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Dangerous goods in the transport supply chain – Transport


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Dangerous goods in the transport supply chain

The transport of dangerous goods is regulated by a scheme that
aligns with the safety concerns of the HVNL. At a national level,
the standards applying to the safe transport of dangerous goods are
set out in Australian Code for the Transport of Dangerous Goods by
Road and Rail (ADG Code). The National Transport
Commission has subsequently developed model legislation for State
and Territory level adoption of the code.

What are dangerous goods?

There is no fixed definition of dangerous goods, instead they
are goods or substances declared or identified as such for the
purposes of the applicable dangerous legislation. Dangerous goods
are subsequently categorised under the ADG Code by reference to the
hazard or most predominant hazard they present and their substance,
which includes:

  • class 1 – Explosives

  • class 2 – Gasses

  • class 3 – Flammable liquids

  • class 4 – Flammable solids, substances liable to spontaneous
    combustion, substances which, on contact with water, emit flammable
    gases

  • class 5 – Oxidising substances and organic peroxides

  • class 6 – Toxic and infections substances

  • class 7 – Radioactive material

  • class 8 – Corrosive substances

  • class 9 – Miscellaneous dangerous substances and articles,
    including environmentally hazardous substances.

Is the transport of dangerous goods a CoR
issue?

The HVNL sets out principles of shared responsibility along the
supply chain expressly and clearly. State legislation concerning
the transport of dangerous goods is relatively less sophisticated
but it still hits the mark for singling out parties along the
transport supply chain and giving each general and specific duties
concerning the safe transportation of dangerous goods.

For example, in New South Wales, section 9(1) Dangerous
Goods (Road and Rail Transport) Act 2008
(NSW) makes it an
offence for a person involved in the transport of dangerous goods
by road or rail to fail to ensure that they are transported in a
safe manner. This is unless the accused can show that it was not
reasonably practicable for the person to transport the goods in
safe manner or if the offence occurred due to causes outside the
accused’s control and it was impracticable for the accused to
make provision against the offence occurring. A person involved in
the transport of dangerous goods could include various parties in
the supply chain including the driver, operator, freight forwarder,
packer, loader, or consignor.

Part 3 of the Dangerous Goods (Road and Rail Transport)
Regulation 2014
imposes specific obligations on consignors,
packers, loader, prime contractors and drivers in relation to
dangerous goods or substances of commercial importance. Provisions
of part 3 respectively require these parties not to engage in
transporting, driving, packing or loading dangerous goods (as they
apply) if the relevant party knows or ought reasonably to know that
the transport of the goods would not comply with the applicable
special provision of the ADG Code.

The way these obligations on parties along the transport supply
chain often play out in enforcement actions is by way of
‘bulk’ charges against numerous defendants for the same or
similar offence arising from the same safety incident. For
example:

  • in Environment Protection Authority v Hill; Environment
    Protection Authority v Stockwell International Pty Ltd
    [2017]
    NSWLEC 72 both the driver and a customs brokerage and freight
    forwarding company were charged and pleaded guilty to offences of
    failing to ensure that expandable polymeric beads which had
    flammable substances (dangerous goods) that were transported by
    road were transported in a same manner. Toll Global Forwarding Pty
    Ltd, which had arranged for the transport of the dangerous goods by
    road was also charged with a similar offence

  • in Environmental Protection Authority v Moama Refinery Pty
    Ltd
    [2002] NSWLEC 244 and Environmental Protection
    Authority v Embridge Crest Pty Ltd
    [2002] NSWLEC 238 both the
    owner and consignor of a highly flammable and dangerous liquid as
    well the operator of a transport business engaged to transport the
    liquid were charged and pleaded guilty (separately) to offences of
    failing to ensure as far as was practicable that the goods were
    transported in a safe manner.

How does dangerous goods legislation sit with the
HVNL?

The HVNL deals with the general and the dangerous goods
legislation deals with the particular. The HVNL is transport
activities involving heavy vehicles generally. It has a broader
regulatory focus, targeting mass, dimension, load restraint, speed,
fatigue and road worthiness aspects of safety.

The dangerous goods legislation is limited to specialised
transport requirements for dangerous goods. It targets, among other
things, the classification, packing and performance testing,
segregation and storage and transfer of dangerous goods. It also
deals with the carriage of dangerous goods (such as bulk
containers), vehicle requirements, special markings and placarding,
documentation, safety equipment and emergency equipment for the
transport of dangerous goods.

CoR parties transporting dangerous goods using heavy vehicles
must comply with the HVNL as well as applicable dangerous goods
legislation. For example, a CoR party would need to comply with the
HVNL, Dangerous Goods (Road and Rail Transport) Act and
Part 6.1 of the Road Transport Act 2013
(NSW).

To the extent that there may be subject matter overlap relating
to restraining dangerous goods, the Load Restraint Guide harmonises
CoR party obligations by referring them to restraint requirements
under the ADG Code.

This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader’s
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
individuals listed.

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