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SLI 2006 No. 358 Regulations as made
These Regulations, for section 7 of the National Transport Commission Act 2003, set out model legislation in the form of a Bill for an Act that makes provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws and for other purposes.
Administered by: Infrastructure, Transport, Regional Development and Communications
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 44
Registered 19 Dec 2006
Tabling HistoryDate
Tabled HR06-Feb-2007
Tabled Senate06-Feb-2007

National Transport Commission (Model Legislation — Rail Safety Bill) Regulations 20061

Select Legislative Instrument 2006 No. 358

I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the National Transport Commission Act 2003.

Dated 13 December 2006

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

MARK VAILE


 

  

  

1              Name of Regulations

                These Regulations are the National Transport Commission (Model Legislation — Rail Safety Bill) Regulations 2006.

2              Commencement

                These Regulations commence on the day after they are registered.

3              Model legislation — Rail Safety Bill

                For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out model legislation, in the form of a Bill for an Act, about rail safety.

Note 1   The model legislation set out in Schedule 1 does not have the force of law (see paragraph 7 (2) (a) of the NTC Act).

Note 2   These Regulations must be made in accordance with the Agreement (see subparagraph 3 (b) (i) of the NTC Act).

Note 3   These Regulations are not subject to disallowance — see the Legislative Instruments Act 2003, subsection 44 (2) (table, item 44) and the Legislative Instruments Regulations 2004, regulation 8 and Schedule 2 item 7.

Note 4   These Regulations are not subject to sunsetting — see the Legislative Instruments Act 2003, subsection 54 (2) (table, item 51) and the Legislative Instruments Regulations 2004, regulation 9 and Schedule 3 item 4.

Note 5 The text set out in Schedule 1 is that of a draft Bill prepared for the National Transport Commission and approved by the Australian Transport Council on 2 June 2006, but never actually enacted.


Schedule 1    Text of the draft Rail Safety Bill 2006

(regulation 3)

Contents

Introductory note from the National Transport Commission                         2

Part 1                    Preliminary

                        1     Purpose                                                                        10

                        2     Commencement                                                            11

                        3     Objects of Act                                                               11

                        4     Definitions                                                                     11

                        5     Declaration of substance to be a drug                              17

                        6     Railways to which this Act does not apply                        18

                        7     The concept of ensuring safety                                        18

                        8     Rail safety work                                                             19

                        9     Examples [local variations]                                             20

                       10     Notes [local variations]                                                   20

                       11     Crown to be bound                                                         20

Part 2                    Occupational Health and Safety legislation

                       12     Act adds to protection provided by OHS legislation           21

                       13     OHS legislation prevails                                                  21

                       14     Compliance with this Act is no defence to prosecution under OHS legislation.  21

                       15     Relationship between duties under this Act and OHS legislation          22

                       16     No double jeopardy                                                        22

Part 3                    Administration

Division 1                The Rail Safety Regulator

                       17     The Rail Safety Regulator                                               22

                       18     Functions                                                                      22

                       19     Information to be included in annual reports                      23

                       20     Delegation                                                                     23

                       21     Rail Safety Regulator may exercise functions of rail safety officers       24

Division 2                Rail Safety Officers

                       22     Appointment                                                                  24

                       23     Reciprocal powers of rail safety officers                            25

                       24     Identification cards for rail safety officers                          25

                       25     Rail safety officer must not exercise functions without identification card          26

                       26     Display and production of identification card                     26

                       27     Return of identification cards                                           27

Part 4                    Rail Safety

Division 1                General safety duties

                       28     Safety duties of rail transport operators                            27

                       29     Duties of designers, manufacturers, suppliers etc             29

Division 2                Accreditation

                       30     Purpose of accreditation                                                 31

                       31     Accreditation required for railway operations                     31

                       32     Purpose for which accreditation may be granted               32

                       33     Application for accreditation                                            32

                       34     What applicant for accreditation must demonstrate           33

                       35     Rail Safety Regulator may direct applicants to co‑ordinate and co‑operate in applications          34

                       36     Co‑ordination between Rail Safety Regulators                   35

                       37     Determination of application                                            35

                       38     Prescribed conditions and restrictions                              37

                       39     Penalty for breach of condition or restriction                     37

                       40     Annual fees                                                                   37

                       41     Late payment fees                                                         37

                       42     Waiver of fees                                                                37

                       44     Revocation or suspension of accreditation                        38

                       45     Immediate suspension of accreditation                             39

                       46     Keeping and making available documents for public inspection            40

                       47     Application for variation of accreditation                            41

                       48     Where application relates to co‑operative railway operations or operations in another jurisdiction                                                                                    41

                       49     Determination of application for variation                           42

                       50     Prescribed conditions and restrictions                              43

                       51     Rail Safety Regulator may direct amendment of a safety management system 43

                       52     Variation of conditions and restrictions                             43

                       53     Rail Safety Regulator may make changes to conditions or restrictions 44

                       54     Accreditation cannot be transferred or assigned                45

                       55     Sale or transfer of railway operations by accredited person 45

Division 3                Private sidings

                       56     Exemption from accreditation                                          46

Division 4                Safety management

                       57     Safety management system                                           46

                       58     Compliance with safety management system                   48

                       59     Review of safety management system                             49

                       60     Safety performance reports                                             49

                       61     Interface co‑ordination                                                    50

                       62     Security management plan                                             51

                       63     Emergency plan                                                             51

                       64     Health and fitness management program                          52

                       65     Alcohol and drug management program                           52

                       66     Testing for presence of alcohol or drugs                           52

                       67     Fatigue management program                                         53

                       68     Assessment of competence                                            53

                       69     Identification for rail safety workers                                  54

                       70     Duties of rail safety workers                                            54

                       71     Contractors to comply with safety management system    55

Division 5                Information about rail safety etc

                       72     Rail transport operators to provide information                   56

Division 6                Investigating and reporting by rail transport operators

                       73     Notification of notifiable occurrences                                57

                       74     Investigation of notifiable occurrences                              57

Division 7                Audit and inspections by Rail Safety Regulator

                       75     Inspection of railway operations of rail transport operators  58

Part 5                    Enforcement

Division 1                Entry to places by rail safety officers

                       76     Power to enter places                                                     59

                       77     Limitation on entry powers — places used for residential purposes      60

                       78     Notice of entry                                                               60

Division 2                General enforcement powers

                       79     General powers after entering a place                              61

                       80     Use of assistants and equipment                                     62

                       81     Use of electronic equipment                                            62

                       82     Use of equipment to examine or process things                63

                       83     Securing a site                                                              63

Division 3                Search warrants

                       84     Search warrant                                                              64

                       85     Seizure of things not mentioned in the warrant                  65

Division 4                Powers to support seizure

                       86     Directions relating to seizure                                           66

                       87     Rail safety officer may direct a thing’s return                     67

                       88     Receipt for seized things                                                67

                       89     Access to seized thing                                                   67

                       90     Embargo notices                                                            68

Division 5                Forfeiture

                       91     Return of seized things                                                   69

                       92     Forfeiture                                                                       70

                       93     Forfeiture on conviction                                                   71

                       94     Dealing with forfeited sample or thing                               71

Division 6                Directions

                       95     Rail safety officers may direct certain persons to give assistance        71

                       96     Power to direct name and address be given                      72

                       97     Failure to give name or address                                       73

                       98     Power to direct production of documents                          73

                       99     Failure to produce document                                           74

Division 7                Improvement notices

                     100     Improvement notices                                                      74

                     101     Contravention of improvement notice                                76

                     102     Withdrawal or amendment of improvement notices            77

                     103     Proceedings for offences not affected by improvement notices 77

                     104     Rail Safety Regulator to arrange for rail safety work required by improvement notice to be carried out                                                                                    78

Division 8                Prohibition notices

                     105     Prohibition notice                                                           78

                     106     Contravention of prohibition notice                                    80

                     107     Oral direction before prohibition notice served                   80

                     108     Withdrawal or amendment of prohibition notice                 81

                     109     Proceedings for offences not affected by prohibition notices 81

Division 9                Miscellaneous

                     110     Directions may be given under more than one provision     81

                     111     Temporary closing of railway crossings, bridges etc          82

                     112     Restoring rail infrastructure and rolling stock etc to original condition after action taken 82

                     113     Use of force                                                                   83

                     114     Power to use force against persons to be exercised only by police officers       83

                     115     Protection from incrimination                                           83

Part 6                    Review of decisions

                     116     Application of Ombudsman legislation to Rail Safety Regulator and rail safety officers [local variations]                                                                     84

                     117     Reviewable decisions                                                     84

                     118     Review by the Rail Safety Regulator                                 87

                     119     Review by the tribunal [or court – local variations]             88

Part 7                    General liability and evidentiary provisions

Division 1                General

                     120     Proceedings for offences                                                 89

                     121     Period within which proceedings for offences may be commenced       89

                     122     Authority to take proceedings [non‑core provision]             90

                     123     Vicarious responsibility [non‑core provision]                      91

                     124     Records and evidence from records                                 92

                     125     Certificate evidence                                                        93

                     126     Proof of appointments and signatures unnecessary           93

                     127     Multiple offences [non‑core provision]                               93

                     128     Offences by bodies corporate, partnerships, associations and employees [non‑core provision]   94

Division 2                Discrimination against employees

                     129     Dismissal or other victimisation of employee                     95

                     130     Defendant bears onus of proof                                         97

                     131     Order for damages or reinstatement                                 97

Division 3                False or misleading information

                     132     False or misleading information provided to Rail Safety Regulator or officials     97

Division 4                Other offences

                     133     Obstructing or hindering rail safety officers                       99

                     134     Offence to impersonate rail safety officer [non‑core provision] 99

                     135     Not to interfere with train, tram etc                                 100

                     136     Applying brake or emergency device                              100

                     137     Stopping a train or tram                                                100

Division 5                Infringement notices

                     138     Infringement notices                                                     101

                     139     Infringement penalty                                                     101

Division 6                Enforceable voluntary undertakings

                     140     Rail Safety Regulator may accept undertakings              101

                     141     Enforcement of undertakings                                         102

Division 7                Court‑based sanctions

                     142     Fines                                                                          102

                     143     Daily penalty for continuing offences [non‑core provision] 102

                     144     Commercial benefits order [non‑core provision]                103

                     145     Supervisory intervention order [non‑core provision]           105

                     146     Contravention of supervisory intervention order [non‑core provision]       107

                     147     Exclusion orders [non‑core provision]                             107

                     148     Contravention of exclusion order [non‑core provision]       108

Part 8                    General

Division 1                Confidentiality

                     149     Confidentiality                                                              109

Division 2                Civil liability

                     150     Civil liability not affected by Division 1 or 4 of Part 4         110

                     151     Indemnity of persons authorised by Rail Safety Regulator and rail safety officers           110

                     152     Immunity for reporting unfit rail safety worker                   111

Division 3                Compliance codes and guidelines

                     153     Approval of compliance codes and guidelines                  112

                     154     Effect of compliance code                                             113

                     155     Effect of complying with a compliance code                    113

                     156     Disallowance of compliance codes or guidelines             114

Division 4                Miscellaneous

                     157     Recovery of certain costs                                              114

                     158     Recovery of amounts due                                              114

                     159     Compliance with conditions of accreditation                    115

                     160     Prescribed persons                                                      115

                     161     Contracting out prohibited                                             115

                     162     Regulations                                                                 115

Part 9                    Transitional

                     163     Transitional                                                                  117

Part 10                  Consequential amendments

 

 


Introductory note from the National Transport Commission

This Bill is intended to provide model rail safety legislative provisions for nationally consistent implementation in each State and Territory.

The Bill is in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available — for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.

The model provisions may be varied where necessary to conform to local legal policy requirements and legislative drafting practice. Also, some of the model provisions have been classified as ‘non‑core’. These are considered valuable and desirable provisions for inclusion in best practice national rail safety legislation but their implementation in all jurisdictions is not regarded as essential for nationally consistent rail safety outcomes.

Maximum penalty levels for rail safety offences have not been specified in the model Bill due to the need for penalty levels to be consistent with each State’s and Territory’s monetary penalty policy.

A Bill for an Act to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws and for other purposes


Part 1                 Preliminary

  

1              Purpose

                The purpose of this Act is to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws.

Note   This section will provide for the short title or long title as appropriate for each jurisdiction.

2              Commencement

                This Act commences on a day or days to be fixed by proclamation.

Note   Commencement of the Act will be as determined by the jurisdiction.

3              Objects of Act

                Having regard to the importance of rail safety and regulatory efficiency, the objects of this Act are —

                (a)    to provide for improvement of the safe carrying out of railway operations;

               (b)    to provide for the management of risks associated with railway operations;

                (c)    to make special provision for the control of particular risks arising from railway operations;

               (d)    to promote public confidence in the safety of transport of persons or freight by rail.

4              Definitions

                In this Act:

accredited person means a rail transport operator who is accredited under this Act but does not include person whose accreditation under this Act —

                (a)    has been surrendered or revoked or has otherwise ceased to have effect under this Act; or

               (b)    is suspended under this Act;

Australian rail safety law means a rail safety law or a corresponding rail safety law;

Australian Rail Safety Regulator means the Rail Safety Regulator or a corresponding Rail Safety Regulator;

Chief Commissioner of Police has the same meaning as in the Police Regulation Act 1958 [local variations];

commercial benefits order means an order under section 144;

compliance code means a compliance code approved by the Minister under Division 3 of Part 8;

corresponding law means —

                (a)    the law of another jurisdiction corresponding, or substantially corresponding, to this Act; or

               (b)    a law of another jurisdiction that is declared under the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act;

corresponding rail safety law means a rail safety law as defined in a corresponding law;

corresponding Rail Safety Regulator means —

                (a)    the Rail Safety Regulator within the meaning of a corresponding rail safety law (except in the case of a jurisdiction for which a person is prescribed under paragraph (b)); or

               (b)    a person prescribed by the regulations as the corresponding Rail Safety Regulator for another jurisdiction for the purposes of this Act;

drug means —

                (a)    a substance that is a drug for the purposes of this Act by virtue of a declaration under section 5; and

               (b)    any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;

embargo notice means a notice under section 90;

employee means a person employed under a contract of employment or contract of training;

employer means a person who employs one or more other persons under contracts of employment or contracts of training;

exercise includes perform;

function includes power, authority or duty;

Government Gazette [local variations];

guidelines means guidelines approved by the Minister under Division 3 of Part 8;

improvement notice means a notice under section 100;

infringement notice means a notice under Division 5 of Part 7;

jurisdiction means a State or Territory;

notifiable occurrence means an accident or incident associated with railway operations —

                (a)    that has, or could have, caused:

                          (i)    significant property damage; or

                         (ii)    serious injury; or

                         (iii)    death; or

               (b)    that is, or is of a class that is, prescribed by the regulations to be a notifiable occurrence or class of notifiable occurrence;

but does not include an accident or incident, or class of accident or incident, that is prescribed by the regulations not to be a notifiable occurrence;

occupational health and safety legislation means the Occupational Health and Safety Act and regulations under that Act [local variations];

police officer means an officer or member of the police force of Victoria [local variations];

private siding means a siding that is managed, owned or controlled by a person, other than a person who manages the rail infrastructure with which the siding connects or to which it has access, but does not include —

                (a)    a marshalling yard;

               (b)    a crossing loop;

                (c)    a passenger terminal;

               (d)    a freight terminal;

                (e)    a siding, or a siding of a class, prescribed by the regulations not to be a private siding;

prohibition notice means a notice under section 105;

public place means —

                (a)    a place that —

                          (i)    the public is entitled to use; or

                         (ii)    is open to members of the public; or

                         (iii)    is used by the public —

                        whether or not on payment of money; or

               (b)    a place that the occupier allows members of the public to enter, whether or not on payment of money;

rail infrastructure means the facilities that are necessary to enable a railway to operate safely and includes, but is not limited to —

                (a)    railway tracks and associated track structures;

               (b)    service roads, signalling systems, communications systems, rolling stock control systems and data management systems;

                (c)    notices and signs;

               (d)    electrical power supply and electric traction systems;

                (e)    associated buildings, workshops, depots and yards;

                (f)    plant, machinery and equipment:

but does not include:

                (g)    rolling stock; or

                (h)    any facility, or facility of a class, that is prescribed by the regulations not to be rail infrastructure;

rail infrastructure manager, in relation to rail infrastructure of a railway, means the person who has effective management and control of the rail infrastructure, whether or not the person —

                (a)    owns the rail infrastructure; or

               (b)    has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it;

rail safety law means this Act and the regulations or a provision of this Act or the regulations;

rail safety officer means a person appointed by the Rail Safety Regulator as a rail safety officer under Division 2 of Part 3;

Rail Safety Regulator means [local variations];

rail safety work — see section 8;

rail safety worker means a natural person who has carried out, is carrying out or is about to carry out, rail safety work;

rail transport operator means —

                (a)    a rail infrastructure manager; or

               (b)    a rolling stock operator; or

                (c)    a person who is both a rail infrastructure manager and a rolling stock operator;

railway means a guided system, or proposed guided system, designed for the movement of rolling stock having the capability of transporting passengers or freight, or both, on a railway track with a gauge of 600mm or more, together with its rail infrastructure and rolling stock and includes —

                (a)    a heavy railway;

               (b)    a light railway;

                (c)    a monorail;

               (d)    an inclined railway;

                (e)    a tramway;

                (f)    a railway within a marshalling yard or a passenger or freight terminal;

                (g)    a private siding;

                (h)    a guided system, or guided system of a class, prescribed by the regulations to be a railway;

Note   See section 6 for railways to which this Act does not apply.

railway operations means —

                (a)    the construction of a railway, railway tracks and associated track structures or rolling stock;

               (b)    the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure;

                (c)    the commissioning, maintenance, repair, modification or decommissioning of rolling stock;

               (d)    the operation or movement, or causing the operation or movement by any means, of rolling stock on a railway (including for the purposes of construction or restoration of rail infrastructure);

                (e)    the movement, or causing the movement, of rolling stock for the purposes of operating a railway service;

railway premises means —

                (a)    land (including any premises on land) on or in which is situated rail infrastructure;

               (b)    land (including any premises on land) on or in which is situated any over‑track or under‑track structure or part of an over track or under track structure;

                (c)    freight centres or depots used in connection with the carrying out of railway operations;

               (d)    workshops or   maintenance depots used in connection with the carrying out of railway operations;

                (e)    premises including an office, building or housing used in connection with the carrying out of railway operations;

                (f)    rolling stock or other vehicles associated with railway operations;

railway tracks and associated track structures means —

                (a)    railway tracks and associated track structures and works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works);

               (b)    over‑track structures and under‑track structures (including tunnels under tracks);

regulations means regulations under this Act;

relevant concentration of alcohol means the concentration of alcohol present in the breath or blood of a person that is prescribed by the regulations, being zero or a positive amount;

road vehicle [local variations];

rolling stock means a vehicle that operates on or uses a railway and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, self propelled infrastructure maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a vehicle designed to operate both on and off a railway when the vehicle is not operating on a railway;

rolling stock operator means a person who has effective management and control of the operation or movement of rolling stock on rail infrastructure for a particular railway but does not include a person by reason only that the person drives the rolling stock or controls the network or the network signals;

safety means the safety of people, including rail safety workers, passengers, other users of railways and the general public;

safety management plan means a document describing a safety management system;

safety management system see section 57;

security management plan — see section 62;

siding means a portion of railway track, connected by points to a running line or another siding, on which rolling stock can be placed clear of the running line;

substance means substance in any form (whether gaseous, liquid, solid or other) and includes material, preparation, extract and admixture;

supervisory intervention order means an order under section 145;

supply includes —

                (a)    in relation to goods — supply or resupply by way of sale, exchange, lease, hire or hire purchase, whether as principal or agent;

               (b)    in relation to services — provide, grant or confer, whether as principal or agent;

this jurisdiction means [local variations];

train means —

                (a)    two or more units of rolling stock coupled together, at least one of which is a locomotive or other self‑propelled unit; or

               (b)    a unit of rolling stock that is a locomotive or other self propelled unit;

Tribunal means [local variations].

5              Declaration of substance to be a drug

                The Minister, by Order published in the Government Gazette, may declare any substance to be a drug for the purposes of this Act.

Note   Local variations

6              Railways to which this Act does not apply

                This Act does not apply to —

                (a)    a railway in a mine that is underground, or chiefly underground, and that is used in connection with the performance of mining operations;

               (b)    a slipway;

                (c)    a railway used only to guide a crane;

               (d)    an aerial cable operated system;

                (e)    a railway that is operated solely within an amusement or theme park, is required to be registered as an amusement device under occupational health and safety legislation and does not operate on or across a road within the meaning of the Road Safety Act 1986 [local variations];

                (f)    a railway, or class of railway, that the regulations prescribe to be a railway to which this Act does not apply [local variations].

7              The concept of ensuring safety

         (1)   To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety requires the person —

                (a)    to eliminate risks to safety so far as is reasonably practicable; and

               (b)    if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.

         (2)   To avoid doubt, for the purposes of this Act and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety —

                (a)    the likelihood of the risk concerned eventuating;

               (b)    the degree of harm that would result if the risk eventuated;

                (c)    what the person concerned knows or ought reasonably to know, about the risk and any ways of eliminating or reducing the risk;

               (d)    the availability and suitability of ways to eliminate or reduce the risk;

                (e)    the cost of eliminating or reducing the risk.

8              Rail safety work

         (1)   Subject to sub‑section (2), any of the following classes of work is rail safety work for the purposes of this Act —

                (a)    driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock;

               (b)    signalling (and signalling operations), receiving or relaying communications or any other activity which is capable of controlling or affecting the movement of rolling stock;

                (c)    coupling or uncoupling rolling stock;

               (d)    maintaining, repairing, modifying, monitoring, inspecting or testing —

                          (i)    rolling stock, including checking that the rolling stock is working properly before being used; or

                         (ii)    rail infrastructure; or

                (e)    installation of components in relation to rolling stock;

                (f)    work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used;

                (g)    installation or maintenance of —

                          (i)    a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure; or

                         (ii)    the means of supplying electricity directly to rail infrastructure or to any rolling stock using rail infrastructure or to a telecommunications system;

                (h)    work involving certification as to the safety of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock;

                 (i)    work involving the decommissioning of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock;

                (j)    work involving the development, management or monitoring of safe working systems for railways;

               (k)    work involving the management or monitoring of passenger safety on, in or at any railway;

                 (l)    any other work that is prescribed by the regulations to be rail safety work.

         (2)   The following are not rail safety work for the purposes of this Act —

                (a)    any work that involves the driving of a road vehicle or rolling stock on a road or road related area within the meaning of the Road Safety Act 1986 [local variations];

               (b)    any work prescribed by the regulations not to be rail safety work.

9              Examples [local variations]

         (1)   An example (however expressed) in this Act is part of this Act.

         (2)   If this Act includes an example (however expressed) of the operation of a provision of this Act —

                (a)    the example is not exhaustive; and

               (b)    the example does not limit, but may extend, the meaning of the provision.

10            Notes [local variations]

                A note in this Act is explanatory and is not part of this Act.

11            Crown to be bound

                This Act binds the Crown, not only in right of this jurisdiction but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Note   The extent (if any) to which, and manner in which (if appropriate) criminal proceedings may be brought against the Crown will depend on local policy (see Part 7).

Part 2                 Occupational Health and Safety legislation

  

Note   The Occupational Health and Safety Act [local variations] is the main Act that deals with the health, safety and welfare of people at work, including people at work in railway operations. This Division explains how this Act fits with the OHS legislation and creates additional protections, rights and obligations necessary because of the special risks associated with railway operations.  This Act should be read as if it were part of the OHS legislation.  This Part makes it clear that this Act provides for an increase in the standard of protection of people at work in railway operations, in addition to the protection that the OHS legislation provides.

12            Act adds to protection provided by OHS legislation

                If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Act and the regulations made under this Act.

13            OHS legislation prevails

                If a provision of this Act or the regulations made under this Act is inconsistent with a provision of the occupational health and safety legislation, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency.

Note 1   For example, if a provision of this Act deals with a certain matter and a provision of the Occupational Health and Safety Act deals with the same matter and it is impossible to comply with both provisions, then the person must comply with the Occupational Health and Safety Act and not with this Act.  If provisions of both Acts deal with the same matter but it is possible to comply with both provisions, then a person must comply with both Acts.

Note 2   Local variations as to priority of improvement notices and prohibition notices.

14            Compliance with this Act is no defence to prosecution under OHS legislation.

                Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation.

Note   For example, a person may be guilty of an offence under the Occupational Health and Safety legislation in respect of any act or omission that is expressly required or permitted to be done or omitted by or under this Act or the regulations made under this Act.

15            Relationship between duties under this Act and OHS legislation

                Evidence of a relevant contravention of this Act or the regulations made under this Act is admissible in any proceedings for an offence against the occupational health and safety legislation.

16            No double jeopardy

                Where an act or omission constitutes an offence —

                (a)    under this Act or the regulations made under this Act; and

               (b)    under the occupational health and safety legislation —

the offender is not liable to be punished twice in respect of the offence.

Note   This provision is included to make it clear that the double jeopardy provision in the Interpretation of Legislation Act 1984 [local variations] applies.

Part 3                 Administration

Division 1              The Rail Safety Regulator

17            The Rail Safety Regulator

Note   Local variations to establish the Rail Safety Regulator or define another person/body as the Rail Safety Regulator.

18            Functions

         (1)   In addition to any other functions conferred on the Rail Safety Regulator by this Act or the regulations, the Rail Safety Regulator has the following functions —

                (a)    to administer, audit and review the accreditation regime under this Act;

               (b)    to work with rail transport operators, rail safety workers, others involved in railway operations and corresponding Rail Safety Regulators to improve rail safety in this jurisdiction and nationally;

                (c)    to provide information to corresponding Rail Safety Regulators, including information about causal factors of rail incidents, accreditation processes, investigation methods and risk assessment methodologies;

               (d)    to collect and publish information relating to rail safety;

                (e)    to provide, or facilitate the provision of, advice, education and training in relation to rail safety;

                (f)    to monitor, investigate and enforce compliance with this Act.

         (2)   The functions of the Rail Safety Regulator under this Act are in addition to any function that the Rail Safety Regulator has under any other Act or law.

19            Information to be included in annual reports

         (1)   The Rail Safety Regulator must in each annual report relating to a financial year include —

                (a)    information on the development of rail safety including an aggregation of statistics of a prescribed class reported to the Rail Safety Regulator under this Act or the regulations in respect of that year; and

               (b)    information on any improvements and important changes in relation to the regulation of rail safety.

         (2)   Sub‑section (1) is in addition to any other requirement under any other Act or law to make a report or publish information.

Note   The form of this section will differ according to the way in which each jurisdiction deals with annual reporting.

20            Delegation

         (1)   The Rail Safety Regulator may, by instrument in writing, delegate any of the Rail Safety Regulator’s functions under this Act (other than this power of delegation) or under the regulations to a rail safety officer or to any other person.

         (2)   A rail safety officer or other person may, by instrument, delegate to any other person any function delegated to him or her under sub‑section (1).

Note   Local variations to provide detail of the delegation power.

21            Rail Safety Regulator may exercise functions of rail safety officers

         (1)   The Rail Safety Regulator may exercise any function conferred on a rail safety officer by or under this Act or the regulations.

         (2)   Accordingly, in this Act (except this Part) a reference to a rail safety officer includes a reference to the Rail Safety Regulator.

Division 2              Rail Safety Officers

22            Appointment

         (1)   The Rail Safety Regulator, by instrument in writing, may appoint a person, or person of a prescribed class, to be a rail safety officer for a term, and subject to the conditions, specified in the instrument.

Note 1   A person appointed under sub‑section (1) need not be an employee of the Rail Safety Regulator or of a government agency.

Note 2   A person appointed under sub‑section (1) may be a police officer of this jurisdiction or a rail safety officer under a corresponding rail safety law.

         (2)   The Rail Safety Regulator must not appoint a person under sub‑section (1) unless the Rail Safety Regulator is satisfied the person holds appropriate qualifications, or has appropriate experience, to perform the functions of a rail safety officer under this Act.

         (3)   Without limiting the conditions to which the appointment of a rail safety officer may be subject, a condition may specify one or more of the following —

                (a)    functions under this Act or the regulations that may not be exercised by the rail safety officer;

               (b)    the only functions under this Act or the regulations that may be exercised by the rail safety officer;

                (c)    the circumstances or manner in which a function under this Act or the regulations may be performed by the rail safety officer.

23            Reciprocal powers of rail safety officers

         (1)   This section has effect in relation to another jurisdiction while there is in force a corresponding rail safety law that contains provisions corresponding to this section.

         (2)   The Minister may enter into an agreement with a Minister of another jurisdiction for the purposes of this section, including an agreement to amend or revoke any such agreement.

         (3)   To the extent envisaged by such an agreement —

                (a)    rail safety officers of this jurisdiction may, in this jurisdiction or the other jurisdiction, exercise functions conferred on rail safety officers of the other jurisdiction by or under the corresponding rail safety law of that other jurisdiction; and

               (b)    rail safety officers of that other jurisdiction may, in this jurisdiction or that other jurisdiction, exercise functions conferred on rail safety officers by or under this Act.

         (4)   Anything done or omitted to be done by a rail safety officer of this jurisdiction under sub‑section (3) is taken to have been done under this Act as well as under the corresponding rail safety law.

         (5)   The regulations may make provision for or with respect to the exercise of functions under this section.

         (6)   Nothing in this section affects the appointment under section 22 of persons as rail safety officers for the purposes of this Act.

Note   Ancillary provision may be needed to give effect to the intention of this section.

24            Identification cards for rail safety officers

                The Rail Safety Regulator must —

                (a)    issue a rail safety officer with an identification card; or

               (b)    designate a card issued to a rail safety officer by a corresponding Rail Safety Regulator or by a person, body or authority (whether or not of this jurisdiction) as an identification card for the purposes of this Act.

25            Rail safety officer must not exercise functions without identification card

                A rail safety officer must not exercise a function conferred by or under this Act unless an identification card has been issued to, or designated for, the officer by the Rail Safety Regulator.

26            Display and production of identification card

         (1)   This section applies to a rail safety officer who is exercising, or about to exercise, a function under this Act.

         (2)   A rail safety officer must —

                (a)    display his or her identification card if the officer is not wearing an approved uniform or badge; or

               (b)    produce his or her identification card if requested to do so by a person in relation to whom the officer is exercising, or about to exercise, the function.

         (3)   If it is not practical for a rail safety officer to produce his or her identification card on being requested to do so, the rail safety officer must produce his or her identification card as soon as practicable after the request is made.

         (4)   In this section —

approved, in relation to a uniform or badge worn by a rail safety officer, means a uniform or badge approved by the Rail Safety Regulator.

27            Return of identification cards

                A person who has ceased to be a rail safety officer must not, without reasonable excuse, refuse or fail to return to the Rail Safety Regulator, within such period as is specified by the Rail Safety Regulator in a request for return of the card, any identification card issued to the person by the Rail Safety Regulator.

Penalty:

Part 4                 Rail Safety

Note   Local variations for consistency with OHS legislation

Division 1              General safety duties

28            Safety duties of rail transport operators

         (1)   A rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator’s railway operations.

Penalty:   In the case of a natural person

Penalty:   In the case of a body corporate

         (2)   Without limiting sub‑section (1), a rail transport operator contravenes that sub‑section if the operator fails to do any of the following —

                (a)    develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the operator’s railway operations;

               (b)    ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the operator’s railway operations —

                          (i)    is of sufficient good health and fitness to carry out that work safely; and

                         (ii)    is competent to undertake that work;

                (c)    ensure, so far as is reasonably practicable, that rail safety workers do not carry out rail safety work in relation to the operator’s railway operations, and are not on duty, while more than the relevant concentration of alcohol is present in their blood or breath or while impaired by a drug;

               (d)    ensure, so far as is reasonably practicable, that rail safety workers who perform rail safety work in relation to the operator’s railway operations comply with the operator’s fatigue management program in force under section 67;

                (e)    provide, so far as is reasonably practicable, adequate facilities for the safety of persons at any railway premises under the control or management of the operator;

                (f)    provide, so far as is reasonably practicable —

                          (i)    such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator’s railway operations in a way that is safe; and

                         (ii)    such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety.

         (3)   Without limiting sub‑section (1), a rail infrastructure manager contravenes that sub‑section if the manager fails to do any of the following —

                (a)    ensure, so far as is reasonably practicable, that any use, installation, modification, design, construction, commissioning, maintenance or decommissioning of the manager’s rail infrastructure is done or carried out in a way that ensures, so far as is reasonably practicable, the safety of railway operations;

               (b)    establish, so far as is reasonably practicable, such systems and procedures for the scheduling, control and monitoring of railway operations that ensure, so far as is reasonably practicable, the safety of the manager’s railway operations.

         (4)   Without limiting sub‑section (1), a rolling stock operator contravenes that sub‑section if the rolling stock operator fails to do any of the following —

                (a)    provide or maintain rolling stock that, so far as is reasonably practicable, is safe;

               (b)    ensure, so far as is reasonably practicable, that any maintenance, commissioning, modification, construction, repair or cleaning of rolling stock is carried out in a way that, so far as is reasonably practicable, ensures safety;

                (c)    comply, so far as is reasonably practicable, with such rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager’s rail infrastructure by the rolling stock operator;

               (d)    so far as is reasonably practicable, establish and maintain equipment, procedures and systems to minimise risks to the safety of the operator’s railway operations;

                (e)    make arrangements for ensuring, so far as is reasonably practicable, safety in connection with the use, operation and maintenance of the operator’s rolling stock.

         (5)   For the purposes of this section, the duties of a rail transport operator under this section extend to a contractor engaged by the operator, and any employees of the contractor, in relation to matters over which the operator has control or would have control if not for any agreement purporting to limit or remove that control.

Note   Local variations for consistency with OHS legislation.

         (6)   An offence against sub‑section (1) is an indictable offence.

29            Duties of designers, manufacturers, suppliers etc

         (1)   A person who —

                (a)    designs, commissions, manufactures, supplies, installs or erects any thing; and

               (b)    knows, or ought reasonably to know, that the thing is to be used as or in connection with rail infrastructure or rolling stock —

must —

                (c)    ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected; and

               (d)    carry out, or arrange the carrying out, of such testing and examination of the thing as may be necessary for compliance with this section; and

                (e)    take such action as is necessary to ensure, so far as is reasonably practicable, that there will be available in connection with the use of the thing adequate information about —

                          (i)    the use for which the thing was designed, commissioned, manufactured, supplied, installed or erected; and

                         (ii)    the results of any testing or examination referred to in paragraph (d); and

                         (iii)    any conditions necessary to ensure, so far as is reasonably practicable, the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected.

Penalty:   In the case of a natural person —

Penalty:   In the case of a body corporate —

         (2)   A person who decommissions any rail infrastructure or rolling stock must —

                (a)    ensure, so far as is reasonably practicable, that the decommissioning is carried out safely; and

               (b)    carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section.

Penalty:   In the case of a natural person

Penalty:   In the case of a body corporate

         (3)   An offence against sub‑section (1) or (2) is an indictable offence.

         (4)   For the purposes of sub‑section (1), if the person who supplies the thing —

                (a)    carries on the business of financing the acquisition of the thing by customers; and

               (b)    has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and

                (c)    has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer —

the reference in sub‑section (1) to the person who supplies that thing is instead taken to be a reference to the third person.

Division 2              Accreditation

30            Purpose of accreditation

                The purpose of accreditation of a rail transport operator in relation to railway operations is to attest that the rail transport operator has demonstrated to the Rail Safety Regulator the competence and capacity to manage risks to safety associated with those railway operations.

31            Accreditation required for railway operations

                A person must not carry out or cause or permit to be carried out, any railway operations (other than rail safety work) unless the person —

                (a)    is a rail transport operator who —

                          (i)    is accredited under this Part in relation to those operations; or

                         (ii)    is exempt under this Act from compliance with this section in relation to those operations; or

               (b)    is carrying out those operations, or causing or permitting those operations to be carried out, for or on behalf of —

                          (i)    a rail transport operator who is accredited under this Part in relation to those operations; or

                         (ii)    a rail transport operator who is exempt under this Act from compliance with this section in relation to those operations; or

                (c)    is exempt under this Act from compliance with this section in relation to those operations.

Penalty:   In the case of a natural person

Penalty:   In the case of a body corporate

Note   If a body corporate and related bodies corporate are involved, an exemption may be given so that only one of the bodies need be accredited (related body corporate meaning related by virtue of section 50 of the Corporations Act 2001).

32            Purpose for which accreditation may be granted

         (1)   An accreditation may be granted to a rail transport operator for any one or more of the following purposes —

                (a)    for the carrying out of railway operations for the part or parts of a railway designated in the notice of accreditation, or for a part or parts having the scope or characteristics so designated;

               (b)    for any service or aspect, or part of a service or aspect, of railway operations designated in the notice of accreditation;

                (c)    for specified railway operations to permit any one or more of the following —

                          (i)    site preparation;

                         (ii)    construction of rail infrastructure;

                         (iii)    restoration or repair work;

                        (iv)    testing of railway track or other infrastructure;

                         (v)    other activities relating to railway operations considered appropriate by the Rail Safety Regulator and designated in the notice of accreditation.

         (2)   If the applicant so requests, accreditation may be granted for a specified period only.

33            Application for accreditation

         (1)   A rail transport operator may apply to the Rail Safety Regulator for accreditation in respect of specified railway operations carried out, or proposed to be carried out, by, or on behalf of, that operator.

         (2)   An application must be made in the manner and form approved by the Rail Safety Regulator and —

                (a)    must specify the scope and nature of the railway operations in respect of which accreditation is sought; and

               (b)    must include a safety management plan relating to those railway operations; and

                (c)    must include copies of all interface co‑ordination plans in accordance with section 61 relating to those railway operations; and

               (d)    must specify whether or not the applicant is accredited, or has applied for accreditation, under a corresponding law; and

                (e)    must contain the prescribed information; and

                (f)    must be accompanied by the prescribed application fee [local variations].

         (3)   The Rail Safety Regulator may require a rail transport operator who has applied for accreditation —

                (a)    to supply further information requested by the Rail Safety Regulator;

               (b)    to verify by statutory declaration any information supplied to the Rail Safety Regulator.

34            What applicant for accreditation must demonstrate

                The Rail Safety Regulator must not grant accreditation to an applicant unless satisfied, having regard to the guidelines applicable to this section, that the applicant has demonstrated —

                (a)    that the applicant is a rail infrastructure manager or rolling stock operator in relation to the railway operations for which accreditation is sought; and

               (b)    that the applicant has the competence and capacity to manage risks to safety associated with the railway operations for which accreditation is sought; and

                (c)    that the applicant —

                          (i)    has the competence and capacity to implement the proposed safety management system; and

                         (ii)    has the financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the railway operations; and

               (d)    that the applicant has met the consultation requirements of this Act in relation to the applicant’s safety management system; and

                (e)    that the applicant has complied with the requirements prescribed by the regulations (if any) for the purposes of this section.

35            Rail Safety Regulator may direct applicants to co‑ordinate and co‑operate in applications

         (1)   If the Rail Safety Regulator —

                (a)    receives applications from 2 or more rail transport operators for accreditation; and

               (b)    believes that co‑ordinated preparation of the applications is necessary to ensure that the railway operations of the applicants are carried out safely —

the Rail Safety Regulator may give a direction in writing to the rail transport operators to co‑ordinate their applications.

         (2)   A direction under this section may require each rail transport operator that is the subject of the direction to provide to each other rail transport operator that is the subject of the direction information concerning any circumstances in relation to the carrying out of railway operations by the first‑mentioned rail transport operator that could constitute a risk to safety in relation to the carrying out of rail operations by another rail transport operator that is the subject of the direction.

         (3)   A rail transport operator that is given a direction under sub‑section (1) must comply with the direction.

Penalty:   In the case of a natural person

Penalty:   In the case of a body corporate

         (4)   A rail transport operator that has co‑ordinated the preparation of an application in accordance with this section must include in the application reference to information given by the rail transport operator to each other rail transport operator, and information given to the rail transport operator by each other rail transport operator, in accordance with a direction under this section.

Penalty:   In the case of a natural person

Penalty:        In the case of a body corporate

36            Co‑ordination between Rail Safety Regulators

         (1)   This section applies if the Rail Safety Regulator receives an application for accreditation, or for variation of accreditation or the conditions or restrictions of accreditation, that indicates that the applicant is accredited, or is seeking accreditation, under a corresponding law of one or more other jurisdictions (whether or not contiguous with this jurisdiction).

         (2)   The Rail Safety Regulator must, as soon as possible and before deciding whether or not to grant the application, consult with the relevant corresponding Rail Safety Regulator, or Regulators, in relation to the application with a view to the outcome of the application being consistent with the outcome of applications made in the other jurisdiction or jurisdictions.

         (3)   The Rail Safety Regulator, in complying with sub‑section (2), must take into account any guidelines applicable to this section.

         (4)   If the Rail Safety Regulator does not, in relation to an application, act consistently with the provisions of the guidelines, the Rail Safety Regulator must give the applicant reasons for not so acting.

37            Determination of application

         (1)   Subject to this section, the Rail Safety Regulator must give to the applicant, within the relevant period —

                (a)    if the Rail Safety Regulator is satisfied as to the matters referred to in section 34 and, if applicable, section 35, notice in writing in the prescribed form granting accreditation to the applicant with or without any conditions or restrictions; or

               (b)    if the Rail Safety Regulator is not so satisfied, notice in writing refusing the application.

         (2)   A notice under sub‑section (1) granting an application must be in the prescribed form and must specify —

                (a)    the prescribed details of the applicant; and

               (b)    the scope and nature of the railway operations, and the manner in which they are to be carried out, in respect of which the accreditation is granted; and

                (c)    any conditions and restrictions imposed by the Rail Safety Regulator on the grant of accreditation; and

               (d)    any other prescribed information.

         (3)   A notice —

                (a)    under sub‑section (1) refusing an application, or imposing a condition or restriction, must include —

                          (i)    the reasons for the decision to refuse to grant the application or impose the condition or restriction; and

                         (ii)    information about the right of review under Part 6;

               (b)    under sub‑section (4) (c) extending a period, must include information about the right of review under Part 6.

         (4)   In this section, relevant period, in relation to an application, means —

                (a)    6 months after the application was received by the Rail Safety Regulator; or

               (b)    if the Rail Safety Regulator requested further information, 6 months, or such other period, as is agreed between the Rail Safety Regulator and the applicant, after the Rail Safety Regulator receives the last information so requested; or

                (c)    if the Rail Safety Regulator, by notice in writing given to the applicant before the expiry of the relevant 6 months, specifies another period, that period —

whichever is the longer.

38            Prescribed conditions and restrictions

                Accreditation granted to an applicant under this Part is subject to any conditions or restrictions prescribed by the regulations for the purposes of this section and that are applicable to the grant of accreditation.

39            Penalty for breach of condition or restriction

                An accredited person must not fail to comply with a condition or restriction of accreditation applying under this Part.

Penalty:   In the case of a natural person

Penalty:   In the case of a body corporate

40            Annual fees

         (1)   Subject to this Part, an accredited person must pay the annual accreditation fee prescribed by the regulations [local variations for manner of fixing fees].

         (2)   The Rail Safety Regulator may accept payment of an annual accreditation fee due and payable by an accredited person in accordance with an agreement made with the person, whether for payment by instalments or otherwise.

41            Late payment fees

         (1)   The regulations may impose additional fees for late payment of fees after the due date for payment.

         (2)   A fee for late payment of fees may be, but is not required to be, calculated on a daily basis.

42            Waiver of fees

                The Rail Safety Regulator may waive, or refund, the whole or part of any fee payable under this Part.

43            Surrender of accreditation

                An accredited person may, in accordance with the regulations, surrender the person’s accreditation.

44            Revocation or suspension of accreditation

         (1)   This section applies in respect of an accredited person if —

                (a)    the Rail Safety Regulator considers that the accredited person —

                          (i)    is no longer able to demonstrate to the satisfaction of the Rail Safety Regulator the matters referred to in section 34 or to satisfy the conditions of the accreditation; or

                         (ii)    is not managing the rail infrastructure, or is not operating rolling stock in relation to any rail infrastructure, to which the accreditation relates and has not done so for at least the preceding 12 months; or

               (b)    the accredited person contravenes this Act or the regulations.

         (2)   The Rail Safety Regulator —

                (a)    may suspend the accreditation, or part of the accreditation, of the accredited person for a period determined by the Rail Safety Regulator; or

               (b)    may revoke the accreditation of the accredited person wholly, or in respect of particular railway operations specified in the notice, with immediate effect or with effect from a specified future date; or

                (c)    may impose conditions or restrictions on the accreditation; or

               (d)    may vary conditions or restrictions to which the accreditation is subject —

and, if the Rail Safety Regulator revokes the accreditation, the Rail Safety Regulator may declare that the accredited person is disqualified from applying for accreditation, or for accreditation in relation to specified railway operations, during a specified period.

         (3)   Before making a decision under sub‑section (2), the Rail Safety Regulator —

                (a)    must notify the person in writing —

                          (i)    that the Rail Safety Regulator is considering making a decision under sub‑section (2) of the kind, and for the reasons, specified in the notice; and

                         (ii)    that the person may, within 28 days or such longer period as is specified in the notice, make representations to the Rail Safety Regulator showing cause why the decision should not be made; and

               (b)    must consider any representations made under paragraph (a) (ii) and not withdrawn.

         (4)   If the Rail Safety Regulator suspends or revokes the accreditation of the accredited person wholly, or in respect of specified railway operations, the Rail Safety Regulator must include in the notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 6.

         (5)   If the Rail Safety Regulator suspends or revokes the accreditation of a person who is accredited in another jurisdiction, the Rail Safety Regulator must give notice of the suspension or revocation to the relevant corresponding Rail Safety Regulator.

45            Immediate suspension of accreditation

         (1)   If the Rail Safety Regulator considers that there is, or would be, an immediate and serious risk to safety unless an accreditation is suspended immediately, the Rail Safety Regulator may, without complying with section 44 (3) or (4), by written notice given to the accredited person, immediately suspend the accreditation of the person —

                (a)    wholly, or in respect of particular railway operations specified in the notice; and

               (b)    for a specified period, not exceeding 6 weeks.

         (2)   The Rail Safety Regulator may, by notice in writing given to a person whose accreditation is suspended wholly or in part —

                (a)    reduce the period of suspension specified in a notice under sub‑section (1); or

               (b)    extend the period of suspension specified in a notice under sub‑section (1) but not so that the suspension continues for more than 6 weeks after the date of the notice under that sub‑section.

         (3)   The Rail Safety Regulator may withdraw a suspension of the accreditation of a person by written notice given to the person.

         (4)   Before making a decision under sub‑section (2) (b) to extend a period of suspension, the Rail Safety Regulator —

                (a)    must notify the person in writing —

                          (i)    that the Rail Safety Regulator is considering extending the period of suspension for the reasons specified in the notification; and

                         (ii)    that the person may, within 7 days or such longer period as is specified in the notification, make representations to the Rail Safety Regulator showing cause why the suspension should not be extended; and

               (b)    must consider any representations made under paragraph (a) (ii) and not withdrawn.

         (5)   If the Rail Safety Regulator extends the suspension of the person, the Rail Safety Regulator must include in the notice extending the suspension the reasons for the extension and information about the right of review under Part 6.

46            Keeping and making available documents for public inspection

                A rail transport operator must ensure that —

                (a)    the current notice of accreditation or exemption under this Part; and

               (b)    any other document prescribed by the regulations for the purposes of this section —

are available for inspection —

                (c)    if the operator is a body corporate, at the operator’s registered office during ordinary business hours;

               (d)    if the operator is not a body corporate, at the operator’s principal place of business or, if the Rail Safety Regulator approves another place and time, at that place and time.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

47            Application for variation of accreditation

         (1)   An accredited person may apply to the Rail Safety Regulator, in the manner and form approved by the Rail Safety Regulator, for a variation of the accreditation.

         (2)   An application for variation —

                (a)    must specify the details of the variation being sought; and

               (b)    must contain the prescribed information; and

                (c)    must be accompanied by the prescribed application fee [local variations].

         (3)   The Rail Safety Regulator may require an accredited person who has applied for a variation —

                (a)    to supply further information requested by the Rail Safety Regulator;

               (b)    to verify by statutory declaration any information supplied to the Rail Safety Regulator.

48            Where application relates to co‑operative railway operations or operations in another jurisdiction

                Sections 35 and 36 apply to an application for variation as if a reference in those sections to accreditation were a reference to variation of accreditation.

49            Determination of application for variation

         (1)   Subject to this section, the Rail Safety Regulator must, within the relevant period, give to the applicant —

                (a)    if the Rail Safety Regulator is satisfied as to the matters referred to in sections 34 and 35 so far as they are applicable to the proposed variation, notice in writing in the prescribed form varying the accreditation, with or without any conditions or restrictions; or

               (b)    if the Rail Safety Regulator is not so satisfied, notice in writing refusing the application.

         (2)   A notice under sub‑section (1) varying an accreditation must —

                (a)    specify the prescribed details of the applicant; and

               (b)    specify the variation to the accreditation so far as it applies to the scope and nature of the railway operations, or the manner in which they are to be carried out; and

                (c)    specify any conditions and restrictions imposed by the Rail Safety Regulator on the accreditation as varied; and

               (d)    specify any other prescribed information.

         (3)   A notice —

                (a)    under sub‑section (1) refusing an application, or imposing a condition or restriction, must include —

                          (i)    the reasons for the decision to refuse to grant the application for variation or imposing the condition or restriction,; and

                         (ii)    information about the right of review under Part 6;

               (b)    under sub‑section (4) (c) extending a period, must include information about the right of review under Part 6.

         (4)   In this section, relevant period, in relation to an application, means —

                (a)    6 months after the application was received by the Rail Safety Regulator; or

               (b)    if the Rail Safety Regulator requested further information, 6 months, or such other period, as is agreed between the Rail Safety Regulator and the applicant, after the Rail Safety Regulator receives the last information so requested; or

                (c)    if the Rail Safety Regulator, by notice in writing given to the applicant before the expiry of the relevant 6 months, specifies another period, that period —

whichever is the longer.

50            Prescribed conditions and restrictions

                The accreditation of a person that is varied under this Part is subject to any conditions or restrictions prescribed by the regulations and that are applicable to the accreditation as varied.

51            Rail Safety Regulator may direct amendment of a safety management system

         (1)   The Rail Safety Regulator may direct a rail transport operator, by notice in writing, to amend the operator’s safety management system within a specified period, being not less than 28 days after the giving of the direction.

         (2)   A direction under sub‑section (1) must state the reasons why the Rail Safety Regulator considers it is necessary for the rail transport operator to amend the safety management system.

         (3)   The rail transport operator must not, without reasonable excuse, fail to comply with a direction under sub‑section (1).

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

52            Variation of conditions and restrictions

         (1)   An accredited person may apply to the Rail Safety Regulator for a variation of any condition or restriction to which the accreditation is subject and that was imposed by the Rail Safety Regulator.

         (2)   An application for variation of a condition or restriction must be made as if it were an application for accreditation and section 33 applies accordingly.

         (3)   The Rail Safety Regulator must consider the application and may, by notice given to the accredited person and, so far as practicable, in accordance with the provisions of this Part applicable to a grant of accreditation, grant or refuse to grant the variation.

         (4)   A notice under sub‑section (3) refusing to grant a variation of a condition or restriction must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 6.

53            Rail Safety Regulator may make changes to conditions or restrictions

         (1)   The Rail Safety Regulator may, subject to this section, at any time and in the discretion of the Rail Safety Regulator, vary or revoke a condition or restriction imposed by the Rail Safety Regulator to which the accreditation of an accredited person is subject or impose a new condition or restriction.

         (2)   Before taking action under this section, the Rail Safety Regulator must —

                (a)    give the accredited person written notice of the action that the Rail Safety Regulator proposes to take; and

               (b)    allow the accredited person to make written representations about the intended action within 14 days (or any other period that the Rail Safety Regulator and the accredited rail operator agree upon).

         (3)   Sub‑section (2) does not apply if the Rail Safety Regulator considers it necessary to take immediate action in the interests of safety.

         (4)   The Rail Safety Regulator must —

                (a)    give, in writing, to the accredited person —

                          (i)    details of any action taken under sub‑section (1); and

                         (iii)    a statement of reasons for any action taken under sub‑section (1); and

               (b)    notify, in writing, the accredited person that the person has a right of review of the decision under Part 6.

54            Accreditation cannot be transferred or assigned

         (1)   An accreditation —

                (a)    is personal to the person who holds it;

               (b)    is not capable of being transferred or assigned to any other person or otherwise dealt with by the person who holds it;

                (c)    does not vest by operation of law in any other person.

         (2)   A purported transfer or assignment of an accreditation or any other purported dealing with an accreditation by the person who holds it is of no effect.

         (3)   This section has effect despite anything in any Act or rule of law to the contrary.

55            Sale or transfer of railway operations by accredited person

         (1)   If an accredited person proposes to sell or otherwise transfer any railway operations for which the person is accredited, the Rail Safety Regulator may, on an application for accreditation under this Part being made by the proposed transferee, waive compliance by the proposed transferee with any one or more of the requirements of this Division.

         (2)   The Rail Safety Regulator is not to waive compliance with any such requirements unless the proposed transferee demonstrates, to the satisfaction of the Rail Safety Regulator, that the proposed transferee has the competence and capacity to comply with the relevant requirements of this Division that apply to applicants for accreditation of the appropriate kind.

         (3)   A waiver of compliance with requirements may be given subject to such conditions and restrictions (if any) as appear to the Rail Safety Regulator to be necessary.

Division 3              Private sidings

56            Exemption from accreditation

         (1)   A rail infrastructure manager of a private siding is not required to be accredited under this Part in respect of railway operations carried out in the private siding.

         (2)   However, if the rail infrastructure manager wishes the private siding to be (or to continue to be) connected with, or to have access to, a railway or siding of an accredited person, the rail infrastructure manager must —

                (a)    register the private siding with the Rail Safety Regulator and pay the prescribed annual fee; and

               (b)    comply with conditions imposed by the Rail Safety Regulator (from time to time) or prescribed by the regulations with respect to the safe construction, maintenance and operation of the private siding; and

                (c)    comply with the provisions of section 61 in relation to the management of the interface with the railway of the accredited person; and

               (d)    notify the accredited person in writing of any railway operations affecting or relating to the safety of the railway or siding of the accredited person.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Division 4              Safety management

57            Safety management system

         (1)   A rail transport operator must have a safety management system for railway operations carried out on or in relation to the rail transport operator’s rail infrastructure or rolling stock that—

                (a)    is in a form approved by the Rail Safety Regulator; and

               (b)    complies with the relevant prescribed requirements and the prescribed risk management principles, methods and procedures; and

                (c)    identifies and assesses any risks to safety that have arisen or may arise from the carrying out of railway operations on or in relation to the rail transport operator’s rail infrastructure or rolling stock; and

               (d)    specifies the controls (including audits, expertise, resources and staff) that are to be used by the rail transport operator to manage risks to safety and to monitor safety in relation to those railway operations; and

                (e)    includes procedures for monitoring, reviewing and revising the adequacy of those controls; and

                (f)    includes —

                          (i)    interface co‑ordination plans (if any) in accordance with section 61; and

                         (ii)    a security management plan in accordance with section 62; and

                         (iii)    an emergency plan in accordance with section 63; and

                        (iv)    a health and fitness management program in accordance with section 64; and

                         (v)    an alcohol and drug management program in accordance with section 65; and

                        (vi)    a fatigue management program in accordance with section 67.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   A rail transport operator, before establishing a safety management system in relation to railway operations or reviewing or varying any such safety management system, must consult, so far as is reasonably practicable, with —

                (a)    persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the rail transport operator’s railway premises or with the rail transport operator’s rolling stock; and

               (b)    health and safety representatives within the meaning of the occupational health and safety legislation representing any of the persons referred to in paragraph (a); and

                (c)    any union representing any of the persons referred to in paragraph (a); and

               (d)    any other rail transport operator with whom the first‑mentioned operator has an interface co‑ordination plan under section 61 relating to risks to safety of railway operations carried out by or on behalf of either of them; and

                (e)    the public, as appropriate.

Note   Local variations for consistency in accordance with OHS legislation.

         (3)   If the safety management system of a rail transport operator and the safety management system of another rail transport operator who has a plan referred to in sub‑section (2) (d) with the first mentioned rail transport operator, when taken as one system, comply with this Act, both safety management systems are taken to comply with this Act.

         (4)   A safety management system must be evidenced in writing and —

                (a)    must identify each person responsible for preparing any part of the safety management system; and

               (b)    must identify the person, or class of persons, responsible for implementing the system.

58            Compliance with safety management system

         (1)   A rail transport operator must implement the rail transport operator’s safety management system.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   A rail transport operator must not, without reasonable excuse, fail to comply with the rail transport operator’s safety management system for the rail transport operator’s railway operations.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (3)   It is a reasonable excuse if the rail transport operator —

                (a)    complies with the safety management system to the extent practicable while complying with a condition or restriction of accreditation; or

               (b)    demonstrates that compliance with the system in particular circumstances would have increased the likelihood of a notifiable occurrence happening.

         (4)   Sub‑section (3) does not limit the excuses that may be reasonable excuses.

59            Review of safety management system

                A rail transport operator must review the rail transport operator’s safety management system in accordance with the regulations at least once each year or at such other time as is agreed between the rail transport operator and the Rail Safety Regulator.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

60            Safety performance reports

         (1)   A rail transport operator must give the Rail Safety Regulator a safety performance report in respect of each reporting period that —

                (a)    is in a form approved by the Rail Safety Regulator; and

               (b)    complies with the requirements (if any) prescribed by the regulations for the purposes of this section; and

                (c)    contains —

                          (i)    a description and assessment of the safety performance of the rail transport operator’s railway operations; and

                         (ii)    comments on any deficiencies in, and any irregularities in, the railway operations that may be relevant to the safety of the railway; and

                         (iii)    a description of any safety initiatives in relation to the railway operations undertaken during the reporting period or proposed to be undertaken in the next reporting period; and

                        (iv)    any other information or performance indicators prescribed by the regulations for the purpose of this section.

         (2)   A rail transport operator must submit a report in accordance with this section within 6 months after the end of each reporting period.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (3)   In this section,

reporting period means a calendar year or such longer period as is agreed from time to time by the Rail Safety Regulator and the rail transport operator.

61            Interface co‑ordination

         (1)   A rail transport operator —

                (a)    must identify, so far as is reasonably practicable, potential risks to the safety of railway operations carried out by or on behalf of the operator that may be caused, wholly or in part, by railway operations carried out by or on behalf of any other rail transport operator; and

               (b)    in accordance with the regulations, must develop and, where necessary implement, one or more interface co‑ordination plans to minimize or eliminate those risks.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   A rail transport operator must prepare and keep a register of current interface co‑ordination plans.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Note   For interface co‑ordination to have full effect, a corresponding requirement would need to be placed on road authorities and some other authorities — see Part 10

62            Security management plan

                A rail transport operator —

                (a)    must have a security management plan for railway operations carried out by or on behalf of the operator on or in relation to the operator’s rail infrastructure or rolling stock that —

                          (i)    incorporates measures to protect people from theft, assault, sabotage, terrorism and other Crimes Acts of other parties and from other harm; and

                         (ii)    complies with this Act and the regulations; and

               (b)    must ensure that the security management plan is implemented; and

                (c)    must ensure that the appropriate response measures of the security management plan are implemented without delay if a security incident occurs.

63            Emergency plan

         (1)   A rail transport operator must have an emergency plan for railway operations carried out by or on behalf of the operator on or in relation to the operator’s railway operations that complies with sub‑section (2).

         (2)   The emergency plan must —

                (a)    address and include the matters that are prescribed; and

               (b)    be prepared —

                          (i)    in conjunction with emergency services [local variations] and any other person who is prescribed; and

                         (ii)    in accordance with the regulations; and

                (c)    be kept and maintained in accordance with the regulations; and

               (d)    be provided to the emergency services and any other person who is prescribed; and

                (e)    be tested in accordance with the regulations.

         (3)   A rail transport operator must ensure that the appropriate response measures of the emergency management plan are implemented if an emergency occurs.

64            Health and fitness management program

                A rail transport operator must have and implement a health and fitness program for rail safety workers who carry out rail safety work on or in relation to the rail transport operator’s rail infrastructure or rolling stock that complies with the prescribed requirements relating to health and fitness programs.

Penalty:   

65            Alcohol and drug management program

                A rail transport operator must prepare and implement an alcohol and drug management program for rail safety workers who carry out railway operations in relation to the rail transport operator’s rail infrastructure or rolling stock that complies with this Act and the regulations.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Note   Local variations for power to make adequate regulations.

66            Testing for presence of alcohol or drugs

                The Rail Safety Regulator may arrange with a rail transport operator or a person undertaking railway operations on or in relation to the rail transport operator’s rail infrastructure or rolling stock for the testing for the presence of alcohol or any other drug, in accordance with the regulations, of any person on duty for the purpose of carrying out rail safety work.

Note   Local variations for power to make adequate regulations.

67            Fatigue management program

                A rail transport operator must prepare and implement a program, in accordance with the prescribed requirements, for the management of fatigue of rail safety workers who carry out railway operations in relation to the rail transport operator’s rail infrastructure or rolling stock.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

68            Assessment of competence

         (1)   A rail transport operator must assess, or cause to be assessed, the competence of each rail safety worker who is to carry out rail safety work in relation to the rail transport operator’s rail infrastructure or rolling stock by reference to —

                (a)    any applicable units of competence or qualification recognised under the Australian Quality Training Framework within the meaning of the Skilling Australia’s Workforce Act 2005 of the Commonwealth; or

               (b)    if paragraph (a) does not apply, the applicable prescribed provisions.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   For the purposes of sub‑section (1), a certificate purporting to have been issued to a rail safety worker certifying that the worker has certain qualifications is evidence of the competence of the worker.

         (3)   A rail transport operator must ensure that a rail safety worker who is to carry out rail safety work in relation to the rail transport operator’s rail infrastructure or rolling stock meets the relevant prescribed requirements for or with respect to the competence of rail safety workers who carry out rail safety work of that kind.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (4)   Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work.

         (5)   A rail transport operator must maintain records in accordance with the regulations of the competence of rail safety workers who carry out rail safety work on or in relation to the rail transport operator’s rail infrastructure or rolling stock.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

69            Identification for rail safety workers

         (1)   A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to the rail transport operator’s railway operations has a form of identification that is sufficient to enable the type of competence and training of the rail safety worker for that rail safety work to be checked by a rail safety officer.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   A rail safety worker who is carrying out railway safety work must, when requested by a rail safety officer to do so, produce the identification provided in accordance with sub‑section (1) to the rail safety officer.

Penalty:   

70            Duties of rail safety workers

         (1)   A rail safety worker, when carrying out rail safety work must —

                (a)    take reasonable care for his or her own safety; and

               (b)    take reasonable care for the safety of persons who may be affected by the rail safety worker’s acts or omissions; and

                (c)    co‑operate with the rail transport operator with respect to any action taken by the rail transport operator to comply with a requirement imposed by or under this Act or the regulations.

Penalty:   

         (2)   A rail safety worker, when carrying out rail safety work, must not intentionally or recklessly interfere with or misuse anything provided to the worker by the rail transport operator —

                (a)    in the interests of safety; or

               (b)    under this Act or the regulations.

Penalty:   

         (3)   A rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

Penalty:   

         (4)   For the purposes of sub‑section (1) (a) or (b), in determining whether a rail safety worker failed to take reasonable care, regard must be had to what the rail safety worker knew about the relevant circumstances.

         (5)   An offence against sub‑section (1), (2) or (3) is an indictable offence.

Note   However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates’ Court Act 1989) [local variations].

71            Contractors to comply with safety management system

                A person, not being an employee employed to carry out railway operations, who undertakes railway operations on or in relation to rail infrastructure or rolling stock of a rail transport operator must comply with the safety management system of the rail transport operator to the extent that it applies to those railway operations.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Division 5              Information about rail safety etc

72            Rail transport operators to provide information

         (1)   A rail transport operator must provide to the Rail Safety Regulator in a manner and form approved by the Rail Safety Regulator information in accordance with this section and the regulations concerning —

                (a)    measures taken by the rail transport operator to promote rail safety; or

               (b)    other matters relating to rail safety or the accreditation of the rail transport operator —

that the Rail Safety Regulator reasonably requires, including matters relating to the financial capacity or insurance arrangements of the rail transport operator.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   If a rail transport operator fails to comply with a requirement under sub‑section (1) applicable to that person, the Rail Safety Regulator may serve a notice on that operator requiring specified information to be given to the Rail Safety Regulator within 14 days after service of the notice.

         (3)   A rail transport operator must comply with a notice served under sub‑section (2).

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Division 6              Investigating and reporting by rail transport operators

73            Notification of notifiable occurrences

         (1)   A rail transport operator must report to the Rail Safety Regulator or another authority specified by the Rail Safety Regulator within the time, and in the form and manner, prescribed by the regulations, all notifiable occurrences that happen on, or in relation to, the rail transport operator’s railway premises or railway operations.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   Two or more rail transport operators may make a joint report with respect to a notifiable occurrence affecting them.

         (3)   In addition to the matters specified in sub‑section (1), the Rail Safety Regulator may, by notice in writing, require a rail transport operator to report to the Rail Safety Regulator or another authority specified by the Rail Safety Regulator, any other occurrence or type of occurrence which endangers or could endanger the safe operation of any railway operations.

         (4)   The Rail Safety Regulator may require information in a report under this section to be verified by statutory declaration.

74            Investigation of notifiable occurrences

         (1)   The Rail Safety Regulator may, by written notice to a rail transport operator, require the rail transport operator to investigate notifiable occurrences, or any other occurrences that have endangered or that may endanger the safe operation of the railway operations carried out by the rail transport operator.

         (2)   The level of investigation must be determined by the severity and potential consequences of the notifiable occurrence as well as by other similar occurrences and its focus should be to determine the cause and contributing factors, rather than to apportion blame.

         (3)   The rail transport operator must ensure that the investigation is conducted in a manner approved by the Rail Safety Regulator and within the period specified by the Rail Safety Regulator.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (4)   A rail transport operator who has carried out an investigation under this section must report to the Rail Safety Regulator on the investigation within the period specified by the Rail Safety Regulator.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Division 7              Audit and inspections by Rail Safety Regulator

75            Inspection of railway operations of rail transport operators

         (1)   The Rail Safety Regulator —

                (a)    may prepare and implement a program (an audit program) for each year for inspecting the railway operations of rail transport operators; and

               (b)    may inspect the railway operations of a rail transport operator whether or not under an audit program.

         (2)   Without limiting sub‑section (1) (a), an audit program may focus on one or more of the following —

                (a)    particular rail transport operators;

               (b)    particular criteria relating to rail transport operators;

                (c)    particular aspects of rail safety;

               (d)    particular aspects of railway operations.

         (3)   The Rail Safety Regulator must give not less than 24 hours notice in writing to a rail transport operator before inspecting the operator’s railway operations under this section.

         (4)   The regulations may establish procedures for the conduct of audits and inspections under this section, including procedures to ensure the confidentiality of records.

Part 5                 Enforcement

Note   Local variations will apply throughout this Part.

Division 1              Entry to places by rail safety officers

76            Power to enter places

         (1)   A rail safety officer may, for compliance and investigative purposes or in an emergency, enter a place if —

                (a)    the place is a public place and the entry is made when the place is open to the public; or

               (b)    the occupier of the place consents to the entry; or

                (c)    the entry to the place is authorised by a warrant under section 84; or

               (d)    the place is railway premises and the entry is made when the place is —

                          (i)    open for carrying on activities by reason of which the place is railway premises; or

                         (ii)    otherwise open for entry; or

                         (iii)    not open as mentioned in sub‑paragraphs (i) to (ii) but the entry is urgently required to investigate the circumstances of a notifiable occurrence at any time during which railway operations are being carried out or are usually carried out.

         (2)   A rail safety officer who enters railway premises under sub‑section (1) (d) must not unnecessarily impede any activities being conducted at the premises.

         (3)   In this section —

compliance and investigative purposes includes purposes —

                (a)    related to ascertaining whether a rail safety law has been or is being complied with, including whether an offence has been committed against a rail safety law;

               (b)    related to ascertaining whether the terms of, or a condition or restriction of, an accreditation has been or is being complied with.

77            Limitation on entry powers — places used for residential purposes

                Despite anything to the contrary in this Part, the powers of a rail safety officer under this Part in relation to entering a place are not exercisable in respect of any place that is used only for residential purposes except —

                (a)    with the consent of the occupier of the place; or

               (b)    under the authority conferred by a warrant under section 84.

78            Notice of entry

                Before a rail safety officer enters railway premises (not being a public place) under section 76, the rail safety officer must give the occupier of the railway premises reasonable notice of the intention to enter unless —

                (a)    the giving of the notice would be reasonably likely to defeat the purpose for which it is intended to enter the premises;

               (b)    entry to the premises is made with the consent of the occupier of the premises;

                (c)    entry is required in circumstances where the rail safety officer reasonably believes there is an immediate risk to safety because of the carrying out of railway operations at the premises; or

               (d)    entry is authorised by a warrant under section 84.

Division 2              General enforcement powers

79            General powers after entering a place

         (1)   A rail safety officer who enters a place under this Part, may do any of the following —

                (a)    search and inspect any part of the place and any rail infrastructure, rolling stock or road vehicle or any other thing at the place;

               (b)    enter or open, using reasonable force, rail infrastructure, rolling stock, a road vehicle or other thing at the place to examine the structure, rolling stock, road vehicle or other thing;

                (c)    take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or markers;

               (d)    test any part of rail infrastructure or rolling stock (for the purpose of identifying quality or faults);

                (e)    inspect, film, photograph, videotape or otherwise record an image of —

                          (i)    rail infrastructure or rolling stock, or a road vehicle or other thing, at the place;

                         (ii)    a document or record at the place or in rolling stock or a road vehicle at the place;

Note   Record includes information stored or recorded by means of a computer — see local Interpretation of Legislation Act.

                (f)    take, or authorise another person to take, for analysis a thing, or a sample of or from the thing, at the place;

                (g)    seize anything that the rail safety officer suspects on reasonable grounds is connected with an offence against this Act or the regulations or to secure any such thing against interference;

                (h)    mark, tag or otherwise identify rolling stock, a road vehicle or other thing at the place;

                 (i)    take a copy of the whole or any part of a document at the place or in rolling stock or a road vehicle at the place;

                (j)    take all necessary steps to allow a power under paragraphs (a) to (i) to be exercised.

         (2)   A film, photograph, videotape or image taken under sub‑section (1) (e) of rail infrastructure, or of any part of rail infrastructure, is not inadmissible as evidence by reason only of the fact that it includes the likeness of one or more persons if the capturing of that likeness does not appear to have been the main reason for the taking of the film, photograph, videotape or image.

Note   Local variations for powers to demand answers to questions.

80            Use of assistants and equipment

         (1)   A rail safety officer may exercise powers under this Part with the aid of such assistants and equipment as the officer considers reasonably necessary in the circumstances.

         (2)   Powers that may be exercised by a rail safety officer under this Part may be exercised by an assistant authorised and supervised by the officer, but only if the officer considers that it is reasonably necessary in the circumstances that the powers be exercised by an assistant.

81            Use of electronic equipment

         (1)   Without limiting section 79, if —

                (a)    a thing found in or on rolling stock or a road vehicle, or at a place, is, or includes, a disk, tape or other device for the storage of information; and

               (b)    the equipment in or on the rolling stock or road vehicle, or at the place, may be used with the disk, tape or other device —

the rail safety officer, or a person assisting the officer, may operate the equipment to access the information.

         (2)   A rail safety officer, or a person assisting an officer, must not operate or seize equipment for the purpose mentioned in this section unless the officer or person assisting believes on reasonable grounds that the operation or seizure of the equipment can be carried out without damage to the equipment.

82            Use of equipment to examine or process things

         (1)   Without limiting section 80, a rail safety officer exercising a power under this Part may bring to, onto, or into, rolling stock, a road vehicle or a place any equipment reasonably necessary for the examination or processing of things found at, on or in the rolling stock, road vehicle or place in order to determine whether they are things that may be seized.

         (2)   The rail safety officer, or a person assisting the officer, may operate equipment already in or on the rolling stock or road vehicle, or at the place, to carry out the examination or processing of a thing found in or on the rolling stock or road vehicle, or at the place in order to determine whether it is a thing that may be seized, if the officer or person assisting believes on reasonable grounds that —

                (a)    the equipment is suitable for the examination or the processing; and

               (b)    the examination or processing can be carried out without damage to the equipment.

83            Securing a site

         (1)   For the purpose of protecting evidence that might be relevant for compliance or investigative purposes, a rail safety officer may secure the perimeter of any site at a place by whatever means the rail safety officer considers appropriate.

         (2)   A person must not, without the permission of a rail safety officer, enter or remain at, a site the perimeter of which is secured under this section.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (3)   Sub‑section (2) does not apply if the person enters the site, or remains at the site —

                (a)    to ensure the safety of persons; or

               (b)    to remove deceased persons or animals from the site; or

                (c)    to move a road vehicle, or the wreckage of a road vehicle, to a safe place; or

               (d)    to protect the environment from significant damage or pollution.

         (4)   A rail safety officer must not unreasonably withhold a permission referred to in sub‑section (2).

Division 3              Search warrants

84            Search warrant

         (1)   A rail safety officer may apply to a magistrate for the issue of a search warrant in relation to particular railway premises or residential premises if the rail safety officer believes on reasonable grounds that there is, or may be within the next 72 hours, in, or on, railway premises of residential premises a thing or things of a kind that may be evidence of the commission of an offence against a relevant rail safety law.

         (2)   If a magistrate is satisfied that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, in, or on, the railway premises or residential premises evidence of the commission of an offence against a relevant rail safety law, the magistrate may issue a search warrant authorising a rail safety officer named in the warrant and any assistants the rail safety officer considers necessary —

                (a)    to enter the railway premises or residential premises named or described in the warrant; and

               (b)    to search for and seize any thing named or described in the warrant.

         (3)   In addition to any other requirement, a search warrant issued under this section must state —

                (a)    the offence suspected; and

               (b)    the railway premises or residential premises to be searched; and

                (c)    a description of the thing for which the search is to be made; and

               (d)    any conditions to which the warrant is subject; and

                (e)    whether entry is authorised to be made at any time or during stated hours; and

                (f)    a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

         (4)   A search warrant must be issued in accordance with the Magistrates’ Court Act 1989 and in the form set out in the regulation sunder that Act.

         (5)   Despite section 78 of the Magistrates’ Court Act 1989, a search warrant must not authorise a rail safety officer to arrest a person.

         (6)   Subject to any provision to the contrary in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates’ Court Act 1989 extend and apply to warrants under this section.

Note  Local provisions will be required here for the issue of warrants (including telephone warrants) and associated matters. These provisions may also need to deal with evidence uncovered that does not relate to the rail safety law offence or offences covered by the warrant, but which may constitute evidence of another rail safety law offence (or any other kind of offence) (see section 85).

85            Seizure of things not mentioned in the warrant

                A search warrant authorises the rail safety officer executing the warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize any thing which is not of the kind described in the warrant if —

                (a)    the rail safety officer believes, on reasonable grounds, that the thing —

                          (i)    is of a kind which could have been included in a warrant issued under this Division; or

                         (ii)    will afford evidence about the commission of an offence against a relevant rail safety law; and

               (b)    in the case of seizure, the rail safety officer believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the commission of an offence against a relevant rail safety law.

Division 4              Powers to support seizure

86            Directions relating to seizure

         (1)   To enable a thing to be seized under this Part, a rail safety officer may direct the person in control of it —

                (a)    to take it to a specified place within a specified time; and

               (b)    if necessary, to remain in control of it at the specified place for a period specified in the direction.

         (2)   A direction under sub‑section (1) —

                (a)    must be given by signed notice in writing given to the person; or

               (b)    if for any reason it is not practicable to give a signed notice in writing to the person — may be given orally and confirmed by signed notice in writing given to the person as soon as is practicable.

         (3)   A further direction may be made under this section about the thing if it is necessary and reasonable to make the further direction.

Example

A further direction may be that the thing be transported during stated off‑peak hours, be transported along a particular route, or be transported in a particular way.

         (4)   A person given a direction under sub‑section (1) or (3) must comply with that direction unless the person has a reasonable excuse.

Penalty:   

         (5)   Without limiting what may otherwise be a reasonable excuse under sub‑section (4), it is a reasonable excuse for a person in control of a thing not to comply with a direction under sub‑section (1) of (3) if in the all the circumstances, the direction was unreasonable.

         (6)   In this section —

in control, in relation to a thing, means having, or reasonably appearing to a rail safety officer as having, authority to exercise control over the thing.

87            Rail safety officer may direct a thing’s return

         (1)   If a rail safety officer has directed a person to take a thing to a specified place within a specified time under section 86 (1), a rail safety officer may direct the person to return the thing to the place from which it was taken.

         (2)   A person given a direction under sub‑section (1) must comply with that direction unless the person has a reasonable excuse.

Penalty:   

88            Receipt for seized things

         (1)   After a rail safety officer seizes a thing under this Part, the officer must give a receipt for it to the person from whom the thing was seized or the owner of the thing.

         (2)   However, if for any reason it is not practicable to comply with sub‑section (1), the officer must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.

         (3)   The receipt must describe generally the thing seized and its condition.

         (4)   This section does not apply if it would be impracticable or unreasonable to expect the officer to account for the thing, given its condition, nature and value.

89            Access to seized thing

         (1)   Until a seized thing is forfeited or returned, a rail safety officer must allow its owner to inspect it and, if it is a document, to copy it.

         (2)   Sub‑section (1) does not apply if it is impracticable or it would be unreasonable to allow the inspection or copying.

90            Embargo notices

         (1)   This section applies where —

                (a)    a rail safety officer is authorised to seize any record, device or other thing under this Part; and

               (b)    the record, device or other thing cannot, or cannot readily, be physically seized and removed.

         (2)   A rail safety officer may issue an embargo notice under this section.

         (3)   An embargo notice is a notice forbidding the use, movement, sale, leasing, transfer, deletion of information from or other dealing with the record, device or other thing, or any part of it, without the written consent of a rail safety officer or the Rail Safety Regulator.

         (4)   The embargo notice must —

                (a)    be in the form, or contain the particulars, required by the regulations; and

               (b)    list the activities that it forbids; and

                (c)    set out a copy of sub‑section (9).

         (5)   On issuing an embargo notice, a rail safety officer must —

                (a)    cause a copy of the notice to be served on the owner of the record, device or other thing; or

               (b)    if that person cannot be located after all reasonable steps have been taken to do so, affix a copy of the notice to the record, device or other thing in a prominent position.

         (6)   A person must not knowingly do anything that is forbidden by an embargo notice.

Penalty:   

         (7)   A person must not instruct or request another person to do anything that the first mentioned person knows is forbidden by an embargo notice.

Penalty:   

         (8)   It is a defence to a prosecution for an offence against sub‑section (6) to establish that the person charged —

                (a)    moved the record, device or other thing, or part of it, for the purpose of protecting or preserving it; and

               (b)    notified the rail safety officer who issued the embargo notice of the move, and of the new location of the record, device or other thing or part of it, within 48 hours after the move.

         (9)   A person on whom an embargo notice has been served must take reasonable steps to prevent another person from doing anything forbidden by the embargo notice.

Penalty:   

       (10)   Despite anything to the contrary in any other Act or at law, a sale, lease, transfer or other dealing with a record, device or other thing, or part of it, in contravention of this section is void.

Division 5              Forfeiture

91            Return of seized things

         (1)   As soon as possible after a rail safety officer seizes any thing (including a document) under this Part, the rail safety officer must return the thing to the owner unless —

                (a)    the rail safety officer considers it necessary to retain the thing because it may afford evidence in proceedings, that have been or may be commenced, for an offence against this Act or the regulations; or

               (b)    the thing is forfeited to the Crown under section 92; or

                (c)    the rail safety officer is otherwise authorised (by law or an order of a court) to retain, destroy or dispose of the thing.

         (2)   The thing may be returned either unconditionally or on such terms and conditions as the rail safety officer considers appropriate to eliminate or reduce any risks to safety.

         (3)   If the rail safety officer imposes terms or conditions on the return of a thing, the owner must comply with each of those terms and conditions.

Penalty:   

92            Forfeiture

         (1)   A sample or thing taken for analysis or a thing seized under this Part, is forfeited to the Crown if the rail safety officer who took, or arranged the taking of, the sample or thing or who seized the thing —

                (a)    after making reasonable efforts, cannot return it to its owner; or

               (b)    after making reasonable inquiries, cannot find its owner; or

                (c)    considers it necessary to retain the sample or thing to prevent the commission of an offence against this Act or the regulations.

         (2)   For purposes of sub‑section (1), the officer is not required to —

                (a)    make efforts if it would be unreasonable to make efforts to return the sample or thing to its owner; or

               (b)    make inquiries if it would be unreasonable to make inquiries to find the owner.

         (3)   In deciding whether —

                (a)    it is reasonable to make efforts or inquiries; and

               (b)    if efforts or inquiries are made, what efforts or inquiries, including the period over which they are made, are reasonable —

regard must be had to the sample’s or thing’s condition, nature and value.

         (4)   In this section —

owner, in relation to a sample or a thing taken for analysis, includes the person in charge of the thing or place from which the sample or thing was taken.

93            Forfeiture on conviction

Note    Local Acts relating to confiscation on conviction will apply.

94            Dealing with forfeited sample or thing

         (1)   On forfeiture of a sample or thing to the Crown, the sample or thing becomes the Crown’s property and may be dealt with by the Rail Safety Regulator in any way the Rail Safety Regulator considers is appropriate.

         (2)   Without limiting sub‑section (1), the Rail Safety Regulator may destroy or dispose of the sample or thing.

Note   Local variations if the Rail Safety Regulator does not represent the Crown in a particular jurisdiction.

         (3)   If a thing is forfeited to the Crown under section 92 (1) (c), the rail safety officer must notify (in writing) the owner accordingly, setting out how the owner may seek review under Part 6 of the decision to forfeit the thing, unless the rail safety officer cannot find the owner despite making reasonable enquiries.

Division 6              Directions

95            Rail safety officers may direct certain persons to give assistance

         (1)   A rail safety officer may direct a rail transport operator or a rail safety worker to give the rail safety officer reasonable assistance to enable the officer to exercise a power under this Part.

Example

When inspecting rolling stock, a rail safety officer may ask the driver of the rolling stock to accompany the officer or to explain how a piece of equipment is used as part of the accredited person’s approved safety management system for the railway or for the operation of rolling stock on the railway.

         (2)   When giving a direction to a person under sub‑section (1), the rail safety officer must warn the person that it is an offence to fail to comply with the direction unless the person has a reasonable excuse.

         (3)   A person given a direction under sub‑section (1) must comply with the direction unless the person has a reasonable excuse.

Penalty:   

         (4)   In this section —

reasonable assistance includes —

                (a)    assistance to enable the rail safety officer to find and gain access to electronically stored material and information;

               (b)    unloading rolling stock;

                (c)    running the engine of a locomotive;

               (d)    driving a train;

                (e)    giving the rail safety officer assistance to enter any rail infrastructure or any part of rail infrastructure or open rolling stock or any part of rolling stock.

96            Power to direct name and address be given

         (1)   A rail safety officer may direct a person to state the person’s name and residential or business address if the officer —

                (a)    finds the person committing an offence against a rail safety law; or

               (b)    finds the person in circumstances that lead, or has information that leads, the officer reasonably to suspect the person has committed an offence against a rail safety law; or

                (c)    finds the person at railway premises and —

                          (i)    reasonably believes the person is carrying out railway operations for a rail transport operator; and

                         (ii)    reasonably considers that it is necessary for the purposes of this Act or the regulations to know the person’s name and residential or business address.

         (2)   When giving a direction under sub‑section (1), the officer must warn the person it is an offence to fail to state the person’s name or address unless the person has a reasonable excuse.

         (3)   The officer may also direct the person to give evidence of the correctness of the stated name or required address if the officer reasonably suspects the stated name or address is false.

97            Failure to give name or address

                A person given a direction under section 96 (1) or (3) must comply with the direction, unless the person has a reasonable excuse.

Penalty:   

98            Power to direct production of documents

         (1)   A rail safety officer may direct a person to make available for inspection by the officer, or produce to the officer for inspection, at a specified time and place —

                (a)    a document that is required to be kept by the person under a rail safety law; or

               (b)    a document that is prepared by the person under a rail safety law for the management of rail infrastructure or the operation of rolling stock that the officer reasonably believes is necessary for the officer to consider to understand or verify a document that is required to be kept under a rail safety law; or

                (c)    a document held by, or under the control of, the person relating to the carrying out of railway operations.

Example

A safety management system may require testing of equipment as part of a scheduled maintenance program and a record of the results of the test to be kept. If an item of equipment is tested in accordance with the safety management system, the document that states the results of the test is a document prepared under the safety management system.

         (2)   When giving a direction under subsection (1), the rail safety officer must warn the person it is an offence to fail to comply with the direction, unless the person has a reasonable excuse.

         (3)   The rail safety officer may keep the document to copy it but must return the document to the person after copying it.

99            Failure to produce document

                A person given a direction to make available, or produce, for inspection a document under section 98 must comply with the direction, unless the person has a reasonable excuse.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Division 7              Improvement notices

100         Improvement notices

         (1)   A rail safety officer may serve an improvement notice on a person if the officer believes on reasonable grounds that   the person —

                (a)    is contravening a provision of a rail safety law; or

               (b)    has contravened a provision of a rail safety law and it is likely that the contravention will continue or be repeated; or

                (c)    is carrying out or has carried out railway operations that threaten safety.

         (2)   The rail safety officer may serve on a person an improvement notice requiring the person, within the period specified in the notice —

                (a)    to undertake remedial rail safety work or do any other thing to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention; or

               (b)    to carry out railway operations so that safety is not threatened or likely to be threatened.

         (3)   The period within which a person is required by the improvement notice to comply with the notice must be at least 7 days after service of the notice.

         (4)   An improvement notice must —

                (a)    state the reasons for the service of the notice; and

               (b)    in the case of an improvement notice served in respect of a contravention or likely contravention of a rail safety law, specify the provision of the rail safety law in respect of which that belief is held; and

                (c)    in the case of an improvement notice served on a person who is carrying out or has carried out railway operations that threaten safety, specify the operations in respect of which that belief is held; and

               (d)    include information about the right to a review under Part 6 of the decision to serve the notice; and

                (e)    set out the penalty for contravening the notice; and

                (f)    include a statement of the effect of section 103 (proceedings for offences not affected by improvement notices); and

                (g)    state that it is served under this section.

         (5)   An improvement notice served on a person on a ground stated in sub‑section (1) (a) or (b) —

                (a)    may specify a method by which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention are to be remedied; and

               (b)    may offer the person on whom the notice has been served a choice of ways by which an alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention may be remedied; and

                (c)    may specify that a person provide the Rail Safety Regulator with a program of rail safety work that the person proposes to carry out to remedy the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention.

         (6)   An improvement notice served on a person on the ground stated in sub‑section (1) (c) —

                (a)    may specify a method by which railway operations may be carried out so that safety is not threatened or likely to be threatened; and

               (b)    may offer the person on whom the notice has been served a choice of ways by which railway operations may be carried out so that safety is not threatened or likely to be threatened;

                (c)    may specify that the person provide the Rail Safety Regulator with a program of railway operations that the person proposes to carry out to remedy the threat or likely threat to the safety.

         (7)   A program referred to in sub‑section (5) (c) or (6) (c) may include a timetable for the completion of the program of rail safety work.

101         Contravention of improvement notice

         (1)   A person on whom an improvement notice has been served must comply with the notice unless the person has a reasonable excuse.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   In proceedings against a person for an offence of engaging in conduct that results in a contravention of a requirement of an improvement notice served on a ground stated in section 100 (1) (a) or (b), it is a defence if the person charged establishes that —

                (a)    the alleged contravention or likely contravention; or

               (b)    the matters or activities occasioning the alleged contravention or likely contravention —

were remedied within the period specified in the notice, though by a method different from that specified in the improvement notice.

         (3)   In proceedings for an offence against a person of engaging in conduct that results in a contravention of a requirement of an improvement notice on the ground stated in section 100 (1) (c), it is a defence if the person charged establishes that the threat to safety was removed within the period specified in the notice, though by a method different from that specified in the improvement notice.

102         Withdrawal or amendment of improvement notices

         (1)   An improvement notice served by a rail safety officer —

                (a)    may be withdrawn by notice served by a rail safety officer on the person affected by the notice;

               (b)    may be amended by any rail safety officer by notice served on the person affected by the notice.

         (2)   An amendment of an improvement notice is effected by service on the person affected of a notice stating the terms of the amendment.

         (3)   An amendment of an improvement notice served on a person is ineffective if it purports to deal with a contravention of a different provision of a rail safety law from that dealt with in the improvement notice as first served.

         (4)   A notice of an amendment of an improvement notice must —

                (a)    state the reasons for the amendment; and

               (b)    include information about obtaining a review under Part 6 of the decision to amend the notice; and

                (c)    state that it is served under this section.

103         Proceedings for offences not affected by improvement notices

                The service, amendment or withdrawal of an improvement notice does not affect any proceedings for an offence against a rail safety law in connection with any matter in respect of which the improvement notice was served.

104         Rail Safety Regulator to arrange for rail safety work required by improvement notice to be carried out

         (1)   If a person fails to comply with an improvement notice served on the person that requires the person to carry out rail safety work to remedy —

                (a)    the alleged contravention or likely contravention; or

               (b)    the matters or activities occasioning the alleged contravention or likely contravention —

the Rail Safety Regulator may arrange for that rail safety work to be carried out.

         (2)   The Rail Safety Regulator may recover from the person served with an improvement notice referred to in sub‑section (1) the reasonable costs and expenses incurred by the Rail Safety Regulator for rail safety work carried out.

Division 8              Prohibition notices

105         Prohibition notice

         (1)   This section applies if an activity —

                (a)    is occurring in relation to railway operations or railway premises that involves or will involve an immediate risk to safety; or

               (b)    may occur in relation to railway operations or railway premises that, if it occurs, will involve an immediate risk to safety; or

                (c)    may occur at, on, or in the immediate vicinity of, rail infrastructure or rolling stock that, if it occurs, will involve an immediate risk to safety.

         (2)   If a rail safety officer believes on reasonable grounds that an activity referred to in sub‑section (1) is occurring or may occur, the rail safety officer may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until the rail safety officer has certified in writing that the matters that give or will give rise to the risk have been remedied.

         (3)   A prohibition notice has effect upon being served or, if the notice specifies a later date, on that later date.

         (4)   A prohibition notice must —

                (a)    state the basis for the rail safety officer’s belief on which the service of the notice is based; and

               (b)    specify the activity which the rail safety officer believes involves or will involve the risk and the matters which give or will give rise to the risk; and

                (c)    if the rail safety officer believes that the activity involves a contravention or likely contravention of a provision of a rail safety law, specify that provision and state the basis for that belief; and

               (d)    include information about the right to a review under Part 6 of the decision to serve the notice; and

                (e)    set out the penalty for contravening the notice; and

                (f)    include a statement of the effect of section 109 (proceedings for offences not affected by prohibition notices); and

                (g)    state that it is served under this section.

         (5)   A prohibition notice may include directions on the measures to be taken to minimise or eliminate the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in sub‑section (4) (c).

         (6)   A direction in a prohibition notice may —

                (a)    require that measures be taken in accordance with a compliance code; or

               (b)    offer the person on whom the notice has been served a choice of ways to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in sub‑section (4) (c).

         (7)   A prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following —

                (a)    a place, or part of a place, at which the activity is not to be carried out;

               (b)    any thing that is not to be used in connection with the activity;

                (c)    any procedure that is not to be followed in connection with the activity.

106         Contravention of prohibition notice

                A person on whom a prohibition notice is served must comply with the notice unless the person has a reasonable excuse.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

107         Oral direction before prohibition notice served

         (1)   If a rail safety officer —

                (a)    believes on reasonable grounds that an activity referred to in section 105 (1) is occurring or may occur; and

               (b)    that it is not possible or reasonable to serve a prohibition notice under that section immediately —

the officer may direct a person who has or appears to have control over the activity to do or not to do a stated act by telling the person —

                (c)    to do or not to do the stated act; and

               (d)    the reason for the officer giving the direction.

         (2)   A person to whom a direction is given under sub‑section (1) must comply with it, unless the person has a reasonable excuse.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (3)   It is a reasonable excuse if the rail safety officer did not tell the person that the person commits an offence if the person does not comply with the direction.

         (4)   If a rail safety officer gives a direction under sub‑section (1) in respect of an activity but does not, within 5 days of giving the direction, serve a prohibition notice in respect of the activity, the direction ceases to have effect.

108         Withdrawal or amendment of prohibition notice

         (1)   A prohibition notice served by a rail safety officer —

                (a)    may be withdrawn by notice served by a rail safety officer on the person affected by the notice;

               (b)    may be amended by notice served by a rail safety officer on the person affected by the notice.

         (2)   An amendment of a prohibition notice is effected by service on the person affected of a notice stating the terms of the amendment.

         (3)   An amendment of a prohibition notice is ineffective if it purports to deal with a contravention of a different provision of a rail safety law from that dealt with in the prohibition notice as first served.

         (4)   A notice of an amendment of a prohibition notice must —

                (a)    state the reasons for the amendment; and

               (b)    include information about obtaining a review of the decision to amend the notice; and

                (c)    state that it is served under this section.

109         Proceedings for offences not affected by prohibition notices

                The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a rail safety law in connection with any matter in respect of which the prohibition notice was served.

Division 9              Miscellaneous

110         Directions may be given under more than one provision

         (1)   A rail safety officer may, on the same occasion, give directions under one or more provisions of this Part.

         (2)   Without limiting sub‑section (1), a rail safety officer may, in the course of exercising powers under a provision of this Part, give —

                (a)    further directions under the provision; or

               (b)    directions under one or more other provisions of this Part —

or both.

111         Temporary closing of railway crossings, bridges etc

         (1)   An authorised person may close temporarily or regulate a railway crossing, bridge or other structure for crossing or passing over or under a railway if satisfied it is necessary because of an immediate threat to safety.

         (2)   If an authorised person decides to close temporarily or regulate a railway crossing, bridge or other structure the authorised person must, as soon as practicable after its closure or regulation, notify the person or authority responsible for the railway crossing, bridge or other structure of its closure or regulation.

         (3)   In this section —

authorised person means a person who holds a specific authority from the Rail Safety Regulator for the purposes of this section;

railway crossing means a level crossing, bridge or another structure used to cross over or under a railway.

112         Restoring rail infrastructure and rolling stock etc to original condition after action taken

                If —

                (a)    a rail safety officer, or a person assisting the officer, takes any action in the exercise or purported exercise of any power under this Part in relation to rail infrastructure or rolling stock, railway premises or a road vehicle; and

               (b)    damage was caused by the unreasonable exercise of the power or by the use of force that was not authorised under this Part —

the rail safety officer must take reasonable steps to return the rail infrastructure or rolling stock, railway premises or road vehicle to the condition it or they were in immediately before the action was taken.

113         Use of force

                A power conferred by this Part to enter any railway premises, or to do anything in or on any railway premises, may not be exercised unless the rail safety officer or a person assisting an officer proposing to exercise the power, uses no more force than is reasonably necessary to effect the entry or to do the thing for which the entry is effected.

114         Power to use force against persons to be exercised only by police officers

                A provision in this Part that authorises a rail safety officer, or a person assisting an officer, to use reasonable force does not authorise a rail safety officer, or a person, who is not a police officer to use force against another person.

115         Protection from incrimination

         (1)   A natural person is not excused from complying with a direction under Division 4 or 6 —

                (a)    to give his or her name and residential or business address; or

               (b)    to produce a document; or

                (c)    to give or provide information —

on the ground that compliance with the direction may result in information being provided that might incriminate the person or may make the person liable to a penalty.

         (2)   However, any information obtained or document produced as a direct result of the compliance with the direction is not admissible in evidence against the person in criminal proceedings, other than proceedings in respect of false information, or proceedings that may make the person liable to a penalty —

                (a)    if the person claims before giving the information or producing the document that it might incriminate the person or make the person liable to a penalty; or

               (b)    if the person’s entitlement to make a claim of the kind referred to in paragraph (a) was not drawn to the person’s attention before the information was given or the document was produced.

         (3)   Except as provided in sub‑section (2), any information given, or document produced, by a natural person as a direct result of the compliance with the direction may be used in evidence in any criminal or civil proceedings against the person.

Part 6                 Review of decisions

  

116         Application of Ombudsman legislation to Rail Safety Regulator and rail safety officers [local variations]

                The Ombudsman Act 1973 applies to the Rail Safety Regulator as if —

                (a)    the Rail Safety Regulator were a public statutory authority within the meaning of that Act; and

               (b)    rail safety officers exercising functions under this Act were employees of the Rail Safety Regulator.

117         Reviewable decisions

         (1)   The following table sets out —

                (a)    decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions); and

               (b)    who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision).

         (2)   To avoid doubt, sections 4, 5 and 50 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of this Act [local variations].

Note   Under section 4 of that Act, a person makes a decision if the person refuses to make a decision or an instrument, imposes a condition or restriction or does or refuses to do any other act or thing. Section 5 of that Act sets out when a person’s interests are affected by a decision. Section 50 of that Act provides that a proceeding for review of a decision does not affect the operation of the decision unless the Tribunal makes an order under that section staying its operation.

 

Item

Provision under which reviewable decision is made

Eligible person in relation to reviewable decision

1

Section 36 (3) (Rail Safety Regulator not acting in accordance with guidelines)

A rail transport operator who has applied for accreditation.

2

Section 37 (1) (refusal to accredit or imposing conditions or restrictions on accreditation)

A rail transport operator whose application for accreditation is refused or is subject to conditions or restrictions.

3

Section 37 (extending the period for determining an application)

A rail transport operator who has applied for accreditation.

4

Section 44 (revocation or suspension of accreditation)

A rail transport operator whose accreditation is revoked or suspended.

5

Section 45 (1) (immediate suspension)

A rail transport operator whose accreditation is suspended.

6

Section 45 (extension of immediate suspension)

A rail transport operator whose accreditation is suspended.

7

Section 49 (1) (refusal to grant variation of accreditation or imposing a condition or restriction)

A rail transport operator whose application for variation of accreditation is refused.

8

Section 49 (2) (grant of variation of accreditation subject to conditions or restrictions)

A rail transport operator whose accreditation is varied subject to a condition or restriction.

9

Section 49 (extending the period for determining an application for variation)

A rail transport operator who has applied for variation of accreditation.

10

Section 51 (1) (direction to amend safety management plan)

A rail transport operator given a direction to amend a safety management system.

11

Section 52 (3) (refusal to grant variation of condition or restriction of accreditation)

A rail transport operator whose application for variation of a condition or restriction is refused.

12

Section 53 (variation or revocation of a condition or restriction, or imposition of a new condition or restriction)

A rail transport operator whose conditions or restrictions of accreditation are changed.

13

Section 92 (1) (c) (retention of sample or seized thing to prevent commission of offence)

A person who is the owner within the meaning of section 92 (4) of the sample or thing.

14

Section 100 (1) (decision to serve an improvement notice)

A person on whom an improvement notice is served.

15

Section 102 (1) (decision to amend improvement notice)

A person on whom a notice of amendment of an improvement notice is served.

16

Section 105 (2) (decision to serve a prohibition notice)

A person on whom a prohibition notice is served.

17

Section 108 (1) (decision to amend a prohibition notice)

A person on whom a notice of amendment of a prohibition notice is served.

118         Review by the Rail Safety Regulator

         (1)   An eligible person —

                (a)    in relation to a reviewable decision made by the Rail Safety Regulator may, within 28 days after the decision was made, apply to the Rail Safety Regulator for a review of the decision;

               (b)    in relation to a reviewable decision, other than a decision made by the Rail Safety Regulator, may apply to the Rail Safety Regulator for review of the decision within —

                          (i)    28 days after the day on which the decision first came to the eligible person’s notice; or

                         (ii)    such longer period as the Rail Safety Regulator allows.

         (2)   The application must be in the form approved (in writing) by accordance with this section, the Rail Safety Regulator must make a decision —

                (a)    to affirm or vary the reviewable decision; or

               (b)    to set aside the reviewable decision and substitute another decision that the Rail Safety Regulator considers appropriate.

         (3)   If an application is made to the Rail Safety Regulator in accordance with this section, the Rail Safety Regulator must make a decision —

                (a)    to affirm or vary the reviewable decision; or

               (b)    to set aside the reviewable decision and substitute another decision that the Rail Safety Regulator considers appropriate.

         (4)   The Rail Safety Regulator must give a written notice to the applicant setting out —

                (a)    the Rail Safety Regulator’s decision under sub‑section (3) and the reasons for the decision; and

               (b)    the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based —

and must do so within 14 days after the application is made or, if the reviewable decision was made under section 100, 105 or 108, within 7 days after the application is made.

         (5)   If the Rail Safety Regulator has not notified an applicant of a decision in accordance with sub‑section (4), the Rail Safety Regulator is taken to have made a decision to affirm the reviewable decision.

         (6)   An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Rail Safety Regulator, on the Rail Safety Regulator’s own initiative or on the application of the applicant for review, stays the operation of the decision (not being a prohibition notice) pending the determination of the review.

         (7)   The Rail Safety Regulator must make a decision on an application for a stay within 24 hours after the making of the application.

         (8)   If the Rail Safety Regulator has not made a decision in accordance with sub‑section (7), the Rail Safety Regulator is taken to have made a decision to grant a stay.

         (9)   The Rail Safety Regulator may attach any conditions to a stay of the operation of a reviewable decision that the Rail Safety Regulator considers appropriate.

119         Review by the tribunal [or court – local variations]

         (1)   A person may apply to the Tribunal for review of —

                (a)    a reviewable decision made by the Rail Safety Regulator; or

               (b)    a decision made, or taken to have been made, by the Rail Safety Regulator under section 118 in respect of a reviewable decision (including a decision concerning a stay of the operation of the reviewable decision)—

if the person is an eligible person in relation to the reviewable decision.

         (2)   The application must be made —

                (a)    if the decision is to forfeit a thing (including a document) seized under Part 5, within 28 days after the day on which the decision first came to the applicant’s notice; or

               (b)    in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice; or

                (c)    if the Rail Safety Regulator is required by the Victorian Civil and Administrative Tribunal Act 1998 [local variations] to give the applicant a statement of reasons, within 14 days after the day on which the applicant is given the statement —

whichever period ends last.

Part 7                 General liability and evidentiary provisions

Division 1              General

120         Proceedings for offences

                Proceedings for an indictable offence under this Act or the regulations may be dealt with summarily [local variations].

121         Period within which proceedings for offences may be commenced

         (1)   This section applies to an offence against a rail safety law, other than —

                (a)    an offence prescribed by the regulations for the purposes of this section;

               (b)    an offence in respect of which proceedings may only be commenced within a period of less than 2 years after its alleged commission.

         (2)   Despite anything to the contrary in any other Act, proceedings for an offence against a rail safety law to which this section applies may be commenced within —

                (a)    the period of 2 years after the commission of the alleged offence; or

               (b)    a further period of one year commencing on the day on which the Rail Safety Regulator, a rail safety officer or a police officer first obtained evidence of the commission of the alleged offence considered reasonably sufficient by the Rail Safety Regulator or officer to warrant commencement proceedings.

         (3)   For the purposes of sub‑section (2), a certificate purporting to have been issued by the Rail Safety Regulator, a rail safety officer or a police officer as to the date when the Rail Safety Regulator or officer first obtained evidence considered reasonably sufficient by the Rail Safety Regulator or officer to warrant commencing proceedings is admissible in any proceedings and is evidence of the matters stated.

122         Authority to take proceedings [non‑core provision]

         (1)   Subject to this section, any legal proceedings for an offence against, or to recover any charge, fee or money due under this Act or the regulations may be taken only by the Rail Safety Regulator or by a person authorised by the Rail Safety Regulator for the purpose, either generally or in any particular case.

         (2)   Proceedings for an offence against this Act are not to be instituted in the Supreme Court in its summary jurisdiction without the written consent of the Rail Safety Regulator or of an officer of the Rail Safety Regulator authorised by the Rail Safety Regulator for the purposes of this section.

         (3)   Proceedings against the Crown or a statutory body representing the Crown for an offence against this Act or the regulations are not to be instituted without the written consent of the Minister.

         (4)   In any proceedings referred to in this section, the production of an authority or consent purporting to be signed by the Rail Safety Regulator or the Minister is to be evidence of the authority or consent without proof of the signature of the Rail Safety Regulator or the Minister.

         (5)   The Rail Safety Regulator may, for the purposes of sub‑section (1), authorise any person who is a member of a specified class of persons to take the actions referred to in that sub‑section.

123         Vicarious responsibility [non‑core provision]

         (1)   If, in any proceedings for an offence against a rail safety law, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show —

                (a)    that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

               (b)    that the director, employee or agent had the relevant state of mind.

         (2)   For the purposes of a prosecution for an offence against a rail safety law, conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

         (3)   If, in proceedings for an offence against a rail safety law, it is necessary to establish the state of mind of a person other than the body corporate (the employer) in relation to particular conduct, it is sufficient to show —

                (a)    that the conduct was engaged in by an employee or agent of the employer within the scope of his or her actual or apparent authority; and

               (b)    that the employee or agent had the relevant state of mind.

         (4)   For the purposes of a prosecution for an offence against a rail safety law, conduct engaged in on behalf of a person other than a body corporate (the employer) by an employee or agent of the employer within the scope of his or her actual or apparent authority is taken to have been engaged in also by the employer, unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct.

         (5)   In this section —

director of a body corporate includes a constituent member of a body corporate incorporated for a public purpose by a law of any jurisdiction;

state of mind of a person includes —

                (a)    the knowledge, intention, opinion, belief or purpose of the person; and

               (b)    the person’s reasons for the intention, opinion, belief or purpose.

124         Records and evidence from records

         (1)   The Rail Safety Regulator must keep records of the grant, refusal, variation, suspension, surrender and revocation of accreditations, and of any conditions or restrictions of accreditations, and of improvement notices and prohibition notices, under this Act.

         (2)   A certificate purporting to be signed by the Rail Safety Regulator and certifying that —

                (a)    on a date specified in the certificate; or

               (b)    during any period so specified —

the particulars set out in the certificate as to any matter required to be recorded under this section did or did not appear on or from the records is, for the purposes of any legal proceedings, evidence of what it certifies.

         (3)   Such a certificate is admissible in any proceedings —

                (a)    without proof of the signature of the Rail Safety Regulator; and

               (b)    without production of any record or document on which the certificate is founded.

125         Certificate evidence

                A statement in a certificate purporting to be issued by the Rail Safety Regulator, a corresponding Rail Safety Regulator, a rail safety officer or a police officer as to any matter that appears in, or can be calculated from, records kept or accessed by the Rail Safety Regulator is admissible in any proceedings and is evidence of the matter.

126         Proof of appointments and signatures unnecessary

         (1)   For the purposes of this Act and the regulations, it is not necessary to prove the appointment of an office holder.

         (2)   For the purposes of this Act, a signature purporting to be the signature of an office holder is evidence of the signature it purports to be.

         (3)   In this section, office holder means —

                (a)    the Rail Safety Regulator;

               (b)    a corresponding Rail Safety Regulator;

                (c)    the Chief Commissioner of Police;

               (d)    the head of the police force or police service of any other jurisdiction;

                (e)    a rail safety officer;

                (f)    a rail safety officer of another jurisdiction;

                (g)    a police officer;

                (h)    a police officer of another jurisdiction.

127         Multiple offences [non‑core provision]

                Despite anything to the contrary in this or any other law, a person may be punished for more than one breach of a requirement of this Act or the regulations if the breaches relate to different parts of the same rail infrastructure, railway premises or rolling stock.

128         Offences by bodies corporate, partnerships, associations and employees [non‑core provision]

         (1)   If a body corporate commits an offence against a rail safety law, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly.

         (2)   If a person who is a partner in a partnership commits an offence against a rail safety law in the course of the activities of the partnership, each other person who is a partner in the partnership, and each person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly.

         (3)   If a person who is concerned in the management of an unincorporated association commits an offence against a rail safety law in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly.

         (4)   Sub‑sections (1), (2) and (3) do not affect the liability of the person who actually committed the offence.

         (5)   If an employee commits an offence against a rail safety law, the employer is taken to have committed the offence and is punishable accordingly.

         (6)   A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence.

         (7)   It is a defence to a charge for an offence arising under sub‑section (1) if the defendant establishes that —

                (a)    the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence; or

               (b)    the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

         (8)   It is a defence to a charge for an offence arising under sub‑section (2) or (3) if the defendant establishes that —

                (a)    the defendant was not in a position to influence the conduct of the person who actually committed the offence; or

               (b)    the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

         (9)   It is a defence to a charge for an offence arising under sub‑section (5) if the defendant establishes that —

                (a)    the defendant had no knowledge of the actual offence; or

               (b)    the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence.

       (10)   An officer —

                (a)    of a body corporate (including a body corporate representing the Crown); or

               (b)    of a partnership or unincorporated body or association —

who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer.

       (11)   In this section —

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out‑of‑pocket expenses).

Division 2              Discrimination against employees

129         Dismissal or other victimisation of employee

         (1)   This section applies to —

                (a)    an employer who dismisses an employee, injures an employee in the employment of the employer or alters the position of an employee to the employee’s detriment; and

               (b)    an employer who threatens to do any of those things to an employee; and

                (c)    an employer or prospective employer who refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment.

         (2)   The employer or prospective employer is guilty of an indictable offence if the employer or prospective employer engaged in that conduct because the employee or prospective employee (as the case may be) —

                (a)    has assisted or has given any information to a public agency in respect of a breach or alleged breach of an Australian rail safety law; or

               (b)    has made a complaint about a breach or alleged breach of an Australian rail safety law to the employer, a fellow employee, a union or a public agency; or

                (c)    assists or has assisted, or gives or has given any information to, a public agency in respect of a breach or alleged breach of an Australian rail safety law; or

               (d)    has made a complaint about a breach or alleged breach of an Australian rail safety law to a former employer, a former fellow employee, a union or a public agency.

         (3)   An employer or prospective employer may be guilty of an offence against sub‑section (2) only if the reason mentioned in sub‑section (2) (a), (b), (c) or (d) is the dominant reason why the employer or prospective employer engaged in the conduct.

         (4)   An employer or prospective employer who is guilty of an offence against sub‑section (2) is liable to —

                (a)    In the case of a natural person:

               (b)    In the case of a body corporate:

         (5)   In this section —

employee includes a natural person who works under a contract for services;

public agency includes an Australian Rail Safety Regulator, a rail safety officer, a police officer and a police officer of another jurisdiction.

130         Defendant bears onus of proof

                In proceedings for an offence against section 129, if all the facts constituting the offence other than the reason for the defendant’s conduct are proved, the defendant bears the onus of proving that the reason alleged in the charge was not the dominant reason why the defendant engaged in the conduct.

131         Order for damages or reinstatement

         (1)   If an employer or prospective employer is convicted or found guilty of an offence against section 129, the court may (in addition to imposing a penalty) make either or both of the following orders —

                (a)    an order that the offender pay (within a specified period) such damages to the employee or prospective employee against whom the offender discriminated as the court considers appropriate to compensate him or her;

               (b)    an order that —

                          (i)    the employee be reinstated or re‑employed in his or her former position or, if that position is not available, in a similar position; or

                         (ii)    the prospective employee be employed in the position for which he or she had applied or a similar position.

         (2)   In this section —

employee includes a natural person who works under a contract for services;

Division 3              False or misleading information

132         False or misleading information provided to Rail Safety Regulator or officials

         (1)   A person commits an offence if —

                (a)    the person makes a statement to the Rail Safety Regulator or to an official who is exercising a power under a rail safety law; and

               (b)    the person knows that the statement is false or misleading in a material particular.

         (2)   A person commits an offence if —

                (a)    the person makes a statement to the Rail Safety Regulator or to an official who is exercising a power under a rail safety law; and

               (b)    the statement is false or misleading in a material particular; and

                (c)    the person is reckless as to whether the statement is false or misleading in a material particular.

         (3)   A person commits an offence if —

                (a)    the person gives a document to the Rail Safety Regulator or to an official who is exercising a power under a rail safety law; and

               (b)    the document is false or misleading in a material particular; and

                (c)    the person is reckless as to whether the document is false or misleading in a material particular.

         (4)   Sub‑section (3) does not apply if, at the time the person gave the document to the Rail Safety Regulator or to an official, the person informed the Rail Safety Regulator or official that the document was false or misleading in a material particular and specified in what respect it was false or misleading.

         (5)   The penalty for an offence under this section committed in relation to the Rail Safety Regulator or official exercising a power under a rail safety law is —

                (a)    if there is one offence under the provision of the rail safety law under which the power is exercised – the penalty for that offence; or

               (b)    if there is more than one offence under that provision – the penalties for those offences if the penalties are the same, or the lower or lowest of the penalties if they are different; or

                (c)    if there is no offence under that provision — a penalty of [to be completed].

         (6)   In this section —

official means a rail safety officer or a person assisting a rail safety officer.

Division 4              Other offences

133         Obstructing or hindering rail safety officers

         (1)   A person must not —

                (a)    intentionally hinder or obstruct the Rail Safety Regulator, a rail safety officer or a person assisting the Rail Safety Regulator or a rail safety officer in the exercise of his or her functions under this Act or the regulations, or induce or attempt to induce any other person to do so; or

               (b)    intentionally conceal from the Rail Safety Regulator, a rail safety officer or a person assisting the Rail Safety Regulator or a rail safety officer, the location or existence of, or fail to comply with a request to produce, a record, document or any other thing.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

         (2)   A person must not assault, directly or indirectly intimidate or threaten, or attempt to intimidate or threaten, the Rail Safety Regulator, a rail safety officer or a person assisting the Rail Safety Regulator or a rail safety officer.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

134         Offence to impersonate rail safety officer [non‑core provision]

                A person who is not a rail safety officer must not, in any way, hold himself or herself out to be a rail safety officer.

Penalty:   

135         Not to interfere with train, tram etc

         (1)   A person must not, without either the permission of an authorised person or reasonable excuse —

                (a)    move or attempt to move;

               (b)    interfere or attempt to interfere with;

                (c)    disable, or attempt to disable;

               (d)    operate or attempt to operate —

any equipment, rail infrastructure or rolling stock owned or operated by a rail transport operator.

Penalty:   

         (2)   In this section —

authorised person means the rail transport operator, a rail safety officer or a police officer.

136         Applying brake or emergency device

                A person must not, without reasonable excuse —

                (a)    apply any brake or make use of any emergency device fitted to a train or tram; or

               (b)    make use of any emergency device on railway premises.

Penalty:   

Example

Emergency devices include an emergency button on a station communication board or on an escalator.

137         Stopping a train or tram

                A person must not, without reasonable excuse, cause or attempt to cause a train or tram in motion to be stopped.

Penalty:   

Division 5              Infringement notices

Note   Provision for infringement notices will be dealt with by appropriate provisions in each jurisdiction, either by including provisions in this Division or by integrating the offences in the Bill with existing legislation relating to infringement notices.

138         Infringement notices

                A rail safety officer or police officer who believes on reasonable grounds that a person has committed a prescribed offence against a rail safety law may serve the person with an infringement notice as an alternative to prosecution in court for an offence.

139         Infringement penalty

         (1)   The infringement penalty for an offence is —

                (a)    the amount specified in Schedule 1 for the offence; or

               (b)    if an amount is not so specified for the offence — the amount prescribed by the regulations as the amount of the infringement penalty for the offence.

         (2)   The infringement penalty prescribed by the regulations for an offence must not exceed 20% of the maximum penalty that could be imposed on an individual by a court in respect of the offence.

         (3)   An infringement penalty may not be prescribed by the regulations for an offence if Schedule 1 indicates that an infringement notice is not available for the offence.

Division 6              Enforceable voluntary undertakings

140         Rail Safety Regulator may accept undertakings

         (1)   The Rail Safety Regulator may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act or the regulations.

         (2)   The person may withdraw or vary the undertaking at any time but only with the Rail Safety Regulator’s written consent.

         (3)   Neither the Rail Safety Regulator nor a rail safety officer may bring proceedings for an offence against this Act or the regulations constituted by the contravention or alleged contravention to which the undertaking relates.

141         Enforcement of undertakings

         (1)   If the Rail Safety Regulator considers that a person has contravened an undertaking accepted by the Rail Safety Regulator, the Rail Safety Regulator may apply to the Magistrates’ Court for enforcement of the undertaking.

         (2)   If the Magistrates’ Court is satisfied that the person has contravened the undertaking, it may make —

                (a)    an order that the person must comply with the undertaking or take specified action to comply with the undertaking; or

               (b)    any other order that it considers appropriate.

Division 7              Court‑based sanctions

142         Fines

Note   Local jurisdiction law to apply in relation to method of stating penalty amount

143         Daily penalty for continuing offences [non‑core provision]

         (1)   Where an offence is committed by a person by reason of a contravention of a provision of this Act under which the person is required or directed to do any act or thing, or to refrain from doing any act or thing, that offence is taken to continue so long as the act or thing so required or directed remains undone, or continues to be done, as the case may be.

         (2)   A person convicted of such an offence is liable, in addition to the penalty otherwise prescribed for the offence, to a daily penalty not exceeding one fifth of the maximum penalty prescribed for the offence for each day or part of a day during which the offence continues after conviction.

144         Commercial benefits order [non‑core provision]

         (1)   The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, make an order under this section.

         (2)   The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that —

                (a)    was received or receivable, by the person or by an associate of the person, from the commission of the offence; and

               (b)    in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with the commission of the offence, would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed.

         (3)   In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account —

                (a)    benefits of any kind, whether monetary or otherwise; and

               (b)    monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and

                (c)    any other matters that it considers relevant, including (for example) —

                          (i)    the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and

                         (ii)    the distance over which any such goods were or were to be carried.

         (4)   However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.

         (5)   Nothing in this section prevents the court from ordering payment of an amount that is —

                (a)    less than 3 times the estimated gross commercial benefit; or

               (b)    less than the estimated gross commercial benefit.

         (6)   For the purposes of this section, a person is an associate of another if —

                (a)    one is a spouse, parent, brother, sister or child of the other; or

               (b)    they are members of the same household; or

                (c)    they are partners; or

               (d)    they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

                (e)    one is a body corporate and the other is a director or member of the governing body of the body corporate; or

                (f)    one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or

                (g)    they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or

                (h)    a chain of relationships can be traced between them under any one or more of the above paragraphs.

         (7)   For the purposes of sub‑section (6), a beneficiary of a trust includes an object of a trust.

145         Supervisory intervention order [non‑core provision]

         (1)   The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.

         (2)   The court may make a supervisory intervention order requiring the person (at the person’s own expense and for a specified period not exceeding one year) to do all or any of the following —

                (a)    to do specified things that the court considers will improve the person’s compliance with rail safety laws or specified aspects of rail safety laws, including (for example) the following —

                          (i)    appointing or removing staff to or from particular activities or positions;

                         (ii)    training and supervising staff;

                         (iii)    obtaining expert advice as to maintaining appropriate compliance;

                        (iv)    installing monitoring, compliance, managerial or operational equipment;

                         (v)    implementing monitoring, compliance, managerial or operational practices, systems or procedures;

               (b)    to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Rail Safety Regulator or a person nominated by the Rail Safety Regulator;

                (c)    to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order;

               (d)    to appoint a person to have responsibilities —

                          (i)    to assist the person in improving compliance with rail safety laws or specified aspects of rail safety laws; and

                         (ii)    to monitor the person’s performance in complying with rail safety laws or specified aspects of rail safety laws and in complying with the requirements of the order; and

                         (iii)    to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order.

         (3)   The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and frequency with which, compliance reports are to be prepared and furnished.

         (4)   The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form and manner in which, and frequency with which, they are to be made public.

         (5)   The court may only make a supervisory order if it is satisfied that the order is capable of improving the person’s ability or willingness to comply with the rail safety laws, having regard to —

                (a)    the offences against Australian rail safety laws of which the person has been previously found guilty; and

               (b)    the offences against Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn infringement notices; and

                (c)    any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.

         (6)   The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order.

         (7)   A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of —

                (a)    the Rail Safety Regulator; or

               (b)    the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.

         (8)   In this section,

compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to —

                (a)    the performance of the person in complying with

                          (i)    the rail safety laws or aspects of rail safety laws specified in the order; and

                         (ii)    the requirements of the order; and

               (b)    without limiting the above —

                          (i)    things done by the person to ensure that any failure by the person to comply with the rail safety laws or the specified aspects of the rail safety laws does not continue; and

                         (ii)    the results of those things having been done.

146         Contravention of supervisory intervention order [non‑core provision]

                A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement.

Penalty:   

147         Exclusion orders [non‑core provision]

         (1)   The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.

         (2)   For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against Australian rail safety laws, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from —

                (a)    managing rail infrastructure, or operating rolling stock, or managing or operating a particular type of rail infrastructure or rolling stock; or

               (b)    being a director, secretary or officer concerned in the management of a body corporate involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction; or

                (c)    being involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction except by driving a train or rolling stock.

         (3)   The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to —

                (a)    the offences against the Australian rail safety laws of which the person has previously been found guilty; and

               (b)    the offences against the Australian rail safety laws of which the person has been proceeded against by way of unwithdrawn infringement notices; and

                (c)    any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.

         (4)   A court that has power to make an exclusion order may revoke or amend an exclusion order on the application of —

                (a)    the Rail Safety Regulator; or

               (b)    the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.

148         Contravention of exclusion order [non‑core provision]

                A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.

Penalty:   In the case of a natural person:

Penalty:   In the case of a body corporate:

Part 8                 General

Division 1              Confidentiality

149         Confidentiality

         (1)   This section applies to a person engaged or previously engaged in the administration of this Act and (without limiting the foregoing) to —

                (a)    a rail safety officer or a person assisting a rail safety officer;

               (b)    a person authorised by the Rail Safety Regulator or rail safety officer under a provision of this Act to do the act or thing provided for in that provision;

                (c)    a person who is or was a delegate of the Rail Safety Regulator;

               (d)    a person who is or was employed by, or engaged to provide services to or on behalf of, the Rail Safety Regulator;

                (e)    a person who is or was employed by, or engaged to provide services to, a person or body engaged to provide services to the Rail Safety Regulator.

         (2)   A person to whom this section applies must not disclose or communicate information obtained (whether by that person or otherwise) in the administration of this Act except —

                (a)    as required or authorised by or under this or any other Act; or

               (b)    with the consent of the person from whom the information was obtained or to whom the information relates; or

                (c)    in connection with the administration of rail safety laws and corresponding rail safety laws; or

               (d)    for law enforcement purposes, rail safety inquiries or public safety; or

                (e)    to a court or in connection with any legal proceedings; or

                (f)    in accordance with the regulations.

Penalty:   

         (3)   Nothing in this section prevents information being used to enable an Australian Rail Safety Regulator to accumulate aggregate data and to enable the Australian Rail Safety Regulator to authorise use of the aggregate data for the purposes of research or education.

Division 2              Civil liability

150         Civil liability not affected by Division 1 or 4 of Part 4

         (1)   Nothing in Division 1 or 4 of Part 4 is to be construed —

                (a)    as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provisions of that Division; or

               (b)    as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.

         (2)   Sub‑section (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable.

151         Indemnity of persons authorised by Rail Safety Regulator and rail safety officers

         (1)   An authorised person does not incur civil liability for an act or omission done honestly and in good faith in the course of exercising his or her powers under this Act.

         (2)   A liability that would, apart from sub‑section (1), attach to an authorised person attaches instead to —

                (a)    the Rail Safety Regulator or rail safety officer that authorised the authorised person, if the authorised person was at the relevant time subject to the control and direction of the Rail Safety Regulator or rail safety officer (as the case requires) in connection with the exercise of the power concerned; or

               (b)    a corresponding Rail Safety Regulator, if the authorised person was at the relevant time subject to the control and direction of the corresponding Rail Safety Regulator in connection with the exercise of the power concerned; or

                (c)    the authorised person’s employer, if the authorised person was at the relevant time —

                          (i)    not subject to the control and direction of the Rail Safety Regulator or a corresponding Rail Safety Regulator (as the case requires) in connection with the exercise of the power concerned; and

                         (ii)    acting in the capacity of an employee of that employer; or

               (d)    in any other case — the Crown in right of this jurisdiction.

         (3)   If —

                (a)    a prescribed corresponding law of another jurisdiction provides that a liability that would, apart from a provision of that law, attach to an authorised person (within the meaning of section [ ] of that corresponding law) attaches instead to the Rail Safety Regulator; and

               (b)    the authorised person was at the relevant time subject to the control and direction of the Rail Safety Regulator in connection with the exercise of the power concerned —

the liability accordingly attaches to the Rail Safety Regulator by force of this section.

Note   Sub‑section (3) is intended to complement and give effect to a provision of a corresponding law that transfers liability to the Rail Safety Regulator of this jurisdiction, but only where the corresponding law is prescribed by the regulations.

         (4)   In this section —

authorised person means any person authorised by the Rail Safety Regulator or rail safety officer under a provision of this Act to do the act or thing provided for in that provision.

Note   Local variations according to policy on indemnities and immunities.

152         Immunity for reporting unfit rail safety worker

         (1)   No action may be taken against a person to whom this section applies who, in good faith, reports to —

                (a)    the Rail Safety Regulator; or

               (b)    a rail transport operator; or

                (c)    any other person to whom this section applies who is employed or engaged by the Rail Safety Regulator or a rail transport operator —

any information which discloses that a person is unfit to carry out rail safety work or certain types of rail safety work or that it may be dangerous to allow that person to carry out rail safety work or certain types of rail safety work.

         (2)   No action may be taken against a person to whom this section applies who, in good faith, reports —

                (a)    the results of a test or examination carried out under this Act or the regulations; or

               (b)    an opinion formed by that person as a result of conducting such a test or examination —

to a person referred to in sub‑section (1) (a), (b) or (c).

         (3)   In this section —

person to whom this section applies means —

                (a)    a registered medical practitioner within the meaning of the Medical Practice Act 1994;

               (b)    a registered optometrist within the meaning of the Optometrists Registration Act 1996;

                (c)    a registered physiotherapist within the meaning of the Physiotherapists Registration Act 1998.

Division 3              Compliance codes and guidelines

153         Approval of compliance codes and guidelines

         (1)   For the purpose of providing practical guidance to persons who have duties or obligations under this Act or the regulations, the Minister may make an order —

                (a)    approving a compliance code; or

               (b)    approving guidelines.

         (2)   The Minister may make an order approving the variation of a compliance code or guidelines or revoking the approval of a compliance code or guidelines.

         (3)   An order approving a compliance code or guidelines, or a variation or revocation order, takes effect when notice of it is published in the Government Gazette or on such later date as is specified in the order.

         (4)   As soon as practicable after making an order approving a compliance code or guidelines, or a variation or revocation order, the Minister must ensure that notice of the making of the order is published in the Government Gazette.

         (5)   The Minister must ensure that a copy of —

                (a)    each compliance code that is currently approved; and

               (b)    guidelines that are currently approved —

is or are available for inspection by members of the public without charge at the office of the Rail Safety Regulator during normal business hours.

154         Effect of compliance code

                A failure to comply with a compliance code or guidelines does not give rise to any civil or criminal liability.

Note   A person who complies with a compliance code may, however, be taken to have complied with this Act (see section 155).

155         Effect of complying with a compliance code

                If —

                (a)    a compliance code makes provision for or with respect to a duty or obligation imposed by this Act or the regulations; and

               (b)    a person complies with the compliance code to the extent that it makes that provision —

the person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.

156         Disallowance of compliance codes or guidelines

         (1)   The Minister’s power to make an order approving a compliance code or guidelines, or a variation order, under this Division is subject to the order being disallowed by the Parliament.

         (2)   Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply for the purposes of sub‑section (1) as if —

                (a)    an order were a statutory rule (within the meaning of that Act); and

               (b)    notice of the making of the statutory rule had been published in the Government Gazette when notice of the order or variation order (as the case may be) was published in the Government Gazette.

Note   Local variations.

Division 4              Miscellaneous

157         Recovery of certain costs

                The Rail Safety Regulator may recover as a debt from a rail transport operator the reasonable costs of the entry and inspection of railway infrastructure, rolling stock or railway premises in respect of which the person is accredited, other than the costs of an inspection of an accredited person under section 75.

158         Recovery of amounts due

                Every fee, charge or other amount of money payable under this Act or the regulations may be recovered by the Rail Safety Regulator as a debt due to the jurisdiction in a court of competent jurisdiction.

Note   Fees, charges or other amounts of money generally form part of a jurisdiction’s consolidated revenue.

159         Compliance with conditions of accreditation

                If —

                (a)    a condition or restriction to which the accreditation of a person is subject makes provision for or with respect to a duty or obligation imposed by this Act or the regulations; and

               (b)    the accredited person complies with the condition or restriction to the extent that it makes that provision —

the accredited person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.

160         Prescribed persons

                A person prescribed by the regulations for the purposes of this section must give notice in the prescribed form and within a prescribed period to a rail transport operator of the commencement, or discontinuation, or completion of prescribed operations or activities that may adversely affect the safety of any rail infrastructure or rolling stock of a rail transport operator.

Penalty:   

161         Contracting out prohibited

                A term of any contract or agreement that purports to exclude, limit or modify the operation of this Act or of any provision of this Act is void to the extent that it would otherwise have effect.

162         Regulations

         (1)   The Governor in Council [local variations] may make regulations for or with respect to —

                (a)    trespassing on railway tracks, tramway tracks or railway premises;

               (b)    fees for the purposes of this Act and the refund or waiver of such fees;

                (c)    any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

         (2)   Regulations made under this Act —

                (a)    may be of general or of specially limited application; and

               (b)    may differ according to differences in time, place or circumstance; and

                (c)    may require a matter affected by the regulations to be —

                          (i)    in accordance with a specified standard or specified requirement; or

                         (ii)    approved by or to the satisfaction of a specified person or a specified class of person; or

                         (iii)    as specified in both sub‑paragraphs (i) and (ii); and

               (d)    may apply, adopt or incorporate any matter contained in any document whether —

                          (i)    wholly or partially or as amended by the regulations; or

                         (ii)    as in force at a particular time or as in force from time to time; and

                (e)    may confer a discretionary authority or impose a duty on a specified person or a specified class of person; and

                (f)    may provide in a specified case or class of case for the exemption of people or things or a class of people or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and

                (g)    may impose a penalty not exceeding [ ] for a contravention of the regulations; and

                (h)    may provide that an application may be made to the Tribunal for the review of a decision made under the regulations.

         (3)   The regulations may exempt, or provide for the exemption of, either absolutely or subject to conditions, any person, railway, part of a railway or operation from all or any of the provisions of this Act.

Note   Local jurisdiction will need to determine how to deal with exemptions according to local practice.

Part 9                 Transitional

  

163         Transitional

Note   As required for each jurisdiction.

Part 10               Consequential amendments

  

Note 1   Local variations will apply.

Note 2   In order to make the provisions for interface co‑ordination plans (Part 4) fully effective, requirements to the effect of Notes 3 and 4 below will need to be imposed on road or other authorities

Note 3   Obligations to be enacted relating to road and land use and planning

Requirement that a person who proposes to undertake any road or land use management planning that is reasonably likely to affect any railway premises, rail infrastructure or rolling stock, must take reasonable steps to consult any relevant rail transport operator.

Requirement that a person who proposes to make any changes affecting the location of a road or the use of land or any infrastructure managed or owned by the person, or any of the person’s operations that are reasonably likely to affect any railway operations, railway premises or rolling stock must first take reasonable steps —

(a)   to give notice to any relevant rail transport operator of any proposed changes that are reasonably likely to have an adverse affect any rail infrastructure or rolling stock of the rail transport operator; and

(b)   to take into account any views expressed by a rail transport operator as to the management of the safety interface with the rail infrastructure or rolling stock.

Note 4   Obligations to be enacted requiring road authorities and others to co‑operate with rail transport operators in relation to safety co‑ordination

Requirement that all road authorities be under obligations similar to those to which rail transport operators are subject in relation to interface co‑ordination with rail transport operators for the management of risks to safety in relation to level crossings, road under rail and road over rail crossings.


Schedule 1   Infringement penalties


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.