transport of Dangerous Goods byRoad and RailAE CodeAustralian Code for the Transport of Explosives by Roadand RailBuilding ActBuilding Act 1993ComcareThe Commonwealth statutory authority for work healthand safety and workers’ compensationdangerous goodsAs defined in section 3 of the Dangerous Goods Act 1985See: Box 1DGdangerous goodsDG ActDangerous Goods Act 1985DG frameworkThe Dangerous Goods Act 1985, all regulations madeunder section 52 of that Act, and all subordinateinstruments and codes of practice under that ActDG licence holderA person who holds a licence issued under the DangerousGoods Act 1985DG regulationsThe regulations made under section 52 of the DangerousGoods Act 1985, that is, the Dangerous Goods (Transportby Road or Rail) Regulations 2018, the Dangerous Goods(Storage and Handling) Regulations 2012, the DangerousGoods (Explosives) Regulations 2011 and the DangerousGoods (HCDG) Regulations 2016duty-holderA person who has obligations under legislationEPAEnvironmental Protection AuthorityEP Act 1970Environment Protection Act 1970EP Act 2017Environment Protection Act 2017EPAA 2018Environment Protection Amendment Act 2018Explosives RegulationsDangerous Goods (Explosives) Regulations 2011ESMEssential Safety Measures required under Part 15 of theBuilding Regulations 2018first supplierAs defined in regulation 5 of the Dangerous Goods(Storage and Handling) Regulations 2012FRVFire Rescue VictoriaGHSGlobally Harmonized System of Classification andLabelling of Chemicalshazardous substancesAs defined under regulation 5 of the Occupational Healthand Safety Regulations 2017See: Box 2
Independent Review of the Dangerous GoodsAct 1985 and associated regulations5Term/AbbreviationDescriptionHCDGHigh Consequence Dangerous Goods, which for thepurposes of the HCDG Regulations means ammoniumnitrateHCDG RegulationsDangerous Goods (HCDG) Regulations 2016manifest quantityThe thresholds for determining manifest and notificationrequirements for dangerous goods storage facilities,outlined under Schedule 2 of the Dangerous Goods(Storage and Handling) Regulations 2012See: Box 7Maxwell ReviewOccupational Health and Safety Act Review, Chris MaxwellQC, March 2004MHFMajor Hazard Facility, as defined under regulation 5 of theOccupational Health and Safety Regulations 2017Model WHS ActModel Work Health and Safety ActModel WHS LawsThe Model WHS Laws include: the Model Work Healthand Safety Act, the Model Work Health and SafetyRegulations, and the Model Work Health and Safety Codesof PracticeOHSoccupational health and safetyOHS ActOccupational Health and Safety Act 2004OHS frameworkThe Occupational Health and Safety Act 2004, and anyregulations, compliance codes, and other subordinateinstruments made under that ActOHS RegulationsOccupational Health and Safety Regulations 2017Planning ActPlanning and Environment Act 1987ReviewIndependent Review of the Dangerous Goods Act 1985and associated regulationsSDSsafety data sheetStorage and HandlingCodeCode of Practice for the Storage and Handling ofDangerous Goods 2013Storage and HandlingRegulationsDangerous Goods (Storage and Handling) Regulations2012Transport RegulationsDangerous Goods (Transport by Road or Rail) Regulations2018Terms of ReferenceThe Terms of Reference for the Independent Review of theDangerous Goods Act 1985 and associated regulationsSee: Appendix AUN CodeThe globally recognised four-digit number used to identifychemicals and substances under the ADG CodeWHSwork health and safetyWorkSafeThe Victorian WorkCover Authority
6Independent Review of the Dangerous GoodsAct 1985 and associated regulationsA note from theIndependent ReviewerChemicals, and products made fromchemicals – from fertiliser, fuel andexplosives to paper, plastics and paint– form an integral part of our economyand everyday life. This means that theimportation, manufacture, sale, transport,storage, reprocessing and disposal ofchemicals are also essential to our way oflife. However, many essential chemicalsare dangerous, and activities involvingthem can create significant risks. Theseinclude risks to the health and safety of: Victorians whose jobs require them towork with such chemicals; emergency services personnel,particularly firefighters, who respond toincidents involving these chemicals; and members of the public who live, studyor work near to (and sometimes evenfar away from) the places where thesechemicals are manufactured, used,stored and disposed of.These also include risks of damage toproperty located near to those places;and risks of harm to the environment.All of these risks were highlighted inAugust 2018, when a major chemicalfire broke out at a warehouse in WestFootscray. The warehouse containedmillions of litres of toxic waste and thefire took more than a week to subdue.The risks were highlighted again in April2019 when a fire broke out at a wastemanagement facility in Campbellfield, inMelbourne’s northern suburbs. That firealso took several days to subdue.The fires released plumes of toxic smoke,caused the evacuation of homes andworkplaces and the closure of schools,and endangered the health of Victorianswho lived both near to and far from thefires, as well as the emergency servicespersonnel who battled to put thefires out.Following these fires, WorkSafe andthe Environment Protection Authoritydiscovered many more sites, particularlyin Melbourne’s northern suburbs, thatwere being used to illegally storedangerous chemicals. The clean-up ofthese sites was still continuing throughmid-2020, at enormous expense totaxpayers and risk to those carryingit out.Image: April 5, 2019. Fire crews douse a fire at a factory on Thornycroft Street in Campbellfield, Melbourne,Victoria. (Photo by Alex Coppel / Newspix).
8These events raised questions aboutthe regulation of dangerous chemicalsin Victoria. The regulatory frameworksthat apply to dangerous chemicals arecomplex and overlapping, and the areasof overlap add to the complexity. Thisis partly due to the fact that the samechemicals can, at varying points in theirlife cycle, be classified in different waysunder different regulatory frameworks,with each framework giving riseto distinct but overlapping duties.Unnecessarily complex or overly onerousregulation can lead to non-compliance,affect the competitiveness of industry,and drive legitimate operators fromthe market.The various regulatory frameworks needto keep pace with changes and trendsin the market for dangerous chemicals,and the ways in which these chemicalsare used, stored, handled, transportedand disposed of. One of those trends,which became apparent following the2018 and 2019 fires, has been an increasein illegal activity in the waste market fordangerous chemicals.It is also important that Victorianlegislation maintains a degree ofconsistency with the regulation ofdangerous chemicals in the rest ofAustralia, and the world. This consistencyis particularly important in relation to thetransportation of dangerous chemicals,given that they are often transportedacross state and international boundaries.Independent Review of the Dangerous GoodsAct 1985 and associated regulationsIn light of the above, I was tasked toconsider whether the DG Act andassociated regulations are fit for theirintended purposes. To that end, theReview was asked to:a. examine the extent to which theDG Act and associated regulationspromote the safety of personsand property and the effectivemanagement of dangerous goods;b. consider how the DG Act andassociated regulations could beenhanced to be more risk-based andprevention focused;c. consider the efficacy of the DG Actand associated regulations in deterringnon-compliance and illegal activityin relation to the management ofdangerous goods;d. examine whether any amendments tothe DG Act and associated regulationsare required to respond to emergingissues and challenges related to themanagement of dangerous goods; ande. identify ways to streamline andmodernise the DG Act and regulations.
9Independent Review of the Dangerous GoodsAct 1985 and associated regulationsWhile the Terms of Reference (seeAppendix A) are focused on the DGAct and its associated regulations, thequestions they pose cannot be answeredwithout considering the ways in whichthat legislation interacts with the otherregulatory frameworks that apply todangerous chemicals, and with the waysin which dangerous goods legislationis enforced.This Consultation Paper is designed tostimulate and promote discussion aboutthe regulation of dangerous goods inVictoria, by raising a number of issues –some broad, some more specific – andsuggesting ways in which those issuesmight be addressed. In responding to theissues raised in this Consultation Paper,I encourage you to provide practicalexamples, wherever possible, of yourexperience with the dangerous goodsframework. You are also welcome to raiseother issues in your written submissionthat may not have been covered inthis Paper.In preparing this Paper, I have beenenormously assisted by consultationsheld (under COVID conditions) withWorkSafe, the Environment ProtectionAuthority and Emergency ManagementVictoria as well as representatives ofmany of the organisations that makeup WorkSafe’s Dangerous GoodsStakeholder Reference Group. I wouldlike to thank each of these organisationsfor the contributions they have made.I am also grateful for the supportI have received from the Review’sSecretariat team.Andrew Palmer QC
10About the IndependentReview of the DangerousGoods Act 1985 andassociated regulationsIn April 2020, the Hon Jill HennessyMP, then Minister for Workplace Safety,announced a comprehensive reviewof Victoria’s dangerous goods lawsand appointed me as the IndependentReviewer to conduct the Review. TheTerms of Reference for the Review can befound at Appendix A.The Review is part of the VictorianGovernment’s response to high profileincidents associated with illegal chemicalstockpiling at several sites acrossMelbourne. The Review will considercontemporary issues and challenges inthe management of dangerous goods,including emerging risks and issues andtheir impact on the safety of personsand property. I will undertake extensivestakeholder consultation throughoutthe Review. Targeted meetings withkey stakeholders were held from Mayto September 2020 to assist in theformulation of this Consultation Paper.Independent Review of the Dangerous GoodsAct 1985 and associated regulationsThe primary purpose of this ConsultationPaper is to facilitate broader publicdiscussion about the managementof dangerous goods in Victoria. Allinterested individuals and organisationsare invited to comment on the issuesraised in this Paper by making asubmission to the Review. I will conductfurther consultation following receipt ofthe submissions and during the processof drafting a final report. This report isdue to be provided to the Minister forWorkplace Safety in mid-2021.
11Independent Review of the Dangerous GoodsAct 1985 and associated regulationsHow to make a submissionYou are invited to share your views on theissues raised in this Consultation Paper.This Consultation Paper presents issuesfor consideration which address theTerms of Reference. A complete list ofthe questions asked throughout thePaper can be found in Appendix B. Thesequestions are designed to assist you tomake a submission. You are not requiredto address all of the questions posedand you are also welcome to raise otherissues that may not have been covered inthis Paper.Written submissions can be madeelectronically through the VictorianGovernment’s Engage Victoria website atwww.engage.vic.gov.au. If you would liketo provide your submission in a differentway, or if you have any questions, pleaseemail DGReview@worksafe.vic.gov.au orwrite to:Dangerous Goods Act ReviewC/- WorkSafe VictoriaP O Box 279Geelong VIC 3220All submissions must be received by5pm on Monday 30 November 2020.Submissions will be published on theEngage Victoria website unless youindicate that you do not want yoursubmission to be published.Any information contained in submissionsmay be referred to or reproduced inthe final report. If you do not wish yoursubmission (or any part of it), or yourname (or the name of your organisation),to be referred to in the final report, pleasestate this clearly in your submission.
Victoria’s dangerous goodslandscapeWhat are dangerousgoods?Chemicals are, generally speaking,classified as “dangerous goods” if theypose an immediate physical hazardto persons or property. This includessubstances that are corrosive, flammable,explosive, spontaneously combustible,toxic, oxidising, or water reactive.1Most dangerous goods can also harma person’s health if they are inhaledor absorbed through the skin, causingboth immediate and/or long-term healtheffects.2 These dangerous goods are alsoconsidered to be “hazardous substances”and are regulated under both the DG andOHS frameworks.12The DG Act defines “dangerous goods”in accordance with the Australian Codefor the Transport of Dangerous Goods byRoad or Rail (ADG Code: see Box 1).Whilst a number of dangerous goodsare used in industrial settings in largequantities, many are also every dayproducts used in the home, office orworkplace. The varied and widespreaduse of dangerous goods in thecommunity presents a complex challengefor regulators.See WorkSafe, Dangerous goods: Safety basics (Online Guidance, 6 December 2019) fety-basics .See WorkSafe, Hazardous Substances: Safety Basics (Online Guidance, 23 January 2020) es-safety-basics .
Independent Review of the Dangerous GoodsAct 1985 and associated regulationsBox 1 Definition of dangerous goodsThe DG Act defines “dangerous goods” as having the same meaning as in theAustralian Code for the Transport of Dangerous Goods by Road and Rail (ADGCode), with some exceptions. Dangerous goods are considered dangerous dueto their inherent nature which, if not controlled effectively, can cause seriousor fatal injuries and large scale damage to property and the surroundingenvironment.ADG Code The ADG Code assigns dangerous goods to one of nine classes according tothe predominant hazard they present. Some of these classes are subdividedinto divisions. The numerical order of the classes and divisions does not reflectthe degree of danger. Each class is identifiable through an internationally recognised labelling systemwhich provides quick information on the hazardous properties of dangerousgoods. Examples of the ADG class labels, and the types of goods in each class, areshown at Appendix C. The ADG Code classes included in the DG Act’s definition of “dangerousgoods” (with examples of ADG Code class labels) are as follows:Class 2: GasesClass 3: Flammable liquidsClass 4: Flammable solids, substances liable tospontaneous combustion and substances which in contactwith water emit flammable gasesClass 5: Oxidising substances and organic peroxidesClass 6.1: Toxic substancesClass 8: Corrosive substancesClass 9: Miscellaneous dangerous substances and articles Most of the ADG classes have equivalent categories under Part 2 of the “GHS”,which deals with physical hazards (see Box 2).Inclusion of other goods in the definition of “dangerous goods”The DG Act uses its own definition of “explosives”, instead of including ADGCode Class 1 (explosives).The DG Act definition also includes combustible liquids having a flash pointof higher than 60 c, HCDGs, goods too dangerous to be transported, and anyother chemicals declared to be dangerous goods.13
14Independent Review of the Dangerous GoodsAct 1985 and associated regulationsThe lifecycle of dangerousgoodsDangerous goods in Victoria generallyprogress through five key stages of their“product life” – raw material extraction,manufacture/import, sale/distribution,use, and disposal.The lifecycle commences when thedangerous goods (or the materials fromwhich they are made) are extracted intheir raw form.Dangerous goods will become aconsumable product after they have beenmanufactured from those raw materialsor have been imported into Victoria.3These products will then be suppliedthrough a wholesale/distribution processwhere they may be used in othermanufacturing or production activities, orto fulfill a range of other purposes acrossvarious industries.When dangerous goods products aredamaged, unwanted, or no longer usablethey become waste. This waste must betreated so it can be safely reprocessed,disposed of at an approved facility orexported.Dangerous goods are likely to betransported at various points throughouttheir lifecycle.Figure 1: Lifecycle of dangerous goodsRaw osalReprocessing/recycling3Destructionor exportDG Act, s 3 defines “manufacture” as including any part or whole of the process of: making nondangerous goods from dangerous goods; making non-dangerous goods from non-dangerous goods,where in the course of the process dangerous goods are made; and the
Maxwell Review Occupational Health and Safety Act Review, Chris Maxwell QC, March 2004 MHF Major Hazard Facility, as defined under regulation 5 of the Occupational Health and Safety Regulations 2017 Model WHS Act Model Work Health and Safety Act Model WHS Laws The Model WHS Laws include: the Model Work Health
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