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Australasian Explosives Industry Safety Group Inc.

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AEISG Submission on Automatic Mutual Recognition of Occupational Registrations

The Australasian Explosives Industry Safety Group (AEISG) is an incorporated association representing all the significant manufacturers and suppliers of blasting explosives – products and services which are essential to the resource and construction industries which, in turn, are so vital to the economic well-being of Australia.

The explosives industry itself is a multibillion-dollar industry, supplying almost 3 million tonnes of explosives per annum across Australia. It consists of national explosives companies manufacturing, importing, selling, transporting, storing, using and handling explosives with a need to safely, securely and efficiently move products, people and equipment seamlessly across borders and around Australia to service their clients.

Explosives have long been subject to tight legislative controls for community safety and security reasons. These are acknowledged, understood and fully supported by our industry. However, in Australia there has been continued increase and divergence of Commonwealth/State/Territory legislation in this area over several decades to the point where industry is now constrained by multiple sets of inconsistent, ineffective, outdated and unnecessary requirements; developed and administered by state/territory agencies with varying levels of technical competence and little to no enthusiasm for addressing national consistency of explosives safety and security legislative requirements.

The inconsistent and disjointed explosives legislation across state and territory jurisdictions, which also prevents the free flow of products, people and equipment across the country, is now the major impediment to explosives safety and productivity improvements in the industry while at the same time seriously compromising national security.

In response to the above, the explosives industry in Australia has long canvassed a move to nationally harmonised explosives legislation which would provide a platform for improved safety and productivity within the industry, remove unnecessary, dated and inconsistent legislative requirements (red tape), while at the same time addressing the significant deficiencies in the necessary security arrangements for effective explosives controls.

Finally, in December 2012, in response to recommendations by the Productivity Commission, the Council of Australian Governments (COAG) agreed ‘harmonising explosives regulation’ should be progressed by the Select Council on Workplace Relations.

Safe Work Australia established a tri-partite Strategic Issues Group (SIG) – Explosives in late 2012 and commenced work in developing relevant proposals which would lead to national harmonisation of explosives legislation. AEISG, on behalf of the explosives industry in Australia, was an active member of this SIG which worked until late 2017 and finalised 4 significant proposals that were agreed by all jurisdictional Workplace Health and Safety Ministers in 2018.




One of the agreed reform proposals was to harmonise explosives licensing requirements, including relevant occupational licences, and to then provide for automatic recognition of licences issued in one jurisdiction by all other jurisdictions (refer Attachment A).

Despite this national agreement to implement the reforms, progress has been disappointing, with the notable exception of WA which has implemented automatic recognition of security checks and occupational explosives licences issued by other jurisdictions.

AEISG now welcomes the initiative to introduce Automatic Deemed Registration so that persons licensed or otherwise authorised to conduct an occupation in one state/territory jurisdiction may conduct that same occupation in other jurisdictions without further applications, determinations, costs, delays or duplicated processes.

AEISG has reviewed the Consultation Paper, the Intergovernmental Agreement and the draft Mutual Recognition Amendment Bill, which seek to give effect to Automatic Deemed Registrations for occupational authorities issued by state and territory jurisdictions.

The proposed Amendment, Part 3A, to the Mutual Recognition Act is supported by the explosives industry in Australia.

With respect to the broad range of explosives and explosives activities undertaken in Australia, and covered by applicable legislation in all jurisdictions, AEISG believes the following occupational licences/permits/authorities (different names in different jurisdictions for the same occupation) would be included within the Intergovernmental Agreement signed by all jurisdictions except for the ACT:

• Licences/Permits/Authorities to Use Explosives − Shotfirer Licence, Fireworks Operator Licence, Licence to Use Explosives,

Fireworks Contractor Licence (Qld); − Blasting Explosives User’s Licence, Pyrotechnician’s Licence, Licence to Use

Security Sensitive Dangerous Substance (NSW); − Shotfirer’s Certificate, Permit to Conduct a Fireworks Display (NT); − Blaster’s Licence, Pyrotechnicians Licence, Permit to Use a Security Sensitive

Substance (SA); − Shotfiring Permit, Shotfiring Permit (Pyrotechnics Endorsement), Security

Sensitive Dangerous Substance Permit (Tas); − Licence to Use Blasting Explosives, Pyrotechnician Licence, Licence to Use High

Consequence Dangerous Goods (Vic); − Shotfiring Licence, Fireworks Contractor Licence, Fireworks Operator Licence

(WA); • Licences to drive vehicles transporting Dangerous Goods and/or Explosives

− Dangerous Goods Driver Licence, Explosives Driver Licence (Qld); − Dangerous Goods Driver Licence (NSW); − Dangerous Goods Driver Licence, Explosives Driver Licence (NT); − Dangerous Goods Driver Licence (SA); − Dangerous Goods Driver Licence (Tas); − Dangerous Goods Driver Licence, Explosives Driver Licence (VIC); − Dangerous Goods Driver Licence, Explosives Driver Licence (WA); − Dangerous Goods Driver Licence, Explosives Driver Licence (ACT).




As can be seen, the licences/authorities to use blasting explosives go by different names in different jurisdictions but for all intents and purposes are equivalent. It is assumed under the proposal for Automatic Deemed Registration that a person holding a Shotfiring Licence in WA will be able to conduct blasting activities in NSW in line with the WA licence and working to the local laws in NSW – despite the equivalent licence being called a Blasting Explosives User’s Licence in NSW. Currently, that person in WA needs to hold licences in every other state and territory to conduct his/her occupational activities.

While understandable, AEISG has concerns with the ability for a Minister in a jurisdiction to exempt certain occupational licences from this Agreement.

The experience of the explosives industry over recent history has been for some jurisdictional regulators to jealousy guard their licensing requirements as more superior to those implemented by other jurisdictions. Further, some regulators will argue their licensing requirements are necessary to provide better protection for workers and/or the community. With regard to explosives occupational activities, there has been no justification offered for the differences to date and there are no differences in safety/security incident statistics in these areas of explosives activities to suggest that any one jurisdiction is achieving a ‘better’ standard than any other. The explosives industry in Australia continues to maintain high standards and experiences an enviable safety record as a result.

Some regulators will also attempt to raise security, particularly with explosives, as a reason to suggest their standards of licensing/registration needs to be retained. Again, all jurisdictions apply security checks for persons undertaking these occupations. Further, once a licence has been granted by a jurisdiction that person has legal access to explosives. Any refusal of an equivalent licence by a neighbouring jurisdiction will not remove that legal access to explosives already obtained. It would be helpful, and more secure, if individual security checks were conducted at a national level and then accepted by all state/territory jurisdictions. This has been achieved for port/airport workers around the country – why not for other occupations?

AEISG understands that the proposal will require any exemption of licences from the Automatic Deemed Registration Agreement to be supported by written justification. Individual state/territory jurisdictions are already canvassing industries as to potential problems with this proposal and exploring exemption possibilities. AEISG believes exemptions of occupations should be extremely limited.

AEISG supports these provisions, however, we would recommend that a relevant industry organisation should be provided the opportunity to respond to any proposed exemption of an occupational registration, and its stated justification, prior to that determination being made final by a jurisdiction. We believe a relevant jurisdictional Minister will benefit from hearing both sides of an argument for an exemption of any particular occupational licence/registration, prior to making a declaration on the matter.

Further, AEISG believes that the notification requirements which jurisdictions may implement for certain occupations (refer Section 42E of the Exposure Draft Bill) allows for significant delays of implementation by jurisdictions, who may elect 7 different forms of notification processes needing different forms of ‘public protection requirements’ (refer Section 42D(2)(a)).




While Section 42D(2)(b) infers that the automatic deemed registration is applicable from the time the person first begins carrying out the activity, it is unclear whether notification is required each time the person enters the host jurisdiction or whether the notification, once given, is good for the lifetime of the registration given in the issuing jurisdiction.

State/Territory Governments are to be applauded for agreeing to this initiative. It will now be up to them to see that it is properly, and broadly, implemented by their various regulatory agencies which may seek to resist its implementation as intended.

One important benefit of this initiative is that it will provide an incentive to those jurisdictional agencies responsible for registering occupations in Australia to communicate more effectively with each other and align the varying requirements for registration. This will inevitably lead to more soundly based and consistent requirements for registration and ensuing improvements in both safety and productivity.

Should there be any questions in relation to this submission, AEISG would be happy to provide additional information.

Yours sincerely

Richard Bilman Chief Executive Officer AEISG

ATTACHMENT A

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Explosives

Policy Proposal

NATIONALLY CONSISTENT LICENSING FRAMEWORK

Part A

Automatic recognition and administrative requirements

October 2017

ATTACHMENT A

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Table of Contents 1. Introduction .................................................................................................................... 7

2. Statement of the problem - licensing .............................................................................. 7

3. Policy authority .............................................................................................................. 8

4. Recommendations ......................................................................................................... 8

Automatic recognition ........................................................................................................ 8

Applications for a licence ................................................................................................... 9

Making an application ........................................................................................................ 9

Requirements for an application including application forms ............................................ 10

Security clearances ......................................................................................................... 16

Requirement for a security clearance .............................................................................. 17

The security clearance process ....................................................................................... 18

Duration of a licence ........................................................................................................ 24

Licensing fees ................................................................................................................. 24

Licence conditions ........................................................................................................... 24

Duties and powers of the regulator .................................................................................. 25

Record keeping requirements .......................................................................................... 26

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1. Introduction 1. In October 2016, work health and safety (WHS) ministers agreed to progress reforms

to achieve national consistency in four key areas of explosives legislation within each jurisdiction’s legislative framework. These four reform areas are:

• definition of explosives

• authorisation processes

• notification processes, and

• the licensing framework. 2. The definition of explosives deals with what is or is not an explosive. This then sets

the scope of regulation and provides boundaries to regulatory controls, including licensing and the authorisation of explosives in Australia.

3. Authorisation is the process carried out by explosives regulators which confirms the classification of the explosive and assesses whether the explosive is fit for purpose and safe to use for that purpose. For an explosive to be manufactured, imported or otherwise handled, it must first be authorised.

4. Notifications provide information to explosives regulators about particular activities, events or incidents involving the use of explosives to assist with compliance activities.

5. Licensing provides the key regulatory control for explosives. Jurisdictional licensing arrangements are designed to ensure explosives are used safely and for legitimate purposes by authorised people. Occupation-based licences are issued to individuals including shotfirers, pyrotechnicians and explosives drivers. Activity-based licences are issued to businesses and individuals undertaking activities such as manufacturing, storing, transporting, supplying, importing or exporting explosives.

6. Separate policy proposals have been prepared to address each of these reform areas. For licensing, there are two policy proposals; policy proposal A deals with security clearances and other administrative requirements for obtaining a licence. Policy proposal B deals with the requirement to have a licence and licence classes.

7. The recommendations in the policy proposals have been developed in consultation with the Strategic Issues Group - Explosives (SIG-Explosives).

8. This policy proposal outlines the recommended approach to achieve a nationally consistent of explosives in accordance with policy authority set out in the Explosives Regulation in Australia Decision Regulation Impact Statement (Decision RIS) agreed by WHS ministers.

2. Statement of the problem - licensing 9. Currently, each jurisdiction across Australia regulates the use of explosives under its

own legislation. There are variations in the regulatory requirements for licensing in each jurisdiction, including the security clearance process and competency standards which underpin the licensing framework.

10. The licensing process in all jurisdictions is complex. For example, to lawfully use explosives in a jurisdiction, an individual or business must first hold a licence for that use in the jurisdiction in which they intend to use or work with an explosive. To be granted a licence, the individual or business must first attain the necessary security clearance in that jurisdiction. In the case of occupational licences, for example

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explosives drivers’ licences, the individual must also meet relevant competency standards in that jurisdiction to successfully obtain a licence in that jurisdiction.

11. This complexity is exacerbated by the fact that, with the exclusion of Western Australia, a licence obtained in one jurisdiction only applies in that jurisdiction. So, for multi-jurisdictional businesses, licences have to be obtained for all of the jurisdictions in which they use explosives.

12. The lack of a nationally consistent approach to licensing for explosives has resulted in significant administrative burden for individuals and business. It also causes confusion and requires additional resources for business as a result of having to:

• apply for multiple licences to work in different jurisdictions

• undergo multiple security checks to work across jurisdictions, and

• complete the same or similar units of competency multiple times for occupational based licences to conduct the same work in different jurisdictions.

13. This impacts productivity and growth for multi-jurisdictional businesses, and impedes business’ ability to compete for jobs in more than one jurisdiction.

14. The aim of nationally consistent licensing arrangements is therefore to remove the administrative burden associated with differences in licence applications among jurisdictions. Automatic recognition under nationally consistent licensing arrangements would eliminate the complexity and inconsistencies associated with obtaining multiple occupational and activity licences to work in multiple jurisdictions. Nationally consistent licensing arrangements for occupations would also assist worker mobility across jurisdictions.

3. Policy authority 15. To address the problem, WHS ministers agreed to the development of a nationally

consistent licensing framework within each jurisdiction’s legislative framework through the use of:

• standard criteria and application processes for all licences, and

• automatic recognition of occupational licences and activity-based licences for relevant activities that cross jurisdictional boundaries.

16. WHS ministers also agreed to progress national consistency in security checking processes, and competency requirements.

4. Recommendations Automatic recognition

17. Automatic recognition allows a licence holder to rely on a licence granted in one jurisdiction in another. It is ‘automatic’ in the sense that the licence holder does not need to take additional steps for the licence to be recognised in jurisdictions other than the one in which it was granted.

18. There are two possible approaches to automatic recognition. The first would be for each jurisdiction to maintain their current arrangements in relation to application and process for licences, but to recognise licences granted in other jurisdictions in their jurisdiction. This is currently the approach taken in Western Australia (the only jurisdiction currently with automatic recognition arrangements in place).

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• In Western Australia, an explosives licence granted in another jurisdiction under a corresponding law, and authorising the licence holder to carry out the same activity, has effect in Western Australia as if it was a relevant licence granted by the Western Australian Chief Officer. This approach to automatic recognition does not rely on standardised criteria and competency requirements in the jurisdiction. This approach simply recognises licences granted in another jurisdiction, regardless of the fact that the process for obtaining that licence may differ from that which applies in Western Australia.

19. The second approach is to standardise the administrative arrangements that underpin a licence, for example, the application process and the criteria that must be met in order to be granted a licence. That is, establish a national approach to explosives licencing arrangements and then as a feature of that nationally consistent system, provide for automatic recognition by all jurisdictions.

20. Given that WHS ministers have agreed that the nationally consistent system should feature both automatic recognition (for relevant activities that cross jurisdictional boundaries) and standard criteria and application processes for licences, the second approach for automatic recognition is recommended. That is, that there is both automatic recognition, but also a nationally consistent system for criteria and application processes.

21. For the purposes of this policy paper, the recommendations relating to automatic recognition are discussed separately to the recommendations for progressing national consistency in criteria for licences, such as security checking processes and application processes. However, the recommendations for those matters are made assuming automatic recognition will also apply.

Recommendation 1a: That explosives laws provide for automatic recognition of occupational explosive licences granted by one jurisdiction by all other jurisdictions, where relevant. Recommendation 1b: That explosives laws provide for the automatic recognition of activity based explosives licences issued by a regulator where the activities have the potential to cross jurisdictional boundaries. This includes a licence to transport, supply, import and manufacture explosives using mobile manufacturing units (MMU)/mobile processing units (MPU).

Applications for a licence

22. All jurisdictional explosives laws currently include provisions which enable a person to apply to the regulator for either an occupational licence or an activity-based licence. In order to achieve a nationally consistent licensing system, it is first necessary that individuals and businesses be able to apply to the regulator for a licence in all jurisdictions and to renew licences that are due to expire. The kinds of licences that could be applied for are dealt with in policy proposal Part B.

Recommendation 2a: That explosives laws include provisions for a person to apply to the regulator for an explosives licence and a licence renewal.

Making an application

23. In a system which permits automatic recognition, it is necessary to determine in which jurisdiction an application for a licence must be made. This also provides certainty for a person who requires licences for multiple jurisdictions, for example, a holder of a pyrotechnic licence who performs work in multiple jurisdictions.

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24. There are two approaches that could be taken—it would be possible to provide that an application could be made in any jurisdiction or only one jurisdiction. If one jurisdiction is the approach to be taken, it is then necessary to determine which jurisdiction is the one in which an application must be made.

25. It is recommended that under the nationally consistent system, an applicant for a new licence could apply for that licence in any jurisdiction. However, to prevent ‘forum shopping’ and to assist with regulatory oversight, it is recommended that the applicant have the necessary connection to the jurisdiction that they are applying in. This could be achieved in a number of ways, such as through requiring an application to be lodged in a jurisdiction in which the business/person resides, where the relevant activity will take place or where the explosive is to primarily be used.

26. It is recommended the nationally consistent system require that for an application for a licence to be made in a jurisdiction, the applicant must satisfy the regulator that they have a substantial connection to the jurisdiction in which the application for the licence is being made. This approach is consistent with the proposed approach for the authorisation of explosives (which recommends the applicant demonstrate they have a 'substantial connection' to the jurisdiction in which the application is being made).

27. Where the regulator is not satisfied that an applicant has a substantial connection to the jurisdiction, it could request further information from the applicant, or refuse the application. If the regulator refused the application on this ground, it is recommended that it be required to inform the applicant, as soon as reasonably practicable.

Recommendation 2b: That explosives laws provide that for an application to be made in a jurisdiction, the applicant must satisfy the regulator that they have a substantial connection to the jurisdiction in which the application for a licence, or renewal of a licence, is to be made.

Application forms 28. Some jurisdictions’ explosives laws, for example the Australian Capital Territory, set

out the information which must be provided to the regulator in an application for a licence. This includes, for example, personal details, proof of identity and proof of competency for competency based licences. Other jurisdictions, such as New South Wales, provide that applications must be in the approved form, but the content of the approved form is not set out in regulation.

29. A nationally consistent approach to the information required for a licence application would ensure regulators are assessing the same information when determining an application. It would also reduce confusion for businesses and streamline administrative processes for both businesses and regulators.

30. It is recommended that the nationally consistent system include certain requirements that must be included in, or provided with, an application for a licence. These include, for example, qualifying requirements in relation to age and medical evidence. These specific requirements are discussed further in turn below.

31. Further, to assist with maintaining the integrity of the nationally consistent system, it is recommended that an applicant be required to provide information in relation to previous applications for licences which have been refused, suspended or cancelled. This will ensure transparency in relation to the application process and assist a regulator to determine the application.

32. It is recommended that under the nationally consistent system, an application would have to be submitted to the regulator in the ‘approved form’. It is anticipated that a ‘suite’ of approved forms would be necessary as each licence class would likely

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require a different application form. However, to ensure flexibility and for consistency with the authorisations process, it is not recommended that the approved form be set out in the explosives laws. Rather, the approved forms would be developed by the regulator. It would be open to the regulators to agree nationally consistent forms in accordance with the explosives laws.

Recommendation 2c: That explosives laws require an application for a licence be provided to the regulator in the approved form.

Recommendation 2d: That explosives laws provide that the approved form is as determined by the regulator.

Recommendation 2e: That explosives laws require that an application for a licence must require the following information, where relevant:

• Name of applicant • Residential/business address • Date of birth • Proof of identity • Proof of drivers licence history (for explosives drivers licence) • Details of the responsible person, if relevant (including all of the details required to

demonstrate they are able to be a responsible person) • Proof of security clearance • Previous applications made under explosives laws which have been refused • Previous licences held under explosives laws which have been cancelled or

suspended • Previous convictions under a relevant law • Reasons why the application is required in that jurisdiction (including evidence if

relevant) • Evidence that the applicant is physically and mentally fit to safely engage in the

activities that would be authorised by the licence • Evidence of competency (for occupational licences), including successful

completion of a competency test, if determined by the regulator • The applicant’s safety, security and emergency plan.

Other requirements that must be met to be granted a licence Responsible person 33. In all jurisdictions, businesses are able to hold a licence. In these cases, it is generally

required that the business nominate at least one natural person to be responsible under the licence.

34. For example, in New South Wales, for a licence to be granted to a business there must be at least one ‘responsible person’ for the business listed on the application form. The responsible person must, among other requirements, be ‘concerned in the management of the business’ and must ‘have the relevant knowledge, experience and qualifications to supervise the activities authorised by the licence’.

35. To ensure safety and security measures are not reduced, it is recommended that the nationally consistent system also require a business to have at least one responsible person in relation to a licence for the licence to be granted and remain valid. A responsible person must be concerned in the management of the business and would be required to meet the requirements of individuals in relation to age requirements, the fit and proper person test and hold a valid security clearance. These requirements are discussed further below.

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Recommendation 2f(i): That explosives laws provide that:

• For a business to be granted a licence and hold a valid licence, it must have at least one responsible person in relation to that licence.

• A responsible person must be concerned in the management of the business, meet the minimum age requirements, fit and proper person requirements and hold a valid security clearance.

Minimum age requirement 36. Given the safety and security concerns connected to the use of explosives, it is

recommended that a minimum age for an applicant of an explosive licence, and a responsible person, be included in the nationally consistent system.

37. Currently, there are requirements in relation to the minimum age for an explosives licence applicant in all jurisdictions but the actual age requirement varies. For example, the majority of jurisdictions set the minimum age for applying for an explosives licence as 18 years, whereas in Queensland a fireworks contractor licence can only be granted to persons aged 21 or older. As 18 years of age is currently the minimum age applied in most jurisdictions, it is recommended that this approach continue under the nationally consistent system for all licences, except explosives drivers’ licences.

38. This risks connected to explosives are heightened while they are being transported. The Australian Explosives Code (AE Code) recognises this and specifies that applicants for explosives drivers’ licences must be at least 21 years of age. This increased minimum age aims to ensure that a driver has had experience driving to ensure the risks involved in driving a vehicle carrying explosives would be minimised.

39. For consistency with the AE Code it is recommended that the minimum age for an explosives drivers’ licence applicant be 21 years of age. However, given that a driver can obtain a licence at any age after 17 years, a minimum age in isolation does not necessarily ensure that the applicant has had at least 3-4 years driving experience – the licence could have been obtained immediately prior to the person making the application. To account for this, it is recommended that the nationally consistent system provide that an explosives driver licence applicant be at least 21 years of age and the applicant has to provide evidence that he or she has held a drivers’ licence (not including a learners’ permit) for at least 3 years.

40. As a responsible person in relation to a business licence must be concerned in the management of the business, it is recommended the minimum age for a responsible person be 21 years of age.

Recommendation 2f(ii): That explosives laws provide that an applicant cannot be granted a licence, except for explosives drivers’ licences, if they are not at least 18 years of age, or the relevant responsible person is not 21 years of age. Recommendation 2f(iii): That explosives laws provide that a responsible person nominated under a licence must be at least 21 years of age. Recommendation 2g: That explosives laws provide an applicant cannot be granted an explosives drivers’ licence if they are not at least 21 years of age. In addition, to be granted an explosives drivers’ licence the applicant must have held a drivers’ licence (not including a learners’ permit) for at least 3 years.

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Fit and proper person

41. Given the safety and security concerns associated with explosives, it is recommended that there also be a threshold test for a person to be granted a licence. Although not necessarily expressed in such terms, all jurisdictions, in considering an application for a licence, determine whether, in the regulator’s view, the person is a ‘fit and proper’ person to hold an explosives licence.

42. To ensure only appropriate persons are granted a licence, it is recommended that a regulator be required to be satisfied that the applicant is a fit and proper person so as to be granted a licence.

43. In forming this view, the regulator would be required to consider all relevant matters, including but not limited to whether the person: • holds a valid security clearance (recommendations 2l, 3a – 3p),

• is physically and mentally fit to safely engage in the activities that would be authorised by the relevant occupational licence (recommendations 2h and 2i, and

• satisfy the regulator that they are competent for the purposes of a competency-based licence, which may include successfully passing a test of competency determined by the regulator (recommendation 2k).

Recommendation 2g(i): That explosives laws provide that to grant or renew a licence, a regulator must be satisfied that the applicant is a fit and proper person for the purposes of that licence. Recommendation 2g(ii): That explosives laws provide that the regulator must, in deciding whether the applicant is a fit and proper person, take into account all relevant matters, including whether the applicant:

• holds a valid security clearance (recommendations 2f(i), 3a – 3p), • is physically and mentally fit to safely engage in the activities that would be

authorised by the relevant occupational licence (recommendations 2h and 2i), • has previous convictions (recommendation 2j), and • has the relevant competency for the purposes of a competency-based licence,

which may include successfully passing a test of competency determined by the regulator (recommendation 2k).

Medical evidence

44. The majority of jurisdictions, for example New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory, take into account the mental and/or physical health of applicants when determining their suitability to be issued with, or continue to hold, explosives licences. However, the actual requirements vary in each jurisdiction. For example:

• in Queensland, explosives laws permit the Chief Inspector to make reasonable inquiries about a person’s appropriateness to hold an application, including in relation to their mental and physical health

• in Victoria, the explosives laws provides that a licence can be suspended, amended or revoked on the grounds that the license holder is suffering from a medical condition, or has a physical or mental disability, and

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• in Western Australia, licence applicants must provide medical evidence that they are physically and mentally fit to safely engage in the activities that would be authorised by the licence they are applying for or seeking to renew.

45. To ensure safety and security concerns are not undermined in the nationally consistent system, it is recommended that requirements in relation to the mental and physical health of an applicant, responsible person or licence holder be maintained. To achieve this, it is recommended that an approach be taken that not only considers an applicant for a licence but a licence holder. That is, that an applicant and a licence holder be able to demonstrate, to the satisfaction of the regulator, they are physically and mentally fit to safely engage in the activities that would be authorised by the licence they apply for or seeking to renew.

• To achieve this, the regulator would need to be provided with a power to request the relevant medical evidence for the life of the licence. This issue is dealt with in relation to the powers of the regulator.

46. For national consistency, it is also recommended that the explosives laws set out what medical evidence is required to be provided in support of a licence application and at the request of the regulator. It is recommended that such evidence would be in the form of a report made by a medical practitioner on his or her assessment of the applicant’s physical and mental fitness—made in accordance with relevant and applicable medical standards—to safely engage in the activities authorised by the licence, if it were to be granted. It is recommended this medical report be valid for 6 months, consistent with current requirements in a number of jurisdictions and medical assessments required for the transport of dangerous goods. However, it would also be open to a regulator to accept other evidence as satisfying the requirement, should they be satisfied it is appropriate in the circumstances to do so.

Recommendation 2h: That explosives laws provide that an applicant for an occupational licence must demonstrate to the satisfaction of the regulator they are physically and mentally fit to safely engage in the activities that would be authorised by the occupational licence they are applying for, hold or seeking to renew. Recommendation 2i: That explosives laws provide that the regulator would be so satisfied where the applicant for an occupational licence provides a medical report that:

• has been made by a medical practitioner within the previous 6 months, and • certifies that the medical practitioner has examined the applicant or licence holder in

that, in his or her medical opinion, the applicant or licence holder’s physical and mental fitness is of the required standard to engage safely in the activities that would be or is authorised by the occupational licence.

Declarations regarding convictions under work health and safety and dangerous goods legislation 47. Currently, a number of jurisdictions such as Victoria consider whether an applicant has

been found guilty of an offence under WHS and/or dangerous goods legislation in deciding an application. A finding of guilt under road transport legislation may also be taken into account in relation to an applicant for an explosives drivers’ licence.

48. Convictions of this nature are relevant safety and security considerations given that the licence holder will have access to explosives. An applicant’s previous behaviour in relation to work health and safety, explosives, dangerous goods, weapons and firearms and to a limited extent, road transport legislation, is considered to be a good indicator of future behaviour. Given this, it is recommended that an applicant be required to provide information to the regulator in relation to relevant previous

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convictions under this type of legislation. However, the requirement would be subject to jurisdictional spent convictions law and policy so that an applicant would not be required to disclose a conviction where that legislation or policy applies.

Recommendation 2j: Subject to spent convictions legislation and policy, that explosives laws provide that an applicant for a licence inform the regulator of any conviction in relation to themselves or a responsible person under:

• WHS legislation • explosives legislation • dangerous goods legislation • weapons and firearms legislation, and • for explosives drivers’ licences, road transport legislation.

Safety, security and emergency plans 49. Most jurisdictions, including New South Wales, Victoria and Western Australia,

currently require plans about how safety and security of explosives will be managed to be provided to the regulator with an application (and to be retained by the applicant). Some jurisdictions such as Victoria and Western Australia also require plans for potential emergencies to be provided. An emergency plan is generally required to be developed in conjunction with the relevant firefighting authorities and other emergency services.

50. However, the way in which the information is obtained differs between jurisdictions.

• In Western Australia, a general ‘explosives management plan’ must be submitted with licence applications. The precise contents of the plans are different for each licence class but some share core requirements for safety and security.

• In Victoria, different plans must be provided for different licence classes. For example, applicants for storage licences must have a plan to manage emergencies that may reasonably be expected to affect the storage premises. Shotfirers must also have blast management plans that must include a plan for dealing with misfires and be commensurate with the size, location and complexity of the blasting operation as well as aligned with Australian Standard AS 2187.2 Explosives – Storage and use – Use of explosives.

• In New South Wales, applicants must only provide a security plan if requested by the regulator.

51. It is a well-accepted control measure for the risks of explosives that in respect of some licences, licence holders and potential licence holders should consider, assess, prepare and implement arrangements for the security and safety of the relevant explosives and emergencies that include, or potentially could include, those explosives. As discussed, in Western Australia, this is implemented by a requirement that the explosives management plans be submitted with a licence application. That jurisdiction takes the view that how a licence holder will manage the safety and security of an explosive is an important consideration for the application process.

52. It is clearly important for a regulator to be able to assess and provide feedback on the relevant plans and to be satisfied that those plans have been implemented. Given this, it seems that the nationally consistent system should at least require plans to be made available for inspection by the regulator on request. However, it does not go without saying that those plans need to be provided in full at the time an application is made.

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53. Providing full and completed plans when applying for a licence can be burdensome for an applicant. It may also be difficult for an applicant with new or evolving operational systems to provide full and complete plans when they first apply for a licence.

54. To balance these competing issues, it is recommended that the nationally consistent system require that, where relevant, an applicant provide safety, security and emergency plans to the regulator at the time the application is made. However, it is also recommended that the regulator have scope to accept draft or summary plans, which may be appropriate depending on the circumstances, for example in cases of new manufacturing plants, complete plans would not usually be able to be prepared at the time of application. The regulator would also have the power to request information relating to safety, security and emergency plans at any time, including before it decides on an application. This approach is consistent with that taken in relation to major hazard facility licences under the model WHS laws.

Recommendation 2k: That explosives laws provide that an applicant must, where relevant, satisfy the regulator that they have appropriate safety, security and emergency plans at the time an application for a licence is made.

Evidence of competency – occupational licences 55. Currently, all jurisdictions require written evidence of competence (qualifications,

training, experience etc.) to be provided with an application for an occupational licence. However, in Western Australia, as an alternative, an applicant can also physically demonstrate competency. In that jurisdiction, the Chief Officer can approve a test of competence if they consider that individuals who pass the test will be competent to engage in the activities for which the licence is sought.

56. The Western Australian approach is flexible and allows regulators to satisfy themselves of competence through tests that are tailored to the licence class, while not preventing traditional methods of demonstrating competency to be accepted. Given this, it is recommended that regulators have scope to determine that a person must pass a nominated test to demonstrate competency for competency based licences.

57. To ensure national consistency, it would be open to the regulators to agree consistent testing arrangements for these licence classes.

Recommendation 2l: That explosives laws provide that a regulator may determine the test that will be accepted to establish competency, if they are satisfied that successfully passing that test will demonstrate that the applicant is competent for the purposes of a competency-based licence.

Security clearances

58. Currently, in all jurisdictions, an applicant must hold a ‘security clearance’ to be granted an explosives licence. A person is considered to have obtained a ‘security clearance’ or be ‘security cleared’ if they have undergone assessment and the results of the assessment indicate that they will not pose an unacceptable risk to safety and security if given access to explosives. However, the process for obtaining a security clearance varies across the jurisdictions.

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59. WHS ministers agreed to progress national consistency in security checking

processes. It is considered that this can best be achieved by a national approach in relation to the following key areas:

• requirements to hold a security clearance

• the security clearance process (that is, what types of checks are conducted, for example, Australian Security Intelligence Organisation (ASIO) Security Assessments; criminal history checks etc.), and

• where criminal history checks are required – the matters that will be taken into account in relation to criminal history.

60. However, it is not recommended that there be one national ‘security clearance’ for the purposes of the nationally consistent system. Rather, the jurisdictions will continue to undertake security clearance processes. The nationally consistent system will simply define security clearance to mean a security clearance granted in one of the jurisdictions.

Recommendation 3a: That explosives laws will not establish a national ‘security clearance’ for the purposes of those laws.

Requirement for a security clearance

61. All jurisdictions currently require persons who have, or are seeking, unsupervised access to explosives to hold a valid security clearance. This includes applicants for licences and renewals of licences, and other people who work with explosives unsupervised, for example a person packing a load of explosives onto a vehicle to be transported under the authority of a transport licence. To maintain safety and security controls, it is recommended that nationally consistent licensing requirements require that these persons must hold a security clearance.

Supervised handlers 62. In New South Wales, however, an individual is not required to hold a security

clearance to handle explosives if they are under the immediate supervision of an individual that holds a security clearance or the person is employed, engaged by, or being instructed by a licence holder. ‘Immediate supervision’ in New South Wales means within the direct sight of the supervisor.

63. In New South Wales, an individual who is being instructed in the handling of explosives by a licence holder is also not required to hold a security clearance if they are handling the explosive in the manner authorised by the licence held by the licence holder.

64. It is recommended that in the nationally consistent system, these classes of individuals not be required to hold a security clearance. This is because the safety and security concerns in this situation are addressed by the supervisor holding the security clearance. Adding an additional requirement for the individual to hold a security clearance is unnecessary.

Recommendation 3b: That explosives laws provide that an individual may not be granted a licence or licence renewal unless they hold a valid security clearance. Recommendation 3c: That explosives laws provide that an individual handling explosives under the immediate supervision of a licence holder authorised to handle those explosives is not required to hold a valid security clearance.

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Recommendation 3d: That explosives laws provide that an individual acting under the authority of a licence holder may only have unsupervised access to an explosive if they hold a security clearance.

65. In all jurisdictions, businesses are able to hold a licence for activities such as transport,

manufacture, storage, supply, import and export. In these cases, it is generally required that a natural person be responsible under the licence and hold a valid security clearance.

66. To ensure safety and security measures are not reduced, it is recommended that the nationally consistent system also require that for a business licence, a security clearance must be held by a natural person who is responsible under the licence. As a business is not a natural person and therefore unable to hold security clearances, it is necessary to require a person connected to the business to hold that clearance, noting that more than one person may hold a security clearance (e.g. all directors of a company). The approach in New South Wales is straightforward and offers the necessary controls to address safety and security concerns in relation to the nominated individual. Therefore, it is recommended that explosives laws provide that a business will meet the requirement in relation to a security clearance where the responsible person for that business holds a security clearance and meets the other listed requirements in order to be a responsible person.

Recommendation 3e: That explosives laws provide that for a business to be granted a licence there must be a responsible person in relation to that business that holds a security clearance.

The security clearance process

67. In most jurisdictions, for example, Victoria, Queensland and Western Australia, to obtain a security clearance, the applicant must undergo the following checks:

• an ASIO Security Assessment to conduct Politically Motivated Violence (PMV), and

• one of two types of criminal history checks performed through the Australian Criminal Intelligence Commission (ACIC) database.

ASIO assessment 68. Most jurisdictions, including Victoria, Queensland and Western Australia, currently

require applicants for explosives-related licences to undergo an ASIO Security Assessment as a part of their security clearance process. ASIO Security Assessments examine whether a person has been ‘involved’ in PMV. PMV is any act or threat of violence or unlawful harm that is intended or likely to achieve a political objective, whether in Australia or elsewhere. The ASIO Security Assessment focuses on examining factors related to security. It does not provide information about character checks or other factors such as criminal history, dishonesty or deceit. These considerations are taken into account in ASIO’s advice following the assessment if they have a bearing on security considerations.

69. ASIO Security Assessments are applied for on a case by case basis, the process and considerations may vary depending on a range of factors, for example, why the check is being undertaken and in relation to whom. This means that the check may be undertaken simply by considering the personal details of the applicant against ASIO’s intelligence holdings, or an in-depth intelligence investigation to determine the nature and extent of an identified threat to Australia’s national security may occur.

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70. The ASIO Security Assessment provides a level of assurance that the applicant is a fit and proper person to hold a licence. They are also flexible, so that they can be actioned in a timely manner when security and safety concerns are low. As such, it is recommended that for a person to meet the requirement to hold a security clearance that the process for the security clearance must require the applicant to undertake an ASIO Security Assessment to conduct PMV.

Recommendation 3f: That explosives laws provide that an applicant for a security clearance must undertake an ASIO Security Assessment to conduct PMV.

Results of an ASIO Security Assessment

71. Upon completing an assessment, ASIO may provide either:

• non-prejudicial advice, which means that ASIO has no security-related concerns

• a qualified assessment, which generally means that ASIO has identified information relevant to security but is not making a recommendation in relation to any prescribed administrative action (for example, a security clearance), or

• an adverse assessment in which ASIO recommends that a prescribed administrative action be taken, e.g. that a security clearance not be granted or that an application for a licence not be granted.

72. Currently in most jurisdictions, for example Victoria, adverse ASIO Security Assessment will result in the rejection of a licence application in all cases. In contrast, in most other jurisdictions, a licence may be granted if a qualified result is provided.

Recommendation 3g: That explosives laws provide that the regulator must not issue a security clearance if there is an adverse ASIO PMV check issued in relation to the applicant or no advice is received from ASIO in relation to an ASIO assessment.

Criminal history checks 73. All jurisdictions currently require a ‘criminal history check’ as part of the process of

obtaining a security clearance. The precise matters considered by regulators in relation to the check, for example the disclosable court outcomes (offences), vary between jurisdictions. This is discussed further below.

74. It is recommended that the nationally consistent system continues to require that a security clearance process requires that a person undergo a criminal history check. Like for the ASIO Security Assessment the check provides a level of assurance that the applicant is a fit and proper person to hold a licence.

Recommendation 3h: That explosives laws provide that an applicant for a security clearance must submit to a criminal history check.

Types of criminal history checks

75. There are two kinds of criminal history checks available in Australia:

• a check of the records held by the relevant State police service conducted by the ACIC (formerly CrimTrac), or

• a national police certificate (NPC) check which involves a search by ACIC of all police history records held in all jurisdictions.

76. The process of completing an NPC check is managed through ACIC, which partners with police agencies to provide the National Police Checking Service (NPCS). The

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NPCS enables controlled access to disclosable police history information from all Australian police agencies. An NPC check therefore gives a regulator greater insight into an applicant’s conduct and therefore places them in a more informed position to make a judgement on the applicant’s suitability in relation to the licence.

77. All jurisdictions now require an NPC check to be carried out before granting a security clearance. As such, it is recommended this approach continue under the nationally consistent system and that explosives laws provide that an NPC check be conducted.

78. NPC checks require a person to provide certain personal information to ACIC, as well as their informed consent for the check to be carried out. NPC checks involve the personal information being run against a central database of names to find potential matches with people with police history information.

• If there is no match, an immediate result of ‘no disclosable court outcomes’ is released to the requesting organisation and the check is closed.

• If there is one or more potential match, a referral is sent to the relevant police agencies for assessment. o If after this, the police determine the referral is not a match a ‘no disclosable

court outcomes’ result is released to the organisation that requested the check and the process is closed.

o If a match is confirmed, the police assess the information to determine what details can be released, taking into account the category and purpose of the check, relevant legislation (such as spent convictions legislation) and/or any relevant information release policies.

• These results are released to the organisation that requested the check indicating no disclosable court outcomes or disclosable court outcomes along with relevant details including charges, court appearances, good behaviour bonds or other court orders, matters awaiting court hearings, and traffic offences.

Recommendation 3i: That explosives laws provide that an applicant for a security clearance must apply for a NPC.

Other information taken into account

79. However, in all jurisdictions, the security clearance process does not simply take into account the findings of the NPC check. Rather, all regulators may consider other matters, including considering whether the person has been convicted, found guilty of, or has charges pending for certain offences. However, the offences and other matters that are taken into account in a jurisdiction differ. For example:

• In Victoria, the regulator considers offences relating to an act of violence, weapons, terrorism, damage to property, illegal drugs or dishonesty within the last 10 years that in the opinion of the regulator would pose a security risk in relation to that person.

• In New South Wales a holistic assessment is carried out on whether it is contrary to the public interest for the applicant to hold a security clearance on the basis of criminal or security intelligence or other confidential criminal information.

80. The effect of this is that in each jurisdiction different matters are taken into account in determining whether an applicant meets the security clearance requirements. To achieve a nationally consistent system for security clearances it is necessary that there is consistency in the matters that are taken into account by the regulators. To maintain flexibility for regulators, it is recommended that the explosives laws include a list of

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matters that should be considered in relation to a security assessment, but that this list would not be exhaustive, nor would each matter be required to be considered.

81. Most jurisdictions also include time limits for offences that will be considered, that is, once a period of time has lapsed since the offence or conviction, the regulator will not take it into account. In Victoria and the Australian Capital Territory, in dangerous substances laws, only offences committed in the last five years are taken into account whereas in Western Australia, no time limit is specified.

82. For consistency, it is recommended that a time frame be included in the nationally consistent system. A timeframe of 10 years is recommended which is consistent with the time period of information returned in NPC checks.

Recommendation 3j: That explosives laws provide that the regulator, in determining whether to grant a security clearance, must take the following into account:

• ASIO’s Assessment to conduct PMV in relation to the applicant • the applicant’s NPC • any police intelligence about, or in connection with, the applicant received by the

regulator, and • any offences, charge or court orders committed or coming into effect within the

previous 10 years involving the applicant, into consideration when assessing the suitability of applicants for security clearances, including but not limited to:

o firearms/weapons offences o violence/threats of violence/AVOs or equivalent o domestic violence offences/DVOs or equivalent o damage to property o dishonesty and/or fraud o drug offences, and o explosives and fireworks offences.

Disqualifying offences

83. Currently, explosives laws include matters that the regulator will take into account in determining whether the security requirements are met, however with the exception of an adverse result from an ASIO check, none of those matters automatically disqualify a person from being granted a licence. Under existing arrangements, regulators have discretion as to how criminal history will impact an application for a security clearance.

84. It would be possible under the nationally consistent system to provide that certain matters, for example, convictions immediately disqualify a person from being granted a licence.

• An example of a scheme that includes disqualifying offences is the Maritime Security Identification Card (MSIC) scheme. The MSIC scheme is administered under the Maritime Transport Security Act 2003 and also includes a list of offences against which MSIC applicants are checked before an MSIC is granted. Some offences on this list automatically disqualify an applicant from being granted a MSIC. For others, even if a conviction is found during a criminal history check, the decision maker maintains discretion about whether or not to grant the MSIC.

85. This approach would depart from that currently in the jurisdictions and would reduce the scope for regulators to treat applications on a case by case basis. There is also no

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evidence that the current approach to this issue taken under explosives laws is problematic. Given this, it is recommended that in the nationally consistent system there would be no offences which would automatically disqualify a person from being granted a security clearance or licence.

Recommendation 3k: That explosive laws would not provide for automatically disqualifying offences in relation to security clearances or licences.

Local police intelligence

86. Most jurisdictions also take into account local police intelligence received by the regulator in relation to an applicant. As this information may not be revealed in an NPC, to maintain safety and security it is also important that this information continue to be taken into account by regulators.

87. Some regulators, for example New South Wales and Tasmania, will determine the outcome of an application for a security clearance based on the advice provided by the police. The advice from police is generally provided in a report to the regulator which takes into account criminal and security intelligence and other information available to the police. If the advice from police is that a security clearance cannot be granted, the regulator cannot grant a security clearance or a licence to the applicant. To ensure natural justice, in New South Wales, the administrative review provisions require the Commissioner of Police to be a party to any proceedings dealing with an application for a licence or security clearance which was refused, suspended or cancelled on the grounds of the advice provided by the police.

88. To achieve a nationally consistent system for security clearances and ensure current security standards are not reduced, it is recommended the New South Wales approach is adopted under the nationally consistent system. This would mean that a regulator could not issue a security clearance if an adverse report is provided by the police in relation to the applicant. This places security considerations at the discretion of police but allows for natural justice through administrative review provisions which would require the police to be a party to the appeals process.

89. In a nationally consistent system, it is also important that each of the regulators is able to access intelligence from other police forces; however this type of information sharing is outside the scope of the policy authority of WHS ministers. It would be open to the jurisdictions to determine arrangements to facilitate this kind of information sharing between police forces and regulators.

Recommendation 3l: That explosives laws provide that the regulator must not issue a security clearance if an adverse report is provided by the police in relation to the applicant.

Duration of a security clearance

90. Security clearances are valid for varying periods under current jurisdictional arrangements. For example, in NSW a security clearance remains in force (unless sooner cancelled) for five years after it is granted. In Queensland a security clearance is required every three years.

91. To improve national consistency and reduce burden for businesses and individuals, it is recommended that a security clearance is considered valid in the nationally consistent system for a period of five calendar years from the day it is granted. This is consistent with the approach taken in relation to the validity of licences generally, which will mean that an applicant would be required to undertake the security requirements afresh in relation to a licence renewal.

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92. It is also recommended that should an applicant be granted a security clearance, the regulator would provide a written document, such as a security card, to the individual. Jurisdictional regulators may determine the information to be included in the document, with a view to ensuring consistency across jurisdictions. For example, a security card may set out details including the individual’s name, photograph, date of birth, date on which the security clearance was granted and the expiry date.

Recommendation 3m(i): That explosives laws provide that a security clearance is valid on and from the day it is granted by the regulator until the end of the period of five years from that day. Recommendation 3m(ii): That explosives laws require that if a regulator grants a security clearance, the regulator must issue to the applicant a security clearance document in the form determined by the regulator.

Applications for licences during the term of a security clearance

93. As discussed, where a person applies for a security clearance at the same time they apply for a licence, the security clearance is effectively valid for the same period as the licence and both are able to be renewed at the same time.

94. However, some applicants may already hold the relevant security clearance. This would include, for example, individuals who were working under the authority of a licence holder at the time their security clearance was issued, but for whom a role change requires them to apply for another licence.

95. Some jurisdictions, such as New South Wales, currently provide for a person to apply for a licence during the term of an existing security clearance. This could mean that a person’s security clearance would become invalid within the term of the second licence (should it be granted).

96. In the nationally consistent system, there will be a requirement to hold a valid security clearance in order to hold a licence. It follows from that that if a person no longer holds a valid security clearance that they can no longer hold a licence. For certainty, it is recommended that this issue be dealt with expressly in explosives laws, so it is clear to a licence holder that a licence may be suspended or cancelled once they no longer hold a security clearance. In this case, the licence holder will need to apply both for a renewal of licence and a security clearance. However, if a licence holder is in the process of renewing their security clearance when the five year period lapses, i.e. they have applied for a new security clearance, the regulator would have the discretion to determine that the licence is still taken to be valid.

97. It is proposed the same approach be taken where a responsible person holds a security clearance for a business to ensure the regulator can use its discretion as to when a business licence is suspended or cancelled. This will address situations which may arise where the responsible person has commenced an application to renew their security clearance or where a responsible person no longer works for the business.

98. In addition, it would also be open to an applicant to apply for new security clearance at the time of making a licence application in order to synchronise the timing for both into the future.

Recommendation 3n: That explosives laws provide that the regulator may suspend or cancel a licence if the licence holder or a responsible person in relation to a business licence does not hold a valid security clearance.

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Duration of a licence

99. Currently under explosives laws, licences are valid for varying periods of time and can also vary between licence types. For example, supply licences vary in duration from up to three years in the Australian Capital Territory to five years in New South Wales. However, most licences generally vary from one year to five years.

100. For consistency, it is recommended that licences remain valid for a uniform period of time (assuming that the licence has not been cancelled by a jurisdiction at an earlier time). Taking into account current arrangements, administrative burden, the benefits of certainty for licence holders, and ensuring currency of licences, it is recommended that licences remain valid for a period of five years, from the date that the licence is granted.

Recommendation 4: That explosives laws provide that a licence is valid on and from the day it is granted by the regulator until the end of the period of five years from that day.

Licensing fees

101. All jurisdictions currently require fees to be paid in relation to a licence application. These fees vary from jurisdiction to jurisdiction. It would be possible to make fees consistent nationally, however, this would be administratively burdensome as it would require all jurisdictions to amend its laws for a change in fee. And, to maintain integrity in the system, all jurisdictions would need to agree on the amount of the fees, and future variations, before they are implemented.

102. Licensing fees are essentially an issue for each jurisdiction and consistent fees are not essential to business and regulators realising the benefits of a national approach to licensing more generally. Given this, it is recommended that the nationally consistent system does not deal with licensing fees.

Recommendation 5: That explosives laws do not provide for nationally consistent licensing fees.

Licence conditions

103. All jurisdictions currently allow for conditions to be imposed on licences. They are usually restrictive, in that they limit what is authorised by the licence, and may relate to, for example, types and quantities of explosives that may be used, the time, place and circumstances for activities and safety, security and risk management requirements for explosives licences.

104. Given the range of conditions that may be imposed, and that to be effective, the power to impose a condition needs to be flexible, it is not recommended that a nationally consistent approach be taken to the kinds of conditions that could be imposed by a regulator.

105. However it would be open to regulators to agree policies and practices to increase consistency in the way that conditions are used in the jurisdictions and the nature of those conditions. For example, regulators might agree the quantities of pyrotechnics able to be stored as an incidental activity in relation to a Pyrotechnic Licence.

106. Further, as a matter of implementation, regulators might need to consider how licence conditions apply in another jurisdiction and how existing conditions are communicated to another jurisdiction.

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Recommendation 6: That explosives laws do not provide for nationally consistent licence conditions.

Duties and powers of the regulator

107. Most jurisdictional laws set out specific duties and powers of the regulator with regard to the licensing of explosives. These provisions address matters such as the regulator’s power to grant specific types of licences, suspend or cancel a licence and impose conditions on a licence.

108. It is recommended the nationally consistent system also set out the specific duties and powers of the regulator with regard to licences to ensure that a regulator is able to do all that is necessary in relation to an application. It is recommended that the regulator may exercise these powers on application or on its own initiative, as appropriate.

109. In assessing an application, it is recommended a regulator may request additional information from an applicant if an application cannot be determined based on material provided or if it is incomplete. To ensure expediency in processing applications, it is also recommended that timeframes be included in relation to a request for information. That is, explosives laws will set out that where a request for additional information is made by the regulator, it must be provided within a set timeframe. However, the required timeframe would be set by the regulator on a case by case basis.

110. To provide certainty in relation to an application, it is recommended that if the requested information is not provided within the required timeframe, the application will be treated as not being made so that the regulator is not required to decide on the application. In those circumstances, the regulator will be required to inform the applicant of the outcome.

111. The expediency of licensing applications is a concern of both regulators and stakeholders. To afford certainty and efficacy in relation to an application, it would be beneficial if provisions were included providing that an application will be deemed to have been refused if a decision is not made by the regulator within a period of time. However, given the differences in licensing types, the kind of information that may need to be provided by applicants, the uncertainty of security clearance processes, and resources and capacity of regulators, it is not possible to establish one nationally consistent timeframe for all regulators and all licensing types. It is therefore recommended that the nationally consistent system does not deal with timeframes for processing licence applications. However, in the interests of good administrative practice, it would be open to the jurisdictions to determine appropriate timeframes for licence applications.

112. To ensure administrative best practice, it is intended that a decision by a regulator in relation to a licensing application (or renewal) would be subject to review. It is recommended that the nationally consistent system would not deal with review—this would be dealt with under the usual processes of the jurisdiction. Explosives laws would be able to deal with this issue on a jurisdictional basis.

113. If an applicant is granted a licence, it is recommended the regulator provide a written document to the licence holder, such as a licence card. Jurisdictional regulators may determine the information to be included in the document, with a view to ensuring this is consistent across jurisdictions. For example, the licence document may include details such as the name of the licence holder, a photograph of the licence holder, their date of birth, the licence type, the date on which the licence was granted and the expiry date.

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Recommendation 7a: That explosives law provides that, on application or on its own initiative, the regulator has the power to, as appropriate:

• grant a licence • refuse a licence • cancel a licence • renew a licence • suspend a licence • extend, in writing, the period of time for decision of a licensing application • extend, in writing, the period of time for further information to be provided by an

applicant, and • request further information from the applicant.

Recommendation 7b: That explosives laws provide that a regulator has the power to: • impose conditions on a licence • request medical information from a licence holder, to the extent that the regulator is

satisfied that it is necessary to determine if the licence holder is physically and mentally fit to safely engage in the activities that are authorised by the licence

• request further information from the applicant if the regulator is satisfied that it is not able to determine the application based on the material provided in the application.

Recommendation 7c: That explosives laws provide that:

• a request for further information must be in writing and provide the period in which the information must be given to the regulator

• where a regulator has requested further information, and that information is not provided in the required time, the application will be treated as not being made and the regulator will not be required to decide on the application. The regulator will give the applicant written notice of this outcome

• the regulator must, as soon as reasonably practicable after making a decision, or where an application is taken to be refused because it is out of time, give the applicant written notice of the decision (or deemed decision), and

• that a review of decision can be made in relation to a licence or renewal application.

Recommendation 7d: That explosives laws require that if a regulator grants a licence, the regulator must issue to the applicant a licence document in the form determined by the regulator.

Record keeping requirements

114. To ensure consistency, and to reduce regulatory burden for individuals and businesses operating in multiple jurisdictions, it is recommended that the nationally consistent system include consistent record keeping requirements for licences.

General record keeping requirements for all licences 115. Existing jurisdictional record keeping requirements generally track the location,

movement and use of an explosive throughout its lifecycle. Existing record keeping requirements also detail who has accessed explosives and for what purpose.

116. It is proposed that this level of traceability is upheld in the nationally consistent system. To allow this to occur and to ensure that safety and security of explosives is maintained, this proposal includes the following recommendations on record keeping requirements.

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Recommendation 8a: That explosives laws provide that a licence holder is required to record the following information relevant to the activity for which they are licensed:

• information about the explosives including product names, type of explosives and hazard classifications and quantities involved

• details of the location of the explosives, including the site where handling occurs and the location within the site (for example which magazine in the storage facility)

• details about any person who takes possession of explosives, including any intermediaries (for example a licensed driver employed to deliver explosives to the purchaser)

• evidence of the authority of any person who takes possession of explosives • details of any discrepancy between the expected and actual quantities of

explosives present or transferred • details of any investigations or audits undertaken in the event of theft or suspected

theft of explosives, and details of any changes to safety or security arrangements made as a result of those investigations

• the purpose for which explosives have been transferred, and

• the date of any transfer of possession of explosives.

Record keeping requirements specific to licence type

117. In addition to general record keeping requirements, all jurisdictions have specific requirements in relation to certain licence types. These requirements assist the regulator in matters of compliance and enforcement and addressing safety and security concerns. As such, it is recommended that there be additional specific record keeping requirements for certain licence types.

MMU/MPU licences

Recommendation 8b: That explosives laws provide that the holder of a licence to manufacture explosives using a mobile manufacturing unit/mobile processing unit (MMU/MPU) must make and retain the following records:

• the types and quantities of explosives manufactured, with details of the location of manufacture

• the MMU/MPU(s) and any other vehicles used in the manufacture • driver details, including qualifications and security clearance details • vehicle identification, design and specification records, and • relevant maintenance records.

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Import/export licences

Recommendation 8c: That explosives laws provide that the holder of a licence to import/export explosives is required to make and retain the following records:

• date of import/export • manufacturer, date and place of manufacture • batch, lot, quantity, NEQ and proper shipping name of the explosive(s) • vessel/aircraft identity, for example flight number • port, facility or airport of import • contact/licence details of consignor, and storage site and transport details (on

arrival).

Supply licences

Recommendation 8d: That explosives laws provide that the holder of a licence to supply explosives must make and retain the following records:

• details of any intermediaries between the supplier and the receiver and their authority to take possession of explosives, including their licence details

• type and quantity of explosives to be supplied to the receiver • date of supply of the explosives • evidence of the transfer of ownership or possession of explosives, and • the location of the place at which the explosives will be supplied to the receiver.

Storage licences

Recommendation 8e: That explosives laws provide that the holder of a licence authorising the storage of explosives must make and retain the following records:

• details of persons responsible for checks of explosives inventories and maintaining a register of transactions including sales and supplies

• details of explosives received at or issued from the site • evidence of transfer of possession of explosives • details of regular stock reconciliation, and • details of persons with unsupervised access to explosives storage areas.

Transport licences

Recommendation 8f: That explosives laws provide that the holder of a licence to transport explosives must make and retain the following records:

• the dates of transportation • the type and quantity of explosives transported • details of any unplanned stops made during the transport • the origin and destination of the explosives • the recipient of the explosives (consignor) including records of the consignor’s

authority to be in possession of the explosives • the vehicle or vessel used to transport the explosives, and • the driver’s name and relevant licence number.

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Recommendation 8g: That explosives laws provide that the holder of a licence to transport explosives be required to make and retain the following records relating to the vehicles used to transport explosives:

• vehicle registration number or other identification • vehicle make and model • design specifications for carry boxes and enclosed vehicle bodies in which

explosives will be carried • vehicle load carrying capacity (e.g. Category 1, 2 or 3 as specified in the AE

Code), and • vehicle repair and maintenance.

Pyrotechnic licences

Recommendation 8h: That explosives laws provide that the holder of a Pyrotechnic Licence be required make and retain the following records:

• the source, type and amount of pyrotechnics held • the date, time and place of displays • the type and quantities of pyrotechnics used in displays • surplus pyrotechnics, if any, returned to storage including the date returned • details of persons with access to pyrotechnics and their authority to access the

pyrotechnics • details of testing the pyrotechnics • details of any misfires and the method of rendering the misfire safe, and • details of the disposal of pyrotechnics.

Blasting licences

Recommendation 8i: That explosives laws provide that the holder of a Blasting Licence be required make and retain the following records:

• the type and quantities of explosives used, and • a record of each blast carried out.

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ATTACHMENT A: Example provisions for Licensing Part A

Recommendation 1a: That explosives laws provide for automatic recognition of occupational explosive licences granted by one jurisdiction by all other jurisdictions, where relevant. Recommendation 1b: That explosives laws provide for the automatic recognition of activity based explosives licences issued by a regulator where the activities have the potential to cross jurisdictional boundaries. This includes a licence to transport, supply, import and manufacture explosives using mobile manufacturing units (MMU)/mobile processing units (MPU).

activity-based licence means:

(a) an explosives import/export licence; (b) an explosives manufacture licence; (c) an explosives storage licence; (d) an explosives supply licence; and (e) an explosives transport licence.

another participating jurisdiction means a participating jurisdiction other than this {insert state or territory}. corresponding law means a law of another State or a Territory corresponding, or substantially corresponding, to this Act or regulations.

licence means any of the following:

(a) an explosives import/export licence; (b) an explosives manufacture licence; (c) an explosives storage licence; (d) an explosives supply licence; (e) an explosives transport licence; (f) an explosives driver licence; (g) a blasting licence; (h) a licence to use explosives; (i) a pyrotechnics licence.

occupational licence means:

(a) an explosives driver licence; (b) a blasting licence; (c) a licence to use explosives; and (d) a pyrotechnics licence.

participating jurisdiction means:

(a) {insert state or territory}; and (b) another State or a Territory that has a corresponding law.

Recognition of occupational licence granted in another participating jurisdiction

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(1) This provision applies to an occupational licence granted in another participating

jurisdiction if: (a) the licence is granted under a provision of a corresponding law; and (b) the licence is in force in the other jurisdiction.

(2) The licence has effect in this {insert state or territory} as if it were a relevant licence

granted under {insert state or territory}.

Recommendation 2a: That explosives laws include provisions for a person to apply to the regulator for an explosives licence and a licence renewal.

Recommendation 2b: That explosives laws provide that for an application to be made in a jurisdiction, the applicant must satisfy the regulator that they have a substantial connection to the jurisdiction in which the application for a licence, or renewal of a licence, is to be made.

Recommendation 2c: That explosives laws require an application for a licence be provided to the regulator in the approved form. Recommendation 2d: That explosives laws provide that the approved form is as determined by the regulator.

Application for grant or renewal of licence (1) A person may apply to the regulator for grant or renewal of a licence.

(2) An application for grant or renewal of a licence must be:

(a) made to the regulator in a jurisdiction to which the applicant has a substantial connection;

(b) made in a form approved by the regulator; and (c) accompanied by any documents specified in the approved form.

(3) If the application is for renewal of a licence, the application must be made while the

licence is in force.

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Recommendation 2e: That explosives laws require that an application for a licence must require the following information, where relevant:

• Name of applicant • Residential/business address • Date of birth • Proof of identity • Proof of drivers licence history (for explosives drivers licence) • Details of the responsible person, if relevant (including all of the details required to

demonstrate they are able to be a responsible person) • Proof of security clearance • Previous applications made under explosives laws which have been refused • Previous licences held under explosives laws which have been cancelled or

suspended • Previous convictions under a relevant law • Reasons why the application is required in that jurisdiction (including evidence if

relevant) • Evidence that the applicant is physically and mentally fit to safely engage in the

activities that would be authorised by the licence • Evidence of competency (for occupational licences), including successful

completion of a competency test, if determined by the regulator • The applicant’s safety, security and emergency plan.

Approved form for licence application

(1) For the purposes of {provision}, a form approved by the regulator will require the following matters, where relevant to the form of licence being applied for: (a) the name of applicant; (b) whether or not the applicant is a body corporate; (c) if the applicant is natural person, the date of birth of the applicant; (d) if the applicant is a corporation, details of any responsible person nominated in

relation to the licence, including any supporting documentation required by the regulator;

(e) residential address of the applicant; (f) business address of the applicant; (g) proof of identity; (h) for an explosives driver licence, evidence of driver licence history required by

the regulator; (i) details of any previous applications for a licence that were refused in any

jurisdiction; (j) details of any previous licences held by the applicant that were cancelled or

suspended in any jurisdiction; (k) details of the applicant’s substantial connection to the jurisdiction in which the

application is being made, including any supporting evidence required by the regulator;

(l) a declaration as to whether or not the applicant or any responsible person has been convicted of a relevant offence;

(m) if the application is for an occupational licence, evidence the applicant is physically and mentally fit to safely engage in the activities to which the licence relates;

(n) evidence of competency required by the regulator; and (o) any safety, security or emergency plans required by the regulator.

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Recommendation 2f(i): That explosives laws provide that: • For a business to be granted a licence and hold a valid licence, it must have at

least one responsible person in relation to that licence.

• A responsible person must be concerned in the management of the business, meet the minimum age requirements, fit and proper person requirements and hold a valid security clearance.

responsible person means a natural person nominated by a corporation in accordance with {provision} as the person to be responsible for activities engaged in by the corporation as the holder of a licence.

Corporation must nominate responsible person

(1) If the holder of a licence, is a corporation, they must nominate at least one responsible person in relation to that licence.

(2) The responsible person for the corporation must be a natural person who:

(a) is concerned with management of the corporation; (b) is the required age; (c) holds a security clearance that is in force; and (d) is a fit and proper person for the purposes of the licence.

Recommendation 2f(ii): That explosives laws provide that an applicant cannot be granted a licence, except for explosives drivers’ licences, if they are not at least 18 years of age, or the relevant responsible person is not 21 years of age. Recommendation 2f(iii): That explosives laws provide that a responsible person nominated under a licence must be at least 21 years of age. Recommendation 2g: That explosives laws provide an applicant cannot be granted an explosives drivers’ licence if they are not at least 21 years of age. In addition, to be granted an explosives drivers’ licence the applicant must have held a drivers’ licence (not including a learners’ permit) for at least 3 years. Recommendation 2g(i): That explosives laws provide that to grant or renew a licence, a regulator must be satisfied that the applicant is a fit and proper person for the purposes of that licence. Recommendation 2g(ii): That explosives laws provide that the regulator must, in deciding whether the applicant is a fit and proper person, take into account all relevant matters, including whether the applicant:

• holds a valid security clearance (recommendations 2l, 3a – 3p), • is physically and mentally fit to safely engage in the activities that would be

authorised by the relevant occupational licence (recommendations 2h and 2i), • previous convictions (recommendation 2j), and • has the relevant competency for the purposes of a competency-based licence,

which may include successfully passing a test of competency determined by the regulator (recommendation 2k).

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Recommendation 2h: That explosives laws provide that an applicant for an occupational licence must demonstrate to the satisfaction of the regulator they are physically and mentally fit to safely engage in the activities that would be authorised by the occupational licence they are applying for, hold or seeking to renew. Recommendation 2i: That explosives laws provide that the regulator would be so satisfied where the applicant for an occupational licence provides a medical report that:

• has been made by a medical practitioner within the previous 6 months, and • certifies that the medical practitioner has examined the applicant or licence holder

in that, in his or her medical opinion, the applicant or licence holder’s physical and mental fitness is of the required standard to engage safely in the activities that would be or is authorised by the occupational licence.

required age means:

(1) in relation to an applicant for a licence who is a natural person – (a) if the application is for an explosives driver licence - 21 years of age; or (b) for any other licence application - 18 years of age.

(2) in relation to a responsible person – 21 years of age. Refusal of application (1) The regulator may only grant or renew a licence if:

(a) the applicant is an appropriate person to hold the licence; (b) if the applicant is required to submit a security, safety or emergency

management plan - the plan is appropriate for the activities to which the licence relates; and

(c) the applicant meets any additional requirements for grant or renewal of the licence.

Appropriate person for grant or renewal of a licence

(1) An applicant is an appropriate person to hold a licence if the regulator is satisfied the applicant or, if the applicant is a corporation, the responsible person nominated by the corporation in relation to the licence: (a) is the required age; (b) holds a security clearance that is in force; and (c) is a fit and proper person for the purposes of the licence.

Matters to be taken into account for fit and proper person

In determining whether a person, including a responsible person, is a fit and proper person for the purposes of a licence, the regulator must take into account all relevant matters, including whether the person has been convicted of a relevant offence.

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Additional requirements for occupational licences

(1) An applicant for grant or renewal of an occupational licence must: (a) be mentally and physically fit to safely engage in the activities to which the

licence relates; and (b) be competent to engage in the activities to which the licence relates.

Evidence of mental and physical fitness

(1) For the purposes of {provision}, the regulator will be satisfied a person is mentally and physically fit to safely engage in the activities to which the licence relates if the person provides: (a) a report made by a medical practitioner who examined the person within a

period of 6 months before the day on which the report is provided to the regulator, which certifies the person has the mental and physical fitness required to safely engage in activities to which the licence relates; or

(b) other such evidence as the regulator requires to demonstrate the person has sufficient mental and physical fitness to engage in the activities to which the licence relates.

(2) The regulator may request, in writing, that the holder of an occupational licence

provide evidence the licence holder is mentally and physically fit to safely engage in the activities to which the licence relates.

(3) The regulator may forward the evidence provided under subsection (1)(b) to one or

more medical practitioners for an opinion on the mental and physical fitness of the person to safely engage in the activities to which the licence relates.

Additional requirements for explosives driver licence

(1) In this section:

driver licence means an Australian driver licence as defined in {relevant Act of state or territory } but does not include a learner licence; and

learner licence has the meaning given in the {relevant Act of state or territory}.

(2) An applicant for an explosives driver licence must have held a driver licence for a period of at least 3 years before the day the application is made.

(3) An applicant for grant or renewal of an explosives driver licence must provide evidence of driver licence history as required by the regulator.

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Recommendation 2j: Subject to spent convictions legislation and policy, that explosives laws provide that an applicant for a licence inform the regulator of any conviction in relation to themselves or a responsible person under:

• WHS legislation • explosives legislation • dangerous goods legislation • weapons and firearms legislation, and • for explosives drivers’ licences, road transport legislation.

relevant offence means: (a) an offence against a WHS law; (b) an offence against a corresponding law; (c) an offence against a law of any jurisdiction, involving one or more of the

following: (i) the handling, storage or transport of explosives; (ii) weapons; (iii) firearms; (iv) work health and safety; (v) dangerous goods; or (vi) road transport.

WHS law means any law of a state, territory or the Commonwealth primarily concerned with ensuring the health and safety of people at work.

Disclosure of relevant offences

(1) An applicant for grant or renewal of a licence must disclose to the regulator if the applicant has been convicted of a relevant offence.

(2) If the applicant is a corporation, the applicant must disclose to the regulator if a

responsible person nominated by the corporation in relation to the licence has been convicted of a relevant offence.

(3) This section applies subject to any applicable law relating to spent convictions

(however described).

Recommendation 2k: That explosives laws provide that an applicant must, where relevant, satisfy the regulator that they have appropriate safety, security and emergency plans at the time an application for a licence is made.

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Safety, security and emergency management plans (1) An applicant for grant or renewal of a licence must, if required to do so by the

regulator, submit safety, security or emergency management plans at the time the application is made.

(2) The safety, security and emergency management plans must be:

(a) in a form acceptable to the regulator; and (b) include any matters required by the regulator.

(3) If the regulator is not satisfied that a safety, security or emergency management

plan submitted by the applicant is adequate, the regulatory authority may require the applicant to: (a) provide further information; or (b) amend and re-submit the plan.

(4) If the regulator grants or renews a licence, the licence holder must:

(a) give the regulator a copy of the safety, security or emergency management plans relevant to the licence as soon as practicable after the regulator requests a copy; or

(b) provide any further information about the safety, security or emergency management plans relevant to the licence as required by the regulator.

Recommendation 2l: That explosives laws provide that a regulator may determine the test that will be accepted to establish competency, if they are satisfied that successfully passing that test will demonstrate that the applicant is competent for the purposes of a competency-based licence.

Evidence of competency

(1) For the purposes of {provision}, the regulator will be satisfied a person is competent to engage in the activities to which the licence relates if the person provides: (a) in circumstances where the regulator has prescribed a test or course in relation

to the licence, either - (i) a certificate issued by a person who conducted a test or course stating that

the person passed the test or completed the course within 6 months before the day when the application is made; or

(ii) other written evidence that satisfies the regulator the person passed such a test or completed such a course within 6 months before the day when the application is made.

(b) in circumstances where the regulator has not prescribed a test or course in relation to the licence, such evidence as the regulator requires to demonstrate the person is competent.



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Recommendation 3a: That explosives laws will not establish a national ‘security clearance’ for the purposes of those laws. Recommendation 3b: That explosives laws provide that an individual may not be granted a licence or licence renewal unless they hold a valid security clearance. Recommendation 3e: That explosives laws provide that for a business to be granted a licence there must be a responsible person in relation to that business that holds a security clearance.

Security clearance a prerequisite for licence (1) Where the applicant for grant or renewal of a licence is a natural person, the

applicant is not an appropriate person for grant or renewal of the licence unless the applicant holds a security clearance that is in force.

(2) Where the applicant for grant or renewal of a licence is a corporation, the applicant is not an appropriate person for grant or renewal of the licence unless at least one responsible person nominated by the applicant in relation to that licence holds a security clearance that is in force.

Recommendation 3c: That explosives laws provide that an individual handling explosives under the immediate supervision of a licence holder authorised to handle those explosives is not required to hold a valid security clearance. Recommendation 3d: That explosives laws provide that an individual acting under the authority of a licence holder may only have unsupervised access to an explosive if they hold a security clearance.

Supervised and unsupervised handling of explosives (1) An individual handling explosives under the immediate supervision of a licence

holder authorised to handle those explosives is not required to hold a security clearance that is in force.

(2) An individual acting under the authority of a person who holds a licence in force may only have unsupervised access to an explosive if they hold a security clearance.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea2003157/s3.html#security_clearance


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Recommendation 3f: That explosives laws provide that an applicant for a security clearance must undertake an ASIO Security Assessment to conduct PMV. Recommendation 3g: That explosives laws provide that the regulator must not issue a security clearance if there is an adverse ASIO PMV check issued in relation to the applicant or no advice is received from ASIO in relation to an ASIO assessment. Recommendation 3h: That explosives laws provide that an applicant for a security clearance must submit to a criminal history check. Recommendation 3i: That explosives laws provide that an applicant for a security clearance must apply for a NPC.

ASIO means the Australian Security Intelligence Organisation. ASIO security assessment means a check of security information carried out by ASIO to assess an individual’s links to politically motivated violence, including terrorism. criminal history check includes a national police check and any investigation or report by the Commissioner of Police requested by the regulator under this Act. national police check means a check of a person’s biographic details conducted by a law enforcement agency to obtain a national summary of the person’s disclosable offender history. Application for security clearance (1) A natural person may apply to the regulator for a security clearance.

(2) An application for a security clearance must be:

(a) made in a form approved by the regulator; and (b) accompanied by any documents specified in the approved form.

(3) An application for a security clearance must include a declaration that the applicant

agrees to undergo a criminal history check and an ASIO security assessment. Note: A natural person seeking to be a person nominated by a corporation under {provision} may apply to the regulator under this section.

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Requirement for security assessment and criminal history check

(1) An applicant for a security clearance must undertake: (a) a national police check; and (b) an ASIO security assessment.

(2) The regulator may request the Commissioner of Police to provide a report on any of

the following matters in relation to an applicant for a security clearance: (a) whether in the period of 10 years before the application was received, the

applicant has been charged or convicted of an offence in any jurisdiction, and any court orders coming into effect in relation to any offences in this period, including (but not limited to) offences involving: (i) firearms or weapons; (ii) damage to property; (iii) dishonesty; (iv) fraud; (v) drugs; (vi) explosives or fireworks.

(b) any available information concerning a conviction for an offence the Commissioner considers to be relevant to the application for a security clearance;

(c) whether the applicant has a history of violence or threats of violence, including (but not limited to) stalking or intimidation with intent to cause fear of physical or mental harm;

(d) whether there is an apprehended violence order, a domestic violence order or a substantially similar order in force with respect to the applicant;

(e) any available information or intelligence with respect to the participation of the applicant in any criminal activity;

(f) whether the Commissioner recommends the applicant should not be granted a security clearance on public interest grounds;

(g) such other matters relevant to the application for a security clearance as the regulator may specify in the request.

(3) On receiving a request made under subsection (2), the Commissioner of Police is to

investigate the person to which the request relates and provide to the regulator a report in respect of the matter or matters that were the subject of the request.

(4) The report of the Commissioner of Police may include any of the following

information: (a) information in the Commissioner's possession; (b) information to which the Commissioner ordinarily has access through

arrangements with the police service of the Commonwealth or another State or Territory.

(5) The Commissioner of Police may identify any information included in a report under

this section as information that could disclose the existence or content of a criminal or security intelligence report or other confidential criminal information.

(6) The regulator is not, under this or any other Act or law, required to give any reasons

for not granting a security clearance to (or for suspending or cancelling a licence or security clearance of) a person on the basis of a report made by the Commissioner about the person under this section if the giving of those reasons would disclose any

http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea2003157/s13.html#violence



http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea2003157/s4.html#regulatory_authority


http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea2003157/s3.html#licence


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criminal or security intelligence report or other confidential criminal information as referred to in subsection (5).

Refusal of security clearance

(1) The regulator must refuse to grant the security clearance if:

(a) the security assessment in relation to the applicant given by ASIO under {provision) is adverse; or

(b) ASIO does not provide any information in relation to the ASIO assessment; or (c) a report obtained from the Commissioner of Police under {provision} contains a

recommendation that the applicant should not be granted a security clearance.

Recommendation 3j: That explosives laws provide that the regulator, in determining whether to grant a security clearance, must take the following into account:

• ASIO’s Assessment to conduct PMV in relation to the applicant • the applicant’s NPC • any police intelligence about, or in connection with, the applicant received by the

regulator, and • any offences, charge or court orders committed or coming into effect within the

previous 10 years involving the applicant, into consideration when assessing the suitability of applicants for security clearances, including but not limited to:

o firearms/weapons offences o violence/threats of violence/AVOs or equivalent o domestic violence offences/DVOs or equivalent o damage to property o dishonesty and/or fraud o drug offences, and o explosives and fireworks offences.

Recommendation 3k: That explosive laws would not provide for automatically disqualifying offences in relation to security clearances or licences. Recommendation 3l: That explosives laws provide that the regulator must not issue a security clearance if an adverse report is provided by the police in relation to the applicant.

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Determination of application for security clearance (1) The regulator may decide an application for a security clearance by:

(a) granting the security clearance; or (b) refusing to grant the security clearance.

(2) In deciding an application for a security clearance, the regulator must take into

account the following factors: (a) the security assessment in relation to the applicant given by ASIO; (b) the information disclosed through the national police check; (c) whether in the period of 10 years before the application was received, the

applicant has been charged or convicted of an offence in any jurisdiction, and any court orders coming into effect in relation to any offences in this period, including (but not limited to) offences involving: (i) firearms or weapons; (ii) damage to property; (iii) dishonesty; (iv) fraud; (v) drugs; or (vi) explosives or fireworks; and

(d) any information or intelligence about or in connection to the applicant provided by the Commissioner of Police.

Recommendation 3m(i): That explosives laws provide that a security clearance is valid on and from the day it is granted by the regulator until the end of the period of five years from that day.

Recommendation 3m(ii): That explosives laws require that if a regulator grants a security clearance, the regulator must issue to the applicant a security clearance document in the form determined by the regulator.

Recommendation 3n: That explosives laws provide that the regulator may suspend or cancel a licence if the licence holder or a responsible person in relation to a business licence does not hold a valid security clearance.

Duration of security clearance (1) A security clearance is in force for a period of 5 years starting from the day it is

granted, unless cancelled or suspended. (2) A security clearance is not in force during any period in which it is suspended under

{provision}. (3) A security clearance is not in force if it has been cancelled under {provision}. Issue of security clearance document If the regulator grants a security clearance, the regulator must as soon as practicable issue to the security clearance holder a document evidencing the security clearance.

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Explanatory note:

For suspension and cancellation for not holding a security clearance, see example provision for Recommendation 7a.

Recommendation 4: That explosives laws provide that a licence is valid on and from the day it is granted by the regulator until the end of the period of five years from that day. Recommendation 5: That explosives laws do not provide for nationally consistent licensing fees. Recommendation 6: That explosives laws do not provide for nationally consistent licence conditions.

Duration of licence (1) A licence is in force for a period of 5 years starting on the day it is granted, unless

the licence is cancelled or suspended.

(2) A licence is not in force during any period in which it is suspended under {provision}. (3) A licence is not in force if it has been cancelled under {provision).

Recommendation 7a: That explosives law provides that, on application or on its own initiative, the regulator has the power to, as appropriate:

• grant a licence • refuse a licence • cancel a licence • renew a licence • suspend a licence • extend, in writing, the period of time for decision of a licensing application • extend, in writing, the period of time for further information to be provided by an

applicant, and • request further information from the applicant.

Recommendation 7b: That explosives laws provide that a regulator has the power to: • impose conditions on a licence • request medical information from a licence holder, to the extent that the regulator

is satisfied that it is necessary to determine if the licence holder is physically and mentally fit to safely engage in the activities that are authorised by the licence

• request further information from the applicant if the regulator is satisfied that it is not able to determine the application based on the material provided in the application.

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Recommendation 7c: That explosives laws provide that:

• a request for further information must be in writing and provide the period in which the information must be given to the regulator

• where a regulator has requested further information, and that information is not provided in the required time, the application will be treated as not being made and the regulator will not be required to decide on the application. The regulator will give the applicant written notice of this outcome

• the regulator must, as soon as reasonably practicable after making a decision, or where an application is taken to be refused because it is out of time, give the applicant written notice of the decision (or deemed decision), and

• that a review of decision can be made in relation to a licence or renewal application.

Determination of application (1) The regulator may decide an application for grant of a licence by granting or refusing

to grant the licence.

(2) The regulator may decide an application for renewal of a licence by renewing or refusing to renew the licence.

(3) The regulator may request, in writing, that the applicant provide, within a specified

timeframe, any further information the regulator believes is reasonably necessary to decide the application.

(4) The application is taken to be withdrawn if the regulator does not receive all further

information requested within the specified timeframe. (5) The regulator may:

(a) make more than one request for further information under subsection (2); (b) extend, in writing, the specified timeframe in which the applicant must provide

the further information.

Notice on determination of application (1) The regulator must give the applicant notice, in writing, of the following:

(a) a decision to grant or refuse to grant the licence under {provision}; or (b) a decision to renew or refuse to renew the licence under {provision}; or (c) that the application is taken to be withdrawn under {provision}.

(2) Written notice under subsection (1) must:

(a) be provided as soon as practicable; (b) provide reasons for the decision; and (c) set out any rights of review under this Act.

(3) Failure to give notice under this section does not affect the validity of the decision.

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Suspension or cancellation of licence (1) The regulator may suspend or cancel a licence.

(2) The regulator must give the licence holder written notice of the suspension or

cancellation. (3) The licence holder must return the licence document to the regulator as soon as

practicable after receiving notice in writing that the licence has been suspended or cancelled.

Recommendation 7d: That explosives laws require that if a regulator grants a licence, the regulator must issue to the applicant a licence document in the form determined by the regulator.

Issue of licence document If the regulator grants or renews a licence, the regulator must, as soon as practicable, issue the licence holder with a licence document evidencing the licence.

Recommendation 8a: That explosives laws provide that a licence holder is required to record the following information relevant to the activity for which they are licensed:

• information about the explosives including product names, type of explosives and hazard classifications and quantities involved

• details of the location of the explosives, including the site where handling occurs and the location within the site (for example which magazine in the storage facility)

• details about any person who takes possession of explosives, including any intermediaries (for example a licensed driver employed to deliver explosives to the purchaser)

• evidence of the authority of any person who takes possession of explosives • details of any discrepancy between the expected and actual quantities of

explosives present or transferred • details of any investigations or audits undertaken in the event of theft or

suspected theft of explosives, and details of any changes to safety or security arrangements made as a result of those investigations

• the purpose for which explosives have been transferred, and • the date of any transfer of possession of explosives.

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General record keeping requirements (1) A licence holder must make and retain a record of the following information in

relation to activities engaged in under the licence: (a) information about the explosives including product names, type of explosives,

hazard classifications and quantities; (b) details of the location of the explosives, including the site where handling occurs

and the location within the site at which the explosives are located (for example which magazine in the storage facility);

(c) details of any person who takes possession of explosives, including any intermediaries (for example a licensed driver employed to deliver explosives to the purchaser);

(d) evidence of the authority of any person who takes possession of explosives to do so;

(e) details of any discrepancy between the expected and actual quantities of explosives present or transferred;

(f) details of any investigations or audits undertaken in the event of theft or suspected theft of explosives, and details of any changes to safety or security arrangements made as a result of those investigations;

(g) the purpose for which explosives have been transferred; and (h) the date of any transfer of possession of explosives.

Recommendation 8b: That explosives laws provide that the holder of a licence to manufacture explosives using a mobile manufacturing unit/mobile processing unit (MMU/MPU) must make and retain the following records:

• the types and quantities of explosives manufactured, with details of the location of manufacture

• the MMU/MPU(s) and any other vehicles used in the manufacture • driver details, including qualifications and security clearance details • vehicle identification, design and specification records, and • relevant maintenance records.

Additional records to be kept for explosives manufacture licence (1) The holder of a licence to manufacture explosives using a mobile manufacturing unit

must also make and retain a record of the following: (a) the types of explosives manufactured, with details of the location of

manufacture; (b) the mobile units used in the manufacture; (c) driver details, including qualifications and security clearance details (d) vehicle identification, design and specification records; and (e) relevant maintenance records for the mobile units used in the manufacture.

mobile manufacturing unit means a mobile unit, including, for example, a mobile processing unit or vehicle, used for manufacturing explosives.

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Recommendation 8c: That explosives laws provide that the holder of a licence to import/export explosives is required to make and retain the following records:

• date of import/export • manufacturer, date and place of manufacture • batch, lot, quantity, NEQ and proper shipping name of the explosive(s) • vessel/aircraft identity, for example flight number • port, facility or airport of import • contact/licence details of consignor, and storage site and transport details (on

arrival).

Additional records to be kept for explosives import/export licence (1) The holder of an explosives import/export licence must make and retain a record of

the following: (a) dates of import and export of the explosives; (b) manufacturer, date and place of manufacture of the explosives; (c) batch, lot, quantity, NEQ and proper shipping name of the explosives; (d) identity of vessel or aircraft used for import/export of the explosives, or a means

of identifying them (for example, flight number and time of flight); (e) contact and licence details of the person to whom the explosives are given or by

whom the explosives are received (as applicable); and (f) storage sites and transport details of the explosives.

Recommendation 8d: That explosives laws provide that the holder of a licence to supply explosives must make and retain the following records:

• details of any intermediaries between the supplier and the receiver and their authority to take possession of explosives, including their licence details

• type and quantity of explosives to be supplied to the receiver • date of supply of the explosives • evidence of the transfer of ownership or possession of explosives, and • the location of the place at which the explosives will be supplied to the receiver.

Additional records to be kept for explosives supply licence (1) The holder of an explosives supply licence must make and retain a record of the

following: (a) details of any intermediaries between the supplier and receiver, including details

of their right to take possession of the explosives; (b) type and quantity of the explosives to be supplied; (c) date of supply of the explosives; (d) evidence of transfer of ownership or possession of the explosives; (e) location of site where the explosives will be supplied.

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Recommendation 8e: That explosives laws provide that the holder of a licence authorising the storage of explosives must make and retain the following records:

• details of persons responsible for checks of explosives inventories and maintaining a register of transactions including sales and supplies

• details of explosives received at or issued from the site • evidence of transfer of possession of explosives • details of regular stock reconciliation, and • details of persons with unsupervised access to explosives storage areas.

Additional records to be kept for explosives storage licence (1) The holder of a licence authorising storage of explosives must make and retain a

record of the following: (a) details of persons responsible for checking the explosives inventories and

maintaining the register of transactions including sale and supply of the explosives;

(b) details of the regular reconciliation of stored explosives; (c) details of the explosives received at or issued from the site at which the

explosives are stored; (d) evidence of any transfer of possession of the explosives; and (e) details of persons with unsupervised access to the explosives storage areas.

Recommendation 8f: That explosives laws provide that the holder of a licence to transport explosives must make and retain the following records:

• the dates of transportation • the type and quantity of explosives transported • details of any unplanned stops made during the transport • the origin and destination of the explosives • the recipient of the explosives (consignor) including records of the consignor’s

authority to be in possession of the explosives • the vehicle or vessel used to transport the explosives, and • the driver’s name and relevant licence number.

Recommendation 8g: That explosives laws provide that the holder of a licence to transport explosives be required to make and retain the following records relating to the vehicles used to transport explosives:

• vehicle registration number or other identification • vehicle make and model • design specifications for carry boxes and enclosed vehicle bodies in which

explosives will be carried • vehicle load carrying capacity (e.g. Category 1, 2 or 3 as specified in the AE

Code), and • vehicle repair and maintenance.

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Additional records to be kept for explosives transport licence (1) The holder of an explosives transport licence must make a record of the following:

(a) dates of transportation of explosives; (b) the type and quantity of explosives transported; (c) details of unplanned stops made during transportation of explosives; (d) the origin and destination of the explosives transported; (e) details of the person to whom the explosives are given or by whom the

explosives are received (as applicable), including their authority to be in possession of the explosives;

(f) the following details of the vehicles used to transport the explosives: (i) registration number or another way to identify the vehicle; (ii) make and model; (iii) design specifications for carry boxes and enclosed vehicle bodies in which

explosives will be carried; (iv) vehicle load carrying capacity (for example, Category 1, 2 or 3 as specified

in the Australian Explosives Code); (v) vehicle repair and maintenance; and

(g) details of the driver of a vehicle used to transport the explosives, including explosives drivers licence number.

Recommendation 8h: That explosives laws provide that the holder of a Pyrotechnic Licence be required make and retain the following records:

• the source, type and amount of pyrotechnics held • the date, time and place of displays • the type and quantities of pyrotechnics used in displays • surplus pyrotechnics, if any, returned to storage including the date returned • details of persons with access to pyrotechnics and their authority to access the

pyrotechnics • details of testing the pyrotechnics • details of any misfires and the method of rendering the misfire safe, and • details of the disposal of pyrotechnics.

Additional records to be kept for pyrotechnic licence (1) The holder of a pyrotechnic licence must make and retain a record of the following:

(a) the source, type and amount of pyrotechnics held under the licence; (b) the date, time and place of any pyrotechnic display; (c) the type and quantities of pyrotechnics used in each display; (d) the details of any pyrotechnics surplus to a display and the date the surplus was

returned to storage; (e) details of persons with access to the pyrotechnics and their right to access the

pyrotechnics; (f) details of pyrotechnics testing; (g) details of any misfires and the methods used to eliminate or minimise the

associated risks; and (h) details of any disposal of pyrotechnics.

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Recommendation 8i: That explosives laws provide that the holder of a Blasting Licence be required make and retain the following records:

• the type and quantities of explosives used, and • a record of each blast carried out.

Additional records to be kept for blasting licence (1) The holder of a blasting licence must make and retain a record of the following:

(a) a record of each blast carried out by the holder; and (b) the type and amount of explosives used for each blast.

aeisg submission on automatic mutual recognition of …pmc.gov.au/.../submission-amr-13.pdf ·...

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