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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Rail Safety Bill 2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Objects 2
4 Interpretation 2
5 Railways to which this Act does not apply 7
6 The concept of ensuring safety 7
7 Rail safety work 8
Part 2 General rail safety
Division 1 Duties to ensure public safety of railway
operations
8 Duties of rail transport operators and other persons
carrying out railway operations 10
9 Duties of designers, manufacturers, suppliers etc 12
b2006-072-07.d13
Rail Safety Bill 2008
Contents
Page
10 Duties of rail safety workers 13
11 Onus of proving limits of what is reasonably practicable
under this Division 14
Division 2 Safety management of railway operations
12 Safety management system 14
13 Implementation of and compliance with safety management
system 16
14 Review of safety management system 17
15 Safety performance reports 17
16 Security management plan 18
17 Emergency management plan 18
18 Health and fitness management program 19
19 Drug and alcohol management program 19
20 Fatigue management 20
21 Competence of rail safety workers 20
22 Identification for rail safety workers 21
23 Other persons to comply with safety management system 22
24 ITSRR may direct amendment of a safety management
system 22
Division 3 Interface co-ordination
25 Interpretation 22
26 Interface co-ordination--rail transport operators 23
27 Interface co-ordination--rail infrastructure manager--
public roads 23
28 Interface co-ordination--rail infrastructure manager--
roads other than public roads 24
29 Interface co-ordination--obligations of roads authorities 24
30 Assessment of risks 25
31 Scope of interface agreements 25
32 Interface arrangements may be directed to be made 26
33 Register of interface agreements 27
Part 3 Accreditation of rail transport operators
Division 1 Requirement for accreditation
34 Purpose of accreditation 28
35 Accreditation required for railway operations 28
36 Purpose for which accreditation may be granted 29
37 Accreditation offences 29
Division 2 Applications for accreditation
38 Application for accreditation 29
39 What applicant for accreditation must demonstrate 30
Contents page 2
Rail Safety Bill 2008
Contents
Page
40 ITSRR may direct applicants to co-ordinate and
co-operate in applications 31
41 Co-ordination between ITSRR and other Rail Safety
Regulators 31
42 Determination of application 32
43 Prescribed conditions and restrictions 33
44 Accreditation cannot be transferred or assigned 33
45 Sale or transfer of railway operations by accredited person 33
Division 3 Accreditation fees and inspection of
documents
46 Annual accreditation fees 34
47 Differential accreditation fees 34
48 Payment of annual fees 34
49 Late payment fees 34
50 Waiver of fees 34
51 Keeping and making available documents for public
inspection 34
Division 4 Surrender, revocation and variation of
accreditation
52 Surrender of accreditation 35
53 Suspension or revocation of accreditation 35
54 Immediate suspension of accreditation 36
55 Application for variation of accreditation 37
56 Determination of application for variation of accreditation 37
57 Variation of conditions and restrictions 38
58 ITSRR may make changes to conditions or restrictions 39
59 Prescribed conditions and restrictions 39
Division 5 Private sidings
60 Exemption from accreditation 39
Part 4 Safety reports and investigations
Division 1 Safety reports
61 Rail transport operators to provide information 41
62 Industry safety reports 41
63 Notifiable occurrences 42
64 Confidential reporting of safety information by rail safety
workers 42
Division 2 Investigations of accidents and incidents
65 Investigation into railway accidents and incidents by rail
transport operators 43
Contents page 3
Rail Safety Bill 2008
Contents
Page
66 Information may not be used in certain proceedings 44
67 Investigations by Chief Investigator 44
68 Chief Investigator and transport safety investigator's
functions 45
69 Rail safety inquiries 46
70 Chief Investigator may request rail safety inquiry 47
71 Assessors 47
72 Witnesses and evidence at rail safety inquiries 48
73 Report on rail safety inquiry 48
74 Tabling of reports 48
Division 3 Disclosure of train safety records
75 Definitions 49
76 Disclosure of train safety record to Commonwealth or
Commonwealth authority 49
77 Disclosure of train safety records (other than train safety
recordings) to a court or person 50
78 Disclosure of train safety recordings 51
79 Evidence of train safety recordings in criminal proceedings 51
80 Evidence of train safety recordings in civil proceedings 51
81 Examination by a court of train safety recording 52
82 Compliance with subpoenas and other directions 52
83 Admissibility of other evidence and liability 53
Division 4 Audit by ITSRR
84 Audit of railway operations of rail transport operators 54
Part 5 Investigation powers
Division 1 Powers of entry
85 Power to enter places 55
86 Limitation on entry powers--places used for residential
purposes 56
87 Notice of entry 56
Division 2 General enforcement powers of rail safety
officers
88 General powers after entering a place 56
89 Powers of rail safety officers in relation to relevant
documents 57
90 Use of assistants and equipment 58
91 Use of electronic equipment 58
92 Use of equipment to examine or process things 58
93 Securing a site 59
Contents page 4
Rail Safety Bill 2008
Contents
Page
Division 3 Search warrants
94 Search warrants 59
Division 4 Powers to support seizure
95 Directions relating to seizure 60
96 Receipt for seized things 61
97 Access to seized thing 61
98 Embargo notices 61
Division 5 Dealings with seized items
99 Return of seized things 62
100 Forfeiture of sample or thing 63
101 Dealing with forfeited sample or thing 63
102 Application of Law Enforcement (Powers and
Responsibilities) Act 2002 64
Division 6 Directions
103 Rail safety officers may direct certain persons to give
assistance 64
104 Power to direct name and address be given 64
105 Failure to give name or address 65
106 Power to obtain information, documents and evidence 65
107 Failure to comply with notice 66
Division 7 Miscellaneous
108 Directions may be given under more than one provision 66
109 Temporary closure of railway crossings 66
110 Restoring rail infrastructure and rolling stock etc to original
condition after action taken 67
111 Use of force 67
Part 6 Improvement and prohibition notices
Division 1 Improvement notices
112 Improvement notices 68
113 Contravention of improvement notice 70
114 Withdrawal or amendment of improvement notices 70
115 Proceedings for offences not affected by improvement
notices 71
116 ITSRR to arrange for rail safety work required by
improvement notice to be carried out 71
Division 2 Prohibition notices
117 Prohibition notice 71
118 Contravention of prohibition notice 73
Contents page 5
Rail Safety Bill 2008
Contents
Page
119 Oral direction before prohibition notice served 73
120 Withdrawal or amendment of prohibition notice 74
121 Proceedings for offences not affected by prohibition notices 74
Division 3 General provisions relating to notices
122 Review of notices by ITSRR 74
123 Appeal to Industrial Magistrate following review 75
124 Application to Industrial Magistrate for stay of prohibition
notice 75
125 Revocation or withdrawal of notice does not prevent issue
of another notice 75
Part 7 Offences, penalties and other sanctions
Division 1 Offences
126 Obstructing or hindering rail safety officers 76
127 Offence to impersonate rail safety officer 76
128 Offences involving accreditation 76
129 Notice to be given of certain matters 76
130 Tampering with railway equipment 77
131 Railway offences 77
Division 2 Proceedings for offences
132 Proceedings for offences 78
133 Period within which proceedings for offences may be
commenced 79
134 Authority to take proceedings 80
135 Multiple contraventions of general duties under Part 2 80
136 Offences by corporations 80
137 Continuing offences 81
138 Proceedings against the Crown and government agencies 82
139 Penalty notices 82
Division 3 Enforceable voluntary undertakings
140 ITSRR may accept undertakings 83
141 Enforcement of undertakings 83
Division 4 Court-based sanctions
142 Commercial benefits order 83
143 Supervisory intervention order 85
144 Contravention of supervisory intervention order 87
145 Exclusion orders 87
146 Contravention of exclusion order 88
Contents page 6
Rail Safety Bill 2008
Contents
Page
Part 8 Administration
147 Delegation by Minister 89
148 Appointment of rail safety officers 89
149 Reciprocal powers of rail safety officers 89
150 Identification cards for rail safety officers 90
151 Rail safety officer must not exercise functions without
identification card 90
152 Display and production of identification card 90
153 Return of identification cards 90
154 ITSRR may exercise functions of rail safety officers 91
Part 9 Miscellaneous
155 Act to bind Crown 92
156 Exchange of information 92
157 Reviewable decisions 93
158 Review by ITSRR and ADT 94
159 Protection from incrimination 95
160 Records and evidence from records 96
161 Certificate evidence 97
162 Disclosure of information 97
163 Civil liability not affected by Part 2 98
164 Exclusion of personal liability 98
165 Exclusion of liability of the State 98
166 Immunity for reporting unfit rail safety worker 98
167 Approval of compliance codes and guidelines 99
168 Use of compliance codes 100
169 Effect of compliance code 100
170 Recovery of certain costs 100
171 Recovery of amounts due 100
172 Contracting out prohibited 100
173 Service of documents 100
174 Regulations 101
175 Application of OH&S legislation 102
176 Repeal 103
177 Savings, transitional and other provisions 103
178 Amendment of other Acts 103
179 Review of Act 103
Schedule 1 Rail safety workers--alcohol or other drugs 104
Schedule 2 Fatigue management 106
Schedule 3 Savings, transitional and other provisions 109
Schedule 4 Amendment of other Acts 115
Contents page 7
New South Wales
Rail Safety Bill 2008
No , 2008
A Bill for
An Act to make provision with respect to rail safety; to repeal the Rail Safety Act
2002; and for other purposes.
Clause 1 Rail Safety Bill 2008
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Rail Safety Act 2008. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Objects 7
Having regard to the importance of rail safety and regulatory efficiency, 8
the objects of this Act are as follows: 9
(a) to provide for improvement of the safe carrying out of railway 10
operations, 11
(b) to provide for the management of risks associated with railway 12
operations, 13
(c) to make special provision for the control of particular risks 14
arising from railway operations, 15
(d) to promote public confidence in the safety of transport of persons 16
or freight by rail. 17
4 Interpretation 18
(1) In this Act: 19
accreditation means accreditation under Part 3. 20
accredited person means a rail transport operator who is accredited 21
under this Act but does not include a person whose accreditation under 22
this Act: 23
(a) has been surrendered or revoked or has otherwise ceased to have 24
effect under this Act, or 25
(b) is suspended under this Act. 26
approved means approved by the ITSRR. 27
assessor means an assessor appointed by the Minister under section 71. 28
Australian rail safety law means a rail safety law or a corresponding 29
rail safety law. 30
Australian Rail Safety Regulator means the ITSRR or a corresponding 31
Rail Safety Regulator. 32
Board of Inquiry means a Board of Inquiry constituted by the Minister 33
under section 69. 34
Page 2
Rail Safety Bill 2008 Clause 4
Preliminary Part 1
Chief Investigator means the Chief Investigator of the Office of 1
Transport Safety Investigations appointed under the Transport 2
Administration Act 1988. 3
commercial benefits order means an order under section 142. 4
compliance code means a compliance code approved by the Minister 5
under Part 9. 6
corresponding law means: 7
(a) the law of another jurisdiction corresponding, or substantially 8
corresponding, to this Act, or 9
(b) a law of another jurisdiction that is declared by the regulations to 10
be a corresponding law, whether or not the law corresponds, or 11
substantially corresponds, to this Act. 12
corresponding rail safety law means a rail safety law as defined in a 13
corresponding law. 14
corresponding Rail Safety Regulator means a person or body 15
exercising the functions of a Rail Safety Regulator under a 16
corresponding law. 17
embargo notice means a notice under section 98. 18
employee means a person employed under a contract of employment or 19
contract of training. 20
employer means a person who employs one or more other persons under 21
contracts of employment or contracts of training. 22
exercise a function includes perform a duty. 23
function includes power, authority or duty. 24
guidelines means guidelines approved by the ITSRR under Part 9. 25
improvement notice means a notice under section 112. 26
ITSRR means the Independent Transport Safety and Reliability 27
Regulator constituted under the Transport Administration Act 1988. 28
jurisdiction means a State or Territory. 29
motor vehicle has the same meaning as in the Road Transport (Safety 30
and Traffic Management) Act 1999. 31
notifiable occurrence means an accident or incident associated with 32
railway operations: 33
(a) that has, or could have, caused: 34
(i) significant property damage, or 35
(ii) serious injury, or 36
(iii) death, or 37
(b) that is, or is of a class that is, prescribed by the regulations to be 38
an occurrence or a class of notifiable occurrence, 39
Page 3
Clause 4 Rail Safety Bill 2008
Part 1 Preliminary
but does not include an accident or incident, or class of accident or 1
incident, that is prescribed by the regulations not to be a notifiable 2
occurrence. 3
occupational health and safety legislation means the following Acts 4
and any regulations made under those Acts: 5
(a) the Occupational Health and Safety Act 2000, 6
(b) the Coal Mine Health and Safety Act 2002. 7
previous offender, in relation to the maximum penalty for an offence, 8
means a person who has, at any time before being sentenced for that 9
offence, been convicted of any other offence of any kind against this 10
Act. 11
private siding means a siding that is managed, owned or controlled by 12
a person, other than a person who manages the rail infrastructure with 13
which the siding connects or to which it has access, but does not include 14
the following: 15
(a) a marshalling yard, 16
(b) a crossing loop, 17
(c) a passenger terminal, 18
(d) a freight terminal, 19
(e) a siding, or a siding of a class, prescribed by the regulations not 20
to be a private siding. 21
prohibition notice means a notice under section 117. 22
public place means a place (whether or not covered by water), or a part 23
of premises, that is open to the public, or is used by the public whether 24
or not on payment of money or other consideration, whether or not the 25
place or part is ordinarily so open or used and whether or not the public 26
to whom it is open or by whom it is used consists only of a limited class 27
of persons. 28
rail infrastructure means the facilities that are necessary to enable a 29
railway to operate safely (other than rolling stock and any facility, or 30
facility of a class, that is prescribed by the regulations not to be rail 31
infrastructure) and includes, but is not limited to, the following: 32
(a) railway tracks and associated track structures, 33
(b) service roads, signalling systems, communications systems, 34
rolling stock control systems and data management systems, 35
(c) notices and signs, 36
(d) electrical power supply and electric traction systems, 37
(e) associated buildings, workshops, depots and yards, 38
(f) plant, machinery and equipment. 39
Page 4
Rail Safety Bill 2008 Clause 4
Preliminary Part 1
rail infrastructure manager means the person who has effective 1
management and control of the rail infrastructure of a railway, whether 2
or not the person: 3
(a) owns the rail infrastructure, or 4
(b) has a statutory or contractual right to use the rail infrastructure or 5
to control, or provide, access to it. 6
rail safety inquiry--see section 69. 7
rail safety law means this Act and the regulations or a provision of this 8
Act or the regulations. 9
rail safety officer means a person appointed by the ITSRR as a rail 10
safety officer under Part 8. 11
rail safety work--see section 7. 12
rail safety worker means a natural person who has carried out, is 13
carrying out or is about to carry out rail safety work. 14
rail transport operator means: 15
(a) a rail infrastructure manager, or 16
(b) a rolling stock operator, or 17
(c) a person who is both a rail infrastructure manager and a rolling 18
stock operator. 19
railway means a guided system, or proposed guided system, designed 20
for the movement of rolling stock having the capability of transporting 21
passengers or freight, or both, on a railway track with a gauge of 600mm 22
or more, together with its rail infrastructure and rolling stock, and 23
includes the following: 24
(a) a heavy railway, 25
(b) a light railway, 26
(c) a monorail, 27
(d) an inclined railway, 28
(e) a tramway, 29
(f) a railway within a marshalling yard or a passenger or freight 30
terminal, 31
(g) a private siding, 32
(h) a guided system, or guided system of a class, prescribed by the 33
regulations to be a railway. 34
Note. See section 5 for railways to which this Act does not apply. 35
railway operations means any of the following: 36
(a) the construction of a railway, railway tracks and associated track 37
structures or rolling stock, 38
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Clause 4 Rail Safety Bill 2008
Part 1 Preliminary
(b) the management, commissioning, maintenance, repair, 1
modification, installation, operation or decommissioning of rail 2
infrastructure, 3
(c) the commissioning, maintenance, repair, modification or 4
decommissioning of rolling stock, 5
(d) the operation or movement, or causing the operation or 6
movement by any means, of rolling stock on a railway (including 7
for the purposes of construction or restoration of rail 8
infrastructure), 9
(e) the movement, or causing the movement, of rolling stock for the 10
purposes of operating a railway service. 11
railway premises means: 12
(a) land (including any premises on land) on or in which rail 13
infrastructure or any part of rail infrastructure is situated, or 14
(b) freight centres or depots used in connection with the carrying out 15
of railway operations, or 16
(c) workshops or maintenance depots used in connection with the 17
carrying out of railway operations, or 18
(d) premises, including an office, building or housing used in 19
connection with the carrying out of railway operations, or 20
(e) rolling stock or other vehicles associated with railway operations. 21
railway tracks and associated track structures means: 22
(a) railway tracks and associated track structures and works (such as 23
cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, 24
excavations, land fill, track support earthworks and 25
drainageworks), or 26
(b) over-track structures and under-track structures (including 27
tunnels under tracks). 28
rolling stock means a vehicle that operates on or uses a railway and 29
includes a locomotive, carriage, rail car, rail motor, light rail vehicle, 30
train, tram, light inspection vehicle, self-propelled infrastructure 31
maintenance vehicle, trolley, wagon or monorail vehicle, but does not 32
include a vehicle designed to operate both on and off a railway when the 33
vehicle is not operating on a railway. 34
rolling stock operator means a person who has effective management 35
and control of the operation or movement of rolling stock on rail 36
infrastructure for a particular railway but does not include a person 37
merely because the person drives the rolling stock or controls the 38
network or the network signals. 39
running line means all railway tracks (other than sidings) that are used 40
for the through movement of trains. 41
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Rail Safety Bill 2008 Clause 5
Preliminary Part 1
safety means the safety of people, including passengers, rail safety 1
workers, other users of railways, users of rail or road crossings and the 2
general public. 3
safety management plan means a document describing a safety 4
management system. 5
safety management system--see section 12. 6
security management plan--see section 16. 7
siding means a portion of railway track, connected by points to a 8
running line or another siding, on which rolling stock can be placed 9
clear of the running line. 10
supervisory intervention order means an order under section 143. 11
train means: 12
(a) two or more units of rolling stock coupled together, at least one 13
of which is a locomotive or other self-propelled unit, or 14
(b) a unit of rolling stock that is a locomotive or other self-propelled 15
unit. 16
train safety recording--see section 75. 17
(2) Notes included in this Act do not form part of this Act. 18
5 Railways to which this Act does not apply 19
This Act does not apply to the following: 20
(a) a railway in a mine that is underground, or chiefly underground, 21
and that is used in connection with the performance of mining 22
operations, 23
(b) a slipway, 24
(c) a railway used only to guide a crane, 25
(d) an aerial cable operated system, 26
(e) a railway, or class of railway, that the regulations prescribe to be 27
a railway to which this Act does not apply. 28
6 The concept of ensuring safety 29
(1) A duty imposed under this Act or the regulations to ensure, so far as is 30
reasonably practicable, safety requires the person: 31
(a) to eliminate risks to safety so far as is reasonably practicable, and 32
(b) if it is not reasonably practicable to eliminate risks to safety, to 33
reduce those risks so far as is reasonably practicable. 34
Page 7
Clause 7 Rail Safety Bill 2008
Part 1 Preliminary
(2) For the purposes of this Act or the regulations, regard must be had to the 1
following matters in determining what is (or was at a particular time) 2
reasonably practicable in relation to ensuring safety: 3
(a) the likelihood of the risk eventuating, 4
(b) the degree of harm that would result if the risk eventuated, 5
(c) what the person concerned knows, or ought reasonably to know, 6
about the risk and any ways of eliminating or reducing the risk, 7
(d) the availability and suitability of ways to eliminate or reduce risk, 8
(e) the cost of reducing or eliminating the risk. 9
(3) This section is enacted for the avoidance of doubt. 10
7 Rail safety work 11
(1) Any of the following classes of work is rail safety work for the purposes 12
of this Act: 13
(a) driving or despatching rolling stock or any other activity which is 14
capable of controlling or affecting the movement of rolling stock, 15
(b) signalling (and signalling operations), receiving or relaying 16
communications or any other activity which is capable of 17
controlling or affecting the movement of rolling stock, 18
(c) coupling or uncoupling rolling stock, 19
(d) maintaining, repairing, modifying, monitoring, inspecting or 20
testing: 21
(i) rolling stock, including checking that the rolling stock is 22
working properly before being used, or 23
(ii) rail infrastructure, 24
(e) installation of components in relation to rolling stock, 25
(f) work on or about rail infrastructure relating to the design, 26
construction, repair, modification, maintenance, monitoring, 27
upgrading, inspection or testing of the rail infrastructure or 28
associated works or equipment, including checking that the rail 29
infrastructure is working properly before being used, 30
(g) installation or maintenance of: 31
(i) a telecommunications system relating to rail infrastructure 32
or used in connection with rail infrastructure, or 33
(ii) the means of supplying electricity directly to rail 34
infrastructure or to any rolling stock using rail 35
infrastructure or to a telecommunications system, 36
Page 8
Rail Safety Bill 2008 Clause 7
Preliminary Part 1
(h) work involving certification as to the safety of rail infrastructure 1
or rolling stock or any part or component of rail infrastructure or 2
rolling stock, 3
(i) work involving the decommissioning of rail infrastructure or 4
rolling stock or any part or component of rail infrastructure or 5
rolling stock, 6
(j) work involving the development, management or monitoring of 7
safe working systems for railways, 8
(k) work involving the management or monitoring of passenger 9
safety on, in or at any railway, 10
(l) any other work that is prescribed by the regulations to be rail 11
safety work. 12
(2) The regulations may exclude a class of work, or work included in a class 13
of work, referred to in subsection (1) from being rail safety work for the 14
purposes of this Act. 15
Page 9
Clause 8 Rail Safety Bill 2008
Part 2 General rail safety
Part 2 General rail safety 1
Division 1 Duties to ensure public safety of railway 2
operations 3
8 Duties of rail transport operators and other persons carrying out railway 4
operations 5
(1) A rail transport operator who carries out railway operations must 6
ensure, so far as is reasonably practicable, the safety of the railway 7
operations. 8
Maximum penalty: 9
(a) in the case of a corporation (being a previous offender)-- 10
7,500 penalty units, or 11
(b) in the case of a corporation (not being a previous offender)-- 12
5,000 penalty units, or 13
(c) in the case of an individual (being a previous offender)-- 14
750 penalty units or imprisonment for 2 years, or both, or 15
(d) in the case of an individual (not being a previous offender)-- 16
500 penalty units. 17
Note. Safety is defined in section 4 (1) as meaning the safety of people, 18
including passengers, rail safety workers, other users of railways, users of rail 19
or road crossings and the general public. 20
(2) Without limiting subsection (1), a rail transport operator contravenes 21
that subsection if the operator fails to do any of the following: 22
(a) develop or implement, so far as is reasonably practicable, safety 23
systems for the carrying out of the railway operations, 24
(b) ensure, so far as is reasonably practicable, that each rail safety 25
worker who is to perform rail safety work in relation to the 26
railway operations is of sufficient good health and fitness to carry 27
out that work safely and is competent to undertake that work, 28
(c) ensure, so far as is reasonably practicable, that rail safety workers 29
do not carry out rail safety work in relation to the operator's rail 30
safety operations, and are not on duty, while the prescribed 31
concentration of alcohol is present in their blood or while under 32
the influence of a drug, 33
(d) ensure, so far as is reasonably practicable, that rail safety workers 34
who perform rail safety work in relation to the operator's railway 35
operations comply with the operator's fatigue management 36
program under this Act, 37
Page 10
Rail Safety Bill 2008 Clause 8
General rail safety Part 2
(e) provide, so far as practicable, adequate facilities for the safety of 1
persons at any railway premises under the control or management 2
of the operator, 3
(f) provide, so far as is reasonably practicable: 4
(i) such information and instruction to, and training and 5
supervision of, rail safety workers as is necessary to enable 6
those workers to perform rail safety work in relation to the 7
operator's railway operations in a way that is safe, and 8
(ii) such information to rail transport operators and other 9
persons on railway premises under the control or 10
management of the operator as is necessary to enable those 11
persons to ensure their safety. 12
(3) Without limiting subsection (1), a rail infrastructure manager 13
contravenes that subsection if the manager fails to do any of the 14
following: 15
(a) ensure, so far as is reasonably practicable, that any design, 16
construction, commissioning, use, installation, modification, 17
maintenance or decommissioning of the manager's rail 18
infrastructure is done or carried out in a way that ensures, so far 19
as is practicable, the safety of railway operations, 20
(b) establish, so far as is reasonably practicable, such systems and 21
procedures for the scheduling, control and monitoring of railway 22
operations that ensure, so far as is reasonably practicable, the 23
safety of the manager's railway operations. 24
(4) Without limiting subsection (1), a rolling stock operator contravenes 25
that subsection if the rolling stock operator fails to do any of the 26
following: 27
(a) provide or maintain rolling stock that, so far as is reasonably 28
practicable, is safe, 29
(b) ensure, so far as is reasonably practicable, that any maintenance, 30
commissioning, use, modification, construction, repair or 31
cleaning of rolling stock is carried out in a way that, so far as is 32
reasonably practicable, ensures safety, 33
(c) comply, so far as is reasonably practicable, with such rules and 34
procedures for the scheduling, control and monitoring of rolling 35
stock that have been established by a rail infrastructure manager 36
in relation to the use of the manager's rail infrastructure by the 37
rolling stock operator, 38
(d) so far as is reasonably practicable, establish and maintain 39
equipment, procedures and systems to minimise risks to safety of 40
the operator's railway operations, 41
Page 11
Clause 9 Rail Safety Bill 2008
Part 2 General rail safety
(e) make arrangements for ensuring, so far as is reasonably 1
practicable, safety in connection with the use, operation and 2
maintenance of the operator's rolling stock. 3
(5) This section applies to a person (other than a rail transport operator) 4
who carries out railway operations in the same way as it applies to a rail 5
transport operator, but does not apply if the person carries out those 6
operations as a rail safety worker or an employee. 7
9 Duties of designers, manufacturers, suppliers etc 8
(1) A person who designs, commissions, manufactures, supplies, installs or 9
erects any thing that the person knows, or ought reasonably to know, is 10
to be used as or in connection with rail infrastructure or rolling stock 11
must: 12
(a) ensure, so far as is reasonably practicable, that the thing is safe if 13
it used for a purpose for which it was designed, commissioned, 14
manufactured, supplied, installed or erected, and 15
(b) carry out, or arrange the carrying out, of such testing and 16
examination of the thing as may be necessary for compliance 17
with this section, and 18
(c) take such action as is necessary to ensure, so far as is reasonably 19
practicable, that there will be available in connection with the use 20
of the thing adequate information about: 21
(i) the use for which the thing was designed, commissioned, 22
manufactured, supplied, installed or erected, and 23
(ii) the results of any testing or examination referred to in 24
paragraph (b), and 25
(iii) any conditions necessary to ensure, so far as is reasonably 26
practicable, the thing is safe when it is used for a purpose 27
for which it was designed, commissioned, manufactured, 28
supplied, installed or erected. 29
Maximum penalty: 30
(a) in the case of a corporation (being a previous offender)--7,500 31
penalty units, or 32
(b) in the case of a corporation (not being a previous offender)-- 33
5,000 penalty units, or 34
(c) in the case of an individual (being a previous offender)--750 35
penalty units or imprisonment for 2 years, or both, or 36
(d) in the case of an individual (not being a previous offender)--500 37
penalty units. 38
Page 12
Rail Safety Bill 2008 Clause 10
General rail safety Part 2
(2) A person who decommissions any rail infrastructure or rolling stock 1
must: 2
(a) ensure, so far as is reasonably practicable, that the decommission 3
is carried out safely, and 4
(b) carry out, or arrange the carrying out, of such testing and 5
examination as may be necessary for compliance with this 6
section. 7
Maximum penalty: 8
(a) in the case of a corporation (being a previous offender)--1,500 9
penalty units, or 10
(b) in the case of a corporation (not being a previous offender)-- 11
1,000 penalty units, or 12
(c) in the case of an individual (being a previous offender)--150 13
penalty units or imprisonment for 2 years, or both, or 14
(d) in the case of an individual (not being a previous offender)--100 15
penalty units. 16
(3) For the purposes of subsection (1), if the person who supplies the thing: 17
(a) carries on the business of financing the acquisition of the thing by 18
customers, and 19
(b) has, in the course of that business, acquired an interest in the 20
thing solely for the purpose of financing its acquisition by a 21
customer from a third person or its provision to a customer by a 22
third person, and 23
(c) has not taken possession of the thing or has taken possession of it 24
solely for the purpose of passing possession to that customer, 25
the reference in subsection (1) to the person who supplies that thing is 26
instead taken to be a reference to the third person. 27
10 Duties of rail safety workers 28
(1) A rail safety worker, when carrying out rail safety work, must: 29
(a) take reasonable care for his or her own safety, and 30
(b) take reasonable care for the safety of people who may be affected 31
by the rail safety worker's acts or omissions, and 32
(c) co-operate with the rail transport operator with respect to any 33
action taken by the rail transport operator to comply with a 34
requirement imposed by or under this Act or the regulations. 35
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Clause 11 Rail Safety Bill 2008
Part 2 General rail safety
(2) A rail safety worker, when carrying out rail safety work, must not 1
intentionally or recklessly interfere with or misuse anything provided to 2
them by the rail operator: 3
(a) in the interests of safety, or 4
(b) under this Act or the regulations. 5
(3) A rail safety worker, when carrying out rail safety work, must not 6
wilfully or recklessly place the safety of another person on or in the 7
immediate vicinity of rail infrastructure at risk. 8
(4) In determining, for the purposes of subsection (1) (a), (b) or (c), whether 9
a rail safety worker failed to take reasonable care, regard must be had to 10
what the rail safety worker knew about the relevant circumstances. 11
Maximum penalty: 12
(a) in the case of a previous offender--45 penalty units, or 13
(b) in any other case--30 penalty units. 14
Note. The duties and other requirements of this Act and the regulations do not 15
preclude the operation of the occupational health and safety legislation. Section 16
175 provides for this and other matters relating to the relationship between this 17
Act and the regulations and the occupational health and safety legislation. 18
11 Onus of proving limits of what is reasonably practicable under this 19
Division 20
In any proceedings for an offence against a provision of this Division 21
consisting of a failure to comply with a duty to do something so far as 22
is reasonably practicable, it is for the defendant to prove that it was not 23
reasonably practicable to do more than was in fact done to satisfy the 24
duty. 25
Note. This section is based on section 40 of the Health and Safety at Work etc 26
Act 1974 of the United Kingdom. 27
Division 2 Safety management of railway operations 28
12 Safety management system 29
(1) A rail transport operator must have a safety management system that 30
complies with this section for railway operations for which the operator 31
is required to be accredited. 32
Maximum penalty: 33
(a) in the case of a corporation--3,000 penalty units, or 34
(b) in the case of an individual--300 penalty units. 35
(2) The safety management system must: 36
(a) be in a form approved by the ITSRR, and 37
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Rail Safety Bill 2008 Clause 12
General rail safety Part 2
(b) comply with the relevant requirements, and the risk management 1
principles, methods and procedures, prescribed by the 2
regulations, and 3
(c) identify and assess any risks to safety that have arisen or may 4
arise from the carrying out of railway operations, for which the 5
rail transport operator is required to be accredited, on or in 6
relation to the rail transport operator's rail infrastructure or 7
rolling stock, and 8
(d) specify the controls (including audits, expertise, resources and 9
staff) that are to be used by the rail transport operator to manage 10
risks to safety and to monitor safety in relation to those railway 11
operations, and 12
(e) include procedures for monitoring, reviewing and revising the 13
adequacy of those controls, and 14
(f) include the following: 15
(i) measures to manage risks to safety identified under 16
Division 3, 17
(ii) a security management plan in accordance with section 16, 18
(iii) an emergency management plan in accordance with 19
section 17, 20
(iv) a health and fitness management program in accordance 21
with section 18, 22
(v) a drug and alcohol management program in accordance 23
with section 19, 24
(vi) a fatigue management program in accordance with 25
section 20. 26
(3) A rail transport operator, before establishing, reviewing or varying a 27
safety management system for railway operations for which the 28
operator is required to be accredited, must consult, so far as is 29
reasonably practicable, with: 30
(a) persons likely to be affected by the safety management system or 31
its review or variation, being persons who carry out those railway 32
operations or work on or at the rail transport operator's railway 33
premises or with the rail transport operator's rolling stock, and 34
(b) trade unions, or other employee organisations, representing any 35
such persons, and 36
(c) occupational health and safety representatives or any other 37
person who may be consulted with by an employer under 38
section 16 of the Occupational Health and Safety Act 2000, and 39
(d) any other rail transport operator with whom the first-mentioned 40
operator has an interface agreement under Division 3 relating to 41
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Clause 13 Rail Safety Bill 2008
Part 2 General rail safety
risks to safety of railway operations carried out by or on behalf of 1
either of them, and 2
(e) the public, as appropriate. 3
(4) If the safety management system of a rail transport operator and the 4
safety management system of another rail transport operator who has an 5
interface agreement under Division 3 with the first-mentioned rail 6
transport operator, when taken as one system, comply with this section, 7
both safety management systems are taken to comply with this section. 8
(5) A safety management system must be evidenced in writing and: 9
(a) must identify each person responsible for preparing any part of 10
the safety management system, and 11
(b) must identify the person, or class of persons, responsible for 12
implementing the system. 13
(6) In this Part a reference to a safety management system includes a 14
reference to a plan or program or other matter referred to in subsection 15
(2) (f). 16
13 Implementation of and compliance with safety management system 17
(1) A rail transport operator must implement the rail transport operator's 18
safety management system. 19
Maximum penalty: 20
(a) in the case of a corporation--3,000 penalty units, or 21
(b) in the case of an individual--300 penalty units. 22
(2) A rail transport operator must not, without reasonable excuse, fail to 23
comply with the rail transport operator's safety management system for 24
the railway operations for which the operator is required to be 25
accredited. 26
Maximum penalty: 27
(a) in the case of a corporation--3,000 penalty units, or 28
(b) in the case of an individual--300 penalty units. 29
(3) It is a reasonable excuse if the rail transport operator: 30
(a) complies with the safety management system to the extent 31
practicable while complying with a condition or restriction of 32
accreditation, or 33
(b) demonstrates that compliance with the system in particular 34
circumstances would have increased the likelihood of a notifiable 35
occurrence happening. 36
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Rail Safety Bill 2008 Clause 14
General rail safety Part 2
(4) Subsection (3) does not limit the excuses that may be reasonable 1
excuses. 2
14 Review of safety management system 3
A rail transport operator must review the rail transport operator's safety 4
management system in accordance with the regulations: 5
(a) at such times or within such periods as are prescribed by the 6
regulations, or 7
(b) if no times or periods are so prescribed, at least once each 8
calendar year or at such other times or within such other periods 9
as are agreed between the rail transport operator and the ITSRR. 10
Maximum penalty: 11
(a) in the case of a corporation--300 penalty units, or 12
(b) in the case of an individual--150 penalty units. 13
15 Safety performance reports 14
(1) A rail transport operator must give the ITSRR a safety performance 15
report in respect of each reporting period that: 16
(a) is in a form approved by the ITSRR, and 17
(b) complies with the requirements (if any) prescribed by the 18
regulations for the purposes of this section, and 19
(c) contains the following: 20
(i) a description and assessment of the safety performance of 21
the rail transport operator's railway operations, 22
(ii) comments on any deficiencies in, and any irregularities in, 23
the railway operations that may be relevant to the safety of 24
the railway, 25
(iii) a description of any safety initiatives in relation to the 26
railway operations undertaken during the reporting period 27
or proposed to be undertaken in the next reporting period, 28
(iv) any other information or performance indicators 29
prescribed by the regulations for the purpose of this 30
section. 31
(2) A rail transport operator must submit a report in accordance with this 32
section within 6 months after the end of each reporting period or within 33
such other period as is agreed from time to time by the ITSRR and the 34
rail transport operator. 35
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Clause 16 Rail Safety Bill 2008
Part 2 General rail safety
(3) In this section, reporting period means a calendar year, or such other 1
period as is agreed from time to time by the ITSRR and the rail transport 2
operator. 3
Maximum penalty: 4
(a) in the case of a corporation--300 penalty units, or 5
(b) in the case of an individual--150 penalty units. 6
16 Security management plan 7
(1) A rail transport operator must have a security management plan for 8
railway operations carried out by or on behalf of the operator for which 9
the operator is required to be accredited that: 10
(a) incorporates measures to protect people from theft, assault, 11
sabotage, terrorism and other criminal acts of other parties and 12
from other harm, and 13
(b) complies with this Act and the regulations. 14
Note. It is an offence to fail to comply with this subsection (see section 12 which 15
requires this section to be complied with as part of the safety management 16
system). 17
(2) A rail transport operator must ensure that the appropriate response 18
measures of the security management plan are implemented without 19
delay if a security incident occurs. 20
Maximum penalty: 21
(a) in the case of a corporation--3,000 penalty units, or 22
(b) in the case of an individual--300 penalty units. 23
17 Emergency management plan 24
(1) A rail transport operator must have an emergency management plan for 25
railway operations carried out by or on behalf of the operator for which 26
the operator is required to be accredited that: 27
(a) addresses and includes the matters prescribed by the regulations, 28
and 29
(b) is prepared in conjunction with emergency services, and in 30
accordance with the regulations, and 31
(c) is tested, and kept and maintained, in accordance with the 32
regulations. 33
Note. It is an offence to fail to comply with this subsection (see section 12 which 34
requires this section to be complied with as part of the safety management 35
system). 36
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Rail Safety Bill 2008 Clause 18
General rail safety Part 2
(2) The rail transport operator must provide a copy of the emergency 1
management plan to the emergency services and any other person 2
prescribed by the regulations. 3
Maximum penalty: 25 penalty units. 4
(3) A rail transport operator must ensure that the appropriate response 5
measures of the emergency management plan are implemented if an 6
emergency occurs. 7
Maximum penalty: 8
(a) in the case of a corporation--3,000 penalty units, or 9
(b) in the case of an individual--300 penalty units. 10
(4) In this section, emergency service means a body prescribed by the 11
regulations for the purposes of this definition. 12
18 Health and fitness management program 13
A rail transport operator must have a health and fitness management 14
program for rail safety workers who carry out rail safety work in 15
connection with railway operations for which the operator is required to 16
be accredited that complies with the requirements prescribed by the 17
regulations relating to health and fitness management programs. 18
Note. It is an offence to fail to comply with this section (see section 12 which 19
requires this section to be complied with as part of the safety management 20
system). 21
19 Drug and alcohol management program 22
(1) A rail transport operator must have a drug and alcohol management 23
program for rail safety workers who carry out, or are about to carry out, 24
rail safety work in connection with railway operations for which the 25
operator is required to be accredited. 26
(2) The drug and alcohol management program is to include any matters 27
required to be included by the regulations. 28
(3) Without limiting subsections (1) and (2), the regulations are to include 29
requirements with respect to the following: 30
(a) protocols for fair procedures, 31
(b) education and assistance of rail safety workers. 32
(4) The ITSRR may at any time arrange with a rail transport operator for 33
the random testing of any person on duty for the purpose of carrying out, 34
or who is about to carry out, rail safety work for the presence of alcohol 35
or any other drug to ensure that the operator is complying with this 36
section. 37
(5) Schedule 1 has effect. 38
Page 19
Clause 20 Rail Safety Bill 2008
Part 2 General rail safety
(6) For the purposes of this section, a rail safety worker is to be regarded as 1
being about to carry out rail safety work if the worker: 2
(a) has left home or a temporary residence for work (being rail safety 3
work), and 4
(b) has not commenced work after having so left home or the 5
temporary residence. 6
Note. It is an offence to fail to comply with this section (see section 12 which 7
requires this section to be complied with as part of the safety management 8
system). 9
20 Fatigue management 10
(1) A rail transport operator must have a program for the management of 11
fatigue for rail safety workers who carry out rail safety work in 12
connection with railway operations for which the operator is required to 13
be accredited that complies with the requirements prescribed by the 14
regulations relating to fatigue management. 15
Note. It is an offence to fail to comply with this subsection (see section 12 which 16
requires this section to be complied with as part of the safety management 17
system). 18
(2) A rail transport operator must, in accordance with Schedule 2, provide 19
conditions of work for rail safety workers who carry out rail safety work 20
in connection with railway operations for which the operator is required 21
to be accredited. 22
Maximum penalty: 23
(a) in the case of a corporation--3,000 penalty units, or 24
(b) in the case of an individual--300 penalty units. 25
Note. The regulations may exempt (either unconditionally or subject to 26
conditions) a rail transport operator from an obligation under subsection (2), see 27
section 174 (3)). 28
21 Competence of rail safety workers 29
(1) A rail transport operator must, so far as is reasonably practicable, ensure 30
that each rail safety worker who is to carry out rail safety work in 31
connection with railway operations for which the operator is required to 32
be accredited has the competence to carry out that work. 33
Maximum penalty: 34
(a) in the case of a corporation--3,000 penalty units, or 35
(b) in the case of an individual--300 penalty units. 36
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Rail Safety Bill 2008 Clause 22
General rail safety Part 2
(2) For the purposes of subsection (1), the competence of a rail safety 1
worker to carry out rail safety work must be assessed: 2
(a) by reference to: 3
(i) any qualification or unit of competence applicable to the 4
work being carried out that is recognised under the 5
Australian Qualifications Framework overseen by the 6
Ministerial Council on Education, Employment, Training 7
and Youth Affairs, or 8
(ii) if subparagraph (i) does not apply, the prescribed 9
provisions applicable to the rail safety work to be carried 10
out, and 11
(b) by reference to the knowledge and skills of the rail safety worker 12
that are needed to enable the worker to carry out the rail safety 13
work safely. 14
(3) For the purposes of subsection (2), a certificate purporting to have been 15
issued under the Australian Qualifications Framework to a rail safety 16
worker certifying that the worker has certain qualifications or units of 17
competence is evidence that the worker has those qualifications or units 18
of competence. 19
(4) Nothing in this section prevents a rail transport operator from requiring 20
a rail safety worker to undertake further training before carrying out rail 21
safety work. 22
(5) A rail transport operator must maintain records in accordance with the 23
regulations of the competence of rail safety workers who carry out rail 24
safety work in connection with railway operations for which the 25
operator is required to be accredited. 26
Maximum penalty (subsection (5)): 25 penalty units. 27
22 Identification for rail safety workers 28
(1) A rail transport operator must ensure that each rail safety worker who is 29
to carry out rail safety work in relation to the rail transport operator's 30
railway operations has a form of identification that is sufficient to 31
enable the type of competence and training of the rail safety worker for 32
that rail safety work to be checked by a rail safety officer. 33
(2) A rail safety worker who is carrying out rail safety work must, when 34
requested by a rail safety officer to do so, produce the identification 35
provided in accordance with subsection (1) to the rail safety officer. 36
Maximum penalty: 25 penalty units. 37
Page 21
Clause 23 Rail Safety Bill 2008
Part 2 General rail safety
23 Other persons to comply with safety management system 1
A person, not being an employee employed to carry out railway 2
operations, who undertakes railway operations on or in relation to rail 3
infrastructure or rolling stock of a rail transport operator must comply 4
with the safety management system of the rail transport operator to the 5
extent that it applies to those railway operations. 6
Maximum penalty: 7
(a) in the case of a corporation--3,000 penalty units, or 8
(b) in the case of an individual--300 penalty units. 9
24 ITSRR may direct amendment of a safety management system 10
(1) The ITSRR may direct a rail transport operator, by notice in writing, to 11
amend the operator's safety management system within a specified 12
period, being not less than 28 days after the giving of the direction. 13
(2) A direction under this section must state the reasons why the ITSRR 14
considers it is necessary for the rail transport operator to amend the 15
safety management system. 16
(3) The rail transport operator must not, without reasonable excuse, fail to 17
comply with a direction under this section. 18
Maximum penalty: 500 penalty units. 19
Division 3 Interface co-ordination 20
25 Interpretation 21
(1) In this Division: 22
interface agreement means an agreement in writing about managing 23
risks to safety identified and assessed under this Division that includes 24
provisions for: 25
(a) implementing and maintaining measures to manage those risks, 26
and 27
(b) the evaluation, testing and, if appropriate, revision of those 28
measures, and 29
(c) the respective roles and responsibilities of each party to the 30
agreement in relation to those measures, and 31
(d) procedures by which each party to the agreement will monitor 32
compliance with the obligations under the agreement, and 33
(e) a process for reviewing and revising the agreement. 34
public road does not include a Crown road. 35
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Rail Safety Bill 2008 Clause 26
General rail safety Part 2
rail or road crossing means: 1
(a) a railway crossing, or 2
(b) a bridge carrying a road over a railway, or 3
(c) a bridge carrying a railway over a road. 4
railway crossing means: 5
(a) a level crossing, or 6
(b) any area where a footpath or shared path crosses a railway or tram 7
tracks at substantially the same level. 8
roads authority, in relation to a road that is not a public road or a Crown 9
road, means the owner of the road. 10
(2) Words and expression used in this Division have the same meanings as 11
they have in the Roads Act 1993 and the Road Rules 2008. 12
26 Interface co-ordination--rail transport operators 13
(1) A rail transport operator: 14
(a) must identify and assess, so far as is reasonably practicable, risks 15
to safety that may arise from railway operations carried out by or 16
on behalf of the operator and that may be caused wholly or partly 17
by railway operations carried out by or on behalf of any other rail 18
transport operator, and 19
(b) must determine measures to manage, so far as is reasonably 20
practicable, those risks, and 21
(c) must, for the purpose of managing those risks, seek to enter into 22
an interface agreement with the other rail transport operator or 23
rail transport operators. 24
Maximum penalty: 25
(a) in the case of a corporation--3,000 penalty units, or 26
(b) in the case of an individual--300 penalty units. 27
(2) Except to the extent provided by the regulations, subsection (1) (c) does 28
not apply if none of the rail transport operators is a rail infrastructure 29
manager. 30
27 Interface co-ordination--rail infrastructure manager--public roads 31
A rail infrastructure manager: 32
(a) must identify and assess, so far as is reasonably practicable, risks 33
to safety that may arise from railway operations carried out on or 34
in relation to the manager's rail infrastructure and that may so 35
arise wholly or partly because of the existence or use of any rail 36
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Clause 28 Rail Safety Bill 2008
Part 2 General rail safety
or road crossing that is part of a public road or any road work of 1
a public road, and 2
(b) must determine measures to manage, so far as is reasonably 3
practicable, those risks, and 4
(c) must, for the purpose of managing those risks, seek to enter into 5
an interface agreement with the roads authority for the road. 6
28 Interface co-ordination--rail infrastructure manager--roads other than 7
public roads 8
(1) A rail infrastructure manager: 9
(a) must identify and assess, so far as is reasonably practicable, risks 10
to safety that may arise from railway operations carried out on or 11
in relation to the manager's rail infrastructure and that may so 12
arise wholly or partly because of the existence or use of any rail 13
or road crossing that is part of a road (other than a public road) or 14
any road work of any such road, and 15
(b) must consider whether it is necessary to manage those risks in 16
conjunction with the roads authority for the road. 17
(2) If the rail infrastructure manager is of the opinion that it is necessary that 18
those risks be managed in conjunction with the roads authority, the 19
manager: 20
(a) must give written notice of that opinion to the roads authority and 21
must determine measures to manage, so far as is reasonably 22
practicable, those risks, and 23
(b) must, for the purpose of managing those risks, seek to enter into 24
an interface agreement with the roads authority in relation to the 25
road or road work. 26
(3) If the rail infrastructure manager is not of the opinion that it is necessary 27
that those risks be managed in conjunction with the roads authority, the 28
manager must keep a written record of that opinion. 29
29 Interface co-ordination--obligations of roads authorities 30
(1) A roads authority for a public road: 31
(a) must identify and assess, so far as is reasonably practicable, risks 32
to safety that may arise from the existence or use of any rail or 33
road crossing that is part of the road or any road work of the road 34
wholly or partly because of railway operations carried out on or 35
in relation to any rail infrastructure, and 36
(b) must determine measures to manage, so far as is reasonably 37
practicable, those risks, and 38
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Rail Safety Bill 2008 Clause 30
General rail safety Part 2
(c) must, for the purpose of managing those risks, seek to enter into 1
an interface agreement with the rail infrastructure manager of the 2
rail infrastructure. 3
(2) A roads authority that is given a notice under section 28 (2): 4
(a) must identify and assess, so far as is reasonably practicable, risks 5
to safety that may arise from the existence or use of any rail or 6
road crossing that is part of the road or any road work of the road 7
wholly or partly because of railway operations, and 8
(b) must determine measures to manage, so far as is reasonably 9
practicable, those risks, and 10
(c) must, for the purpose of managing those risks, seek to enter into 11
an interface agreement with the rail infrastructure manager of the 12
rail infrastructure. 13
(3) Nothing in this section authorises or requires a roads authority to act 14
inconsistently with, or without regard to, the functions conferred on it 15
by or under any other Act. 16
(4) Nothing in this Division affects the operation of the Civil Liability 17
Act 2002 with respect to roads authorities. 18
30 Assessment of risks 19
A rail transport operator, rail infrastructure manager or roads authority 20
that is required under this Division to identify and assess risks to safety 21
that may arise from operations carried out by another person may do so: 22
(a) by itself identifying and assessing those risks, or 23
(b) by identifying and assessing those risks jointly with the other 24
person, or 25
(c) by adopting the identification and assessment of those risks 26
carried out by the other person. 27
31 Scope of interface agreements 28
An interface agreement: 29
(a) may be entered into by 2 or more rail transport operators or by 30
one or more rail transport operators and one or more roads 31
authorities, and 32
(b) may include measures to manage any number of risks to safety 33
that may arise because of, or partly because of, any railway 34
operations, and 35
(c) may include measures to manage any number of risks to safety 36
that may arise from any railway operations because of, or partly 37
because of, the existence or use of any road or road work, and 38
Page 25
Clause 32 Rail Safety Bill 2008
Part 2 General rail safety
(d) may make provision for or in relation to any matter by applying, 1
adopting or incorporating any matter contained in any document, 2
and 3
(e) may consist of 2 or more documents. 4
32 Interface arrangements may be directed to be made 5
(1) The ITSRR may appoint a person (the appointed person) to exercise 6
functions under this section in relation to interface arrangements. 7
(2) The ITSRR may only appoint a person under this section if the person 8
is not associated with any rail transport operator, rail infrastructure 9
manager or roads authority subject to the proposed interface 10
arrangements. 11
(3) An appointed person may exercise functions under this section if the 12
person is satisfied that a rail transport operator, rail infrastructure 13
manager or roads authority: 14
(a) is unreasonably refusing or failing to enter into an interface 15
agreement with another person as required by this Division, or 16
(b) is unreasonably delaying the negotiation of such an agreement. 17
(4) The appointed person may issue a written notice to the rail transport 18
operator, rail infrastructure manager or roads authority and the other 19
person that: 20
(a) warns of the appointed person's powers under this section, 21
including the power to issue a direction under this section after a 22
specified date, and 23
(b) includes a copy of this section, and 24
(c) may contain suggested terms for inclusion in an interface 25
agreement. 26
(5) An appointed person who issues a notice under this section may also, in 27
writing, request the rail transport operator, rail infrastructure manager 28
or roads authority concerned to provide such information as the 29
appointed person reasonably requires for the purposes of making a 30
direction under this section. 31
(6) If an interface agreement is not entered into by or on the date specified 32
in a notice under this section, the appointed person: 33
(a) may determine the arrangements that are to apply in relation to 34
the management of the applicable risks to safety referred to in this 35
Division, and 36
(b) may direct either or both persons to whom the notice is issued to 37
give effect to those arrangements, and 38
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Rail Safety Bill 2008 Clause 33
General rail safety Part 2
(c) must specify the date by which the direction must be complied 1
with. 2
(7) A direction: 3
(a) must be in writing, and 4
(b) must set out any arrangements determined by the appointed 5
person under subsection (6). 6
(8) A person to whom a direction is given under this section must comply 7
with the direction. 8
Maximum penalty: 9
(a) in the case of a corporation--3,000 penalty units, or 10
(b) in the case of an individual--300 penalty units. 11
33 Register of interface agreements 12
(1) A rail transport operator must maintain a register of the following that 13
are applicable to the operator's railway operations: 14
(a) interface agreements to which it is a party, 15
(b) arrangements determined by an appointed person under this 16
Division. 17
(2) A roads authority must maintain a register of the following that are 18
applicable to the roads or road works for which it is a roads authority: 19
(a) interface agreements to which it is a party, 20
(b) arrangements determined by an appointed person under this 21
Division. 22
Maximum penalty: 23
(a) in the case of a corporation--3,000 penalty units, or 24
(b) in the case of an individual--300 penalty units. 25
Page 27
Clause 34 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
Part 3 Accreditation of rail transport operators 1
Division 1 Requirement for accreditation 2
34 Purpose of accreditation 3
The purpose of accreditation of a rail transport operator in relation to 4
railway operations is to attest that the rail transport operator has 5
demonstrated to the ITSRR the competence and capacity to manage 6
risks to safety associated with those railway operations. 7
35 Accreditation required for railway operations 8
(1) A person must not carry out, or cause or permit to be carried out, any 9
railway operations unless the person: 10
(a) is a rail transport operator who: 11
(i) is accredited under this Part in relation to those operations, 12
or 13
(ii) is exempt under this Act from compliance with this section 14
in relation to those operations, or 15
(b) carries out those operations, or causes or permits those operations 16
to be carried out, for or on behalf of: 17
(i) a rail transport operator who is accredited under this Part 18
in relation to those operations, or 19
(ii) a rail transport operator who is exempt under this Act from 20
compliance with this section in relation to those 21
operations, or 22
(c) is exempt under this Act from compliance with this section in 23
relation to those operations. 24
Maximum penalty: 25
(a) in the case of a corporation--5,000 penalty units, or 26
(b) in the case of an individual--500 penalty units. 27
Note. If a body corporate and related bodies corporate are involved, an 28
exemption may be given so that only one of the bodies need be accredited 29
(related body corporate means related by virtue of section 50 of the 30
Corporations Act 2001 of the Commonwealth). 31
(2) Subsection (1) does not apply to a rail safety worker, not being a rail 32
transport operator, who carries out rail safety work for or on behalf of a 33
rail transport operator or other person who: 34
(a) is accredited under this Part in relation to that rail safety work, or 35
(b) is exempt under this Act from compliance with this section in 36
relation to that rail safety work. 37
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Rail Safety Bill 2008 Clause 36
Accreditation of rail transport operators Part 3
36 Purpose for which accreditation may be granted 1
(1) An accreditation may be granted to a rail transport operator for any one 2
or more of the following purposes: 3
(a) for the carrying out of railway operations for the part or parts of 4
a railway specified in the notice of accreditation, or for a part or 5
parts having the scope or characteristics so specified, 6
(b) for any service or aspect, or part of a service or aspect, of railway 7
operations specified in the notice of accreditation, 8
(c) for specified railway operations to permit any one or more of the 9
following: 10
(i) site preparation, 11
(ii) construction of rail infrastructure, 12
(iii) restoration or repair work, 13
(iv) testing of railway track or other infrastructure, 14
(v) other activities relating to railway operations considered 15
appropriate by the ITSRR and designated in the notice of 16
accreditation. 17
(2) If the applicant so requests, accreditation may be granted for a specified 18
period only. 19
37 Accreditation offences 20
(1) An accredited person must not: 21
(a) fail to comply with a condition or restriction of the person's 22
accreditation, or 23
(b) cause or permit another person to fail to comply with a condition 24
or restriction of the accredited person's accreditation. 25
(2) An accredited person must not carry out or cause or permit the carrying 26
out of a railway operation that is not authorised by an accreditation or 27
in a manner that is not authorised by an accreditation. 28
Maximum penalty: 29
(a) in the case of a corporation--5,000 penalty units, or 30
(b) in the case of an individual--500 penalty units. 31
Division 2 Applications for accreditation 32
38 Application for accreditation 33
(1) A rail transport operator may apply to the ITSRR for accreditation in 34
respect of specified railway operations carried out, or proposed to be 35
carried out, by, or on behalf of, that operator. 36
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Clause 39 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
(2) An application must be made in the manner and form approved by the 1
ITSRR and: 2
(a) must specify the scope and nature of the railway operations in 3
respect of which accreditation is sought, and 4
(b) must include a safety management plan relating to those railway 5
operations, and 6
(c) must specify whether or not the applicant is accredited, or has 7
applied for accreditation, under a corresponding law, and 8
(d) must contain the information prescribed by the regulations, and 9
(e) must be accompanied by the application fee prescribed by the 10
regulations. 11
(3) The ITSRR may require a rail transport operator who has applied for 12
accreditation: 13
(a) to supply further information requested by the ITSRR, and 14
(b) to verify by statutory declaration any information supplied to the 15
ITSRR. 16
39 What applicant for accreditation must demonstrate 17
The ITSRR must not grant accreditation to an applicant unless satisfied, 18
having regard to the guidelines (if any) applicable to this section, that 19
the applicant has demonstrated the following: 20
(a) that the applicant is or is to be a rail infrastructure manager or 21
rolling stock operator, or both, in relation to the railway 22
operations for which accreditation is sought, 23
(b) that the applicant has the competence and capacity to manage 24
risks to safety associated with the railway operations for which 25
accreditation is sought, 26
(c) that the applicant has the competence and capacity to implement 27
the proposed safety management system, 28
(d) that the applicant has met the consultation requirements of this 29
Act in relation to the applicant's safety management system, 30
(e) that the applicant has the financial capacity, or has public risk 31
insurance arrangements, to meet reasonable potential accident 32
liabilities arising from the railway operations, 33
(f) that the applicant has complied with the requirements prescribed 34
by the regulations (if any) for the purposes of this section. 35
Page 30
Rail Safety Bill 2008 Clause 40
Accreditation of rail transport operators Part 3
40 ITSRR may direct applicants to co-ordinate and co-operate in 1
applications 2
(1) If the ITSRR: 3
(a) receives applications from 2 or more rail transport operators for 4
accreditation, and 5
(b) believes that co-ordinated preparation of the applications is 6
necessary to ensure that the railway operations of the applicants 7
are carried out safely, 8
the ITSRR may give a direction in writing to the rail transport operators 9
to co-ordinate their applications. 10
(2) A direction under this section may require each rail transport operator 11
that is the subject of the direction to provide to each other rail transport 12
operator that is the subject of the direction information concerning any 13
circumstances in relation to the carrying out of railway operations by 14
the first-mentioned rail transport operator that could constitute a risk to 15
safety in relation to the carrying out of railway operations by another 16
rail transport operator that is the subject of the direction. 17
(3) A rail transport operator that is given a direction under subsection (1) 18
must comply with the direction. 19
(4) A rail transport operator that has co-ordinated the preparation of an 20
application in accordance with this section must include in the 21
application reference to information given by the rail transport operator 22
to each other rail transport operator, and information given to the rail 23
transport operator by each other rail transport operator, in accordance 24
with a direction under this section. 25
Maximum penalty: 100 penalty units. 26
41 Co-ordination between ITSRR and other Rail Safety Regulators 27
(1) This section applies if the ITSRR receives an application for 28
accreditation, or for variation of accreditation or the conditions or 29
restrictions of accreditation, that indicates that the applicant is 30
accredited, or is seeking accreditation, under a corresponding law of one 31
or more other jurisdictions (whether or not contiguous with this 32
jurisdiction). 33
(2) The ITSRR must, as soon as possible and before deciding whether or 34
not to grant the application, consult with the relevant corresponding 35
Rail Safety Regulator, or Regulators, in relation to the application with 36
a view to the outcome of the application being consistent with the 37
outcome of applications made in the other jurisdiction or jurisdictions. 38
(3) The ITSRR, in complying with subsection (2), must take into account 39
the guidelines (if any) applicable to this section. 40
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Clause 42 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
(4) If the ITSRR does not, in relation to an application, act consistently with 1
the provisions of the guidelines, the ITSRR must give the applicant 2
reasons for not so acting. 3
(5) The ITSRR may grant accreditation to a person who is accredited under 4
a corresponding law of one or more other jurisdictions, without 5
requiring the person to comply with any or all of the requirements of this 6
Division, if the ITSRR is satisfied that: 7
(a) the requirements for that accreditation are of a satisfactory 8
standard in relation to the safe carrying out of railway operations, 9
and 10
(b) the carrying out of railway operations is likely to achieve a level 11
of safety that, in the opinion of the ITSRR, is appropriate for the 12
railway operations concerned. 13
42 Determination of application 14
(1) The ITSRR must, within the relevant period after an application for 15
accreditation is made: 16
(a) if the ITSRR is satisfied as to the matters referred to in section 39 17
and, if applicable, section 40, grant accreditation to the applicant 18
with or without any conditions or restrictions, or 19
(b) if the ITSRR is not so satisfied, refuse the application. 20
(2) A notice granting accreditation must be in writing in the approved form 21
and must specify: 22
(a) the prescribed details of the applicant, and 23
(b) the scope and nature of the railway operations in respect of which 24
the accreditation is granted, and 25
(c) any conditions and restrictions imposed by the ITSRR on the 26
grant of accreditation, and 27
(d) any other information prescribed by the regulations. 28
(3) A notice refusing an application for accreditation, or imposing a 29
condition or restriction on an accreditation, must include: 30
(a) the reasons for the decision to refuse to grant the application or 31
impose the condition or restriction, and 32
(b) information about the right of review under section 157. 33
(4) A notice under subsection (5) (c) extending a period must include 34
information about the right of review under section 157. 35
(5) In this section, relevant period, in relation to an application, means: 36
(a) 6 months after the application was received by the ITSRR, or 37
Page 32
Rail Safety Bill 2008 Clause 43
Accreditation of rail transport operators Part 3
(b) if the ITSRR requested further information, 6 months, or such 1
other period, as is agreed between the ITSRR and the applicant, 2
after the ITSRR receives the last information so requested, or 3
(c) if the ITSRR, by notice in writing given to the applicant before 4
the expiry of the relevant 6 months, specifies another period, that 5
period, 6
whichever is the longer. 7
43 Prescribed conditions and restrictions 8
Accreditation granted to a person under this Part is subject to any 9
conditions or restrictions prescribed by the regulations for the purposes 10
of this section and that are applicable to the grant of accreditation. 11
44 Accreditation cannot be transferred or assigned 12
(1) An accreditation: 13
(a) is personal to the person who holds it, and 14
(b) is not capable of being transferred or assigned to any other person 15
or otherwise dealt with by the person who holds it, and 16
(c) does not vest by operation of law in any other person. 17
(2) A purported transfer or assignment of an accreditation or any other 18
purported dealing with an accreditation by the person who holds it is of 19
no effect. 20
(3) This section has effect despite anything in any Act or any rule of law to 21
the contrary. 22
45 Sale or transfer of railway operations by accredited person 23
(1) If an accredited person proposes to sell or otherwise transfer any 24
railway operations for which the person is accredited, the ITSRR may, 25
on an application for accreditation under this Part being made by the 26
proposed transferee, waive compliance by the proposed transferee with 27
any one or more of the requirements of this Division. 28
(2) The ITSRR is not to waive compliance with any such requirements 29
unless the proposed transferee demonstrates, to the satisfaction of the 30
ITSRR, that the proposed transferee has the competence and capacity to 31
comply with the relevant requirements of this Division that apply to 32
applicants for accreditation of the appropriate kind. 33
(3) A waiver of compliance with requirements may be given subject to such 34
conditions and restrictions (if any) as appear to the ITSRR to be 35
necessary. 36
Page 33
Clause 46 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
(4) In this section: 1
railway operations for which a person is accredited include a part of 2
railway operations or a service or aspect or a part of a service or aspect 3
of railway operations for which a person is accredited. 4
Division 3 Accreditation fees and inspection of documents 5
46 Annual accreditation fees 6
An accredited person must pay the annual accreditation fee prescribed 7
by the regulations. 8
47 Differential accreditation fees 9
The regulations may prescribe different fees for different classes of 10
accredited persons or kinds of accreditation. 11
48 Payment of annual fees 12
The ITSRR may accept payment of an annual accreditation fee due and 13
payable by a person in accordance with an agreement made with the 14
person (for example, relating to the payment of fees by instalments). 15
49 Late payment fees 16
(1) The regulations may impose additional fees for payment of 17
accreditation fees after the due date for payment. 18
(2) A fee for late payment of accreditation fees may be, but is not required 19
to be, calculated on a daily basis. 20
50 Waiver of fees 21
The ITSRR may waive, or refund, the whole or part of any fee payable 22
under this Part. 23
51 Keeping and making available documents for public inspection 24
A rail transport operator must ensure that: 25
(a) if the operator is an accredited person or has an exemption under 26
this Part, the current notice of accreditation or exemption under 27
this Part, and 28
(b) if the operator is a rail infrastructure manager of a private siding 29
registered with the ITSRR, the notice of registration, and 30
(c) any other document prescribed by the regulations for the 31
purposes of this section, 32
Page 34
Rail Safety Bill 2008 Clause 52
Accreditation of rail transport operators Part 3
are available for inspection: 1
(d) if the operator is a body corporate, at the operator's principal 2
office in this State during ordinary business hours, or 3
(e) if the operator is not a body corporate, at the operator's principal 4
place of business or, if the ITSRR approves another place and 5
time, at that place and time. 6
Maximum penalty: 25 penalty units. 7
Division 4 Surrender, revocation and variation of 8
accreditation 9
52 Surrender of accreditation 10
An accredited person may, in accordance with the regulations, 11
surrender the person's accreditation. 12
53 Suspension or revocation of accreditation 13
(1) The ITSRR may take action under this section in respect of an 14
accredited person if: 15
(a) the ITSRR considers that the person is no longer able to 16
demonstrate to the satisfaction of the ITSRR the matters referred 17
to in section 39 or to comply with the conditions or restrictions of 18
accreditation, or 19
(b) the ITSRR considers that the person is not managing the rail 20
infrastructure, or is not operating rolling stock in relation to any 21
rail infrastructure, to which the person's accreditation relates and 22
has not done so for the preceding 12 months, or 23
(c) the accredited person contravenes this Act or the regulations. 24
(2) The ITSRR may take any of the following actions: 25
(a) suspend the accreditation (wholly or in part) for a period 26
determined by the ITSRR, 27
(b) revoke the accreditation (wholly or in part) with immediate effect 28
or with effect from a specified date, 29
(c) impose conditions or restrictions on the accreditation, 30
(d) vary the conditions or restrictions of the accreditation, 31
(e) if the accreditation is revoked, declare that the person is 32
disqualified from applying for accreditation, or for accreditation 33
in relation to specified railway operations, during a specified 34
period. 35
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Clause 54 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
(3) Before making a decision to take action under subsection (2), the 1
ITSRR must notify the accredited person in writing that: 2
(a) the ITSRR is considering making a decision of the kind specified 3
in the notice, for the reasons specified in the notice, and 4
(b) the person may, within 28 days or any longer period that is 5
specified in the notice, make written representations to the 6
ITSRR showing cause why the decision should not be made. 7
(4) The ITSRR must, before taking action under subsection (2), consider 8
any written representations made within the period specified in the 9
notice and not withdrawn. 10
(5) The ITSRR must include in any notice of suspension or revocation of 11
the accreditation of an accredited person the reasons for the suspension 12
or revocation and information about the right of review under 13
section 157. 14
(6) If the ITSRR suspends or revokes the accreditation of a person who is 15
accredited in another jurisdiction, the ITSRR must give notice of the 16
suspension or revocation to the relevant corresponding Rail Safety 17
Regulator. 18
(7) The ITSRR may withdraw suspension of the accreditation of a person 19
by written notice given to the person. 20
54 Immediate suspension of accreditation 21
(1) If the ITSRR considers that there is, or would be, an immediate and 22
serious risk to safety unless an accreditation is suspended immediately, 23
the ITSRR may, by written notice given to an accredited person, 24
immediately suspend the accreditation of the person: 25
(a) wholly or in part, and 26
(b) for a specified period, not exceeding 6 weeks. 27
(2) The ITSRR may, by notice in writing given to a person whose 28
accreditation is suspended wholly or in part or in respect of particular 29
railway operations: 30
(a) reduce the period of suspension specified in a notice under 31
subsection (1), or 32
(b) extend the period of suspension specified in a notice under this 33
section but not so that the suspension continues for more than 34
6 weeks after the date of the notice under subsection (1). 35
(3) The ITSRR may withdraw a suspension of the accreditation of a person 36
by written notice given to the person. 37
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Rail Safety Bill 2008 Clause 55
Accreditation of rail transport operators Part 3
(4) Before making a decision to extend a period of suspension, the ITSRR 1
must notify the person in writing that: 2
(a) the ITSRR is considering extending the period of suspension for 3
the reasons specified in the notification, and 4
(b) the person may, within 7 days or any longer period that is 5
specified in the notice, make written representations to the 6
ITSRR showing cause why the decision should not be made. 7
(5) The ITSRR must, before taking action under subsection (2), consider 8
any written representations made within the period specified in the 9
notice and not withdrawn. 10
(6) The ITSRR must include in the notice extending the suspension the 11
reasons for the extension and information about the right of review 12
under section 157. 13
(7) Section 53 does not apply to the taking of action under this section. 14
55 Application for variation of accreditation 15
(1) An accredited person may apply to the ITSRR for a variation of the 16
person's accreditation. 17
(2) An application for variation must be made in the approved manner and 18
approved form and: 19
(a) must specify the details of the variation being sought, and 20
(b) must contain the information prescribed by the regulations, and 21
(c) must be accompanied by the prescribed application fee (if any). 22
(3) The ITSRR may require an accredited person who has applied for a 23
variation: 24
(a) to supply further information requested by the ITSRR, and 25
(b) to verify by statutory declaration any information supplied to the 26
ITSRR. 27
(4) Sections 39 and 40 apply to an application for variation of an 28
accreditation as if a reference in those sections to accreditation were a 29
reference to variation of accreditation. 30
56 Determination of application for variation of accreditation 31
(1) The ITSRR must, within the relevant period after an application for 32
variation of an accreditation is made: 33
(a) if the ITSRR is satisfied as to the matters referred to in sections 34
39 and 40, so far as they are applicable to the proposed variation, 35
vary the accreditation, with or without any conditions or 36
restrictions, or 37
Page 37
Clause 57 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
(b) if the ITSRR is not so satisfied, refuse the application. 1
(2) A notice varying an accreditation must be in writing in the approved 2
form and must specify: 3
(a) the prescribed details of the applicant, and 4
(b) the variation to the accreditation so far as it applies to the scope 5
and nature of the railway operations, and 6
(c) any conditions and restrictions imposed by the ITSRR on the 7
accreditation as varied, and 8
(d) any other information prescribed by the regulations. 9
(3) A notice refusing an application, or imposing a condition or restriction, 10
must include: 11
(a) the reasons for the decision to refuse to grant the application for 12
variation or imposing the condition or restriction, and 13
(b) information about the right of review under section 157. 14
(4) A notice under subsection (5) extending a period, must include 15
information about the right of review under section 157. 16
(5) In this section, relevant period, in relation to an application, means: 17
(a) 6 months after the application was received by the ITSRR, or 18
(b) if the ITSRR requested further information, 6 months, or such 19
other period, as is agreed between the ITSRR and the applicant, 20
after the ITSRR receives the last information so requested, or 21
(c) if the ITSRR, by notice in writing given to the applicant before 22
the expiry of the relevant 6 months, specifies another period, that 23
period, 24
whichever is the longer. 25
57 Variation of conditions and restrictions 26
(1) An accredited person may apply to the ITSRR for a variation of any 27
condition or restriction to which the accreditation is subject and that was 28
imposed by the ITSRR. 29
(2) An application for variation of a condition or restriction must be made 30
as if it were an application for variation of an accreditation and section 31
55 applies accordingly. 32
(3) The ITSRR must consider the application and may, if satisfied as to the 33
matters referred to in sections 39 and 40 so far as they are applicable to 34
the proposed variation, by notice given to the accredited person and in 35
accordance with the provisions of this Part applicable to a grant of 36
accreditation, grant or refuse to grant the variation. 37
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Rail Safety Bill 2008 Clause 58
Accreditation of rail transport operators Part 3
(4) A notice under subsection (3) refusing to grant a variation of a condition 1
or restriction must include the reasons for the decision to refuse to grant 2
the variation and information about the right of review under section 3
157. 4
58 ITSRR may make changes to conditions or restrictions 5
(1) The ITSRR may, at any time and at the discretion of the ITSRR, vary or 6
revoke a condition or restriction imposed by the ITSRR to which the 7
accreditation of an accredited person is subject or impose a new 8
condition or restriction. 9
(2) Before making a decision to take action under this section, the ITSRR 10
must: 11
(a) notify the person in writing that the ITSRR proposes to take the 12
action specified in the notice, and 13
(b) notify the person in writing that the person may, within 14 days 14
(or any other period that the ITSRR and the person agree on), 15
make written representations to the ITSRR about the intended 16
action, and 17
(c) consider any representations made under paragraph (b) and not 18
withdrawn. 19
(3) The ITSRR is not required to give notice under subsection (2) if the 20
ITSRR considers it necessary to take immediate action in the interests 21
of safety. 22
(4) The ITSRR must: 23
(a) give notice in writing to an accredited person of any action taken 24
under subsection (1), and 25
(b) include in any such notice a statement of reasons for any such 26
action and that the person has a right of review of the decision 27
under section 157. 28
59 Prescribed conditions and restrictions 29
The accreditation of a person that is varied under this Part is subject to 30
any conditions or restrictions prescribed by the regulations and that are 31
applicable to the accreditation as varied. 32
Division 5 Private sidings 33
60 Exemption from accreditation 34
(1) A rail infrastructure manager of a private siding is not required to be 35
accredited under this Act, or to comply with Division 2 or 3 of Part 2 or 36
Page 39
Clause 60 Rail Safety Bill 2008
Part 3 Accreditation of rail transport operators
Division 1 of Part 4, in respect of railway operations (other than those 1
involving the operation of rolling stock) carried out in the private siding. 2
(2) However, if the rail infrastructure manager wishes the private siding to 3
be (or to continue to be) connected with, or to have access to, a railway 4
of an accredited person or a siding, the rail infrastructure manager must: 5
(a) register the private siding with the ITSRR and pay the annual fee 6
(if any) prescribed by the regulations, and 7
(b) comply with conditions imposed by the ITSRR (from time to 8
time) or prescribed by the regulations with respect to the safe 9
construction, maintenance and operation of the private siding, 10
and 11
(c) comply with the provisions of Division 3 of Part 2 in relation to 12
the management of any interface with a railway of an accredited 13
person, and 14
(d) notify the accredited person or operator of the siding in writing of 15
any railway operations affecting or relating to the safety of the 16
railway or other siding. 17
Maximum penalty: 18
(a) in the case of a corporation--5,000 penalty units, or 19
(b) in the case of an individual--500 penalty units. 20
(3) A condition imposed or prescribed under subsection (2) (b) may require 21
a rail infrastructure manager to comply with a provision of Division 2 22
or 3 of Part 2 or Division 1 of Part 4. 23
(4) The ITSRR may, on application by a rail infrastructure manager of a 24
private siding or other interested person, and on payment of the fee (if 25
any) prescribed by the regulations, register the private siding and issue 26
a registration notice to the rail infrastructure manager or person. 27
(5) The ITSRR is to keep a register of private sidings registered under this 28
section and must, if the regulations so provide, make the register 29
available for public inspection at the places prescribed by the 30
regulations. 31
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Rail Safety Bill 2008 Clause 61
Safety reports and investigations Part 4
Part 4 Safety reports and investigations 1
Division 1 Safety reports 2
61 Rail transport operators to provide information 3
(1) The ITSRR may, by notice in writing given to a rail transport operator, 4
require the operator to provide to the ITSRR on or before a specified 5
date and in a manner and form approved by the ITSRR, any or all of the 6
following: 7
(a) information concerning measures taken by the rail transport 8
operator to promote rail safety, 9
(b) information relating to the financial capacity or insurance 10
arrangements of the rail transport operator, to rail safety or to the 11
accreditation of the rail transport operator that the ITSRR 12
reasonably requires. 13
(2) A rail transport operator must comply with a notice given to the operator 14
under subsection (1). 15
Maximum penalty: 16
(a) in the case of a corporation--500 penalty units, or 17
(b) in the case of an individual--250 penalty units. 18
(3) A rail transport operator must provide to the ITSRR, in a manner and 19
form approved by the ITSRR and at the prescribed times and in respect 20
of the prescribed periods, information prescribed by the regulations for 21
the purposes of this subsection relating to rail safety or accreditation. 22
Maximum penalty: 23
(a) in the case of a corporation--500 penalty units, or 24
(b) in the case of an individual--250 penalty units. 25
62 Industry safety reports 26
(1) The ITSRR must, in each year, provide to the Minister an industry 27
safety report relating to the carrying out of railway operations by 28
accredited persons. 29
(2) Without limiting subsection (1), a report under that subsection must 30
include the following: 31
(a) information on the development of rail safety, including on 32
aggregated statistics of a prescribed class (if any) reported to the 33
ITSRR under a rail safety law, in respect of that year, 34
(b) information on any improvements and important changes in 35
relation to rail safety. 36
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Clause 63 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(3) The ITSRR must also report on the matters prescribed by the 1
regulations for the purposes of this section and may report on such other 2
matters as the ITSRR thinks fit. 3
(4) A report under this section may be included in the annual report of the 4
ITSRR under the Annual Reports (Statutory Bodies) Act 1984. 5
63 Notifiable occurrences 6
(1) A rail transport operator must report to the ITSRR or another authority 7
specified by the ITSRR within the time, and in the manner, prescribed 8
by the regulations, all notifiable occurrences that happen on, or in 9
relation to, the rail transport operator's railway premises or railway 10
operations. 11
Maximum penalty: 750 penalty units. 12
(2) Two or more rail transport operators may make a joint report with 13
respect to a notifiable occurrence affecting them. 14
(3) In addition to the matters specified in subsection (1), the ITSRR may, 15
by notice in writing, require a rail transport operator to report to the 16
ITSRR or another authority specified by the ITSRR any other 17
occurrence or type of occurrence that endangers or could endanger the 18
safe operation of any railway operations. 19
(4) A rail transport operator must comply with a notice served under 20
subsection (3). 21
Maximum penalty: 500 penalty units. 22
(5) The ITSRR may require information in a report under this section to be 23
verified by statutory declaration. 24
64 Confidential reporting of safety information by rail safety workers 25
(1) The Chief Investigator may establish a system for the voluntary 26
reporting by rail safety workers of matters that may affect the safe 27
carrying out of railway operations. 28
(2) The Chief Investigator must not disclose to any other person, or to any 29
court, any information that may identify a rail safety worker who 30
provides information under any such voluntary reporting system unless: 31
(a) the worker consents to the disclosure, or 32
(b) the Chief Investigator or a court is of the opinion that it is 33
necessary in the public interest that the information be disclosed. 34
(3) Nothing in this section prevents the Chief Investigator from disclosing 35
information obtained under this section to the Chief Executive or any 36
member of staff of the ITSRR. 37
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Rail Safety Bill 2008 Clause 65
Safety reports and investigations Part 4
(4) Regulations may be made for or with respect to the following matters: 1
(a) the form and manner in which reports may be made, 2
(b) the manner in which reports are to be dealt with and the purposes 3
for which information reported under this section may be used, 4
(c) other requirements for a system established under this section. 5
Note. Under section 210 of the Industrial Relations Act 1996, it is an offence to 6
victimise an employee because the employee informs about, or gives evidence 7
in relation to, a notifiable occurrence or the safety or reliability of railway 8
operations. Section 213 of that Act sets out the remedies available to an 9
employee in those circumstances. Also, section 23 of the Occupational Health 10
and Safety Act 2000 protects an employee who makes a complaint about 11
workplace safety or risks to health. 12
Division 2 Investigations of accidents and incidents 13
65 Investigation into railway accidents and incidents by rail transport 14
operators 15
(1) The Chief Investigator may, by written notice to a rail transport 16
operator, require the rail transport operator to investigate, and report to 17
the Chief Investigator on: 18
(a) any notifiable occurrence, or any other railway accident or 19
incident that has endangered or that may endanger the safety of 20
the railway operations carried out by the rail transport operator, 21
or 22
(b) any matter that may be prescribed by the regulations. 23
(2) The level of investigation of a matter referred to in subsection (1) (a) 24
must be determined by the severity and potential consequences of the 25
notifiable occurrence, accident or incident as well as by other similar 26
occurrences, accidents or incidents and its focus should be to determine 27
the cause and contributing factors, rather than to apportion blame. 28
(3) The rail transport operator must ensure that the investigation is 29
conducted in a manner approved and within the period specified by the 30
Chief Investigator. 31
Maximum penalty: 750 penalty units. 32
(4) A rail transport operator who has carried out an investigation under this 33
section must report to the Chief Investigator on the investigation within 34
the period specified by the Chief Investigator and must provide a copy 35
of the report to the ITSRR. 36
Maximum penalty: 100 penalty units. 37
(5) A rail transport operator must, if required to do so by the Chief 38
Investigator, review and resubmit a report prepared under this section. 39
Maximum penalty: 100 penalty units. 40
Page 43
Clause 66 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(6) The Chief Investigator must, on the 15th day of each month, forward to 1
the Minister a list of any reports provided to the Chief Investigator 2
under this section in the preceding month. 3
(7) In this section and section 66: 4
rail transport operator includes a person who carries out railway 5
operations (other than a rail safety worker or a person who carries out 6
railway operations as an employee). 7
66 Information may not be used in certain proceedings 8
(1) Information that the Chief Investigator or ITSRR obtains by way of a 9
report under section 65 cannot be used in evidence in any criminal or 10
civil proceedings against the rail transport operator that provided the 11
report. 12
(2) However, the information may be relied on in any administrative action 13
under this or any other Act if the action is taken for the purpose of the 14
safe carrying out of railway operations. 15
(3) Despite subsection (1), a court may direct, if it is of the opinion that it 16
is in the public interest to do so, that information referred to in 17
subsection (1) may be used in evidence in particular criminal or civil 18
proceedings against the rail transport operator, subject to the rules of 19
evidence. 20
(4) In determining the public interest under this section, a court is to take 21
into account the adverse impact that use of the information may have on 22
future disclosures by rail transport operators under section 65. 23
(5) This section does not apply: 24
(a) to a train safety recording (other than material prescribed by the 25
regulations for the purposes of this section), or 26
(b) in relation to criminal proceedings for an offence under 27
Division 3 of Part 5 of the Crimes Act 1900, or 28
Note. Division 3 of Part 5 of the Crimes Act 1900 contains offences 29
dealing with the provision of false or misleading information. 30
(c) to information, or in circumstances, that may be prescribed by the 31
regulations. 32
67 Investigations by Chief Investigator 33
(1) The Chief Investigator may investigate any railway accident or incident 34
that may affect the safe carrying out of railway operations. 35
(2) The Chief Investigator must provide to the Minister a written report on 36
an investigation under this section. 37
Page 44
Rail Safety Bill 2008 Clause 68
Safety reports and investigations Part 4
(3) The Minister may require the Chief Investigator to investigate and 1
report to the Minister on any railway accident or incident that may affect 2
the safe carrying out of railway operations or the personal security of 3
any rail safety worker or member of the public using a railway or in or 4
on railway premises. 5
(4) The Chief Investigator may recover the reasonable costs of conducting 6
an investigation under this section as a debt due to the Crown in a court 7
of competent jurisdiction. The costs are recoverable jointly or severally 8
from any one or more rail transport operators responsible for the railway 9
operations concerned. 10
(5) An investigation under this section may be carried out and a report 11
provided under this section whether or not: 12
(a) an investigation is being, or has been, conducted under any other 13
Act or law (including any law of the Commonwealth) relating to 14
the same matter, or 15
(b) the matter is or may be subject to any criminal or civil 16
proceedings, or 17
(c) the matter is the subject of an inquest or inquiry under the 18
Coroners Act 1980, or 19
(d) the matter is or may be the subject of a rail safety inquiry. 20
68 Chief Investigator and transport safety investigator's functions 21
(1) The Chief Investigator may, by notice in writing, require either or both 22
of the following: 23
(a) the attendance of any person at any place to answer questions in 24
relation to an investigation under section 67, 25
(b) the production of any documents or other things required for the 26
purposes of any such investigation. 27
(2) The Chief Investigator may require a person to answer questions in 28
relation to an investigation under section 67. 29
(3) A person given a notice under this section must comply with the notice 30
unless the person has a reasonable excuse. 31
Maximum penalty: 100 penalty units. 32
Note. Section 159 provides protection in relation to self-incriminating evidence. 33
(4) A person attending at a place to answer questions is to be paid expenses 34
of the amount or at the rate approved by the Minister for the purposes 35
of this section. 36
Page 45
Clause 69 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(5) The Chief Investigator may appoint an authorised person (within the 1
meaning of section 45DA of the Transport Administration Act 1988) as 2
a transport safety investigator for the purposes of conducting an 3
investigation under section 67. 4
Note. Section 45DA of the Transport Administration Act 1988 permits the Chief 5
Investigator to delegate any of his or her functions. 6
(6) The Chief Investigator and each transport safety investigator have, in 7
respect of any investigation under section 67, all the functions and 8
immunities of a rail safety officer. 9
69 Rail safety inquiries 10
(1) The Minister may constitute one or more persons as a Board of Inquiry 11
to conduct an inquiry (a rail safety inquiry) into any railway accident or 12
incident or any other event, occurrence, practice or matter that may 13
affect the safe carrying out of railway operations. 14
(2) A rail safety inquiry may be carried out and a report provided whether 15
or not: 16
(a) an investigation is being, or has been, conducted under any other 17
Act or law (including a law of the Commonwealth) relating to the 18
same matter, or 19
(b) the matter is or may be subject to any criminal or civil 20
proceedings, or 21
(c) the matter is the subject of an inquest or inquiry under the 22
Coroners Act 1980. 23
(3) The Minister may not terminate a rail safety inquiry. 24
(4) A Board of Inquiry may, at a rail safety inquiry conducted by it, take 25
evidence on oath or affirmation and, for that purpose, the Board: 26
(a) may require a person appearing at the inquiry to give evidence, to 27
take an oath or to make an affirmation in a form approved by the 28
person presiding, and 29
(b) may administer an oath to, or take an affirmation from, a person 30
appearing at the inquiry. 31
(5) In conducting a rail safety inquiry, a Board of Inquiry: 32
(a) is not bound to act in a formal manner, and 33
(b) is not bound by the rules of evidence and may inform itself on any 34
matter in any way that it considers appropriate. 35
(6) If the Board of Inquiry agrees, an agent (including an Australian legal 36
practitioner) may represent a person or body at a rail safety inquiry. 37
Page 46
Rail Safety Bill 2008 Clause 70
Safety reports and investigations Part 4
(7) A Board of Inquiry is to determine its own procedure, except as 1
provided by this Act or the regulations. 2
70 Chief Investigator may request rail safety inquiry 3
(1) The Chief Investigator may, if he or she considers it to be appropriate in 4
the circumstances, give a written notice to the Minister requesting that 5
any railway accident or incident or any other event, occurrence, practice 6
or matter that may affect the safe carrying out of railway operations be 7
the subject of a rail safety inquiry. 8
(2) If the Minister receives a written notice under subsection (1) from the 9
Chief Investigator, the Minister is to: 10
(a) constitute a Board of Inquiry to conduct a rail safety inquiry into 11
the accident, incident, event, occurrence, practice or matter, or 12
(b) within one month after receiving the notice, provide the Chief 13
Investigator with written reasons for not doing so and table the 14
notice and the reasons in each House of Parliament. 15
(3) If a House of Parliament is not sitting when the Minister seeks to table 16
a notice and reasons, the Minister may present copies of the report to the 17
Clerk of the House concerned. 18
(4) The notice and reasons: 19
(a) are, on presentation and for all purposes, taken to have been 20
tabled, and 21
(b) may be printed by authority of the Clerk of the House, and 22
(c) if so printed, are for all purposes taken to be documents published 23
by or under the authority of the House, and 24
(d) are to be recorded: 25
(i) in the case of the Legislative Council, in the Minutes of 26
Proceedings of the Legislative Council, and 27
(ii) in the case of the Legislative Assembly, in the Votes and 28
Proceedings of the Legislative Assembly, 29
on the first sitting day of the House after receipt of the report by 30
the Clerk. 31
71 Assessors 32
(1) A Board of Inquiry, when conducting, and making a determination in 33
respect of, a rail safety inquiry is to sit with any assessors that may be 34
appointed by the Minister for the purposes of the inquiry. 35
(2) An assessor sitting with a Board of Inquiry has the power to advise the 36
Board of Inquiry but not to adjudicate on any matter before the Board 37
of Inquiry. 38
Page 47
Clause 72 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(3) A Board of Inquiry has the right to consult, either collectively or 1
individually, and either in public or in private, with assessors sitting 2
with it. 3
72 Witnesses and evidence at rail safety inquiries 4
(1) A Board of Inquiry may summon a person to appear at a rail safety 5
inquiry conducted by the Board to give evidence and to produce any 6
documents that are specified in the summons. 7
(2) A Board of Inquiry may require a person appearing at a rail safety 8
inquiry to do any one or more of the following: 9
(a) be sworn or affirmed, 10
(b) produce a document, 11
(c) answer a question. 12
(3) A person attending as a witness before a Board of Inquiry is to be paid 13
expenses of the amount or at the rate approved by the Minister for the 14
purposes of this section. 15
(4) A person must not, without reasonable excuse, fail to comply with a 16
requirement made of the person under this section. 17
Maximum penalty: 250 penalty units. 18
73 Report on rail safety inquiry 19
A Board of Inquiry must, within the period required by the Minister, 20
prepare a report as to the causes of the accident or incident or prepare a 21
report on the other event, occurrence, practice or matter the subject of 22
the rail safety inquiry and provide a copy of the report to the Minister. 23
74 Tabling of reports 24
(1) The Minister is to lay (or cause to be laid) a report under section 62, 25
67 (2) or 73 before both Houses of Parliament as soon as reasonably 26
practicable, but not later than 7 days, after the Minister receives the 27
report. 28
(2) If a House of Parliament is not sitting when the Minister seeks to lay a 29
report before it, the Minister may present copies of the report to the 30
Clerk of the House concerned. 31
(3) The report: 32
(a) is, on presentation and for all purposes, taken to have been laid 33
before the House, and 34
(b) may be printed by authority of the Clerk of the House, and 35
(c) if so printed, is for all purposes taken to be a document published 36
by or under the authority of the House, and 37
Page 48
Rail Safety Bill 2008 Clause 75
Safety reports and investigations Part 4
(d) is to be recorded: 1
(i) in the case of the Legislative Council, in the Minutes of 2
Proceedings of the Legislative Council, and 3
(ii) in the case of the Legislative Assembly, in the Votes and 4
Proceedings of the Legislative Assembly, 5
on the first sitting day of the House after receipt of the report by 6
the Clerk. 7
Division 3 Disclosure of train safety records 8
75 Definitions 9
In this Division: 10
train safety record means any or all of the following: 11
(a) all statements (whether oral or in writing) taken from persons by 12
a rail safety officer or other person for the purposes of a rail safety 13
inquiry or an investigation under section 67, including any record 14
of any such statement, 15
(b) all communications (other than a train safety recording or a 16
transcript of a train safety recording) between persons involved 17
in the operation of a train, 18
(c) medical or private information regarding persons (including 19
deceased persons) involved in an accident or incident the subject 20
of a rail safety inquiry, 21
(d) train safety recordings and transcripts of train safety recordings, 22
(e) any information collected for the purposes of a rail safety inquiry 23
or an investigation under section 67. 24
train safety recording means a recording consisting of (or mainly of) 25
sounds or images or data, or any combination of sounds, images or data, 26
produced by a device installed in a train, a signal box, a train control 27
complex or other railway premises for the purpose of recording 28
operational activities carried out by rail safety workers operating a train 29
and other persons. 30
76 Disclosure of train safety record to Commonwealth or Commonwealth 31
authority 32
(1) Despite any other provision of this Division, the ITSRR, Chief 33
Investigator, a member of a Board of Inquiry or a person who is or was 34
a rail safety officer or any other person may, with the consent of the 35
Minister, disclose to the Commonwealth or a Commonwealth authority 36
the whole or part of a train safety record. 37
Page 49
Clause 77 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(2) The Minister may not consent to a disclosure under this section unless 1
the Minister is of the opinion that it is in the public interest to do so. 2
77 Disclosure of train safety records (other than train safety recordings) to 3
a court or person 4
(1) The ITSRR, Chief Investigator, a member of a Board of Inquiry or a 5
person who is or was a rail safety officer must not, except for the 6
purposes of this Division, directly or indirectly: 7
(a) disclose to any person, or to a court, the whole or part of a train 8
safety record, or 9
(b) produce to any person, or to a court, the whole or any part of a 10
train safety record. 11
Maximum penalty: 100 penalty units. 12
(2) This section does not apply to or in respect of the following: 13
(a) a train safety record that is a train safety recording, 14
(b) criminal proceedings, investigations relating to a criminal 15
offence, investigations by or proceedings before the coroner, or a 16
proceeding relating to bail, 17
(c) disclosure of a train safety record that is permitted under this Act 18
or the regulations, 19
(d) disclosure in accordance with an order of the Supreme Court 20
referred to in subsection (4). 21
(3) A person may apply to the Supreme Court for an order that a train safety 22
record must be disclosed to a court or produced to a court. 23
(4) The Supreme Court must order the disclosure or production of the train 24
safety record if it is satisfied that the public interest in the disclosure 25
outweighs the adverse impact the disclosure or production may have on 26
the inquiry or investigation to which the record relates or any future 27
inquiries or investigations. 28
(5) If the Supreme Court makes an order under subsection (4), the Court 29
must also make an order that restricts access to the train safety record to: 30
(a) the person or persons constituting the court, and 31
(b) the parties to the proceedings (including any interveners), and 32
(c) the parties' legal representatives, and 33
(d) specified witnesses for the purposes of the proceedings, 34
unless the Court is satisfied that such an order would not be in the 35
interests of justice or would not be desirable in the interests of the court 36
performing its functions. 37
Page 50
Rail Safety Bill 2008 Clause 78
Safety reports and investigations Part 4
78 Disclosure of train safety recordings 1
A person must not publish or communicate to any person: 2
(a) a train safety recording or any part of a train safety recording, or 3
(b) any information obtained from a train safety recording or any part 4
of a train safety recording, 5
otherwise than in the course of an inquiry or an investigation into an 6
accident or incident under this Part or for the purposes of, or in 7
connection with: 8
(c) criminal proceedings (not being criminal proceedings in which it 9
is not admissible), investigations relating to any such criminal 10
proceedings or investigations by or proceedings before the 11
coroner, or 12
(d) civil proceedings in which an order is made under section 80, or 13
(e) a disclosure or publication that is permitted under this Act or the 14
regulations. 15
Maximum penalty: 100 penalty units. 16
79 Evidence of train safety recordings in criminal proceedings 17
A train safety recording is not admissible in evidence in any criminal 18
proceedings against a rail safety worker. 19
80 Evidence of train safety recordings in civil proceedings 20
(1) A train safety recording is not admissible in evidence in any civil 21
proceedings against a rail safety worker. 22
(2) A party to civil proceedings may, at any time before the determination 23
of the proceedings, apply to the court in which the proceedings have 24
been instituted for an order that a train safety recording, or part of a train 25
safety recording, be admissible in evidence in the proceedings. 26
(3) If an application is made to a court under subsection (2), the court must: 27
(a) examine the train safety recording, and 28
(b) if it is satisfied: 29
(i) that a material question of fact in the proceedings will not 30
be able to be properly determined from other evidence 31
available to the court, and 32
(ii) that the train safety recording, or a part of the train safety 33
recording, if admitted in evidence in the proceedings, will 34
assist in the proper determination of that material question 35
of fact, and 36
Page 51
Clause 81 Rail Safety Bill 2008
Part 4 Safety reports and investigations
(iii) that, in the circumstances of the case, the public interest in 1
the proper determination of that material question of fact 2
outweighs the public interest in protecting the privacy of 3
rail safety workers, 4
the court may order that the train safety recording, or that part of 5
the train safety recording, be admissible in evidence in the 6
proceedings. 7
(4) If the court makes an order referred to in subsection (3), the train safety 8
recording is, despite subsection (1), admissible in evidence in the 9
proceedings. 10
81 Examination by a court of train safety recording 11
(1) This section applies if a court examines a train safety recording under 12
section 80. 13
(2) The only persons who may be present at the examination are: 14
(a) the person or persons constituting the court, other than the 15
members of the jury (if any), and 16
(b) the legal representatives of the parties to the proceedings, and 17
(c) such other persons (if any) as the court directs. 18
(3) The court may direct that the train safety recording or the part of the 19
train safety recording, or any information obtained from the recording 20
or part of the recording, must not: 21
(a) be published or communicated to any person, or 22
(b) be published or communicated except in such manner, and to 23
such persons, as the court specifies. 24
(4) The train safety recording, or that part of the train safety recording, is 25
not evidence for the purpose of the determination of the liability in the 26
proceedings of a rail safety worker the subject of a recording. 27
(5) If there are 2 or more defendants in the proceedings of whom at least 28
one is a rail safety worker the subject of a recording and the remaining 29
defendant or defendants are not rail safety workers the subject of a 30
recording, the train safety recording, or that part of the train safety 31
recording, is evidence for the purpose of determining whether or not any 32
rail safety worker has been negligent for the purposes only of 33
determining the liability in the proceedings of any defendant who is not 34
a rail safety worker the subject of a recording. 35
82 Compliance with subpoenas and other directions 36
(1) The ITSRR, Chief Investigator, a member of a Board of Inquiry, an 37
assessor or a person who is or was a rail safety officer or an officer of 38
Page 52
Rail Safety Bill 2008 Clause 83
Safety reports and investigations Part 4
the ITSRR or the Ministry of Transport is not obliged to comply with a 1
subpoena or similar direction of a court in relation to civil proceedings 2
to: 3
(a) attend and answer questions relating to an accident or incident or 4
other event, occurrence, practice or matter the subject of the rail 5
safety inquiry or an investigation under section 67, or 6
(b) attend and produce any part of a train safety record relating to any 7
such accident or incident, 8
within 6 months after the day of the accident or incident. 9
(2) A person who has obtained a subpoena or similar direction from a court 10
that does not have to be complied with because of subsection (1) may 11
apply to that court for an order that the subpoena or similar direction be 12
complied with. 13
(3) If the court is satisfied that, in the circumstances of the case, it is 14
desirable, in either the interests of justice or the performance by the 15
court of its functions, for the officer or person to attend and answer 16
questions or to attend and produce train safety records within 6 months 17
after the day of the accident or incident, the court must order that the 18
officer or person comply with the subpoena or similar direction. 19
83 Admissibility of other evidence and liability 20
(1) Nothing in this Division affects the admissibility in any proceedings of 21
evidence of words spoken by a rail safety worker other than evidence 22
constituted by a train safety recording or a transcript or summary of a 23
train safety recording. 24
(2) No liability is incurred by the State and no personal liability is incurred 25
by, or by any person acting at the direction of, the Minister, the ITSRR, 26
the Chief Investigator or a member of a Board of Inquiry in respect of 27
anything done in good faith in connection with the preparation or 28
making public of a report, or the disclosure or publication of 29
information, under this Division. 30
(3) No liability is incurred by a person for publishing in good faith: 31
(a) a report made public, or information published by the ITSRR, 32
Chief Investigator or a member of a Board of Inquiry, under this 33
Division, or 34
(b) a fair report or summary of any such report or information. 35
(4) In this section: 36
liability includes liability for defamation. 37
the State includes the Crown in right of the State and the Government 38
of the State. 39
Page 53
Clause 84 Rail Safety Bill 2008
Part 4 Safety reports and investigations
Division 4 Audit by ITSRR 1
84 Audit of railway operations of rail transport operators 2
(1) The ITSRR: 3
(a) may audit the railway operations of rail transport operators, and 4
(b) may prepare and implement a program (an audit program) for 5
each year for auditing the railway operations of rail transport 6
operators. 7
(2) Without limiting subsection (1) (b), an audit program may focus on one 8
or more of the following: 9
(a) particular rail transport operators, 10
(b) particular criteria relating to rail transport operators, 11
(c) particular aspects of rail safety, 12
(d) particular aspects of railway operations. 13
(3) The ITSRR must give not less than 24 hours notice in writing to a rail 14
transport operator before auditing the operator's railway operations 15
under this section. 16
(4) The regulations may establish procedures for the conduct of audits 17
under this section, including procedures to ensure the confidentiality of 18
records. 19
(5) In this section, rail transport operator includes a person, not being an 20
employee employed to carry out railway operations, who undertakes 21
railway operations in relation to rail infrastructure or rolling stock of a 22
rail transport operator. 23
Page 54
Rail Safety Bill 2008 Clause 85
Investigation powers Part 5
Part 5 Investigation powers 1
Division 1 Powers of entry 2
85 Power to enter places 3
(1) A rail safety officer may, for compliance and investigative purposes or 4
in an emergency, enter a place if: 5
(a) the place is a public place and the entry is made when the place 6
is open to the public, or 7
(b) the occupier of the place consents to the entry, or 8
(c) the entry to the place is authorised by a warrant under section 94, 9
or 10
(d) the place is railway premises and the entry is made: 11
(i) at a reasonable hour in the daytime, or 12
(ii) at any hour during which a railway operation or other 13
related activity is in progress or is usually carried out in or 14
on the railway premises, or 15
(iii) when the place is otherwise open for entry, or 16
(e) the place is railway premises and the entry is urgently required to 17
investigate the circumstances of a notifiable occurrence at any 18
time during which railway operations are being carried out or are 19
usually carried out, or 20
(f) the place is railway premises, or adjoins railway premises, and 21
the entry is urgently required for the purpose of dealing with a 22
railway accident or incident. 23
(2) A rail safety officer who enters railway premises under subsection 24
(1) (d), (e) or (f) must not unnecessarily impede any activities being 25
conducted at the premises. 26
(3) In this Part: 27
compliance and investigative purposes includes the following 28
purposes: 29
(a) purposes related to ascertaining whether a rail safety law has 30
been or is being complied with, including whether an offence has 31
been committed against a rail safety law, 32
(b) purposes related to ascertaining whether the terms of, or a 33
condition or restriction of, an accreditation has been or is being 34
complied with, 35
(c) purposes related to an audit, inspection, investigation, rail safety 36
inquiry or other inquiry under this Act. 37
Page 55
Clause 86 Rail Safety Bill 2008
Part 5 Investigation powers
86 Limitation on entry powers--places used for residential purposes 1
Despite anything to the contrary in this Part, the powers of a rail safety 2
officer under this Part in relation to entering a place are not exercisable 3
in respect of any place (or part of a place) that is used only for residential 4
purposes except: 5
(a) with the consent of the occupier of the place, or 6
(b) under the authority conferred by a search warrant. 7
87 Notice of entry 8
Before a rail safety officer enters railway premises (not being a public 9
place) under section 85, the rail safety officer must give the occupier of 10
the railway premises reasonable notice of the intention to enter unless: 11
(a) the giving of the notice would be reasonably likely to defeat the 12
purpose for which it is intended to enter the premises, or 13
(b) entry to the premises is made with the consent of the occupier of 14
the premises, or 15
(c) entry is required in circumstances where the rail safety officer 16
reasonably believes there is an immediate risk to safety because 17
of the carrying out of railway operations at the premises, or 18
(d) entry is authorised by a search warrant. 19
Division 2 General enforcement powers of rail safety officers 20
88 General powers after entering a place 21
A rail safety officer who enters a place under this Part (including under 22
a search warrant issued under this Part) may do any of the following: 23
(a) search and inspect any part of the place and any rail 24
infrastructure, rolling stock or motor vehicle or any other thing at 25
the place, 26
(b) enter or open, using reasonable force, rail infrastructure, rolling 27
stock, a motor vehicle or other thing at the place to examine the 28
infrastructure, rolling stock, motor vehicle or other thing, 29
(c) take measurements, make surveys and take levels, dig trenches, 30
break up the soil and set up any posts, stakes or markers, 31
(d) test any part of rail infrastructure or rolling stock, 32
(e) inspect, film, photograph, videotape or otherwise record an 33
image, 34
(f) take, or authorise another person to take, for analysis a thing, or 35
a sample of or from a thing, at the place, 36
Page 56
Rail Safety Bill 2008 Clause 89
Investigation powers Part 5
(g) seize anything that the rail safety officer suspects on reasonable 1
grounds is connected with an offence against a rail safety law or 2
to secure any such thing against interference, 3
(h) seize anything if the rail safety officer suspects it is necessary to 4
do so to prevent its use in the commission of an offence against a 5
rail safety law, 6
(i) require any person at the place to answer questions or otherwise 7
give information in relation to the matter the subject of the 8
inspection, investigation or inquiry, 9
(j) mark, tag or otherwise identify rolling stock, a motor vehicle or 10
other thing at the place, 11
(k) take all necessary steps to allow a power under paragraphs (a) to 12
(j) to be exercised. 13
89 Powers of rail safety officers in relation to relevant documents 14
(1) A rail safety officer has the following powers in relation to relevant 15
documents found by a rail safety officer in or on a place entered by the 16
officer or produced to the officer pursuant to a requirement made under 17
this Part: 18
(a) power to take possession of the documents or secure them against 19
interference, 20
(b) power to make copies of, or take extracts from, the documents, 21
(c) power to retain possession of the documents for such period as is 22
necessary to enable the documents to be inspected, and copies of, 23
or extracts from, the documents to be made or taken, 24
(d) power to require any person who was party to the creation of the 25
documents to make a statement providing any explanation that 26
the person is able to provide as to any matter relating to the 27
creation of the documents or as to any matter to which the 28
documents relate. 29
(2) While a rail safety officer retains possession of a document, the officer 30
must permit a person who would be entitled to inspect the document 31
were it not in the possession of the officer to inspect the document at any 32
reasonable time and make a copy of, or take extracts from, the 33
document. 34
(3) If a rail safety officer takes possession of or secures against interference 35
any relevant document on which a person has a lien, the officer's 36
actions do not prejudice the lien. 37
(4) This section does not limit section 88. 38
Page 57
Clause 90 Rail Safety Bill 2008
Part 5 Investigation powers
90 Use of assistants and equipment 1
(1) A rail safety officer may exercise powers under this Part with the aid of 2
such assistants and equipment as the officer considers reasonably 3
necessary in the circumstances. 4
(2) Powers that may be exercised by a rail safety officer under this Part may 5
be exercised by an assistant authorised and supervised by the officer, 6
but only if the officer considers that it is reasonably necessary in the 7
circumstances that the powers be exercised by an assistant. 8
91 Use of electronic equipment 9
(1) Without limiting section 88, if: 10
(a) a thing found in or on rolling stock or a motor vehicle, or at a 11
place, is, or includes, a disk, tape or other device for the storage 12
of information, and 13
(b) the equipment in or on the rolling stock or motor vehicle, or at the 14
place, may be used with the disk, tape or other device, 15
the rail safety officer, or a person assisting the officer, may operate the 16
equipment to access the information. 17
(2) A rail safety officer, or a person assisting an officer, must not operate or 18
seize equipment for the purpose mentioned in this section unless the 19
officer or person assisting believes on reasonable grounds that the 20
operation or seizure of the equipment can be carried out without damage 21
to the equipment. 22
92 Use of equipment to examine or process things 23
(1) Without limiting section 88, a rail safety officer exercising a power 24
under this Part may bring to, onto, or into, rolling stock, a motor vehicle 25
or a place any equipment reasonably necessary for the examination or 26
processing of things found at, on or in the rolling stock, motor vehicle 27
or place in order to determine whether they are things that may be 28
seized. 29
(2) The rail safety officer, or a person assisting the officer, may operate 30
equipment already in or on the rolling stock or motor vehicle, or at the 31
place, to carry out the examination or processing of a thing found in or 32
on the rolling stock or motor vehicle, or at the place, in order to 33
determine whether it is a thing that may be seized, if the officer or 34
person assisting believes on reasonable grounds that: 35
(a) the equipment is suitable for the examination or the processing, 36
and 37
(b) the examination or processing can be carried out without damage 38
to the equipment. 39
Page 58
Rail Safety Bill 2008 Clause 93
Investigation powers Part 5
93 Securing a site 1
(1) For the purpose of protecting evidence that might be relevant for 2
compliance and investigative purposes or ensuring safety, a rail safety 3
officer may secure the perimeter of any site at a place entered under this 4
Part by whatever means the rail safety officer considers appropriate. 5
(2) A person must not, without the permission of a rail safety officer, enter 6
or remain at, a site the perimeter of which is secured under this section. 7
Maximum penalty: 1,000 penalty units. 8
(3) Subsection (2) does not apply if the person enters the site, or remains at 9
the site: 10
(a) to ensure the safety of persons, or 11
(b) to remove deceased persons or animals from the site, or 12
(c) to move a motor vehicle, or the wreckage of a motor vehicle, to a 13
safe place, or 14
(d) to protect the environment from significant damage or pollution. 15
(4) A rail safety officer must not unreasonably withhold a permission 16
referred to in subsection (2). 17
Division 3 Search warrants 18
94 Search warrants 19
(1) A rail safety officer may apply to an authorised officer (within the 20
meaning of the Law Enforcement (Powers and Responsibilities) 21
Act 2002) for a search warrant if the rail safety officer has reasonable 22
grounds for believing that: 23
(a) the provisions of this Act, the regulations or the terms of an 24
accreditation have been or are being contravened in or on any 25
place, or 26
(b) there is in or on any place a thing connected with a contravention 27
of the provisions of this Act, the regulations or the terms of an 28
accreditation. 29
(2) An authorised officer to whom such an application is made may, if 30
satisfied that there are reasonable grounds for doing so, issue a search 31
warrant authorising a rail safety officer named in the warrant: 32
(a) to enter the place, and 33
(b) to search the place for evidence of a contravention of a rail safety 34
law or the terms of an accreditation. 35
Page 59
Clause 95 Rail Safety Bill 2008
Part 5 Investigation powers
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 1
Responsibilities) Act 2002 applies to a search warrant issued under this 2
section. 3
(4) Without limiting the generality of section 71 of the Law Enforcement 4
(Powers and Responsibilities) Act 2002, a police officer: 5
(a) may accompany a rail safety officer executing a search warrant 6
issued under this section, and 7
(b) may take all reasonable steps to assist the rail safety officer in the 8
exercise of the officer's functions under this section. 9
Division 4 Powers to support seizure 10
95 Directions relating to seizure 11
(1) To enable a thing to be seized under this Part, a rail safety officer may 12
direct the person in control of it: 13
(a) to take it to a specified place within a specified time, and 14
(b) if necessary, to remain in control of it at the specified place for a 15
period specified in the direction. 16
(2) A direction under subsection (1): 17
(a) must be given by signed notice in writing given to the person, or 18
(b) if for any reason it is not practicable to give a signed notice in 19
writing to the person, may be given orally and confirmed by 20
signed notice in writing given to the person as soon as is 21
practicable. 22
(3) A further direction may be made under this section about the thing if it 23
is necessary and reasonable to make the further direction. 24
(4) If a rail safety officer has directed a person to take a thing to a specified 25
place within a specified time under subsection (1), a rail safety officer 26
may direct the person to return the thing to the place from which it was 27
taken. 28
(5) A person given a direction under this section must comply with that 29
direction unless the person has a reasonable excuse. 30
Maximum penalty: 100 penalty units. 31
(6) Without limiting what may otherwise be a reasonable excuse, it is a 32
reasonable excuse for a person in control of a thing not to comply with 33
a direction under this section if, in all the circumstances, the direction 34
was unreasonable. 35
Page 60
Rail Safety Bill 2008 Clause 96
Investigation powers Part 5
(7) In this section: 1
in control of a thing means having, or reasonably appearing to a rail 2
safety officer as having, authority to exercise control over the thing. 3
96 Receipt for seized things 4
(1) After a rail safety officer seizes a thing under this Part, the officer must 5
give a receipt for it to the person from whom the thing was seized or the 6
owner of the thing. 7
(2) However, if for any reason it is not practicable to comply with 8
subsection (1), the officer must leave the receipt at the place of seizure 9
in a conspicuous position and in a reasonably secure way. 10
(3) The receipt must describe generally the thing seized and its condition. 11
(4) This section does not apply if it would be impracticable or unreasonable 12
to expect the officer to account for the thing, given its condition, nature 13
or value. 14
97 Access to seized thing 15
(1) Until a seized thing is forfeited or returned, a rail safety officer must 16
allow its owner to inspect it and, if it is a document, to copy it. 17
(2) Subsection (1) does not apply if it is impracticable or it would be 18
unreasonable to allow the inspection or copying. 19
98 Embargo notices 20
(1) This section applies where: 21
(a) a rail safety officer is authorised to seize any record, device or 22
other thing under this Part, and 23
(b) the record, device or other thing cannot, or cannot readily, be 24
physically seized and removed. 25
(2) A rail safety officer may issue an embargo notice under this section. 26
(3) An embargo notice is a notice forbidding the use, movement, sale, 27
leasing, transfer, deletion of information from or other dealing with the 28
record, device or other thing, or any part of it, without the written 29
consent of a rail safety officer or the ITSRR. 30
(4) The embargo notice must: 31
(a) contain the particulars required by the regulations, and 32
(b) list the activities that it forbids, and 33
(c) set out a copy of subsection (9). 34
Page 61
Clause 99 Rail Safety Bill 2008
Part 5 Investigation powers
(5) On issuing an embargo notice, a rail safety officer must: 1
(a) cause a copy of the notice to be served on the owner of the record, 2
device or other thing, or 3
(b) if that person cannot be located after all reasonable steps have 4
been taken to do so, affix a copy of the notice to the record, device 5
or other thing in a prominent position. 6
(6) A person must not do anything that the person knows is forbidden by an 7
embargo notice. 8
Maximum penalty: 750 penalty units. 9
(7) A person must not instruct or request another person to do anything that 10
the person making the instruction or request knows is forbidden by an 11
embargo notice. 12
Maximum penalty: 750 penalty units. 13
(8) It is a defence to a prosecution for an offence against subsection (6) to 14
establish that the defendant: 15
(a) moved the record, device or other thing, or part of it, for the 16
purpose of protecting or preserving it, and 17
(b) notified the rail safety officer who issued the embargo notice of 18
the move, and of the new location of the record, device or other 19
thing or part of it, within 48 hours after the move. 20
(9) A person on whom an embargo notice has been served must take 21
reasonable steps to prevent another person from doing anything 22
forbidden by the embargo notice. 23
Maximum penalty: 750 penalty units. 24
(10) Despite anything to the contrary in any other Act or at law, a sale, lease, 25
transfer or other dealing with a record, device or other thing, or part of 26
it, in contravention of this section is void. 27
Division 5 Dealings with seized items 28
99 Return of seized things 29
(1) As soon as possible after a rail safety officer seizes any thing (including 30
a document) under this Part, the rail safety officer must return the thing 31
to the owner unless: 32
(a) the rail safety officer considers it necessary to retain the thing 33
because it may afford evidence in proceedings, that have been or 34
may be commenced, for an offence against a rail safety law, or 35
(b) the thing is forfeited to the State under section 100, or 36
Page 62
Rail Safety Bill 2008 Clause 100
Investigation powers Part 5
(c) the rail safety officer is otherwise authorised (by law or an order 1
of a court) to retain, destroy or dispose of the thing. 2
(2) The thing may be returned either unconditionally or on such terms and 3
conditions as the rail safety officer considers appropriate to eliminate or 4
reduce any risks to safety. 5
(3) If the rail safety officer imposes terms or conditions on the return of a 6
thing, the owner must comply with each of those terms and conditions. 7
Maximum penalty: 100 penalty units. 8
100 Forfeiture of sample or thing 9
(1) A sample or thing taken for analysis or a thing seized under this Part, is 10
forfeited to the State if the rail safety officer who took, or arranged the 11
taking of, the sample or thing or who seized the thing: 12
(a) after making reasonable efforts, cannot return it to its owner, or 13
(b) after making reasonable inquiries, cannot find its owner, or 14
(c) considers it necessary to retain the sample or thing to prevent the 15
commission of an offence against a rail safety law. 16
(2) For the purposes of subsection (1), the officer is not required to: 17
(a) make efforts if it would be unreasonable to make efforts to return 18
the sample or thing to its owner, or 19
(b) make inquiries if it would be unreasonable to make inquiries to 20
find the owner. 21
(3) Regard must be had to the sample's or thing's condition, nature and 22
value in deciding whether: 23
(a) it is reasonable to make efforts or inquiries, and 24
(b) if efforts or inquiries are made, what efforts or inquiries, 25
including the period over which they are made, are reasonable. 26
(4) In this section: 27
owner, in relation to a sample or a thing taken for analysis, includes the 28
person in charge of the thing or place from which the sample or thing 29
was taken. 30
101 Dealing with forfeited sample or thing 31
(1) On forfeiture of a sample or thing to the State, the sample or thing 32
becomes the State's property and may be dealt with by the ITSRR in any 33
way the ITSRR considers is appropriate. 34
(2) Without limiting subsection (1), the ITSRR may destroy or dispose of 35
the sample or thing. 36
Page 63
Clause 102 Rail Safety Bill 2008
Part 5 Investigation powers
102 Application of Law Enforcement (Powers and Responsibilities) Act 2002 1
Division 2 of Part 17 (other than sections 218 and 221227) of the Law 2
Enforcement (Powers and Responsibilities) Act 2002 applies to 3
property in the custody of a rail safety officer under this Part in the same 4
way as it applies to property in the custody of a police officer. 5
Division 6 Directions 6
103 Rail safety officers may direct certain persons to give assistance 7
(1) A rail safety officer may direct a rail transport operator, a person 8
carrying out railway operations or a rail safety worker to give the rail 9
safety officer reasonable assistance to enable the officer to exercise a 10
function under this Part. 11
(2) When giving a direction to a person under subsection (1), the rail safety 12
officer must warn the person that it is an offence to fail to comply with 13
the direction unless the person has a reasonable excuse. 14
(3) A person given a direction under subsection (1) must comply with the 15
direction unless the person has a reasonable excuse. 16
Maximum penalty: 100 penalty units. 17
(4) In this section: 18
reasonable assistance includes any of the following kinds of assistance: 19
(a) assistance to enable the rail safety officer to find and gain access 20
to electronically stored material and information, 21
(b) unloading rolling stock, 22
(c) running the engine of a locomotive, 23
(d) driving a train, 24
(e) giving the rail safety officer assistance to enter any rail 25
infrastructure or any part of rail infrastructure or open rolling 26
stock or any part of rolling stock. 27
104 Power to direct name and address be given 28
(1) A rail safety officer may direct a person to state the person's name and 29
residential or business address if the officer: 30
(a) finds the person committing an offence against a rail safety law, 31
or 32
(b) finds the person in circumstances that lead, or has information 33
that leads, the officer reasonably to suspect the person has 34
committed an offence against a rail safety law, or 35
Page 64
Rail Safety Bill 2008 Clause 105
Investigation powers Part 5
(c) finds the person at railway premises and: 1
(i) reasonably believes the person is carrying out railway 2
operations or rail safety work, and 3
(ii) reasonably considers that it is necessary for the purposes of 4
this Act or the regulations to know the person's name and 5
residential or business address. 6
(2) When giving a direction under subsection (1), the officer must warn the 7
person it is an offence to fail to state the person's name or address unless 8
the person has a reasonable excuse. 9
(3) The officer may also request the person to provide evidence of the 10
correctness of the stated name or required address if the officer 11
reasonably suspects the stated name or address is false. 12
105 Failure to give name or address 13
A person given a direction under section 104 (1) must comply with the 14
direction unless the person has a reasonable excuse. 15
Maximum penalty: 15 penalty units. 16
106 Power to obtain information, documents and evidence 17
(1) A rail safety officer may, by notice in writing served on a person, 18
require the person to do any one or more of the following things if the 19
officer has reasonable grounds to believe that the person is capable of 20
giving information, producing documents or giving evidence in relation 21
to a possible contravention of a rail safety law or for the purposes of an 22
audit, investigation, rail safety inquiry or other inquiry under this Act: 23
(a) to give a rail safety officer, in writing signed by the person (or, in 24
the case of a body corporate, by a competent officer of the body 25
corporate) and within the time and in the manner specified in the 26
notice, any such information of which the person has knowledge, 27
(b) to produce to a rail safety officer in accordance with the notice 28
any such documents, 29
(c) to appear before a rail safety officer at a time and place specified 30
in the notice and give, either orally or in writing, any such 31
evidence and produce any such documents. 32
(2) A notice under this section must contain a warning that a failure to 33
comply with the notice is an offence. 34
(3) A rail safety officer may inspect a document produced in response to a 35
notice under this section and may make copies of, or take extracts from, 36
the document. 37
Page 65
Clause 107 Rail Safety Bill 2008
Part 5 Investigation powers
(4) A rail safety officer may take possession, and retain possession for as 1
long as is necessary for the purposes of this Act, of a document 2
produced in response to a notice under this section if the person 3
otherwise entitled to possession of the document is supplied, as soon as 4
practicable, with a copy certified by a rail safety officer to be a true 5
copy. 6
(5) A certified copy provided under subsection (4) is receivable in all courts 7
as if it were the original. 8
(6) Until a certified copy of a document is provided under subsection (4), 9
the rail safety officer who has possession of the document must, at such 10
times and places as the officer thinks appropriate, permit the person 11
otherwise entitled to possession of the document, or a person authorised 12
by that person, to inspect the document and make copies of, or take 13
extracts from, the document. 14
107 Failure to comply with notice 15
A person given a notice under section 106 must comply with the 16
requirement unless the person has a reasonable excuse. 17
Maximum penalty: 500 penalty units and, in the case of a continuing 18
offence, a further penalty of 250 penalty units for each day the offence 19
continues. 20
Division 7 Miscellaneous 21
108 Directions may be given under more than one provision 22
(1) A rail safety officer may, on the same occasion, give directions under 23
one or more provisions of this Part. 24
(2) Without limiting subsection (1), a rail safety officer may, in the course 25
of exercising powers under a provision of this Part, take any of the 26
following actions: 27
(a) give further directions under the provision, 28
(b) give directions under one or more other provisions of this Part. 29
109 Temporary closure of railway crossings 30
(1) An authorised person may close temporarily, or regulate, a railway 31
crossing for crossing or passing over or under a railway if satisfied it is 32
necessary because of an immediate threat to safety. 33
(2) If an authorised person decides to close temporarily, or regulate, a 34
railway crossing, the authorised person must, before its closure or 35
Page 66
Rail Safety Bill 2008 Clause 110
Investigation powers Part 5
regulation or, in the case of an immediate threat to safety, as soon as 1
practicable after its closure or regulation: 2
(a) cause a notice of the proposed closure or regulation to be 3
published in a local newspaper circulating in the area in which the 4
railway crossing is situated, and 5
(b) notify the Roads and Traffic Authority and the council of the area 6
concerned of the proposed closure or regulation. 7
(3) In this section: 8
authorised person means a person who holds a specific authority from 9
the ITSRR for the purposes of this section. 10
railway crossing means a level crossing, bridge or another structure 11
used to cross over or under a railway. 12
110 Restoring rail infrastructure and rolling stock etc to original condition 13
after action taken 14
(1) If: 15
(a) a rail safety officer, or a person assisting the officer, takes any 16
action in the exercise or purported exercise of any power under 17
this Part in relation to rail infrastructure or rolling stock, railway 18
premises or a motor vehicle, and 19
(b) damage is caused by the unreasonable exercise of the power or by 20
the use of force that was not authorised under this Part, 21
the rail safety officer must take reasonable steps to return the rail 22
infrastructure or rolling stock, railway premises or motor vehicle to the 23
condition it or they were in immediately before the action was taken. 24
(2) The ITSRR must pay compensation for any damage caused by any rail 25
safety officer in the exercise of a power to enter railway premises under 26
this Part, other than damage arising from work done for the purpose of 27
an inspection that reveals that there has been a contravention of this or 28
any other Act or law. 29
111 Use of force 30
A power conferred by this Part to enter any railway premises, or to do 31
anything in or on any railway premises, may not be exercised unless the 32
rail safety officer or a person assisting an officer proposing to exercise 33
the power uses no more force than is reasonably necessary to effect the 34
entry or to do the thing for which the entry is effected. 35
Page 67
Clause 112 Rail Safety Bill 2008
Part 6 Improvement and prohibition notices
Part 6 Improvement and prohibition notices 1
Division 1 Improvement notices 2
112 Improvement notices 3
(1) A rail safety officer may serve an improvement notice on a person if the 4
officer believes on reasonable grounds that the person: 5
(a) is contravening a provision of a rail safety law, or 6
(b) has contravened a provision of a rail safety law and it is likely that 7
the contravention will continue or be repeated, or 8
(c) is carrying out or has carried out railway operations that threaten 9
safety, or 10
(d) is a roads authority responsible for a road or work that is part of 11
a rail or road crossing that threatens the safety of railway 12
operations. 13
(2) An improvement notice may require the person, within the period 14
specified in the notice: 15
(a) to undertake remedial rail safety work or do any other thing to 16
remedy the contravention or likely contravention, or the matters 17
or activities occasioning the contravention or likely 18
contravention, or 19
(b) to carry out railway operations so that safety is not threatened or 20
likely to be threatened. 21
(3) An improvement notice may require a roads authority, within the period 22
specified in the notice, to carry out operations in relation to the rail or 23
road crossing so that safety is not threatened or likely to be threatened. 24
(4) The period within which a person is required by the improvement notice 25
to comply with the notice must be at least 7 days after service of the 26
notice. 27
(5) An improvement notice must: 28
(a) state the reasons for the service of the notice, and 29
(b) in the case of an improvement notice served in respect of a 30
contravention or likely contravention of a rail safety law, specify 31
the provision of the rail safety law in respect of which that belief 32
is held, and 33
(c) in the case of an improvement notice served on a person who is 34
carrying out or has carried out railway operations that threaten 35
safety, or on a roads authority in respect of a rail or road crossing 36
that threatens safety, specify the operations or matters in respect 37
of which that belief is held, and 38
Page 68
Rail Safety Bill 2008 Clause 112
Improvement and prohibition notices Part 6
(d) include information about the right to a review under Division 3 1
of the decision to serve the notice, and 2
(e) set out the penalty for contravening the notice, and 3
(f) include a statement of the effect of section 115 (Proceedings for 4
offences not affected by improvement notices), and 5
(g) state that it is served under this section. 6
(6) An improvement notice served on a person on a ground stated in 7
subsection (1) (a) or (b): 8
(a) may specify a method by which the alleged contravention or 9
likely contravention, or the matters or activities occasioning the 10
alleged contravention or likely contravention, are to be remedied, 11
and 12
(b) may offer the person on whom the notice has been served a 13
choice of ways by which an alleged contravention or likely 14
contravention, or the matters or activities occasioning the alleged 15
contravention or likely contravention, may be remedied, and 16
(c) may specify that the person provide the ITSRR with a program of 17
rail safety work that the person proposes to carry out to remedy 18
the alleged contravention or likely contravention, or the matters 19
or activities occasioning the alleged contravention or likely 20
contravention, and 21
(d) may include a timetable for the completion of the program of rail 22
safety work. 23
(7) An improvement notice served on a person on a ground stated in 24
subsection (1) (c) or (d): 25
(a) may specify a method by which railway operations or operations 26
in relation to a rail or road crossing may be carried out so that 27
safety is not threatened or likely to be threatened, and 28
(b) may offer the person on whom the notice has been served a 29
choice of ways by which operations may be carried out so that 30
safety is not threatened or likely to be threatened, and 31
(c) may specify that the person provide the ITSRR with a program of 32
operations that the person proposes to carry out to remedy the 33
threat or likely threat to safety, and 34
(d) may include a timetable for the completion of the program of 35
operations. 36
(8) Words and expressions used in this section have the same meanings as 37
they have in Division 3 of Part 2. 38
Page 69
Clause 113 Rail Safety Bill 2008
Part 6 Improvement and prohibition notices
113 Contravention of improvement notice 1
(1) A person on whom an improvement notice has been served must 2
comply with the notice unless the person has a reasonable excuse. 3
Maximum penalty: 4
(a) in the case of a corporation (being a previous offender)-- 5
750 penalty units, or 6
(b) in the case of a corporation (not being a previous offender)-- 7
500 penalty units, or 8
(c) in the case of an individual not acting in the capacity of an 9
employee (being a previous offender)--375 penalty units, or 10
(d) in the case of an individual not acting in the capacity of an 11
employee (not being a previous offender)--250 penalty units, or 12
(e) in the case of an individual acting in the capacity of an employee 13
(being a previous offender)--22.5 penalty units, or 14
(f) in the case of an individual acting in the capacity of an employee 15
(not being a previous offender)--15 penalty units. 16
(2) In proceedings against a person for an offence of engaging in conduct 17
that results in a contravention of a requirement of an improvement 18
notice served on a ground stated in section 112 (1) (a) or (b), it is a 19
defence if the defendant establishes that: 20
(a) the alleged contravention or likely contravention, or 21
(b) the matters or activities occasioning the alleged contravention or 22
likely contravention, 23
were remedied within the period specified in the notice, though by a 24
method different from that specified in the improvement notice. 25
(3) In proceedings against a person for an offence of engaging in conduct 26
that results in a contravention of a requirement of an improvement 27
notice on the ground stated in section 112 (1) (c) or (d), it is a defence 28
if the defendant establishes that the threat to safety was removed within 29
the period specified in the notice, though by a method different from 30
that specified in the improvement notice. 31
114 Withdrawal or amendment of improvement notices 32
(1) An improvement notice served by a rail safety officer: 33
(a) may be withdrawn by notice served by a rail safety officer on the 34
person affected by the notice, and 35
(b) may be amended by any rail safety officer by notice served on the 36
person affected by the notice. 37
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Rail Safety Bill 2008 Clause 115
Improvement and prohibition notices Part 6
(2) An amendment of an improvement notice is effected by service on the 1
person affected of a notice stating the terms of the amendment. 2
(3) An amendment of an improvement notice served on a person is 3
ineffective if it purports to deal with a contravention of a different 4
provision of a rail safety law from that dealt with in the improvement 5
notice as first served. 6
(4) A notice of an amendment of an improvement notice must: 7
(a) state the reasons for the amendment, and 8
(b) include information about obtaining a review under Division 3 of 9
the decision to amend the notice, and 10
(c) state that it is served under this section. 11
115 Proceedings for offences not affected by improvement notices 12
The service, amendment or withdrawal of an improvement notice does 13
not affect any proceedings for an offence against a rail safety law in 14
connection with any matter in respect of which the improvement notice 15
was served. 16
116 ITSRR to arrange for rail safety work required by improvement notice to 17
be carried out 18
(1) If a person fails to comply with an improvement notice served on the 19
person that requires the person to carry out rail safety work to remedy: 20
(a) the alleged contravention or likely contravention, or 21
(b) the matters or activities occasioning the alleged contravention or 22
likely contravention, 23
the ITSRR may arrange for that rail safety work to be carried out. 24
(2) The ITSRR may recover from the person served with an improvement 25
notice referred to in subsection (1) the reasonable costs and expenses 26
incurred by the ITSRR for any such rail safety work. 27
Division 2 Prohibition notices 28
117 Prohibition notice 29
(1) This section applies to an activity that: 30
(a) is occurring in relation to railway operations or railway premises 31
that involves or will involve an immediate risk to safety, or 32
(b) may occur in relation to railway operations or railway premises 33
and, if it occurs, will involve an immediate risk to safety, or 34
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Clause 117 Rail Safety Bill 2008
Part 6 Improvement and prohibition notices
(c) may occur at, on, or in the immediate vicinity of, rail 1
infrastructure or rolling stock and, if it occurs, will involve an 2
immediate risk to safety. 3
(2) If a rail safety officer believes on reasonable grounds that an activity to 4
which this section applies is occurring or may occur, the rail safety 5
officer may serve on a person who has or appears to have control over 6
the activity a prohibition notice prohibiting the carrying on of the 7
activity, or the carrying on of the activity in a specified way, until the 8
rail safety officer has certified in writing that the matters that give or 9
will give rise to the risk have been remedied. 10
(3) A prohibition notice has effect on being served or, if the notice specifies 11
a later date, on that later date. 12
(4) A prohibition notice must: 13
(a) state the basis for the rail safety officer's belief on which the 14
service of the notice is based, and 15
(b) specify the activity which the rail safety officer believes involves 16
or will involve the risk and the matters which give or will give 17
rise to the risk, and 18
(c) if the rail safety officer believes that the activity involves a 19
contravention or likely contravention of a provision of a rail 20
safety law, specify that provision and state the basis for that 21
belief, and 22
(d) include information about the right to a review under Division 3 23
of the decision to serve the notice, and 24
(e) set out the penalty for contravening the notice, and 25
(f) include a statement of the effect of section 121 (Proceedings for 26
offences not affected by prohibition notices), and 27
(g) state that it is served under this section. 28
(5) A prohibition notice may include directions on the measures to be taken 29
to minimise or eliminate the risk, activities or matters to which the 30
notice relates, or the contravention or likely contravention mentioned in 31
subsection (4) (c). 32
(6) A direction in a prohibition notice may: 33
(a) require that measures be taken in accordance with a compliance 34
code, or 35
(b) offer the person on whom the notice has been served a choice of 36
ways to remedy the risk, activities or matters to which the notice 37
relates, or the contravention or likely contravention mentioned in 38
subsection (4) (c). 39
Page 72
Rail Safety Bill 2008 Clause 118
Improvement and prohibition notices Part 6
(7) A prohibition notice that prohibits the carrying on of an activity in a 1
specified way may do so by specifying one or more of the following: 2
(a) a place, or part of a place, at which the activity is not to be carried 3
out, 4
(b) any thing that is not to be used in connection with the activity, 5
(c) any procedure that is not to be followed in connection with the 6
activity. 7
118 Contravention of prohibition notice 8
A person on whom a prohibition notice is served must comply with the 9
notice unless the person has a reasonable excuse. 10
Maximum penalty: 11
(a) in the case of a corporation (being a previous offender)-- 12
1,500 penalty units, or 13
(b) in the case of a corporation (not being a previous offender)-- 14
1,000 penalty units, or 15
(c) in the case of an individual not acting in the capacity of an 16
employee (being a previous offender)--750 penalty units, or 17
(d) in the case of an individual not acting in the capacity of an 18
employee (not being a previous offender)--500 penalty units, or 19
(e) in the case of an individual acting in the capacity of an employee 20
(being a previous offender)--45 penalty units, or 21
(f) in the case of an individual acting in the capacity of an employee 22
(not being a previous offender)--30 penalty units. 23
119 Oral direction before prohibition notice served 24
(1) If a rail safety officer: 25
(a) believes on reasonable grounds that an activity referred to in 26
section 117 (1) is occurring or may occur, and 27
(b) that it is not possible or reasonable to serve a prohibition notice 28
under that section immediately, 29
the officer may direct a person who has or appears to have control over 30
the activity to do or not to do a stated act by telling the person: 31
(c) to do or not to do the stated act, and 32
(d) the reason the direction is being given. 33
(2) A person to whom a direction is given under subsection (1) must 34
comply with it, unless the person has a reasonable excuse. 35
Maximum penalty: 750 penalty units. 36
Page 73
Clause 120 Rail Safety Bill 2008
Part 6 Improvement and prohibition notices
(3) It is a reasonable excuse if the rail safety officer did not tell the person 1
that the person commits an offence if the person does not comply with 2
the direction. 3
(4) A direction given under this section ceases to have effect if a rail safety 4
officer does not, within 5 days of giving the direction, serve a 5
prohibition notice in respect of the activity. 6
120 Withdrawal or amendment of prohibition notice 7
(1) A prohibition notice served by a rail safety officer: 8
(a) may be withdrawn by notice served by a rail safety officer on the 9
person affected by the notice, and 10
(b) may be amended by notice served by a rail safety officer on the 11
person affected by the notice. 12
(2) An amendment of a prohibition notice is effected by service on the 13
person affected of a notice stating the terms of the amendment. 14
(3) An amendment of a prohibition notice is ineffective if it purports to deal 15
with a contravention of a different provision of a rail safety law from 16
that dealt with in the prohibition notice as first served. 17
(4) A notice of an amendment of a prohibition notice must: 18
(a) state the reasons for the amendment, and 19
(b) include information about obtaining a review under Division 3 of 20
the decision to amend the notice, and 21
(c) state that it is served under this section. 22
121 Proceedings for offences not affected by prohibition notices 23
The service, amendment or withdrawal of a prohibition notice does not 24
affect any proceedings for an offence against a rail safety law in 25
connection with any matter in respect of which the prohibition notice 26
was served. 27
Division 3 General provisions relating to notices 28
122 Review of notices by ITSRR 29
(1) A person who is given a notice under this Part may apply in writing to 30
the ITSRR for a review of the notice. 31
(2) The application for review must be made within 28 days after the notice 32
is given or, if the regulations prescribe a different period, within the 33
period so prescribed. 34
(3) An application for review may be made only once in respect of any 35
particular notice. 36
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Rail Safety Bill 2008 Clause 123
Improvement and prohibition notices Part 6
(4) The ITSRR is to review a notice that is the subject of a duly made 1
application for review within 28 days after the application is made. 2
(5) The notice is stayed (unless it is a prohibition notice) from when the 3
application for review is received by the ITSRR until the ITSRR gives 4
notice to the applicant of the result of the review. 5
(6) The ITSRR may, as a result of the review, confirm the notice, vary it or 6
revoke it. The confirmation, variation or revocation has effect when 7
notice of the result of the review is given to the applicant. 8
(7) Regulations may be made with respect to reviews under this section. 9
123 Appeal to Industrial Magistrate following review 10
(1) An applicant who is not satisfied with the result of a review by the 11
ITSRR of a notice under this Part may appeal against the notice to the 12
Local Court constituted by an Industrial Magistrate. 13
(2) An appeal to the Local Court under this section does not operate to stay 14
the notice the subject of the appeal except as otherwise ordered by the 15
Court. 16
(3) The Local Court may, on the appeal, confirm the notice, vary it or 17
revoke it. 18
(4) Regulations may be made with respect to appeals under this section, 19
including the time and manner in which such an appeal is to be made. 20
124 Application to Industrial Magistrate for stay of prohibition notice 21
(1) If a person duly applies under this Part for review of a prohibition 22
notice, the person may apply to the Local Court constituted by an 23
Industrial Magistrate for a stay of the notice. 24
(2) A stay may be granted for such period as the Local Court considers 25
appropriate, but not so as to extend past the time when notice of the 26
result of the review is given to the applicant by the ITSRR. 27
(3) A stay may be granted on such conditions as the Local Court considers 28
appropriate and may be revoked or amended by the Local Court. 29
125 Revocation or withdrawal of notice does not prevent issue of another 30
notice 31
The revocation or withdrawal of a notice under this Part does not 32
prevent the issue of any other notice. 33
Page 75
Clause 126 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
Part 7 Offences, penalties and other sanctions 1
Division 1 Offences 2
126 Obstructing or hindering rail safety officers 3
A person must not: 4
(a) intentionally obstruct or hinder the ITSRR, a rail safety officer or 5
a person assisting the ITSRR or a rail safety officer in the exercise 6
of his or her functions under this Act or the regulations, or induce 7
or attempt to induce any other person to do so, or 8
(b) intentionally conceal from the ITSRR, a rail safety officer or a 9
person assisting the ITSRR or a rail safety officer, the location or 10
existence of, or fail to comply with a request to produce, a record, 11
document or any other thing. 12
Maximum penalty: 1,000 penalty units. 13
127 Offence to impersonate rail safety officer 14
A person who is not a rail safety officer must not impersonate, or falsely 15
represent that the person is, a rail safety officer. 16
Maximum penalty: 100 penalty units. 17
128 Offences involving accreditation 18
A person who: 19
(a) by any false statement or misrepresentation, obtains or attempts 20
to obtain any accreditation under this Act, or 21
(b) forges or fraudulently alters or uses or purports to use any 22
accreditation, or 23
(c) fraudulently allows any such accreditation to be used by any 24
other person, 25
is guilty of an offence. 26
Maximum penalty: 27
(a) in the case of a corporation--5,000 penalty units, or 28
(b) in the case of an individual--500 penalty units. 29
129 Notice to be given of certain matters 30
A person prescribed by the regulations for the purposes of this section 31
must give notice to a rail transport operator, in the approved form and 32
within the period prescribed by the regulations, of the commencement, 33
or discontinuation, or completion of prescribed operations or activities 34
Page 76
Rail Safety Bill 2008 Clause 130
Offences, penalties and other sanctions Part 7
that may adversely affect the safety of any rail infrastructure or rolling 1
stock of a rail transport operator. 2
Maximum penalty: 100 penalty units. 3
130 Tampering with railway equipment 4
(1) A person who tampers with or disables: 5
(a) the emergency or safety equipment of a railway or of a unit or 6
units of rolling stock, or 7
(b) the interlocking system of a railway, 8
is guilty of an offence. 9
Maximum penalty: 1,000 penalty units or 3 years imprisonment, or 10
both. 11
(2) In this section: 12
emergency or safety equipment includes track and communication 13
systems, closed circuit television cameras, emergency help points for 14
passengers, safety signage, emergency breakdown equipment and 15
alarms. 16
interlocking system means any lever or collection of levers, or 17
electrical, electronic or mechanical device or devices, that operate or 18
control points and signals, or signals, and that are interlocked to prevent 19
conflicting movements of trains. 20
131 Railway offences 21
The regulations may make provision for or with respect to the 22
following: 23
(a) the regulation or prohibition of persons travelling or attempting 24
to travel on a train without paying a fare or without paying the 25
correct fare, 26
(b) the regulation or prohibition of persons who travel or attempt to 27
travel on a train for which they do not have the correct, or a valid, 28
ticket or pass, 29
(c) the regulation or prohibition of persons who fail to pay a fare on 30
demand, 31
(d) trespass on railways, 32
(e) the regulation or prohibition of eating, drinking or smoking in 33
trains or in other public areas of a railway, 34
(f) the conduct of passengers and drivers on trains or in other parts 35
of a railway, 36
(g) the powers and duties of drivers of trains and of rail safety 37
officers, 38
Page 77
Clause 132 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
(h) the exclusion of persons, animals or freight from railways, 1
(i) the authority of drivers of trains, and of rail safety officers, to 2
eject persons guilty of any contravention of a regulation, 3
(j) the taking up or setting down of passengers or other matters 4
incidental to the transport of passengers, 5
(k) the carriage of passengers' luggage or other goods, and animals, 6
on trains, 7
(l) the regulation or prohibition of the carriage of passengers 8
standing in or on any part of the train, 9
(m) the custody and return of property left in trains or in other parts 10
of a railway, the payment of compensation for any such property 11
and the disposal or sale of any such property not claimed and the 12
time of any such disposal or sale, 13
(n) the exhibition in or on any train or other part of a railway of such 14
notices in the public interest as the ITSRR considers necessary, 15
(o) the erection and display of signs and notices for the guidance of 16
drivers of trains and the public, 17
(p) the sale of tickets and the conditions under which tickets must be 18
sold, 19
(q) generally as to the regulation and control of trains, of their drivers 20
and passengers, and of other parts of a railway. 21
Division 2 Proceedings for offences 22
132 Proceedings for offences 23
(1) Proceedings for an offence under this Act or the regulations may be 24
dealt with summarily: 25
(a) before the Local Court, or 26
(b) before the Industrial Court of New South Wales. 27
(2) The maximum penalty that may be imposed by the Local Court in 28
proceedings for an offence against this Act or the regulations (including 29
any daily penalty) is 500 penalty units or imprisonment for 12 months, 30
or both. 31
(3) The provisions of the Industrial Relations Act 1996, and of the 32
regulations under that Act, relating to appeals from the Local Court to 33
the Industrial Relations Commission in Court Session in connection 34
with offences against that Act apply to proceedings before the Local 35
Court for offences against this Act or the regulations (other than 36
offences under a regulation made under section 131). 37
Page 78
Rail Safety Bill 2008 Clause 133
Offences, penalties and other sanctions Part 7
(4) In any proceedings for an offence under this Act, the onus of proving 1
that a person had a reasonable excuse is on the defendant. 2
133 Period within which proceedings for offences may be commenced 3
(1) This section applies to an offence against a rail safety law, other than the 4
following: 5
(a) an offence under the regulations, 6
(b) an offence in respect of which proceedings may only be 7
commenced within a period of less than 2 years after its alleged 8
commission, 9
(c) any other offence prescribed by the regulations for the purposes 10
of this section. 11
(2) Despite anything to the contrary in any other Act, proceedings for an 12
offence against a rail safety law to which this section applies may be 13
commenced within: 14
(a) 2 years after the offence was committed, or 15
(b) a further period of one year commencing on the day on which the 16
ITSRR, a rail safety officer or a police officer first obtained 17
evidence of the commission of the alleged offence considered 18
reasonably sufficient by the ITSRR or officer to warrant 19
commencing proceedings. 20
(3) If a relevant inquiry is held and it appears from the report of the inquiry 21
or proceedings at the inquiry that an offence has been committed against 22
this Act or the regulations (whether or not the offender is identified), 23
proceedings in respect of that offence may be instituted within 2 years 24
after the date the report was made or the inquiry was concluded. 25
(4) For the purposes of subsection (2), a certificate purporting to have been 26
issued by the ITSRR, a rail safety officer or a police officer as to the date 27
when the ITSRR or officer first obtained evidence considered 28
reasonably sufficient by the ITSRR or officer to warrant commencing 29
proceedings is admissible in any proceedings and is evidence of the 30
matters stated. 31
(5) In this section: 32
relevant inquiry means: 33
(a) a coronial inquest or inquiry, or 34
(b) a rail safety inquiry, or 35
(c) an investigation by the Chief Investigator, or 36
(d) an inquiry by the Australian Transport Safety Bureau, or 37
(e) any other inquiry prescribed by the regulations. 38
Page 79
Clause 134 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
134 Authority to take proceedings 1
(1) Subject to this section, any legal proceedings for an offence against, or 2
to recover any charge, fee or money due under, this Act or the 3
regulations may be taken only by the ITSRR or by a person authorised 4
by the ITSRR for the purpose, either generally or in any particular case. 5
(2) Proceedings for an offence against this Act are not to be instituted in the 6
Industrial Court of New South Wales without the written consent of the 7
ITSRR or of an officer of the ITSRR authorised by the ITSRR for the 8
purposes of this section. 9
(3) Proceedings against the Crown or a statutory body representing the 10
Crown for an offence against this Act or the regulations are not to be 11
instituted without the written consent of the Minister. 12
(4) In any proceedings referred to in this section, the production of an 13
authority or consent purporting to be signed by the ITSRR or the 14
Minister is to be evidence of the authority or consent without proof of 15
the signature of the ITSRR or the Minister. 16
(5) The ITSRR may, for the purposes of subsection (1), authorise any 17
person who is a member of a specified class of persons to take the 18
actions referred to in that subsection. 19
135 Multiple contraventions of general duties under Part 2 20
(1) More than one contravention of a provision of Part 2 by a person that 21
arise out of the same factual circumstances may be charged as a single 22
offence or as separate offences. 23
(2) This section does not authorise contraventions of 2 or more of those 24
provisions to be charged as a single offence. 25
(3) A single penalty only may be imposed in respect of more than one 26
contravention of any such provision that is charged as a single offence. 27
136 Offences by corporations 28
(1) If a corporation contravenes, whether by act or omission, any provision 29
of this Act or the regulations, each person who is a director of the 30
corporation or who is concerned in the management of the corporation 31
is taken to have contravened the same provision. 32
(2) If an employee contravenes, whether by act or omission, any provision 33
of this Act or the regulations, the employer is taken to have contravened 34
the same provision. 35
Page 80
Rail Safety Bill 2008 Clause 137
Offences, penalties and other sanctions Part 7
(3) A person may be proceeded against and convicted under a provision 1
pursuant to subsection (1) or (2) whether or not the corporation or 2
employee has been proceeded against or has been convicted under the 3
provision. 4
(4) It is a defence to an offence arising under subsection (1) if the defendant 5
establishes that the defendant: 6
(a) was not in a position to influence the conduct of the corporation 7
in relation to its contravention of the provision, or 8
(b) being in such a position, took reasonable precautions and 9
exercised due diligence to prevent the contravention. 10
(5) It is a defence to an offence arising under subsection (2) if the defendant 11
establishes that the defendant: 12
(a) had no knowledge of the actual contravention, or 13
(b) being in such a position, took reasonable precautions and 14
exercised due diligence to prevent the contravention. 15
(6) An officer of a corporation (including a corporation representing the 16
Crown) who is a volunteer is not liable to be prosecuted under this 17
section for anything done or not done by him or her as a volunteer. 18
(7) Nothing in this section affects any liability imposed on a corporation for 19
an offence committed by the corporation under this Act or the 20
regulations. 21
(8) In this section: 22
volunteer means a person who is acting on a voluntary basis 23
(irrespective of whether the person receives out-of-pocket expenses). 24
137 Continuing offences 25
(1) A person who is guilty of an offence because the person contravenes a 26
requirement made by or under this Act or the regulations (whether the 27
requirement is imposed by a notice or otherwise) to do or cease to do 28
something (whether or not within a specified period or before a 29
particular time): 30
(a) continues, until the requirement is complied with and despite the 31
fact that any specified period has expired or time has passed, to 32
be liable to comply with the requirement, and 33
(b) is guilty of a continuing offence for each day the contravention 34
continues. 35
(2) This section does not apply to an offence if the relevant provision of this 36
Act or the regulations does not provide for a penalty for a continuing 37
offence. 38
Page 81
Clause 138 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
(3) This section does not apply to the extent that a requirement of a notice 1
is revoked. 2
138 Proceedings against the Crown and government agencies 3
(1) Sections 119121 and 123 of the Occupational Health and Safety 4
Act 2000 apply to offences against this Act or the regulations, and to 5
proceedings for offences, in the same way as they apply to offences 6
against that Act or the regulations under that Act. 7
(2) Section 122 of the Occupational Health and Safety Act 2000 applies to 8
improvement or prohibition notices under this Act in the same way as it 9
applies to improvement or prohibition notices under that Act. 10
139 Penalty notices 11
(1) An authorised officer may serve a penalty notice on a person if it 12
appears to the officer that the person has committed an offence against 13
this Act or the regulations, being an offence prescribed by the 14
regulations as a penalty notice offence. 15
(2) A penalty notice is a notice to the effect that, if the person served does 16
not wish to have the matter determined by a court, the person can pay, 17
within the time and to the person specified in the notice, the amount of 18
the penalty prescribed by the regulations for the offence if dealt with 19
under this section. 20
(3) A penalty notice may be served personally or by post. 21
(4) If the amount of penalty prescribed for an alleged offence is paid under 22
this section, no person is liable to any further proceedings for the 23
alleged offence. 24
(5) Payment under this section is not to be regarded as an admission of 25
liability for the purpose of, and does not in any way affect or prejudice, 26
any civil claim, action or proceeding arising out of, the same 27
occurrence. 28
(6) The regulations may: 29
(a) prescribe an offence for the purposes of this section by specifying 30
the offence or by referring to the provision creating the offence, 31
and 32
(b) prescribe the amount of penalty payable for the offence if dealt 33
with under this section, and 34
(c) prescribe different amounts of penalties for different offences or 35
classes of offences. 36
Page 82
Rail Safety Bill 2008 Clause 140
Offences, penalties and other sanctions Part 7
(7) The amount of a penalty prescribed under this section for an offence is 1
not to exceed the maximum amount of penalty that could be imposed for 2
the offence by a court. 3
(8) This section does not limit the operation of any other provision of, or 4
made under, this or any other Act relating to proceedings that may be 5
taken in respect of offences. 6
(9) In this section, authorised officer means a person authorised in writing 7
by the ITSRR as an authorised officer for the purposes of this section. 8
Division 3 Enforceable voluntary undertakings 9
140 ITSRR may accept undertakings 10
(1) The ITSRR may accept (by written notice) a written undertaking given 11
by a person in connection with a matter relating to a contravention or 12
alleged contravention by the person of this Act or the regulations. 13
(2) The person may withdraw or vary the undertaking at any time but only 14
with the ITSRR's written consent. 15
(3) Neither the ITSRR nor a rail safety officer may bring proceedings for 16
an offence against this Act or the regulations constituted by the 17
contravention or alleged contravention to which an undertaking that is 18
in force relates. 19
141 Enforcement of undertakings 20
(1) If the ITSRR considers that a person has contravened an undertaking 21
accepted by the ITSRR, the ITSRR may apply to the Local Court 22
constituted by an Industrial Magistrate for enforcement of the 23
undertaking. 24
(2) If the Local Court is satisfied that the person has contravened the 25
undertaking, it may make: 26
(a) an order that the person must comply with the undertaking or take 27
specified action to comply with the undertaking, or 28
(b) any other order that it considers appropriate. 29
Division 4 Court-based sanctions 30
142 Commercial benefits order 31
(1) The court that finds a person guilty of an offence against a rail safety 32
law may, on the application of the prosecutor or the ITSRR, make an 33
order under this section. 34
Page 83
Clause 142 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
(2) The court may make a commercial benefits order requiring the person 1
to pay, as a fine, an amount not exceeding 3 times the amount estimated 2
by the court to be the gross commercial benefit that: 3
(a) was received or receivable, by the person or by an associate of the 4
person, from the commission of the offence, and 5
(b) in the case of a journey that was interrupted or not commenced 6
because of action taken by a rail safety officer in connection with 7
the commission of the offence, would have been received or 8
receivable, by the person or by an associate of the person, from 9
the commission of the offence had the journey been completed. 10
(3) In estimating the gross commercial benefit that was or would have been 11
received or receivable from the commission of the offence, the court 12
may take into account: 13
(a) benefits of any kind, whether monetary or otherwise, and 14
(b) monetary savings or a reduction in any operating or capital 15
expenditure of any kind achieved because of the commission of 16
the offence, and 17
(c) any other matters that it considers relevant, including (for 18
example): 19
(i) the value per tonne or per kilometre of the carriage of the 20
goods involved in the offence as freight, and 21
(ii) the distance over which any such goods were or were to be 22
carried. 23
(4) However, in estimating the gross commercial benefit that was or would 24
have been received or receivable from the commission of the offence, 25
the court is required to disregard any costs, expenses or liabilities 26
incurred by the person or by an associate of the person. 27
(5) Nothing in this section prevents the court from ordering payment of an 28
amount that is: 29
(a) less than 3 times the estimated gross commercial benefit, or 30
(b) less than the estimated gross commercial benefit. 31
(6) For the purposes of this section, a person is an associate of another if: 32
(a) one is a spouse, parent, brother, sister or child of the other, or 33
(b) they are members of the same household, or 34
(c) they are partners, or 35
(d) they are both trustees or beneficiaries of the same trust, or one is 36
a trustee and the other is a beneficiary of the same trust, or 37
(e) one is a body corporate and the other is a director or member of 38
the governing body of the body corporate, or 39
Page 84
Rail Safety Bill 2008 Clause 143
Offences, penalties and other sanctions Part 7
(f) one is a body corporate (other than a public company whose 1
shares are listed on a stock exchange) and the other is a 2
shareholder in the body corporate, or 3
(g) they are related bodies corporate within the meaning of the 4
Corporations Act 2001 of the Commonwealth, or 5
(h) a chain of relationships can be traced between them under any 6
one or more of the above paragraphs. 7
(7) For the purposes of subsection (6), a beneficiary of a trust includes an 8
object of a trust. 9
143 Supervisory intervention order 10
(1) The court that finds a person guilty of an offence against a rail safety 11
law may, on the application of the prosecutor or the ITSRR, if the court 12
considers the person to be a systematic or persistent offender against the 13
Australian rail safety laws, make an order under this section. 14
(2) The court may make a supervisory intervention order requiring the 15
person (at the person's own expense and for a specified period not 16
exceeding one year) to do all or any of the following: 17
(a) to do specified things that the court considers will improve the 18
person's compliance with rail safety laws or specified aspects of 19
rail safety laws, including (for example) the following: 20
(i) appointing or removing staff to or from particular activities 21
or positions, 22
(ii) training and supervising staff, 23
(iii) obtaining expert advice as to maintaining appropriate 24
compliance, 25
(iv) installing monitoring, compliance, managerial or 26
operational equipment, 27
(v) implementing monitoring, compliance, managerial or 28
operational practices, systems or procedures, 29
(b) to conduct specified monitoring, compliance, managerial or 30
operational practices, systems or procedures subject to the 31
direction of the ITSRR or a person nominated by the ITSRR, 32
(c) to furnish compliance reports to the ITSRR or the court or both 33
as specified in the order, 34
(d) to appoint a person to have responsibilities: 35
(i) to assist the person in improving compliance with rail 36
safety laws or specified aspects of rail safety laws, and 37
Page 85
Clause 143 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
(ii) to monitor the person's performance in complying with 1
rail safety laws or specified aspects of rail safety laws and 2
in complying with the requirements of the order, and 3
(iii) to furnish compliance reports to the ITSRR or the court or 4
both as specified in the order. 5
(3) The court may specify matters that are to be dealt with in compliance 6
reports and the form and manner in which, and frequency with which, 7
compliance reports are to be prepared and furnished. 8
(4) The court may require that compliance reports or aspects of compliance 9
reports be made public, and may specify the form and manner in which, 10
and frequency with which, they are to be made public. 11
(5) The court may make a supervisory intervention order only if it is 12
satisfied that the order is capable of improving the person's ability or 13
willingness to comply with the rail safety laws, having regard to: 14
(a) the offences against Australian rail safety laws of which the 15
person has been previously found guilty, and 16
(b) the offences against Australian rail safety laws for which the 17
person has been proceeded against by way of unwithdrawn 18
penalty notices, and 19
(c) any other offences or other matters that the court considers to be 20
relevant to the conduct of the person in connection with railway 21
operations. 22
(6) The order may direct that any other penalty or sanction imposed for the 23
offence by the court is suspended until the court determines whether or 24
not there has been a substantial failure to comply with the order. 25
(7) A court that has power to make supervisory intervention orders may 26
revoke or amend a supervisory intervention order on the application of: 27
(a) the ITSRR, or 28
(b) the person in respect of whom the order was made, but in that 29
case only if the court is satisfied that there has been a change of 30
circumstances warranting revocation or amendment. 31
(8) In this section, compliance report, in relation to a person in respect of 32
whom a supervisory intervention order is made, means a report relating 33
to: 34
(a) the performance of the person in complying with: 35
(i) the rail safety laws or aspects of rail safety laws specified 36
in the order, and 37
(ii) the requirements of the order, and 38
Page 86
Rail Safety Bill 2008 Clause 144
Offences, penalties and other sanctions Part 7
(b) without limiting the above: 1
(i) things done by the person to ensure that any failure by the 2
person to comply with the rail safety laws or the specified 3
aspects of the rail safety laws does not continue, and 4
(ii) the results of those things having been done. 5
144 Contravention of supervisory intervention order 6
A person who is subject to a requirement of a supervisory intervention 7
order must not engage in conduct that results in contravention of the 8
requirement. 9
Maximum penalty: 400 penalty units. 10
145 Exclusion orders 11
(1) The court that finds a person guilty of an offence against a rail safety 12
law may, on the application of the prosecutor or the ITSRR, if the court 13
considers the person to be a systematic or persistent offender against the 14
Australian rail safety laws, make an order under this section. 15
(2) For the purpose of restricting opportunities for the person to commit or 16
be involved in the commission of further offences against Australian 17
rail safety laws, the court may, if it considers it appropriate to do so, 18
make an exclusion order prohibiting the person, for a specified period, 19
from: 20
(a) carrying out specified railway operations or any railway 21
operations, or 22
(b) being a director, secretary or officer concerned in the 23
management of a body corporate involved in managing rail 24
infrastructure that is in this jurisdiction or operating rolling stock 25
in this jurisdiction, or 26
(c) being involved in managing rail infrastructure that is in this 27
jurisdiction or operating rolling stock in this jurisdiction except 28
by driving a train or rolling stock. 29
(3) The court may only make an order under this section if it is satisfied that 30
the person should not continue the things the subject of the proposed 31
order and that a supervisory intervention order is not appropriate, 32
having regard to: 33
(a) the offences against the Australian rail safety laws of which the 34
person has previously been found guilty, and 35
(b) the offences against the Australian rail safety laws for which the 36
person has been proceeded against by way of unwithdrawn 37
penalty notices, and 38
Page 87
Clause 146 Rail Safety Bill 2008
Part 7 Offences, penalties and other sanctions
(c) any other offences or other matters that the court considers to be 1
relevant to the conduct of the person in connection with railway 2
operations. 3
(4) A court that has power to make an exclusion order may revoke or amend 4
an exclusion order on the application of: 5
(a) the ITSRR, or 6
(b) the person in respect of whom the order was made, but in that 7
case only if the court is satisfied that there has been a change of 8
circumstances warranting revocation or amendment. 9
146 Contravention of exclusion order 10
A person who is subject to an exclusion order must not engage in 11
conduct that results in a contravention of the order. 12
Maximum penalty: 400 penalty units. 13
Page 88
Rail Safety Bill 2008 Clause 147
Administration Part 8
Part 8 Administration 1
147 Delegation by Minister 2
(1) The Minister may delegate any function under this Act (except this 3
power of delegation) to any member of staff of the ITSRR. 4
(2) A reference in this section to a function under this Act includes a 5
reference to a function under a condition of an accreditation. 6
148 Appointment of rail safety officers 7
(1) The ITSRR may appoint a member of staff of the ITSRR, or a person of 8
a class prescribed by the regulations, to be a rail safety officer for the 9
purposes of this Act. 10
(2) The authority of a rail safety officer may be limited by the relevant 11
instrument of appointment to the functions specified in the instrument 12
of appointment. 13
(3) In addition to any other persons who may be appointed as rail safety 14
officers under this Act, the ITSRR may, for the purpose of the 15
investigation or exercise of powers related to a specified railway 16
accident or railway incident, appoint as a rail safety officer a person 17
exercising powers, or holding office, under a Commonwealth Act. 18
149 Reciprocal powers of rail safety officers 19
(1) This section has effect in relation to another jurisdiction while there is 20
in force a corresponding rail safety law that contains provisions 21
corresponding to this section. 22
(2) The Minister may enter into an agreement with a Minister of another 23
jurisdiction for the purposes of this section, including an agreement to 24
amend or revoke any such agreement. 25
(3) To the extent envisaged by such an agreement: 26
(a) rail safety officers of this jurisdiction may, in this jurisdiction or 27
the other jurisdiction, exercise functions conferred on rail safety 28
officers of the other jurisdiction by or under the corresponding 29
rail safety law of that other jurisdiction, and 30
(b) rail safety officers of that other jurisdiction may, in this 31
jurisdiction or that other jurisdiction, exercise functions 32
conferred on rail safety officers by or under this Act. 33
(4) Anything done or omitted to be done by a rail safety officer of this 34
jurisdiction under subsection (3) is taken to have been done under this 35
Act as well as under the corresponding rail safety law. 36
Page 89
Clause 150 Rail Safety Bill 2008
Part 8 Administration
(5) The regulations may make provision for or with respect to the exercise 1
of functions under this section. 2
(6) Nothing in this section affects the appointment under section 148 of 3
persons as rail safety officers for the purposes of this Act. 4
150 Identification cards for rail safety officers 5
The ITSRR must: 6
(a) issue a rail safety officer with an identification card, or 7
(b) designate a card issued to a rail safety officer by a corresponding 8
Rail Safety Regulator or by a person, body or authority (whether 9
or not of this jurisdiction) as an identification card for the 10
purposes of this Act. 11
151 Rail safety officer must not exercise functions without identification card 12
A rail safety officer must not exercise a function conferred by or under 13
this Act unless an identification card has been issued to, or designated 14
for, the officer by the ITSRR. 15
152 Display and production of identification card 16
(1) This section applies to a rail safety officer who is exercising, or about to 17
exercise, a function under this Act. 18
(2) A rail safety officer must: 19
(a) display his or her identification card if the officer is not wearing 20
an approved uniform or badge, or 21
(b) produce his or her identification card if requested to do so by a 22
person in relation to whom the officer is exercising, or about to 23
exercise, the function. 24
(3) If it is not practical for a rail safety officer to produce his or her 25
identification card on being requested to do so, the rail safety officer 26
must produce his or her identification card as soon as practicable after 27
the request is made. 28
153 Return of identification cards 29
A person who has ceased to be a rail safety officer must not, without 30
reasonable excuse, refuse or fail to return to the ITSRR, within such 31
period as is specified by the ITSRR in a request for the return of the 32
card, any identification card issued to the person by the ITSRR. 33
Maximum penalty: 15 penalty units. 34
Page 90
Rail Safety Bill 2008 Clause 154
Administration Part 8
154 ITSRR may exercise functions of rail safety officers 1
(1) The ITSRR may exercise any function conferred on a rail safety officer 2
by or under this Act or the regulations. 3
(2) Accordingly, in this Act (except this Part) a reference to a rail safety 4
officer includes a reference to the ITSRR. 5
Page 91
Clause 155 Rail Safety Bill 2008
Part 9 Miscellaneous
Part 9 Miscellaneous 1
155 Act to bind Crown 2
This Act binds the Crown in right of New South Wales and, in so far as 3
the legislative power of the Parliament of New South Wales permits, the 4
Crown in all its other capacities. 5
156 Exchange of information 6
(1) The ITSRR may enter into an arrangement (an information sharing 7
arrangement) with a relevant agency for the purposes of sharing or 8
exchanging information held by the ITSRR and the agency. 9
(2) The information to which an information sharing arrangement may 10
relate is limited to the following: 11
(a) information concerning possible breaches of this Act or the 12
regulations, 13
(b) information concerning the safe carrying out of railway 14
operations, 15
(c) any other information that may be prescribed by the regulations. 16
(3) Under an information sharing arrangement, the ITSRR and the relevant 17
agency are, despite any other Act or other law of the State, authorised: 18
(a) to request and receive information held by the other party to the 19
arrangement, and 20
(b) to disclose information to the other party, 21
but only to the extent that the information is reasonably necessary to 22
assist in the exercise of functions of the ITSRR under this Act (or any 23
other Act administered by the Minister, whether solely or jointly with 24
another Minister) or the functions of the relevant agency concerned. 25
(4) This section does not limit the operation of any Act under which the 26
ITSRR or a relevant agency is authorised or required to disclose 27
information to another person or body. 28
(5) This section does not permit the disclosure of information in 29
contravention of section 64. 30
(6) In this section: 31
relevant agency means: 32
(a) the WorkCover Authority constituted by the Workplace Injury 33
Management and Workers Compensation Act 1998, or 34
(b) the Chief Investigator, or 35
(c) any other person or body prescribed by the regulations. 36
Page 92
Rail Safety Bill 2008 Clause 157
Miscellaneous Part 9
157 Reviewable decisions 1
The following table sets out: 2
(a) decisions made under this Act that are reviewable in accordance 3
with this Part (reviewable decisions), and 4
(b) who is eligible to apply for review of a reviewable decision (the 5
eligible person in relation to the reviewable decision). 6
Item Provision under which Eligible person in relation to
reviewable decision is made reviewable decision
1 Section 24 (1) (direction to amend A rail transport operator given a
safety management system) direction to amend a safety
management system
2 Section 42 (1) (refusal to accredit A rail transport operator whose
or imposing conditions or application for accreditation is
restrictions on accreditation) refused or is subject to conditions
or restrictions
3 Section 42 (extending the period A rail transport operator who has
for determining an application) applied for accreditation
4 Section 53 (suspension or A rail transport operator whose
revocation of accreditation) accreditation is revoked or
suspended
5 Section 54 (1) (immediate A rail transport operator whose
suspension of accreditation) accreditation is suspended
6 Section 54 (extension of A rail transport operator whose
immediate suspension) accreditation is suspended
7 Section 56 (1) (grant of variation A rail transport operator whose
of accreditation subject to accreditation is varied subject to a
conditions or restrictions) condition or restriction
8 Section 56 (1) (refusal to grant A rail transport operator whose
variation of accreditation) application for variation of
accreditation is refused
9 Section 56 (extending the period A rail transport operator who has
for determining an application for applied for variation of
variation) accreditation
10 Section 57 (3) (refusal to grant A rail transport operator whose
variation of condition or application for variation of a
restriction of accreditation) condition or restriction is refused
11 Section 58 (1) (variation or A rail transport operator whose
revocation of a condition or conditions or restrictions of
restriction, or imposition of a new accreditation are changed
condition or restriction)
Page 93
Clause 158 Rail Safety Bill 2008
Part 9 Miscellaneous
Item Provision under which Eligible person in relation to
reviewable decision is made reviewable decision
12 Section 100 (1) (c) (retention of A person who is an owner within
sample or seized thing to prevent the meaning of section 100 (4) of
commission of offence) the sample or thing
158 Review by ITSRR and ADT 1
(1) An eligible person: 2
(a) in relation to a reviewable decision made by the ITSRR may 3
apply to the ITSRR for a review of the decision within 28 days 4
after the decision was made, or 5
(b) in relation to a reviewable decision, other than a decision made 6
by the ITSRR, may apply to the ITSRR for a review of the 7
decision within: 8
(i) 28 days after the day on which the decision first came to 9
the eligible person's notice, or 10
(ii) such longer period as the ITSRR allows. 11
(2) The application must be in the approved form. 12
(3) If an application is made to the ITSRR in accordance with this section, 13
the ITSRR must make a decision: 14
(a) to affirm or vary the reviewable decision, or 15
(b) to set aside the reviewable decision and substitute another 16
decision that the ITSRR considers appropriate. 17
(4) The ITSRR must give a written notice to the applicant setting out: 18
(a) the ITSRR's decision under subsection (3) and the reasons for the 19
decision, and 20
(b) the findings on material questions of fact that led to the decision, 21
referring to the evidence or other material on which those 22
findings were based, 23
and must do so within 14 days after the application is made or, if the 24
reviewable decision was made under section 100, within 7 days after the 25
application is made. 26
(5) If the ITSRR has not notified an applicant of a decision in accordance 27
with subsection (4), the ITSRR is taken to have made a decision to 28
affirm the reviewable decision. 29
(6) An application under this section does not affect the operation of the 30
reviewable decision or prevent the taking of any action to implement it 31
unless the ITSRR, on the ITSRR's own initiative or on the application 32
Page 94
Rail Safety Bill 2008 Clause 159
Miscellaneous Part 9
of the applicant for review, stays the operation of the decision (not being 1
a prohibition notice) pending the determination of the review. 2
(7) The ITSRR must make a decision on an application for a stay within 3
24 hours after the making of the application. 4
(8) If the ITSRR has not made a decision in accordance with subsection (7), 5
the ITSRR is taken to have made a decision to grant a stay. 6
(9) The ITSRR may attach any conditions to a stay of the operation of a 7
reviewable decision that the ITSRR considers appropriate. 8
(10) An eligible person aggrieved by a reviewable decision may appeal to 9
the Administrative Decisions Tribunal against the decision, if the 10
ITSRR has notified the person of a decision under subsection (4) or 11
subsection (5) applies. 12
(11) Section 53 of the Administrative Decisions Tribunal Act 1997 does not 13
apply to a reviewable decision. 14
159 Protection from incrimination 15
(1) Self-incrimination not an excuse 16
A person is not excused from a requirement under Division 2 of Part 4 17
or Part 5 to make a statement, to give or furnish information, to answer 18
a question or to produce a document on the ground that the statement, 19
information, answer or document might incriminate the person or make 20
the person liable to a penalty. 21
(2) Statement, information or answer not admissible if objection made 22
However, any statement made or any information or answer given or 23
furnished by a natural person in compliance with a requirement under 24
this Act is not admissible in evidence against the person in criminal 25
proceedings (except proceedings for an offence under Part 5 or section 26
126 or in respect of false information) if: 27
(a) the person objected at the time to doing so on the ground that it 28
might incriminate the person, or 29
(b) the person was not warned at an appropriate time that the person 30
may object to making the statement or giving or furnishing the 31
information or answer on the ground that it might incriminate the 32
person. 33
(3) Appropriate time for giving warning about incrimination 34
An appropriate time for warning a person as referred to in subsection 35
(2) (b) is any of the following times: 36
(a) the time when the requirement to make the statement or to give 37
or furnish the answer or information is made, 38
Page 95
Clause 160 Rail Safety Bill 2008
Part 9 Miscellaneous
(b) in the case of evidence required to be given when appearing 1
before a rail safety officer or other person, any time after the start 2
of the appearance before the rail safety officer or person, 3
(c) at or about the time immediately before the person makes the 4
statement or gives or furnishes the answer or information. 5
(4) Documents admissible 6
Any document produced by a person in compliance with a requirement 7
under Division 2 of Part 4 or Part 5 is not inadmissible in evidence 8
against the person in criminal proceedings on the ground that the 9
document might incriminate the person. 10
(5) Further information 11
Further information obtained as a result of a document produced, a 12
statement made or information or an answer given or furnished in 13
compliance with a requirement under Division 2 of Part 4 or Part 5 is 14
not inadmissible on the ground: 15
(a) that the document, statement, information or answer had to be 16
produced, made, given or furnished, or 17
(b) that the document, statement, information or answer might 18
incriminate the person. 19
160 Records and evidence from records 20
(1) The ITSRR must keep records of the grant, refusal, variation, 21
suspension, surrender and revocation of accreditations, and of any 22
conditions or restrictions of accreditations, and of improvement notices 23
and prohibition notices, under this Act. 24
(2) A certificate purporting to be signed by the ITSRR and certifying that: 25
(a) on a date specified in the certificate, or 26
(b) during any period so specified, 27
the particulars set out in the certificate as to any matter required to be 28
recorded under this section did or did not appear on or from the records 29
is, for the purposes of any legal proceedings, evidence of what it 30
certifies. 31
(3) Such a certificate is admissible in any proceedings: 32
(a) without proof of the signature of the ITSRR, and 33
(b) without production of any record or document on which the 34
certificate is founded. 35
Page 96
Rail Safety Bill 2008 Clause 161
Miscellaneous Part 9
161 Certificate evidence 1
A statement in a certificate purporting to be issued by the ITSRR, a 2
corresponding Rail Safety Regulator, a rail safety officer or a police 3
officer as to any matter that appears in, or can be calculated from, 4
records kept or accessed by the ITSRR is admissible in any proceedings 5
and is evidence of the matter. 6
162 Disclosure of information 7
(1) This section applies to a person engaged or previously engaged in the 8
administration of this Act and (without limiting the foregoing) to the 9
following persons: 10
(a) a rail safety officer or a person assisting a rail safety officer, 11
(b) a person authorised by the ITSRR or a rail safety officer under a 12
provision of this Act to do the act or thing provided for in that 13
provision, 14
(c) a person who is or was a delegate of the ITSRR, 15
(d) a person who is or was employed by, or engaged to provide 16
services to or on behalf of, the ITSRR, 17
(e) a person who is or was employed by, or engaged to provide 18
services to, a person or body engaged to provide services to the 19
ITSRR. 20
(2) A person to whom this section applies must not disclose or 21
communicate information obtained (whether by that person or 22
otherwise) in the administration of this Act except: 23
(a) as required or authorised by or under this or any other Act, or 24
(b) with the consent of the person from whom the information was 25
obtained or to whom the information relates, or 26
(c) in connection with the administration of rail safety laws and 27
corresponding rail safety laws, or 28
(d) for law enforcement purposes, rail safety inquiries or public 29
safety, or 30
(e) to a court or in connection with any legal proceedings, or 31
(f) in accordance with the regulations. 32
Maximum penalty: 20 penalty units. 33
(3) Nothing in this section prevents information being used to enable an 34
Australian Rail Safety Regulator to accumulate aggregate data and to 35
enable the Australian Rail Safety Regulator to authorise use of the 36
aggregate data for the purposes of research or education. 37
Page 97
Clause 163 Rail Safety Bill 2008
Part 9 Miscellaneous
163 Civil liability not affected by Part 2 1
(1) Nothing in Part 2 is to be construed: 2
(a) as conferring a right of action in any civil proceedings in respect 3
of any contravention, whether by act or omission, of any 4
provisions of that Part, or 5
(b) as conferring a defence to an action in any civil proceedings or as 6
otherwise affecting a right of action in any civil proceedings. 7
(2) Subsection (1) does not affect the extent (if any) to which a breach of 8
duty imposed by the regulations is actionable. 9
164 Exclusion of personal liability 10
No matter or thing done, or omitted to be done, by the Minister, the 11
ITSRR, the Chief Investigator, a member of, or an assessor for, a Board 12
of Inquiry, an officer of the ITSRR, a rail safety officer or a person 13
acting under the direction of the Minister, the ITSRR, the Chief 14
Investigator, a member or any such officer subjects the Minister, the 15
ITSRR, the Chief Investigator, a member, an assessor or any such 16
officer or person personally to any action, liability, claim or demand if 17
the matter or thing was done, or omitted to be done, in good faith for the 18
purposes of this or any other Act. 19
165 Exclusion of liability of the State 20
No act or omission of the Minister, the ITSRR, the Chief Investigator, 21
a member of, or an assessor for, a Board of Inquiry, a rail safety officer 22
or an officer of the ITSRR in the course of exercising functions (or 23
failing to exercise functions) under this Act gives rise to any civil 24
liability (including, for example, liability in negligence or for breach of 25
statutory duty) against the State or any authority of the State. 26
166 Immunity for reporting unfit rail safety worker 27
(1) No action may be taken against a person to whom this section applies 28
who, in good faith, reports to: 29
(a) the ITSRR, or 30
(b) a rail transport operator, or 31
(c) any other person to whom this section applies who is employed 32
or engaged by the ITSRR or a rail transport operator, 33
any information which discloses that a person is unfit to carry out rail 34
safety work or certain types of rail safety work or that it may be 35
dangerous to allow that person to carry out rail safety work or certain 36
types of rail safety work. 37
Page 98
Rail Safety Bill 2008 Clause 167
Miscellaneous Part 9
(2) No action may be taken against a person to whom this section applies 1
who, in good faith, reports: 2
(a) the results of a test or examination carried out under this Act or 3
the regulations, or 4
(b) an opinion formed by that person as a result of conducting such a 5
test or examination, 6
to a person referred to in subsection (1) (a), (b) or (c). 7
(3) This section applies to the following persons: 8
(a) a registered medical practitioner, 9
(b) a registered optometrist, 10
(c) a registered physiotherapist. 11
167 Approval of compliance codes and guidelines 12
(1) For the purpose of providing practical guidance to persons who have 13
duties or obligations under this Act or the regulations: 14
(a) the Minister may make an order approving a compliance code, 15
and 16
(b) the ITSRR may make an order approving guidelines. 17
(2) The Minister may make an order approving the variation of a 18
compliance code or revoking the approval of a compliance code. 19
(3) The ITSRR may make an order approving the variation of a guideline 20
or revoking the approval of a guideline. 21
(4) An order approving a compliance code or guidelines, or a variation or 22
revocation order, takes effect when notice of it is published in the 23
Gazette or on such later date as is specified in the order. 24
(5) As soon as practicable after making an order approving a compliance 25
code or guidelines, or a variation or revocation order, the Minister or 26
ITSRR must ensure that notice of the making of the order is published 27
in the Gazette. 28
(6) The ITSRR must ensure that a copy of: 29
(a) each compliance code that is currently approved, and 30
(b) guidelines that are currently approved, 31
is or are available for inspection by members of the public without 32
charge at the office of the ITSRR during normal business hours. 33
(7) Sections 40 and 41 of the Interpretation Act 1987 apply to compliance 34
codes in the same way that they apply to statutory instruments. 35
Page 99
Clause 168 Rail Safety Bill 2008
Part 9 Miscellaneous
168 Use of compliance codes 1
In any proceedings for an offence against this Act or the regulations: 2
(a) a compliance code that is relevant to any matter which it is 3
necessary for the prosecution to prove to establish the 4
commission of the offence by a person is admissible in evidence 5
in those proceedings, and 6
(b) the person's failure at any material time to observe the code is 7
evidence of the matter to be established in those proceedings. 8
169 Effect of compliance code 9
A person is not liable to any civil or criminal proceedings by reason only 10
that the person has failed to observe a compliance code. 11
170 Recovery of certain costs 12
The ITSRR may recover from a rail transport operator the reasonable 13
costs of the entry and audit of railway infrastructure, rolling stock or 14
railway premises in respect of which the person is accredited, other than 15
the costs of an audit of an accredited person under section 84. 16
171 Recovery of amounts due 17
Any fees, charges or other money payable under this Act or the 18
regulations may be recovered by the ITSRR as a debt in any court of 19
competent jurisdiction. 20
172 Contracting out prohibited 21
A term of any contract or agreement that purports to exclude, limit or 22
modify the operation of this Act or of any provision of this Act is void 23
to the extent that it would otherwise have effect. 24
173 Service of documents 25
(1) A document that is authorised or required by this Act or the regulations 26
to be served on any person may be served by: 27
(a) in the case of a natural person: 28
(i) delivering it to the person personally, or 29
(ii) sending it by post to the address specified by the person for 30
the giving or service of documents or, if no such address is 31
specified, the residential or business address of the person 32
last known to the person giving or serving the document, 33
or 34
(iii) sending it by facsimile transmission to the facsimile 35
number of the person, or 36
Page 100
Rail Safety Bill 2008 Clause 174
Miscellaneous Part 9
(b) in the case of a body corporate: 1
(i) leaving it with a person apparently of or above the age of 2
16 years at, or by sending it by post to, the head office, a 3
registered office or a principal office of the body corporate 4
or to an address specified by the body corporate for the 5
giving or service of documents, or 6
(ii) sending it by facsimile transmission to the facsimile 7
number of the body corporate. 8
(2) Nothing in this section affects the operation of any provision of a law or 9
of the rules of a court authorising a document to be served on a person 10
in any other manner. 11
174 Regulations 12
(1) The Governor may make regulations, not inconsistent with this Act, for 13
or with respect to any matter that by this Act is required or permitted to 14
be prescribed or that is necessary or convenient to be prescribed for 15
carrying out or giving effect to this Act. 16
(2) In particular, the regulations may make provision for or with respect to 17
the following: 18
(a) fees for the purposes of this Act or the regulations and the refund 19
or waiver of such fees, 20
(b) the safe operation and maintenance of historic or preserved 21
rolling stock, 22
(c) the safe construction, operation and maintenance of sidings 23
(including private sidings), 24
(d) the functions, training, health and fitness of rail safety workers, 25
(e) tampering with, or damaging, railways, 26
(f) the unauthorised use of railways and rolling stock, 27
(g) the opening and closing of railway gates, 28
(h) the regulation of vehicles, animals and pedestrians crossing 29
railway tracks, 30
(i) the regulation of railway crossings, 31
(j) the loading and unloading of freight on railways, 32
(k) the publication of statistics relating to rail safety, 33
(l) the management of fatigue, including safe hours of work and 34
periods between work for rail safety workers, 35
(m) rules relating to railway network operations and operations of 36
specified operators and the making of any such rules, 37
Page 101
Clause 175 Rail Safety Bill 2008
Part 9 Miscellaneous
(n) standards for railway operations, including standards for rolling 1
stock, network control systems and other infrastructure of a 2
railway, 3
(o) requirements for registers of information to be kept by operators 4
of railways under this Act including, but not limited to, the 5
information that is to be held on the register and access to the 6
register, 7
(p) train safety recordings, 8
(q) conditions of, or restrictions on, accreditation. 9
(3) The regulations may exempt, or provide for the exemption of, either 10
absolutely or subject to conditions, any person, class of persons, siding, 11
railway, part of a railway or railway operation from all or any of the 12
provisions of this Act or the regulations. 13
(4) The regulations may apply, adopt or incorporate any publication as in 14
force at a particular time or from time to time. 15
(5) In the event of an inconsistency between a by-law or regulation made, 16
or taken to be made, under the Transport Administration Act 1988 and 17
a regulation made under this Act, the regulation made under this Act 18
prevails to the extent of the inconsistency. 19
(6) A regulation made under this Act does not limit the operation of a 20
by-law or regulation made, or taken to be made, under the Transport 21
Administration Act 1988 so far as it can operate concurrently with a 22
regulation made under this Act. 23
(7) The regulations may create offences punishable by a penalty not 24
exceeding 250 penalty units. 25
175 Application of OH&S legislation 26
(1) If a provision of the occupational health and safety legislation applies to 27
railway operations, that provision continues to apply, and must be 28
observed, in addition to this Act and the regulations made under this 29
Act. 30
(2) If a provision of this Act or the regulations made under this Act is 31
inconsistent with a provision of the occupational health and safety 32
legislation, the provision of the occupational health and safety 33
legislation prevails to the extent of any inconsistency. 34
(3) Compliance with this Act or the regulations made under this Act, or 35
with any requirement imposed under this Act or the regulations, is not 36
in itself a defence in any proceedings for an offence against the 37
occupational health and safety legislation. 38
Note. For example, a person may be guilty of an offence under the occupational 39
health and safety legislation in respect of any act or omission that is expressly 40
Page 102
Rail Safety Bill 2008 Clause 176
Miscellaneous Part 9
required or permitted to be done or omitted by or under this Act or the 1
regulations made under this Act. 2
(4) Where an act or omission constitutes an offence under this Act or the 3
regulations made under this Act and: 4
(a) under the occupational health and safety legislation, or 5
(b) under the Road and Rail Transport (Dangerous Goods) Act 1997, 6
the offender is not liable to be punished twice in respect of the offence. 7
176 Repeal 8
The Rail Safety Act 2002 is repealed. 9
177 Savings, transitional and other provisions 10
Schedule 3 has effect. 11
178 Amendment of other Acts 12
The Acts specified in Schedule 4 are amended as set out in that 13
Schedule. 14
179 Review of Act 15
(1) The Minister is to review this Act to determine whether the policy 16
objectives of the Act remain valid and whether the terms of the Act 17
remain appropriate for securing those objectives. 18
(2) The review is to be undertaken as soon as possible after the period of 19
5 years from the date of assent to this Act. 20
(3) A report on the outcome of the review is to be tabled in each House of 21
Parliament within 12 months after the end of the period of 5 years. 22
Page 103
Rail Safety Bill 2008
Schedule 1 Rail safety workers--alcohol or other drugs
Schedule 1 Rail safety workers--alcohol or other 1
drugs 2
(Section 19 (5)) 3
1 Application of Schedule 4
This Schedule applies to the testing of rail safety workers for the 5
presence of alcohol or drugs. 6
2 Regulations relating to alcohol and drug testing 7
(1) The regulations may make provision for or with respect to the 8
following: 9
(a) the authorisation of persons (including rail safety officers): 10
(i) to administer breath tests, breath analyses or other tests for 11
the purpose of detecting the presence of alcohol or drugs, 12
and 13
(ii) to operate equipment for that purpose, 14
(b) the circumstances when tests for detecting the presence of 15
alcohol or drugs may be conducted, including (but not limited to) 16
random testing and testing of rail safety workers when about to 17
carry out, or while on duty for the purpose of carrying out, rail 18
safety work, 19
(c) the conduct of testing, which may include the taking of blood or 20
urine samples or other body tissues or fluids, 21
(d) the taking of samples of blood or urine or other body fluids or 22
tissues, 23
(e) the devices used in carrying out breath tests, breath analyses and 24
other tests, including the calibration, inspection and testing of 25
those devices, 26
(f) the accreditation of persons conducting analyses for the presence 27
of drugs, 28
(g) the procedure for the handling and analysis of samples of blood 29
or urine or other body tissues or fluids, 30
(h) offences relating to the carrying out of rail safety work while 31
under the influence of alcohol or any other drug, 32
(i) offences relating to the carrying out of rail safety work while the 33
prescribed concentration of alcohol is present in the rail safety 34
worker's breath or blood, 35
(j) offences relating to the carrying out of rail safety work while a 36
drug (other than alcohol), or a prescribed concentration or 37
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Rail Safety Bill 2008
Rail safety workers--alcohol or other drugs Schedule 1
amount of any such drug, is present in the rail safety worker's 1
blood or urine or other body tissues or fluids, 2
(k) offences relating to refusal or failure to undergo tests or 3
otherwise comply with test procedures or interference with test 4
results, 5
(l) offences relating to refusal or failure to administer tests or take 6
samples or to do so in accordance with required procedures, 7
(m) evidence in proceedings as to matters relating to drug and alcohol 8
testing, 9
(n) without limiting paragraph (m), the use of certificates as to 10
concentration of alcohol or presence of drugs as evidence of the 11
matters stated in the certificate in proceedings for offences, 12
(o) confidentiality of test results, 13
(p) protection against liability for persons administering tests or 14
taking samples of blood or urine or other body tissues or fluids, 15
(q) disciplinary action that may be taken consequent on a breach of 16
regulations made under this clause. 17
(2) An offence under a regulation made under this clause relating to the 18
carrying out of rail safety work by a rail safety worker while under the 19
influence of alcohol or any other drug or while the prescribed 20
concentration of alcohol or prescribed concentration or amount of 21
another drug is present in the rail safety worker's breath or blood or 22
urine, a refusal or failure by a rail safety worker to undergo tests or 23
otherwise comply with test procedures or an interference by a rail safety 24
worker with test results, may, in addition to the penalty provided for by 25
section 174 for offences under the regulations, be punishable by a 26
period of imprisonment not exceeding 9 months. 27
(3) Subject to the regulations, section 8B (Measurement of alcohol 28
concentrations) of the Road Transport (Safety and Traffic 29
Management) Act 1999 applies in relation to the measurement of the 30
concentration of alcohol in a person's breath or blood for the purposes 31
of the regulations in the same way as it applies for the purposes of Part 2 32
of that Act. 33
Page 105
Rail Safety Bill 2008
Schedule 2 Fatigue management
Schedule 2 Fatigue management 1
(Section 20 (2)) 2
1 Interpretation 3
(1) For the purposes of this Schedule, the length of a shift worked or to be 4
worked by a rail safety worker includes all time between the signing on 5
time and the signing off time of a shift. 6
(2) For the purposes of this Schedule, a shift that exceeds 11 hours but is 7
less than 12 hours is taken to be a 12 hour shift. 8
2 Working hours for rail safety workers driving freight trains 9
The following conditions of work apply to rail safety workers who drive 10
freight trains: 11
(a) In the case of a 2 person operation (where the second person is a 12
qualified train driver, including a qualified train driver who is 13
learning the route or undergoing an assessment), the maximum 14
shift length to be worked is 12 hours. 15
(b) In the case of any other 2 person operation, the maximum shift 16
length to be worked is 11 hours. 17
(c) In the case of a one person operation, the maximum shift length 18
to be worked is 9 hours. 19
(d) In the case of a one person operation, there is to be a minimum 20
break of not less than 30 minutes taken at some time between the 21
third and fifth hour of each shift. 22
(e) There is to be a break of at least 11 continuous hours between 23
each shift worked by a rail safety worker where the worker ends 24
a shift at the home depot. 25
(f) There is to be a break of at least 7 continuous hours between each 26
shift worked by a rail safety worker where the worker ends a shift 27
away from the home depot and the break is taken away from the 28
home depot. 29
(g) A maximum number of 12 shifts is to be worked in any 14-day 30
period but a maximum number of 6 shifts of 12 hours is to be 31
worked in any 14-day period. 32
3 Working hours for rail safety workers driving single manning passenger 33
trains 34
(1) The following conditions of work apply to rail safety workers who drive 35
passenger trains in a one person operation: 36
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Fatigue management Schedule 2
(a) The maximum shift length to be worked is 10 hours for the driver 1
of an interurban or long distance passenger train or 9 hours for the 2
driver of a suburban train. 3
(b) There is to be a break of at least 11 continuous hours between 4
each shift worked by a rail safety worker where the worker ends 5
a shift at the home depot. 6
(c) There is to be a break of at least 7 continuous hours between each 7
shift worked by a rail safety worker where the worker ends a shift 8
away from the home depot and the break is taken away from the 9
home depot. 10
(d) A maximum number of 12 shifts is to be worked in any 14-day 11
period. 12
(2) The conditions of work set out in clause 2 (a), (b) and (e)(g) apply to 13
rail safety workers who drive passenger trains in a 2 person operation. 14
4 Train drivers who are transported to home depot or rest place 15
(1) This clause applies to rail safety workers who drive trains and who 16
travel to a home depot, or to a place provided for rest between shifts (a 17
barracks), as passengers in a train or other vehicle provided by the rail 18
transport operator. 19
(2) The following rules apply in relation to any such worker: 20
(a) the period between signing on for a shift and reaching the home 21
depot or barracks must not exceed 16 hours, 22
(b) for the purposes of applying the requirements of clauses 2 and 3 23
in relation to length and number of shifts (and despite clause 1), 24
time spent travelling to the home depot or barracks is not taken to 25
be part of the shift worked, 26
(c) for the purposes of applying the requirements of clauses 2 and 3 27
in relation to breaks between shifts, the break between shifts 28
commences when the worker reaches the home depot or barracks, 29
(d) any such worker must not undertake any rail safety work or drive 30
any motor vehicle after commencing to travel to the home depot 31
or barracks and before signing off at the home depot or barracks. 32
(3) Despite subclause (2), any such worker is for any other purpose taken 33
to have been rostered on for a shift ending when the worker signs off at 34
the home depot or the barracks. 35
5 Emergencies and accidents 36
(1) The requirements of this Schedule do not apply in the event of: 37
(a) an accident or emergency, or 38
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Schedule 2 Fatigue management
(b) any urgent circumstances approved by the ITSRR, or 1
(c) any other unforeseeable circumstances, that make it necessary to 2
contravene this Schedule to avoid a serious dislocation of train 3
services if there is no reasonably practicable alternative, 4
if the driver or drivers concerned indicate their fitness to work the 5
extended hours. 6
(2) In this clause: 7
emergency means an emergency arising out of an actual or imminent 8
event, such as fire, flood, storm, earthquake or explosion, that: 9
(a) endangers, or may endanger, the safety of persons, or 10
(b) destroys or damages, or may destroy or damage, property. 11
6 Requirements of Schedule minimum standards 12
The requirements of this Schedule are minimum standards and do not 13
preclude other conditions of work, such as shorter or less frequent shifts 14
than those specified by this Schedule, from being provided. 15
7 Relationship with State industrial instruments 16
Except as provided by the regulations, this Schedule prevails over any 17
inconsistent State industrial instrument (whether made before or after 18
the commencement of this clause) to the extent that this Schedule 19
provides for shorter hours of work or additional or longer breaks from 20
work than are provided for by the State industrial instrument. 21
8 Regulations 22
The regulations may amend this Schedule (other than this clause) for or 23
with respect to the following matters: 24
(a) modifying conditions of work set out in this Schedule, 25
(b) prescribing other conditions of work for rail safety workers for 26
the purposes of fatigue management or regulating safe hours of 27
work and periods between work. 28
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Rail Safety Bill 2008
Savings, transitional and other provisions Schedule 3
Schedule 3 Savings, transitional and other 1
provisions 2
(Section 177) 3
Part 1 General 4
1 Regulations 5
(1) The regulations may contain provisions of a savings or transitional 6
nature consequent on the enactment of the following Acts: 7
this Act 8
(2) Any such provision may, if the regulations so provide, take effect from 9
the date of assent to the Act concerned or a later date. 10
(3) To the extent to which any such provision takes effect from a date that 11
is earlier than the date of its publication in the Gazette, the provision 12
does not operate so as: 13
(a) to affect, in a manner prejudicial to any person (other than the 14
State or an authority of the State), the rights of that person 15
existing before the date of its publication, or 16
(b) to impose liabilities on any person (other than the State or an 17
authority of the State) in respect of anything done or omitted to 18
be done before the date of its publication. 19
Part 2 Provisions consequent on enactment of this 20
Act 21
2 Definitions 22
In this Part: 23
continuing operator means a person taken to be an accredited person 24
under clause 5. 25
existing accreditation means an accreditation (including a provisional 26
accreditation) in force under the former Act immediately before the 27
commencement of section 37 of this Act. 28
the former Act means the Rail Safety Act 2002. 29
3 Safety management system 30
(1) A continuing operator is not required to comply with section 12 (1), (2) 31
and (5) of this Act until 12 months after the commencement of that 32
section. 33
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Schedule 3 Savings, transitional and other provisions
(2) Until a continuing operator complies with section 12 (1), (2) and (5) of 1
this Act, the following agreements, programs and systems of the 2
operator continue in force and are taken to be the safety management 3
system of the operator: 4
(a) the safety interface agreements of the operator, 5
(b) the passenger security policy and plan referred to in section 13 of 6
the former Act, 7
(c) the safety management system referred to in section 14 of the 8
former Act, 9
(d) the drug and alcohol program referred to in section 42 of the 10
former Act, 11
(e) the fatigue management program referred to in section 43 of the 12
former Act. 13
(3) Nothing in this clause prevents an agreement, system or program 14
referred to in subclause (2) from being varied and section 12 (3) of this 15
Act applies to any proposed variation. 16
4 Interface co-ordination--roads authorities 17
A roads authority for a road is not required to comply with Division 3 18
of Part 2 until 3 years after the commencement of that Division. 19
5 Existing accreditations continued 20
(1) A person who, immediately before the commencement of Part 3 of this 21
Act, was the holder of an existing accreditation is taken to be an 22
accredited person for the purposes of this Act and the provisions of this 23
Act and the regulations apply accordingly. 24
(2) The accreditation of the continuing operator is taken to have been 25
granted under this Act and continues in force, subject to the same terms 26
as in force immediately before that commencement, until it is varied, 27
surrendered, suspended or revoked under this Act. 28
(3) Except as provided by this Part, or by a condition imposed on the 29
accreditation of the continuing operator by the ITSRR, the operator is 30
not required to comply with any provision of this Act relating to 31
applications for accreditation under this Act. 32
(4) An accreditation that, immediately before the commencement of 33
section 53 of this Act, was suspended under the former Act is taken to 34
have been suspended under section 53 of this Act. 35
(5) For the purposes of this Act, the date of the anniversary of a continuing 36
operator's accreditation is taken to be the anniversary of the operator's 37
accreditation under the former Act. 38
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Savings, transitional and other provisions Schedule 3
6 Persons newly required to be accredited 1
(1) This clause applies to a rail transport operator who is required to be 2
accredited under this Act for railway operations carried out by the 3
person immediately before the commencement of Part 3 of this Act and 4
for which accreditation was not required immediately before that 5
commencement. 6
(2) A rail transport operator, or any person who carries out those railway 7
operations, or causes or permits those operations to be carried out, for 8
or on behalf of the operator, is not required to be accredited under this 9
Act for those operations or to comply with Division 2 or 3 of Part 2 in 10
relation to those operations. 11
(3) Despite subclause (2), the ITSRR may, by notice in writing to the rail 12
transport operator or person, require the operator or person to comply 13
with any of the provisions of Division 2 or 3 of Part 2 in relation to the 14
operations concerned. 15
(4) This clause ceases to have effect on the second anniversary of the 16
commencement of this clause or on such later day as may be prescribed 17
by the regulations. 18
7 Existing exemptions continued 19
(1) An exemption given under section 21 of the former Act, and in force 20
immediately before the repeal of that section, continues in force for the 21
period specified in the exemption. 22
(2) This clause only applies to the extent that a requirement of the former 23
Act that is the subject of any such exemption continues to apply to or in 24
respect of a person under this Act. 25
8 Cancellation of existing accreditations 26
(1) The ITSRR may, for the purpose of consolidating continuing 27
accreditations held by a person or updating the railway operations to 28
which a continuing accreditation applies, cancel a continuing 29
accreditation and issue a new accreditation. 30
(2) Except as provided by this Schedule, or by a condition imposed on the 31
accreditation of the continuing operator by the ITSRR, the operator is 32
not required to comply with any provision of this Act relating to 33
applications for accreditation under this Act. 34
(3) The ITSRR may issue or cancel an accreditation under this clause 35
without complying with a requirement of Part 3 of this Act, if it thinks 36
it appropriate to do so. 37
(4) A decision by the ITSRR to cancel or issue an accreditation under this 38
clause is a reviewable decision for the purposes of section 157. 39
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Schedule 3 Savings, transitional and other provisions
9 Persons no longer required to be accredited 1
Nothing in this Part continues in force an accreditation if the person who 2
was accredited under the former Act is not required by this Act to be 3
accredited for the railway operations conducted by the person. 4
10 Existing applications 5
(1) An application for an accreditation or surrender or variation of an 6
accreditation under the former Act that was not determined immediately 7
before the commencement of this clause is taken to be an application for 8
accreditation or surrender or variation of an accreditation made under 9
this Act and this Act applies accordingly. 10
(2) An application made under section 22 of the former Act that was not 11
determined immediately before the commencement of this clause is to 12
be dealt with under section 41 of this Act. 13
(3) An application made under section 24 of the former Act that was not 14
determined immediately before the commencement of this clause is 15
taken to be an application under section 45 of this Act. 16
11 Private sidings 17
(1) An agreement in force under section 23 of the former Act immediately 18
before the commencement of this clause between the owner of a private 19
siding and an accredited person continues to have effect until it is 20
terminated under the agreement or by other lawful means. 21
(2) A rail infrastructure owner of a private siding that, immediately before 22
the commencement of section 60 of this Act, was connected with, or had 23
access to, a railway of an accredited person or a siding is not required to 24
register that siding under section 60. 25
(3) Subclause (2) ceases to have effect on the second anniversary of the 26
commencement of this clause or on such later day as may be prescribed 27
by the regulations. 28
12 Rail safety workers 29
(1) A continuing operator is not required to assess the competence of rail 30
safety workers under section 21 (2) of this Act if the workers are the 31
subject of certificates of competency issued under section 36 of the 32
former Act (whether before or after the commencement of section 21 of 33
this Act). 34
(2) A certificate of competency that is in force under section 36 of the 35
former Act is taken to be a sufficient form of identification for the 36
purposes of section 22 of this Act. 37
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Savings, transitional and other provisions Schedule 3
(3) For the purposes of this clause, section 36 of the former Act, and any 1
guidelines issued for the purposes of that section, continue in force. 2
(4) New guidelines may be issued by the ITSRR for the purposes of section 3
36 of the former Act, as continued in force, and any such guidelines and 4
any guidelines continued in force may be varied or revoked by the 5
ITSRR. 6
(5) It is a condition of accreditation of a rail transport operator that the rail 7
transport operator comply with a guideline in force under this clause. 8
(6) For the purposes of issuing a certificate of competency under section 36 9
of the former Act, a rail transport operator may have regard to a positive 10
test to the presence of alcohol or another drug, whether the test was 11
taken before or after the commencement of this clause. 12
(7) This clause ceases to have effect on the second anniversary of the 13
commencement of this clause or on such later day as may be prescribed 14
by the regulations. 15
13 Authorised officers and drug testers 16
(1) On the commencement of this subclause, a person who was an 17
authorised officer under the former Act immediately before that 18
commencement is taken to be a rail safety officer for the same purposes 19
under this Act for a period of 12 months after that commencement. Any 20
identity card issued to any such officer under the former Act is taken to 21
have been issued under this Act. 22
(2) On the commencement of regulations made under Schedule 1, a person 23
authorised under the Rail Safety (Drug and Alcohol Testing) Regulation 24
2003 is taken to be authorised, for a period of 12 months, under those 25
regulations for the same purposes as the person was authorised 26
immediately before that commencement. 27
14 Applications to Administrative Decisions Tribunal 28
Nothing in this Act affects an application for a review made to the 29
Administrative Decisions Tribunal under the former Act before the 30
commencement of this clause. 31
15 Annual fees 32
The repeal of the former Act does not affect the liability of an accredited 33
person in respect of a fee fixed under Division 4 of Part 2 of the former 34
Act. 35
16 Inquiries and investigations 36
(1) The repeal of the former Act does not affect any inquiry or investigation 37
of any notifiable occurrence, railway accident or railway incident that 38
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Rail Safety Bill 2008
Schedule 3 Savings, transitional and other provisions
commenced before the commencement of this clause, or anything done 1
or required to be done under the former Act in connection with any such 2
inquiry or investigation, and the provisions of the former Act continue 3
to apply accordingly. 4
(2) A notifiable occurrence, railway accident or railway incident that 5
occurred before the commencement of this clause may be the subject of 6
an inquiry or investigation under this Act. 7
17 Existing notices to provide safety information 8
A notice given under section 63 of the former Act, and having effect 9
immediately before the repeal of that section, continues to have effect 10
and that section continues to apply accordingly. 11
18 Improvement and prohibition notices 12
Nothing in this Act affects the operation and enforcement, or review, of 13
an improvement or prohibition notice having effect immediately before 14
the commencement of this clause and the provisions of the former Act 15
continue to apply accordingly. 16
19 Authority to take proceedings 17
A person who is authorised to take proceedings under section 104 of the 18
former Act immediately before the commencement of section 134 of 19
this Act is taken to have been so authorised under section 134 of this Act 20
and this Act applies accordingly. 21
20 Information sharing arrangements 22
An information sharing arrangement entered into by the ITSRR under 23
section 109 of the former Act, and in force immediately before the 24
commencement of section 156 of this Act, is taken to have been entered 25
into under section 156 of this Act and this Act applies accordingly. 26
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Rail Safety Bill 2008
Amendment of other Acts Schedule 4
Schedule 4 Amendment of other Acts 1
(Section 178) 2
4.1 Crimes (Sentencing Procedure) Act 1999 No 92 3
Section 27 Application of Division 4
Insert "or Division 1 of Part 2 of the Rail Safety Act 2008" after "Occupational 5
Health and Safety Act 2000" in section 27 (2A) (a). 6
4.2 Fines Act 1996 No 99 7
Schedule 1 Statutory provisions under which penalty notices issued 8
Omit "Rail Safety Act 2002, section 105". 9
Insert instead "Rail Safety Act 2008, section 139". 10
4.3 Freedom of Information Act 1989 No 5 11
Schedule 1 Exempt documents 12
Omit "section 66, 67 or 67B of the Rail Safety Act 2002" from clause 20 (1) (f). 13
Insert instead "section 65, 67 or 69 of the Rail Safety Act 2008". 14
4.4 Industrial Relations Act 1996 No 17 15
Section 210 Freedom from victimisation 16
Omit section 210 (1) (ia). Insert instead: 17
(ia) informs any person or body of, or gives evidence in 18
relation to, a notifiable occurrence within the meaning of 19
the Rail Safety Act 2008, or 20
4.5 Law Enforcement (Powers and Responsibilities) Act 2002 21
No 103 22
Schedule 2 Search warrants under other Acts 23
Omit "Rail Safety Act 1993, section 75". 24
Insert instead "Rail Safety Act 2008, section 94". 25
Page 115
Rail Safety Bill 2008
Schedule 4 Amendment of other Acts
4.6 Mine Health and Safety Act 2004 No 74 1
Section 10 Act does not apply to railway operations 2
Omit "railway operation to which the Rail Safety Act 2002". 3
Insert instead "railway or a railway operation to which the Rail Safety Act 4
2008". 5
4.7 Transport Administration Act 1988 No 109 6
[1] Section 6 Railway passenger services 7
Omit "Rail Safety Act 2002" from section 6 (4). 8
Insert instead "Rail Safety Act 2008". 9
[2] Section 17D Payments to RailCorp 10
Omit "section 95 of the Rail Safety Act 2002". 11
Insert instead "section 131 of the Rail Safety Act 2008". 12
[3] Section 42A Definitions 13
Omit "Rail Safety Act 2002" from the definition of rail safety inquiry. 14
Insert instead "Rail Safety Act 2008". 15
[4] Section 42A, definition of "transport service" 16
Omit "Rail Safety Act 2002" from paragraph (a). 17
Insert instead "Rail Safety Act 2008". 18
[5] Section 42D General functions of ITSRR 19
Omit "operators of railways under the Rail Safety Act 2002" from section 20
42D (2) (f). 21
Insert instead "rail transport operators under the Rail Safety Act 2008 and to 22
investigate, or arrange investigations, for compliance purposes under that 23
Act". 24
[6] Section 42D (2) (i) 25
Insert after section 42D (2) (h): 26
(i) to provide, or facilitate the provision of, advice, education 27
and training in relation to rail safety. 28
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Rail Safety Bill 2008
Amendment of other Acts Schedule 4
[7] Section 42L Disclosure of information by ITSRR 1
Omit "Rail Safety Act 2002" from section 42L (4). 2
Insert instead "Rail Safety Act 2008". 3
[8] Section 42L (5) 4
Omit "section 65A of the Rail Safety Act 2002". 5
Insert instead "section 64 of the Rail Safety Act 2008". 6
[9] Section 42L (6) 7
Omit "Sections 72 and 73 of the Rail Safety Act 2002". 8
Insert instead "Sections 77 and 78 of the Rail Safety Act 2008". 9
[10] Section 42P Limitations on Ministerial control of ITSRR 10
Omit "Rail Safety Act 2002" from section 42P (2) (a). 11
Insert instead "Rail Safety Act 2008". 12
[11] Section 42Q Delegation of functions of ITSRR 13
Omit "Rail Safety Act 2002" from section 42Q (3). 14
Insert instead "Rail Safety Act 2008". 15
[12] Section 45A General functions of Chief Investigator 16
Omit "Rail Safety Act 2002" from section 45A (2) (a). 17
Insert instead "Rail Safety Act 2008". 18
[13] Section 45C Disclosure of information by Chief Investigator 19
Omit "Rail Safety Act 2002" from section 45C (4). 20
Insert instead "Rail Safety Act 2008". 21
[14] Section 45C (5) 22
Omit "section 65A of the Rail Safety Act 2002". 23
Insert instead "section 64 of the Rail Safety Act 2008". 24
[15] Section 45C (6) 25
Omit "Sections 72 and 73 of the Rail Safety Act 2002". 26
Insert instead "Sections 77 and 78 of the Rail Safety Act 2008". 27
Page 117
Rail Safety Bill 2008
Schedule 4 Amendment of other Acts
[16] Section 88N Obligations and rights under Rail Safety Act 2008 1
Omit "Rail Safety Act 2002" from section 88N (1). 2
Insert instead "Rail Safety Act 2008". 3
[17] Section 88X Obligations and rights under Rail Safety Act 2008 relating to 4
members of staff 5
Omit "railway safety work" from section 88X (1) and (2) wherever occurring. 6
Insert instead "rail safety work". 7
[18] Section 88X (1) and (2) 8
Omit "Rail Safety Act 2002" wherever occurring. 9
Insert instead "Rail Safety Act 2008". 10
[19] Schedule 6A Powers relating to rail infrastructure facilities and land 11
Omit "Rail Safety Act 2002" from clause 11 (2) (c). 12
Insert instead "Rail Safety Act 2008". 13
[20] Schedule 6AA Access undertakings 14
Omit "Rail Safety Act 2002" from clause 8 wherever occurring. 15
Insert instead "Rail Safety Act 2008". 16
[21] Schedule 7 Savings, transitional and other provisions 17
Insert at the end of clause 2 (1): 18
Rail Safety Act 2008, but only to the extent that it amends this Act 19
Page 118
Rail Safety Bill 2008
Amendment of other Acts Schedule 4
4.8 Transport Administration Amendment (Rail Agencies) Act 1
2003 No 96 2
Schedule 2 Amendments relating to dissolution of Rail Infrastructure 3
Corporation 4
Omit "Rail Safety Act 2002" from clause 7 of Schedule 9 to the Transport 5
Administration Act 1988 wherever occurring, as inserted by Schedule 2 [14]. 6
Insert instead "Rail Safety Act 2008". 7
Page 119
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