Chemicals

Nine classes of chemicals are classified in accordance with international standards. Transporting, storing or handling these dangerous goods is controlled and licensed. A register must be kept, and prescribed persons have a duty to notify public bodies including councils. Work Cover inspectors can investigate risks, detect offences and require compliance with directives. Prosecutions can be brought for offences. Work Cover must provide documents under FOI unless they are confidential. Emergency responses and recovery processes are planned and overseen by the State Emergency Service.

What chemicals are covered?

Chemicals classified as “dangerous goods” are regulated by the WorkSafe Victoria under the Dangerous Goods Act 1985 (Vic) (“DGA”).

Dangerous goods include nine classes of substances and articles such as explosives and corrosives, classified in accordance with international standards. Certain carcinogens are regulated by virtue of an Order made by the Governor-in-Council and published in the Government Gazette (s 55). An interesting addition is the category of High Consequence Dangerous Goods (HCDG) related to terrorism and security concerns.

Radioactive substances and drugs are regulated by the Public Health Group of the Victorian Department of Health and Human Services under the PHWA and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Radiation Act 2005 (Vic). The handling of radioactive materials by organisations that are “Commonwealth entities” or “Commonwealth contractors” must also be licensed under the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) and the Regulations made under it.

Licensing requirements

Under the DGA, the manufacture, storage, transfer, transport, sale, purchase, and use of dangerous goods and the importation of explosives are controlled. The storage and transport of specified quantities of dangerous goods and the storage, transport, use, import, and manufacture of explosives require a licence (see s 21 and Regulations). Licences contain conditions to ensure the safety of people and property (s 23).

The DGA requires a register of dangerous goods on site at licensed premises to be maintained (s 30). It also requires certain licensees, prescribed persons, and occupiers of premises to notify police and fire authorities of incidents involving dangerous goods (s 32).

The real mystery in Australian regulation of dangerous goods and radioactive substances is not the voluminous regulation of transportation and handling in great detail, citing international standards, but rather the blind spot of the law on how they are disposed of in simple landfills.

Chemicals and planning

Local councils must be notified of the details of dangerous goods licences (s 29 DGA).

For some facilities, a risk assessment might need to be prepared. These assessments are used in planning to determine the need for safety-related buffer zones, which are incorporated into planning schemes. The highest risk controls are reserved for the 40 or so facilities in Victoria that store hazardous materials above specified quantity thresholds, known as “major hazard facilities” (MHFs). These are regulated under part 5.3 of the Occupational Health and Safety Regulations 2007 and cover a wide range of high-risk materials with explosive, flammable or toxic qualities that pose considerable risk when stored in large quantities. The Regulations commenced operation following the explosion of the Longford Gas processing facility in 1998, but are related to European directives in place since the 1970s.

The obligations that attach to the licensing of MHFs include a range of information-sharing requirements with the adjacent communities, local councils and emergency services. If you live near an MHF you should be able to obtain information on the safety controls in place for the facility in your local library or from the council.

Action WorkSafe can take

An inspector may require apparent occupiers or persons in charge of any premises (including vehicles) holding or storing dangerous goods to comply with a written direction that the inspector believes on reasonable grounds is necessary.

Licence applicants may be required to carry out investigations, including hazard-analysis and risk-evaluation studies and, if WorkSafe is not satisfied by the standard, content or details of such studies, the applicant must bear the cost of further investigations by government appointed consultants. Licences may be suspended or revoked. An inspector may enter premises to inspect premises, take samples, seize dangerous goods, take photographs or other recordings and require the production of documents (s 17(1)).

The responsible minister, an appointed inspector or a member of the police force can prosecute for offences under the DGA. It seems that charges can also be brought by private citizens (see United Transport Services Pty Ltd v Evans [1992] 1 VR 240, 250). Occupiers and people in charge of premises where dangerous goods are manufactured, stored and sold; owners or people in charge of vehicles or boats used to transport dangerous goods; and people using, handling or transferring dangerous goods are all under a general duty to take all reasonable precautions to avoid endangering the public (s 31).

Most offences under the DGA are summary and charges must be laid within 12 months of the suspected offence.

Offences of obstructing inspectors (etc.) are indictable and attract higher penalties under the DGA (s 19D): 300 penalty units for a corporation. If there is intimidation or assault: 1200 penalty units for a corporation. If the corporation has a previous conviction under the DGA, high additional penalties may be imposed (s 45A). According to the common law, a private person who prosecutes a criminal offence is entitled to any fine imposed by the court (High Court of Australia in Truth About Motorways v Macquarie [2000] HCA 11).

Information and action

Information

WorkSafe is subject to freedom of information and must therefore provide any documents relating to granting licences and monitoring compliance with licences, unless exempt from the Freedom of Information Act 1982 (Vic).

Some information is subject to the statutory obligation of confidentiality (ss 28–38A). Information can be obtained about significant incidents and accidents, leaks, and spillages involving dangerous goods. These must be reported to police or the relevant fire authority, who then report to WorkSafe under the Victoria State Emergency Response Plan (DISPLAN) maintained under section 10 of the Emergency Management Act 1986 (Vic). The Emergency Response Group of WorkSafe produces a list of incidents reported to them each month.

There is also a Victoria State Emergency Recovery Plan. For more information about the operation of these plans, contact the State Emergency Service. Local councils also operate municipal emergency management plans, which deal with prevention, response and recovery, and dovetail with the state plans. For further information, contact the Municipal Emergency Response Officer at your local council.

Concerns about suspected mismanagement of chemicals should be directed to the nearest WorkSafe office. For details of WorkSafe offices where advice can be obtained, vist www.worksafe.vic.gov.au.

In an emergency, call the police, the fire authority or the SES (tel: 000). For workplace and dangerous goods emergencies, call 13 23 60 (24-hour service).