In the Northern Territory, chemicals are regulated under a range of different acts, however, their movement and handling outside of workplaces is primarily governed by the Transport of Dangerous Goods By Road and Rail (National Uniform Legislation) Act.

This fact sheet is designed to provide an overview of the regulation of chemical transport and handling, including the classification methods, and the key obligations on people who transport or consign such chemicals for transport.

Classification of chemicals and their risks to safety and environment

Given the variety of chemicals in existence or production, the key challenge for regulation has been the system for classifying these substances.

The general approach adopted by government has been to categorise each chemical in relation to its:

  • primary inherent properties that pose a risk to humans or the environment, considering a range of environmental conditions (e.g. ambient temperature); and
  • potential interaction with other substances, including other chemicals and types of packaging.

This approach has given rise to the following nine internationally-recognised classes of chemicals (known as “dangerous goods”) which are grouped according to the key risks and/or commonality of controls:[1]

  • Class 1: Explosives
  • Class 2: Gasses (including flammable and toxic gases)
  • Class 3: Flammable liquids
  • Class 4: Flammable solids
  • Class 5: Oxidising substances and organic peroxides
  • Class 6: Toxic and infectious substances
  • Class 7: Radioactive material
  • Class 8: Corrosives
  • Class 9: Miscellaneous dangerous substances and articles

Some classes are further subdivided into divisions that address key differences within each class and are designated using a decimal place (e.g. Classes 2.1, 2.2 and 2.3 are all part of Class 2). Each class is also assigned a number of “packaging groups” which refers to the types of packaging or containers that the substance can be stored in and the risks associated with each packaging type. Broadly, the packaging groups are Group I (high danger), Group II (medium danger) and Group III (low danger).

Within each Class (or division) chemicals are further grouped and assigned a “UN Number”, which is a four digit number that identifies chemicals that share a number of specific characteristics. For example if you examine a correctly labelled can of enamel paint you will see that is labelled a Class 3 substance (i.e. a flammable liquid) and is assigned the UN number “1263”.

If you are concerned about the safety or environmental effects of a particular substance, the most reliable information can be found in the Safety Data Sheet or SDS[2], which the manufacturer or supplier is obliged to make available in relation to that chemical.[3]

Regulation in the Northern Territory

The NT Government has enacted two pieces of legislation to regulate dangerous goods, which incorporate into local law the model regulations created by international agreement. These are the:

This legislation creates a framework to regulate dangerous goods transport and handling and is a mix of both specific rules for certain types of substance and general duties of care in relation to most chemicals in general. Most of the information needed to comply with the general duties is contained with the Australian Dangerous Goods Code (ADG Code) which is in its 7th edition. Although this is a technical document, it has been purposefully drafted to enable a lay person to understand and access information on dangerous goods management.

The scope of the ADG Code specifically excludes the transport of explosives (Class1) and radioactive substances (Class 7) unless they are being transported with other dangerous goods or have a subsidiary risk belonging to another class (e.g. certain explosives may also be Class 5 oxidisers). For further information on the transport of radioactive substances, please refer to our Fact sheet ‘Uranium Mining’.

The Minister of Business[4] is has overall responsibility for the regulation of dangerous goods transportation. The “competent authority” appointed to administer regime is NT WorkSafe.

Dangerous good activities which are regulated

The TDG Act creates certain offences in relation to the movement of dangerous goods including:

  • Failure to hold a dangerous goods driver’s licence;[5]
  • Transporting goods too dangerous to be transported;[6] and
  • Failure to transport dangerous goods in a safe way.[7]

The last of these offences stated above is the broadest as the legislation does not specify what constitutes a “safe way”. The legislation only indicates that transport must be undertaken safely as far as it is reasonably practicable to do so.[8] The TDG Reg also creates a number of specific offences, including:

  • the sale or supply of dangerous goods in non-compliant packaging;[9]
  • labelling dangerous goods incorrectly;[10] and
  • failure to segregate dangerous goods from food or food packaging.[11]
Transport dangerous goods without the appropriate licence

Under the TDG Act, inspectors have wide-ranging powers within which they can enforce the dangerous goods requirements, including the power to:

  • direct a driver to stop, move or leave a vehicle without delay (e.g. where it is ‘seriously endangering public safety or the environment’);
  • view a driver’s dangerous goods licence or consignment documents;
  • inspect premises (except if it is mainly used as a residence) and vehicles and take photos, notes, copies of documents etc;
  • search a premises where the inspector believes on reasonable grounds they may find evidence of an offence; and
  • direct a transporter of dangerous goods to provide reasonable assistance.
NT WorkSafe’s enforcement options

In addition to prosecuting a breach of the TDG Act as a criminal offence, NT WorkSafe elect to may exercise a range of intermediate options where it suspects that an offence has been committed, including:

  • issue a formal warning where the transporter had taken reasonable steps to prevent the contravention and was unaware of the contravention;[12]
  • serving an improvement notice on the individual or business to take certain steps to stop a dangerous activity;[13] and
  • serving a prohibition notice on the individual or business to cease a certain practice or to remedy the non-compliance.[14]

It is an offence not to comply with either an improvement or prohibition notice, whereas a formal warning may be important at a later date in assessing the “character” of an organisation or in determining whether more serious enforcement is suitable.

If NT WorkSafe proceeds to prosecute an offence under the TDG Act, then the court has a wide range of sanctions it can impose on the offender, including:[15]

  • a penalty equal to the commercial benefit gained from the commission of the offence;
  • modifying, suspending or disqualifying a dangerous goods driver’s licence or registration on a vehicle otherwise permitted to transport dangerous goods;
  • an order that require the supervision of a person or organisation’s activities in dangerous goods transportation using monitoring equipment or expert advice;
  • an order that prohibits a person or organisation from transporting dangerous goods; and/or
  • an order that the goods and packaging are forfeited by a person or organisation found guilty of an offence.

NT WorkSafe must commence a prosecution within two years after the commission of the alleged offence or one year after NT WorkSafe first obtained evidence of the commission of the alleged offence.[16]

Actions available to the public

A member of the public does not have the right to prosecute or seek enforcement of the TDG Act. Rather, it would be necessary for a suspected contravention to be reported to NT WorkSafe.

If environmental harm to property, such as pollution, occurs as a consequence of dangerous goods transport, handling or storage, there may be grounds for a civil claim in damages for any loss suffered.  For more information please read our Fact Sheets on Nuisance, negligence and trespass.

Case study: Edith River Derailment

The importance of regulating dangerous goods movement has been demonstrated by the   derailment of a freight train 40km south of Katherine en route to Darwin.  Floodwaters undermined the structural integrity of the bridge. This rendered the bridge unable to support the weight of a train carrying several thousand tonnes of copper and iron ore. Following derailment, 1,200 tonnes of that ore was thought to have been swept into the river. The derailment posed a serious environmental risk through poisoning, the full extent of which is yet to be determined.

NT WorkSafe inspectors investigated the accident scene under their powers of inspection contained in the TDG Act. The rail operator responsible for the train was regulated by the TDG Act, as was the consignor of the goods that the train was carrying. The rail operator was required also required to develop and maintain a Safety Management System that identified potential hazards and procedures for mitigating risk, including in flood prone areas of railway, under the Rail Safety Act 2010.

The Australian Transport Safety Bureau also investigated the incident, focussing on the decision to commence the journey despite severe weather warnings. It examined the standards of employee training and responses in emergency circumstances. The investigation found deficiencies in the operating standards for severe weather and inadequate training and employment guidance. The former Northern Territory Government Department of Natural Resources, Environment, the Arts and Sports ordered the company to remove the carriages and containers from the river, clean up the area and rectify ongoing contamination. Environmental monitoring of heavy metal contamination and remediation work continues.

References

[1] See United Nations Commission for Europe ‘UN Model Regulations’: http://www.unece.org/trans/danger/publi/unrec/rev13/13nature_e.html.
[2] These are also referred to as “Material Safety Data Sheets” or MSDSs
[3]  Work Health And Safety (National Uniform Legislation) Regulations, ss 330 & 339
[4] Administrative Arrangements Order, Schedule 2.
[5] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, s 83.
[6] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, s 84. See Appendix A to the ADG Codefor a list of these substances.
[7] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act ,s 85.
[8] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, s 85 (2).
[9] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Regulations, reg 57.
[10] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Regulations, reg 56.
[11] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Regulations, Part 8.
[12] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, s 99.
[13] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, Part 5, Division 1.
[14] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, Part 5, Division 2.
[15] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, Part 6.
[16] Transport of Dangerous Goods by Road and Rail (National Uniform Legislation) Act, s 66.