Chapter 9 Major hazard facilities

Part 9.1 Preliminary

Division 1 Application and interpretation

530   This Chapter does not apply to certain facilities

(1)  This Chapter does not apply in relation to a facility that is regulated by the National Offshore Petroleum Safety and Environmental Management Authority under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth.

(2)  This Chapter does not apply in relation to:

(a)  a port operational area under the control of a port authority, or

(b)  a pipeline to which the Gas Supply Act 1996 or the Pipelines Act 1967 applies, or

(d)  a coal workplace, or

(e)  a mining workplace.

(3)  In this clause:

port authority means a body established under Part 2 or 4 of the Ports and Maritime Administration Act 1995.

port operational area means the land and sea, including the fixed facilities and vessels, located in any area defined in Schedule 1 to the Ports and Maritime Administration Regulation 2007 and includes any berths adjacent to such an area, but does not include any long-term storage areas where dangerous goods are usually kept for more than 5 days.

531   Meaning of “major incident”

(1)  In this Chapter, a major incident at a major hazard facility is an occurrence that:

(a)  results from an uncontrolled event at the major hazard facility involving, or potentially involving, Schedule 15 chemicals, and

(b)  exposes a person to a serious risk to health or safety emanating from an immediate or imminent exposure to the occurrence.

(2)  Without limiting subclause (1), an occurrence includes any of the following:

(a)  escape, spillage or leakage,

(b)  implosion, explosion or fire.

532   Meaning of hazardous chemicals that are “present or likely to be present”

(1)  A reference in this Regulation to hazardous chemicals, including Schedule 15 chemicals, being present or likely to be present at a facility is a reference to the quantity of hazardous chemicals that would, if present, meet the maximum capacity of the facility, including:

(a)  the maximum capacity of process vessels and interconnecting pipe systems that contain the hazardous chemicals, and

(b)  the maximum capacity of storage tanks and vessels used for the hazardous chemicals, and

(c)  the maximum capacity of other storage areas at the facility that could contain the hazardous chemicals, and

(d)  the maximum capacity of pipe work outside process areas to contain the hazardous chemicals, and

(e)  the maximum quantity of hazardous chemicals that would, in the event of failure, escape into the facility from pipe work that is situated off the premises but is connected to the facility, and

(f)  the maximum quantity of hazardous chemicals loaded into or onto, or unloaded from, vehicles, trailers, rolling stock and ships that are from time to time present at the facility in the course of the facility’s operations.

(2)  Subclause (1) applies with any necessary changes to hazardous chemicals that are likely to be present at a proposed facility.

(3)  Schedule 15 chemicals present or likely to be present in the tailings dam of a mine are not to be considered in determining whether a mine is a facility or a major hazard facility.

533   Meaning of “operator” of a facility or proposed facility

(1)  In this Chapter, the operator of a facility is the person conducting the business or undertaking of operating the facility who has:

(a)  management or control of the facility, and

(b)  the power to direct that the whole facility be shut down.

(2)  In this Chapter, operator of a proposed facility means:

(a)  the operator of a proposed facility that is an existing workplace, or

(b)  the person who is to be the operator of a proposed facility that is being designed or constructed.

(3)  If more than 1 person is an operator of the facility within the meaning of subclause (1):

(a)  1 of those persons must be selected as the operator of the facility for the purposes of this Chapter, and

(b)  that person’s details must be given to the regulator.

(4)  The person selected:

(a)  must notify the regulator of the nomination, and

(b)  may do so by including it in a notification under clause 536.

(5)  The person selected under subclause (3) is the operator of the facility for the purposes of this Chapter.

(6)  If a selection is not made, each of the following persons is taken to be an operator of the facility for the purposes of this Chapter:

(a)  each operator within the meaning of subclause (1) who is an individual,

(b)  for each operator within the meaning of subclause (1) that is a body corporate—each officer of the body corporate.

534   Meaning of “modification” of a facility

(1)  In this Regulation, a reference to a modification of a major hazard facility is a reference to a change or proposed change at the major hazard facility that has or would have the effect of:

(a)  creating a major incident hazard that has not previously been identified, or

(b)  significantly increasing the likelihood of a major incident occurring, or

(c)  in relation to a major incident that may occur—significantly increasing:

(i)  its magnitude, or

(ii)  the severity of its health and safety consequences.

(2)  For the purposes of subclause (1), a change or proposed change at a major hazard facility means a change or proposed change of any kind, including any of the following:

(a)  a change to any plant, structure, process or chemical or other substance used in a process, including the introduction of new plant, a new structure, a new process or a new chemical,

(b)  a change to the quantity of Schedule 15 chemicals present or likely to be present at the major hazard facility,

(c)  a change to the operation, or the nature of the operation, of the major hazard facility,

(d)  a change in the workers’ safety role,

(e)  a change to the major hazard facility’s safety management system,

(f)  an organisational change at the major hazard facility, including a change in its senior management.

Division 2 Requirement to be licensed

535   A major hazard facility must be licensed

(1)  A facility at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity must be licensed under Part 9.7.

Note. See section 41 of the Act.

(2)  A facility that is determined to be a major hazard facility under clause 541 must be licensed under Part 9.7.

Note. See section 41 of the Act.

(3)  Despite subclause (1) or (2), a determined major hazard facility is exempt from the requirement to be licensed during the exemption period if the operator of the major hazard facility is taken to be a suitable person to operate the facility for the purposes of Part 9.2.

(4)  The operator of a licensed major hazard facility must hold the licence for the major hazard facility.

(5)  In this clause, exemption period, in relation to a determined major hazard facility, means the period beginning on the determination of the facility and ending on the first of the following to occur:

(a)  the revocation of the determination of the facility under clause 546,

(b)  the end of the period for applying for a licence given under clause 549, unless an application for a licence for the facility is made within that period,

(c)  the grant of a licence for the facility under Part 9.7,

(d)  if the regulator decides to refuse to grant a licence for the facility:

(i)  the end of the period for applying for an external review of that decision, unless an application for external review is made within that period, or

(ii)  the making of the decision on the external review.

Notes. 

1   The licensing process is provided for in Part 9.7.

2   Under Part 9.2, an operator of a determined major hazard facility is taken to be a suitable operator if no determination is made under clause 543.

3   Under Part 9.3 the operator of a determined major hazard facility is given a limited time to prepare the major hazard facility to be licensed, including by preparing a safety case.

4   Part 9.2 provides for the notification and determination of facilities and operators of facilities. The purpose of notification is to enable the regulator to determine whether:

(a)  a facility or proposed facility is a major hazard facility, and

(b)  the operator of a determined major hazard facility is a suitable person to:

(i)  operate the facility while the determination under paragraph (a) is in force, and

(ii)  apply for a licence for the facility.

Part 9.2 Determinations about major hazard facilities

536   Operators of certain facilities must notify regulator

(1)  The operator of a facility at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds 10% of their threshold quantity must notify the regulator of this circumstance in accordance with this Part.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  Notification must be given:

(a)  as soon as practicable (but not more than 3 months) after the operator becomes aware, or ought reasonably to have become aware, of the circumstance giving rise to the requirement to notify, or

(b)  within any longer period that the regulator determines if satisfied on application by the operator that there is a reasonable excuse for the delayed notification.

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

537   Notification—proposed facilities

(1)  The operator of a proposed facility at which Schedule 15 chemicals are likely to be present in a quantity that exceeds 10% of their threshold quantity may notify the regulator of this circumstance.

Notes. 

1   See definition of proposed facility in clause 5 (1).

2   For the meaning of likely to be present, see clause 532.

(2)  Any notification under this clause must include the information required by clause 538 (with any necessary changes).

538   Content of notification

(1)  A notification under clause 536 must be made in the manner and form required by the regulator.

(2)  The notification must include the following:

(a)  information about the facility, including the nature of its operations,

(b)  information about the operator, including the matters specified in subclause (3),

(c)  information about the Schedule 15 chemicals present or likely to be present at the facility,

(d)  the nomination of a contact person with whom the regulator can communicate for the purposes of:

(i)  this Part, and

(ii)  the licensing process,

(e)  any additional information required by the regulator.

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The information given under subclause (2) (b) must include the following:

(a)  the operator’s name,

(b)  whether or not the operator is a body corporate,

(c)  any other evidence of the operator’s identity required by the regulator,

(d)  if the operator is an individual:

(i)  a declaration as to whether or not the operator has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, and

(ii)  details of any conviction or finding of guilt declared under subparagraph (i), and

(iii)  a declaration as to whether or not the operator has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, and

(iv)  details of any enforceable undertaking declared under subparagraph (iii), and

(v)  if the operator has previously been refused a major hazard facility licence under a corresponding WHS law, a declaration giving details of that refusal, and

(vi)  if the operator has previously held a major hazard facility licence under a corresponding WHS law, a declaration:

(A)  describing any condition imposed on that licence, and

(B)  stating whether or not that licence had been suspended or cancelled and, if so, whether or not the operator had been disqualified from applying for a major hazard facility licence, and

(C)  giving details of any suspension, cancellation or disqualification,

(e)  if the operator is a body corporate, the information specified in paragraph (d) in relation to:

(i)  the operator, and

(ii)  each officer of the operator.

(4)  The notification must be accompanied by the relevant fee.

539   When regulator may conduct inquiry

The regulator may conduct an inquiry under this Division if a notification under clause 536 or 537 discloses, or if for some other reason the regulator reasonably suspects, that:

(a)  the quantity of Schedule 15 chemicals present or likely to be present at a facility (or proposed facility) exceeds 10% of their threshold quantity but does not exceed their threshold quantity, or

(b)  the operator of the facility (or proposed facility) may not be a suitable person to operate the facility (or proposed facility).

540   Inquiry procedure

(1)  This clause sets out the procedure for an inquiry.

(2)  The regulator must give a written notice to the person referred to in subclause (3):

(a)  informing the person of the reasons for the inquiry, and

(b)  advising the person that the person may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the inquiry.

(3)  Notice under subclause (2) must be given:

(a)  for an inquiry about a facility in relation to which a notification has been given under clause 536 or 537—to the contact person identified in the notification, and

(b)  in any other case—to the operator of the facility.

(4)  The regulator must:

(a)  if the recipient of the notice has made a submission in relation to the inquiry—consider that submission, and

(b)  consult with interested persons including:

(i)  health and safety representatives at the facility, and

(ii)  the emergency service organisations that have responsibility for the area in which the facility is located, and

(iii)  any government department or agency with a regulatory role in relation to major hazard facilities, and

(c)  decide whether or not to make a determination under clause 541 or 542, and

(d)  if it decides to make a determination under clause 541 or 542—decide whether or not to make a determination in relation to the operator under clause 543.

541   Determination in relation to facility, on inquiry

(1)  This clause applies if an inquiry discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility or proposed facility exceeds 10% of their threshold quantity, but does not exceed their threshold quantity.

(2)  The regulator may determine the facility or proposed facility to be a major hazard facility if the regulator considers that there is a potential for a major incident to occur at the facility or proposed facility having regard to all relevant matters, including:

(a)  the quantity and combination of Schedule 15 chemicals present or likely to be present at the facility, and

(b)  the type of activity at the facility that involves the Schedule 15 chemicals, and

(c)  land use and other activities in the surrounding area.

Notes. 

1   If an inquiry discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility exceeds their threshold quantity, the facility is a major hazard facility. See definition of major hazard facility in clause 5 (1).

2   A determination that a facility is a major hazard facility, or that a proposed facility is not a major hazard facility, is a reviewable decision (see clause 676).

542   Determination in relation to over-threshold facility

(1)  This clause applies if a notification under clause 536 or 537 discloses that the quantity of Schedule 15 chemicals present or likely to be present at a facility (or proposed facility) exceeds their threshold quantity.

(2)  The regulator must make a determination confirming the facility (or proposed facility) to be a major hazard facility.

Note. A determination that a facility is a major hazard facility is a reviewable decision (see clause 676).

543   Suitability of facility operator

(1)  This clause applies if the regulator determines a facility or a proposed facility to be a major hazard facility under clause 541 or 542.

(2)  The regulator may determine that the operator of the major hazard facility or proposed major hazard facility is not a suitable person to operate the major hazard facility if the regulator:

(a)  has conducted an inquiry under clause 540 into the suitability of the operator, and

(b)  is satisfied on reasonable grounds that the operator is not a suitable person to operate the major hazard facility or proposed major hazard facility.

(3)  If no determination is made under this clause, the operator of the major hazard facility or proposed major hazard facility is taken to be a suitable person to operate the major hazard facility and to apply for a major hazard facility licence.

Note. A determination that a person is not a suitable operator is a reviewable decision (see clause 676).

544   Conditions on determination of major hazard facility

(1)  The regulator may impose any conditions it considers appropriate on a determination made under clause 541 or 542.

(2)  Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following:

(a)  additional control measures that must be implemented in relation to the carrying out of work or activities at the determined major hazard facility,

(b)  the recording or keeping of additional information,

(c)  the provision of additional information, training and instruction or the provision of specified information, training and instruction to additional persons or classes of persons,

(d)  the provision of additional information to the regulator,

(e)  if the operator is a person conducting a business or undertaking, the additional class of persons who may carry out work or activities on the operator’s behalf.

(3)  The operator of a determined major hazard facility, in relation to which conditions are imposed under this clause, must ensure that the conditions are complied with.

Note. A decision to impose a condition on a determination is a reviewable decision (see clause 676).

544A   Conditions on determination—payment of relevant fee

It is a condition on a determination made under clause 541 or 542 that the operator of the determined major hazard facility must pay the relevant fee within 28 days after receiving notice of the fee from the regulator.

545   Notice and effect of determinations

(1)  If the regulator makes a determination under this Part, the regulator must give the operator of the determined major hazard facility a written notice of the determination, stating:

(a)  the reasons for the determination, and

(b)  the date on which the determination takes effect, which must be at least 28 days after the date of the notice, and

(c)  any conditions imposed on the determination under clause 544.

(2)  The notice must be given within 14 days of the making of the determination.

(3)  The effect of a determination under clause 543 is that:

(a)  the operator is not taken to be a suitable person to operate the determined major hazard facility, and

(b)  the exemption provided by clause 535 (3) does not apply to the determined major hazard facility.

Note. For the effect of a determination under clause 541 or 542, see definition of determined major hazard facility in clause 5 (1).

(4)  A determination takes effect on the date specified in the notice.

(5)  A determination is of unlimited duration unless it is revoked.

546   When regulator may revoke a determination

The regulator may revoke a determination under this Part if, after consultation with the major hazard facility’s contact person or operator (as applicable), the regulator is satisfied that the reasons for the determination no longer apply.

547   Re-notification if quantity of Schedule 15 chemicals increases

(1)  This clause applies to a facility or proposed facility:

(a)  at which the quantity of Schedule 15 chemicals present or likely to be present exceeds 10% of their threshold quantity but does not exceed their threshold quantity, and

(b)  in relation to which notification was given under clause 536 or 537, and

(c)  that is not determined to be a major hazard facility under clause 541.

(2)  The operator of the facility or proposed facility must re-notify the regulator in accordance with this Part if the quantity of Schedule 15 chemicals present or likely to be present at the facility or proposed facility increases, or is likely to increase, to a level that exceeds the level previously notified to the regulator.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The provisions of this Part apply, to the extent that they relate to a re-notification under this clause, as if the re-notification were a notification under clause 536.

548   Notification by new operator

(1)  This clause applies:

(a)  in relation to a determined major hazard facility that is proposed to be operated by a new operator,

(b)  whether or not a determination under clause 543 was made in relation to the current operator.

(2)  A proposed new operator of the determined major hazard facility must give the regulator a notification that contains the information specified in clause 538 (2) in relation to the proposed new operator.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The provisions of this Part apply, to the extent that they relate to the suitability of an operator, as if the notification under subclause (2) were a notification under clause 536.

549   Time in which major hazard facility licence must be applied for

(1)  Subject to this clause, the operator of a determined major hazard facility must apply for a major hazard facility licence within 24 months after the determination of the facility.

(2)  The regulator may extend the time in which the operator of a determined major hazard facility must apply for a licence if satisfied, on application by the operator, that there has not been sufficient time to comply with Part 9.3.

Note. The exemption from the requirement to be licensed is conditional on an application for a licence being made within the time specified by this clause (see clause 535 (3) and (5)).

Part 9.3 Duties of operators of determined major hazard facilities

Notes. 

1   The operator of a determined major hazard facility is required to comply with this Part for a specified period and to prepare a safety case in order to apply for a major hazard facility licence.

2   The Act and Chapter 7 of this Regulation (Hazardous Chemicals) continue to apply to a determined major hazard facility.

Division 1 Application of Part 9.3

550   Application of Part 9.3

This Part ceases to apply to a determined major hazard facility at the end of the exemption period applying to that facility under clause 535.

Division 2 Safety case outline

551   Safety case outline must be provided

The operator of a determined major hazard facility must provide the regulator with a safety case outline for the major hazard facility within 3 months after the facility is determined to be a major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

552   Content

A safety case outline provided under clause 551 must include the following:

(a)  a written plan for the preparation of the safety case, including key steps and timelines, with reference being made to each element of the safety case,

(b)  a description of the methods to be used in preparing the safety case, including methods for ensuring that all the information contained in the safety case is accurate and up to date when the safety case is provided to the regulator,

(c)  details of the resources that will be applied to the preparation of the safety case, including the number of persons involved, their relevant knowledge and experience and sources of technical information,

(d)  a description of the consultation with workers that:

(i)  occurred in the preparation of the safety case outline, and

(ii)  will occur in the preparation of the safety case,

(e)  a draft of the emergency plan prepared or to be prepared under clause 557,

(f)  a summary of any arrangements that are to be made in relation to the security of the major hazard facility.

Example. Arrangements for preventing unauthorised access to the major hazard facility.

553   Alteration

(1)  If the regulator is not satisfied that a safety case outline provided by the operator of a determined major hazard facility will lead to the development of a safety case that complies with clause 561, the regulator may require the operator to alter the outline.

(2)  If the regulator proposes to require an operator to alter a safety case outline, the regulator must give the operator a written notice:

(a)  informing the operator of the proposed requirement and the reasons for it, and

(b)  advising the operator that the operator may make a submission to the regulator in relation to the proposed requirement, and

(c)  specifying the date (being not less than 28 days) by which the submission must be made.

(3)  The regulator must:

(a)  if the operator has made a submission in relation to the proposed requirement to alter a safety case outline—consider that submission, and

(b)  whether or not the operator has made a submission—decide whether or not to require the operator to alter the outline, and

(c)  within 14 days after deciding, give the operator written notice of the decision, including details of the alteration required and the reasons why it is required.

(4)  The operator must alter the outline as required.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(5)  The operator must give the regulator a copy of a safety case outline that has been altered:

(a)  under this clause, or

(b)  by the operator on the operator’s initiative.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(6)  The safety case outline as altered becomes the safety case outline for the major hazard facility.

Division 3 Management of risk

554   Identification of major incidents and major incident hazards

(1)  The operator of a determined major hazard facility must identify:

(a)  all major incidents that could occur in the course of the operation of the major hazard facility, and

(b)  all major incident hazards for the major hazard facility, including major incident hazards relating to the security of the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In complying with subclause (1), the operator must have regard to any advice and recommendations given by:

(a)  the emergency service organisations with responsibility for the area in which the major hazard facility is located, and

(b)  any government department or agency with a regulatory role in relation to major hazard facilities.

(3)  The operator must document:

(a)  all identified major incidents and major incident hazards, and

(b)  the criteria and methods used in identifying the major incidents and major incident hazards, and

(c)  any external conditions under which the major incident hazards, including those relating to the security of the major hazard facility, might give rise to the major incidents.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

555   Safety assessment

(1)  The operator of a determined major hazard facility must conduct a safety assessment in relation to the operation of the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In order to provide the operator with a detailed understanding of all aspects of risks to health and safety associated with major incidents, a safety assessment must involve a comprehensive and systematic investigation and analysis of all aspects of risks to health and safety associated with all major incidents that could occur in the course of the operation of the major hazard facility, including the following:

(a)  the nature of each major incident and major incident hazard,

(b)  the likelihood of each major incident hazard causing a major incident,

(c)  in the event of a major incident occurring, its potential magnitude and the severity of its potential health and safety consequences,

(d)  the range of control measures considered,

(e)  the control measures the operator decides to implement.

(3)  In conducting a safety assessment, the operator must:

(a)  consider major incidents and major incident hazards cumulatively as well as individually, and

(b)  use assessment methods (whether quantitative or qualitative, or both), that are suitable for the major incidents and major incident hazards being considered.

(4)  The operator must document all aspects of the safety assessment, including:

(a)  the methods used in the investigation and analysis, and

(b)  the reasons for deciding which control measures to implement.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  The operator must keep a copy of the safety assessment at the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

556   Control of risk

(1)  The operator of a determined major hazard facility must implement control measures that:

(a)  eliminate, so far as is reasonably practicable, the risk of a major incident occurring, or

(b)  if it is not reasonably practicable to eliminate that risk—minimise that risk so far as is reasonably practicable.

Note. WHS Act—section 20 (see clause 9).

(2)  The operator of a determined major hazard facility must implement risk control measures designed to minimise, in the event of a major incident occurring, its magnitude and the severity of its consequences to persons both on-site and off-site.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

557   Emergency plan

(1)  The operator of a determined major hazard facility must prepare an emergency plan for the major hazard facility that:

(a)  addresses all health and safety consequences of a major incident occurring, and

(b)  includes all matters specified in Schedule 16, and

(c)  provides for testing of emergency procedures, including the frequency of testing.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In preparing an emergency plan, the operator must consult with:

(a)  the following bodies:

(i)  Fire and Rescue NSW, and

(ii)  if the facility is within a rural fire district within the meaning of the Rural Fires Act 1997—the NSW Rural Fire Service, and

(b)  in relation to the off-site health and safety consequences of a major incident occurring—the local authority.

(3)  The operator must ensure that the emergency plan addresses any recommendation made by the emergency service organisations consulted under subclause (2) in relation to:

(a)  the testing of the emergency plan, including the manner in which it will be tested, the frequency of testing and whether or not the emergency service organisations will participate in the testing, and

(b)  what incidents or events at the major hazard facility should be notified to the emergency service organisations.

(4)  The operator must have regard to any other recommendation or advice given by a person consulted under subclause (2).

(5)  The operator must:

(a)  keep a copy of the plan at the major hazard facility, and

(b)  give a copy of the plan to:

(i)  the emergency service organisations consulted under subclause (2), and

(ii)  any other relevant emergency service organisations.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  The operator must test the emergency plan in accordance with the recommendations made by the emergency service organisations consulted under subclause (2) before applying for a licence for the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(7)  The operator must immediately implement the emergency plan if:

(a)  a major incident occurs in the course of the operation of the major hazard facility, or

(b)  an event occurs that could reasonably be expected to lead to a major incident.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(8)  The operator must notify the emergency service organisations consulted under subclause (2) of the occurrence of an incident or event referred to in subclause (3) (b).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note. This clause applies in addition to clause 43.

558   Safety management system

(1)  The operator of a determined major hazard facility must establish a safety management system for the operation of the major hazard facility, in accordance with this clause.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The operator of a determined major hazard facility must implement the safety management system for the major hazard facility, so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The safety management system must:

(a)  provide a comprehensive and integrated system for the management of all aspects of risk control in relation to the occurrence and potential occurrence of major incidents at the major hazard facility, and

(b)  be designed to be used by the operator as the primary means of ensuring the safe operation of the major hazard facility.

(4)  The safety management system must:

(a)  be documented, and

(b)  state the operator’s safety policy, including the operator’s broad aims in relation to the safe operation of the major hazard facility, and

(c)  state the operator’s specific safety objectives and describe the systems and procedures that will be used to achieve those objectives, and

(d)  include the matters specified in Schedule 17, and

(e)  be readily accessible to persons who use it.

558A   Security arrangements

(1)  The operator of a determined major hazard facility must make arrangements for the security of the major hazard facility.

(2)  The operator of a determined major hazard facility, when preparing any such security arrangements, must ensure that:

(a)  details of those arrangements are provided to the Commissioner of Police, and

(b)  regard is taken of any written advice received from the Commissioner of Police.

559   Review of risk management

(1)  The operator of a determined major hazard facility must review and as necessary revise the following, in accordance with this clause:

(a)  the safety assessment conducted under clause 555 in order to ensure the adequacy of the control measures to be implemented by the operator,

(b)  the major hazard facility’s emergency plan,

(c)  the major hazard facility’s safety management system.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  Without limiting subclause (1), the operator must conduct a review and revision in the following circumstances:

(a)  a modification to the major hazard facility is proposed,

(b)  a control measure implemented under clause 556 does not minimise the relevant risk so far as is reasonably practicable,

Example. An effectiveness test indicates a deficiency in the control measure.

(c)  a new major hazard risk is identified,

(d)  the results of consultation by the operator under Part 9.5 indicate that a review is necessary,

(e)  a health and safety representative requests a review under subclause (4),

(f)  the regulator requires the review.

(3)  In reviewing and revising the emergency plan, the operator must consult with the emergency service organisations referred to in clause 557 (2).

(4)  A health and safety representative for workers at a major hazard facility may request a review if the representative reasonably believes that:

(a)  a circumstance referred to in subclause (2) (a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and

(b)  the operator has not adequately conducted a review in response to the circumstance.

Division 4 Safety case

560   Safety case must be provided

The operator of a determined major hazard facility must provide the regulator with a completed safety case for the major hazard facility, that has been prepared in accordance with clause 561, within 24 months after the facility was determined to be a major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

561   Content

(1)  The operator must prepare the safety case in accordance with the safety case outline prepared or altered under this Division.

(2)  A safety case must contain the following:

(a)  a summary of the identification conducted under clause 554, including a list of all major incidents identified,

(b)  a summary of the safety assessment conducted under clause 555,

(c)  a summary of the major hazard facility’s emergency plan,

(d)  a summary of the major hazard facility’s safety management system,

(e)  a description of any arrangements made in relation to the security of the major hazard facility,

(f)  a description of the consultation with workers that took place under clause 575 in the preparation of the safety case,

(g)  the additional matters specified in Schedule 18.

(3)  The safety case must include any further information that is necessary to ensure that all information contained in the safety case is accurate and up to date.

(4)  A safety case must demonstrate:

(a)  that the major hazard facility’s safety management system will, once implemented, control risks arising from major incidents and major incident hazards, and

(b)  the adequacy of the measures to be implemented by the operator to control risks associated with the occurrence and potential occurrence of major incidents.

(5)  The operator must include in the safety case a signed statement that:

(a)  the information provided under subclauses (1) and (2) is accurate and up to date, and

(b)  as a consequence of conducting the safety assessment, the operator has a detailed understanding of all aspects of risk to health and safety associated with major incidents that may occur, and

(c)  the control measures to be implemented by the operator:

(i)  will eliminate the risk of a major incident occurring, so far as is reasonably practicable, and

(ii)  if it is not reasonably practicable to eliminate the risk of a major incident occurring—will minimise the risk so far as is reasonably practicable, and

(iii)  in the event of a major incident occurring—will minimise its magnitude and the severity of its health and safety consequences so far as is reasonably practicable, and

(d)  all persons to be involved in the implementation of the safety management system have the knowledge and skills necessary to enable them to carry out their role safely and competently.

(6)  If the operator is a body corporate, the safety case must be signed by the most senior executive officer of the body corporate who resides in this jurisdiction.

562   Co-ordination for multiple facilities

(1)  The regulator may require the operators of 2 or more major hazard facilities to co-ordinate the preparation of the safety cases for their major hazard facilities if the regulator is satisfied on reasonable grounds that such co-ordination is necessary in the interests of the safe operation and effective safety management of any or all of those major hazard facilities.

(2)  If the regulator requires the co-ordinated preparation of safety cases, each operator must provide the other operators with information concerning any circumstances at the operator’s facility that could constitute a major incident hazard in relation to any of the other major hazard facilities.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  In complying with this clause, the operator is not required to disclose information that may expose the major hazard facility to a major incident hazard in relation to the security of the major hazard facility.

563   Review

The operator of a determined major hazard facility must review and as necessary revise the major hazard facility’s safety case after any review is conducted under clause 559.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence (see clause 588).

Part 9.4 Licensed major hazard facilities—risk management

Note. This Part applies to a major hazard facility that is licensed under Part 9.7.

564   Identification of major incidents and major incident hazards

(1)  The operator of a licensed major hazard facility must identify:

(a)  all major incidents that could occur in the course of the operation of the major hazard facility, and

(b)  all major incident hazards for the major hazard facility, including major incident hazards relating to the security of the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In complying with subclause (1), the operator must have regard to any advice and recommendations given by:

(a)  the emergency service organisations with responsibility for the area in which the major hazard facility is located, and

(b)  any government department or agency with a regulatory role in relation to major hazard facilities.

(3)  The operator must document:

(a)  all identified major incidents and major incident hazards, and

(b)  the criteria and methods used in identifying the major incidents and major incident hazards, and

(c)  any external conditions under which the major incident hazards, including those relating to the security of the major hazard facility, might give rise to the major incidents.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  All major incidents and major incident hazards identified and documented under clause 554 in relation to the major hazard facility are taken to have been identified and documented under this clause.

565   Safety assessment

The operator of a licensed major hazard facility must keep a copy of the safety assessment documented under clause 555 as revised under Part 9.3 and this Part at the facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

566   Control of risk

(1)  The operator of a licensed major hazard facility must implement risk control measures that:

(a)  eliminate, so far as is reasonably practicable, the risk of a major incident occurring, or

(b)  if it is not reasonably practicable to eliminate that risk—minimise that risk so far as is reasonably practicable.

Note. WHS Act—section 20 (see clause 9).

(2)  The operator of a licensed major hazard facility must implement risk control measures designed to minimise, in the event of a major incident occurring, its magnitude and the severity of its consequences to persons both on-site and off-site.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

567   Emergency plan

(1)  The operator of a licensed major hazard facility must keep a copy of the major hazard facility’s emergency plan prepared under clause 557 as revised under Part 9.3 and this Part at the facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The operator must test the emergency plan in accordance with the recommendations made by the emergency service organisations referred to in clause 557 (2).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The operator must immediately implement the emergency plan if:

(a)  a major incident occurs in the course of the operation of the major hazard facility, or

(b)  an event occurs that could reasonably be expected to lead to a major incident.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The operator must notify the regulator and the emergency service organisations referred to in clause 557 (2) of the occurrence of an incident or event referred to in clause 557 (3) as soon as practicable after the incident or event occurs.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

568   Safety management system

(1)  The operator of a licensed major hazard facility must implement the major hazard facility’s safety management system established under clause 558 as revised under Part 9.3 and this Part.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The operator must use the safety management system as the primary means of:

(a)  ensuring the health and safety of workers engaged or caused to be engaged by the operator and workers whose activities in carrying out work are influenced or directed by the operator while the workers are at work in the operation of the major hazard facility, and

(b)  ensuring that the health and safety of other persons is not put at risk from work carried out as part of the operation of the major hazard facility.

Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence (see clause 588).

569   Review of risk management

(1)  The operator of a licensed major hazard facility must review and as necessary revise the following, in accordance with this clause:

(a)  the safety assessment for the facility in order to ensure the adequacy of the control measures to be implemented by the operator,

(b)  the major hazard facility’s emergency plan,

(c)  the major hazard facility’s safety management system.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  Without limiting subclause (1), the operator must conduct a review and revision in the following circumstances:

(a)  a modification to the major hazard facility is proposed,

(b)  a control measure implemented under clause 566 does not minimise the relevant risk so far as is reasonably practicable,

Example. An effectiveness test indicates a deficiency in the control measure.

(c)  a new major hazard risk is identified,

(d)  the results of consultation by the operator under Part 9.5 indicate that a review is necessary,

(e)  a health and safety representative requests a review under subclause (5),

(f)  the regulator requires the review,

(g)  at least once every 5 years.

(3)  In reviewing and revising the safety assessment, the operator must comply with the requirements set out in clause 555 (2), (3) and (4).

(4)  In reviewing and revising the emergency plan, the operator must consult with the emergency service organisations referred to in clause 557 (2).

(5)  A health and safety representative for workers at a major hazard facility may request a review if the representative reasonably believes that:

(a)  a circumstance referred to in subclause (2) (a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and

(b)  the operator has not adequately conducted a review in response to the circumstance.

570   Safety case—review

The operator of a licensed major hazard facility must review and as necessary revise the safety case after any review is conducted under clause 569.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note. The operator of a licensed major hazard facility is required to notify the regulator of any change in relation to certain information about the licence. See clause 588.

571   Information for visitors

The operator of a licensed major hazard facility must ensure that a person other than a worker who enters the major hazard facility is as soon as practicable:

(a)  informed about hazards at the major hazard facility that may affect that person, and

(b)  instructed in safety precautions the person should take, and

(c)  instructed in the actions the person should take if the emergency plan is implemented while the person is on-site.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

572   Information for local community—general

(1)  The operator of a licensed major hazard facility must ensure the provision of the following information to the local community and the local authority:

(a)  the name and location of the major hazard facility,

(b)  the name, position and contact details of a contact person from whom information may be obtained,

(c)  a general description of the major hazard facility’s operations,

(d)  the means by which the local community will be informed of a major incident occurring,

(e)  the actions, as specified in the major hazard facility’s emergency plan, that members of the local community should take if a major incident occurs,

(f)  a summary of the safety case for the major hazard facility.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The operator must ensure that the information provided under subclause (1) is:

(a)  set out and expressed in a way that is readily accessible and understandable to persons who are not familiar with the major hazard facility and its operations, and

(b)  reviewed and as necessary revised if a modification is made to the major hazard facility, and

(c)  sent in writing to any community or public library serving the local community.

(3)  In complying with subclause (1), the operator is not required to disclose information that may expose the major hazard facility to a major incident hazard in relation to the security of the major hazard facility.

(4)  The operator of a licensed major hazard facility who receives a written request from a person who reasonably believes that the occurrence of a major incident at the major hazard facility may adversely affect his or her health or safety must give that person a copy of the information provided to the local community under this clause.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

573   Information for local community—major incident

(1)  As soon as practicable after a major incident occurs, the operator of the major hazard facility must take all reasonable steps to provide the persons specified in subclause (2) with information about the major incident, including:

(a)  a general description of the major incident, and

(b)  a description of the actions the operator has taken and proposes to take to prevent any recurrence of the major incident or the occurrence of a similar major incident, and

(c)  recommended actions that the local authority and members of the local community should take to eliminate or minimise risks to health and safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The persons to whom information about a major incident must be given are:

(a)  the local community, if a member of the local community was affected by the major incident, and

(b)  the local authority, and

(c)  any government department or agency with a regulatory role in relation to major hazard facilities.

Part 9.5 Consultation and workers’ safety role

574   Safety role for workers

(1)  The operator of a determined major hazard facility must, within the time specified in the safety case outline for the major hazard facility, implement a safety role for the workers at the major hazard facility that enables them to contribute to:

(a)  the identification of major incidents and major incident hazards under clause 554, and

(b)  the consideration of control measures in the conduct of the safety assessment under clause 555, and

(c)  the conduct of a review under clause 559.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The operator of a licensed major hazard facility must implement a safety role for workers at the facility so as to enable them to contribute to the conduct of a review under clause 569.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

575   Operator of major hazard facility must consult with workers

(1)  For the purposes of section 49 (f) of the Act, the operator of a determined major hazard facility must consult with workers at the major hazard facility in relation to the following:

(a)  the preparation of the safety case outline for the major hazard facility,

(b)  the preparation, testing and implementation of the major hazard facility’s emergency plan,

(c)  the establishment and implementation of the major hazard facility’s safety management system,

(d)  the conduct of a review under clause 559,

(e)  the implementation of the workers’ safety role under clause 574 (1),

(f)  the preparation and review of the major hazard facility’s safety case.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  For the purposes of section 49 (f) of the Act, the operator of a licensed major hazard facility must consult with workers at the major hazard facility in relation to the following:

(a)  the testing and implementation of the major hazard facility’s emergency plan,

(b)  the implementation of the major hazard facility’s safety management system,

(c)  the conduct of a review under clause 569,

(d)  the implementation of the workers’ safety role under clause 574 (2),

(e)  a review of the major hazard facility’s safety case.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note. See section 49 of the Act for other consultation duties of a person conducting a business or undertaking.

Part 9.6 Duties of workers at licensed major hazard facilities

576   Duties

(1)  While at work, a worker at a licensed major hazard facility must:

(a)  comply with any procedure imposed by the operator as a control measure in relation to major incidents, including the taking of corrective action under the procedure, and

(b)  comply with any procedure in the emergency plan, including the taking of corrective action under the plan, and

(c)  immediately inform the operator about any circumstance that the worker believes may cause a major incident, and

(d)  inform his or her supervisor about any corrective action taken by the worker.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  A worker is not required to comply with subclause (1) if to do so would risk the health or safety of the worker or of another worker or other person.

Part 9.7 Licensing of major hazard facilities

Division 1 Licensing process

577   Who may apply for a licence

Only an operator of a determined major hazard facility who is taken to be a suitable operator under clause 543 may apply for a major hazard facility licence for that facility.

578   Application for major hazard facility licence

(1)  An application for a major hazard facility licence must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the operator’s name,

(b)  whether or not the operator is a body corporate,

(c)  if the operator conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name,

(d)  any other evidence of the operator’s identity required by the regulator,

(e)  the safety case prepared under Division 4 of Part 9.3,

(f)  if the operator is an individual:

(i)  a declaration as to whether or not the operator has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law, and

(ii)  details of any conviction or finding of guilt declared under subparagraph (i), and

(iii)  a declaration as to whether or not the operator has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law, and

(iv)  details of any enforceable undertaking declared under subparagraph (iii), and

(v)  if the operator has previously been refused a major hazard facility licence under a corresponding WHS law, a declaration giving details of that refusal, and

(vi)  if the operator has previously held a major hazard facility licence under the Act or this Regulation or under a corresponding WHS law, a declaration:

(A)  describing any condition imposed on that licence, and

(B)  stating whether or not that licence had been suspended or cancelled and, if so, whether or not the operator had been disqualified from applying for a major hazard facility licence, and

(C)  giving details of any suspension, cancellation or disqualification,

(g)  if the operator is a body corporate, the information referred to in paragraph (f) in relation to:

(i)  the operator, and

(ii)  each officer of the operator.

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

579   Additional information

(1)  If an application for a major hazard facility licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the operator to provide additional information.

(2)  A request for additional information must:

(a)  specify the date (not being less than 28 days after the request) by which the additional information is to be given, and

(b)  be confirmed in writing.

(3)  If an operator does not provide the additional information by the date specified, the application is to be taken to have been withdrawn.

(4)  The regulator may make more than 1 request for additional information under this clause.

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

580   Decision on application

(1)  Subject to this clause, the regulator must grant a major hazard facility licence if satisfied about the matters referred to in subclause (2).

(2)  The regulator must be satisfied about the following:

(a)  the application has been made in accordance with this Regulation,

(b)  the safety case for the facility has been prepared in accordance with Division 4 of Part 9.3,

(c)  the operator is able to operate the major hazard facility safely and competently,

(d)  the operator is able to comply with any conditions that will apply to the licence.

(3)  The regulator may refuse to grant a major hazard facility licence if it becomes aware of circumstances that satisfy it that the following persons are not suitable persons to exercise management or control over the major hazard facility:

(a)  if the operator is an individual—the operator,

(b)  if the operator is a body corporate—any officer of the body corporate.

(4)  The regulator must refuse to grant a major hazard facility licence if satisfied that the operator, in making the application, has:

(a)  given information that is false or misleading in a material particular, or

(b)  failed to give any material information that should have been given.

(5)  If the regulator decides to grant the licence, it must notify the operator within 14 days after making the decision.

(6)  If the regulator does not make a decision within 6 months after receiving the application or the additional information requested under clause 579, the regulator is taken to have refused to grant the licence applied for.

Note. A refusal to grant a major hazard facility licence (including under subclause (6)) is a reviewable decision (see clause 676).

581   Matters to be taken into account

(1)  For the purposes of clause 580 (3), if the operator is an individual, the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law of which the operator has been convicted or found guilty,

(b)  any enforceable undertaking the operator has entered into under the Act or under a corresponding WHS law,

(c)  in relation to a major hazard facility licence applied for or held by the operator under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the licence, and

(ii)  any condition imposed on the licence, if granted, and the reason the condition was imposed, and

(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,

(d)  the operator’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law,

(e)  any advice or recommendations received from any agency of the Crown with responsibility in relation to national security.

(2)  For the purposes of clause 580 (3), if the operator is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (1), in relation to:

(a)  the body corporate, and

(b)  each officer of the body corporate.

582   When decision is to be made

The regulator must make a decision in relation to an application for a major hazard facility licence within 6 months after receiving the application or the additional information requested under clause 579.

583   Refusal to grant major hazard facility licence—process

(1)  If the regulator proposes to refuse to grant a major hazard facility licence, the regulator must give a written notice to the operator:

(a)  informing the operator of the reasons for the proposed refusal, and

(b)  advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the operator has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and

(b)  whether or not the operator has made a submission—decide whether to grant or refuse to grant the licence, and

(c)  within 14 days after making the decision, give the operator written notice of the decision, including the reasons for the decision.

584   Conditions of licence

(1)  The regulator may impose any conditions it considers appropriate on a major hazard facility licence.

(2)  Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following:

(a)  additional control measures which must be implemented in relation to the carrying out of work or activities under the licence,

(b)  the recording or keeping of additional information,

(c)  the provision of additional information, training and instruction or the giving of specified information, training and instruction to additional persons or classes of persons,

(d)  the provision of additional information to the regulator,

(e)  if the operator is a person conducting a business or undertaking, the additional class of persons who may carry out work or activities on the operator’s behalf.

Notes. 

1   A person must comply with the conditions of a licence (see section 45 of the Act).

2   A decision to impose a condition on a licence is a reviewable decision (see clause 676).

585   Duration of licence

Subject to this Part, a major hazard facility licence takes effect on the day it is granted and, unless cancelled earlier, expires on the day determined by the regulator, which must be not more than 5 years after the day the licence was granted.

585A   Conditions of licence—payment of relevant fee

It is a condition of the major hazard facility licence that the operator of the major hazard facility must pay the relevant fee within 28 days after receiving notice of the fee from the regulator.

586   Licence document

(1)  If the regulator grants a major hazard facility licence, the regulator must issue to the operator a licence document in the form determined by the regulator.

(2)  The licence document must include the following:

(a)  the name of the operator,

(b)  if the operator conducts the business or undertaking under a business name—that business name,

(c)  the location of the major hazard facility,

(d)  any conditions imposed on the licence by the regulator,

(e)  the date on which the licence was granted,

(f)  the expiry date of the licence.

587   Licence document to be available

(1)  The operator of the major hazard facility must keep the licence document available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) does not apply if the licence document is not in the operator’s possession because:

(a)  it has been returned to the regulator under clause 593, and

(b)  the operator has applied for, but has not received, a replacement licence under clause 594.

Division 2 Amendment of licence and licence document

588   Changes to information

(1)  The operator of a licensed major hazard facility must give the regulator written notice of any change to any material particular in any information given at any time by the operator to the regulator in relation to the licence within 14 days after the operator becomes aware of the change.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Example. A change to the quantity of the hazardous chemicals present or likely to be present at the facility.

(2)  Subclause (1) applies whether the information was given in the application for grant or renewal of the licence or in any other circumstance.

589   Amendment imposed by regulator

(1)  The regulator may, on its own initiative, amend a major hazard facility licence, including by amending the licence to:

(a)  vary or delete a condition of the licence, or

(b)  impose a new condition on the licence.

(2)  If the regulator proposes to amend a licence, the regulator must give the operator a written notice:

(a)  setting out the proposed amendment and the reasons for it, and

(b)  advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed amendment.

(3)  After the date specified in a notice under subclause (2), the regulator must:

(a)  if the operator has made a submission in relation to the proposed amendment—consider that submission, and

(b)  whether or not the operator has made a submission—decide:

(i)  to make the proposed amendment, or

(ii)  not to make any amendment, or

(iii)  to make a different amendment that results from consideration of any submission made by the operator, and

(c)  within 14 days after making that decision, give the operator written notice that:

(i)  sets out the amendment if any, and

(ii)  if a submission was made in relation to the proposed amendment—sets out the regulator’s reasons for making the amendment, and

(iii)  specifies the date (being not less than 28 days after the operator is given the notice) on which the amendment, if any, takes effect.

Note. A decision to amend a licence is a reviewable decision (see clause 676).

590   Amendment on application by operator

(1)  The regulator, on application by the operator of a licensed major hazard facility, may amend the major hazard facility licence, including by amending the licence to vary or delete a condition of the licence.

(2)  If the regulator proposes to refuse to amend the licence, the regulator must give the operator a written notice:

(a)  informing the operator of the proposed refusal to amend the licence and the reasons for the proposed refusal, and

(b)  advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.

(3)  After the date specified in a notice under subclause (2), the regulator must:

(a)  if the operator has made a submission in relation to the proposed refusal—consider that submission, and

(b)  whether or not the operator has made a submission—decide:

(i)  to make the amendment applied for, or

(ii)  not to make any amendment, or

(iii)  to make a different amendment that results from consideration of any submission made by the operator, and

(c)  within 14 days after making that decision, give the operator written notice of the decision in accordance with this clause.

(4)  If the regulator makes the amendment applied for, the notice under subclause (3) (c) must specify the date (not being less than 28 days after the operator is given the decision notice) on which the amendment takes effect.

(5)  If the regulator refuses to make the amendment applied for or makes a different amendment, the notice under subclause (3) (c) must:

(a)  if a submission was made in relation to the proposed refusal of the amendment applied for—set out the reasons for the regulator’s decision, and

(b)  if the regulator makes a different amendment:

(i)  set out the amendment, and

(ii)  specify the date (being not less than 28 days after the operator is given the decision notice) on which the amendment takes effect.

Note. A refusal to make the amendment applied for, or a decision to make a different amendment, is a reviewable decision (see clause 676).

591   Minor corrections to major hazard facility licence

The regulator may make minor amendments to a major hazard facility licence, including an amendment:

(a)  to correct an obvious error, or

(b)  to change an address, or

(c)  that does not impose a significant burden on the operator.

592   Regulator to give amended licence document to operator

If the regulator amends a major hazard facility licence and considers that the licence document requires amendment, the regulator must give the operator an amended licence document within 14 days after making the decision to amend the licence.

593   Operator to return licence

If a major hazard facility licence is amended, the operator of the licensed major hazard facility must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

594   Replacement licence document

(1)  The operator of a licensed major hazard facility must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If a licence document for a licensed major hazard facility is lost, stolen or destroyed, the operator may apply to the regulator for a replacement document.

Note. An operator is required to keep the licence document available for inspection (see clause 587).

(3)  An application for a replacement licence document must be made in the manner and form required by the regulator.

(4)  The application must:

(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(5)  The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed.

(6)  If the regulator refuses to issue a replacement licence document, it must give the operator written notice of this decision, including the reasons for the decision, within 14 days after making the decision.

Note. A refusal to issue a replacement licence document is a reviewable decision (see clause 676).

Division 3 Renewal of major hazard facility licence

595   Regulator may renew licence

The regulator may renew a major hazard facility licence on application by the operator.

596   Application for renewal

(1)  An application for renewal of a major hazard facility licence must be made in the manner and form required by the regulator.

(2)  The application must include a copy of the safety case for the major hazard facility as revised under clause 570.

Note. See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

(4)  The application must be made not less than 6 months before the licence to be renewed expires.

597   Licence continues in force until application is decided

If the operator of a licensed major hazard facility applies under clause 596 for the renewal of a major hazard facility licence, the licence is taken to continue in force from the day it would, apart from this clause, have expired until the operator is given notice of the decision on the application.

598   Provisions relating to renewal of licence

For the purposes of this Division:

(a)  clause 579 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and

(b)  clauses 580 (except subclause (6)), 581, 584 and 585 apply as if a reference in clause 580 to the grant of a licence were a reference to the renewal of a licence, and

(c)  clause 583 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence.

Note. A refusal to renew a licence is a reviewable decision (see clause 676).

599   Status of major hazard facility licence during review

(1)  This clause applies if the regulator gives the operator written notice of its decision to refuse to renew the licence.

(2)  If the operator does not apply for an external review, the licence continues to have effect until the last of the following events:

(a)  the expiry of the licence,

(b)  the end of the period for applying for an external review.

(3)  If the operator applies for an external review, the licence continues to have effect until the earlier of the following events:

(a)  the operator withdraws the application for review,

(b)  the Administrative Decisions Tribunal makes a decision on the review.

(4)  The licence continues to have effect under this clause even if its expiry date passes.

Division 4 Transfer of major hazard facility licence

600   Transfer of major hazard facility licence

(1)  The regulator, on the application of the operator of a major hazard facility, may transfer a major hazard facility licence to another person who is to become the operator of the major hazard facility, if satisfied that the proposed operator will achieve a standard of health and safety in the operation of the facility that is at least equivalent to the standard that the current operator has achieved.

(2)  An application must be:

(a)  made in the manner and form required by the regulator, and

(b)  accompanied by the relevant fee.

(3)  The regulator may transfer the licence subject to any conditions that the regulator considers necessary and appropriate to ensure that the new operator will be able to achieve a standard of health and safety in the operation of the facility that is at least equivalent to the standard achieved by the existing operator.

(4)  On the completion of the transfer, the person to whom the licence is transferred becomes the operator of the major hazard facility for the purposes of this Chapter.

(4A)  A transfer of a major hazard facility licence under this clause does not take effect until the person to whom the licence is to be transferred pays the relevant fee.

Notes. 

1   A decision to refuse to transfer a major hazard facility licence is a reviewable decision (see clause 676).

2   See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

Division 5 Suspension and cancellation of major hazard facility licence

601   Cancellation of major hazard facility licence—on operator’s application

(1)  The operator of a licensed major hazard facility may apply to the regulator to cancel the licence.

(2)  An application must be:

(a)  made in the manner and form required by the regulator, and

(b)  accompanied by the relevant fee.

(3)  The regulator must conduct an inquiry into the inventory and operations of the facility before deciding on an application to cancel a licence.

(4)  The regulator must cancel a major hazard facility licence if:

(a)  the quantity of Schedule 15 chemicals present or likely to be present at the facility does not exceed their threshold quantity, and

(b)  it is unlikely that a major incident will occur at the facility.

(5)  If the regulator, under this clause, cancels the licence of a facility that was determined to be a major hazard facility under Part 9.2, the regulator must revoke the determination.

(5A)  A cancellation of a major hazard facility licence under this clause does not take effect until the operator of the licensed major hazard facility pays the relevant fee.

Notes. 

1   A decision to refuse to cancel a licence is a reviewable decision (see clause 676).

2   See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

602   Suspension or cancellation of licence—on regulator’s initiative

(1)  The regulator, on its own initiative, may suspend or cancel a major hazard facility licence if satisfied about 1 or more of the following:

(a)  the operator has failed to ensure that the facility is operated safely and competently,

(b)  the operator has failed to ensure compliance with a condition of the licence,

(c)  the operator, in the application for the grant or renewal of the licence or on request by the regulator for additional information:

(i)  gave information that was false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given in that application or on that request.

(2)  If the regulator suspends or cancels a major hazard facility licence, the regulator may disqualify the operator from applying for a further major hazard facility licence.

Note. A decision to suspend a licence, to cancel a licence or to disqualify the operator from applying for a further licence is a reviewable decision (see clause 676).

603   Matters to be taken into account

(1)  In making a decision under clause 602, the regulator must have regard to the following:

(a)  any submissions made by the operator under clause 604,

(b)  any advice received from a corresponding regulator,

(c)  any advice or recommendations received from any agency of the Crown with responsibility in relation to national security.

(2)  For the purposes of clause 602 (1) (a) and (b), if the operator is an individual, the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law, of which the operator has been convicted or found guilty,

(b)  any enforceable undertaking the operator has entered into under this Act or a corresponding WHS law,

(c)  in relation to a major hazard facility licence applied for or held by the operator under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the licence, and

(ii)  any condition imposed on the licence, if granted, and the reason the condition was imposed, and

(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,

(d)  the operator’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

(3)  For the purposes of clause 602 (1) (a) and (b), if the operator is a body corporate, the regulator must have regard to all relevant matters, including the matters referred to in subclause (2), in relation to:

(a)  the body corporate, and

(b)  each officer of the body corporate.

604   Notice to and submissions by operator

Before suspending or cancelling a major hazard licence, the regulator must give the operator a written notice of the proposed suspension or cancellation and any proposed disqualification:

(a)  outlining all relevant allegations, facts and circumstances known to the regulator, and

(b)  advising the operator that the operator may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification.

605   Notice of decision

(1)  The regulator must give the operator of a major hazard facility written notice of a decision under clause 602 to suspend or cancel the major hazard facility licence within 14 days after making the decision.

(2)  The notice must:

(a)  state that the licence is to be suspended or cancelled, and

(b)  if the licence is to be suspended, state:

(i)  when the suspension begins and ends, and

(ii)  the reasons for the suspension, and

(iii)  whether or not the operator is required to take any action before the suspension ends, and

(iv)  whether or not the operator is disqualified from applying for a further major hazard facility licence during the suspension, and

(c)  if the licence is to be cancelled, state:

(i)  when the cancellation takes effect, and

(ii)  the reasons for the cancellation, and

(iii)  whether or not the operator is disqualified from applying for a further major hazard facility licence, and

(d)  if the operator is disqualified from applying for a further major hazard facility licence, state:

(i)  when the disqualification begins and ends, and

(ii)  the reasons for the disqualification, and

(iii)  whether or not the operator is required to take any action before the disqualification ends, and

(e)  state when the licence document must be returned to the regulator.

606   Immediate suspension

(1)  The regulator may suspend a major hazard facility licence on a ground referred to in clause 602 without giving notice under clause 604 if satisfied that:

(a)  a person may be exposed to an imminent serious risk to his or her health or safety if the work carried out under the major hazard facility licence were not suspended, or

(b)  a corresponding regulator has suspended a major hazard facility licence held by the operator under this clause as applying in the corresponding jurisdiction.

(2)  If the regulator decides to suspend a licence under this clause:

(a)  the regulator must give the operator of the major hazard facility written notice of the suspension and the reasons for the suspension, and

(b)  the suspension of the licence takes effect on the giving of the notice.

(3)  The regulator must then:

(a)  give notice under clause 604 within 14 days after giving the notice under subclause (2), and

(b)  make its decision under clause 602.

(4)  If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period.

(5)  If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 602.

607   Operator to return licence document

An operator, on receiving a notice under clause 605, must return the licence document to the regulator in accordance with the notice.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

608   Regulator to return licence document after suspension

The regulator must return the licence document to the operator within 14 days after the suspension ends.