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This is a Bill, not an Act. For current law, see the Acts databases.


RAIL SAFETY (ADOPTION OF NATIONAL LAW) BILL 2012





                                 New South Wales




Rail Safety (Adoption of National Law)
Bill 2012


Contents

                                                                                   Page
Part 1         Preliminary
                   1   Name of Act                                                    2
                   2   Commencement                                                   2
                   3   Interpretation                                                 2

Part 2         Application of Rail Safety National Law
                   4   Application of Rail Safety National Law                        3
                   5   Interpretation of certain expressions for the purposes of
                       this jurisdiction                                              3
                   6   Exclusion of legislation of this jurisdiction and South
                       Australia                                                      3
                   7   Disallowance of national regulations                           4




b2011-151-07.d13
Rail Safety (Adoption of National Law) Bill 2012

Contents

                                                                        Page
Part 3        Provisions relating to drug and alcohol testing
              and train communications
              Division 1        Drug and alcohol testing
                8    Regulations relating to alcohol and drug testing     5

              Division 2        Train communications
                9    Regulations relating to train communications         6

Part 4        Miscellaneous
               10    Regulations                                          7
               11    Regulations containing savings and transitional
                     provisions                                           7
               12    Proceedings for offences                             7
               13    Provision of information and assistance by ITSR      8
               14    Repeals                                              8

Schedule 1           New South Wales changes and additions to
                     Rail Safety National Law                             9
Schedule 2           Amendment of Acts                                   14

Note                 Rail Safety National Law                            49




Contents page 2
                             New South Wales




Rail Safety (Adoption of National Law)
Bill 2012
No , 2012


A Bill for

An Act to apply as a law of this State a national law that makes provision for a
national system of rail safety; to repeal the Rail Safety Act 2008 and make
consequential amendments to other legislation; to amend the Passenger Transport
Act 1990 and the Transport Administration Act 1988 with respect to the regulation of
transport safety; and for other purposes.
Clause 1          Rail Safety (Adoption of National Law) Bill 2012

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 (Adoption of National Law) Act 2012.           4

  2      Commencement                                                                     5

         (1)   This Act commences on a day or days to be appointed by proclamation.       6

         (2)   Different days may be appointed under subsection (1) for the               7
               commencement of different provisions of the Rail Safety National Law       8
               set out in the Schedule to the South Australian Act.                       9

  3      Interpretation                                                                  10

         (1)   In this Act:                                                              11
               Rail Safety National Law (NSW) means the provisions applying in this      12
               jurisdiction because of section 4.                                        13
               South Australian Act means the Rail Safety National Law (South            14
               Australia) Act 2012 of South Australia.                                   15

         (2)   Terms used in this Act and also in the Rail Safety National Law set out   16
               in the Schedule to the South Australian Act have the same meanings in     17
               this Act as they have in that Law.                                        18

         (3)   This section does not apply to the extent that the context or             19
               subject-matter otherwise indicates or requires.                           20

         (4)   Notes included in this Act do not form part of this Act.                  21




Page 2
Rail Safety (Adoption of National Law) Bill 2012                                Clause 4

Application of Rail Safety National Law                                         Part 2




Part 2        Application of Rail Safety National Law                                            1

  4    Application of Rail Safety National Law                                                   2

              The Rail Safety National Law, as amended from time to time, set out in             3
              the Schedule to the South Australian Act:                                          4
               (a) applies as a law of this jurisdiction, with the modifications set out         5
                    in Schedule 1, and                                                           6
              (b) as so applying may be referred to as the Rail Safety National Law              7
                    (NSW), and                                                                   8
               (c) so applies as if it were an Act.                                              9
              Note. A copy of the Rail Safety National Law is set out at the end of this Act.   10

  5    Interpretation of certain expressions for the purposes of this jurisdiction              11

              In the Rail Safety National Law (NSW):                                            12
              Rail Safety National Law or this Law means the Rail Safety National               13
              Law (NSW).                                                                        14
              the jurisdiction or this jurisdiction means New South Wales.                      15

  6    Exclusion of legislation of this jurisdiction and South Australia                        16

       (1)    The following Acts of this jurisdiction do not apply to the Rail Safety           17
              National Law (NSW) or to the instruments made under that Law:                     18
              (a) the Freedom of Information Act 1989,                                          19
              (b) the Government Information (Information Commissioner)                         20
                    Act 2009,                                                                   21
              (c) the Government Information (Public Access) Act 2009,                          22
              (d) the Interpretation Act 1987 (except Part 6A and the provisions                23
                    applying under section 7),                                                  24
              (e) the Ombudsman Act 1974,                                                       25
              (f) the Subordinate Legislation Act 1989,                                         26
              (g) the State Records Act 1998.                                                   27

       (2)    Despite section 263 (2) of the Rail Safety National Law (NSW), the                28
              following Acts of South Australia apply as laws of this State for the             29
              purposes of the Rail Safety National Law (NSW) or to instruments made             30
              under that Law:                                                                   31
               (a) the Freedom of Information Act 1991,                                         32
              (b) the Ombudsman Act 1972,                                                       33
               (c) the State Records Act 1997.                                                  34




                                                                                      Page 3
Clause 7          Rail Safety (Adoption of National Law) Bill 2012

Part 2            Application of Rail Safety National Law




         (3)   The Acts Interpretation Act 1915, and other Acts (other than Acts              1
               referred to in subsection (2)), of South Australia do not apply to the Rail    2
               Safety National Law (NSW) or the instruments made under that Law.              3

  7      Disallowance of national regulations                                                 4

         (1)   Sections 40 and 41 of the Interpretation Act 1987 apply to the national        5
               regulations.                                                                   6

         (2)   However, if a national regulation is disallowed in this jurisdiction, the      7
               regulation does not cease to have effect in this jurisdiction unless the       8
               regulation is disallowed in a majority of the participating jurisdictions      9
               (and, in such a case the regulation ceases to have effect on the date of      10
               its disallowance in the last of the jurisdictions forming the majority).      11




Page 4
Rail Safety (Adoption of National Law) Bill 2012                           Clause 8

Provisions relating to drug and alcohol testing and train communications   Part 3




Part 3        Provisions relating to drug and alcohol testing                                1
              and train communications                                                       2


Division 1           Drug and alcohol testing                                                3

  8    Regulations relating to alcohol and drug testing                                      4

       (1)    The regulations may make provision for or with respect to the                  5
              following:                                                                     6
               (a) the authorisation of persons (including rail safety officers):            7
                     (i) to administer breath tests, breath analyses, drug screening         8
                           tests or other tests for the purpose of detecting the presence    9
                           of alcohol or drugs, and                                         10
                    (ii) to operate equipment for that purpose,                             11
              (b) the circumstances when tests for detecting the presence of                12
                    alcohol or drugs may be conducted, including (but not limited to)       13
                    random testing and testing of rail safety workers when about to         14
                    carry out, or while on duty for the purpose of carrying out, rail       15
                    safety work,                                                            16
               (c) the conduct of testing, which may include the taking of blood or         17
                    urine samples or other body tissues or fluids,                          18
              (d) the taking of samples of blood, oral fluids, urine or other body          19
                    fluids or tissues,                                                      20
               (e) the devices used in carrying out breath tests, breath analyses and       21
                    other tests, including the calibration, inspection and testing of       22
                    those devices,                                                          23
               (f) the accreditation of persons conducting analyses for the presence        24
                    of drugs,                                                               25
              (g) the procedure for the handling and analysis of samples of blood,          26
                    oral fluids, urine or other body tissues or fluids,                     27
              (h) offences relating to refusal or failure to undergo tests or               28
                    otherwise comply with test procedures or interference with test         29
                    results,                                                                30
               (i) offences relating to refusal or failure to administer tests or take      31
                    samples or to do so in accordance with required procedures,             32
               (j) evidence in proceedings as to matters relating to drug and alcohol       33
                    testing,                                                                34
              (k) without limiting paragraph (j), the use of certificates as to             35
                    concentration of alcohol or presence of drugs as evidence of the        36
                    matters stated in the certificate in proceedings for offences,          37
               (l) confidentiality of test results,                                         38




                                                                                Page 5
Clause 9          Rail Safety (Adoption of National Law) Bill 2012

Part 3            Provisions relating to drug and alcohol testing and train communications




               (m)   protection against liability for persons administering tests or          1
                     taking samples of blood, urine or other body tissues or fluids,          2
               (n)   disciplinary action that may be taken consequent on a breach of          3
                     regulations made under this section.                                     4

         (2)   The regulations may provide that an offence under a regulation made            5
               under this section relating to a refusal or failure by a rail safety worker    6
               to undergo tests or otherwise comply with test procedures or the               7
               interference by a rail safety worker with test results, may, in addition to    8
               the penalty provided for by section 10 for offences under the                  9
               regulations, be punishable by a period of imprisonment not exceeding          10
               9 months.                                                                     11

Division 2           Train communications                                                    12

  9      Regulations relating to train communications                                        13

               The regulations may make provision for or with respect to requirements        14
               for train communication systems.                                              15




Page 6
Rail Safety (Adoption of National Law) Bill 2012                           Clause 10

Miscellaneous                                                              Part 4




Part 4        Miscellaneous                                                                  1

10     Regulations                                                                           2

       (1)    The Governor may make regulations, not inconsistent with this Act, for         3
              or with respect to any matter that by this Act is required or permitted to     4
              be prescribed or that is necessary or convenient to be prescribed for          5
              carrying out or giving effect to this Act.                                     6

       (2)    The regulations may:                                                           7
              (a) amend Schedule 1, and                                                      8
              (b) prescribe modifications to the regulations, as amended from time           9
                    to time, under the Rail Safety National Law set out in the              10
                    Schedule to the South Australian Act for the purposes of                11
                    section 4 of this Act.                                                  12

       (3)    Regulations made under this Act may create offences punishable by a           13
              penalty not exceeding 250 penalty units.                                      14

       (4)    The Governor may make such regulations as are contemplated by the             15
              Rail Safety National Law (NSW) as being made under this Act.                  16

11     Regulations containing savings and transitional provisions                           17

       (1)    The regulations may contain provisions of a savings or transitional           18
              nature consequent on the enactment of this Act (including the Rail            19
              Safety National Law (NSW)) or any Act that amends this Act or that            20
              Law.                                                                          21

       (2)    Any such provision may, if the regulations so provide, take effect from       22
              the date of assent to the Act concerned or a later date.                      23

       (3)    To the extent to which any such provision takes effect from a date that       24
              is earlier than the date of its publication on the NSW legislation website,   25
              the provision does not operate so as:                                         26
               (a) to affect, in a manner prejudicial to any person (other than the         27
                      State or an authority of the State), the rights of that person        28
                      existing before the date of its publication, or                       29
              (b) to impose liabilities on any person (other than the State or an           30
                      authority of the State) in respect of anything done or omitted to     31
                      be done before the date of its publication.                           32

12     Proceedings for offences                                                             33

              Proceedings for an offence against regulations made under this Act are        34
              to be dealt with summarily before the Local Court.                            35




                                                                                Page 7
Clause 13          Rail Safety (Adoption of National Law) Bill 2012

Part 4             Miscellaneous




13       Provision of information and assistance by ITSR                                     1
         (1)   The Independent Transport Safety Regulator (the ITSR) is authorised,          2
               on its own initiative or at the request of the Office of the National Rail    3
               Safety Regulator, to provide that Office with the following:                  4
               (a) any information (including information given in confidence) in            5
                      the possession or control of the ITSR that is reasonably required      6
                      by that Office for the purposes of this Act or the Rail Safety         7
                      National Law (NSW),                                                    8
               (b) any other assistance that is reasonably required by that Office to        9
                      exercise a function or power under this Act or that Law.              10

         (2)   The ITSR may authorise the Office of the National Rail Safety                11
               Regulator to disclose information provided under this section even if the    12
               information was given to the ITSR in confidence.                             13

         (3)   Nothing done or authorised to be done by the ITSR in acting under this       14
               section:                                                                     15
               (a) constitutes a breach of, or default under, an Act or other law, or       16
               (b) constitutes a breach of, or default under, a contract, agreement,        17
                      understanding or undertaking, or                                      18
               (c) constitutes a breach of duty of confidence (whether arising by           19
                      contract, in equity or by custom or in any other way), or             20
               (d) constitutes a civil or criminal wrong, or                                21
               (e) terminates an agreement or obligation or fulfils any condition that      22
                      allows a person to terminate an agreement or obligation, or gives     23
                      rise to any other right or remedy, or                                 24
                (f) releases a surety or any other obligee wholly or in part from an        25
                      obligation.                                                           26

         (4)   This section has effect despite any other Act or law.                        27

14       Repeals                                                                            28

               The Rail Safety Act 2008, the Rail Safety (General) Regulation 2008          29
               and the Rail Safety (Drug and Alcohol Testing) Regulation 2008 are           30
               repealed.                                                                    31




Page 8
Rail Safety (Adoption of National Law) Bill 2012

New South Wales changes and additions to Rail Safety National Law            Schedule 1




Schedule 1               New South Wales changes and additions                               1
                         to Rail Safety National Law                                         2

[1]    Section 4 Interpretation                                                              3

       Insert in alphabetical order in section 4 (1):                                        4
                     emergency services means--                                              5
                     (a) the NSW Police Force; or                                            6
                     (b) Fire and Rescue NSW; or                                             7
                     (c) any other person or body prescribed by the regulations              8
                           under the application Act for the purposes of this                9
                           definition;                                                      10
                     Note-- This definition is an additional New South Wales provision.     11
                     Gazette means the New South Wales Government Gazette;                  12
                     Note-- This definition is an additional New South Wales provision.     13
                     Health Practitioner Regulation National Law means--                    14
                     (a) the Health Practitioner Regulation National Law--                  15
                            (i) as in force from time to time, set out in the Schedule      16
                                 to the Health Practitioner Regulation National Law         17
                                 Act 2009 of Queensland; and                                18
                           (ii) as it applies as a law of New South Wales or another        19
                                 State or a Territory; or                                   20
                     (b) the law of another State or a Territory that substantially         21
                           corresponds to the law referred to in paragraph (a);             22
                     Note-- This definition is an additional New South Wales provision.     23
                     magistrate means a person appointed or taken to be appointed           24
                     under the Local Court Act 2007 as a Magistrate of the Local            25
                     Court;                                                                 26
                     Note-- This definition is an additional New South Wales provision.     27
                     police officer means a member of the NSW Police Force who is           28
                     a police officer within the meaning of the Police Act 1990;            29
                     Note-- This definition is an additional New South Wales provision.     30
                     road has the same meaning as it has in the Roads Act 1993;             31
                     Note-- This definition is an additional New South Wales provision.     32
                     road vehicle means a vehicle that is built to be propelled by a        33
                     motor that forms part of the vehicle;                                  34
                     Note-- This definition is an additional New South Wales provision.     35
                     shared path has the same meaning as in the Road Rules 2008;            36
                     Note-- This definition is an additional New South Wales provision.     37




                                                                                   Page 9
                    Rail Safety (Adoption of National Law) Bill 2012

Schedule 1          New South Wales changes and additions to Rail Safety National Law




[2]   Section 4 (1), definition of "public road"                                              1
      Omit the definition. Insert instead:                                                    2
                  public road means a public road within the meaning of the Roads             3
                  Act 1993 (other than a Crown road within the meaning of that                4
                  Act);                                                                       5
                       Note-- This definition is an additional New South Wales provision.     6

[3]   Section 4 (1), definition of "responsible Minister"                                     7

      Omit the definition. Insert instead:                                                    8
                  responsible Minister means the Minister administering the Rail              9
                  Safety (Adoption of National Law) Act 2012.                                10
                       Note-- This definition is an additional New South Wales provision.    11

[4]   Section 4 (3A)                                                                         12

      Insert after section 4 (3):                                                            13

             (3A)      In this Law, a reference to a court--                                 14
                        (a) in sections 197 and 255, is a reference to the District Court;   15
                              and                                                            16
                       (b) in section 217, in relation to a decision set out in              17
                              items 1-23, 30 and 32-39 of the table to section 215(1), is    18
                              a reference to the Administrative Decisions Tribunal; and      19
                        (c) in section 217, in relation to a decision set out in             20
                              items 24-29 and 31 of the table to section 215(1), is a        21
                              reference to the Industrial Relations Commission.              22
                       Note-- This subsection is an additional New South Wales provision.    23

[5]   Section 126 Authorised person may require preliminary breath test or                   24
      breath analysis                                                                        25

      Insert at the end of section 126 (1) (e):                                              26
                           ; or                                                              27
                   (e1) without limiting a preceding paragraph--is involved in an            28
                           accident or irregular incident while carrying out rail safety     29
                           work,                                                             30
                              Note-- This paragraph is an additional New South Wales         31
                              provision.                                                     32




Page 10
Rail Safety (Adoption of National Law) Bill 2012

New South Wales changes and additions to Rail Safety National Law           Schedule 1




 [6]    Section 127 Authorised person may require drug screening test, urine                  1
        screening test, oral fluid analysis and blood test                                    2

        Insert at the end of section 127 (1) (e):                                             3
                             ; or                                                             4
                     (e1) without limiting a preceding paragraph--is involved in an           5
                             accident or irregular incident while carrying out rail safety    6
                             work,                                                            7
                            Note-- This paragraph is an additional New South Wales            8
                            provision.                                                        9

 [7]    Section 127                                                                          10

        Insert "urine screening test," after "drug screening test," wherever occurring.      11

 [8]    Section 129 Oral fluid or blood sample or urine sample or results of                 12
        analysis etc not to be used for other purposes                                       13

        Insert "or urine" after "oral fluid or blood".                                       14

 [9]    Section 129                                                                          15

        Omit "oral fluid analysis or blood test".                                            16

        Insert instead "urine screening test, oral fluid analysis or blood or urine test".   17

[10]    Section 129A                                                                         18

        Insert after section 129:                                                            19

       129A   Additional NSW matters related to drug and alcohol testing and                 20
              related offences                                                               21

               (1)    For the purposes of sections 126 and 127, a rail safety worker is      22
                      to be regarded as being about to carry out rail safety work if the     23
                      worker--                                                               24
                       (a) has left home or a temporary residence for work (being rail       25
                             safety work); and                                               26
                      (b) has not commenced work after having so left home or the            27
                             temporary residence.                                            28

               (2)    It is a defence to a prosecution for an offence under section 126      29
                      or 127 if the defendant satisfies the court that the defendant was     30
                      unable on medical grounds to comply with the requirement               31
                      concerned.                                                             32

               (3)    A rail safety worker is not liable to be convicted of both--           33
                      (a) an offence under section 126 (3) and an offence under              34
                             section 128 (1) (c); or                                         35




                                                                                Page 11
                     Rail Safety (Adoption of National Law) Bill 2012

Schedule 1           New South Wales changes and additions to Rail Safety National Law




                        (b)    an offence under section 127 (3) and an offence under              1
                               section 128 (1) (c); or                                            2
                         (c)   an offence under section 128 (1) (a) and an offence under          3
                               section 128 (1) (c); or                                            4
                        (d)    an offence under section 128 (1) (b) and an offence under          5
                               section 128 (1) (c).                                               6

               (4)      The regulations under the application Act may make provision              7
                        for or with respect to the following--                                    8
                         (a) limiting the circumstances when a requirement may be                 9
                               made under section 126 or 127;                                    10
                        (b) the circumstances in which a rail safety worker may not be           11
                               required to undergo a test or analysis or provide a sample        12
                               for the purposes of this Division;                                13
                         (c) limiting the use of testing or analysis results from a rail         14
                               safety worker who was about to carry out rail safety work,        15
                        (d) requirements to undergo sobriety assessments.                        16
                               Note-- This section is an additional New South Wales provision.   17

[11]    Section 150 Search warrants                                                              18

        Insert after section 150 (6):                                                            19

              (6A)      In this section, magistrate means an authorised officer within the       20
                        meaning of the Law Enforcement (Powers and Responsibilities)             21
                        Act 2002.                                                                22
                        Note-- This subsection is an additional New South Wales provision.       23

[12]    Section 218A                                                                             24

        Insert after section 218:                                                                25

       218A    Proceedings for offences                                                          26

               (1)      Except as provided by this section, proceedings for an offence           27
                        against this Law or the national regulations are to be dealt with        28
                        summarily--                                                              29
                        (a) before the Local Court; or                                           30
                        (b) before the District Court in its summary jurisdiction.               31

               (2)      Proceedings for a Category 3 offence are to be dealt with                32
                        summarily--                                                              33
                        (a) before the Local Court; or                                           34
                        (b) before the Industrial Court.                                         35




Page 12
Rail Safety (Adoption of National Law) Bill 2012

New South Wales changes and additions to Rail Safety National Law          Schedule 1




              (3)    Proceedings for a Category 1 offence committed by an individual         1
                     are to be taken on indictment.                                          2

              (4)    The maximum monetary penalty that may be imposed by the                 3
                     Local Court in proceedings for an offence against this Law or the       4
                     national regulations is $50 000, despite any higher maximum             5
                     monetary penalty provided in respect of the offence.                    6

              (5)    The provisions of the Industrial Relations Act 1996, and of the         7
                     regulations under that Act, relating to appeals from the Local          8
                     Court to the Industrial Court in connection with offences against       9
                     that Act apply to proceedings before the Local Court for               10
                     Category 3 offences.                                                   11
                     Note-- Section 197 of the Industrial Relations Act 1996 deals with     12
                     appeals against convictions or penalties in connection with offences   13
                     against that Act.                                                      14
                     Note-- This section is an additional New South Wales provision.        15




                                                                               Page 13
                Rail Safety (Adoption of National Law) Bill 2012

Schedule 2      Amendment of Acts




Schedule 2             Amendment of Acts                                                   1


2.1 Coal Mine Health and Safety Amendment Act 2010 No 23                                   2

      Schedule 1 Amendment of Coal Mine Health and Safety Act 2002 No 129                  3

      Omit "Rail Safety Act 2008" from proposed section 8C (1) in Schedule 1 [11].         4

      Insert instead "Rail Safety National Law (NSW)".                                     5

2.2 Crimes (Sentencing Procedure) Act 1999 No 92                                           6

      Section 27 Application of Division                                                   7

      Omit "Division 1 of Part 2 of the Rail Safety Act 2008" from                         8
      section 27 (2A) (a).                                                                 9

      Insert instead "Subdivision 3 of Division 3 of Part 3 of the Rail Safety National   10
      Law (NSW)".                                                                         11

2.3 Dangerous Goods (Road and Rail Transport) Act 2008 No 95                              12

      Section 66 Confidentiality and disclosure of information                            13

      Omit "train safety record (within the meaning of Division 3 of Part 3 of the        14
      Rail Safety Act 2002)" from section 66 (8).                                         15

      Insert instead "train safety recording (within the meaning of Division 10 of        16
      Part 3 of the Rail Safety National Law (NSW)) or information from a train           17
      safety recording".                                                                  18

2.4 Dangerous Goods (Road and Rail Transport) Regulation                                  19
    2009                                                                                  20

      Clause 9 Definitions                                                                21

      Omit "Rail Safety Act 2008" from the definition of rail infrastructure              22
      manager in clause 9 (1).                                                            23

      Insert instead "Rail Safety National Law (NSW)".                                    24

2.5 Fines Act 1996 No 99                                                                  25

      Schedule 1 Statutory provisions under which penalty notices issued                  26

      Omit the matter relating to the Rail Safety Act 2008.                               27




Page 14
Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                          Schedule 2




2.6 Government Information (Public Access) Act 2009 No 52                                    1

[1]    Schedule 1 Information for which there is conclusive presumption of                   2
       overriding public interest against disclosure                                         3

       Omit clause 8 (1) and (2). Insert instead:                                            4

              (1)    It is to be conclusively presumed that there is an overriding public    5
                     interest against disclosure of information that would disclose          6
                     matter relating to an investigation or inquiry into a transport         7
                     accident or incident under section 46BA or 46BC of the                  8
                     Passenger Transport Act 1990.                                           9

[2]    Schedule 1, clause 8 (3)                                                             10

       Omit "subclause (1) (b)". Insert instead "subclause (1)".                            11

[3]    Schedule 1, clause 8 (3)                                                             12

       Omit "that paragraph". Insert instead "that subclause".                              13

2.7 Industrial Relations Act 1996 No 17                                                     14

       Section 210 Freedom from victimisation                                               15

       Omit "Rail Safety Act 2008" from section 210 (1) (ia).                               16

       Insert instead "Rail Safety National Law (NSW)".                                     17

2.8 Industrial Relations Amendment (Jurisdiction of Industrial                              18
    Relations Commission) Act 2009 No 32                                                    19

       Schedule 2 Amendment of other legislation                                            20

       Omit Schedule 2.16.                                                                  21

2.9 Law Enforcement (Powers and Responsibilities) Act 2002                                  22
    No 103                                                                                  23

       Schedule 2 Search warrants under other Acts                                          24

       Omit the matter relating to the Rail Safety Act 2008.                                25

2.10 Mine Health and Safety Act 2004 No 74                                                  26

       Section 10 Act does not apply to railway operations                                  27

       Omit "a railway operation to which the Rail Safety Act 2008 applies".                28

       Insert instead "railway operations to which the Rail Safety National Law             29
       (NSW) applies".                                                                      30




                                                                               Page 15
                Rail Safety (Adoption of National Law) Bill 2012

Schedule 2      Amendment of Acts




2.11 Passenger Transport Act 1990 No 39                                                  1

[1]   Section 3 Definitions                                                              2

      Omit the definition of regulator from section 3 (1).                               3

[2]   Section 3 (1)                                                                      4

      Insert in alphabetical order:                                                      5

                   railway has the same meaning as it has in the Rail Safety National    6
                   Law (NSW), but does not include a railway to which that Law           7
                   does not apply.                                                       8

                   railway operations has the same meaning as it has in the Rail         9
                   Safety National Law (NSW), but does not include anything to          10
                   which that Law does not apply.                                       11

                   transport safety investigation means an investigation under          12
                   section 46BA.                                                        13

                   transport safety investigator means a transport safety               14
                   investigator appointed under Schedule 6.                             15

[3]   Section 4 Objects                                                                 16

      Omit "TfNSW" from section 4 (a). Insert instead "RMS".                            17

[4]   Section 5A Persons who may be accredited                                          18

      Omit "TfNSW" from section 5A (2) (a). Insert instead "RMS".                       19

[5]   Section 6B Arrangements with ITSR for exercise of TfNSW's safety                  20
      functions                                                                         21

      Omit the section.                                                                 22

[6]   Section 8 Procedure for accreditation                                             23

      Omit "TfNSW" wherever occurring. Insert instead "RMS".                            24

[7]   Section 9 Style of accreditation                                                  25

      Omit "TfNSW" from section 9 (1). Insert instead "RMS".                            26

[8]   Section 9A Issue and renewal of accreditation                                     27

      Omit "TfNSW" wherever occurring. Insert instead "RMS".                            28

[9]   Section 9B Conditions of accreditation                                            29

      Omit "TfNSW" wherever occurring. Insert instead "RMS".                            30




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Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                    Schedule 2




[10]   Section 9C Accreditation conditions relating to drug and alcohol              1
       programs and testing                                                          2

       Omit "TfNSW" from section 9C (4). Insert instead "RMS".                       3

[11]   Section 9D Safety management systems for bus services                         4

       Omit "TfNSW" from section 9D (4). Insert instead "RMS".                       5

[12]   Section 10 Variation, suspension or cancellation of accreditation             6

       Omit "TfNSW" from section 10 (1). Insert instead "RMS".                       7

[13]   Section 11A Issue and renewal of authorities                                  8

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                        9

[14]   Section 11B Conditions of authority                                          10

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                       11

[15]   Section 12 Criteria and procedure                                            12

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                       13

[16]   Section 13 Style of authority                                                14

       Omit "TfNSW" from section 13 (1). Insert instead "RMS".                      15

[17]   Section 14 Variation, suspension or cancellation of authority                16

       Omit "TfNSW". Insert instead "RMS".                                          17

[18]   Section 30 Taxi-cab service requirements                                     18

       Omit "TfNSW" from section 30 (1) (c). Insert instead "RMS".                  19

[19]   Section 31 Accreditation                                                     20

       Omit "TfNSW" from section 31 (1). Insert instead "RMS".                      21

[20]   Section 31A Application for accreditation                                    22

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                       23

[21]   Section 31B Grant or refusal of application                                  24

       Omit "TfNSW" wherever occurring in section 31B (1), (2) and (4).             25

       Insert instead "RMS".                                                        26

[22]   Section 31C Term and renewal of accreditation                                27

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                       28




                                                                          Page 17
                Rail Safety (Adoption of National Law) Bill 2012

Schedule 2      Amendment of Acts




[23]   Section 31D Conditions of accreditation                                 1
       Omit "TfNSW" wherever occurring. Insert instead "RMS".                  2

[24]   Section 31E Statutory condition regarding service standards             3

       Omit "TfNSW" wherever occurring in section 31E (3) (b) and (4).         4

       Insert instead "RMS".                                                   5

[25]   Section 31F Variation, suspension or cancellation of accreditation      6

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                  7

[26]   Section 31G Taxi-cab service to be linked to network booking service    8

       Omit "TfNSW". Insert instead "RMS".                                     9

[27]   Section 32 Licence                                                     10

       Omit "TfNSW" from section 32 (1). Insert instead "RMS".                11

[28]   Section 32A Application for licence                                    12

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                 13

[29]   Section 32B Grant or refusal of application                            14

       Omit "TfNSW" wherever occurring in section 32B (1), (2) and (4).       15

       Insert instead "RMS".                                                  16

[30]   Section 32B (3)                                                        17

       Omit "TfNSW" where firstly occurring. Insert instead "RMS".            18

[31]   Section 32C Availability of annual licences (other than licences for   19
       wheelchair accessible taxi-cabs)                                       20

       Omit "TfNSW" from section 32C (6). Insert instead "RMS".               21

[32]   Section 32D Renewal of licences                                        22

       Omit "TfNSW" from section 32D (2). Insert instead "RMS".               23

[33]   Section 32DB Letting and subletting of licences                        24

       Omit "TfNSW" from section 32DB (1). Insert instead "RMS".              25

[34]   Section 32F Conditions of licences                                     26

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                 27




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Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                    Schedule 2




[35]   Section 32G Variation, suspension or cancellation of licences                1
       Omit "TfNSW" wherever occurring in section 32G (1). Insert instead "RMS".    2

[36]   Section 32H Licence fees                                                     3

       Omit "TfNSW" wherever occurring in section 32H (1) and (2).                  4

       Insert instead "RMS".                                                        5

[37]   Section 32K Stand-by taxi-cabs                                               6

       Omit "TfNSW" wherever occurring in section 32K (2). Insert instead "RMS".    7

[38]   Section 33 Authorities                                                       8

       Omit "TfNSW" from section 33 (1). Insert instead "RMS".                      9

[39]   Section 33A Application for authorisation                                   10

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      11

[40]   Section 33B Grant or refusal of application                                 12

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      13

[41]   Section 33C Term and renewal of authority                                   14

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      15

[42]   Section 33D Conditions of authority                                         16

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      17

[43]   Section 33F Variation, suspension or cancellation of authority              18

       Omit "TfNSW". Insert instead "RMS".                                         19

[44]   Section 34 Requirement for authority                                        20

       Omit "TfNSW" from section 34 (1). Insert instead "RMS".                     21

[45]   Section 34A Application for authority                                       22

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      23

[46]   Section 34B Grant or refusal of application                                 24

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      25

[47]   Section 34C Term and renewal of authority                                   26

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      27




                                                                        Page 19
                Rail Safety (Adoption of National Law) Bill 2012

Schedule 2      Amendment of Acts




[48]   Section 34D Conditions of authority                                   1
       Omit "TfNSW" wherever occurring. Insert instead "RMS".                2

[49]   Section 34E Statutory conditions regarding affiliation and service    3
       standards                                                             4

       Omit "TfNSW" wherever occurring in section 34E (4) and (5).           5

       Insert instead "RMS".                                                 6

[50]   Section 34F Variation, suspension or cancellation of authorisation    7

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                8

[51]   Section 35 Designated directors and managers of corporations          9

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               10

[52]   Section 35A Exemptions regarding networks                            11

       Omit "TfNSW" from section 35A (1). Insert instead "RMS".             12

[53]   Section 38 Accreditation                                             13

       Omit "TfNSW" from section 38 (1). Insert instead "RMS".              14

[54]   Section 38A Application for accreditation                            15

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               16

[55]   Section 38B Grant or refusal of application                          17

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               18

[56]   Section 38C Term and renewal of accreditation                        19

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               20

[57]   Section 38D Conditions of accreditation                              21

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               22

[58]   Section 38E Variation, suspension or cancellation of accreditation   23

       Omit "TfNSW" from section 38E (1). Insert instead "RMS".             24

[59]   Section 39 Licence                                                   25

       Omit "TfNSW" from section 39 (1). Insert instead "RMS".              26

[60]   Section 39A Application for licence                                  27

       Omit "TfNSW" wherever occurring. Insert instead "RMS".               28




Page 20
Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                    Schedule 2




[61]   Section 39B Grant or refusal of application                                 1
       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      2

[62]   Section 39C Term and renewal of licences                                    3

       Omit "TfNSW" wherever occurring in section 39C (1) and (3).                 4

       Insert instead "RMS".                                                       5

[63]   Section 39D Short-term licences                                             6

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      7

[64]   Section 39F Conditions of licences                                          8

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                      9

[65]   Section 39G Variation, suspension or cancellation of licences              10

       Omit "TfNSW" wherever occurring in section 39G (1).                        11

       Insert instead "RMS".                                                      12

[66]   Section 39H Licence fee                                                    13

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     14

[67]   Section 40 Authorities                                                     15

       Omit "TfNSW" from section 40 (1). Insert instead "RMS".                    16

[68]   Section 40A Application for authorisation                                  17

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     18

[69]   Section 40B Grant or refusal of application                                19

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     20

[70]   Section 40C Term and renewal of authority                                  21

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     22

[71]   Section 40D Conditions of authority                                        23

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     24

[72]   Section 40E Variation, suspension or cancellation of authority             25

       Omit "TfNSW". Insert instead "RMS".                                        26

[73]   Section 41 Designated directors and managers of corporations               27

       Omit "TfNSW" wherever occurring. Insert instead "RMS".                     28




                                                                        Page 21
                    Rail Safety (Adoption of National Law) Bill 2012

Schedule 2          Amendment of Acts




[74]   Section 43 Definitions                                                           1
       Omit "TfNSW" from section 43 (2). Insert instead "RMS".                          2

[75]   Section 46A Provision of information relating to safety to RMS                   3

       Omit "the regulator" wherever occurring. Insert instead "RMS".                   4

[76]   Section 46AA Provision of information to Chief Investigator                      5

       Omit "A regulator". Insert instead "RMS".                                        6

[77]   Section 46AA                                                                     7

       Omit "the regulator". Insert instead "RMS".                                      8

[78]   Section 46B Persons must report notifiable occurrences                           9

       Omit "the regulator" from section 46B (2). Insert instead "RMS".                10

[79]   Section 46BA Investigations by the Chief Investigator                           11

       Insert "railway operations or" before "public passenger" wherever occurring     12
       in section 46BA (1) and (3).                                                    13

[80]   Section 46BA (2)                                                                14

       Omit the subsection.                                                            15

[81]   Section 46BA (4) and (4A)                                                       16

       Omit section 46BA (4). Insert instead:                                          17

              (4)      The Chief Investigator is to conduct an investigation in the    18
                       manner the Chief Investigator considers appropriate.            19

             (4A)      An investigation may extend to all relevant events and          20
                       circumstances preceding the transport accident or incident.     21

[82]   Section 46BA (6) and (7)                                                        22

       Insert after section 46BA (5):                                                  23

              (6)      The Chief Investigator may, at any time, discontinue an         24
                       investigation under this section, other than an investigation   25
                       requested by the Minister.                                      26

              (7)      Schedule 6 contains provisions relating to transport safety     27
                       investigators.                                                  28




Page 22
Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                        Schedule 2




[83]   Section 46BB Chief Investigator's functions                                         1
       Omit "an investigation under section 46BA" wherever occurring.                      2

       Insert instead "a transport safety investigation".                                  3

[84]   Section 46BB (5) and (6)                                                            4

       Omit the subsections. Insert instead:                                               5

              (5)    The notice under subsection (1) must be signed by the Chief           6
                     Investigator and specify the time and place at which the person is    7
                     required to attend to answer questions or produce the documents       8
                     or other things.                                                      9

              (6)    The Chief Investigator may require a person who attends to           10
                     answer questions under this section to answer the questions on       11
                     oath or affirmation and, for that purpose, the Chief Investigator:   12
                     (a) may require the person to take an oath or to make an             13
                           affirmation, and                                               14
                     (b) may administer an oath to, or take an affirmation from, the      15
                           person.                                                        16

[85]   Section 46BBA                                                                      17

       Insert after section 46BB:                                                         18

   46BBA      Reports on transport safety investigations                                  19

              (1)    The Chief Investigator must provide to the Minister a written        20
                     report on a transport safety investigation, including any            21
                     discontinued investigation.                                          22

              (2)    The Chief Investigator may provide a copy of a draft report, or      23
                     proposed recommendations in a report, on a confidential basis, to    24
                     the Minister or any other person before completing the report:       25
                      (a) if the Chief Investigator thinks that it is desirable or        26
                           necessary to do so for the purposes of transport safety, or    27
                     (b) to allow the making of submissions about the draft report,       28
                           or                                                             29
                      (c) to give advance notice of the likely form of the report.        30

              (3)    The Chief Investigator may include in a report on a transport        31
                     safety investigation any submissions made in response to a draft     32
                     report or draft recommendations, safety action statements or         33
                     safety recommendations.                                              34




                                                                             Page 23
                Rail Safety (Adoption of National Law) Bill 2012

Schedule 2         Amendment of Acts




             (4)      A person must not copy, or disclose to a person or a court, the          1
                      contents of a draft report or draft recommendations provided             2
                      under this section, except:                                              3
                      (a) as required or authorised by or under this or any other Act,         4
                            or                                                                 5
                      (b) where necessary to take steps to remedy safety issues                6
                            identified in the draft report, or                                 7
                      (c) where necessary to prepare submissions on the draft report           8
                            or draft recommendations.                                          9
                      Maximum penalty: 100 penalty units.                                     10

             (5)      If the Chief Investigator discontinues an investigation, the Chief      11
                      Investigator must provide to the Minister, within 28 days, a            12
                      written report setting out the reasons for discontinuing the            13
                      investigation.                                                          14

             (6)      A report of a transport safety investigation, a draft report or draft   15
                      recommendations are not admissible in any legal proceedings.            16

             (7)      A person who is provided with a draft report under this section:        17
                      (a) cannot be required to disclose it to a court, and                   18
                      (b) is not entitled to take any disciplinary action against an          19
                            employee of the person on the basis of the report.                20

             (8)      In this section:                                                        21
                      safety action statement means a statement:                              22
                       (a) setting out any safety issues identified during the course of      23
                             an investigation that should be addressed, or                    24
                      (b) setting out any steps taken by persons to remedy safety             25
                             issues identified during the course of an investigation.         26

[86]   Section 46BC Transport safety inquiries                                                27

       Insert "railway operations or" before "a public passenger" in section 46BC (1).        28

[87]   Section 46BD Chief Investigator may request transport safety inquiry                   29

       Insert "railway operations          or"   before    "a      public   passenger"   in   30
       section 46BD (1).                                                                      31




Page 24
Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                          Schedule 2




[88]   Section 46C                                                                           1
       Insert after section 46BG:                                                            2

       46C    Compliance with subpoenas and other directions                                 3

              (1)    The Chief Investigator or a former Chief Investigator or a person       4
                     who is or was a transport safety investigator is not obliged to         5
                     comply with a subpoena or similar direction of a court in relation      6
                     to civil proceedings to attend and answer questions relating to an      7
                     accident or incident or other event, occurrence, practice or matter     8
                     the subject of a transport safety investigation, if the Chief           9
                     Investigator has issued a certificate under subsection (2) in          10
                     relation to the transport safety investigation.                        11

              (2)    The Chief Investigator may issue a certificate stating that the        12
                     Chief Investigator, former Chief Investigator or a person who is       13
                     or was a transport safety investigator is or was involved in a         14
                     transport safety investigation.                                        15

              (3)    A member of a Board of Inquiry, a former member of a Board of          16
                     Inquiry or a person who is or was an authorised officer is not         17
                     obliged to comply with a subpoena or similar direction of a court      18
                     in relation to civil proceedings to attend and answer questions        19
                     relating to an accident or incident or other event, occurrence,        20
                     practice or matter the subject of a transport safety inquiry, if the   21
                     Minister has issued a certificate under subsection (4).                22

              (4)    The Minister may issue a certificate stating that a member of a        23
                     Board of Inquiry, a former member of a Board of Inquiry or a           24
                     person who is or was an authorised officer is or was involved in       25
                     a transport safety inquiry.                                            26

[89]   Section 46D Tabling of reports                                                       27

       Omit "section 46BA (2)" from section 46D (1).                                        28

       Insert instead "section 46BBA (1)".                                                  29

[90]   Section 46E Confidential reporting of safety information by transport                30
       safety employees                                                                     31

       Omit section 46E (1). Insert instead:                                                32

              (1)    The Chief Investigator may establish a system for the voluntary        33
                     reporting by transport safety employees or rail safety workers         34
                     (within the meaning of the Rail Safety National Law (NSW)) of          35
                     matters that may affect the safe provision of a public passenger       36
                     service by means of a bus or ferry or of railway operations.           37




                                                                               Page 25
                    Rail Safety (Adoption of National Law) Bill 2012

Schedule 2          Amendment of Acts




[91]   Section 46E (5)                                                                      1
       Insert after section 46E (4):                                                        2

              (5)      In this section:                                                     3

                       regulator means:                                                     4
                       (a) in relation to any public passenger service provided by          5
                             bus--RMS, or                                                   6
                       (b) in relation to any public passenger service provided by          7
                             ferry--the person or body prescribed by the regulations for    8
                             the purposes of this definition, or                            9
                       (c) in relation to railway operations--the National Rail Safety     10
                             Regulator under the Rail Safety National Law (NSW), or        11
                       (d) any other person prescribed by the regulations for the          12
                             purposes of this definition.                                  13

[92]   Section 46G Use of powers by authorised officers                                    14

       Omit "investigation," from section 46G (a).                                         15

[93]   Section 46H Inspections relating to bus and ferry services                          16

       Omit "The regulator" from section 46H (1). Insert instead "RMS".                    17

[94]   Section 46H (1)                                                                     18

       Omit "or service contract".                                                         19

[95]   Section 46H (1A)                                                                    20

       Insert after section 46H (1):                                                       21

             (1A)      TfNSW may cause inspections to be carried out to ensure that a      22
                       person who carries on a public passenger service by means of a      23
                       bus is complying with the terms of the person's service contract    24
                       under this Act.                                                     25

[96]   Section 46H (2) and (3)                                                             26

       Omit "the regulator" wherever occurring. Insert instead "RMS or TfNSW".             27

[97]   Section 46J Powers on entry                                                         28

       Omit "the regulator" from section 46J (k). Insert instead "RMS".                    29




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 Rail Safety (Adoption of National Law) Bill 2012

 Amendment of Acts                                                          Schedule 2




 [98]    Part 4C, Division 3                                                                  1
         Insert after section 46N:                                                            2

         Division 3          Provisions relating to powers of authorised                      3
                             officers and transport safety investigators                      4

        46NA    Meaning of "appropriate authority"                                            5

                      In this Division:                                                       6
                      appropriate authority means:                                            7
                       (a) in the case of a function exercised by an authorised officer       8
                             appointed by TfNSW--TfNSW, or                                    9
                      (b) in the case of a function exercised by an authorised officer       10
                             appointed by RMS--RMS, or                                       11
                       (c) in the case of a function exercised by a transport safety         12
                             investigator--the Chief Investigator.                           13

 [99]    Section 46O Use of force                                                            14

         Insert "or transport safety investigator" after "authorised officer".               15

[100]    Section 46P Care to be taken                                                        16

         Omit "under this Division, an authorised officer".                                  17

         Insert instead "under this Part or Schedule 6, an authorised officer or transport   18
         safety investigator".                                                               19

[101]    Section 46Q Compensation                                                            20

         Omit "regulator" from section 46Q (1). Insert instead "appropriate authority".      21

[102]    Section 46Q (1)                                                                     22

         Omit "Division". Insert instead "Part".                                             23

[103]    Section 46Q (1A)                                                                    24

         Insert after section 46Q (1):                                                       25

               (1A)   The Crown must pay compensation for any damage caused by               26
                      any transport safety investigator in the exercise of a power to        27
                      enter premises or a vehicle under Schedule 6, other than damage        28
                      reasonably arising from work done for the purpose of a transport       29
                      safety investigation.                                                  30




                                                                                 Page 27
                  Rail Safety (Adoption of National Law) Bill 2012

 Schedule 2          Amendment of Acts




[104]   Section 46R Authority to enter                                                       1
        Omit "Division" from section 46R (1).                                                2

        Insert instead "Part on an authorised officer".                                      3

[105]   Section 46R (3)                                                                      4

        Insert "or to a power exercised by an authorised officer who is a police officer"    5
        after "search warrant".                                                              6

[106]   Section 46S Assistance to be given to authorised officers and transport              7
        safety investigators                                                                 8

        Insert "or a transport safety investigator" after "an authorised officer"            9
        wherever occurring in section 46S (1).                                              10

[107]   Section 46S (1)                                                                     11

        Omit "Division". Insert instead "Part or Schedule 6".                               12

[108]   Section 46S (2)                                                                     13

        Omit "regulator". Insert instead "appropriate authority".                           14

[109]   Section 46S (2)                                                                     15

        Insert "or entered under Schedule 6" after "section 46I".                           16

[110]   Section 46S (3)                                                                     17

        Insert "made by an authorised officer" after "requirement".                         18

[111]   Section 46S (3)                                                                     19

        Omit "Division". Insert instead "Part".                                             20

[112]   Section 46S (4)                                                                     21

        Insert after section 46S (3):                                                       22

               (4)      A person who fails to comply with a requirement made by a           23
                        transport safety investigator under this section is taken to have   24
                        obstructed the investigator in the exercise of the investigator's   25
                        functions under Schedule 6.                                         26

[113]   Section 46T Premises used for residential purposes                                  27

        Omit "Division". Insert instead "Part".                                             28

[114]   Section 46V Search warrants                                                         29

        Insert "by an authorised officer" after "application is made" in section 46V (2).   30




 Page 28
 Rail Safety (Adoption of National Law) Bill 2012

 Amendment of Acts                                                          Schedule 2




[115]   Section 46V (2A) and (2B)                                                             1
        Insert after section 46V (2):                                                         2

             (2A)     A transport safety investigator may apply to an authorised justice      3
                      for a search warrant if the investigator has reasonable grounds for     4
                      believing that there is on the premises evidence or a thing that is     5
                      relevant to a transport safety investigation.                           6

             (2B)     An authorised justice to whom an application is made by a               7
                      transport safety investigator may, if satisfied that there are          8
                      reasonable grounds for doing so, issue a search warrant                 9
                      authorising a transport safety investigator named in the warrant:      10
                       (a) to enter the premises, and                                        11
                      (b) to search the premises for evidence or a thing that is             12
                            relevant to a transport safety investigation.                    13

[116]   Section 46V (4) (a)                                                                  14

        Insert "or a transport safety investigator" after "an authorised officer".           15

[117]   Section 46V (4) (b)                                                                  16

        Omit "the authorised officer in the exercise of the officer's".                      17

        Insert instead "the transport safety investigator or authorised officer in the       18
        exercise of the investigator's or officer's".                                        19

[118]   Section 46W Appointment of authorised officers                                       20

        Omit section 46W (1)-(3). Insert instead:                                            21

               (1)    TfNSW may appoint a member of staff of TfNSW, or a person of           22
                      a class prescribed by the regulations, to be an authorised officer     23
                      for the purposes of this Act.                                          24

               (2)    RMS may appoint a member of staff of RMS, or a person of a             25
                      class prescribed by the regulations, to be an authorised officer for   26
                      the purposes of this Act.                                              27

               (3)    An authorised officer may exercise the functions of an authorised      28
                      officer under this Act insofar as those functions relate:              29
                      (a) in the case of an officer appointed by RMS--to the                 30
                             functions of RMS, or                                            31
                      (b) in the case of an officer appointed by TfNSW (other than           32
                             an officer appointed in relation to rail passenger services     33
                             and railway premises)--to the enforcement of service            34
                             contracts and any other matters not referred to in              35
                             paragraph (a) or subsection (7).                                36




                                                                                Page 29
                 Rail Safety (Adoption of National Law) Bill 2012

 Schedule 2      Amendment of Acts




[119]   Section 46W (5)                                                                    1
        Omit "a regulator". Insert instead "TfNSW or RMS".                                 2

[120]   Section 47 Effect of notification of decisions of TfNSW or RMS                     3

        Insert "or RMS" after "TfNSW" wherever occurring.                                  4

[121]   Section 52 Applications to Administrative Decisions Tribunal                       5

        Omit "TfNSW" from section 52 (3). Insert instead "RMS".                            6

[122]   Section 53 Exchange of information                                                 7

        Omit "The regulator" from section 53 (1). Insert instead "RMS".                    8

[123]   Section 53 (1), (3) and (4)                                                        9

        Omit "the regulator" wherever occurring. Insert instead "RMS".                    10

[124]   Section 53B Requirement to return documents or number-plates                      11

        Omit "TfNSW" from section 53B (1). Insert instead "RMS".                          12

[125]   Section 53B (2)                                                                   13

        Omit ", unless otherwise directed by TfNSW in writing,".                          14

[126]   Sections 53B (2), 53C (2) (c) and (5) and 53E (1)                                 15

        Omit "Roads and Maritime Services" wherever occurring.                            16

        Insert instead "RMS".                                                             17

[127]   Section 53C Drug and alcohol programs and testing relating to ferry               18
        services                                                                          19

        Omit "Roads and Maritime                Services"     wherever   occurring   in   20
        section 53C (2) (a) and (3).                                                      21

        Insert instead "TfNSW".                                                           22

[128]   Section 53E Recommendations arising from investigations                           23

        Omit "section 46BA (2) or". Insert instead "section 46BBA (1)".                   24

[129]   Section 56 Obstruction                                                            25

        Insert "or a transport safety investigator", "or investigator" and "or            26
        investigator's" after "authorised officer", "officer" and "officer's",            27
        respectively, wherever occurring.                                                 28




 Page 30
 Rail Safety (Adoption of National Law) Bill 2012

 Amendment of Acts                                                       Schedule 2




[130]   Section 56 (d)                                                                    1
        Insert "or other things" after "documents".                                       2

[131]   Section 61 Recovery of amounts due                                                3

        Omit "TfNSW". Insert instead "RMS".                                               4

[132]   Section 62 Records and evidentiary matters                                        5

        Omit "TfNSW" from section 62 (1). Insert instead "RMS".                           6

[133]   Section 62 (1)                                                                    7

        Omit "contracts,".                                                                8

[134]   Section 62 (1A)                                                                   9

        Insert after section 62 (1):                                                     10

             (1A)     TfNSW must keep records of the making, variation, suspension,      11
                      cancellation and renewal of service contracts.                     12

[135]   Section 62 (2)                                                                   13

        Insert "RMS or" before "TfNSW".                                                  14

[136]   Schedule 3 Savings and transitional provisions                                   15

        Insert at the end of the Schedule with appropriate Part and clause numbering:    16


        Part          Provisions consequent on enactment of                              17
                      Rail Safety (Adoption of National Law)                             18
                      Act 2012                                                           19

               Definition                                                                20

                      In this Part:                                                      21

                      the amending Act means the Rail Safety (Adoption of National       22
                      Law) Act 2012.                                                     23

               Saving of current authorities and other matters                           24

                      Any act, matter or thing done or omitted by TfNSW, and having      25
                      any force or effect immediately before the commencement of an      26
                      amendment to this Act by the amending Act that confers the         27
                      function to do the act, matter or thing on RMS, is taken to have   28
                      been done or omitted by RMS and this Act applies accordingly.      29




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               Drug and alcohol guidelines                                                 1
                     Any guidelines approved by RMS under section 53C, and in              2
                     force immediately before the amendment of that section by the         3
                     amending Act, are taken to have been approved by TfNSW and            4
                     this Act applies accordingly.                                         5

[137]   Schedule 6                                                                         6

        Insert after Schedule 5:                                                           7


        Schedule 6              Transport safety investigators                             8

           1   Definitions                                                                 9

                     In this Schedule:                                                    10

                     accident site means any of the following sites associated with a     11
                     transport accident or incident:                                      12
                      (a) a site containing a bus, ferry, rolling stock or wreckage of    13
                           a bus, ferry or rolling stock,                                 14
                     (b) a site where there is an impact point associated with a          15
                           transport accident or incident,                                16
                      (c) a site where a transport accident or incident occurred,         17
                     (d) if the accident or incident involved destruction or serious      18
                           damage to property (other than a bus, ferry or rolling         19
                           stock), a site containing that property or its wreckage,       20
                      (e) any area around a site referred to in paragraph (a), (b), (c)   21
                           or (d) that the Chief Investigator determines is reasonably    22
                           necessary to facilitate a transport safety investigation and   23
                           securing any such site.                                        24

                     notifiable occurrence:                                               25
                     (a) in relation to railway operations--has the same meaning as       26
                            it has in the Rail Safety National Law (NSW), and             27
                     (b) in relation to a bus or ferry--means an occurrence required      28
                            to be reported under section 46B.                             29

                     premises includes any place, vehicle or railway premises.            30

                     rolling stock has the same meaning as it has in the Rail Safety      31
                     National Law (NSW).                                                  32




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                     special premises means:                                                 1
                     (a) an accident site, or                                                2
                     (b) premises that it is necessary to enter to get into an accident      3
                           site, or                                                          4
                     (c) a vehicle.                                                          5

                     vehicle includes rolling stock.                                         6

         2    Appointment of transport safety investigators                                  7

              (1)    The Chief Investigator may appoint an authorised person (within         8
                     the meaning of section 45DA of the Transport Administration             9
                     Act 1988) as a transport safety investigator for the purposes of       10
                     conducting a transport safety investigation.                           11
                     Note. Section 45DA of the Transport Administration Act 1988 permits    12
                     the Chief Investigator to delegate any of his or her functions.        13

              (2)    The Chief Investigator must issue a transport safety investigator      14
                     with an identity card.                                                 15

              (3)    The identity card must:                                                16
                     (a) be in the form approved by the Minister, and                       17
                     (b) contain a recent photograph of the person.                         18

              (4)    A transport safety investigator must not exercise a function           19
                     conferred by or under this Act unless an identity card has been        20
                     issued to the investigator by the Chief Investigator.                  21

              (5)    A transport safety investigator may exercise the functions             22
                     conferred by this Schedule if the investigator believes on             23
                     reasonable grounds that it is necessary to do so for the purposes      24
                     of, or in connection with, a transport safety investigation.           25

         3    Identity cards                                                                26

              (1)    This clause applies to a transport safety investigator who is          27
                     exercising, or about to exercise, a function under this Act.           28

              (2)    A transport safety investigator must:                                  29
                     (a) carry his or her identity card at all times when exercising a      30
                           power under this Act to enter premises or a power that is        31
                           exercisable after entering premises, and                         32
                     (b) produce his or her identity card if requested to do so by a        33
                           person in relation to whom the officer is exercising, or         34
                           about to exercise, the power.                                    35

              (3)    A person who has ceased to be a transport safety investigator          36
                     must not, without reasonable excuse, refuse or fail to return to the   37




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                       Chief Investigator, within such period as is specified by the Chief         1
                       Investigator in a request for the return of the card, any identity          2
                       card issued to the person by the Chief Investigator.                        3
                       Maximum penalty: 15 penalty units.                                          4

          4   Power to enter special premises without consent or warrant                           5

              (1)      A transport safety investigator may enter special premises                  6
                       without the occupier's consent and without obtaining a search               7
                       warrant if:                                                                 8
                       (a) the investigator believes on reasonable grounds that it is              9
                             necessary to do so, and                                              10
                       (b) the investigation is into a notifiable occurrence.                     11

              (2)      Before entering special premises under this clause, the transport          12
                       safety investigator must take reasonable steps to give to the              13
                       occupier of the premises a written notice setting out the                  14
                       occupier's rights and obligations under this Act in relation to the        15
                       powers that may be exercised on entry.                                     16

          5   Power to enter premises with consent                                                17

              (1)      A transport safety investigator may enter any premises with the            18
                       consent of the occupier of the premises.                                   19

              (2)      Before obtaining the consent of a person to enter premises under           20
                       this Schedule, a transport safety investigator must inform the             21
                       person that the person may refuse consent.                                 22

          6   Power to enter premises with search warrant                                         23

                       A transport safety investigator may enter any premises under a             24
                       search warrant.                                                            25
                       Note. A transport safety investigator may apply for a search warrant for   26
                       a transport safety investigation under section 46V.                        27

          7   Powers after entering premises                                                      28

              (1)      General powers                                                             29

                       A transport safety investigator who enters premises under this             30
                       Schedule (including under a search warrant) may do any of the              31
                       following:                                                                 32
                        (a) search and inspect the premises and anything on the                   33
                             premises for any thing relevant to a transport safety                34
                             investigation,                                                       35




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                     (b)    take measurements, make surveys and take levels, dig             1
                            trenches, break up the soil and set up any posts, stakes or      2
                            markers,                                                         3
                      (c)   take photos and make video recordings, sound recordings          4
                            or other records of the premises or anything on the              5
                            premises,                                                        6
                     (d)    make copies of any thing relevant to a transport safety          7
                            investigation found on the premises,                             8
                      (e)   examine, take measurements of, conduct tests on, or take         9
                            samples of, anything relevant to a transport safety             10
                            investigation found on the premises,                            11
                      (f)   operate equipment on the premises in order to access any        12
                            thing relevant to a transport safety investigation found on     13
                            the premises,                                                   14
                     (g)    remove a thing that is relevant to a transport safety           15
                            investigation from the premises with the consent of:            16
                             (i) the owner of the thing, if it is practicable to obtain     17
                                   the consent of the owner, or                             18
                            (ii) the occupier of the premises, if it is not practicable     19
                                   to obtain the owner's consent.                           20

              (2)    Obtaining consent                                                      21

                     Before obtaining the consent of a person to remove a thing from        22
                     premises under subclause (1), the transport safety investigator        23
                     must inform the person of the purpose for which the thing is           24
                     required and that the person may refuse consent. A consent of a        25
                     person is not effective for the purposes of subclause (1) unless the   26
                     consent is voluntary.                                                  27

              (3)    Special premises                                                       28

                     A transport safety investigator who enters special premises (other     29
                     than under a search warrant) may also:                                 30
                      (a) require a person on the premises to answer questions or           31
                           produce anything relevant to a transport safety                  32
                           investigation, and                                               33
                     (b) seize that thing, or any other thing found on the premises,        34
                           if the thing is directly relevant to the investigation           35
                           concerned and the investigator believes on reasonable            36
                           grounds that it is necessary to seize the thing in order to      37
                           prevent it being interfered with or to prevent its               38
                           concealment, loss, deterioration or destruction.                 39




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              (4)      Entry under a search warrant                                            1
                       A transport safety investigator who enters premises under a             2
                       search warrant may also:                                                3
                       (a) require a person on the premises to answer questions or             4
                             produce anything to which the warrant relates, and                5
                       (b) seize that thing, or any other thing found on the premises          6
                             relevant to the investigation concerned.                          7

              (5)      Offence                                                                 8

                       A person must not, without reasonable excuse, fail to comply            9
                       with a requirement made of the person under this clause.               10
                       Maximum penalty: 100 penalty units.                                    11

          8   Occupier entitled to be present during search                                   12

              (1)      The occupier of premises who is present when a search warrant          13
                       for the premises is being executed is entitled to observe the search   14
                       being conducted.                                                       15

              (2)      The right to observe the search being conducted ceases if the          16
                       occupier impedes the search.                                           17

              (3)      This clause does not prevent 2 or more areas of the premises           18
                       being searched at the same time.                                       19

          9   Securing a site                                                                 20

              (1)      For the purpose of protecting evidence that might be relevant for      21
                       a transport safety investigation or ensuring safety, a transport       22
                       safety investigator may secure the perimeter of any site at a place    23
                       entered under this Schedule by whatever means the investigator         24
                       considers appropriate.                                                 25

              (2)      A person must not, without the permission of a transport safety        26
                       investigator, enter or remain at a site the perimeter of which is      27
                       secured under this clause.                                             28
                       Maximum penalty: 1,000 penalty units.                                  29

              (3)      Subclause (2) does not apply if the person enters the site, or         30
                       remains at the site:                                                   31
                        (a) to ensure the safety of persons, or                               32
                       (b) to remove deceased persons or animals from the site, or            33
                        (c) to move a motor vehicle, or the wreckage of a motor               34
                             vehicle, to a safe place, or                                     35
                       (d) to protect the environment from significant damage or              36
                             pollution.                                                       37




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              (4)    A transport safety investigator must not unreasonably withhold a      1
                     permission referred to in subclause (2).                              2

       10     Power to stop and detain vehicles                                            3

              (1)    This clause applies if a transport safety investigator believes on    4
                     reasonable grounds that:                                              5
                      (a) information or other material that is relevant to a transport    6
                           safety investigation is in or on rolling stock, a ferry or a    7
                           bus, and                                                        8
                     (b) it is necessary to exercise other functions under this            9
                           Schedule in order to prevent the information or material       10
                           from being removed from this State or from being               11
                           interfered with or to prevent its concealment, loss,           12
                           deterioration or destruction.                                  13

              (2)    The transport safety investigator may stop and detain the rolling    14
                     stock, bus or ferry for the purpose of exercising those other        15
                     functions. The transport safety investigator may do so with such     16
                     assistance, and using such force, as is necessary and reasonable.    17

              (3)    The transport safety investigator must not detain the rolling        18
                     stock, bus or ferry for longer than is necessary and reasonable to   19
                     exercise those other functions.                                      20

       11     Retention of documents and other material                                   21

              (1)    This clause applies to the following material:                       22
                     (a) a document or other thing produced under this Schedule,          23
                     (b) a thing seized under this Schedule.                              24

              (2)    The Chief Investigator or a transport safety investigator must       25
                     provide a receipt for the document or thing.                         26

              (3)    The Chief Investigator may make copies of the document or            27
                     thing.                                                               28

              (4)    The Chief Investigator may examine or test the document or           29
                     thing, even though that might result in damage or destruction of     30
                     the document or thing or a reduction in its value.                   31

              (5)    The Chief Investigator must return the document or thing when it     32
                     is no longer needed for the purpose of an investigation. However,    33
                     if there is no owner or the Chief Investigator cannot, despite       34
                     making reasonable efforts, locate the owner, the Chief               35
                     Investigator may dispose of the document or thing in such            36
                     manner as the Chief Investigator thinks appropriate.                 37




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             (6)      Despite subclause (5), the Chief Investigator must make the              1
                      document or thing available to a relevant body on the written            2
                      request of the body for the purposes of:                                 3
                       (a) an investigation under a law of the Commonwealth or                 4
                            another State or Territory, or                                     5
                      (b) a coronial inquest or inquiry.                                       6

             (7)      The Chief Investigator is not required to comply with any such           7
                      request:                                                                 8
                       (a) to the extent that the document or thing is or contains             9
                            restricted information or an on-board recording, or               10
                      (b) if the Chief Investigator is of the opinion that making the         11
                            document or thing available would be likely to interfere          12
                            with any transport safety investigation to which the              13
                            document or thing relates.                                        14

             (8)      In this clause:                                                         15
                      on-board recording means a recording:                                   16
                       (a) that consists of (or consists mainly of) sounds or images,         17
                             or sounds and images, of persons in the control area of          18
                             rolling stock, a bus or a ferry, and                             19
                      (b) that was made in order to comply with a law of this State,          20
                             and                                                              21
                       (c) any part of which was made at the time of the occurrence           22
                             of an accident or incident that involved the rolling stock,      23
                             bus or ferry.                                                    24
                      owner includes an agent of an owner.                                    25
                      relevant body means:                                                    26
                       (a) a Government Department, or                                        27
                      (b) a NSW government agency, or                                         28
                       (c) an agency of the Commonwealth or another State or                  29
                             Territory, or                                                    30
                      (d) a State or Territory Government, or                                 31
                       (e) a coroner.                                                         32
                      restricted information means any of the following:                      33
                       (a) all statements (whether oral or in writing) obtained from          34
                             persons by the Chief Investigator or a transport safety          35
                             investigator in the course of a transport safety investigation   36
                             (including any record of such a statement),                      37




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                     (b)    all information recorded by the Chief Investigator or a            1
                            transport safety investigator in the course of a transport         2
                            safety investigation,                                              3
                      (c)   all communications with a person involved in the                   4
                            operation of rolling stock, a ferry, a bus or other vehicle        5
                            that is or was the subject of a transport safety investigation,    6
                     (d)    medical or private information regarding persons                   7
                            (including deceased persons) involved in a matter that is          8
                            being investigated,                                                9
                      (e)   information in relation to rolling stock, a ferry, a bus or       10
                            other vehicle that is or was the subject of a transport safety    11
                            investigation, recorded for the purposes of monitoring or         12
                            directing the progress of the vehicle from one place to           13
                            another or information recorded in relation to the operation      14
                            of the vehicle,                                                   15
                      (f)   records of the analysis of information or material acquired       16
                            in the course of a transport safety investigation (including      17
                            opinions expressed by a person in that analysis),                 18
                     (g)    information that is contained in a document produced on           19
                            entry to premises under this Schedule,                            20
                     (h)    information contained in a report made under a voluntary          21
                            reporting scheme,                                                 22
                      (i)   information obtained or generated by the Chief                    23
                            Investigator in the course of considering a report made           24
                            under a voluntary reporting scheme,                               25
                      (j)   records of the analysis of information contained in a report      26
                            made under a voluntary reporting scheme (including                27
                            opinions expressed by a person in that analysis).                 28

2.12 Statute Law (Miscellaneous Provisions) Act (No 2) 2009                                   29
     No 106                                                                                   30

       Schedule 1 Minor amendments                                                            31

       Omit Subschedules 1.9 and 1.15.                                                        32

2.13 Transport Administration Act 1988 No 109                                                 33

[1]    Section 3 Definitions                                                                  34

       Insert in alphabetical order in section 3 (1):                                         35
                     transport safety inquiry has the same meaning as it has in the           36
                     Passenger Transport Act 1990.                                            37




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[2]   Section 3G Directions by TfNSW to public transport agencies                        1
      Insert after section 3G (3):                                                       2

             (4)   TfNSW may not give a direction under this section to a body in        3
                   relation to the exercise by that body of the body's functions as a    4
                   relevant safety regulator under section 3H.                           5

[3]   Section 3H Review by relevant safety regulator of directions relating to           6
      transport safety matters                                                           7

      Omit paragraph (b) of the definition of relevant safety regulator in               8
      section 3H (1).                                                                    9

      Insert instead:                                                                   10
                    (b)   in the case of a direction relating to bus services--Roads    11
                          and Maritime Services, or                                     12

[4]   Section 3H (1)                                                                    13

      Omit "section 12 of the Rail Safety Act 2008" from paragraph (b) of the           14
      definition of safety management system.                                           15

      Insert instead "section 99 of the Rail Safety National Law (NSW)".                16

[5]   Section 6 Railway passenger services                                              17

      Omit "Rail Safety Act 2008" from section 6 (4).                                   18

      Insert instead "Rail Safety National Law (NSW)".                                  19

[6]   Section 42A Definitions                                                           20

      Omit the definitions of Board, bus, ferry, rail safety inquiry, transport         21
      authority, transport safety inquiry and transport service.                        22

      Insert in alphabetical order:                                                     23
                    Rail Safety National Law means:                                     24
                     (a) the Rail Safety National Law (NSW), or                         25
                    (b) the Rail Safety National Law set out in the Schedule to the     26
                          Rail Safety National Law (South Australia) Act 2012 of        27
                          South Australia as applied as a law of a participating        28
                          jurisdiction within the meaning of that Law.                  29
                    railway operations has the same meaning as in the Rail Safety       30
                    National Law (NSW).                                                 31
                    transport authority means:                                          32
                     (a) RailCorp, or                                                   33
                    (b) TfNSW, or                                                       34




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                      (c)   any other person or body prescribed as a transport               1
                            authority by the regulations.                                    2

[7]    Section 42C Objectives of ITSR                                                        3

       Omit "transport services" wherever occurring.                                         4

       Insert instead "railway operations".                                                  5

[8]    Section 42D General functions of ITSR                                                 6

       Omit section 42D (2). Insert instead:                                                 7

              (2)    The principal functions of the ITSR are as follows:                     8
                     (a) to review and evaluate any matter related to the safe               9
                           operation of railway operations,                                 10
                     (b) to advise the Minister, or make recommendations to the             11
                           Minister, or both, about any matter related to the safe          12
                           operation of railway operations,                                 13
                     (c) to exercise any functions conferred on the ITSR for the            14
                           purposes of the Rail Safety National Law (whether                15
                           conferred by delegation under that Law or under an               16
                           agreement entered into by the ITSR for that purpose),            17
                     (d) to exercise any other functions conferred under an                 18
                           agreement entered into under this section.                       19

            (2A)     The ITSR may monitor, and advise the Minister on, the                  20
                     compliance by transport authorities and operators carrying out         21
                     railway operations with the recommendations of reports of              22
                     investigations and inquiries into transport accidents or incidents     23
                     involving railway operations or the safety of railway operations,      24
                     including reports of the following kinds:                              25
                      (a) reports by the Chief Investigator,                                26
                     (b) transport safety inquiry reports,                                  27
                      (c) reports by the Australian Transport Safety Bureau relating        28
                            to accidents or incidents in New South Wales,                   29
                     (d) an inquest or inquiry under the Coroners Act 2009.                 30

            (2B)     The ITSR may enter into an agreement with the National Rail            31
                     Safety Regulator to exercise functions of that body under the Rail     32
                     Safety National Law, whether those functions are functions of the      33
                     Regulator under a law of this State or of another State or Territory   34
                     or of the Commonwealth.                                                35

[9]    Sections 42E-42K                                                                     36

       Omit the sections.                                                                   37




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[10]   Section 42L Disclosure of information by ITSR                                    1
       Omit "a transport service" wherever occurring in section 42L (1) and (2).        2

       Insert instead "railway operations".                                             3

[11]   Section 42L (2)                                                                  4

       Omit ", including the report of a rail safety inquiry or a transport safety      5
       inquiry".                                                                        6

[12]   Section 42L (4)-(6)                                                              7

       Omit the subsections. Insert instead:                                            8

             (4)    This section does not permit the disclosure of information in       9
                    contravention of section 46E of the Passenger Transport            10
                    Act 1990.                                                          11

[13]   Section 42M Chief Executive of ITSR                                             12

       Omit section 42M (2).                                                           13

[14]   Section 42P Limitations on Ministerial control of ITSR                          14

       Omit section 42P (2). Insert instead:                                           15

             (2)    The ITSR is not subject to the direction and control of the        16
                    Minister in respect of the following matters:                      17
                    (a) the exercise of a function under the Rail Safety National      18
                          Law,                                                         19
                    (b) the exercise of a function under an agreement referred to in   20
                          section 42D (2B),                                            21
                    (c) the exercise of a function as a relevant safety regulator      22
                          under section 3H,                                            23
                    (d) the contents of any report or recommendation of the ITSR.      24

[15]   Section 42Q Delegation of functions of ITSR                                     25

       Omit section 42Q (3).                                                           26

[16]   Part 4A, Divisions 6 and 7                                                      27

       Omit the Divisions.                                                             28

[17]   Section 45A General functions of Chief Investigator                             29

       Omit "the Rail Safety Act 2008 and" from section 45A (2) (a).                   30




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[18]    Section 45A (2) (e)                                                                 1
        Insert at the end of section 45A (2) (d):                                           2
                             , and                                                          3
                       (e) at the request of the Minister, to investigate and advise the    4
                             Minister about any matter related to the safe operation of     5
                             transport services.                                            6

[19]    Section 45AA                                                                        7

        Insert after section 45A:                                                           8

       45AA   Limits on functions of Chief Investigator                                     9

              (1)    The following are not functions of the Chief Investigator:            10
                     (a) to apportion blame for transport safety matters,                  11
                     (b) to provide the means to determine the liability of any            12
                           person in respect of a transport safety matter,                 13
                     (c) to assist in court proceedings between parties (except as         14
                           provided by or under this or any other Act, whether             15
                           expressly or impliedly),                                        16
                     (d) to allow any adverse inference to be drawn from the fact          17
                           that a person was involved in a transport safety matter.        18

              (2)    However, even though blame or liability may be inferred, or an        19
                     adverse inference may be made, by a person other than the Chief       20
                     Investigator, this does not prevent the Chief Investigator from       21
                     carrying out the Chief Investigator's functions.                      22

              (3)    To avoid doubt, this section does not prevent the prosecution of      23
                     any offence under this Act, the Passenger Transport Act 1990,         24
                     the Rail Safety National Law (NSW) or any other Act.                  25

[20]    Section 45C Disclosure of information by Chief Investigator                        26

        Omit section 45C (4).                                                              27

[21]    Section 45C (5)                                                                    28

        Omit "section 64 of the Rail Safety Act 2008 or".                                  29

[22]    Section 45C (6)                                                                    30

        Omit "Sections 77 and 78 of the Rail Safety Act 2008 do".                          31

        Insert instead "Section 131 of the Rail Safety National Law (NSW) does".           32




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[23]    Section 45DB                                                                                  1
        Insert after section 45DA:                                                                    2

       45DB   Arrangements with Australian Transport Safety Bureau                                    3

              (1)      The Chief Investigator may enter into arrangements with the                    4
                       Australian Transport Safety Bureau to perform services in                      5
                       connection with the Bureau's functions or the exercise of the                  6
                       Bureau's functions or to make available any staff of the Chief                 7
                       Investigator to perform such services.                                         8

              (2)      The Chief Investigator may exercise any functions conferred on                 9
                       the Chief Investigator under an arrangement entered into under                10
                       this section, whether those functions are to be exercised in this             11
                       State or another State or Territory.                                          12
                       Note. Section 16A of the Transport Safety Investigation Act 2003 of the       13
                       Commonwealth authorises the Australian Transport Safety Bureau to             14
                       enter into arrangements of a kind referred to in section 45DB with the        15
                       appropriate authority or officer of the government of a State or Territory.   16

[24]    Sections 52B-52E                                                                             17

        Insert after section 52A:                                                                    18

        52B   Functions relating to bus services safety                                              19

              (1)      RMS is to monitor the following matters relating to the safe                  20
                       operation of bus services:                                                    21
                       (a) the performance of transport authorities in connection with               22
                             the exercise of their functions relating to the safe operation          23
                             of bus services,                                                        24
                       (b) the performance of owners or operators of bus services in                 25
                             connection with the safe operation of those services,                   26
                       (c) the compliance by transport authorities with any safety                   27
                             management systems required to be implemented by them                   28
                             under any other Act or law or conditions of accreditation.              29

              (2)      RMS is to disseminate information to the public relating to the               30
                       safety of bus services as RMS considers appropriate.                          31

              (3)      In this section and section 52C:                                              32
                       transport authority means:                                                    33
                        (a) the State Transit Authority, or                                          34
                       (b) any other person or body prescribed by the regulations as                 35
                              a transport authority for the purposes of this definition.             36




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Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                        Schedule 2




      52C     Auditing of transport authorities and owners and operators of bus            1
              services                                                                     2

              (1)    RMS may, for the purposes of exercising its functions relating to     3
                     the safety of bus services, conduct audits of the compliance of       4
                     transport authorities and owners or operators of bus services with    5
                     requirements applicable to them under this or any other Act.          6

              (2)    Audits may be conducted on a periodic or other basis.                 7

      52D     Disclosure of information by RMS                                             8

              (1)    RMS may, if RMS thinks it necessary for the safe operation of a       9
                     bus service, disclose information acquired by RMS in the             10
                     performance of RMS's functions under this or any other Act to        11
                     any other person.                                                    12

              (2)    RMS may, if RMS thinks it desirable for the promotion of the         13
                     safe operation of a bus service, publish any information,            14
                     including the report of a transport safety inquiry.                  15

              (3)    A publication under subsection (2) must not identify a person by     16
                     name.                                                                17

              (4)    This section does not permit the disclosure of information in        18
                     contravention of section 46E of the Passenger Transport              19
                     Act 1990.                                                            20

      52E     Monitoring compliance with report recommendations                           21

              (1)    RMS may monitor, and advise the Minister on, the compliance          22
                     by transport authorities and operators providing bus services or     23
                     ferry services with the recommendations of reports of                24
                     investigations and inquiries into transport accidents or incidents   25
                     involving the safety of bus services or ferry services, including    26
                     reports of the following kinds:                                      27
                      (a) reports by the Chief Investigator,                              28
                     (b) transport safety inquiry reports,                                29
                      (c) reports by the Australian Transport Safety Bureau relating      30
                            to accidents or incidents in New South Wales,                 31
                     (d) an inquest or inquiry under the Coroners Act 2009.               32

              (2)    In this section:                                                     33
                     transport authority means:                                           34
                      (a) the State Transit Authority, or                                 35
                     (b) Sydney Ferries, or                                               36




                                                                             Page 45
                 Rail Safety (Adoption of National Law) Bill 2012

Schedule 2       Amendment of Acts




                     (c)   any other person or body prescribed by the regulations as      1
                           a transport authority for the purposes of this section.        2

[25]   Section 88N Obligations and rights under the Rail Safety National Law              3
       (NSW)                                                                              4

       Omit "Rail Safety Act 2008" and "that Act" wherever occurring.                     5

       Insert instead "Rail Safety National Law (NSW)" and "that Law", respectively.      6

[26]   Section 88X Obligations and rights under the Rail Safety National Law              7
       (NSW) relating to members of staff                                                 8

       Omit "Rail Safety Act 2008" and "that Act" wherever occurring.                     9

       Insert instead "Rail Safety National Law (NSW)" and "that Law", respectively.     10

[27]   Section 103 Inquiries into bus or ferry accidents                                 11

       Omit "or Independent Transport Safety Regulator" wherever occurring.              12

[28]   Section 112 Personal liability of certain persons                                 13

       Omit paragraph (a) of the definition of transport authority in section 112 (2).   14

       Insert instead:                                                                   15
                     (a)   a Board of Inquiry established under the Passenger            16
                           Transport Act 1990, and                                       17

[29]   Schedule 1 Functions of Transport for NSW                                         18

       Insert after clause 4:                                                            19

       4A    Passenger transport services safety                                         20

              (1)   TfNSW may:                                                           21
                    (a) provide strategic co-ordination of safety regulatory             22
                        frameworks in relation to transport authorities and owners       23
                        or operators of transport services, and                          24
                    (b) review and evaluate any matter related to the safe               25
                        operation of transport services and the functions of             26
                        transport authorities in relation to the safe operation of       27
                        transport services, and                                          28
                    (c) advise the Minister, or make recommendations to the              29
                        Minister, or both, about any matter related to the safe          30
                        operation of transport services, including safety regulation     31
                        by transport authorities in relation to transport services,      32
                        and                                                              33




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Rail Safety (Adoption of National Law) Bill 2012

Amendment of Acts                                                           Schedule 2




                     (d)    without limiting paragraph (c), advise the Minister with          1
                            respect to the performance of transport authorities in            2
                            connection with the exercise of their functions relating to       3
                            the safe operation of transport services.                         4

              (2)    TfNSW may advise the Minister on the implementation of                   5
                     recommendations of reports of investigations and inquiries into          6
                     transport accidents or incidents or the safety of transport services,    7
                     including reports of the following kinds:                                8
                      (a) reports by the Chief Investigator,                                  9
                     (b) transport safety inquiry reports,                                   10
                      (c) reports by the Australian Transport Safety Bureau relating         11
                           to accidents or incidents in New South Wales,                     12
                     (d) an inquest or inquiry under the Coroners Act 2009.                  13

              (3)    TfNSW must report to the Minister each year on the performance          14
                     of transport authorities and owners and operators of transport          15
                     services in connection with the exercise of their functions relating    16
                     to the safe operation of those services.                                17

              (4)    In this clause:                                                         18
                     transport authority means:                                              19
                      (a) RailCorp, or                                                       20
                     (b) the State Transit Authority, or                                     21
                      (c) Sydney Ferries, or                                                 22
                     (d) RMS, or                                                             23
                      (e) the ITSR, or                                                       24
                      (f) any other person or body prescribed by the regulations for         25
                            the purposes of this definition.                                 26

[30]   Schedule 2A Constitution and procedure of Independent Transport                       27
       Safety Advisory Board                                                                 28

       Omit the Schedule.                                                                    29

[31]   Schedule 6A Powers relating to rail infrastructure facilities and land                30

       Omit "Rail Safety Act 2008" from clause 11 (2) (c).                                   31

       Insert instead "Rail Safety National Law (NSW)".                                      32

[32]   Schedule 6AA Access undertakings                                                      33

       Omit "Rail Safety Act 2008" from clause 8 wherever occurring.                         34

       Insert instead "Rail Safety National Law (NSW)".                                      35




                                                                                Page 47
                 Rail Safety (Adoption of National Law) Bill 2012

Schedule 2       Amendment of Acts




[33]   Schedule 7 Savings, transitional and other provisions                            1
       Insert at the end of clause 2 (1):                                               2

                    any other Act that amends this Act                                  3

[34]   Schedule 7                                                                       4

       Insert at the end of the Schedule with appropriate Part and clause numbering:    5


       Part         Provisions consequent on enactment of                               6
                    Rail Safety (Adoption of National Law)                              7
                    Act 2012                                                            8

              Definition                                                                9

                    In this Part:                                                      10

                    the amending Act means the Rail Safety (Adoption of National       11
                    Law) Act 2012.                                                     12

              Independent Transport Safety Advisory Board                              13

              (1)   The Independent Transport Safety Advisory Board is abolished.      14

              (2)   A person who, immediately before the commencement of this          15
                    clause, held office as a member of the Board:                      16
                    (a) ceases to hold that office, and                                17
                    (b) is not entitled to any remuneration or compensation            18
                          because of the loss of that office.                          19

              Saving of current acts and other matters                                 20

                    Any act, matter or thing done or omitted by the ITSR, and having   21
                    any force or effect immediately before the commencement of an      22
                    amendment of this Act by the amending Act that confers that        23
                    function to do the act, matter or thing on TfNSW or RMS, is        24
                    taken to have been done or omitted by TfNSW or RMS, as the         25
                    case requires, and this Act applies accordingly.                   26




Page 48
Rail Safety (Adoption of National Law) Bill 2012

Rail Safety National Law                                                Note




Note                       Rail Safety National Law                                       1


Part 1        Preliminary                                                                 2

  1    Short title                                                                        3

              This Law may be cited as the Rail Safety National Law.                      4

  2    Commencement                                                                       5

              This Law commences in a participating jurisdiction as provided by the       6
              application Act of the jurisdiction.                                        7

  3    Purpose, objects and guiding principles of Law                                     8

       (1)    The main purpose of this Law is to provide for safe railway operations      9
              in Australia.                                                              10

       (2)    The objects of this Law are--                                              11
              (a) to establish the Office of the National Rail Safety Regulator (the     12
                    ONRSR); and                                                          13
              (b) to make provision for the appointment, functions and powers of         14
                    the National Rail Safety Regulator (the Regulator); and              15
              (c) to make provision for a national system of rail safety, including      16
                    by providing a scheme for national accreditation of rail transport   17
                    operators in respect of railway operations; and                      18
              (d) to provide for the effective management of safety risks associated     19
                    with railway operations; and                                         20
              (e) to provide for the safe carrying out of railway operations; and        21
              (f) to provide for continuous improvement of the safe carrying out of      22
                    railway operations; and                                              23
              (g) to make special provision for the control of particular risks          24
                    arising from railway operations; and                                 25
              (h) to promote public confidence in the safety of transport of persons     26
                    or freight by rail; and                                              27
               (i) to promote the provision of advice, information, education and        28
                    training for safe railway operations; and                            29
               (j) to promote the effective involvement of relevant stakeholders,        30
                    through consultation and cooperation, in the provision of safe       31
                    railway operations.                                                  32

       (3)    The guiding principles under this Law are--                                33
              (a) to assist rail transport operators to achieve productivity by the      34
                    provision of a national scheme for rail safety; and                  35




                                                                            Page 49
                Rail Safety (Adoption of National Law) Bill 2012

Note            Rail Safety National Law




             (b)   to operate the national scheme in a timely, transparent,              1
                   accountable, efficient, effective, consistent and fair way; and       2
             (c)   that fees required to be paid for the provision of the national       3
                   scheme are to be reasonable having regard to the efficient and        4
                   effective operation of the scheme.                                    5

       (4)   The Parliament does not intend by this section to create in any person      6
             any legal right or give rise to any civil cause of action.                  7

 4     Interpretation                                                                    8

       (1)   In this Law, unless the contrary intention appears--                        9
             accredited person means a rail transport operator who is accredited        10
             under this Law, but does not include a person whose accreditation under    11
             this Law--                                                                 12
              (a) has been surrendered or revoked or has otherwise ceased to have       13
                    effect under this Law; or                                           14
             (b) is suspended under this Law;                                           15
             Acting Regulator means an Acting National Rail Safety Regulator            16
             appointed under Part 2 Division 2;                                         17
             amusement structure means a structure or device operated for hire or       18
             reward, or provided on hire or lease--                                     19
              (a) that is used or designed to be used for amusement or                  20
                    entertainment and on which persons may be moved, carried,           21
                    raised, lowered or supported by any part of the structure or        22
                    device; and                                                         23
             (b) that is an arrangement of structural or mechanical elements (or        24
                    both) that has as its prime function the provision of movement of   25
                    a passenger or passengers in a controlled manner so that the        26
                    passenger or passengers are not necessarily required to move        27
                    themselves to obtain the desired effect;                            28
             application Act means the Act of a jurisdiction that applies the Rail      29
             Safety National Law set out in the Schedule to the Rail Safety National    30
             Law (South Australia) Act 2012 of South Australia as a law of the          31
             jurisdiction;                                                              32
             approved code of practice means a code of practice approved under          33
             section 249;                                                               34
             AQF means the Australian Qualifications Framework within the               35
             meaning of the Skilling Australia's Workforce Act 2005 of the              36
             Commonwealth;                                                              37
             AQTF means the Australian Quality Training Framework within the            38
             meaning of the Skilling Australia's Workforce Act 2005 of the              39
             Commonwealth;                                                              40




Page 50
Rail Safety (Adoption of National Law) Bill 2012

Rail Safety National Law                                                 Note




              associated railway track structures includes--                               1
               (a) associated works (such as cuttings, sidings, tunnels, bridges,          2
                     stations, platforms, tram stops, excavations, land fill, track        3
                     support earthworks and drainage works); and                           4
              (b) over-track structures and under-track structures (including              5
                     tunnels under tracks);                                                6
              Australian Accounting Standards means Accounting Standards issued            7
              by the Australian Accounting Standards Board;                                8
              Australian rail safety law means this Law or a corresponding previous        9
              enactment in a participating jurisdiction corresponding, or substantially   10
              corresponding, to this Law;                                                 11
              authorised person means--                                                   12
               (a) a police officer; or                                                   13
              (b) a person appointed under section 124;                                   14
              Category 1 offence--see section 58;                                         15
              Category 2 offence--see section 59;                                         16
              Category 3 offence--see section 60;                                         17
              commercial benefits order means an order under section 230;                 18
              designated provision of this Law--see section 204;                          19
              drug means--                                                                20
               (a) a substance declared by the national regulations to be a drug for      21
                     the purposes of this Law; and                                        22
              (b) a substance declared under section 6 to be a drug for the purposes      23
                     of this Law; and                                                     24
               (c) any other substance (other than alcohol) that, when consumed or        25
                     used by a person, deprives that person (temporarily or               26
                     permanently) of any of his or her normal mental or physical          27
                     faculties;                                                           28
              employee means a person employed under a contract of employment or          29
              contract of training;                                                       30
              employer means a person who employs 1 or more other persons under           31
              contracts of employment or contracts of training;                           32
              exercise, for a function, includes perform;                                 33
              footpath means an area open to the public that is designated for, or 1 of   34
              its main uses is, use by pedestrians;                                       35
              Fund means the National Rail Safety Regulator Fund established under        36
              Part 2 Division 4;                                                          37
              improvement notice means a notice under Part 5 Division 1;                  38
              infringement penalty provision has the meaning given by section 233;        39




                                                                             Page 51
             Rail Safety (Adoption of National Law) Bill 2012

Note         Rail Safety National Law




          interface agreement means an agreement made under Part 3 Division 6            1
          Subdivision 2 about managing risks to safety identified and assessed in        2
          accordance with that Subdivision;                                              3
          jurisdiction means a State or Territory;                                       4
          level crossing means an area where a road and a railway meet at                5
          substantially the same level, whether or not there is a level crossing sign    6
          on the road at all or any of the entrances to the area;                        7
          member, of ONRSR, means the Regulator, an Acting Regulator or a                8
          non-executive member appointed under Part 2 Division 2;                        9
          national regulations means the regulations made under section 264;            10
          non-disturbance notice means a notice under Part 5 Division 3;                11
          notifiable occurrence means an accident or incident associated with           12
          railway operations--                                                          13
           (a) that has, or could have, caused--                                        14
                  (i) significant property damage; or                                   15
                 (ii) serious injury; or                                                16
                (iii) death; or                                                         17
          (b) that is, or is of a class that is, prescribed by the national             18
                 regulations to be a notifiable occurrence or class of notifiable       19
                 occurrence,                                                            20
          but does not include an accident or incident, or class of accident or         21
          incident, that is prescribed by the national regulations not to be a          22
          notifiable occurrence;                                                        23
          occupational health and safety legislation means legislation relating to      24
          occupational health and safety prescribed by the national regulations for     25
          the purposes of this definition;                                              26
          Office of the National Rail Safety Regulator or ONRSR means the               27
          Office of the National Rail Safety Regulator established under Part 2         28
          Division 1;                                                                   29
          officer--                                                                     30
           (a) in relation to a body corporate, has the same meaning as officer         31
                 has in relation to a corporation under section 9 of the                32
                 Corporations Act 2001 of the Commonwealth;                             33
          (b) in relation to any other person, means an individual who makes,           34
                 or participates in making, decisions that affect the whole, or a       35
                 substantial part, of the business or undertaking of the person;        36
          participating jurisdiction means a jurisdiction in which--                    37
           (a) this Law applies as a law of the jurisdiction; or                        38
          (b) a law that substantially corresponds to the provisions of this Law        39
                 has been enacted; or                                                   40




Page 52
Rail Safety (Adoption of National Law) Bill 2012

Rail Safety National Law                                                Note




              (c)     a law prescribed by the national regulations for the purposes of    1
                      this definition has been enacted;                                   2
              prescribed drug--see section 128;                                           3
              private siding means a siding that is owned, controlled or managed by       4
              a person, other than a person who manages the rail infrastructure with      5
              which the siding connects or to which it has access, but does not           6
              include--                                                                   7
               (a) a marshalling yard; or                                                 8
              (b) a crossing loop; or                                                     9
               (c) a passenger terminal; or                                              10
              (d) a freight terminal; or                                                 11
               (e) a siding under the control and management of an accredited rail       12
                      infrastructure manager; or                                         13
               (f) a siding, or a siding of a class, prescribed by the national          14
                      regulations not to be a private siding;                            15
              prohibition notice means a notice under Part 5 Division 2;                 16
              public place means--                                                       17
               (a) a place that--                                                        18
                       (i) the public is entitled to use; or                             19
                      (ii) is open to members of the public; or                          20
                     (iii) is used by the public,                                        21
                      whether or not on payment of money; or                             22
              (b) a place that the occupier allows members of the public to enter,       23
                      whether or not on payment of money;                                24
              public road means any road other than a private road;                      25
              public sector auditor means--                                              26
               (a) the Auditor-General (however described) of a participating            27
                      jurisdiction; or                                                   28
              (b) an auditor employed, appointed or otherwise engaged, by an             29
                      Auditor-General of a participating jurisdiction;                   30
              rail infrastructure means the facilities that are necessary to enable a    31
              railway to operate and includes--                                          32
               (a) railway tracks and associated railway track structures; and           33
              (b) service roads, signalling systems, communications systems,             34
                      rolling stock control systems, train control systems and data      35
                      management systems; and                                            36
               (c) notices and signs; and                                                37
              (d) electrical power supply and electric traction systems; and             38




                                                                            Page 53
             Rail Safety (Adoption of National Law) Bill 2012

Note         Rail Safety National Law




           (e) associated buildings, workshops, depots and yards; and                     1
           (f) plant, machinery and equipment,                                            2
          but does not include--                                                          3
          (g) rolling stock; or                                                           4
          (h) any facility, or facility of a class, that is prescribed by the national    5
                 regulations not to be rail infrastructure;                               6
          rail infrastructure manager, in relation to rail infrastructure of a            7
          railway, means the person who has effective control and management              8
          of the rail infrastructure, whether or not the person--                         9
           (a) owns the rail infrastructure; or                                          10
          (b) has a statutory or contractual right to use the rail infrastructure or     11
                 to control, or provide, access to it;                                   12
          rail or road crossing includes a railway crossing, a bridge carrying a         13
          road over a railway and a bridge carrying a railway over a road;               14
          rail safety officer means a person holding an appointment as a rail            15
          safety officer under Part 4 Division 2;                                        16
          rail safety undertaking--see Part 10 Division 6;                               17
          rail safety work--see section 8;                                               18
          rail safety worker means an individual who has carried out, is carrying        19
          out, or is about to carry out, rail safety work;                               20
          rail transport operator means--                                                21
           (a) a rail infrastructure manager; or                                         22
          (b) a rolling stock operator; or                                               23
           (c) a person who is both a rail infrastructure manager and a rolling          24
                 stock operator;                                                         25
          rail workplace means a place where rail safety work is carried out, and        26
          includes any place where a rail safety worker goes, or is likely to be,        27
          while doing rail safety work;                                                  28
          railway means a guided system, or proposed guided system, designed             29
          for the movement of rolling stock having the capability of transporting        30
          passengers or freight (or both) on a railway track with a gauge of             31
          600 millimetres or more, together with its rail infrastructure and rolling     32
          stock, and includes the following:                                             33
           (a) a heavy railway;                                                          34
          (b) a light railway;                                                           35
           (c) a monorail;                                                               36
          (d) an inclined railway;                                                       37
           (e) a tramway;                                                                38




Page 54
Rail Safety (Adoption of National Law) Bill 2012

Rail Safety National Law                                                      Note




               (f)   a railway within a marshalling yard or a passenger or freight            1
                     terminal;                                                                2
              (g)    a private siding;                                                        3
              (h)    a guided system, or guided system of a class, prescribed by the          4
                     national regulations to be a railway;                                    5
              Note. See section 7 for railways to which this Law does not apply.              6
              railway crossing means--                                                        7
              (a) a level crossing; or                                                        8
              (b) any area where a footpath or shared path crosses a railway at               9
                    substantially the same level;                                            10
              railway operations means any of the following:                                 11
              (a) the construction of a railway, railway tracks and associated               12
                    railway track structures;                                                13
              (b) the construction of rolling stock;                                         14
              (c) the management, commissioning, maintenance, repair,                        15
                    modification, installation, operation or decommissioning of rail         16
                    infrastructure;                                                          17
              (d) the commissioning, use, modification, maintenance, repair or               18
                    decommissioning of rolling stock;                                        19
              (e) the operation or movement, or causing the operation or                     20
                    movement by any means, of rolling stock on a railway (including          21
                    for the purposes of construction or restoration of rail                  22
                    infrastructure);                                                         23
               (f) the movement, or causing the movement, of rolling stock for the           24
                    purposes of operating a railway service;                                 25
              (g) the scheduling, control and monitoring of rolling stock being              26
                    operated or moved on rail infrastructure;                                27
              railway premises means--                                                       28
              (a) land (including any premises on land) on or in which is situated           29
                    rail infrastructure; or                                                  30
              (b) land (including any premises on land) on or in which is situated           31
                    any over-track or under-track structure or part of an over-track or      32
                    under-track structure; or                                                33
              (c) freight centres or depots used in connection with the carrying out         34
                    of railway operations; or                                                35
              (d) workshops or maintenance depots used in connection with the                36
                    carrying out of railway operations; or                                   37
              (e) premises (including an office, building or housing) used in                38
                    connection with the carrying out of railway operations; or               39




                                                                                   Page 55
                Rail Safety (Adoption of National Law) Bill 2012

Note         Rail Safety National Law




          (f)    rolling stock or other vehicles associated with railway operations;    1
                 or                                                                     2
          (g) any other rail workplace;                                                 3
          reasonably practicable--see section 47;                                       4
          Register means the National Rail Safety Register established under            5
          section 42;                                                                   6
          registered person means a rail infrastructure manager who is registered       7
          under this Law, but does not include a person whose registration under        8
          this Law--                                                                    9
           (a) has been surrendered or revoked or has otherwise ceased to have         10
                 effect under this Law; or                                             11
          (b) is suspended under this Law;                                             12
          Regulator means the National Rail Safety Regulator or an Acting              13
          National Rail Safety Regulator appointed under Part 2 Division 2;            14
          responsible Minister, for a participating jurisdiction, means the            15
          Minister of that jurisdiction nominated by that jurisdiction as its          16
          responsible Minister for the purposes of this Law;                           17
          road infrastructure includes--                                               18
           (a) a road, including its surface or pavement; and                          19
          (b) anything under or supporting a road or its surface or pavement;          20
                 and                                                                   21
           (c) any bridge, tunnel, causeway, road-ferry, ford or other work or         22
                 structure forming part of a road system or supporting a road; and     23
          (d) any bridge or other work or structure located above, in or on a          24
                 road; and                                                             25
           (e) any traffic control devices, electricity equipment, emergency           26
                 telephone systems or any other facilities (whether of the same or     27
                 a different kind) in, on, over, under or connected with anything      28
                 referred to in paragraphs (a) to (d); and                             29
           (f) anything prescribed by the national regulations to be road              30
                 infrastructure,                                                       31
          but does not include rail infrastructure or anything that is prescribed by   32
          the national regulations not to be road infrastructure;                      33
          road manager--                                                               34
           (a) in relation to a private road--means the owner, or other person         35
                 responsible for the care, control and management, of the road; or     36
          (b) in relation to a public road--means an authority, person or body         37
                 responsible for the care, control or management of the road;          38




Page 56
Rail Safety (Adoption of National Law) Bill 2012

Rail Safety National Law                                                  Note




              rolling stock means a vehicle that operates on or uses a railway, and         1
              includes a locomotive, carriage, rail car, rail motor, light rail vehicle,    2
              train, tram, light inspection vehicle, self propelled infrastructure          3
              maintenance vehicle, trolley, wagon or monorail vehicle, but does not         4
              include a vehicle designed to operate both on and off a railway when the      5
              vehicle is not operating on a railway;                                        6
              rolling stock operator means a person who has effective control and           7
              management of the operation or movement of rolling stock on rail              8
              infrastructure for a railway, but does not include a person by reason only    9
              that the person drives the rolling stock or controls the network or the      10
              network signals;                                                             11
              running line means a railway track used primarily for the through            12
              movement of trains;                                                          13
              safety means the safety of people, including rail safety workers,            14
              passengers, other users of railways, users of rail or road crossings and     15
              the general public;                                                          16
              safety duty--see section 57;                                                 17
              safety management system--see Part 3 Division 6;                             18
              siding means a portion of railway track, connected by points to a            19
              running line or another siding, on which rolling stock can be placed         20
              clear of the running line;                                                   21
              South Australian Minister means the responsible Minister for South           22
              Australia;                                                                   23
              substance means substance in any form (whether gaseous, liquid, solid        24
              or other), and includes material, preparation, extract and admixture;        25
              supervisory intervention order--see section 231;                             26
              supply includes--                                                            27
               (a) in relation to goods--supply or resupply by way of sale,                28
                     exchange, lease, hire or hire purchase, whether as principal or       29
                     agent; or                                                             30
              (b) in relation to services--provide, grant or confer, whether as            31
                     principal or agent;                                                   32
              Territory means the Australian Capital Territory or the Northern             33
              Territory;                                                                   34
              this Law means--                                                             35
               (a) this Law as it applies as a law of a participating jurisdiction; or     36
              (b) a law of a participating jurisdiction that--                             37
                      (i) substantially corresponds to the provisions of this Law; or      38
                     (ii) is prescribed by the national regulations for the purposes of    39
                            paragraph (c) of the definition of participating               40
                            jurisdiction;                                                  41



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             train means--                                                                1
              (a) 2 or more units of rolling stock coupled together, at least 1 of        2
                    which is a locomotive or other self propelled unit; or                3
             (b) a unit of rolling stock that is a locomotive or other self propelled     4
                    unit;                                                                 5
             train safety recording--see section 130;                                     6
             union means--                                                                7
              (a) an employee organisation that is registered, or taken to be             8
                    registered, under the Fair Work (Registered Organisations)            9
                    Act 2009 of the Commonwealth; or                                     10
             (b) an association of employees or independent contractors (or both)        11
                    that is registered or recognised as such an association (however     12
                    described) under a State or Territory industrial law.                13

       (2)   In this Law--                                                               14
              (a) a reference to this Law extends to a statutory instrument made         15
                    under this Law, or a provision of this Law or a statutory            16
                    instrument made under this Law; and                                  17
             (b) a reference to the responsible Ministers is a reference to a group      18
                    of Ministers consisting of--                                         19
                     (i) the responsible Minister for each participating jurisdiction;   20
                          and                                                            21
                    (ii) a Commonwealth Minister nominated by the                        22
                          Commonwealth as the responsible Minister for the               23
                          Commonwealth for the purposes of this Law (the                 24
                          Commonwealth Minister).                                        25

       (3)   The Commonwealth Minister has complete discretion as to whether or          26
             not to exercise a function or power given to the responsible Ministers      27
             under this Law and so, for the purposes of this Law, a recommendation       28
             of the responsible Ministers that is required to be unanimous will be       29
             taken to be unanimous if the Commonwealth Minister declines to              30
             exercise the function or power and the responsible Minister for each        31
             participating jurisdiction agrees with the recommendation.                  32

 5     Interpretation generally                                                          33

             Schedule 2 to this Law applies in relation to this Law.                     34

 6     Declaration of substance to be drug                                               35

       (1)   The responsible Ministers may declare a substance to be a drug for the      36
             purposes of this Law.                                                       37




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       (2)    A declaration under subsection (1)--                                       1
              (a) is to be published on the NSW legislation website in accordance        2
                    with Part 6A of the Interpretation Act 1987 of New South Wales;      3
                    and                                                                  4
              (b) will commence on the day specified in the declaration for its          5
                    commencement (being not earlier than the date it is published);      6
                    and                                                                  7
              (c) is to be published by ONRSR on its website.                            8

  7    Railways to which this Law does not apply                                         9

       (1)    This Law does not apply to or in relation to--                            10
              (a) a railway in a mine that is underground, or chiefly underground,      11
                    and that is used in connection with the performance of mining       12
                    operations; or                                                      13
              (b) a slipway; or                                                         14
              (c) a railway used only to guide a crane; or                              15
              (d) an aerial cable operated system; or                                   16
              (e) a railway used only by a horse-drawn tram; or                         17
              (f) a railway used only for a static display; or                          18
              (g) any other railway, or class of railway, prescribed by the national    19
                    regulations to be a railway, or railway of a class, to which this   20
                    Law does not apply.                                                 21

       (2)    This Law does not apply to or in relation to the following railways:      22
              (a) a railway that--                                                      23
                      (i) is privately owned and operated as a hobby; and               24
                     (ii) is operated only on private property; and                     25
                    (iii) does not operate on or cross a public road; and               26
                    (iv) is not operated for hire or reward, or provided on hire or     27
                          lease; and                                                    28
                     (v) to which members of the public do not have access              29
                          (whether by invitation or otherwise);                         30
              (b) a railway that--                                                      31
                      (i) is used only for the purposes of an amusement structure;      32
                          and                                                           33
                     (ii) is operated only within an amusement park; and                34
                    (iii) does not operate on or cross a public road; and               35




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                   (iv)   is not connected with another railway in respect of which          1
                          a rail transport operator is required to be accredited or          2
                          registered under this Law.                                         3

       (3)   Despite subsection (2)(b), the national regulations may prescribe a             4
             specified railway of a class referred to in that paragraph to be a railway      5
             to which or in relation to which this Law applies.                              6

 8     Meaning of rail safety work                                                           7

       (1)   Subject to subsection (2), any of the following classes of work is rail         8
             safety work for the purposes of this Law:                                       9
             (a) driving or despatching rolling stock or any other activity which is        10
                    capable of controlling or affecting the movement of rolling stock;      11
             (b) signalling (and signalling operations), receiving or relaying              12
                    communications or any other activity which is capable of                13
                    controlling or affecting the movement of rolling stock;                 14
             (c) coupling or uncoupling rolling stock;                                      15
             (d) maintaining, repairing, modifying, monitoring, inspecting or               16
                    testing--                                                               17
                     (i) rolling stock, including checking that the rolling stock is        18
                           working properly before being used; or                           19
                    (ii) rail infrastructure;                                               20
             (e) installation of components in relation to rolling stock;                   21
              (f) work on or about rail infrastructure relating to the design,              22
                    construction, repair, modification, maintenance, monitoring,            23
                    upgrading, inspection or testing of the rail infrastructure or          24
                    associated works or equipment, including checking that the rail         25
                    infrastructure is working properly before being used;                   26
             (g) installation or maintenance of--                                           27
                     (i) a telecommunications system relating to rail infrastructure        28
                           or used in connection with rail infrastructure; or               29
                    (ii) the means of supplying electricity directly to rail                30
                           infrastructure, any rolling stock using rail infrastructure or   31
                           a telecommunications system;                                     32
             (h) work involving certification as to the safety of rail infrastructure       33
                    or rolling stock or any part or component of rail infrastructure or     34
                    rolling stock;                                                          35
              (i) work involving the decommissioning of rail infrastructure or              36
                    rolling stock or any part or component of rail infrastructure or        37
                    rolling stock;                                                          38




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               (j)   work involving the development, management or monitoring of               1
                     safe working systems for railways;                                        2
              (k)    work involving the management or monitoring of passenger                  3
                     safety on, in or at any railway;                                          4
               (l)   any other work that is prescribed by the national regulations to be       5
                     rail safety work.                                                         6

       (2)    For the purposes of this Law, rail safety work does not include any              7
              work, or any class of work, prescribed by the national regulations not to        8
              be rail safety work.                                                             9

  9    Single national entity                                                                 10

       (1)    It is the intention of the Parliament of this jurisdiction that this Law as     11
              applied by an Act of this jurisdiction, together with this Law as applied       12
              by Acts of the other participating jurisdictions, has the effect that an        13
              entity established by this Law is 1 single national entity, with functions      14
              conferred by this Law as so applied.                                            15

       (2)    An entity established by this Law has power to do acts in or in relation        16
              to this jurisdiction in the exercise of a function expressed to be              17
              conferred on it by this Law as applied by Acts of each participating            18
              jurisdiction.                                                                   19

       (3)    An entity established by this Law may exercise its functions in relation        20
              to--                                                                            21
               (a) 1 participating jurisdiction; or                                           22
              (b) 2 or more or all participating jurisdictions collectively.                  23

       (4)    In this section, a reference to this Law as applied by an Act of a              24
              jurisdiction includes--                                                         25
               (a) a reference to a law that substantially corresponds to this Law            26
                     enacted in a jurisdiction; and                                           27
              (b) a law prescribed by the national regulations for the purposes of            28
                     the definition of a participating jurisdiction.                          29

10     Extraterritorial operation of Law                                                      30

              It is the intention of the Parliament of this jurisdiction that the operation   31
              of this Law is to, as far as possible, include operation in relation to the     32
              following:                                                                      33
               (a) things situated in or outside the territorial limits of this               34
                      jurisdiction;                                                           35
              (b) acts, transactions and matters done, entered into or occurring in           36
                      or outside the territorial limits of this jurisdiction;                 37




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             (c)   things, acts, transactions and matters (wherever situated, done,       1
                   entered into or occurring) that would, apart from this Law, be         2
                   governed or otherwise affected by the law of another jurisdiction.     3

11     Crown to be bound                                                                  4

       (1)   This Law binds the Crown, in right of this jurisdiction and, insofar as      5
             the legislative power of the Parliament of this jurisdiction permits, the    6
             Crown in all its other capacities.                                           7

       (2)   No criminal liability attaches to the Crown itself (as distinct from its     8
             agents, instrumentalities, officers and employees) under this Law.           9


Part 2       Office of the National Rail Safety Regulator                                10


Division 1         Establishment, functions, objectives, etc                             11

12     Establishment                                                                     12

       (1)   The Office of the National Rail Safety Regulator (ONRSR) is                 13
             established.                                                                14

       (2)   ONRSR--                                                                     15
             (a) is a body corporate with perpetual succession; and                      16
             (b) has a common seal; and                                                  17
             (c) may sue and be sued in its corporate name.                              18

       (3)   ONRSR represents the Crown.                                                 19

13     Functions and objectives                                                          20

       (1)   In addition to any other function conferred on ONRSR by this Law or         21
             an Act, ONRSR has the following functions:                                  22
              (a) to administer, audit and review the accreditation regime under         23
                   this Law;                                                             24
             (b) to work with rail transport operators, rail safety workers, and         25
                   others involved in railway operations, to improve rail safety         26
                   nationally;                                                           27
              (c) to conduct research, collect and publish information relating to       28
                   rail safety;                                                          29
             (d) to provide, or facilitate the provision of, advice, education and       30
                   training in relation to rail safety;                                  31
              (e) to monitor, investigate and enforce compliance with this Law;          32




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               (f)   to engage in, promote and coordinate the sharing of information     1
                     to achieve the objects of this Law, including the sharing of        2
                     information with a prescribed authority;                            3
              (g)    at the request of the Commonwealth or a jurisdiction--to carry      4
                     out any other function as agreed between ONRSR and the              5
                     jurisdiction.                                                       6

       (2)    In exercising its functions, ONRSR must--                                  7
               (a) facilitate the safe operations of rail transport in Australia; and    8
              (b) exhibit independence, rigour and excellence in carrying out its        9
                    regulatory functions; and                                           10
               (c) promote safety and safety improvement as a fundamental               11
                    objective in the delivery of rail transport in Australia.           12

       (3)    In this section--                                                         13
              prescribed authority means--                                              14
               (a) the Australian Transport Safety Bureau established under the         15
                     Transport Safety Investigation Act 2003 of the Commonwealth;       16
                     and                                                                17
              (b) any other relevant authority established under a law of a             18
                     participating jurisdiction.                                        19

14     Independence of ONRSR                                                            20

              Except as provided under this Law or an Act, ONRSR is not subject to      21
              Ministerial direction in the exercise of its functions or powers.         22

15     Powers                                                                           23

       (1)    ONRSR has all the powers of an individual and, in particular, may--       24
              (a) enter into contracts; and                                             25
              (b) acquire, hold, dispose of, and deal with, real and personal           26
                  property; and                                                         27
              (c) do anything necessary or convenient to be done in the exercise of     28
                  its functions.                                                        29

       (2)    Without limiting subsection (1), ONRSR may enter into an agreement        30
              (a service agreement) with a State or Territory that makes provision      31
              for--                                                                     32
               (a) the State or Territory to provide services to ONRSR that assist      33
                    ONRSR in exercising its functions; or                               34
              (b) ONRSR to provide services to the State or Territory.                  35




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Division 2         Office of the National Rail Safety Regulator                            1

Subdivision 1          Constitution of ONRSR                                               2

16     Constitution of ONRSR                                                               3

       (1)   ONRSR consists of--                                                           4
             (a) a person appointed by the South Australian Minister acting on the         5
                 unanimous recommendation of the responsible Ministers as the              6
                 National Rail Safety Regulator (the Regulator); and                       7
             (b) 2 non-executive members (full-time or part-time) as are                   8
                 appointed by the South Australian Minister acting on the                  9
                 unanimous recommendation of the responsible Ministers.                   10

       (2)   The exercise of a function or power of ONRSR is not affected by a            11
             vacancy in the membership of ONRSR.                                          12

Subdivision 2          National Rail Safety Regulator                                     13

17     Appointment of Regulator                                                           14

       (1)   A person may be appointed as the National Rail Safety Regulator who          15
             is qualified for appointment because the person has a high level of          16
             expertise in 1 or more areas relevant to ONRSR's functions.                  17

       (2)   The Regulator will be appointed for a term not exceeding 5 years on          18
             terms and conditions determined by the South Australian Minister             19
             acting on the unanimous recommendation of the responsible Ministers.         20

       (3)   The Regulator is entitled to be paid the remuneration and allowances         21
             decided by the South Australian Minister acting on the unanimous             22
             recommendation of the responsible Ministers from time to time.               23

       (4)   In setting the remuneration and allowances for the Regulator, regard         24
             must be had to relevant rates (if any) published by the Remuneration         25
             Tribunal of the Commonwealth from time to time.                              26

       (5)   At the expiration of a term of appointment, the Regulator will be            27
             eligible for reappointment.                                                  28

       (6)   The conditions of appointment of the Regulator must not, without the         29
             consent of the Regulator, be varied while the Regulator is in office so as   30
             to become less favourable to the Regulator.                                  31

       (7)   The Regulator must not engage, without the written consent of the            32
             South Australian Minister acting on the unanimous recommendation of          33
             the responsible Ministers, in any other remunerated employment.              34




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18     Acting National Rail Safety Regulator                                                1
       (1)    The South Australian Minister may appoint an Acting National Rail             2
              Safety Regulator (who may, or may not, be a non-executive member or           3
              a member of the staff of ONRSR) to act in the office of the Regulator         4
              and a person so appointed has, while so acting, all the functions and         5
              powers of the Regulator.                                                      6

       (2)    An Acting Regulator may act in the office of the Regulator--                  7
              (a) during a vacancy in the office of the Regulator (whether or not an        8
                   appointment has previously been made to the office); or                  9
              (b) during any period, or during all periods, when the Regulator--           10
                    (i) is absent from duty or from Australia; or                          11
                   (ii) is, for any reason, unable to exercise the duties of the           12
                          office; or                                                       13
              (c) if the Regulator is disqualified from acting in relation to a            14
                   particular matter--in relation to that matter.                          15

       (3)    Anything done by or in relation to a person purporting to act under an       16
              appointment is not invalid merely because--                                  17
              (a) the occasion for the appointment had not arisen; or                      18
              (b) there is a defect or irregularity in connection with the                 19
                    appointment; or                                                        20
              (c) the appointment had ceased to have effect; or                            21
              (d) the occasion to act had not arisen or had ceased.                        22

19     Functions of Regulator                                                              23

       (1)    The functions of the Regulator include--                                     24
              (a) being the chief executive of ONRSR; and                                  25
              (b) exercising the functions of ONRSR conferred on the Regulator             26
                    under this Law or an Act; and                                          27
              (c) otherwise acting on behalf of ONRSR in appropriate cases.                28

       (2)    An act of the Regulator will be taken to be an act of ONRSR.                 29

       (3)    Except as provided under this Law or an Act of a participating               30
              jurisdiction, the Regulator is not subject to direction in the exercise of   31
              his or her functions or powers.                                              32

       (4)    The Regulator must act consistently with the policies determined by          33
              ONRSR.                                                                       34




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20     Power of Regulator to obtain information                                           1
       (1)   This section applies if the Regulator has reasonable grounds to believe      2
             that a person is capable of giving information, providing documents or       3
             giving evidence in relation to a possible contravention of this Law or       4
             that will assist to monitor or enforce compliance with this Law.             5

       (2)   The Regulator may, by written notice served on the person, require the       6
             person to do 1 or more of the following:                                     7
             (a) to give the Regulator in writing signed by the person (or in the         8
                   case of a body corporate, by a competent officer of the body           9
                   corporate) and within the time and in the manner specified in the     10
                   notice, that information of which the person has knowledge;           11
             (b) to produce to the Regulator, in accordance with the notice, those       12
                   documents;                                                            13
             (c) to appear before a person appointed by the Regulator on a day,          14
                   and at a time and place, specified in the notice (being a day, time   15
                   and place that are reasonable in the circumstances) and give          16
                   either orally or in writing that evidence and produce those           17
                   documents.                                                            18

       (3)   The notice must--                                                           19
             (a) state that the requirement is made under this section; and              20
             (b) contain a statement to the effect that a failure to comply with a       21
                   requirement is an offence; and                                        22
             (c) if the notice requires the person to provide information or             23
                   documents or answer questions--                                       24
                    (i) contain a statement about the effect of sections 155             25
                         and 245; and                                                    26
                   (ii) state that the person may attend with a legal practitioner.      27

       (4)   The Regulator must not make a requirement under subsection (2)(c)           28
             unless the Regulator has taken all reasonable steps to obtain the           29
             information under subsections (2)(a) and (b) and has been unable to do      30
             so.                                                                         31

       (5)   A person must not, without reasonable excuse, fail to comply with a         32
             requirement under this section.                                             33
             Maximum penalty:                                                            34
              (a) in the case of an individual--$10 000;                                 35
             (b) in the case of a body corporate--$50 000.                               36

       (6)   Subsection (5) places an evidential burden on the accused to show a         37
             reasonable excuse.                                                          38




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       (7)    Section 155 (with any necessary changes) applies to a requirement           1
              under this section.                                                         2

Subdivision 3              Non-executive members                                          3

21     Appointment of non-executive members                                               4

       (1)    A person may be appointed as a non-executive member of ONRSR who            5
              is qualified for appointment because the person has a high level of         6
              expertise in 1 or more areas relevant to ONRSR's functions.                 7

       (2)    A non-executive member will be appointed for a term not exceeding           8
              4 years on terms and conditions determined by the South Australian          9
              Minister acting on the unanimous recommendation of the responsible         10
              Ministers.                                                                 11

       (3)    A non-executive member is entitled to be paid the remuneration and         12
              allowances decided by the South Australian Minister acting on the          13
              unanimous recommendation of the responsible Ministers from time to         14
              time.                                                                      15

       (4)    In setting the remuneration and allowances for a non-executive member      16
              regard must be had to relevant rates (if any) published by the             17
              Remuneration Tribunal of the Commonwealth from time to time.               18

       (5)    At the expiration of a term of appointment, a non-executive member         19
              will be eligible for reappointment.                                        20

       (6)    The conditions of appointment of a non-executive member must not,          21
              without the consent of the member, be varied while the member is in        22
              office so as to become less favourable to the member.                      23

Subdivision 4              Miscellaneous provisions relating to                          24
                           membership                                                    25

22     Vacancy in or removal from office                                                 26

       (1)    The office of a member of ONRSR becomes vacant if the member--             27
              (a) completes a term of office; or                                         28
              (b) resigns by written notice given to the responsible Ministers; or       29
              (c) has been found guilty of an offence, whether in a participating        30
                    jurisdiction or elsewhere, that the responsible Ministers consider   31
                    renders the member unfit to continue to hold the office of           32
                    member; or                                                           33
              (d) becomes bankrupt, applies to take the benefit of any law for the       34
                    relief of bankrupt or insolvent debtors, compounds with the          35
                    member's creditors or makes an assignment of the member's            36
                    remuneration for their benefit; or                                   37



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             (e)      is absent, without leave first being granted by the relevant entity    1
                      from 3 or more consecutive meetings of ONRSR of which                  2
                      reasonable notice has been given to the member personally or by        3
                      post; or                                                               4
             (f)      is removed from office by the South Australian Minister under          5
                      this section; or                                                       6
             (g)      dies.                                                                  7

       (2)   The South Australian Minister may remove a member of ONRSR from                 8
             office if the responsible Ministers recommend the removal of the                9
             member on the basis that the member has engaged in misconduct or has           10
             failed to or is unable to properly exercise the member's functions as a        11
             member of ONRSR.                                                               12

       (3)   In this section--                                                              13
             relevant entity means--                                                        14
              (a) for the Regulator--the responsible Ministers; or                          15
             (b) for a non-executive member--the Regulator.                                 16

23     Member to give responsible Ministers notice of certain events                        17

             A member of ONRSR must, within 7 days of either of the following               18
             events occurring, give the responsible Ministers notice of the event:          19
             (a) the member is convicted of an offence;                                     20
             (b) the member becomes bankrupt, applies to take the benefit of any            21
                   law for the relief of bankrupt or insolvent debtors, compounds           22
                   with the member's creditors or makes an assignment of the                23
                   member's remuneration for their benefit.                                 24

24     Extension of term of office during vacancy in membership                             25

       (1)   If the office of a member of ONRSR becomes vacant because the                  26
             member has completed the member's term of office, the member is                27
             taken to continue to be a member during that vacancy until the date on         28
             which the vacancy is filled, whether by reappointment of the member or         29
             appointment of a successor to the member.                                      30

       (2)   However, this section ceases to apply to the member if--                       31
             (a) the member resigns the member's office by signed notice given              32
                 to the responsible Ministers; or                                           33
             (b) the responsible Ministers decide the services of the member are            34
                 no longer required.                                                        35

       (3)   The maximum period for which a member of ONRSR is taken to                     36
             continue to be a member under this section after completion of the             37
             member's term of office is 6 months.                                           38




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25     Members to act in public interest                                                    1
              A member of ONRSR is to act impartially and in the public interest in         2
              the exercise of the member's functions as a member.                           3

26     Disclosure of conflict of interest                                                   4

       (1)    If a member of ONRSR has a direct or indirect pecuniary or other              5
              interest that conflicts or may conflict with the exercise of the member's     6
              functions as a member, the member must, as soon as possible after the         7
              relevant facts have come to the member's knowledge, disclose the              8
              nature of the member's interest and the conflict to--                         9
               (a) for the Regulator--the responsible Ministers; or                        10
              (b) for a non-executive member--the Regulator.                               11

       (2)    If a disclosure is made under subsection (1), the entity to whom the         12
              disclosure is made must notify ONRSR of the disclosure.                      13

       (3)    Particulars of any disclosure made under subsection (1) must be              14
              recorded by ONRSR in a register of interests kept for the purpose.           15

       (4)    After a member of ONRSR has disclosed the nature of an interest and          16
              conflict or potential conflict under subsection (1), the member must not     17
              be present during any deliberation of ONRSR with respect to any matter       18
              that is, or may be, affected by the conflict, or take part in any decision   19
              of ONRSR with respect to any matter that is, or may be, affected by the      20
              conflict, unless--                                                           21
               (a) for the Regulator, the responsible Ministers otherwise decide; or       22
              (b) for a non-executive member, ONRSR otherwise decides.                     23

       (5)    For the purposes of the making of a decision by ONRSR under                  24
              subsection (4) in relation to a matter, a member of ONRSR who has a          25
              direct or indirect pecuniary or other interest that conflicts or may         26
              conflict with the exercise of the member's functions as a member with        27
              respect to the matter must not--                                             28
               (a) be present during any deliberation of ONRSR for the purpose of          29
                     making the decision; or                                               30
              (b) take part in the making of the decision by ONRSR.                        31

       (6)    A contravention of this section does not invalidate any decision of          32
              ONRSR but if ONRSR becomes aware a member of ONRSR                           33
              contravened this section, ONRSR must reconsider any decision made            34
              by ONRSR in which the member took part in contravention of this              35
              section.                                                                     36




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Division 3         Procedures                                                              1

27     Times and places of meetings                                                        2

       (1)   The Regulator must hold such meetings as he or she considers necessary        3
             for the efficient exercise of ONRSR's functions.                              4

       (2)   Meetings are to be held at such times and places as the Regulator             5
             decides.                                                                      6

28     Conduct of meetings                                                                 7

       (1)   The Regulator is to preside at all meetings of ONRSR at which he or she       8
             is present.                                                                   9

       (2)   If the Regulator is not present at a meeting, a person appointed to act as   10
             the Regulator must be present and preside.                                   11

       (3)   A quorum of ONRSR consists of 2 members.                                     12

       (4)   A decision supported by a majority of the votes cast at a meeting of         13
             ONRSR at which a quorum is present is the decision of ONRSR.                 14

       (5)   The person presiding at a meeting of ONRSR has a deliberative vote           15
             and, in the event of an equality of votes, has a second or casting vote.     16

       (6)   Subject to this Division, ONRSR may regulate its own procedures.             17

       (7)   ONRSR must ensure that minutes of its meetings are kept.                     18

29     Defects in appointment of members                                                  19

             A decision of ONRSR is not invalidated by any defect or irregularity in      20
             the appointment of a member.                                                 21

30     Decisions without meetings                                                         22

       (1)   A decision is taken to have been made at a meeting of ONRSR if--             23
             (a) without meeting, a majority of the members indicate agreement            24
                   with the proposed decision in accordance with the method               25
                   determined under this section; and                                     26
             (b) all members were informed, or reasonable efforts were made to            27
                   inform all members, of the proposed decision.                          28

       (2)   Subsection (1) applies only if ONRSR--                                       29
             (a) has determined that it applies; and                                      30
             (b) has determined the method by which members are to indicate               31
                  agreement with proposed decisions.                                      32

       (3)   ONRSR must keep a record of decisions made under this section.               33




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31     Common seal and execution of documents                                               1
       (1)    The common seal of ONRSR must not be affixed to a document except             2
              in pursuance of a decision of ONRSR, and the affixing of the seal must        3
              be attested by the signature of the Regulator or Acting Regulator.            4

       (2)    ONRSR may, by instrument under ONRSR's common seal, authorise                 5
              an employee of ONRSR (whether nominated by name or by office or               6
              title) or any other person to execute documents on behalf of ONRSR            7
              subject to conditions and limitations (if any) specified in the instrument    8
              of authority.                                                                 9

       (3)    Without limiting subsection (2), an authority may be given so as to          10
              authorise 2 or more persons to execute documents jointly on behalf of        11
              ONRSR.                                                                       12

       (4)    A document is duly executed by ONRSR if--                                    13
              (a) the common seal of ONRSR is affixed to the document in                   14
                   accordance with this section; or                                        15
              (b) the document is signed on behalf of ONRSR by a person or                 16
                   persons in accordance with an authority conferred under this            17
                   section.                                                                18

       (5)    Where an apparently genuine document purports to bear the common             19
              seal of ONRSR, it will be presumed in any legal proceedings, in the          20
              absence of proof to the contrary, that the common seal of ONRSR has          21
              been duly affixed to that document.                                          22

Division 4           Finance                                                               23

32     Establishment of Fund                                                               24

       (1)    The National Rail Safety Regulator Fund is established.                      25

       (2)    The Fund is to be administered by ONRSR.                                     26

       (3)    ONRSR may establish accounts with any financial institution for              27
              money in the Fund.                                                           28

       (4)    The Fund does not form part of the consolidated fund or consolidated         29
              account of a participating jurisdiction or the Commonwealth.                 30

33     Payments into Fund                                                                  31

              There is payable into the Fund--                                             32
              (a) all money appropriated by the Parliament of any participating            33
                    jurisdiction or the Commonwealth for the purposes of the Fund;         34
                    and                                                                    35




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             (b)      all fees, charges, costs and expenses paid to or recovered by          1
                      ONRSR under this Law; and                                              2
             (c)      the proceeds of the investment of money in the Fund; and               3
             (d)      all grants, gifts and donations made to ONRSR, but subject to any      4
                      trusts declared in relation to the grants, gifts or donations; and     5
             (e)      all money directed or authorised to be paid into the Fund under        6
                      this Law, any law of a participating jurisdiction or any law of the    7
                      Commonwealth; and                                                      8
             (f)      any other money or property received by ONRSR in connection            9
                      with the exercise of its functions; and                               10
             (g)      any money paid to ONRSR for the provision of services to a State      11
                      or Territory under an agreement mentioned in section 15(2)(b).        12

34     Payments out of Fund                                                                 13

             Payments may be made from the Fund for the purpose of--                        14
             (a) paying any costs or expenses, or discharging any liabilities,              15
                  incurred in the administration or enforcement of this Law,                16
                  including (for example) payments made to a State or Territory for         17
                  the provision of services under an agreement mentioned in                 18
                  section 15(2)(a); and                                                     19
             (b) paying any money directed or authorised to be paid out of the              20
                  Fund under this Law; and                                                  21
             (c) any other payments recommended by ONRSR and approved by                    22
                  the responsible Ministers.                                                23

35     Investment of money in Fund                                                          24

       (1)   ONRSR must invest its funds in a way that is secure and provides a low         25
             risk so that ONRSR's exposure to the loss of funds is minimised.               26

       (2)   ONRSR must keep records that show it has invested in a way that                27
             complies with subsection (1).                                                  28

36     Financial management duties of ONRSR                                                 29

             ONRSR must--                                                                   30
             (a) ensure its operations are carried out efficiently, effectively and         31
                 economically; and                                                          32
             (b) keep proper books and records in relation to the Fund and other            33
                 money received by ONRSR; and                                               34
             (c) ensure expenditure is made from the Fund for lawful purposes               35
                 only and, as far as possible, reasonable value is obtained for             36
                 money expended from the Fund; and                                          37




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               (d)    ensure its procedures, including internal control procedures,           1
                      afford adequate safeguards with respect to--                            2
                       (i) the correctness, regularity and propriety of payments made         3
                             from the Fund; and                                               4
                      (ii) receiving and accounting for payments made to the Fund;            5
                             and                                                              6
                     (iii) prevention of fraud or mistake; and                                7
               (e)    take any action necessary to ensure the preparation of accurate         8
                      financial statements in accordance with Australian Accounting           9
                      Standards for inclusion in its annual report; and                      10
               (f)    take any action necessary to facilitate the audit of those financial   11
                      statements under this Law; and                                         12
               (g)    arrange for any further audit by a qualified person of the books       13
                      and records kept by ONRSR in relation to the Fund, if directed to      14
                      do so by the responsible Ministers.                                    15

Division 5           Staff                                                                   16

37     Chief executive                                                                       17

       (1)     The Regulator is the chief executive of ONRSR responsible for--               18
               (a) the day to day management of ONRSR; and                                   19
               (b) carrying out any other function conferred on the chief executive          20
                    under this Law, an Act or by ONRSR.                                      21

       (2)     The chief executive must act consistently with the policies determined        22
               by ONRSR.                                                                     23

38     Staff                                                                                 24

       (1)     ONRSR may, for the purpose of exercising its functions, employ staff.         25

       (2)     The staff of ONRSR are to be employed on the terms and conditions             26
               decided by ONRSR from time to time.                                           27

       (3)     Subsection (2) is subject to any relevant industrial award or agreement       28
               that applies to the staff.                                                    29

39     Secondments to ONRSR                                                                  30

               ONRSR may make arrangements for the services of a person who is a             31
               member of the staff of a government agency of a participating                 32
               jurisdiction or the Commonwealth to be made available to ONRSR in             33
               connection with the exercise of its functions.                                34




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40     Consultants and contractors                                                         1
       (1)   ONRSR may engage persons with suitable qualifications and                     2
             experience as consultants or contractors.                                     3

       (2)   The terms and conditions of engagement of consultants or contractors          4
             are as decided by ONRSR from time to time.                                    5

Division 6         Miscellaneous                                                           6

41     Regulator may be directed to investigate rail safety matter                         7

       (1)   The responsible Minister for a participating jurisdiction may give a          8
             written direction to the Regulator to investigate, or provide advice or       9
             information about, a rail safety matter relating to the participating        10
             jurisdiction.                                                                11

       (2)   A direction may not be given under this section--                            12
             (a) that directs the Regulator as to how to conduct an investigation         13
                   into a rail safety matter; or                                          14
             (b) that directs the Regulator as to which persons the Regulator may         15
                   request or direct to provide assistance in investigating a rail        16
                   safety matter; or                                                      17
             (c) about the outcome of any such investigation; or                          18
             (d) that directs the Regulator to stop any such investigation.               19

       (3)   The Regulator must cause a direction given under this section to be          20
             published in ONRSR's next annual report.                                     21

42     National Rail Safety Register                                                      22

       (1)   The Regulator must establish and maintain the National Rail Safety           23
             Register for the purposes of this Law.                                       24

       (2)   The Regulator must ensure that the following matters are recorded in         25
             the Register:                                                                26
              (a) the accreditation of a rail transport operator under Part 3             27
                   Division 4;                                                            28
             (b) the variation, cancellation, suspension or expiry of the                 29
                   accreditation of a rail transport operator under Part 3 Division 4;    30
              (c) the registration of a rail infrastructure manager of a private siding   31
                   under Part 3 Division 5;                                               32
             (d) the variation, cancellation, suspension or expiry of the                 33
                   registration of a rail infrastructure manager of a private siding      34
                   under Part 3 Division 5;                                               35




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              (e)    an exemption from this Law or specified provisions of this Law         1
                     conferred on a person and details of the exemption;                    2
               (f)   a decision to accept a rail safety undertaking and the reasons for     3
                     that decision under Part 10 Division 6;                                4
              (g)    a decision to withdraw or vary a rail safety undertaking under         5
                     Part 10 Division 6;                                                    6
              (h)    the issuing of an improvement notice to a person;                      7
               (i)   the variation, cancellation or expiry of an improvement notice;        8
               (j)   the issuing of a prohibition notice to a person;                       9
              (k)    the variation, cancellation or expiry of a prohibition notice;        10
               (l)   the issuing of a non-disturbance notice to a person;                  11
             (m)     the variation, cancellation or expiry of a non-disturbance notice;    12
              (n)    any other matter that is prescribed in the national regulations to    13
                     be included in the Register.                                          14

       (3)    The Register will be kept in the form of a computer record and               15
              published on ONRSR's website.                                                16

       (4)    The Register is to be available for inspection, without fee, during          17
              ordinary office hours at a public office, or public offices, determined by   18
              the Regulator.                                                               19

43     Annual report                                                                       20

       (1)    The Regulator must, on or before 30 September in each year, deliver to       21
              the responsible Ministers a report on ONRSR's activities for the             22
              financial year ending on the preceding 30 June.                              23

       (2)    The annual report must include--                                             24
              (a) information on the development of rail safety (including an              25
                    aggregation of statistics of a prescribed class reported to ONRSR      26
                    under this Law for the relevant financial year); and                   27
              (b) information on any improvements and important changes in                 28
                    relation to the regulation of rail safety for the relevant financial   29
                    year; and                                                              30
              (c) details of all rail safety issues brought to the attention of ONRSR      31
                    during the relevant financial year and the action (if any) taken in    32
                    relation to each such issue; and                                       33
              (d) if, at the start of the relevant financial year, there are still         34
                    outstanding any rail safety issues that previously had been            35
                    brought to the attention of ONRSR--details of the action (if any)      36
                    taken in respect of each such issue; and                               37




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             (e)      details about any significant activity undertaken in each               1
                      participating jurisdiction during the relevant financial year by, or    2
                      on behalf of, ONRSR; and                                                3
             (f)      the financial statement in respect of the relevant financial year;      4
                      and                                                                     5
             (g)      the report on the financial statement made by the public sector         6
                      auditor who conducted the audit; and                                    7
             (h)      any other information required to be included in the report by          8
                      another provision under this Law or by the responsible Ministers.       9

       (3)   The financial statement must be--                                               10
             (a) prepared in accordance with Australian Accounting Standards;                11
                   and                                                                       12
             (b) audited, and reported on, by a public sector auditor.                       13

       (4)   The responsible Ministers must make arrangements for the tabling of             14
             ONRSR's annual report in the Parliament of each participating                   15
             jurisdiction.                                                                   16

       (5)   The responsible Ministers may extend, or further extend, the period for         17
             submission of an annual report to the responsible Ministers by a total          18
             period of up to 3 months.                                                       19

       (6)   As soon as practicable after the annual report has been tabled in at least      20
             1 House of the Parliament of a participating jurisdiction, the Regulator        21
             must publish a copy of the report on ONRSR's website.                           22

44     Other reporting requirements                                                          23

             The national regulations may require ONRSR to deliver to a prescribed           24
             body or person, at prescribed intervals, a report containing prescribed         25
             matters.                                                                        26

45     Delegation                                                                            27

       (1)   ONRSR may delegate to a body or person (including a person for the              28
             time being holding or acting in a specified office or position) a function      29
             or power of ONRSR under this Law or an Act.                                     30

       (2)   The Regulator may delegate to a body or person (including a person for          31
             the time being holding or acting in a specified office or position) a           32
             function or power of the Regulator under this Law or an Act.                    33

       (3)   A function or power delegated under this section may, if the instrument         34
             of delegation so provides, be further delegated.                                35




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Part 3        Regulation of rail safety                                                      1


Division 1           Interpretation                                                          2

46     Management of risks                                                                   3

              A duty imposed on a person under this Law to ensure, so far as is              4
              reasonably practicable, safety requires the person--                           5
               (a) to eliminate risks to safety so far as is reasonably practicable; and     6
              (b) if it is not reasonably practicable to eliminate risks to safety, to       7
                    minimise those risks so far as is reasonably practicable.                8

47     Meaning of reasonably practicable                                                     9

              In this Part--                                                                10
              reasonably practicable, in relation to a duty to ensure safety, means that    11
              which is (or was at a particular time) reasonably able to be done in          12
              relation to ensuring safety, taking into account and weighing up all          13
              relevant matters, including--                                                 14
               (a) the likelihood of the hazard or the risk concerned occurring; and        15
              (b) the degree of harm that might result from the hazard or the risk;         16
                     and                                                                    17
               (c) what the person concerned knows, or ought reasonably to know,            18
                     about--                                                                19
                      (i) the hazard or the risk; and                                       20
                     (ii) ways of eliminating or minimising the risk; and                   21
              (d) the availability and suitability of ways to eliminate or minimise         22
                     the risk; and                                                          23
               (e) after assessing the extent of the risk and the available ways of         24
                     eliminating or minimising the risk--the cost associated with           25
                     available ways of eliminating or minimising the risk (including        26
                     whether the cost is grossly disproportionate to the risk).             27

Division 2           Occupational health and safety and railway                             28
                     operations                                                             29

48     Relationship between this Law and OHS legislation                                    30

       (1)    If a provision of the occupational health and safety legislation applies to   31
              railway operations, that provision continues to apply, and must be            32
              observed, in addition to this Law.                                            33




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       (2)   If a provision of this Law is inconsistent with a provision of the                  1
             occupational health and safety legislation, the provision of the                    2
             occupational health and safety legislation prevails to the extent of any            3
             inconsistency.                                                                      4
             Note. For example, if a provision of this Law deals with a certain matter and a     5
             provision of the occupational health and safety legislation deals with the same     6
             matter and it is impossible to comply with both provisions, a person must comply    7
             with the occupational health and safety legislation and not with this Law. If       8
             provisions of both this Law and the occupational health and safety legislation      9
             deal with the same matter but it is possible to comply with both provisions, a     10
             person must comply with both.                                                      11

       (3)   Compliance with this Law or with any requirement imposed under this                12
             Law is not in itself a defence in any proceedings for an offence against           13
             the occupational health and safety legislation.                                    14

       (4)   Evidence of a relevant contravention of this Law is admissible in any              15
             proceedings for an offence against the occupational health and safety              16
             legislation.                                                                       17

49     No double jeopardy                                                                       18

             Where an act or omission constitutes an offence--                                  19
              (a) under this Law; and                                                           20
             (b) under the occupational health and safety legislation,                          21
             the offender is not liable to be punished twice in respect of the offence.         22

Division 3          Rail safety duties                                                          23

Subdivision 1          Principles                                                               24

50     Principles of shared responsibility, accountability, integrated risk                     25
       management, etc                                                                          26

       (1)   Rail safety is the shared responsibility of--                                      27
             (a) rail transport operators; and                                                  28
             (b) rail safety workers; and                                                       29
             (c) other persons who--                                                            30
                     (i) design, commission, construct, manufacture, supply,                    31
                           install, erect, maintain, repair, modify or decommission             32
                           rail infrastructure or rolling stock; or                             33
                    (ii) supply rail infrastructure operations or rolling stock                 34
                           operations to rail operators; or                                     35
                   (iii) in relation to the transport of freight by railway--load or            36
                           unload freight on or from rolling stock; and                         37
             (d) the Regulator; and                                                             38



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              (e)    ONRSR; and                                                               1
              (f)    the public.                                                              2

       (2)    The level and nature of responsibility that a person referred to in             3
              subsection (1), or falling within a class of person referred to in that         4
              subsection, has for rail safety is dependent on the nature of the risk to       5
              rail safety that the person creates from the carrying out of an activity (or    6
              the making of a decision) and the capacity that person has to control,          7
              eliminate or mitigate those risks.                                              8

       (3)    The persons and classes of persons referred to in subsection (1)                9
              should--                                                                       10
              (a) participate in or be able to participate in; and                           11
              (b) be consulted on; and                                                       12
              (c) be involved in the formulation and implementation of,                      13
              measures to manage risks to safety associated with railway operations.         14

       (4)    Managing risks associated with the carrying out of rail infrastructure         15
              operations or rolling stock operations is the responsibility of the person     16
              best able to control those risks.                                              17

       (5)    If approaches to managing risks associated with any particular railway         18
              have potential impacts on any other railway or a railway network of            19
              which the railway is a part, the best practicable rail safety outcome          20
              should be sought.                                                              21

51     Principles applying to rail safety duties                                             22

       (1)    A duty under this Law cannot be transferred to another person.                 23

       (2)    A person can have more than 1 duty under this Law by virtue of being           24
              in more than 1 class of duty holder.                                           25

       (3)    More than 1 person can concurrently have the same duty under this Law          26
              and each duty holder must comply with that duty to the standard                27
              required by this Law even if another duty holder has the same duty.            28

       (4)    If more than 1 person has a duty for the same matter, each person--            29
               (a) retains responsibility for the person's duty in relation to the           30
                    matter; and                                                              31
              (b) must discharge the person's duty to the extent to which the person         32
                    has the capacity to influence and control the matter (or would           33
                    have had that capacity but for an agreement or arrangement               34
                    purporting to limit or remove that capacity).                            35




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Subdivision 2          Duties                                                               1

52     Duties of rail transport operators                                                   2

       (1)   A rail transport operator must ensure, so far as is reasonably practicable,    3
             the safety of the operator's railway operations.                               4

       (2)   Without limiting subsection (1), a rail transport operator must ensure, so     5
             far as is reasonably practicable--                                             6
              (a) that safe systems for the carrying out of the operator's railway          7
                    operations are developed and implemented; and                           8
             (b) that each rail safety worker who is to perform rail safety work in         9
                    relation to the operator's railway operations--                        10
                      (i) is of sufficient good health and fitness to carry out that       11
                           work safely; and                                                12
                     (ii) is competent to undertake that work; and                         13
              (c) that rail safety workers do not carry out rail safety work in            14
                    relation to the operator's railway operations, and are not on duty,    15
                    while impaired by alcohol or a drug; and                               16
             (d) that rail safety workers who perform rail safety work in relation         17
                    to the operator's railway operations do not carry out rail safety      18
                    work while impaired by fatigue or if they may become so                19
                    impaired; and                                                          20
              (e) the provision of adequate facilities for the safety of persons at any    21
                    railway premises under the control or management of the                22
                    operator; and                                                          23
              (f) the provision of--                                                       24
                      (i) such information and instruction to, and training and            25
                           supervision of, rail safety workers as is necessary to enable   26
                           those workers to perform rail safety work in relation to the    27
                           operator's railway operations in a way that is safe; and        28
                     (ii) such information to rail transport operators and other           29
                           persons on railway premises under the control or                30
                           management of the operator as is necessary to enable those      31
                           persons to ensure their safety.                                 32

       (3)   Without limiting subsection (1), a rail infrastructure manager must           33
             ensure, so far as is reasonably practicable--                                 34
             (a) the provision or maintenance of rail infrastructure that is safe;         35
                   and                                                                     36




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              (b)    that any design, construction, commissioning, use, installation,       1
                     modification, maintenance, repair or decommissioning of the            2
                     manager's rail infrastructure is done or carried out in a way that     3
                     ensures the safety of railway operations; and                          4
              (c)    that systems and procedures for the scheduling, control and            5
                     monitoring of railway operations are established and maintained        6
                     so as to ensure the safety of the manager's railway operations;        7
                     and                                                                    8
              (d)    that communications systems and procedures are established and         9
                     maintained so as to ensure the safety of the manager's railway        10
                     operations.                                                           11

       (4)    Without limiting subsection (1), a rolling stock operator must ensure, so    12
              far as is reasonably practicable--                                           13
               (a) the provision or maintenance of rolling stock that is safe; and         14
              (b) that any design, construction, commissioning, use, modification,         15
                     maintenance, repair or decommissioning of the operator's rolling      16
                     stock is done or carried out in a way that ensures safety; and        17
               (c) compliance with the rules and procedures for the scheduling,            18
                     control and monitoring of rolling stock that have been established    19
                     by a rail infrastructure manager in relation to the use of the        20
                     manager's rail infrastructure by the rolling stock operator; and      21
              (d) that equipment, procedures and systems are established and               22
                     maintained so as to minimise risks to the safety of the operator's    23
                     railway operations; and                                               24
               (e) that arrangements are made for ensuring safety in connection            25
                     with the use, operation and maintenance of the operator's rolling     26
                     stock; and                                                            27
               (f) that communications systems and procedures are established and          28
                     maintained so as to ensure the safety of the operator's railway       29
                     operations.                                                           30

       (5)    This section applies to a person (other than a rail transport operator)      31
              who carries out railway operations in the same way as it applies to a rail   32
              transport operator, but does not apply if the person carries out those       33
              operations as a rail safety worker or an employee.                           34

53     Duties of designers, manufacturers, suppliers etc                                   35

       (1)    A person--                                                                   36
              (a) who designs, commissions, manufactures, supplies, installs or            37
                    erects any thing; and                                                  38




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             (b)   who knows, or ought reasonably to know, that the thing is to be            1
                   used as or in connection with rail infrastructure or rolling stock,        2
             must--                                                                           3
             (c) ensure, so far as is reasonably practicable, that the thing is safe if       4
                   it is used for a purpose for which it was designed, commissioned,          5
                   manufactured, supplied, installed or erected; and                          6
             (d) ensure, so far as is reasonably practicable, that such testing and           7
                   examination of the thing as may be necessary for compliance                8
                   with this section is carried out; and                                      9
             (e) take such action as is necessary to ensure, so far as is reasonably         10
                   practicable, that there will be available in connection with the use      11
                   of the thing adequate information about--                                 12
                    (i) the use for which the thing was designed, commissioned,              13
                           manufactured, supplied, installed or erected; and                 14
                   (ii) the results of any testing or examination referred to in             15
                           paragraph (d); and                                                16
                 (iii) any conditions necessary to ensure, so far as is reasonably           17
                           practicable, that the thing is safe if it is used for a purpose   18
                           for which it was designed, commissioned, manufactured,            19
                           supplied, installed or erected.                                   20

       (2)   For the purposes of subsection (1), if the person who supplies the              21
             thing--                                                                         22
              (a) carries on the business of financing the acquisition of the thing by       23
                    customers; and                                                           24
             (b) has, in the course of that business, acquired an interest in the            25
                    thing solely for the purpose of financing its acquisition by a           26
                    customer from a third person or its provision to a customer by a         27
                    third person; and                                                        28
              (c) has not taken possession of the thing or has taken possession of it        29
                    solely for the purpose of passing possession to that customer,           30
             the reference in that subsection to the person who supplies that thing is       31
             instead taken to be a reference to the third person.                            32

       (3)   A person who decommissions any rail infrastructure or rolling stock             33
             must ensure, so far as is reasonably practicable--                              34
             (a) that the decommissioning is carried out safely; and                         35
             (b) such testing and examination as may be necessary for compliance             36
                   with this section is carried out.                                         37




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54     Duties of persons loading or unloading freight                                       1
              A person who loads or unloads freight on or from rolling stock in             2
              relation to the transport of the freight by railway must ensure, so far as    3
              is reasonably practicable, that the loading or unloading is carried out       4
              safely and so as to ensure the safe operation of the rolling stock.           5

55     Duty of officers to exercise due diligence                                           6

       (1)    If a person has a duty or obligation under this Law, an officer of the        7
              person must exercise due diligence to ensure that the person complies         8
              with that duty or obligation.                                                 9

       (2)    An officer of a person referred to in subsection (1) may be convicted or     10
              found guilty of an offence under this Law relating to a duty under this      11
              section whether or not the person has been convicted or found guilty of      12
              an offence under this Law relating to the duty or obligation.                13

       (3)    In this section--                                                            14
              due diligence includes taking reasonable steps--                             15
               (a) to acquire and keep up-to-date knowledge of rail safety matters;        16
                     and                                                                   17
              (b) to gain an understanding of the nature of the railway operations         18
                     of the person and, generally, of the risks associated with those      19
                     operations; and                                                       20
               (c) to ensure that the person has available for use, and uses,              21
                     appropriate resources and processes to eliminate or minimise          22
                     risks to safety from the railway operations of the person; and        23
              (d) to ensure that the person has appropriate processes for receiving        24
                     and considering information regarding incidents and risks and         25
                     responding in a timely way to that information; and                   26
               (e) to ensure that the person has, and implements, processes for            27
                     complying with any duty or obligation of the person under this        28
                     Law; and                                                              29
               (f) to verify the provision and use of the resources and processes          30
                     referred to in paragraphs (c) to (e).                                 31

56     Duties of rail safety workers                                                       32

       (1)    A rail safety worker must, when carrying out rail safety work--              33
              (a) take reasonable care for his or her own safety; and                      34
              (b) take reasonable care that his or her acts or omissions do not            35
                     adversely affect the safety of other persons; and                     36




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             (c)   comply, so far as the worker is reasonably able, with any              1
                   reasonable instruction given by the rail transport operator to         2
                   allow the operator to comply with this Law.                            3

       (2)   A rail safety worker must not, when carrying out rail safety work,           4
             intentionally or recklessly interfere with or misuse anything provided to    5
             the worker by the rail transport operator--                                  6
              (a) in the interests of safety; or                                          7
             (b) under this Law.                                                          8

       (3)   A rail safety worker must not, when carrying out rail safety work,           9
             wilfully or recklessly place the safety of another person on or in the      10
             immediate vicinity of rail infrastructure at risk.                          11

       (4)   For the purposes of subsection (1)(a) or (b), in determining whether a      12
             rail safety worker failed to take reasonable care, regard must be had as    13
             to what the worker knew about the relevant circumstances.                   14

Subdivision 3          Offences and penalties                                            15

57     Meaning of safety duty                                                            16

             In this Subdivision--                                                       17
             safety duty means a duty imposed under Subdivision 2.                       18

58     Failure to comply with safety duty--reckless conduct--Category 1                  19

       (1)   A person commits a Category 1 offence if--                                  20
             (a) the person has a safety duty; and                                       21
             (b) the person, without reasonable excuse, engages in conduct that          22
                   exposes an individual to whom that duty is owed to a risk of death    23
                   or serious injury or illness; and                                     24
             (c) the person is reckless as to the risk to an individual of death or      25
                   serious injury or illness.                                            26
             Maximum penalty:                                                            27
             (a) in the case of an individual--$300 000 or imprisonment for              28
                   5 years, or both;                                                     29
             (b) in the case of a body corporate--$3 000 000.                            30

       (2)   The prosecution bears the burden of proving that the conduct was            31
             engaged in without reasonable excuse.                                       32

59     Failure to comply with safety duty--Category 2                                    33

             A person commits a Category 2 offence if--                                  34
             (a) the person has a safety duty; and                                       35




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              (b)  the person fails to comply with that duty; and                         1
              (c)  the failure exposes an individual to a risk of death or serious        2
                   injury or illness.                                                     3
              Maximum penalty:                                                            4
              (a) in the case of an individual--$150 000;                                 5
              (b) in the case of a body corporate--$1 500 000.                            6

60     Failure to comply with safety duty--Category 3                                     7

              A person commits a Category 3 offence if--                                  8
              (a) the person has a safety duty; and                                       9
              (b) the person fails to comply with that duty.                             10
              Maximum penalty:                                                           11
              (a) in the case of an individual--$50 000;                                 12
              (b) in the case of a body corporate--$500 000.                             13

Division 4           Accreditation                                                       14

Subdivision 1              Purpose and requirement for accreditation                     15

61     Purpose of accreditation                                                          16

              The purpose of accreditation of a rail transport operator in respect of    17
              railway operations is to attest that the rail transport operator has       18
              demonstrated to the Regulator the competence and capacity to manage        19
              risks to safety associated with those railway operations.                  20

62     Accreditation required for railway operations                                     21

       (1)    A person must not carry out any railway operations unless the person--     22
              (a) is a rail transport operator who--                                     23
                     (i) is accredited under this Part in respect of those operations;   24
                          or                                                             25
                    (ii) is exempt under this Law from compliance with this              26
                          section in respect of those operations; or                     27
              (b) is carrying out those operations for or on behalf of--                 28
                     (i) a rail transport operator who is accredited under this Part     29
                          in respect of those operations; or                             30
                    (ii) a rail transport operator who is exempt under this Law          31
                          from compliance with this section in respect of those          32
                          operations; or                                                 33




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             (c)  is exempt under this Law from compliance with this section in              1
                  respect of those operations.                                               2
             Maximum penalty:                                                                3
             (a) in the case of an individual--$150 000;                                     4
             (b) in the case of a body corporate--$1 500 000.                                5
             Note. If a body corporate and related bodies corporate are involved, an         6
             exemption may be given so that only 1 of the bodies need be accredited          7
             (related body corporate meaning related by virtue of section 50 of the          8
             Corporations Act 2001 of the Commonwealth).                                     9

       (2)   Subsection (1) does not apply to a rail safety worker, not being a rail        10
             transport operator, carrying out rail safety work for or on behalf of a rail   11
             transport operator who--                                                       12
              (a) is accredited under this Part; or                                         13
             (b) is exempt under this Law from compliance with this section,                14
             in relation to that rail safety work.                                          15

63     Purposes for which accreditation may be granted                                      16

       (1)   Accreditation may be granted to a rail transport operator for any 1 or         17
             more of the following purposes:                                                18
             (a) for the carrying out of railway operations for the part or parts of        19
                   a railway specified in the accreditation, or for a part or parts         20
                   having the scope or characteristics so specified;                        21
             (b) for any service or aspect, or part of a service or aspect, of railway      22
                   operations specified in the accreditation;                               23
             (c) for specified railway operations to permit any 1 or more of the            24
                   following:                                                               25
                    (i) construction of rail infrastructure;                                26
                   (ii) restoration or repair work;                                         27
                  (iii) testing of railway tracks or other infrastructure;                  28
                  (iv) other activities relating to railway operations considered           29
                          appropriate by the Regulator and specified in the                 30
                          accreditation.                                                    31

       (2)   Accreditation may be granted for railway operations carried out, or            32
             proposed to be carried out, in 1 or more jurisdictions by a rail transport     33
             operator.                                                                      34

       (3)   If the applicant so requests, accreditation may be granted for a specified     35
             period only.                                                                   36




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Subdivision 2              Procedures for granting accreditation                           1

64     Application for accreditation                                                       2

       (1)    A rail transport operator may apply to the Regulator for accreditation in    3
              respect of specified railway operations carried out, or proposed to be       4
              carried out, by or on behalf of that operator.                               5

       (2)    An application must be made in the manner and form approved by the           6
              Regulator and--                                                              7
              (a) must specify the scope and nature of the railway operations in           8
                   respect of which accreditation is sought; and                           9
              (b) must include a description of the safety management system              10
                   (including a description of the measures to be taken to manage         11
                   identified risks) relating to those railway operations; and            12
              (c) must contain the prescribed information; and                            13
              (d) must be accompanied by the prescribed application fee.                  14

       (3)    The Regulator may require a rail transport operator who has applied for     15
              accreditation--                                                             16
              (a) to supply further information requested by the Regulator; and           17
              (b) to verify by statutory declaration any information supplied to the      18
                    Regulator.                                                            19

65     What applicant must demonstrate                                                    20

              The Regulator must not grant accreditation to an applicant unless           21
              satisfied that the applicant has demonstrated--                             22
              (a) that the applicant is, or is to be, a rail infrastructure manager or    23
                      rolling stock operator in respect of the railway operations for     24
                      which accreditation is sought; and                                  25
              (b) that the applicant has the competence and capacity to manage            26
                      risks to safety associated with the railway operations for which    27
                      accreditation is sought; and                                        28
              (c) that the applicant--                                                    29
                       (i) has the competence and capacity to implement the               30
                             proposed safety management system; and                       31
                      (ii) has the financial capacity, or has public risk insurance       32
                             arrangements, to meet reasonable potential accident          33
                             liabilities arising from the railway operations; and         34
                     (iii) has met the consultation requirements set out in Division 6    35
                             in relation to the applicant's safety management system;     36
                             and                                                          37




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                   (iv)   has complied with the requirements prescribed by the            1
                          national regulations (if any) for the purposes of this          2
                          section.                                                        3

66     Regulator may direct applicants to coordinate applications                         4

       (1)   If the Regulator--                                                           5
              (a) receives applications from 2 or more rail transport operators for       6
                    accreditation; and                                                    7
             (b) believes that coordinated preparation of the applications is             8
                    necessary to ensure railway operations of the applicants are          9
                    carried out safely,                                                  10
             the Regulator may give a direction in writing to each of the applicants     11
             to coordinate their applications (a coordination direction).                12

       (2)   A coordination direction--                                                  13
             (a) may be given to rail transport operators carrying out, or               14
                  proposing to carry out, railway operations in different                15
                  jurisdictions; and                                                     16
             (b) may require each rail transport operator subject to the direction to    17
                  provide to each other rail transport operator subject to the           18
                  direction information concerning any circumstances in relation to      19
                  the carrying out of railway operations by the first mentioned          20
                  operator that could constitute a risk to safety in relation to the     21
                  carrying out of railway operations by another operator subject to      22
                  the direction.                                                         23

       (3)   A rail transport operator to whom a coordination direction has been         24
             given under this section must comply with the direction.                    25
             Maximum penalty:                                                            26
             (a) in the case of an individual--$5 000;                                   27
             (b) in the case of a body corporate--$25 000.                               28

       (4)   A rail transport operator who has coordinated the preparation of an         29
             application with other rail transport operators in accordance with a        30
             coordination direction under this section must include in the application   31
             reference to--                                                              32
              (a) information given by the operator to each other operator subject       33
                   to the direction; and                                                 34
             (b) information given to the operator by each other operator subject        35
                   to the direction.                                                     36
             Maximum penalty:                                                            37
              (a) in the case of an individual--$5 000;                                  38




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              (b)    in the case of a body corporate--$25 000.                                 1

67     Determination of application                                                            2

       (1)    Subject to this section, the Regulator must, within the relevant period--        3
              (a) if the Regulator is satisfied as to the matters referred to in               4
                    section 65 and (if applicable) section 66--notify the applicant            5
                    that accreditation has been granted, with or without conditions or         6
                    restrictions; or                                                           7
              (b) if the Regulator is not so satisfied--notify the applicant that the          8
                    application has been refused.                                              9

       (2)    Accreditation under this Law is subject to--                                    10
              (a) any conditions or restrictions prescribed by the national                   11
                   regulations for the purposes of this section that are applicable to        12
                   the accreditation; and                                                     13
              (b) any other condition or restriction imposed on the accreditation by          14
                   the Regulator.                                                             15

       (3)    Before imposing a condition or restriction on the accreditation of an           16
              applicant, the Regulator must, if the imposition of the intended                17
              condition or restriction is likely to result in significant costs or expenses   18
              to the applicant or any other person--                                          19
               (a) conduct or cause to be conducted a cost-benefit analysis of the            20
                     effect of imposing the intended condition or restriction on the          21
                     accreditation; and                                                       22
              (b) consult with the Premier or Chief Minister, the Treasurer, and              23
                     any other Minister, of a participating jurisdiction whose area of        24
                     responsibility is likely to be affected by the imposition of the         25
                     intended condition or restriction on the accreditation.                  26

       (4)    Notification under this section--                                               27
              (a) must be in writing and given to the applicant; and                          28
              (b) if accreditation has been granted, must specify--                           29
                      (i) the prescribed details of the applicant; and                        30
                     (ii) the scope and nature of the railway operations, and the             31
                           manner in which they are to be carried out, in respect of          32
                           which the accreditation is granted; and                            33
                    (iii) any condition or restriction imposed by the Regulator               34
                           under this section on the grant of accreditation; and              35
                    (iv) any other prescribed information; and                                36




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             (c)   if a condition or restriction has been imposed on the                   1
                   accreditation, must include--                                           2
                    (i) the reasons for imposing the condition or restriction,             3
                           including (if applicable) the results of any cost-benefit       4
                           analysis carried out under this section; and                    5
                   (ii) information about the right of review under Part 7; and            6
             (d)   if the application has been refused, must include--                     7
                    (i) the reasons for the decision to refuse to grant the                8
                           application; and                                                9
                   (ii) information about the right of review under Part 7; and           10
             (e)   if the relevant period in relation to the application has been         11
                   extended, must include information about the right of review           12
                   under Part 7.                                                          13

       (5)   In this section--                                                            14
             relevant period, in relation to an application, means--                      15
              (a) 6 months after the application was received by the Regulator; or        16
             (b) if the Regulator requested further information, 6 months, or such        17
                    other period, as is agreed between the Regulator and the              18
                    applicant, after the Regulator receives the last information so       19
                    requested; or                                                         20
              (c) if the Regulator, by written notice given to the applicant before       21
                    the expiry of the relevant 6 months, specifies another period, that   22
                    period,                                                               23
             whichever is the longer.                                                     24

Subdivision 3          Variation of accreditation                                         25

68     Application for variation of accreditation                                         26

       (1)   An accredited person may, at any time, apply to the Regulator for            27
             variation of the accreditation.                                              28

       (2)   An accredited person must apply to the Regulator for variation of the        29
             accreditation if--                                                           30
             (a) the applicant proposes to vary the scope and nature of the railway       31
                   operations in respect of which the applicant is accredited; or         32
             (b) the applicant no longer has the competence or capacity to manage         33
                   risks to safety associated with the railway operations in respect of   34
                   which the applicant is accredited; or                                  35
             (c) any other variation is proposed in respect of the railway                36
                   operations in respect of which the applicant is accredited that        37
                   should be reflected in the accreditation.                              38




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       (3)    An application for variation must be made in the manner and form                1
              approved by the Regulator and--                                                 2
              (a) must specify the details of the variation being sought; and                 3
              (b) must contain the prescribed information; and                                4
              (c) must be accompanied by the prescribed application fee.                      5

       (4)    The Regulator may require an accredited person who has applied for a            6
              variation--                                                                     7
              (a) to supply further information requested by the Regulator; and               8
              (b) to verify by statutory declaration any information supplied to the          9
                     Regulator.                                                              10

       (5)    Section 66 applies to an application for variation as if a reference in that   11
              section to accreditation were a reference to variation of accreditation.       12

69     Determination of application for variation                                            13

       (1)    Subject to this section, the Regulator must, within the relevant period--      14
              (a) if the Regulator is satisfied as to the matters referred to in             15
                    sections 65 and 66 (so far as they are applicable to the proposed        16
                    variation)--notify the applicant that the accreditation has been         17
                    varied, with or without conditions or restrictions; or                   18
              (b) if the Regulator is not so satisfied--notify the applicant that the        19
                    application has been refused.                                            20

       (2)    Notification under this section--                                              21
              (a) must be in writing and given to the applicant; and                         22
              (b) if the accreditation has been varied, must specify--                       23
                      (i) the prescribed details of the applicant; and                       24
                     (ii) the variation to the accreditation so far as it applies to the     25
                            scope and nature of the railway operations, or the manner        26
                            in which they are to be carried out; and                         27
                    (iii) any conditions and restrictions imposed by the Regulator           28
                            on the accreditation as varied; and                              29
                    (iv) any other prescribed information; and                               30
              (c) if a condition or restriction has been imposed on the accreditation        31
                     as varied, must include--                                               32
                      (i) the reasons for imposing the condition or restriction; and         33
                     (ii) information about the right of review under Part 7; and            34




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             (d)   if the application to vary an accreditation has been refused, must       1
                   include--                                                                2
                    (i) the reasons for the decision to refuse to grant the                 3
                           application; and                                                 4
                   (ii) information about the right of review under Part 7; and             5
             (e)   if the relevant period in relation to an application has been            6
                   extended, must include information about the right of review             7
                   under Part 7.                                                            8

       (3)   In this section--                                                              9
             relevant period, in relation to an application, means--                       10
              (a) 6 months after the application was received by the Regulator; or         11
             (b) if the Regulator requested further information, 6 months, or such         12
                    other period, as is agreed between the Regulator and the               13
                    applicant, after the Regulator receives the last information so        14
                    requested; or                                                          15
              (c) if the Regulator, by written notice given to the applicant before        16
                    the expiry of the relevant 6 months, specifies another period, that    17
                    period,                                                                18
             whichever is the longer.                                                      19

70     Prescribed conditions and restrictions                                              20

             The accreditation of a person that is varied under this Part is subject to    21
             any conditions or restrictions prescribed by the national regulations that    22
             are applicable to the accreditation as varied.                                23

71     Variation of conditions and restrictions                                            24

       (1)   An accredited person may, at any time, apply to the Regulator for a           25
             variation of a condition or restriction imposed by the Regulator to which     26
             the accreditation is subject.                                                 27

       (2)   An application for variation of a condition or restriction must be made       28
             as if it were an application for variation of accreditation (and section 68   29
             applies accordingly).                                                         30

       (3)   The Regulator must consider the application and, if satisfied as to the       31
             matters referred to in sections 65 and 66 (so far as they are applicable to   32
             the proposed variation), notify the accredited person in accordance with      33
             the provisions of this Division applicable to a grant of accreditation (so    34
             far as is practicable) that the variation has been granted or refused.        35

       (4)   Notification under subsection (3) that a variation has been refused must      36
             include the reasons for the decision to refuse to grant the variation and     37
             information about the right of review under Part 7.                           38




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72     Regulator may make changes to conditions or restrictions                             1
       (1)    The Regulator may, subject to this section, at any time, vary or revoke       2
              a condition or restriction imposed by the Regulator to which the              3
              accreditation of an accredited person is subject or impose a new              4
              condition or restriction.                                                     5

       (2)    Before taking action under this section, the Regulator must--                 6
              (a) give the accredited person written notice of the action that the          7
                    Regulator proposes to take; and                                         8
              (b) allow the accredited person to make written representations about         9
                    the intended action within 28 days (or any other period that the       10
                    Regulator and the accredited person agree on); and                     11
              (c) consider any representations made under paragraph (b) and not            12
                    withdrawn; and                                                         13
              (d) if the intended action is likely to result in significant costs or       14
                    expenses to the accredited person or any other person--                15
                     (i) conduct or cause to be conducted a cost-benefit analysis of       16
                           the effect of the intended action; and                          17
                    (ii) consult with the Premier or Chief Minister, the Treasurer,        18
                           and any other Minister, of a participating jurisdiction         19
                           whose area of responsibility is likely to be affected by the    20
                           intended action.                                                21

       (3)    Subsection (2)(d) does not apply if the Regulator considers it necessary     22
              to take immediate action in the interests of safety but, if the action is    23
              likely to result in significant costs or expenses to the accredited person   24
              or any other person, the Regulator must, as soon as practicable after        25
              taking the action--                                                          26
               (a) conduct or cause to be conducted a cost-benefit analysis of the         27
                     effect of the action; and                                             28
              (b) consult with the Premier or Chief Minister, the Treasurer, and           29
                     any other Minister, of a participating jurisdiction whose area of     30
                     responsibility is likely to be affected by the action.                31

       (4)    The Regulator must, by written notice given to the accredited person,        32
              provide--                                                                    33
              (a) details of any action taken under this section; and                      34
              (b) a statement of reasons for any action taken under this section,          35
                    including (if applicable) the results of any cost-benefit analysis     36
                    carried out; and                                                       37
              (c) information about the right of review under Part 7.                      38




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Subdivision 4          Revocation, suspension or surrender of                               1
                       accreditation                                                        2

73     Revocation or suspension of accreditation                                            3

       (1)   This section applies in respect of an accredited person if--                   4
             (a) the Regulator considers that the accredited person--                       5
                     (i) is no longer able to demonstrate to the satisfaction of the        6
                          Regulator the matters referred to in section 65 or to satisfy     7
                          the conditions, or to comply with the restrictions, of the        8
                          accreditation; or                                                 9
                    (ii) is not managing the rail infrastructure, or is not operating      10
                          rolling stock in relation to any rail infrastructure, to which   11
                          the accreditation relates and has not done so for at least the   12
                          preceding 12 months; or                                          13
             (b) the accredited person contravenes this Law.                               14

       (2)   The Regulator may--                                                           15
             (a) suspend the accreditation, or part of the accreditation, of the           16
                   accredited person for a period determined by the Regulator; or          17
             (b) revoke the accreditation of the accredited person, wholly or in           18
                   part, or in respect of particular railway operations specified in the   19
                   notice, with immediate effect or with effect from a specified           20
                   future date; or                                                         21
             (c) impose conditions or restrictions on the accreditation; or                22
             (d) vary conditions or restrictions to which the accreditation is             23
                   subject,                                                                24
             and, if the Regulator revokes the accreditation, the Regulator may            25
             declare that the accredited person is disqualified from applying for          26
             accreditation, or for accreditation in respect of specified railway           27
             operations, during a specified period.                                        28

       (3)   Before making a decision under subsection (2), the Regulator--                29
             (a) must notify the person in writing--                                       30
                    (i) that the Regulator is considering making a decision under          31
                         subsection (2) of the kind, and for the reasons, specified in     32
                         the notice; and                                                   33
                   (ii) that the person may, within 28 days or such longer period          34
                         as is specified in the notice, make written representations       35
                         to the Regulator showing cause why the decision should            36
                         not be made; and                                                  37
             (b) must consider any representations made under paragraph (a)(ii)            38
                   and not withdrawn.                                                      39




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       (4)    If the Regulator suspends or revokes the accreditation of the accredited      1
              person, wholly or in part, or in respect of specified railway operations,     2
              the Regulator must include in the notice of suspension or revocation the      3
              reasons for the suspension or revocation and information about the right      4
              of review under Part 7.                                                       5

       (5)    The Regulator may withdraw a suspension of the accreditation of a             6
              person by written notice given to the person.                                 7

74     Immediate suspension of accreditation                                                8

       (1)    If the Regulator considers that there is, or would be, an immediate and       9
              serious risk to safety unless an accreditation is suspended immediately,     10
              the Regulator may, without complying with section 73(3) or (4), by           11
              written notice given to the accredited person, immediately suspend the       12
              accreditation of the person--                                                13
               (a) wholly or in part, or in respect of particular railway operations       14
                     specified in the notice; and                                          15
              (b) for a specified period, not exceeding 6 weeks.                           16

       (2)    The Regulator may, by written notice given to a person whose                 17
              accreditation is suspended, wholly or in part, or in respect of particular   18
              railway operations--                                                         19
               (a) reduce the period of suspension specified in a notice under             20
                    subsection (1); or                                                     21
              (b) extend the period of suspension specified in a notice under              22
                    subsection (1) but not so that the suspension continues for more       23
                    than 6 weeks after the date of the notice under that subsection.       24

       (3)    The Regulator may withdraw a suspension of the accreditation of a            25
              person by written notice given to the person.                                26

       (4)    Before making a decision under subsection (2)(b) to extend a period of       27
              suspension, the Regulator--                                                  28
              (a) must notify the person in writing--                                      29
                     (i) that the Regulator is considering extending the period of         30
                           suspension for the reasons specified in the notice; and         31
                    (ii) that the person may, within 7 days or such longer period as       32
                           is specified in the notification, make written                  33
                           representations to the Regulator showing cause why the          34
                           suspension should not be extended; and                          35
              (b) must consider any representations made under paragraph (a)(ii)           36
                    and not withdrawn.                                                     37




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       (5)   If the Regulator extends the suspension of the person, the Regulator          1
             must notify the person in writing that the suspension is being extended       2
             and include in the notice the reasons for the extension and information       3
             about the right of review under Part 7.                                       4

75     Surrender of accreditation                                                          5

       (1)   Accreditation may only be surrendered in accordance with this section.        6

       (2)   If an accredited person intends to surrender accreditation, the accredited    7
             person must--                                                                 8
              (a) give the Regulator written notice of the intention to surrender the      9
                    accreditation; and                                                    10
             (b) provide the Regulator with details as to the arrangements                11
                    proposed in relation to the cessation of the person's railway         12
                    operations.                                                           13

       (3)   If the Regulator is satisfied as to the arrangements proposed in relation    14
             to the cessation of the accredited person's railway operations, the          15
             Regulator must, as soon as reasonably practicable, by written notice         16
             given to the person, inform the person that the person's accreditation       17
             may be surrendered in accordance with the proposed arrangements on           18
             the date specified in the notice.                                            19

       (4)   If the Regulator is not satisfied as to the arrangements proposed in         20
             relation to the cessation of the accredited person's railway operations,     21
             the Regulator must, as soon as reasonably practicable, by written notice     22
             given to the person, inform the person--                                     23
              (a) that the Regulator is not satisfied as to the proposed                  24
                    arrangements; and                                                     25
             (b) of the reasons for the Regulator's dissatisfaction; and                  26
              (c) that the person's accreditation may not be surrendered until the        27
                    Regulator is satisfied as to the proposed arrangements.               28

Subdivision 5          Miscellaneous                                                      29

76     Annual fees                                                                        30

       (1)   An accredited person must pay the annual fee prescribed by the national      31
             regulations.                                                                 32

       (2)   The annual fee must be paid by an accredited person at the time              33
             accreditation is granted and thereafter on an annual basis on or before      34
             the prescribed date.                                                         35




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       (3)    However, the Regulator may accept payment of an annual fee in                1
              accordance with an agreement (that provides, for example, for the            2
              payment of fees by instalments) made with the person who is liable to        3
              pay the fee.                                                                 4

       (4)    The national regulations may--                                               5
              (a) fix different fees for different kinds of accreditations; and            6
              (b) fix various methods for the calculation of various fees; and             7
              (c) fix fees which may be differential, varying according to any             8
                    factor determined by the Regulator; and                                9
              (d) impose additional fees for the late payment of fees under this          10
                    section.                                                              11

77     Waiver of fees                                                                     12

              The Regulator may waive, or refund, the whole or part of any fee            13
              payable under this Division.                                                14

78     Penalty for breach of condition or restriction                                     15

              An accredited person must not contravene a condition or restriction of      16
              accreditation applying under this Part.                                     17
              Maximum penalty:                                                            18
              (a) in the case of an individual--$150 000;                                 19
              (b) in the case of a body corporate--$1 500 000.                            20

79     Accreditation cannot be transferred or assigned                                    21

       (1)    An accreditation--                                                          22
              (a) is personal to the person who holds it; and                             23
              (b) is not capable of being transferred or assigned to any other person     24
                   or otherwise dealt with by the person who holds it; and                25
              (c) does not vest by operation of law in any other person.                  26

       (2)    A purported transfer or assignment of an accreditation or any other         27
              purported dealing with an accreditation by the person who holds it is of    28
              no effect.                                                                  29

       (3)    This section has effect despite anything in this Law, an Act or a rule of   30
              law to the contrary.                                                        31

80     Sale or transfer of railway operations by accredited person                        32

       (1)    If an accredited person proposes to sell or otherwise transfer any          33
              railway operations for which the person is accredited, the Regulator        34
              may, on an application for accreditation being made by the proposed         35




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             transferee, waive compliance by the proposed transferee with any 1 or      1
             more of the requirements of this Part.                                     2

       (2)   However, the Regulator must not waive compliance with any such             3
             requirements unless the proposed transferee demonstrates, to the           4
             satisfaction of the Regulator, that the proposed transferee has the        5
             competence and capacity to comply with the relevant requirements of        6
             this Part that apply to applicants for accreditation of the appropriate    7
             kind.                                                                      8

       (3)   A waiver of compliance with requirements may be given subject to such      9
             conditions and restrictions (if any) as appear to the Regulator to be     10
             necessary.                                                                11

81     Keeping and making available records for public inspection                      12

       (1)   A person must ensure that--                                               13
             (a) if the person is an accredited person or has an exemption under       14
                   this Law--the current notice of accreditation or exemption; and     15
             (b) any other document prescribed by the national regulations for the     16
                   purposes of this section,                                           17
             are available for inspection--                                            18
             (c) if the person is a body corporate--at the person's registered         19
                   office during ordinary business hours;                              20
             (d) if the person is not a body corporate--at the person's principal      21
                   place of business during ordinary business hours (or, if the        22
                   Regulator approves another place and time, at that place and        23
                   time).                                                              24
             Maximum penalty:                                                          25
             (a) in the case of an individual--$5 000;                                 26
             (b) in the case of a body corporate--$25 000.                             27

       (2)   A person who is required under subsection (1) to make available           28
             documents for inspection must maintain a register of those documents      29
             for inspection.                                                           30
             Maximum penalty:                                                          31
              (a) in the case of an individual--$5 000;                                32
             (b) in the case of a body corporate--$25 000.                             33




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Division 5           Registration of rail infrastructure managers of                          1
                     private sidings                                                          2

Subdivision 1              Exemptions relating to certain private sidings                     3

82     Exemption from accreditation in respect of certain private sidings                     4

       (1)    A rail infrastructure manager of a private siding is not required to be         5
              accredited under this Part in respect of railway operations (other than         6
              those involving the operation of rolling stock) carried out in the private      7
              siding.                                                                         8

       (2)    Subject to section 83(2), a rail infrastructure manager of a private siding     9
              is not required to comply with Division 6, Division 7 or Division 8 of         10
              this Part in relation to the private siding in respect of railway operations   11
              (other than those involving the operation of rolling stock) carried out in     12
              the private siding.                                                            13

83     Requirement for managers of certain private sidings to be registered                  14

       (1)    A rail infrastructure manager of a private siding that is to be (or continue   15
              to be) connected with, or to have access to, a railway of an accredited        16
              person or another private siding, must be registered in respect of the         17
              private siding in accordance with this Division.                               18
              Maximum penalty:                                                               19
               (a) in the case of an individual--$20 000;                                    20
              (b) in the case of a body corporate--$100 000.                                 21

       (2)    A rail infrastructure manager of a private siding that is to be (or continue   22
              to be) connected with, or to have access to, a railway of an accredited        23
              person or another private siding must--                                        24
               (a) comply with the requirements of Division 6 Subdivision 2 of this          25
                     Part insofar as they are relevant to the railway operations carried     26
                     out in the private siding; and                                          27
              (b) seek to enter into an interface agreement with the accredited              28
                     person or rail infrastructure manager of the other private siding       29
                     (as the case may be).                                                   30
              Maximum penalty:                                                               31
               (a) in the case of an individual--$20 000;                                    32
              (b) in the case of a body corporate--$100 000.                                 33




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Subdivision 2          Procedures for granting registration                                 1

84     Application for registration                                                         2

       (1)   A rail infrastructure manager of a private siding to which section 83          3
             applies may apply to the Regulator for registration in respect of the          4
             private siding.                                                                5

       (2)   An application must be made in the manner and form approved by the             6
             Regulator and--                                                                7
             (a) must contain--                                                             8
                    (i) details about the scale and complexity of the private               9
                         siding; and                                                       10
                   (ii) details about the extent of the railway track layout and           11
                         other rail infrastructure of the private siding; and              12
                  (iii) details about the railway operations to be carried out in the      13
                         private siding; and                                               14
                  (iv) if the private siding is to be (or continue to be) connected        15
                         with, or to have access to--                                      16
                         (A) a railway of an accredited person--the prescribed             17
                                details about the railway and the accredited person;       18
                                or                                                         19
                         (B) another private siding--the prescribed details about          20
                                that siding and the rail infrastructure manager of that    21
                                siding; and                                                22
                   (v) any other prescribed information; and                               23
             (b) must be accompanied by the prescribed application fee.                    24

       (3)   The Regulator may require an applicant for registration--                     25
             (a) to supply further information requested by the Regulator; and             26
             (b) to verify by statutory declaration any information supplied to the        27
                  Regulator.                                                               28

85     What applicant must demonstrate                                                     29

             The Regulator must not grant registration to an applicant unless              30
             satisfied that the applicant has demonstrated--                               31
             (a) that the applicant is, or is to be, the rail infrastructure manager of    32
                    the private siding; and                                                33
             (b) that the railway operations to be carried out (or continue to be          34
                    carried out) in the private siding are such that registration of the   35
                    applicant (rather than accreditation of the applicant in respect of    36
                    the railway operations) is, in the opinion of the Regulator, the       37
                    appropriate action; and                                                38




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              (c)    that the applicant has complied with the requirements prescribed      1
                     by the national regulations (if any) for the purposes of this         2
                     section.                                                              3

86     Determination of application                                                        4

       (1)    Subject to this section, the Regulator must, within the relevant period--    5
              (a) if the Regulator is satisfied as to the matters referred to in           6
                    section 85--notify the applicant that registration has been            7
                    granted, with or without conditions or restrictions; or                8
              (b) if the Regulator is not so satisfied--notify the applicant that the      9
                    application has been refused.                                         10

       (2)    Registration under this Law is subject to--                                 11
              (a) any conditions or restrictions prescribed by the national               12
                    regulations for the purposes of this section; and                     13
              (b) any other condition or restriction imposed on the registration by       14
                    the Regulator.                                                        15

       (3)    Notification under this section--                                           16
              (a) must be in writing and given to the applicant; and                      17
              (b) if registration has been granted, must specify--                        18
                      (i) the prescribed details of the applicant; and                    19
                     (ii) the prescribed details of the private siding; and               20
                    (iii) any conditions and restrictions imposed by the Regulator        21
                           on the registration; and                                       22
                    (iv) any other prescribed information; and                            23
              (c) if a condition or restriction has been imposed on the registration,     24
                     must include--                                                       25
                      (i) the reasons for imposing the condition or restriction; and      26
                     (ii) information about the right of review under Part 7; and         27
              (d) if the application has been refused, must include--                     28
                      (i) the reasons for the decision to refuse to grant the             29
                           application; and                                               30
                     (ii) information about the right of review under Part 7; and         31
              (e) if the relevant period in relation to the application has been          32
                     extended, must include information about the right of review         33
                     under Part 7.                                                        34

       (4)    In this section--                                                           35
              relevant period, in relation to an application, means--                     36
               (a) 6 months after the application was received by the Regulator; or       37




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             (b)  if the Regulator requested further information, 6 months, or such       1
                  other period, as is agreed between the Regulator and the                2
                  applicant, after the Regulator receives the last information so         3
                  requested; or                                                           4
             (c) if the Regulator, by written notice given to the applicant before        5
                  the expiry of the relevant 6 months, specifies another period, that     6
                  period,                                                                 7
             whichever is the longer.                                                     8

Subdivision 3          Variation of registration                                          9

87     Application for variation of registration                                         10

       (1)   A registered person may, at any time, apply to the Regulator for a          11
             variation of the registration.                                              12

       (2)   A registered person must apply to the Regulator for a variation of the      13
             registration if--                                                           14
              (a) the applicant proposes to vary the scale and complexity of the         15
                    private siding in respect of which the applicant is registered; or   16
             (b) the applicant proposes to vary the railway operations to be carried     17
                    out in the private siding in respect of which the applicant is       18
                    registered; or                                                       19
              (c) any other variation is proposed in relation to the private siding in   20
                    respect of which the applicant is registered that should be          21
                    reflected in the registration.                                       22

       (3)   An application for variation must be made in the manner and form            23
             approved by the Regulator and--                                             24
             (a) must specify the details of the variation being sought; and             25
             (b) must contain the prescribed information; and                            26
             (c) must be accompanied by the prescribed application fee.                  27

       (4)   The Regulator may require a registered person who has applied for a         28
             variation under this section--                                              29
             (a) to supply further information requested by the Regulator; and           30
             (b) to verify by statutory declaration any information supplied to the      31
                    Regulator.                                                           32

88     Determination of application for variation                                        33

       (1)   Subject to this section, the Regulator must, within the relevant period--   34
             (a) if the Regulator is satisfied as to the matters referred to in          35
                   section 85 (so far as they are applicable to the proposed             36




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                     variation), notify the applicant that registration has been varied,    1
                     with or without conditions or restrictions; or                         2
              (b)    if the Regulator is not so satisfied--notify the applicant that the    3
                     application has been refused.                                          4

       (2)    Notification under this section--                                             5
              (a) must be in writing and given to the applicant; and                        6
              (b) if registration has been varied, must specify--                           7
                      (i) the prescribed details of the applicant; and                      8
                     (ii) the variation to the registration; and                            9
                    (iii) any conditions and restrictions imposed by the Regulator         10
                            on the registration as varied; and                             11
                    (iv) any other prescribed information; and                             12
              (c) if a condition or restriction has been imposed on the registration       13
                     as varied, must include--                                             14
                      (i) the reasons for imposing the condition or restriction; and       15
                     (ii) information about the right of review under Part 7; and          16
              (d) if the application has been refused, must include--                      17
                      (i) the reasons for the decision to refuse to grant the              18
                            application; and                                               19
                     (ii) information about the right of review under Part 7; and          20
              (e) if the relevant period in relation to an application has been            21
                     extended, must include information about the right of review          22
                     under Part 7.                                                         23

       (3)    In this section--                                                            24
              relevant period, in relation to an application, means--                      25
               (a) 6 months after the application was received by the Regulator; or        26
              (b) if the Regulator requested further information, 6 months, or such        27
                     other period, as is agreed between the Regulator and the              28
                     applicant, after the Regulator receives the last information so       29
                     requested; or                                                         30
               (c) if the Regulator, by written notice given to the applicant before       31
                     the expiry of the relevant 6 months, specifies another period, that   32
                     period,                                                               33
              whichever is the longer.                                                     34




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89     Prescribed conditions and restrictions                                                1
             The registration of a person that is varied under this Division is subject      2
             to any conditions or restrictions prescribed by the national regulations        3
             that are applicable to the registration as varied.                              4

90     Variation of conditions and restrictions                                              5

       (1)   A registered person may, at any time, apply to the Regulator for a              6
             variation of a condition or restriction imposed by the Regulator to which       7
             the registration is subject.                                                    8

       (2)   An application for variation of a condition or restriction must be made         9
             as if it were an application for variation of registration (and section 87     10
             applies accordingly).                                                          11

       (3)   The Regulator must consider the application and, if satisfied as to the        12
             matters referred to in section 86 (so far as they are applicable to the        13
             proposed variation), notify the registered person in accordance with the       14
             provisions of this Division applicable to a grant of registration (so far as   15
             is practicable), that the variation has been granted or refused.               16

       (4)   Notification under subsection (3) that a variation has been refused must       17
             include the reasons for the decision to refuse to grant the variation and      18
             information about the right of review under Part 7.                            19

91     Regulator may make changes to conditions or restrictions                             20

       (1)   The Regulator may, subject to this section, at any time, vary or revoke        21
             a condition or restriction imposed by the Regulator to which the               22
             registration of a registered person is subject or impose a new condition       23
             or restriction.                                                                24

       (2)   Before taking action under this section, the Regulator must--                  25
             (a) give the registered person written notice of the action that the           26
                   Regulator proposes to take; and                                          27
             (b) allow the registered person to make written representations about          28
                   the intended action within 28 days (or any other period that the         29
                   Regulator and the registered person agree on); and                       30
             (c) consider any representations made under paragraph (b) and not              31
                   withdrawn.                                                               32

       (3)   Subsection (2) does not apply if the Regulator considers it necessary to       33
             take immediate action in the interests of safety.                              34

       (4)   The Regulator must, by written notice given to the registered person,          35
             provide--                                                                      36
             (a) details of any action taken under subsection (1); and                      37




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              (b)    a statement of reasons for any action taken under subsection (1);      1
                     and                                                                    2
              (c)    information about the right of review under Part 7.                    3

Subdivision 4              Revocation, suspension or surrender of                           4
                           registration                                                     5

92     Revocation or suspension of registration                                             6

       (1)    This section applies in respect of a registered person if--                   7
              (a) the Regulator considers that the registered person--                      8
                      (i) is no longer able to demonstrate to the satisfaction of the       9
                           Regulator the matters referred to in section 85 or to satisfy   10
                           the conditions, or to comply with the restrictions, of the      11
                           registration; or                                                12
                     (ii) is not controlling or managing the private siding and has        13
                           not done so for at least the preceding 12 months; or            14
              (b) the registered person contravenes this Law.                              15

       (2)    The Regulator may--                                                          16
              (a) suspend the registration of the registered person for a period           17
                   determined by the Regulator; or                                         18
              (b) revoke the registration of the registered person with immediate          19
                   effect or with effect from a specified future date; or                  20
              (c) impose conditions or restrictions on the registration; or                21
              (d) vary conditions or restrictions to which the registration is subject.    22

       (3)    Before making a decision under subsection (2), the Regulator--               23
              (a) must notify the person in writing--                                      24
                     (i) that the Regulator is considering making a decision under         25
                          subsection (2) of the kind, and for the reasons, specified in    26
                          the notice; and                                                  27
                    (ii) that the person may, within 28 days or such longer period         28
                          as is specified in the notice, make written representations      29
                          to the Regulator showing cause why the decision should           30
                          not be made; and                                                 31
              (b) must consider any representations made under paragraph (a)(ii)           32
                    and not withdrawn.                                                     33

       (4)    If the Regulator suspends or revokes the registration of the registered      34
              person, the Regulator must include in the notice of suspension or            35
              revocation the reasons for the suspension or revocation and information      36
              about the right of review under Part 7.                                      37




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       (5)   The Regulator may withdraw a suspension of the registration of a              1
             person by written notice given to the person.                                 2

93     Immediate suspension of registration                                                3

       (1)   If the Regulator considers that there is, or would be, an immediate and       4
             serious risk to safety unless a registration is suspended immediately, the    5
             Regulator may, without complying with section 92(3) or (4), by written        6
             notice given to the registered person, immediately suspend the                7
             registration of the person for a specified period, not exceeding 6 weeks.     8

       (2)   The Regulator may, by written notice given to a person whose                  9
             registration is suspended--                                                  10
              (a) reduce the period of suspension specified in a notice under             11
                    subsection (1); or                                                    12
             (b) extend the period of suspension specified in a notice under              13
                    subsection (1) but not so that the suspension continues for more      14
                    than 6 weeks after the date of the notice under that subsection.      15

       (3)   The Regulator may withdraw a suspension of the registration of a             16
             person by written notice given to the person.                                17

       (4)   Before making a decision under subsection (2)(b) to extend a period of       18
             suspension, the Regulator--                                                  19
             (a) must notify the person in writing--                                      20
                    (i) that the Regulator is considering extending the period of         21
                          suspension for the reasons specified in the notification; and   22
                   (ii) that the person may, within 7 days or such longer period as       23
                          is specified in the notification, make written                  24
                          representations to the Regulator showing cause why the          25
                          suspension should not be extended; and                          26
             (b) must consider any representations made under paragraph (a)(ii)           27
                   and not withdrawn.                                                     28

       (5)   If the Regulator extends the suspension of the person, the Regulator         29
             must notify the person in writing that the suspension is being extended      30
             and include in the notice the reasons for the extension and information      31
             about the right of review under Part 7.                                      32

94     Surrender of registration                                                          33

       (1)   Registration may only be surrendered in accordance with this section.        34

       (2)   If a registered person intends to surrender registration, the registered     35
             person must--                                                                36
              (a) give the Regulator written notice of the intention to surrender the     37
                    registration; and                                                     38




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              (b)    provide the Regulator with details as to the arrangements              1
                     proposed in relation to the cessation of the person's railway          2
                     operations in respect of the private siding.                           3

       (3)    If the Regulator is satisfied as to the arrangements proposed in relation     4
              to the cessation of the registered person's railway operations, the           5
              Regulator must, as soon as reasonably practicable, by written notice          6
              given to the person, inform the person that the person's registration may     7
              be surrendered in accordance with the proposed arrangements on the            8
              date specified in the notice.                                                 9

       (4)    If the Regulator is not satisfied as to the arrangements proposed in         10
              relation to the cessation of the registered person's railway operations,     11
              the Regulator must, as soon as reasonably practicable, by written notice     12
              given to the person, inform the person--                                     13
               (a) that the Regulator is not satisfied as to the proposed                  14
                     arrangements; and                                                     15
              (b) of the reasons for the Regulator's dissatisfaction; and                  16
               (c) that the person's registration may not be surrendered until the         17
                     Regulator is satisfied as to the proposed arrangements.               18

Subdivision 5              Miscellaneous                                                   19

95     Annual fees                                                                         20

       (1)    A registered person must pay the annual fee prescribed by the national       21
              regulations.                                                                 22

       (2)    The annual fee must be paid by a registered person at the time               23
              registration is granted and thereafter on an annual basis on or before the   24
              prescribed date.                                                             25

       (3)    However, the Regulator may accept payment of an annual fee in                26
              accordance with an agreement (that provides, for example, for the            27
              payment of fees by instalments) made with the person who is liable to        28
              pay the fee.                                                                 29

       (4)    The national regulations may--                                               30
              (a) fix different fees for different kinds of registration; and              31
              (b) fix various methods for the calculation of various fees; and             32
              (c) fix fees which may be differential, varying according to any             33
                    factor determined by the Regulator; and                                34
              (d) impose additional fees for the late payment of fees under this           35
                    section.                                                               36




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96     Waiver of fees                                                                     1
             The Regulator may waive, or refund, the whole or part of any fee             2
             payable under this Division.                                                 3

97     Registration cannot be transferred or assigned                                     4

       (1)   Registration--                                                               5
             (a) is personal to the person who holds it; and                              6
             (b) is not capable of being transferred or assigned to any other person      7
                   or otherwise dealt with by the person who holds it; and                8
             (c) does not vest by operation of law in any other person.                   9

       (2)   A purported transfer or assignment of a registration or any other           10
             purported dealing with a registration by the person who holds it is of no   11
             effect.                                                                     12

       (3)   This section has effect despite anything in this Law, an Act or a rule of   13
             law to the contrary.                                                        14

98     Offences relating to registration                                                 15

       (1)   A registered person must not contravene a condition or restriction of the   16
             registration.                                                               17
             Maximum penalty:                                                            18
              (a) in the case of an individual--$50 000;                                 19
             (b) in the case of a body corporate--$500 000.                              20

       (2)   A registered person must ensure that the notice of registration, and any    21
             other document prescribed by the national regulations for the purposes      22
             of this section, is available for inspection--                              23
             (a) if the person is a body corporate--at the person's registered           24
                    office during ordinary business hours;                               25
             (b) if the person is not a body corporate--at the person's principal        26
                    place of business during ordinary business hours (or, if the         27
                    Regulator approves another place and time, at that place and         28
                    time).                                                               29
             Maximum penalty:                                                            30
             (a) in the case of an individual--$5 000;                                   31
             (b) in the case of a body corporate--$25 000.                               32




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       (3)    A person who is required under subsection (2) to make available                1
              documents for inspection must maintain a register of those documents           2
              for inspection.                                                                3
              Maximum penalty:                                                               4
               (a) in the case of an individual--$5 000;                                     5
              (b) in the case of a body corporate--$25 000.                                  6

Division 6           Safety management                                                       7

Subdivision 1              Safety management systems                                         8

99     Safety management system                                                              9

       (1)    A rail transport operator must have a safety management system for            10
              railway operations in respect of which the operator is required to be         11
              accredited that--                                                             12
               (a) is in a form approved by the Regulator; and                              13
              (b) provides for systems and procedures for compliance with the risk          14
                    management obligations under this Law; and                              15
               (c) identifies any risks to safety in relation to railway operations in      16
                    respect of which the operator is required to be accredited; and         17
              (d) provides for the comprehensive and systematic assessment of any           18
                    identified risks; and                                                   19
               (e) specifies the controls (including audits, expertise, resources and       20
                    staff) that are to be used by the operator to manage identified risks   21
                    and to monitor safety in relation to those railway operations; and      22
               (f) includes procedures for monitoring, reviewing and revising the           23
                    adequacy of those controls; and                                         24
              (g) addresses and includes any other matter prescribed by the                 25
                    national regulations that is relevant to the railway operations for     26
                    which the rail transport operator is accredited.                        27
              Maximum penalty:                                                              28
               (a) in the case of an individual--$150 000;                                  29
              (b) in the case of a body corporate--$1 500 000.                              30

       (2)    The safety management system for a rail transport operator must also          31
              include the following matters prepared in accordance with the                 32
              requirements of this Division:                                                33
               (a) measures to manage identified risks to safety for the purposes of        34
                    interface agreements;                                                   35
              (b) a security management plan;                                               36




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             (c)   an emergency management plan;                                           1
             (d)   a health and fitness management program;                                2
             (e)   a drug and alcohol management program;                                  3
             (f)   a fatigue risk management program.                                      4

       (3)   Before establishing a safety management system in relation to railway         5
             operations in respect of which a rail transport operator is required to be    6
             accredited or reviewing or varying any such safety management system,         7
             the operator must, so far as is reasonably practicable--                      8
              (a) consult with--                                                           9
                     (i) persons likely to be affected by the safety management           10
                          system or its review or variation, being persons who carry      11
                          out those railway operations or work on or at the operator's    12
                          railway premises or with the operator's rolling stock; and      13
                    (ii) health and safety representatives (within the meaning of         14
                          the occupational health and safety legislation) representing    15
                          any of the persons referred to in subparagraph (i); and         16
                   (iii) any union representing any of the persons referred to in         17
                          subparagraph (i); and                                           18
                   (iv) any other rail transport operator with whom the first             19
                          mentioned operator is required to enter into an interface       20
                          agreement relating to risks to safety of railway operations     21
                          carried out by or on behalf of either of them; and              22
                    (v) the public, as appropriate; and                                   23
             (b) provide the persons consulted with a reasonable opportunity to           24
                    make submissions on the proposed safety management system;            25
                    and                                                                   26
              (c) advise those persons in a timely manner of the outcome of the           27
                    consultation process.                                                 28

       (4)   If the safety management system of a rail transport operator and the         29
             safety management system of another rail transport operator who has an       30
             agreement referred to in subsection (3)(a)(iv) with the first mentioned      31
             operator, when taken as 1 system, comply with this Law, both safety          32
             management systems are taken to comply with this Law.                        33

       (5)   A safety management system must be evidenced in writing and must             34
             identify--                                                                   35
              (a) each person responsible for preparing any part of the safety            36
                    management system; and                                                37
             (b) the person, or class of persons, responsible for implementing the        38
                    system.                                                               39




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100    Conduct of assessments for identified risks                                         1
       (1)    In conducting an assessment for the purposes of section 99(1)(d), the        2
              rail transport operator must--                                               3
               (a) examine and analyse each identified risk, including--                   4
                        (i) the nature of the risk; and                                    5
                       (ii) the likelihood of the risk occurring; and                      6
                     (iii) the magnitude and severity of the consequences should a         7
                            risk be realised; and                                          8
                      (iv) the range of control measures available and considered to       9
                            eliminate or minimise the risk; and                           10
              (b) consider risks cumulatively as well as individually; and                11
               (c) use assessment methodologies that are appropriate to the risks         12
                      under consideration.                                                13

       (2)    The rail transport operator must keep a detailed record of all aspects of   14
              the assessment process, including--                                         15
               (a) the risks considered; and                                              16
              (b) the likelihood, severity of consequences and control measures           17
                     considered, including reasons for selecting certain control          18
                     measures and rejecting others.                                       19

101    Compliance with safety management system                                           20

       (1)    A rail transport operator must implement the operator's safety              21
              management system.                                                          22
              Maximum penalty:                                                            23
              (a) in the case of an individual--$150 000;                                 24
              (b) in the case of a body corporate--$1 500 000.                            25

       (2)    A rail transport operator must not, without reasonable excuse, fail to      26
              comply with the operator's safety management system for the                 27
              operator's railway operations.                                              28
              Maximum penalty:                                                            29
              (a) in the case of an individual--$150 000;                                 30
              (b) in the case of a body corporate--$1 500 000.                            31

       (3)    Subsection (2) places an evidential burden on the accused to show a         32
              reasonable excuse.                                                          33

102    Review of safety management system                                                 34

              A rail transport operator must review the operator's safety management      35
              system in accordance with the national regulations at such times or         36




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             within such periods as are prescribed (or, if no times or periods are         1
             prescribed, at least once each year or at such other time as is agreed        2
             between the operator and the Regulator).                                      3
             Maximum penalty:                                                              4
             (a) in the case of an individual--$10 000;                                    5
             (b) in the case of a body corporate--$50 000.                                 6

103    Safety performance reports                                                          7

       (1)   A rail transport operator must give the Regulator a safety performance        8
             report about the operator's railway operations in respect of which the        9
             operator is required to be accredited for each reporting period that--       10
              (a) is in a form approved by the Regulator; and                             11
             (b) complies with the requirements (if any) prescribed by the                12
                    national regulations for the purposes of this section; and            13
              (c) contains--                                                              14
                     (i) a description and assessment of the safety performance of        15
                           the operator's railway operations; and                         16
                    (ii) comments on any deficiencies, and any irregularities, in         17
                           the railway operations that may be relevant to the safety of   18
                           the railway; and                                               19
                   (iii) a description of any safety initiatives in relation to the       20
                           railway operations undertaken during the reporting period      21
                           or proposed to be undertaken in the next reporting period;     22
                           and                                                            23
                   (iv) any other information or performance indicators                   24
                           prescribed by the national regulations for the purposes of     25
                           this section.                                                  26

       (2)   A rail transport operator must submit a report in accordance with this       27
             section within 6 months after the end of each reporting period.              28
             Maximum penalty:                                                             29
             (a) in the case of an individual--$5 000;                                    30
             (b) in the case of a body corporate--$25 000.                                31

       (3)   In this section--                                                            32
             reporting period means a financial year or such other period as is agreed    33
             from time to time by the Regulator and the rail transport operator.          34

104    Regulator may direct amendment of safety management system                         35

       (1)   The Regulator may, by written notice given to an accredited person,          36
             direct the person to amend the person's safety management system in a        37




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              specified manner within a specified period, being not less than 28 days       1
              after the giving of the direction.                                            2

       (2)    Before giving a direction to amend a safety management system under           3
              subsection (1), the Regulator must, if the intended amendment is likely       4
              to result in significant costs or expenses to the accredited person or any    5
              other person--                                                                6
               (a) conduct or cause to be conducted a cost-benefit analysis of the          7
                     effect of the intended amendment; and                                  8
              (b) consult with the Premier or Chief Minister, the Treasurer, and            9
                     any other Minister, of a participating jurisdiction whose area of     10
                     responsibility is likely to be affected by the intended amendment.    11

       (3)    A direction under subsection (1)--                                           12
              (a) must state the reasons why the Regulator considers it necessary          13
                    for the rail transport operator to amend the safety management         14
                    system; and                                                            15
              (b) must include (if applicable) the results of any cost-benefit             16
                    analysis carried out under this section; and                           17
              (c) must include information about the right of review under Part 7.         18

       (4)    An accredited person must not, without reasonable excuse, fail to            19
              comply with a direction under subsection (1).                                20
              Maximum penalty:                                                             21
              (a) in the case of an individual--$50 000;                                   22
              (b) in the case of a body corporate--$500 000.                               23

       (5)    Subsection (4) places an evidential burden on the accused to show a          24
              reasonable excuse.                                                           25

Subdivision 2              Interface agreements                                            26

105    Requirements for and scope of interface agreements                                  27

       (1)    An interface agreement must include provisions for--                         28
              (a) implementing and maintaining measures to manage risks                    29
                    identified under section 99(1)(c) associated with the interface;       30
                    and                                                                    31
              (b) the evaluation, testing and (where appropriate) revision of              32
                    measures in relation to identified risks and incidents considered;     33
                    and                                                                    34
              (c) the respective roles and responsibilities of each party to the           35
                    agreement in relation to those measures; and                           36




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             (d)   procedures by which the parties to the agreement will exchange         1
                   information about, and monitor compliance with, their                  2
                   obligations under the agreement; and                                   3
             (e)   a process for keeping the agreement under review and its               4
                   revision.                                                              5

       (2)   An interface agreement may--                                                 6
             (a) be entered into by 2 or more rail transport operators or by 1 or         7
                   more rail transport operators and 1 or more road managers; and         8
             (b) include measures to manage any number of risks to safety that            9
                   may arise because of, or partly because of, any railway               10
                   operations; and                                                       11
             (c) include measures to manage any number of risks to safety that           12
                   may arise from any railway operations because of, or partly           13
                   because of, the existence or use of any road infrastructure; and      14
             (d) make provision for or in relation to any matter by applying,            15
                   adopting or incorporating any matter contained in any document;       16
                   and                                                                   17
             (e) consist of 2 or more documents.                                         18

106    Interface coordination--rail transport operators                                  19

             A rail transport operator must--                                            20
             (a) identify and assess, so far as is reasonably practicable, risks to      21
                    safety that may arise from railway operations carried out by or on   22
                    behalf of the operator because of, or partly because of, railway     23
                    operations carried out by or on behalf of any other rail transport   24
                    operator; and                                                        25
             (b) determine measures to manage, so far as is reasonably                   26
                    practicable, those risks; and                                        27
             (c) for the purpose of managing those risks--seek to enter into an          28
                    interface agreement with the other rail transport operator or rail   29
                    transport operators.                                                 30
             Maximum penalty:                                                            31
             (a) in the case of an individual--$50 000;                                  32
             (b) in the case of a body corporate--$500 000.                              33

107    Interface coordination--rail infrastructure and public roads                      34

       (1)   A rail infrastructure manager must--                                        35
             (a) identify and assess, so far as is reasonably practicable, risks to      36
                    safety that may arise from railway operations carried out on or in   37




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                   relation to the manager's rail infrastructure because of, or partly      1
                   because of--                                                             2
                    (i) the existence of road infrastructure of a prescribed public         3
                          road; or                                                          4
                   (ii) the existence or use of any rail or road crossing that is part      5
                          of the road infrastructure of a public road; and                  6
              (b) determine measures to manage, so far as is reasonably                     7
                   practicable, those risks; and                                            8
              (c) for the purpose of managing those risks--seek to enter into an            9
                   interface agreement with the road manager of that road.                 10
              Maximum penalty:                                                             11
              (a) in the case of an individual--$50 000;                                   12
              (b) in the case of a body corporate--$500 000.                               13

       (2)    The road manager of a public road must--                                     14
              (a) identify and assess, so far as is reasonably practicable, risks to       15
                    safety that may arise from the existence or use of any rail or road    16
                    crossing that is part of the road infrastructure of the road because   17
                    of, or partly because of--                                             18
                     (i) the existence of road infrastructure of a prescribed public       19
                            road; or                                                       20
                    (ii) the existence or use of any rail or road crossing that is part    21
                            of the road infrastructure of a public road; and               22
              (b) determine measures to manage, so far as is reasonably                    23
                    practicable, those risks; and                                          24
              (c) for the purpose of managing those risks--seek to enter into an           25
                    interface agreement with the rail infrastructure manager of the        26
                    rail infrastructure.                                                   27

       (3)    Nothing in this section authorises or requires a road manager to act         28
              inconsistently with, or without regard to, the functions, obligations or     29
              powers conferred on it by or under an Act or law.                            30

108    Interface coordination--rail infrastructure and private roads                       31

       (1)    A rail infrastructure manager must--                                         32
              (a) identify and assess, so far as is reasonably practicable, risks to       33
                     safety that may arise from railway operations carried out on or in    34
                     relation to the manager's rail infrastructure because of, or partly   35
                     because of, the existence or use of any rail or road crossing that    36
                     is part of the road infrastructure of a private road; and             37
              (b) consider the extent to which those risks are managed by any              38
                     prescribed protocols; and                                             39




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             (c)  consider whether it is necessary to manage those risks in                  1
                  conjunction with the road manager of that road and--                       2
                   (i) if the rail infrastructure manager is of the opinion that it is       3
                        necessary that those risks be managed in conjunction with            4
                        the road manager--give written notice of that opinion to             5
                        the road manager and determine measures to manage, so                6
                        far as is reasonably practicable, those risks; or                    7
                  (ii) if the rail infrastructure manager is of the opinion that the         8
                        management of those risks does not need to be carried out            9
                        in conjunction with the road manager--keep a written                10
                        record of that opinion; and                                         11
             (d) unless paragraph (c)(ii) applies--for the purpose of managing              12
                  those risks, seek to enter into an interface agreement with the           13
                  road manager.                                                             14
             Maximum penalty:                                                               15
             (a) in the case of an individual--$50 000;                                     16
             (b) in the case of a body corporate--$500 000.                                 17

       (2)   If a rail infrastructure manager gives a road manager of a private road a      18
             written notice under subsection (1)(c)(i), the road manager must--             19
              (a) identify and assess, so far as is reasonably practicable, risks to        20
                     safety that may arise from the existence or use of any rail or road    21
                     crossing that is part of the road infrastructure of the road because   22
                     of, or partly because of, railway operations; and                      23
             (b) determine measures to manage, so far as is reasonably                      24
                     practicable, those risks; and                                          25
              (c) for the purpose of managing those risks--seek to enter into an            26
                     interface agreement with the rail infrastructure manager.              27
             Maximum penalty:                                                               28
              (a) in the case of an individual--$50 000;                                    29
             (b) in the case of a body corporate--$500 000.                                 30

109    Identification and assessment of risks                                               31

             A rail transport operator, rail infrastructure manager or road manager         32
             that is required under this Subdivision to identify and assess risks to        33
             safety that may arise from operations carried out by another person may        34
             do so--                                                                        35
              (a) by itself identifying and assessing those risks; or                       36
             (b) by identifying and assessing those risks jointly with the other            37
                    person; or                                                              38




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              (c)    by adopting the identification and assessment of those risks          1
                     carried out by the other person.                                      2

110    Regulator may give directions                                                       3

       (1)    This section applies if the Regulator is satisfied that a rail transport     4
              operator, rail infrastructure manager or road manager referred to in this    5
              Subdivision--                                                                6
              (a) is unreasonably refusing or failing to enter into an interface           7
                    agreement with another person as required under this                   8
                    Subdivision; or                                                        9
              (b) is unreasonably delaying the negotiation of such an agreement.          10

       (2)    The Regulator may give a written notice to the rail transport operator,     11
              rail infrastructure manager or road manager (as the case requires) and      12
              the other person that--                                                     13
               (a) warns of the Regulator's powers under this section, including the      14
                     power to issue a direction under subsection (3) at any time after    15
                     a specified date; and                                                16
              (b) includes a copy of this section; and                                    17
               (c) may contain suggested terms for inclusion in an interface              18
                     agreement.                                                           19

       (3)    If the Regulator gives a notice under subsection (2) to a rail transport    20
              operator, rail infrastructure manager or road manager, the Regulator        21
              may, in writing, require the operator or manager to provide such            22
              information as the Regulator reasonably requires for the purposes of        23
              making a direction under this section.                                      24

       (4)    If a notice is given under subsection (2) and an interface agreement has    25
              not been entered into by or on the date specified in the notice, the        26
              Regulator--                                                                 27
               (a) may determine the arrangements that are to apply in relation to        28
                     the management of risks to safety referred to in section 106, 107    29
                     or 108 (as the case requires); and                                   30
              (b) may direct any of the persons to whom the notice is issued to give      31
                     effect to those arrangements; and                                    32
               (c) must specify the time within which a direction is to be complied       33
                     with.                                                                34

       (5)    A direction under subsection (4)--                                          35
              (a) must be in writing; and                                                 36
              (b) must set out any arrangements determined by the Regulator under         37
                    that subsection.                                                      38




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       (6)   A person to whom a notice or direction is given under this section must    1
             comply with the notice or direction within the time specified in the       2
             notice or direction.                                                       3
             Maximum penalty:                                                           4
             (a) in the case of an individual--$20 000;                                 5
             (b) in the case of a body corporate--$100 000.                             6

111    Register of interface agreements                                                 7

       (1)   A rail transport operator must maintain a register of--                    8
              (a) interface agreements to which it is a party; and                      9
             (b) arrangements determined by the Regulator under section 110,           10
             that are applicable to the operator's railway operations.                 11
             Maximum penalty:                                                          12
              (a) in the case of an individual--$5 000;                                13
             (b) in the case of a body corporate--$25 000.                             14

       (2)   A road manager must maintain a register of--                              15
              (a) interface agreements to which it is a party; and                     16
             (b) arrangements determined by the Regulator under section 110,           17
             that are applicable to any road in relation to which it is the road       18
             manager.                                                                  19
             Maximum penalty:                                                          20
              (a) in the case of an individual--$5 000;                                21
             (b) in the case of a body corporate--$25 000.                             22

Subdivision 3          Other safety plans and programs                                 23

112    Security management plan                                                        24

       (1)   A rail transport operator must have a security management plan for        25
             railway operations in respect of which the operator is required to be     26
             accredited that--                                                         27
              (a) incorporates measures to protect people from theft, assault,         28
                   sabotage, terrorism and other criminal acts of other parties and    29
                   from other harm; and                                                30
             (b) complies with this Law and any requirements prescribed by the         31
                   national regulations.                                               32
             Maximum penalty:                                                          33
              (a) in the case of an individual--$50 000;                               34
             (b) in the case of a body corporate--$500 000.                            35




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       (2)    The rail transport operator must ensure--                                  1
              (a) that the security management plan is implemented; and                  2
              (b) that appropriate response measures of the security management          3
                    plan are implemented without delay if an incident of a kind          4
                    referred to in subsection (1)(a) occurs.                             5
              Maximum penalty:                                                           6
              (a) in the case of an individual--$50 000;                                 7
              (b) in the case of a body corporate--$500 000.                             8

113    Emergency management plan                                                         9

       (1)    A rail transport operator must have an emergency management plan that     10
              complies with subsection (2) for railway operations in respect of which   11
              the operator is required to be accredited.                                12
              Maximum penalty:                                                          13
               (a) in the case of an individual--$50 000;                               14
              (b) in the case of a body corporate--$500 000.                            15

       (2)    The emergency management plan must--                                      16
              (a) address and include the matters that are prescribed; and              17
              (b) be prepared--                                                         18
                     (i) so far as is reasonably practicable--in conjunction with       19
                         any of the emergency services that would be expected to        20
                         attend in the event of a significant incident involving the    21
                         operator's railway operations and any other person who is      22
                         prescribed; and                                                23
                    (ii) in accordance with the national regulations; and               24
              (c) be kept and maintained in accordance with the national                25
                   regulations; and                                                     26
              (d) be provided to the relevant emergency services and any other          27
                   person who is prescribed; and                                        28
              (e) be tested in accordance with the national regulations.                29

       (3)    A rail transport operator must ensure that the appropriate response       30
              measures of the emergency management plan are implemented if an           31
              emergency occurs.                                                         32
              Maximum penalty:                                                          33
              (a) in the case of an individual--$50 000;                                34
              (b) in the case of a body corporate--$500 000.                            35




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114    Health and fitness management program                                               1
             A rail transport operator must prepare and implement a health and             2
             fitness program for rail safety workers who carry out rail safety work in     3
             relation to railway operations in respect of which the operator is            4
             required to be accredited that complies with the prescribed requirements      5
             relating to health and fitness programs.                                      6
             Maximum penalty:                                                              7
              (a) in the case of an individual--$50 000;                                   8
             (b) in the case of a body corporate--$500 000.                                9

115    Drug and alcohol management program                                                10

             A rail transport operator must prepare and implement a drug and alcohol      11
             management program for rail safety workers who carry out rail safety         12
             work in relation to railway operations in respect of which the operator      13
             is required to be accredited that complies with the prescribed               14
             requirements relating to drug and alcohol management programs.               15
             Maximum penalty:                                                             16
              (a) in the case of an individual--$50 000;                                  17
             (b) in the case of a body corporate--$500 000.                               18

116    Fatigue risk management program                                                    19

             A rail transport operator must prepare and implement a program, in           20
             accordance with the prescribed requirements, for the management of           21
             fatigue of rail safety workers who carry out rail safety work in relation    22
             to railway operations in respect of which the operator is required to be     23
             accredited that complies with the prescribed requirements relating to        24
             fatigue risk management programs.                                            25
             Maximum penalty:                                                             26
              (a) in the case of an individual--$50 000;                                  27
             (b) in the case of a body corporate--$500 000.                               28

Subdivision 4          Provisions relating to rail safety workers                         29

117    Assessment of competence                                                           30

       (1)   A rail transport operator must ensure that each rail safety worker who is    31
             to carry out rail safety work in relation to railway operations in respect   32
             of which the operator is required to be accredited has the competence to     33
             carry out that work.                                                         34
             Maximum penalty:                                                             35
              (a) in the case of an individual--$50 000;                                  36




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              (b)    in the case of a body corporate--$500 000.                               1

       (2)    For the purposes of subsection (1), the competence of a rail safety             2
              worker to carry out rail safety work--                                          3
              (a) must be assessed--                                                          4
                     (i) in accordance with the provisions of the AQTF and any                5
                          qualification and units of competence recognised under the          6
                          AQF applicable to that rail safety work; or                         7
                    (ii) if subparagraph (i) does not apply--in accordance with               8
                          any qualifications or competencies prescribed by the                9
                          national regulations; and                                          10
              (b) must be assessed by reference to the knowledge and skills of the           11
                    worker that would enable the worker to carry out the rail safety         12
                    work safely.                                                             13

       (3)    A certificate purporting to have been issued under the AQF to a rail           14
              safety worker certifying that the worker has certain qualifications or         15
              units of competence is evidence that the worker has those qualifications       16
              or units of competence.                                                        17

       (4)    Subsection (2) does not apply if--                                             18
              (a) it is not reasonably practicable for a rail transport operator to          19
                   assess the competence of a rail safety worker to carry out rail           20
                   safety work in relation to the operator's rail infrastructure or          21
                   rolling stock in accordance with that subsection; and                     22
              (b) the operator satisfies the Regulator that--                                23
                     (i) the worker has otherwise acquired the necessary                     24
                          qualifications and competencies applicable to that rail            25
                          safety work; and                                                   26
                    (ii) the worker has the knowledge and skills that would enable           27
                          the worker to carry out the rail safety work safely.               28

       (5)    Nothing in this section prevents a rail transport operator from requiring      29
              a rail safety worker to undertake further training before carrying out rail    30
              safety work.                                                                   31

       (6)    A rail transport operator must maintain records in accordance with the         32
              national regulations of the competence of rail safety workers who carry        33
              out rail safety work on or in relation to the operator's rail infrastructure   34
              or rolling stock.                                                              35
              Maximum penalty:                                                               36
              (a) in the case of an individual--$10 000;                                     37
              (b) in the case of a body corporate--$50 000.                                  38




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118    Identification of rail safety workers                                              1
       (1)   A rail transport operator must ensure that each rail safety worker who is    2
             to carry out rail safety work in relation to the operator's railway          3
             operations has a form of identification that is sufficient to enable the     4
             type of competence and training of the worker for that rail safety work      5
             to be checked by a rail safety officer.                                      6
             Maximum penalty:                                                             7
              (a) in the case of an individual--$10 000;                                  8
             (b) in the case of a body corporate--$50 000.                                9

       (2)   A rail safety worker who is carrying out rail safety work must, when        10
             requested by a rail safety officer to do so, produce the identification     11
             provided in accordance with subsection (1) to the officer.                  12
             Maximum penalty: $2 500.                                                    13

Subdivision 5          Other persons to comply with safety                               14
                       management system                                                 15

119    Other persons to comply with safety management system                             16

             A person, not being an employee employed to carry out railway               17
             operations, who undertakes railway operations on or in relation to rail     18
             infrastructure or rolling stock of a rail transport operator must comply    19
             with the safety management system of the rail transport operator to the     20
             extent that it applies to those railway operations.                         21
             Maximum penalty:                                                            22
              (a) in the case of an individual--$50 000;                                 23
             (b) in the case of a body corporate--$500 000.                              24

Division 7         Information about rail safety etc                                     25

120    Power of Regulator to obtain information from rail transport operators            26

       (1)   The Regulator may, by written notice given to a rail transport operator,    27
             require the operator to provide to the Regulator on or before a specified   28
             date and in a manner and form approved by the Regulator, 1 or more of       29
             the following:                                                              30
              (a) information concerning measures taken by the rail transport            31
                    operator to promote rail safety;                                     32
             (b) information concerning matters, including matters relating to the       33
                    financial capacity or insurance arrangements of the rail transport   34
                    operator, relating to rail safety or the accreditation of the rail   35
                    transport operator that the Regulator reasonably requires;           36




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              (c)    the information prescribed for the purposes of this subsection.        1

       (2)    A rail transport operator must comply with a notice given to the operator     2
              under subsection (1).                                                         3
              Maximum penalty:                                                              4
              (a) in the case of an individual--$10 000;                                    5
              (b) in the case of a body corporate--$50 000.                                 6

       (3)    A rail transport operator must provide to the Regulator, in a manner and      7
              form approved by the Regulator and at the prescribed times and in             8
              respect of the prescribed periods, information prescribed by the national     9
              regulations for the purposes of this subsection relating to rail safety or   10
              accreditation.                                                               11
              Maximum penalty:                                                             12
               (a) in the case of an individual--$10 000;                                  13
              (b) in the case of a body corporate--$50 000.                                14

Division 8           Investigating and reporting by rail transport                         15
                     operators                                                             16

121    Notification of certain occurrences                                                 17

       (1)    A rail transport operator must report to the Regulator or another            18
              authority specified by the Regulator within the time, and in the manner,     19
              prescribed by the national regulations, all notifiable occurrences that      20
              happen on, or in relation to, the operator's railway premises or railway     21
              operations.                                                                  22
              Maximum penalty:                                                             23
              (a) in the case of an individual--$20 000;                                   24
              (b) in the case of a body corporate--$100 000.                               25

       (2)    Two or more rail transport operators may make a joint report with            26
              respect to a notifiable occurrence affecting them.                           27

       (3)    In addition to the matters specified in subsection (1), the Regulator may,   28
              by written notice given to a rail transport operator, require the operator   29
              to report to the Regulator or another authority specified by the             30
              Regulator, any other occurrence or type of occurrence which endangers        31
              or could endanger the safe operation of any railway operations.              32

       (4)    A rail transport operator to whom a requirement under subsection (3)         33
              applies must comply with the requirement.                                    34
              Maximum penalty:                                                             35
              (a) in the case of an individual--$20 000;                                   36
              (b) in the case of a body corporate--$100 000.                               37



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       (5)   The Regulator may require information in a report under this section to      1
             be verified by statutory declaration.                                        2

122    Investigation of notifiable occurrences                                            3

       (1)   The Regulator may, by written notice given to a rail transport operator,     4
             require the operator to investigate notifiable occurrences, or any other     5
             occurrences that have endangered or may endanger the safe operation          6
             of the railway operations carried out by the operator.                       7

       (2)   The level of investigation must be determined by the severity and            8
             potential consequences of the notifiable occurrence as well as by other      9
             similar occurrences and its focus should be to determine the cause and      10
             contributing factors, rather than to apportion blame.                       11

       (3)   The rail transport operator must ensure that the investigation is           12
             conducted in a manner approved by the Regulator and within the period       13
             specified by the Regulator.                                                 14
             Maximum penalty:                                                            15
             (a) in the case of an individual--$20 000;                                  16
             (b) in the case of a body corporate--$100 000.                              17

       (4)   A rail transport operator who has carried out an investigation under this   18
             section must report to the Regulator on the investigation in a manner       19
             specified by the Regulator within the period specified by the Regulator.    20
             Maximum penalty:                                                            21
             (a) in the case of an individual--$20 000;                                  22
             (b) in the case of a body corporate--$100 000.                              23

       (5)   However, information or a document provided by a rail transport             24
             operator in a report under this section is not admissible as evidence       25
             against the operator in civil or criminal proceedings other than            26
             proceedings arising out of the false or misleading nature of the            27
             information or document.                                                    28

Division 9         Drug and alcohol testing by Regulator                                 29

123    Testing for presence of drugs or alcohol                                          30

             A rail safety worker may be required to undertake a test for the presence   31
             of a drug or alcohol in accordance with this Law and the application        32
             Act.                                                                        33

124    Appointment of authorised persons                                                 34

       (1)   The Regulator may, by instrument in writing, appoint--                      35
             (a) a rail safety officer; or                                               36




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              (b)    a person with qualifications or experience considered by the            1
                     Regulator to be appropriate for the performance of relevant             2
                     functions under this Law and the application Act,                       3
              to be an authorised person for a term, and subject to the conditions,          4
              specified in the instrument.                                                   5
              Note. A person appointed under subsection (1)(b) need not be an employee of    6
              a government agency or instrumentality.                                        7

       (2)    The authority of an authorised person may be limited by the relevant           8
              instrument of appointment to a particular part of a participating              9
              jurisdiction, to a particular railway or to particular rail safety workers,   10
              or otherwise.                                                                 11

125    Identity cards                                                                       12

       (1)    The Regulator must give each authorised person appointed under                13
              section 124 an identity card that states the person's name and                14
              appointment as an authorised person and includes any other matter             15
              prescribed by the national regulations.                                       16

       (2)    An authorised person to whom an identity card has been issued must            17
              produce his or her identity card for inspection on request to a person        18
              required by the authorised person to submit to a test or to do any other      19
              thing under this Law or the application Act.                                  20

       (3)    If a person to whom an identity card has been issued ceases to be an          21
              authorised person, the person must return the identity card to the            22
              Regulator as soon as practicable.                                             23
              Maximum penalty: $5 000.                                                      24

126    Authorised person may require preliminary breath test or breath                      25
       analysis                                                                             26

       (1)    Subject to this section, an authorised person may at any time require a       27
              rail safety worker who--                                                      28
               (a) is about to carry out rail safety work; or                               29
              (b) is carrying out rail safety work; or                                      30
               (c) is attempting to carry out rail safety work; or                          31
              (d) is still on railway premises after carrying out rail safety work; or      32
               (e) without limiting a preceding paragraph--is involved in a                 33
                      prescribed notifiable occurrence,                                     34
              to submit to testing by means of a preliminary breath test or breath          35
              analysis (or both).                                                           36




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       (2)   For the purposes of making a requirement that a rail safety worker               1
             submit to a preliminary breath test or breath analysis, an authorised            2
             person may--                                                                     3
             (a) require the worker to provide the worker's name and residential              4
                   address; and                                                               5
             (b) give any other reasonable direction to the worker.                           6
             Example. An authorised person may (for example) direct the rail safety worker    7
             to accompany the authorised person and attend at a specified place for the       8
             purposes of carrying out the preliminary breath test or breath analysis.         9

       (3)   A rail safety worker must immediately comply with a direction given by          10
             an authorised person (whether under this section or the application Act)        11
             for the purpose of requiring the worker to submit to a preliminary breath       12
             test or breath analysis.                                                        13
             Maximum penalty: $10 000.                                                       14

       (4)   The application Act and regulations made under the application Act              15
             may prescribe the manner in which a preliminary breath test or breath           16
             analysis is to be conducted and may (for example) require that more             17
             than 1 sample of breath is to be provided for testing or analysis (and, in      18
             such a case, specify which reading of the apparatus or instrument will          19
             be taken to be the result of the preliminary breath test or breath analysis     20
             for the purposes of this Law, the application Act or any other Act).            21

127    Authorised person may require drug screening test, oral fluid analysis                22
       and blood test                                                                        23

       (1)   Subject to this section, an authorised person may at any time require a         24
             rail safety worker who--                                                        25
              (a) is about to carry out rail safety work; or                                 26
             (b) is carrying out rail safety work; or                                        27
              (c) is attempting to carry out rail safety work; or                            28
             (d) is still on railway premises after carrying out rail safety work; or        29
              (e) without limiting a preceding paragraph--is involved in a                   30
                     prescribed notifiable occurrence,                                       31
             to submit to a drug screening test, oral fluid analysis or blood test (or       32
             any combination of these).                                                      33

       (2)   For the purposes of making a requirement that a rail safety worker              34
             submit to a drug screening test, oral fluid analysis or blood test, an          35
             authorised person may--                                                         36
             (a) require the worker to provide the worker's name and residential             37
                   address; and                                                              38




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              (b)    give any other reasonable direction to the worker.                               1
              Example. An authorised person may (for example) direct the rail safety worker           2
              to accompany the authorised person and attend at a specified place for the              3
              purposes of carrying out the drug screening test, oral fluid analysis or blood test.    4

       (3)    A rail safety worker must immediately comply with a direction given by                  5
              an authorised person (whether under this section or the application Act)                6
              for the purpose of requiring the worker to submit to a drug screening                   7
              test, oral fluid analysis or blood test (or any combination of these).                  8
              Maximum penalty: $10 000.                                                               9

       (4)    The application Act and regulations made under the application Act                     10
              may prescribe the manner in which a drug screening test, oral fluid                    11
              analysis or blood test is to be conducted.                                             12

128    Offence relating to prescribed concentration of alcohol or prescribed                         13
       drug                                                                                          14

       (1)    A rail safety worker must not carry out, or attempt to carry out, rail                 15
              safety work--                                                                          16
              (a) while there is present in his or her blood the prescribed                          17
                     concentration of alcohol; or                                                    18
              (b) while a prescribed drug is present in his or her oral fluid or blood;              19
                     or                                                                              20
              (c) while so much under the influence of alcohol or a drug as to be                    21
                     incapable of effectively discharging a function or duty of a rail               22
                     safety worker.                                                                  23
              Maximum penalty: $10 000.                                                              24

       (2)    For the purposes of subsection (1)(c), a person is incapable of                        25
              effectively discharging a function or duty of a rail safety worker if,                 26
              owing to the influence of alcohol or a drug, the use of any mental or                  27
              physical faculty of that person is lost or appreciably impaired (but this              28
              subsection does not restrict in any way the operation of                               29
              subsection (1)(c)).                                                                    30

       (3)    Subject to subsection (4), it is a defence to a charge of an offence against           31
              subsection (1)(b) if the defendant proves that he or she did not                       32
              knowingly consume the prescribed drug present in his or her oral fluid                 33
              or blood.                                                                              34

       (4)    Subsection (3) does not apply if the defendant consumed the prescribed                 35
              drug believing that he or she was consuming a substance unlawfully but                 36
              was mistaken as to, unaware of, or indifferent to, the identity of the                 37
              prescribed drug.                                                                       38




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       (5)   For the purposes of this section--                                            1
             prescribed concentration of alcohol, in relation to a rail safety worker,     2
             means--                                                                       3
             (a) any concentration of alcohol in the blood; or                             4
             (b) if some other concentration of alcohol is prescribed in the               5
                    national regulations (being a specified amount of alcohol in           6
                    100 millilitres of blood) for the purposes of this definition--that    7
                    concentration;                                                         8
             prescribed drug means--                                                       9
             (a) any of the following substances:                                         10
                     (i) delta-9-tetrahydrocannabinol;                                    11
                    (ii) Methylamphetamine (Methamphetamine);                             12
                   (iii) 3,4-Methylenedioxymethylamphetamine (MDMA); and                  13
             (b) any other substance declared by the national regulations to be a         14
                    prescribed drug for the purposes of this section.                     15

129    Oral fluid or blood sample or results of analysis etc not to be used for           16
       other purposes                                                                     17

             A sample of oral fluid or blood taken under this Part or the application     18
             Act (and any other forensic material taken incidentally during a drug        19
             screening test, oral fluid analysis or blood test) must not be used for a    20
             purpose other than that contemplated by this Part or the application Act,    21
             in connection with the control or management of any work or activity         22
             associated with railway operations, or for the purpose of disciplinary       23
             proceedings against a rail safety worker.                                    24

Division 10        Train safety recordings                                                25

130    Interpretation                                                                     26

             In this Division--                                                           27
             train safety recording means a recording consisting of (or mainly of)        28
             sounds or images or data, or any combination of sounds, images or data,      29
             produced by a device installed in a train, signal box, train control         30
             complex or other railway premises for the purpose of recording               31
             activities carried out by rail safety workers in relation to the operation   32
             of a train.                                                                  33

131    Disclosure of train safety recordings                                              34

             A person must not publish or communicate to any person--                     35
             (a) a train safety recording or any part of a train safety recording; or     36




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              (b)   any information obtained from a train safety recording or any part          1
                    of a train safety recording,                                                2
              otherwise than in the course of an inquiry or an investigation into an            3
              accident or incident under this Part or for the purposes of, or in                4
              connection with--                                                                 5
              (c) criminal proceedings (not being criminal proceedings in which it              6
                    is not admissible), investigations relating to any such criminal            7
                    proceedings or investigations by or proceedings before a coroner;           8
                    or                                                                          9
              (d) civil proceedings in which an order is made under section 132; or            10
              (e) a disclosure or publication that is otherwise permitted under this           11
                    Law or an Act.                                                             12
              Maximum penalty:                                                                 13
              (a) in the case of an individual--$10 000;                                       14
              (b) in the case of a body corporate--$50 000.                                    15

132    Admissibility of evidence of train safety recordings in civil proceedings               16

       (1)    A train safety recording is not admissible in evidence in any civil              17
              proceedings against a rail safety worker.                                        18

       (2)    A party to civil proceedings may, at any time before the determination           19
              of the proceedings, apply to the court in which the proceedings have             20
              been instituted for an order that a train safety recording, or part of a train   21
              safety recording, be admissible in evidence in the proceedings.                  22

       (3)    If an application is made to a court under subsection (2), the court             23
              must--                                                                           24
               (a) examine the train safety recording; and                                     25
              (b) if satisfied that--                                                          26
                      (i) a material question of fact in the proceedings will not be           27
                           able to be properly determined from other evidence                  28
                           available to the court; and                                         29
                     (ii) the train safety recording, or a part of the train safety            30
                           recording, if admitted in evidence in the proceedings, will         31
                           assist in the proper determination of that material question        32
                           of fact; and                                                        33
                    (iii) in the circumstances of the case, the public interest in the         34
                           proper determination of that material question of fact              35




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                           outweighs the public interest in protecting the privacy of           1
                           rail safety workers,                                                 2
                    the court may order that the train safety recording, or that part of        3
                    the train safety recording, be admissible in evidence in the                4
                    proceedings.                                                                5

       (4)   If the court makes an order referred to in subsection (3), the train safety        6
             recording is (despite subsection (1)) admissible in evidence in the                7
             proceedings.                                                                       8
             Note. Part 6 of the Transport Safety Investigation Act 2003 of the                 9
             Commonwealth provides for limitations on the disclosure and use of train safety   10
             recordings in court proceedings.                                                  11

Division 11         Audit of railway operations by Regulator                                   12

133    Audit of railway operations by Regulator                                                13

       (1)   The Regulator--                                                                   14
             (a) may audit the railway operations of a rail transport operator; and            15
             (b) may prepare and implement a program (an audit program) for                    16
                  each year for inspecting the railway operations of rail transport            17
                  operators; and                                                               18
             (c) may, for the purposes of an audit, inspect the railway operations             19
                  of a rail transport operator, whether or not under an audit                  20
                  program.                                                                     21

       (2)   Without limiting subsection (1)(b), an audit program may focus on 1 or            22
             more of the following:                                                            23
             (a) particular rail transport operators;                                          24
             (b) particular criteria relating to rail transport operators;                     25
             (c) particular aspects of rail safety;                                            26
             (d) particular aspects of railway operations.                                     27

       (3)   The Regulator must give not less than 24 hours written notice to a rail           28
             transport operator before inspecting the operator's railway operations            29
             under this section.                                                               30

       (4)   The national regulations may establish procedures for the conduct of              31
             audits under this section, including procedures to ensure the                     32
             confidentiality of records.                                                       33

       (5)   In this section--                                                                 34
             rail transport operator includes a person, not being an employee,                 35
             engaged to carry out railway operations, who undertakes railway                   36
             operations on or in relation to rail infrastructure or rolling stock of a rail    37
             transport operator.                                                               38




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Part 4        Securing compliance                                                            1


Division 1           Guiding principle                                                       2

134    Guiding principle                                                                     3

              Enforcement of this Law should be undertaken for the purpose of--              4
              (a) protecting public safety; and                                              5
              (b) promoting improvement in rail safety; and                                  6
              (c) removing incentive for any unfair commercial advantage that                7
                    might be derived from contravening the rail safety requirements          8
                    under this Law; and                                                      9
              (d) influencing the attitude and behaviour of persons whose actions           10
                    may have adverse impacts on rail safety; and                            11
              (e) securing compliance with this Law through effective and                   12
                    appropriate compliance and enforcement measures.                        13

Division 2           Rail safety officers                                                   14

135    Appointment                                                                          15

       (1)    The Regulator may, by instrument in writing, appoint a person, or a           16
              person of a prescribed class, to be a rail safety officer for a term, and     17
              subject to the conditions, specified in the instrument.                       18
              Notes.                                                                        19
               1     A person appointed under subsection (1) need not be an employee of a   20
                     government agency or instrumentality.                                  21
               2     A person appointed under subsection (1) may be a police officer of a   22
                     participating jurisdiction.                                            23

       (2)    Without limiting the conditions to which the appointment of a rail safety     24
              officer may be subject, a condition may specify 1 or more of the              25
              following:                                                                    26
               (a) functions under this Law that may not be exercised by the officer;       27
              (b) the only functions under this Law that may be exercised by the            28
                     officer;                                                               29
               (c) the circumstances or manner in which a function under this Law           30
                     may be performed by the officer.                                       31

136    Identity cards                                                                       32

       (1)    The Regulator must give each rail safety officer an identity card that        33
              states the person's name and appointment as a rail safety officer and         34
              includes any other matter prescribed by the national regulations.             35




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       (2)   A rail safety officer must produce his or her identity card for inspection      1
             on request when exercising a function under this Law.                           2

       (3)   If a person to whom an identity card has been issued ceases to be a rail        3
             safety officer, the person must return the identity card to the Regulator       4
             as soon as practicable.                                                         5
             Maximum penalty: $5 000.                                                        6

137    Accountability of rail safety officers                                                7

       (1)   A rail safety officer must give written notice to the Regulator of all          8
             interests, pecuniary or otherwise, that the officer has, or acquires, and       9
             that conflict or could conflict with the proper exercise of the officer's      10
             functions.                                                                     11

       (2)   The Regulator must give a direction to a rail safety officer not to deal,      12
             or to no longer deal, with a matter if the Regulator becomes aware that        13
             the officer has a potential conflict of interest in relation to a matter and   14
             the Regulator considers that the officer should not deal, or should no         15
             longer deal, with the matter.                                                  16

138    Suspension and ending of appointment of rail safety officers                         17

       (1)   The Regulator may suspend or end the appointment of a rail safety              18
             officer.                                                                       19

       (2)   A person's appointment as a rail safety officer ends when the person           20
             ceases to be eligible for appointment as a rail safety officer.                21

Division 3         Regulator has functions and powers of rail safety                        22
                   officers                                                                 23

139    Regulator has functions and powers of rail safety officers                           24

       (1)   The Regulator has all the functions and powers that a rail safety officer      25
             has under this Law.                                                            26

       (2)   Accordingly, a reference in this Law to a rail safety officer includes a       27
             reference to the Regulator.                                                    28

Division 4         Functions and powers of rail safety officers                             29

140    Functions and powers                                                                 30

             A rail safety officer has the following functions and powers under this        31
             Law:                                                                           32
             (a) to provide information and advice about compliance with this               33
                    Law;                                                                    34




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              (b)    to require compliance with this Law through the issuing of               1
                     notices;                                                                 2
              (c)    to investigate contraventions of this Law and assist in the              3
                     prosecution of offences;                                                 4
              (d)    other functions or powers conferred by the national regulations.         5

141    Conditions on rail safety officers' powers                                             6

              A rail safety officer's powers under this Law are subject to any                7
              conditions specified in the instrument of the officer's appointment.            8

142    Rail safety officers subject to Regulator's directions                                 9

       (1)    A rail safety officer is subject to the directions of the Regulator in the     10
              exercise of his or her powers under this Law.                                  11

       (2)    A direction under subsection (1) may be of a general nature or may             12
              relate to a specified matter or specified class of matter.                     13

Division 5           Powers relating to entry                                                14

Subdivision 1              General powers of entry                                           15

143    Powers of entry                                                                       16

       (1)    A rail safety officer may at any time enter a place that is, or that the       17
              officer reasonably suspects is, railway premises.                              18

       (2)    If a rail safety officer enters a place under subsection (1) and it is not     19
              railway premises, the officer must leave the place immediately.                20

       (3)    A rail safety officer may enter a place that adjoins railway premises if       21
              the entry is urgently required for the purpose of dealing with a railway       22
              accident or incident.                                                          23

       (4)    An entry may be made under subsection (1) or (3) with or without the           24
              consent of the person with control or management of the place.                 25

       (5)    A rail safety officer may enter any place if the entry is authorised by a      26
              search warrant.                                                                27
              Note. A rail safety officer may enter residential premises to gain access to   28
              railway premises--see section 153(c).                                          29

144    Notification of entry                                                                 30

       (1)    A rail safety officer may enter a place under section 143 without prior        31
              notice to any person.                                                          32

       (2)    A rail safety officer must, as soon as practicable after entry to a place      33
              that is, or that the officer reasonably suspects is, railway premises, take    34




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             all reasonable steps to notify the person with control or management of        1
             the place.                                                                     2

       (3)   However, a rail safety officer is not required to notify any person if to      3
             do so would defeat the purpose for which the place was entered or cause        4
             unreasonable delay.                                                            5

145    General powers on entry                                                              6

       (1)   A rail safety officer who enters a place under section 143 may do any of       7
             the following:                                                                 8
              (a) inspect, examine and make inquiries at the place;                         9
             (b) inspect and examine any thing (including a document) at the               10
                    place;                                                                 11
              (c) bring to the place and use any equipment or materials that may be        12
                    required;                                                              13
             (d) enter or open, using reasonable force, rail infrastructure, rolling       14
                    stock, a road vehicle or other thing to examine the structure,         15
                    rolling stock, road vehicle or other thing;                            16
              (e) give directions with respect to the stopping or movement of any          17
                    rolling stock or road vehicle;                                         18
              (f) take measurements, make surveys and take levels and, for those           19
                    purposes, dig trenches, break up the soil and set up any posts,        20
                    stakes or markers;                                                     21
             (g) conduct tests and make sketches or recordings (including                  22
                    photographs, films, audio, video, digital or other recordings);        23
             (h) mark, tag or otherwise identify rolling stock, a road vehicle or          24
                    other thing;                                                           25
              (i) seize any thing (including a document) at the place if the officer       26
                    reasonably believes the thing is evidence of an offence against        27
                    this Law;                                                              28
              (j) take and remove for analysis, testing or examination a sample of         29
                    any substance or thing without paying for it;                          30
             (k) require a person at the place to give the officer reasonable help to      31
                    exercise the officer's powers under paragraphs (a) to (j);             32
              (l) exercise any power that is reasonably necessary to be exercised          33
                    by the officer for the purposes of this Law.                           34

       (2)   A film, photograph, video or digital recording, or other image, taken         35
             under subsection (1)(g) of rail infrastructure, or of any part of rail        36
             infrastructure, is not inadmissible as evidence by reason only of the fact    37
             that it includes the likeness of 1 or more persons if the capturing of that   38




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              likeness is incidental to the taking of the film, photograph, video or          1
              digital recording, or other image.                                              2

       (3)    A person required to give reasonable help under subsection (1)(k) must          3
              not, without reasonable excuse, fail to comply with the requirement.            4
              Maximum penalty:                                                                5
              (a) in the case of an individual--$10 000;                                      6
              (b) in the case of a body corporate--$50 000.                                   7

       (4)    Subsection (3) places an evidential burden on the accused to show a             8
              reasonable excuse.                                                              9

       (5)    In this section--                                                              10
              reasonable help includes--                                                     11
               (a) assistance to enable the rail safety officer to find and gain access      12
                     to electronically stored material and information; and                  13
              (b) unloading rolling stock; and                                               14
               (c) running the engine of a locomotive; and                                   15
              (d) driving a train; and                                                       16
               (e) giving the rail safety officer assistance to enter any rail               17
                     infrastructure or any part of rail infrastructure, or open rolling      18
                     stock or any part of rolling stock.                                     19

146    Persons assisting rail safety officers                                                20

       (1)    A person (the assistant), including an interpreter, may accompany a rail       21
              safety officer entering a place under this Part to assist the officer if the   22
              officer considers the assistance necessary.                                    23

       (2)    The assistant--                                                                24
              (a) may do such things at the place and in such manner as the rail             25
                    safety officer reasonably requires to assist the officer in the          26
                    exercise of his or her powers under this Law; but                        27
              (b) must not do anything that the officer does not have power to do,           28
                    except as permitted under a search warrant.                              29

       (3)    Anything done lawfully by the assistant is taken for all purposes to have      30
              been done by the rail safety officer.                                          31

147    Use of electronic equipment                                                           32

       (1)    Without limiting section 145, if--                                             33
              (a) a thing found in or on rolling stock or a road vehicle, or at a place,     34
                   is, or includes, a disk, tape or other device for the storage of          35
                   information; and                                                          36




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             (b)    the equipment in or on the rolling stock or road vehicle, or at the      1
                    place, may be used with the disk, tape or other device,                  2
             the rail safety officer, or a person assisting the officer, may operate the     3
             equipment to access the information.                                            4

       (2)   A rail safety officer, or a person assisting a rail safety officer, must not    5
             operate or seize equipment for the purpose mentioned in this section            6
             unless the officer or person assisting believes on reasonable grounds           7
             that the operation or seizure of the equipment can be carried out without       8
             damage to the equipment.                                                        9

148    Use of equipment to examine or process things                                        10

       (1)   Without limiting section 145, a rail safety officer exercising a power         11
             under this Part may bring to, onto, or into, rolling stock, a road vehicle     12
             or a place any equipment reasonably necessary for the examination or           13
             processing of things found at, on or in the rolling stock, road vehicle or     14
             place in order to determine whether they are things that may be seized.        15

       (2)   The rail safety officer, or a person assisting the officer, may operate        16
             equipment already in or on the rolling stock or road vehicle, or at the        17
             place, to carry out the examination or processing of a thing found in or       18
             on the rolling stock or road vehicle, or at the place in order to determine    19
             whether it is a thing that may be seized, if the officer or person assisting   20
             believes on reasonable grounds that--                                          21
             (a) the equipment is suitable for the examination or the processing;           22
                    and                                                                     23
             (b) the examination or processing can be carried out without damage            24
                    to the equipment.                                                       25

149    Securing a site                                                                      26

       (1)   For the purpose of protecting evidence that might be relevant for              27
             compliance or investigative purposes, an authorised officer may secure         28
             the perimeter of any site at a place by whatever means the authorised          29
             officer considers appropriate.                                                 30

       (2)   A person must not, without the permission of an authorised officer,            31
             enter or remain at a site the perimeter of which is secured under this         32
             section.                                                                       33
             Maximum penalty: $10 000.                                                      34

       (3)   Subsection (2) does not apply if the person enters the site, or remains at     35
             the site--                                                                     36
              (a) to ensure the safety of persons; or                                       37
             (b) to remove deceased persons or animals from the site; or                    38




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              (c)    to move a road vehicle, or the wreckage of a road vehicle, to a       1
                     safe place; or                                                        2
              (d)    to protect the environment from significant damage or pollution.      3

       (4)    An authorised officer must not unreasonably withhold a permission            4
              referred to in subsection (2).                                               5

       (5)    In this section--                                                            6
              authorised officer means a rail safety officer or a police officer.          7
              Note. See also Part 5 Division 3 which provides for the issue of a           8
              non-disturbance notice.                                                      9

Subdivision 2              Search warrants                                                10

150    Search warrants                                                                    11

       (1)    A rail safety officer may apply to a magistrate for a search warrant for    12
              a place.                                                                    13

       (2)    Subject to subsection (6), the application must be sworn and state the      14
              grounds on which the warrant is sought.                                     15

       (3)    The magistrate may refuse to consider the application until the rail        16
              safety officer gives the magistrate all the information the magistrate      17
              requires about the application in the way the magistrate requires.          18
              Example. The magistrate may require additional information supporting the   19
              application to be given by statutory declaration.                           20

       (4)    The magistrate may issue a search warrant only if the magistrate is         21
              satisfied there are reasonable grounds for suspecting--                     22
              (a) there is a particular thing or activity (the evidence) that may         23
                     provide evidence of an offence against this Law; and                 24
              (b) the evidence is, or may be within the next 72 hours, at the place.      25

       (5)    Subject to subsection (6), the search warrant must state--                  26
              (a) that a stated rail safety officer may, with necessary and               27
                    reasonable help and force, enter the place and exercise the powers    28
                    of the officer; and                                                   29
              (b) the offence for which the search warrant is sought; and                 30
              (c) the evidence that may be seized under the search warrant; and           31
              (d) the hours of the day or night when the place may be entered; and        32
              (e) the date, within 7 days after the search warrant's issue, the search    33
                    warrant ends.                                                         34

       (6)    A rail safety officer may apply to a magistrate for a search warrant by     35
              telephone, fax or other prescribed means if the officer considers the       36




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             urgency of the situation requires it and, in such a case, the following     1
             provisions will apply:                                                      2
             (a) the magistrate may complete and sign the warrant without the            3
                   provision of sworn evidence and without a written application         4
                   that states the grounds on which the warrant is sought if the         5
                   magistrate is satisfied that there are reasonable grounds for         6
                   issuing the warrant urgently;                                         7
             (b) if the magistrate completes and signs a warrant under                   8
                   paragraph (a), the magistrate must then tell the officer--            9
                     (i) the terms of the warrant (as contemplated by                   10
                          subsection (5)); and                                          11
                    (ii) the date on which, and the time at which, the warrant was      12
                          signed;                                                       13
             (c) if steps are taken under paragraph (b), the officer must then--        14
                     (i) complete a form of warrant in the same terms as the            15
                          warrant signed by the magistrate and write on the form--      16
                          (A) the name of the magistrate; and                           17
                          (B) the date on which, and the time at which, the warrant     18
                                 was signed; and                                        19
                    (ii) send the magistrate the completed form of warrant not later    20
                          than the day after the warrant is executed or comes to an     21
                          end;                                                          22
             (d) a form of warrant completed by an officer under paragraph (c)          23
                   has the same force and effect as a warrant signed by the             24
                   magistrate under subsections (4) and (5).                            25

151    Announcement before entry on warrant                                             26

       (1)   Before executing a search warrant, the rail safety officer named in the    27
             warrant or an assistant to the officer must--                              28
             (a) announce that he or she is authorised by the warrant to enter the      29
                   place; and                                                           30
             (b) give any person at the place an opportunity to allow that entry.       31

       (2)   However, the rail safety officer or an assistant to the officer need not   32
             comply with subsection (1) if he or she believes on reasonable grounds     33
             that immediate entry to the place is needed to ensure--                    34
              (a) the safety of any person; or                                          35
             (b) that the effective execution of the warrant is not frustrated.         36




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152    Copy of warrant to be given to person with control or management of                   1
       place                                                                                 2

              If the person who has or appears to have control or management of a            3
              place is present at the place when a search warrant is being executed, the     4
              rail safety officer must--                                                     5
               (a) identify himself or herself to that person by producing his or her        6
                     identity card for inspection; and                                       7
              (b) give that person a copy of the warrant.                                    8

Subdivision 3              Limitation on entry powers                                        9

153    Places used for residential purposes                                                 10

              Despite anything else in this Division, the powers of a rail safety officer   11
              under this Part in relation to entering a place are not exercisable in        12
              respect of any part of a place that is used only for residential purposes     13
              except--                                                                      14
               (a) with the consent of the person with control or management of the         15
                    place; or                                                               16
              (b) under the authority conferred by a search warrant; or                     17
               (c) for the sole purpose of gaining access to suspected railway              18
                    premises, but only--                                                    19
                     (i) if the officer reasonably believes that no reasonable              20
                           alternative access is available; and                             21
                    (ii) at a reasonable time, having regard to the times at which          22
                           the officer believes rail safety work is being carried out at    23
                           the place to which access is sought.                             24

Subdivision 4              Specific powers on entry                                         25

154    Power to require production of documents and answers to questions                    26

       (1)    A rail safety officer who enters a place under this Division may--            27
              (a) require a person to tell the officer who has custody of, or access        28
                     to, a document; or                                                     29
              (b) require a person who has custody of, or access to, a document to          30
                     produce that document to the officer while the officer is at the       31
                     place, or within a specified period; or                                32
              (c) require a person at the place to answer any questions put by the          33
                     officer.                                                               34




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       (2)   A requirement under subsection (1)(b) must be made by written notice         1
             unless the circumstances require the rail safety officer to have             2
             immediate access to the document.                                            3

       (3)   An interview conducted by a rail safety officer under subsection (1)(c)      4
             must be conducted in private if--                                            5
             (a) the rail safety officer considers it appropriate; or                     6
             (b) the person being interviewed so requests.                                7

       (4)   Subsection (3) does not limit the operation of section 146 or prevent a      8
             representative of the person being interviewed from being present at the     9
             interview.                                                                  10

       (5)   Subsection (3) may be invoked during an interview by--                      11
              (a) the rail safety officer; or                                            12
             (b) the person being interviewed,                                           13
             in which case the subsection applies to the remainder of the interview.     14

       (6)   A person must not, without reasonable excuse, fail to comply with a         15
             requirement under this section.                                             16
             Maximum penalty:                                                            17
              (a) in the case of an individual--$5 000;                                  18
             (b) in the case of a body corporate--$25 000.                               19

       (7)   Subsection (6) places an evidential burden on the accused to show a         20
             reasonable excuse.                                                          21

155    Abrogation of privilege against self-incrimination                                22

       (1)   A person is not excused from answering a question or providing              23
             information or a document under this Part on the ground that the answer     24
             to the question, or the information or document, may tend to incriminate    25
             the person or expose the person to a penalty.                               26

       (2)   However, the answer to a question or information or a document              27
             provided by an individual is not admissible as evidence against that        28
             individual in civil or criminal proceedings other than proceedings          29
             arising out of the false or misleading nature of the answer, information    30
             or document.                                                                31

156    Warning to be given                                                               32

       (1)   Before requiring a person to answer a question or provide information       33
             or a document under this Part, a rail safety officer must--                 34
             (a) identify himself or herself to the person as a rail safety officer by   35
                    producing the officer's identity card or in some other way; and      36




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              (b)    warn the person that failure to comply with the requirement or to     1
                     answer the question, without reasonable excuse, would constitute      2
                     an offence; and                                                       3
              (c)    warn the person about the effect of section 155; and                  4
              (d)    advise the person about the effect of section 245.                    5

       (2)    It is not an offence for an individual to refuse to answer a question put    6
              by a rail safety officer or provide information or a document to a rail      7
              safety officer under this Part on the ground that the question,              8
              information or document might tend to incriminate him or her, unless         9
              he or she was first given the warning in subsection (1)(c).                 10

       (3)    Nothing in this section prevents a rail safety officer from obtaining and   11
              using evidence given to the officer voluntarily by any person.              12

157    Power to copy and retain documents                                                 13

       (1)    A rail safety officer may--                                                 14
              (a) make copies of, or take extracts from, a document given to the          15
                     officer in accordance with a requirement under this Law; and         16
              (b) keep that document for the period that the officer considers            17
                     necessary.                                                           18

       (2)    While a rail safety officer retains custody of a document, the officer      19
              must permit the following persons to inspect or make copies of the          20
              document at all reasonable times:                                           21
              (a) the person who produced the document;                                   22
              (b) the owner of the document;                                              23
              (c) a person authorised by a person referred to in paragraph (a) or (b).    24

Subdivision 5              Powers to support seizure                                      25

158    Power to seize evidence etc                                                        26

       (1)    A rail safety officer who enters railway premises under section 143 may     27
              seize anything (including a document) at the premises if the officer        28
              reasonably believes the thing is evidence of an offence against this Law.   29

       (2)    A rail safety officer who enters a place with a search warrant may seize    30
              the evidence for which the warrant was issued.                              31

       (3)    A rail safety officer may also seize anything else at the place if the      32
              officer reasonably believes--                                               33
              (a) the thing is evidence of an offence against this Law; and               34
              (b) the seizure is necessary to prevent the thing being hidden, lost or     35
                     destroyed or used to continue or repeat the offence.                 36




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159    Directions relating to seizure                                                           1
       (1)   To enable a thing to be seized under this Part, a rail safety officer may          2
             direct the person in control of it--                                               3
             (a) to take it to a specified place within a specified time; and                   4
             (b) if necessary, to remain in control of it at the specified place for a          5
                    period specified in the direction.                                          6

       (2)   A direction under subsection (1)--                                                 7
             (a) must be given by signed written notice given to the person; or                 8
             (b) if for any reason it is not practicable to give a signed written               9
                   notice to the person--may be given orally and confirmed by                  10
                   signed written notice given to the person as soon as is practicable.        11

       (3)   A further direction may be made under this section about the thing if it          12
             is necessary and reasonable to make the further direction.                        13
             Example. A further direction may (for example) be that the thing be transported   14
             during stated off-peak hours, be transported along a particular route, or be      15
             transported in a particular way.                                                  16

       (4)   A person given a direction under subsection (1) or (3) must comply with           17
             that direction unless the person has a reasonable excuse.                         18
             Maximum penalty: $5 000.                                                          19

       (5)   Subsection (4) places an evidential burden on the accused to show a               20
             reasonable excuse.                                                                21

       (6)   Without limiting what may otherwise be a reasonable excuse under                  22
             subsection (4), it is a reasonable excuse for a person in control of a thing      23
             not to comply with a direction under subsection (1) or (3) if, in all the         24
             circumstances, the direction was unreasonable.                                    25

       (7)   In this section--                                                                 26
             in control, in relation to a thing, means having, or reasonably appearing         27
             to a rail safety officer as having, authority to exercise control over the        28
             thing.                                                                            29

160    Rail safety officer may direct a thing's return                                         30

       (1)   If a rail safety officer has directed a person to take a thing to a specified     31
             place within a specified time under section 159(1), a rail safety officer         32
             may direct the person to return the thing to the place from which it was          33
             taken.                                                                            34

       (2)   A person given a direction under subsection (1) must comply with that             35
             direction unless the person has a reasonable excuse.                              36
             Maximum penalty: $5 000.                                                          37




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       (3)    Subsection (2) places an evidential burden on the accused to show a             1
              reasonable excuse.                                                              2

161    Receipt for seized things                                                              3

       (1)    After a rail safety officer seizes a thing under this Part, the officer must    4
              give a receipt for it to the person from whom the thing was seized or the       5
              owner of the thing.                                                             6

       (2)    However, if for any reason it is not practicable to comply with                 7
              subsection (1), the rail safety officer must leave the receipt at the place     8
              of seizure in a conspicuous position and in a reasonably secure way.            9

       (3)    The receipt must describe generally the thing seized and its condition.        10

       (4)    This section does not apply if it would be impracticable or unreasonable       11
              to expect the rail safety officer to account for the thing, given its          12
              condition, nature and value.                                                   13

162    Forfeiture of seized things                                                           14

       (1)    A seized thing is forfeited to the Regulator if the Regulator--                15
              (a) cannot find the person entitled to the thing after making                  16
                    reasonable inquiries; or                                                 17
              (b) cannot return it to the person entitled to it, after making                18
                    reasonable efforts; or                                                   19
              (c) reasonably believes it is necessary to forfeit the thing to prevent        20
                    it being used to commit an offence against this Law.                     21

       (2)    Subsection (1)(a) does not require the Regulator to make inquiries if it       22
              would be unreasonable to make inquiries to find the person entitled to         23
              the thing.                                                                     24

       (3)    Subsection (1)(b) does not require the Regulator to make efforts if it         25
              would be unreasonable to make efforts to return the thing to the person        26
              entitled to it.                                                                27

       (4)    If the Regulator decides to forfeit the thing under subsection (1)(c), the     28
              Regulator must tell the person entitled to the thing of the decision by        29
              written notice.                                                                30

       (5)    Subsection (4) does not apply if--                                             31
              (a) the Regulator cannot find the person entitled to the thing, after          32
                   making reasonable inquiries; or                                           33
              (b) it is impracticable or would be unreasonable to give the notice.           34




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       (6)   The notice must state--                                                         1
             (a) the reasons for the decision; and                                           2
             (b) information about the right of review under Part 7.                         3

       (7)   In deciding whether and, if so, what inquiries and efforts are reasonable       4
             or whether it would be unreasonable to give notice about a thing, regard        5
             must be had to the thing's nature, condition and value.                         6

       (8)   Any costs reasonably incurred by the Regulator in storing or disposing          7
             of a thing forfeited under subsection (1)(c) may be recovered in a court        8
             of competent jurisdiction as a debt due to the Regulator from that              9
             person.                                                                        10

       (9)   In this section--                                                              11
             person entitled to a thing means the person from whom it was seized            12
             unless that person is not entitled to possess it in which case it means the    13
             owner of the thing.                                                            14

163    Return of seized things                                                              15

       (1)   If a seized thing has not been forfeited under this Part, the person           16
             entitled to the thing may apply to the Regulator for the return of the         17
             thing after the end of 6 months after it was seized.                           18

       (2)   The Regulator must return the thing to the applicant under                     19
             subsection (1) unless the Regulator has reasonable grounds to retain the       20
             thing.                                                                         21

       (3)   The Regulator may impose any conditions on the return of the thing             22
             under this section that the Regulator considers appropriate to eliminate       23
             or minimise any risk to rail safety related to the thing.                      24

       (4)   In this section--                                                              25
             person entitled to a thing means the person entitled to possess the thing      26
             or the owner of the thing.                                                     27

164    Access to seized thing                                                               28

       (1)   Until a seized thing is forfeited or returned under this Part, a rail safety   29
             officer must allow its owner to inspect it and, if it is a document, to copy   30
             it.                                                                            31

       (2)   Subsection (1) does not apply if it is impracticable or it would be            32
             unreasonable to allow the inspection or copying.                               33




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Division 6           Damage and compensation                                                    1

165    Damage etc to be minimised                                                               2

              In the exercise, or purported exercise, of a power under this Law, a rail         3
              safety officer must take all reasonable steps to ensure that the officer,         4
              and any assistant to the officer, cause as little inconvenience, detriment        5
              and damage as is practicable.                                                     6

166    Rail safety officer to give notice of damage                                             7

       (1)    This section applies if a rail safety officer or an assistant to a rail safety    8
              officer damages a thing when exercising or purporting to exercise a               9
              power under this Law.                                                            10

       (2)    The rail safety officer must, as soon as practicable, give written notice        11
              of the damage to the person whom the officer believes on reasonable              12
              grounds is the person in control of the thing.                                   13

       (3)    If the rail safety officer believes the damage was caused by a latent            14
              defect in the thing or circumstances beyond the officer's or assistant's         15
              control, the officer may state it in the notice.                                 16

       (4)    If, for any reason, it is impracticable to comply with subsection (2), the       17
              rail safety officer must leave the notice in a conspicuous position and in       18
              a reasonably secure way where the damage happened.                               19

       (5)    This section does not apply to damage the rail safety officer reasonably         20
              believes is trivial.                                                             21

167    Compensation                                                                            22

       (1)    A person may claim compensation from the Regulator if the person                 23
              incurs loss or expense because of the exercise or purported exercise of          24
              a power under Division 5.                                                        25

       (2)    Compensation may be claimed and ordered in a proceeding--                        26
              (a) brought in a court of competent jurisdiction; or                             27
              (b) for an offence against this Law brought against the person                   28
                  claiming compensation.                                                       29

       (3)    The court may order compensation to be paid only if it is satisfied it is        30
              just to make the order in the circumstances of the particular case.              31

       (4)    The national regulations may prescribe matters that may, or must, be             32
              taken into account by the court when considering whether it is just to           33
              make the order.                                                                  34




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Division 7         Other matters                                                            1

168    Power to require name and address                                                    2

       (1)   A rail safety officer may require a person to provide the person's name        3
             and residential address if--                                                   4
             (a) the officer finds the person committing an offence against this            5
                    Law; or                                                                 6
             (b) the officer finds the person in circumstances that lead, or has            7
                    information that leads, the officer to reasonably suspect the           8
                    person has committed an offence against this Law; or                    9
             (c) the officer reasonably believes that the person may be able to            10
                    assist in the investigation of an offence against this Law.            11

       (2)   When asking a person to provide the person's name and residential             12
             address, the rail safety officer must--                                       13
             (a) tell the person the reason for the requirement to provide the             14
                   person's name and residential address; and                              15
             (b) warn the person that it is an offence to fail to state that name and      16
                   residential address, unless the person has a reasonable excuse.         17

       (3)   If the rail safety officer reasonably believes that the name or residential   18
             address is false, the officer may require the person to give evidence of      19
             its correctness.                                                              20

       (4)   A person must not, without reasonable excuse, fail to comply with a           21
             requirement under subsection (1) or (3).                                      22
             Maximum penalty: $5 000.                                                      23

       (5)   Subsection (4) places an evidential burden on the accused to show a           24
             reasonable excuse.                                                            25

169    Rail safety officer may take affidavits                                             26

             A rail safety officer is authorised to take affidavits for any purpose        27
             relating or incidental to the exercise of his or her powers under this Law.   28

170    Attendance of rail safety officer at inquiries                                      29

             A rail safety officer may participate in any inquiry into the cause of any    30
             death or injury of a rail safety worker while carrying out rail safety        31
             work, or into any other incident or event relevant to safety at railway       32
             premises.                                                                     33

171    Directions may be given under more than 1 provision                                 34

       (1)   A rail safety officer may, on the same occasion, give directions under        35
             1 or more provisions of this Law.                                             36




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       (2)    Without limiting subsection (1), a rail safety officer may, in the course      1
              of exercising powers under a provision of this Law, give--                     2
              (a) further directions under the provision; or                                 3
              (b) directions under 1 or more other provisions of this Law,                   4
              or both.                                                                       5

Division 8           Offences in relation to rail safety officers                            6

172    Offence to hinder or obstruct rail safety officer                                     7

              A person must not intentionally hinder or obstruct a rail safety officer in    8
              exercising his or her powers under this Law, or induce or attempt to           9
              induce any other person to do so.                                             10
              Maximum penalty: $10 000.                                                     11

173    Offence to impersonate rail safety officer                                           12

              A person who is not a rail safety officer must not, in any way, hold          13
              himself or herself out to be a rail safety officer.                           14
              Maximum penalty: $10 000.                                                     15

174    Offence to assault, threaten or intimidate rail safety officer                       16

              A person must not directly or indirectly assault, threaten or intimidate,     17
              or attempt to assault, threaten or intimidate, a rail safety officer or a     18
              person assisting a rail safety officer.                                       19
              Maximum penalty:                                                              20
              (a) in the case of an individual--$50 000 or imprisonment for                 21
                     2 years, or both;                                                      22
              (b) in the case of a body corporate--$250 000.                                23


Part 5        Enforcement measures                                                          24


Division 1           Improvement notices                                                    25

175    Issue of improvement notices                                                         26

       (1)    This section applies if a rail safety officer reasonably believes that a      27
              person--                                                                      28
              (a) is contravening a provision of this Law; or                               29
              (b) has contravened a provision of this Law in circumstances that             30
                    make it likely that the contravention will continue or be repeated;     31
                    or                                                                      32




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             (c)   is carrying out or has carried out--                                      1
                    (i) railway operations that threaten safety; or                          2
                   (ii) other operations that threaten rail safety.                          3

       (2)   Subject to this section, the rail safety officer may issue an improvement       4
             notice requiring the person--                                                   5
             (a) to remedy the contravention; or                                             6
             (b) to prevent a likely contravention from occurring; or                        7
             (c) to remedy the things or operations causing the contravention or             8
                    likely contravention; or                                                 9
             (d) to carry out railway operations or other operations so that safety         10
                    is not threatened or likely to be threatened.                           11

       (3)   Before serving an improvement notice issued to a person on a ground            12
             stated in subsection (1)(a) or (b) that includes a direction that the person   13
             take specified action to remedy the contravention or prevent the likely        14
             contravention, or to remedy the things or operations causing the               15
             contravention or likely contravention, the Regulator must, if of the           16
             opinion that the action is likely to result in significant costs or expenses   17
             to the person or any other person--                                            18
              (a) conduct or cause to be conducted a cost-benefit analysis of the           19
                    effect of the action; and                                               20
             (b) consult with the Premier or Chief Minister, the Treasurer, and             21
                    any other Minister, of a participating jurisdiction whose area of       22
                    responsibility is likely to be affected by the action.                  23

       (4)   Before serving an improvement notice issued to a person on a ground            24
             stated in subsection (1)(c) that includes a direction that the person take     25
             specified action by which railway operations or other operations may be        26
             carried out so that safety is not threatened or likely to be threatened, the   27
             Regulator must, if of the opinion that the action is likely to result in       28
             significant costs or expenses to the person or any other person--              29
             (a) conduct or cause to be conducted a cost-benefit analysis of the            30
                    effect of the action; and                                               31
             (b) consult with the Premier or Chief Minister, the Treasurer, and             32
                    any other Minister, of a participating jurisdiction whose area of       33
                    responsibility is likely to be affected by the action.                  34

       (5)   Subsections (3) and (4) do not apply if the Regulator considers it             35
             necessary to take immediate action in the interests of safety but, if the      36
             action is likely to result in significant costs or expenses to the person or   37




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              any other person, the Regulator must, as soon as practicable after taking    1
              the action--                                                                 2
               (a) conduct or cause to be conducted a cost-benefit analysis of the         3
                     effect of the action; and                                             4
              (b) consult with the Premier or Chief Minister, the Treasurer, and           5
                     any other Minister, of a participating jurisdiction whose area of     6
                     responsibility is likely to be affected by the action.                7

176    Contents of improvement notices                                                     8

       (1)    An improvement notice must--                                                 9
              (a) if the notice relates to a contravention or likely contravention of     10
                    this Law--                                                            11
                     (i) state that the rail safety officer believes the person--         12
                          (A) is contravening a provision of this Law; or                 13
                           (B) has contravened a provision of this Law in                 14
                                  circumstances that make it likely that the              15
                                  contravention will continue or be repeated; and         16
                    (ii) state the provision the officer believes is being, or has        17
                           been, contravened; and                                         18
                   (iii) briefly, state how the provision is being, or has been,          19
                           contravened; and                                               20
                   (iv) state the day before which the person is required to remedy       21
                           the contravention or likely contravention; and                 22
              (b) in any other case--                                                     23
                     (i) state that the rail safety officer believes the person is        24
                           carrying out or has carried out--                              25
                          (A) railway operations that threaten safety; or                 26
                           (B) other operations that threaten rail safety; and            27
                    (ii) briefly, state how--                                             28
                          (A) the railway operations are threatening, or have             29
                                  threatened, safety; or                                  30
                           (B) the other operations are threatening, or have              31
                                  threatened, rail safety; and                            32
                   (iii) state the day before which the person is required to carry       33
                           out railway operations or other operations so that safety is   34
                           not threatened or likely to be threatened; and                 35
              (c) if a cost-benefit analysis has been carried out under section 175,      36
                    set out the results of that analysis; and                             37
              (d) set out the penalty for non-compliance with the notice; and             38




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             (e)   include information about the right to a review under Part 7 of the       1
                   decision to serve the notice; and                                         2
             (f)   state that the notice is served under this section.                       3

       (2)   An improvement notice served on a person on a ground stated in                  4
             section 175(1)(a) or (b) may include directions concerning the action to        5
             be taken to remedy the contravention or prevent the likely                      6
             contravention, or the things or operations causing the contravention or         7
             likely contravention, to which the notice relates.                              8

       (3)   An improvement notice served on a person on the ground stated in                9
             section 175(1)(c) may include directions concerning the action to be           10
             taken by which railway operations or other operations to which the             11
             notice relates may be carried out so that safety is not threatened or likely   12
             to be threatened.                                                              13

       (4)   The day stated for compliance with the improvement notice must be              14
             reasonable in all the circumstances.                                           15

177    Compliance with improvement notice                                                   16

             The person to whom an improvement notice is issued must comply with            17
             the notice within the period specified in the notice.                          18
             Maximum penalty:                                                               19
              (a) in the case of an individual--$50 000;                                    20
             (b) in the case of a body corporate--$500 000.                                 21

178    Extension of time for compliance with improvement notices                            22

       (1)   This section applies if a person has been issued with an improvement           23
             notice.                                                                        24

       (2)   A rail safety officer may, by written notice given to the person, extend       25
             the compliance period for the improvement notice.                              26

       (3)   However, the rail safety officer may only extend the compliance period         27
             if the period has not ended.                                                   28

       (4)   In this section--                                                              29
             compliance period means the period stated in the improvement notice            30
             under section 176, and includes that period as extended under this             31
             section.                                                                       32




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Division 2           Prohibition notices                                                          1

179    Issue of prohibition notice                                                                2

       (1)    This section applies if a rail safety officer reasonably believes that--            3
              (a) an activity is occurring in relation to railway operations or                   4
                    railway premises that involves or will involve an immediate risk              5
                    to safety; or                                                                 6
              (b) an activity may occur in relation to railway operations or railway              7
                    premises that, if it occurs, will involve an immediate risk to                8
                    safety; or                                                                    9
              (c) an activity may occur at, on, or in, the immediate vicinity of rail            10
                    infrastructure or rolling stock that, if it occurs, will involve an          11
                    immediate risk to safety.                                                    12

       (2)    The rail safety officer may issue a prohibition notice to a person who             13
              has, or appears to have, control over the activity prohibiting the carrying        14
              on of the activity, or the carrying on of the activity in a specified way,         15
              until a rail safety officer is satisfied that the matters that give or will give   16
              rise to the risk have been remedied.                                               17

       (3)    A prohibition notice may be issued orally, but must be confirmed by                18
              written notice given to the person as soon as practicable.                         19

180    Contents of prohibition notice                                                            20

       (1)    A prohibition notice must--                                                        21
              (a) state that the rail safety officer believes that grounds for the issue         22
                    of the prohibition notice exist and the basis for that belief; and           23
              (b) briefly, state the activity that the officer believes involves or will         24
                    involve the risk and the matters that give or will give rise to the          25
                    risk; and                                                                    26
              (c) state the provision (if any) of this Law that the officer believes is          27
                    being, or is likely to be, contravened by that activity; and                 28
              (d) set out the penalty for contravening the notice; and                           29
              (e) include information about the right to a review under Part 7 of the            30
                    decision to serve the notice; and                                            31
              (f) state that the notice is served under this section.                            32

       (2)    A prohibition notice may include directions on the measures to be taken            33
              to remedy the risk, activities or matters to which the notice relates, or          34
              the contravention or likely contravention mentioned in                             35
              subsection (1)(c).                                                                 36

       (3)    A direction in a prohibition notice may offer the person on whom the               37
              notice has been served a choice of ways to remedy the risk, activities or          38



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             matters to which the notice relates, or the contravention or likely             1
             contravention mentioned in subsection (1)(c).                                   2

       (4)   Without limiting section 179, a prohibition notice that prohibits the           3
             carrying on of an activity in a specified way may do so by specifying           4
             1 or more of the following:                                                     5
             (a) a place, or part of a place, at which the activity is not to be carried     6
                   out;                                                                      7
             (b) any thing that is not to be used in connection with the activity;           8
             (c) any procedure that is not to be followed in connection with the             9
                   activity.                                                                10

181    Compliance with prohibition notice                                                   11

             The person to whom a direction is given under this Division or a               12
             prohibition notice is issued must comply with the direction or notice.         13
             Maximum penalty:                                                               14
             (a) in the case of an individual--$150 000;                                    15
             (b) in the case of a body corporate--$1 500 000.                               16

Division 3         Non-disturbance notices                                                  17

182    Issue of non-disturbance notice                                                      18

             A rail safety officer may issue a non-disturbance notice to the person         19
             with control or management of railway premises if the officer                  20
             reasonably believes that it is necessary to do so to facilitate the exercise   21
             of his or her powers under this Law.                                           22

183    Contents of non-disturbance notice                                                   23

       (1)   A non-disturbance notice may require the person to--                           24
             (a) preserve the site at which a notifiable occurrence has occurred for        25
                  a specified period; or                                                    26
             (b) prevent the disturbance of a particular site (including the                27
                  operation of plant) in other circumstances for a specified period         28
                  that is reasonable in the circumstances.                                  29

       (2)   A non-disturbance notice must specify the period (of no more than              30
             7 days) for which it applies and set out--                                     31
             (a) the obligations of the person to whom the notice is issued; and            32
             (b) the measures to be taken to preserve a site or prevent disturbance         33
                   of a site; and                                                           34




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              (c)    information about the right to a review under Part 7 of the               1
                     decision to serve the notice; and                                         2
              (d)    the penalty for contravening the notice.                                  3

       (3)    In subsection (1), a reference to a site includes any plant, substance,          4
              structure or thing associated with the site.                                     5

       (4)    A non-disturbance notice does not prevent any action--                           6
              (a) to assist an injured person; or                                              7
              (b) to remove a deceased person; or                                              8
              (c) that is essential to make the site safe or prevent a further incident;       9
                   or                                                                         10
              (d) that is associated with a police investigation; or                          11
              (e) in respect of which a rail safety officer has given permission.             12

184    Compliance with non-disturbance notice                                                 13

       (1)    A person must not, without reasonable excuse, fail to comply with a             14
              non-disturbance notice issued to the person.                                    15
              Maximum penalty:                                                                16
              (a) in the case of an individual--$20 000;                                      17
              (b) in the case of a body corporate--$100 000.                                  18

       (2)    Subsection (1) places an evidential burden on the accused to show a             19
              reasonable excuse.                                                              20

185    Issue of subsequent notices                                                            21

              If a rail safety officer considers it necessary to do so, he or she may issue   22
              1 or more subsequent non-disturbance notices to a person, whether               23
              before or after the expiry of the previous notice, each of which must           24
              comply with section 183.                                                        25

Division 4           General requirements applying to notices                                 26

186    Application of Division                                                                27

              In this Division--                                                              28
              notice means an improvement notice, or a prohibition notice or                  29
              non-disturbance notice.                                                         30

187    Notice to be in writing                                                                31

       (1)    Subject to subsection (2), a notice must be in writing.                         32

       (2)    A prohibition notice may be issued orally, but must be confirmed by             33
              written notice as soon as practicable.                                          34



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188    Directions in notices                                                                 1
             A direction included in an improvement notice or prohibition notice             2
             may--                                                                           3
             (a) refer to an approved code of practice; and                                  4
             (b) offer the person to whom it is issued a choice of ways in which to          5
                   remedy the contravention.                                                 6

189    Recommendations in notice                                                             7

       (1)   An improvement         notice   or    prohibition     notice   may   include    8
             recommendations.                                                                9

       (2)   It is not an offence to fail to comply with recommendations in an              10
             improvement notice or a prohibition notice.                                    11

190    Variation or cancellation of notice by rail safety officer                           12

       (1)   A rail safety officer may make minor changes to a notice--                     13
             (a) for clarification; or                                                      14
             (b) to correct errors or references; or                                        15
             (c) to reflect changes of address or other circumstances.                      16

       (2)   A rail safety officer may extend the compliance period for an                  17
             improvement notice in accordance with section 178.                             18

       (3)   A rail safety officer may cancel a notice.                                     19

191    Formal irregularities or defects in notice                                           20

             A notice is not invalid merely because of--                                    21
             (a) a formal defect or irregularity in the notice unless the defect or         22
                   irregularity causes or is likely to cause substantial injustice; or      23
             (b) a failure to use the correct name of the person to whom the notice         24
                   is issued if the notice sufficiently identifies the person and is        25
                   issued or given to the person in accordance with section 192.            26

192    Serving notices                                                                      27

       (1)   A notice may be served on a person--                                           28
             (a) in accordance with section 258; or                                         29
             (b) by leaving it for the person at the railway premises to which the          30
                   notice relates with a person who is or appears to be the person          31
                   with control or management of the premises; or                           32
             (c) in a prescribed manner.                                                    33




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       (2)    The national regulations may prescribe--                                    1
              (a) the manner of serving a notice; and                                     2
              (b) the steps a person on whom a notice is served must take to bring        3
                    it to the attention of other persons.                                 4

Division 5           Remedial action                                                      5

193    When Regulator may carry out action                                                6

       (1)    This section applies if a person to whom a prohibition notice is issued     7
              fails to take reasonable steps to comply with the notice.                   8

       (2)    The Regulator may take any remedial action the Regulator believes           9
              reasonable to make the railway premises or situation safe after giving     10
              written notice to the person to whom the prohibition notice was issued     11
              of--                                                                       12
               (a) the Regulator's intention to take that action; and                    13
              (b) the owner's or person's liability for the costs of that action.        14

194    Power of Regulator to take other remedial action                                  15

       (1)    This section applies if the Regulator reasonably believes that--           16
              (a) circumstances in which a prohibition notice can be issued exist;       17
                    and                                                                  18
              (b) a prohibition notice cannot be issued at railway premises              19
                    because, after taking reasonable steps, the person with control or   20
                    management of the premises cannot be found.                          21

       (2)    The Regulator may take any remedial action necessary to make the           22
              railway premises safe.                                                     23

195    Costs of remedial or other action                                                 24

              The Regulator may recover the reasonable costs of any remedial action      25
              taken under--                                                              26
               (a) section 193 from the person to whom the notice is issued; or          27
              (b) section 194 from any person to whom the prohibition notice             28
                     could have been issued in respect of the matter,                    29
              as a debt due to the Regulator.                                            30




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Division 6         Injunctions                                                                1

196    Application of Division                                                                2

             In this Division--                                                               3
             notice means an improvement notice, or a prohibition notice or                   4
             non-disturbance notice.                                                          5

197    Injunctions for non-compliance with notices                                            6

       (1)   The Regulator may apply to the court for an injunction--                         7
             (a) compelling a person to comply with a notice; or                              8
             (b) restraining a person from contravening a notice.                             9

       (2)   The Regulator may do so--                                                       10
             (a) whether or not proceedings have been brought for an offence                 11
                  against this Law in connection with any matter in respect of               12
                  which the notice was issued; and                                           13
             (b) whether any period for compliance with the notice has expired.              14

Division 7         Miscellaneous                                                             15

198    Response to certain reports                                                           16

       (1)   The Regulator may, if of the opinion as a result of a report to which this      17
             section applies that action is necessary for the purpose of the safe            18
             construction or operation of a railway, direct a rail transport operator,       19
             by written notice, to install on or with respect to the infrastructure of the   20
             railway, or on or with respect to rolling stock, within the time specified      21
             in the notice, safety or protective systems, devices, equipment or              22
             appliances specified in the notice.                                             23

       (2)   A direction under this section must state the reasons why the Regulator         24
             considers it is necessary for the rail transport operator to take the action    25
             specified in the direction and include information about the right of           26
             review under Part 7.                                                            27

       (3)   If the action specified to be taken in a direction is, in the opinion of the    28
             Regulator, likely to result in significant costs or expenses to the rail        29
             transport operator, the Regulator must, before giving the direction--           30
              (a) conduct or cause to be conducted a cost-benefit analysis of the            31
                    effect of taking the action; and                                         32
             (b) consult with the Premier or Chief Minister, the Treasurer, and              33
                    any other Minister, of a participating jurisdiction whose area of        34
                    responsibility is likely to be affected by the action.                   35




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       (4)    A rail transport operator must not, without reasonable excuse, fail to        1
              comply with a direction under this section.                                   2
              Maximum penalty:                                                              3
              (a) in the case of an individual--$150 000;                                   4
              (b) in the case of a body corporate--$1 500 000.                              5

       (5)    Subsection (4) places an evidential burden on the accused to show a           6
              reasonable excuse.                                                            7

       (6)    A report to which this section applies is--                                   8
              (a) a report (including any recommendations) following an inquest             9
                    held by a coroner under an Act of a participating jurisdiction; or     10
              (b) a report of an investigation held under the Transport Safety             11
                    Investigation Act 2003 of the Commonwealth; or                         12
              (c) any other report of an investigation into a matter relating to rail      13
                    safety.                                                                14

199    Power to require works to stop                                                      15

       (1)    A person (other than a rail transport operator) must, before carrying out    16
              any works near a railway that threaten, or are likely to threaten--          17
              (a) the safety of the railway; or                                            18
              (b) the operational integrity of the railway,                                19
              notify the relevant rail infrastructure manager of the intention to carry    20
              out those works.                                                             21
              Maximum penalty:                                                             22
              (a) in the case of an individual--$20 000;                                   23
              (b) in the case of a body corporate--$100 000.                               24

       (2)    If--                                                                         25
               (a) a person is carrying out, or proposes to carry out, works near a        26
                     railway; and                                                          27
              (b) the Regulator believes on reasonable grounds that the works              28
                     threaten, or are likely to threaten--                                 29
                      (i) the safety of the railway; or                                    30
                     (ii) the operational integrity of the railway,                        31
              the Regulator may, by written notice, give the person a direction to stop,   32
              alter or not to commence the work.                                           33




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       (3)   If--                                                                           1
              (a) a rail transport operator is carrying out, or proposes to carry out,      2
                    railway operations on or near land on which there is                    3
                    infrastructure, or works, of a utility; and                             4
             (b) the Regulator believes on reasonable grounds that the railway              5
                    operations threaten, or are likely to threaten--                        6
                     (i) the safety of the utility infrastructure or works; or              7
                    (ii) the safe provision by the utility of water, gas or electricity     8
                            or other like services,                                         9
             the Regulator may, by written notice, give the operator a direction to        10
             stop, alter or not to commence the railway operations.                        11

       (4)   A person who is given a notice under subsection (2) or (3) must comply        12
             with the direction set out in the notice unless the person has a reasonable   13
             excuse.                                                                       14
             Maximum penalty:                                                              15
             (a) in the case of an individual--$20 000;                                    16
             (b) in the case of a body corporate--$100 000.                                17

       (5)   If a person carries out work in contravention of subsection (1) or a          18
             direction given under subsection (2) or (3), the Regulator may, by            19
             written notice, direct a person who has the care, control or management       20
             of the land where the infrastructure or works are situated to alter,          21
             demolish or take away the work within a reasonable time specified in          22
             the notice.                                                                   23

       (6)   A person who is given a notice under subsection (5) must comply with          24
             the requirement unless the person has a reasonable excuse.                    25
             Maximum penalty:                                                              26
              (a) in the case of an individual--$10 000;                                   27
             (b) in the case of a body corporate--$50 000.                                 28

       (7)   Subsections (4) and (6) place an evidential burden on the accused to          29
             show a reasonable excuse.                                                     30

       (8)   A notice under this section must--                                            31
             (a) include information about the right to a review under Part 7 of the       32
                   decision to serve the notice; and                                       33
             (b) state that the notice is served under this section.                       34




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200    Temporary closing of railway crossings, bridges etc                                    1
       (1)    An authorised officer may close temporarily or regulate a railway               2
              crossing, bridge, subway or other structure for crossing or passing over        3
              or under a railway if satisfied it is necessary because of an immediate         4
              threat to safety.                                                               5

       (2)    If an authorised officer decides to close temporarily or regulate a             6
              railway crossing, bridge, subway or other structure, the authorised             7
              officer must, as soon as practicable after its closure or regulation, notify    8
              the person or authority responsible for the railway crossing, bridge,           9
              subway or other structure of its closure or regulation.                        10

       (3)    In this section--                                                              11
              authorised officer means--                                                     12
               (a) a person who holds a specific authority from the Regulator for the        13
                     purposes of this section; or                                            14
              (b) a person who holds a specific authority issued by an accredited            15
                     person for the purposes of this section.                                16

201    Use of force                                                                          17

              A power conferred by this Law to enter railway premises, or to do              18
              anything in or on railway premises, may not be exercised unless the rail       19
              safety officer or a person assisting a rail safety officer proposing to        20
              exercise the power, uses no more force than is reasonably necessary to         21
              effect the entry or to do the thing for which the entry is effected.           22

202    Power to use force against persons to be exercised only by police                     23
       officers                                                                              24

              A provision in this Law that authorises a person to use reasonable force       25
              does not authorise a person who is not a police officer to use force           26
              against another person.                                                        27


Part 6        Exemptions                                                                     28


Division 1           Ministerial exemptions                                                  29

203    Ministerial exemptions                                                                30

       (1)    The Minister may, after consultation with the Regulator, by notice in the      31
              Gazette, grant exemptions from this Law or specified provisions of this        32
              Law in respect of railway operations carried out, or proposed to be            33
              carried out, in this jurisdiction--                                            34
              (a) to a person specified by the Minister; or                                  35
              (b) in relation to a railway specified by the Minister.                        36




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       (2)   The Minister may grant an exemption under subsection (1)--                   1
             (a) on conditions specified in the notice; and                               2
             (b) for a period (not exceeding 3 months) specified in the notice.           3

       (3)   The Minister may, at any time, by further notice in the Gazette--            4
             (a) vary or revoke an exemption; or                                          5
             (b) vary or revoke a condition of an exemption.                              6

       (4)   A person who has been granted an exemption under this section who            7
             contravenes a condition imposed on the exemption is guilty of an             8
             offence.                                                                     9
             Maximum penalty:                                                            10
             (a) in the case of an individual--$20 000;                                  11
             (b) in the case of a body corporate--$100 000.                              12

Division 2         Exemptions granted by Regulator                                       13

Subdivision 1           Interpretation                                                   14

204    Interpretation                                                                    15

             In this Division--                                                          16
             designated provision of this Law means a provision of--                     17
              (a) Part 3 Division 4; or                                                  18
             (b) Part 3 Division 5; or                                                   19
              (c) Part 3 Division 6 Subdivision 3.                                       20

Subdivision 2           Procedures for conferring exemptions                             21

205    Application for exemption                                                         22

       (1)   A rail transport operator may apply to the Regulator for an exemption       23
             from a designated provision of this Law in respect of specified railway     24
             operations carried out, or proposed to be carried out, by or on behalf of   25
             the operator.                                                               26

       (2)   An application must be made in the manner and form approved by the          27
             Regulator and--                                                             28
             (a) must specify the scope and nature of the railway operations in          29
                  respect of which an exemption is sought; and                           30
             (b) if the railway operations include the operation or movement of          31
                  rolling stock on a railway--must include details about the             32
                  operation or movement of rolling stock; and                            33




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              (c)    must contain the prescribed information; and                          1
              (d)    must be accompanied by the prescribed application fee.                2

       (3)    The Regulator may require a rail transport operator who has applied for      3
              an exemption--                                                               4
              (a) to supply further information requested by the Regulator; and            5
              (b) to verify by statutory declaration any information supplied to the       6
                    Regulator.                                                             7

206    What applicant must demonstrate                                                     8

              The Regulator must not grant an exemption to an applicant unless             9
              satisfied that the applicant has demonstrated--                             10
              (a) that the applicant is, or is to be, a rail infrastructure manager or    11
                     rolling stock operator in relation to the railway operations in      12
                     respect of which the exemption is sought; and                        13
              (b) that the applicant--                                                    14
                       (i) has the financial capacity, or has public risk insurance       15
                            arrangements, to meet reasonable potential accident           16
                            liabilities arising from the railway operations; and          17
                      (ii) has complied with the requirements prescribed by the           18
                            national regulations (if any) for the purposes of this        19
                            section.                                                      20

207    Determination of application                                                       21

       (1)    Subject to this section, the Regulator must, within the relevant period--   22
              (a) if the Regulator is satisfied as to the matters referred to in          23
                    section 206--notify the applicant that an exemption from a            24
                    designated provision of this Law has been granted, with or            25
                    without conditions or restrictions; or                                26
              (b) if the Regulator is not so satisfied--notify the applicant that the     27
                    application has been refused.                                         28

       (2)    An exemption under this Division is subject to--                            29
              (a) any conditions or restrictions prescribed by the national               30
                   regulations for the purposes of this section that are applicable to    31
                   the exemption; and                                                     32
              (b) any other condition or restriction imposed on the exemption by          33
                   the Regulator.                                                         34

       (3)    Notification under this section--                                           35
              (a) must be in writing and given to the applicant; and                      36




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             (b)    if the exemption has been granted, must specify--                      1
                     (i) the prescribed details of the applicant; and                      2
                    (ii) the scope and nature of the railway operations, and the           3
                            manner in which they are to be carried out, in respect of      4
                            which the exemption is granted; and                            5
                   (iii) any condition or restriction imposed by the Regulator             6
                            under this section on the exemption; and                       7
                   (iv) any other prescribed information; and                              8
             (c)    if a condition or restriction has been imposed on the exemption,       9
                    must include--                                                        10
                     (i) the reasons for imposing the condition or restriction; and       11
                    (ii) information about the right of review under Part 7; and          12
             (d)    if the application has been refused must include--                    13
                     (i) the reasons for the decision to refuse to grant the              14
                            application; and                                              15
                    (ii) information about the right of review under Part 7; and          16
             (e)    if the relevant period in relation to an application has been         17
                    extended, must include information about the right of review          18
                    under Part 7.                                                         19

       (4)   In this section--                                                            20
             relevant period, in relation to an application, means--                      21
              (a) 6 months after the application was received by the Regulator; or        22
             (b) if the Regulator requested further information, 6 months, or such        23
                    other period, as is agreed between the Regulator and the              24
                    applicant, after the Regulator receives the last information so       25
                    requested; or                                                         26
              (c) if the Regulator, by written notice given to the applicant before       27
                    the expiry of the relevant 6 months, specifies another period, that   28
                    period,                                                               29
             whichever is the longer.                                                     30

Subdivision 3          Variation of an exemption                                          31

208    Application for variation of an exemption                                          32

       (1)   A rail transport operator who has been granted an exemption under this       33
             Division may, at any time, apply to the Regulator for a variation of the     34
             exemption.                                                                   35




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       (2)    A rail transport operator who has been granted an exemption under this       1
              Division must apply to the Regulator for a variation of the exemption        2
              if--                                                                         3
               (a) the applicant proposes to vary the scope and nature of the railway      4
                     operations in respect of which the exemption has been granted; or     5
              (b) any other variation is proposed in respect of the railway                6
                     operations in respect of which the exemption has been granted         7
                     that should be reflected in the exemption.                            8

       (3)    An application for variation must be made in the manner and form             9
              approved by the Regulator and--                                             10
              (a) must specify the details of the variation being sought; and             11
              (b) must contain the prescribed information; and                            12
              (c) must be accompanied by the prescribed application fee.                  13

       (4)    The Regulator may require an applicant for a variation--                    14
              (a) to supply further information requested by the Regulator; and           15
              (b) to verify by statutory declaration any information supplied to the      16
                   Regulator.                                                             17

209    Determination of application for variation                                         18

       (1)    Subject to this section, the Regulator must, within the relevant period--   19
              (a) if the Regulator is satisfied as to the matters referred to in          20
                    section 206 (so far as they are applicable to the proposed            21
                    variation)--notify the applicant that the exemption has been          22
                    varied, with or without conditions or restrictions; or                23
              (b) if the Regulator is not so satisfied--notify the applicant that the     24
                    application has been refused.                                         25

       (2)    Notification under this section--                                           26
              (a) must be in writing and given to the applicant; and                      27
              (b) if the exemption has been varied, must specify--                        28
                      (i) the prescribed details of the applicant; and                    29
                     (ii) the variation to the exemption so far as it applies to the      30
                           scope and nature of the railway operations, or the manner      31
                           in which they are to be carried out; and                       32
                    (iii) any conditions and restrictions imposed by the Regulator        33
                           on the exemption as varied; and                                34
                    (iv) any other prescribed information; and                            35




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             (c)   if a condition or restriction has been imposed on the exemption         1
                   as varied, must include--                                               2
                    (i) the reasons for imposing the condition or restriction; and         3
                   (ii) information about the right of review under Part 7; and            4
             (d)   if the application has been refused, must include--                     5
                    (i) the reasons for the decision to refuse to grant the                6
                           application; and                                                7
                   (ii) information about the right of review under Part 7; and            8
             (e)   if the relevant period in relation to an application has been           9
                   extended, must include information about the right of review           10
                   under Part 7.                                                          11

       (3)   In this section--                                                            12
             relevant period, in relation to an application, means--                      13
              (a) 6 months after the application was received by the Regulator; or        14
             (b) if the Regulator requested further information, 6 months, or such        15
                    other period, as is agreed between the Regulator and the              16
                    applicant, after the Regulator receives the last information so       17
                    requested; or                                                         18
              (c) if the Regulator, by written notice given to the applicant before       19
                    the expiry of the relevant 6 months, specifies another period, that   20
                    period,                                                               21
             whichever is the longer.                                                     22

210    Prescribed conditions and restrictions                                             23

             An exemption granted to a rail transport operator that is varied under       24
             this Division is subject to any conditions or restrictions prescribed by     25
             the national regulations that are applicable to the exemption as varied.     26

211    Variation of conditions and restrictions                                           27

       (1)   A rail transport operator who has been granted an exemption under this       28
             Division may, at any time, apply to the Regulator for a variation of a       29
             condition or restriction imposed by the Regulator to which the               30
             exemption is subject.                                                        31

       (2)   An application for variation of a condition or restriction must be made      32
             as if it were an application for variation of an exemption (and              33
             section 208 applies accordingly).                                            34

       (3)   The Regulator must consider the application and, if satisfied as to the      35
             matters referred to in sections 206 and 207 (so far as they are applicable   36
             to the proposed variation), notify the applicant in accordance with the      37




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              provisions of this Division applicable to the granting of an exemption         1
              (so far as is practicable) that the variation has been granted or refused.     2

       (4)    Notification under subsection (3) that a variation has been refused must       3
              include the reasons for the decision to refuse to grant the variation and      4
              information about the right of review under Part 7.                            5

212    Regulator may make changes to conditions or restrictions                              6

       (1)    The Regulator may, subject to this section, at any time, vary or revoke        7
              a condition or restriction imposed by the Regulator on an exemption            8
              granted to a rail transport operator under this Division or impose a new       9
              condition or restriction.                                                     10

       (2)    Before taking action under this section, the Regulator must--                 11
              (a) give the rail transport operator written notice of the action that the    12
                    Regulator proposes to take; and                                         13
              (b) allow the operator to make written representations about the              14
                    intended action within 28 days (or any other period that the            15
                    Regulator and the operator agree on); and                               16
              (c) consider any representations made under paragraph (b) and not             17
                    withdrawn.                                                              18

       (3)    The Regulator must, by written notice given to the rail transport             19
              operator, provide--                                                           20
              (a) details of any action taken under this section; and                       21
              (b) a statement of reasons for any action taken under this section; and       22
              (c) information about the right of review under Part 7.                       23

Subdivision 4              Revocation or suspension of an exemption                         24

213    Revocation or suspension of an exemption                                             25

       (1)    This section applies in respect of a rail transport operator who has been     26
              granted an exemption under this Division if--                                 27
              (a) the Regulator considers that the operator--                               28
                      (i) is no longer able to demonstrate to the satisfaction of the       29
                           Regulator the matters referred to in section 206 or to           30
                           satisfy the conditions, or to comply with the restrictions, of   31
                           the exemption; or                                                32
                     (ii) is not managing the rail infrastructure, or is not operating      33
                           rolling stock in relation to any rail infrastructure, to which   34
                           the exemption relates and has not done so for at least the       35
                           preceding 12 months; or                                          36
              (b) the operator contravenes this Law.                                        37




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       (2)   The Regulator may--                                                          1
             (a) suspend the exemption for a period determined by the Regulator;          2
                  or                                                                      3
             (b) revoke the exemption with immediate effect or with effect from           4
                  a specified future date; or                                             5
             (c) impose conditions or restrictions on the exemption; or                   6
             (d) vary conditions or restrictions to which the exemption is subject.       7

       (3)   Before making a decision under subsection (2), the Regulator--               8
             (a) must notify the rail transport operator in writing--                     9
                    (i) that the Regulator is considering making a decision under        10
                         subsection (2) of the kind, and for the reasons, specified in   11
                         the notice; and                                                 12
                   (ii) that the person may, within 28 days or such longer period        13
                         as is specified in the notice, make written representations     14
                         to the Regulator showing cause why the decision should          15
                         not be made; and                                                16
             (b) must consider any representations made under paragraph (a)(ii)          17
                   and not withdrawn.                                                    18

       (4)   If the Regulator suspends or revokes the exemption, the Regulator must      19
             include in the notice of suspension or revocation the reasons for the       20
             suspension or revocation and information about the right of review          21
             under Part 7.                                                               22

       (5)   The Regulator may withdraw a suspension of the exemption by written         23
             notice given to the rail transport operator.                                24

Subdivision 5          Penalty for breach of condition or restriction                    25

214    Penalty for breach of condition or restriction                                    26

             A rail transport operator who has been granted an exemption under this      27
             Division must not contravene a condition or restriction of the exemption    28
             applying under this Division.                                               29
             Maximum penalty:                                                            30
             (a) in the case of an individual--$20 000;                                  31
             (b) in the case of a body corporate--$100 000.                              32




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Part 7        Review of decisions                                                                1

215    Reviewable decisions                                                                      2

       (1)    The following table sets out--                                                     3
              (a) decisions made under this Law that are reviewable in accordance                4
                    with this Part (reviewable decisions); and                                   5
              (b) who is eligible to apply for review of a reviewable decision (the              6
                    eligible person in relation to the reviewable decision).                     7


              Item Provision under which                   Eligible person in relation to
                   reviewable decision is made             reviewable decision
              1      Section 67 (refusal to accredit or  A rail transport operator whose
                     imposing conditions or restrictions application for accreditation is
                     on accreditation)                   refused or is subject to conditions
                                                         or restrictions
              2      Section 67 (extending the period      A rail transport operator who has
                     for determining an application)       applied for accreditation
              3      Section 69 (refusal to grant         A rail transport operator whose
                     variation of accreditation or        application for variation of
                     imposing a condition or restriction) accreditation is refused
              4      Section 69 (grant of variation of     A rail transport operator whose
                     accreditation subject to conditions   accreditation is varied subject to
                     or restrictions)                      a condition or restriction
              5      Section 69 (extending the period      A rail transport operator who has
                     for determining an application for    applied for variation of
                     variation)                            accreditation
              6      Section 71 (refusal to grant          A rail transport operator whose
                     variation of a condition or           application for variation of a
                     restriction of accreditation)         condition or restriction is refused
              7      Section 72 (variation or revocation A rail transport operator whose
                     of a condition or restriction, or   conditions or restrictions of
                     imposition of a new condition or    accreditation are changed
                     restriction)
              8      Section 73 (revocation or             A rail transport operator whose
                     suspension of accreditation)          accreditation is revoked or
                                                           suspended
              9      Section 74 (immediate suspension) A rail transport operator whose
                                                       accreditation is suspended
              10     Section 74 (extension of immediate A rail transport operator whose
                     suspension)                        accreditation is suspended




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           Item Provision under which                   Eligible person in relation to
                reviewable decision is made             reviewable decision
           11      Section 75 (surrender of             An accredited person whose
                   accreditation)                       application for surrender of
                                                        accreditation has been refused
           12      Section 86 (refusal to register or  A rail infrastructure manager
                   imposing conditions or restrictions whose application for registration
                   on registration)                    is refused or is subject to
                                                       conditions or restrictions
           13      Section 86 (extending the period     A rail infrastructure manager
                   for determining an application)      who has applied for registration
           14      Section 88 (refusal to grant         A rail infrastructure manager
                   variation of registration or         whose application for variation
                   imposing a condition or restriction) of registration is refused
           15      Section 88 (grant of variation of     A rail infrastructure manager
                   registration subject to conditions or whose registration is varied
                   restrictions)                         subject to a condition or
                                                         restriction
           16      Section 88 (extending the period     A rail infrastructure manager
                   for determining an application for   who has applied for variation of
                   variation)                           registration
           17      Section 90 (refusal to grant         A rail infrastructure manager
                   variation of a condition or          whose application for variation
                   restriction of registration)         of a condition or restriction is
                                                        refused
           18      Section 91 (variation or revocation A rail infrastructure manager
                   of a condition or restriction, or   whose conditions or restrictions
                   imposition of a new condition or    of registration are changed
                   restriction)
           19      Section 92 (revocation or            A rail infrastructure manager
                   suspension of registration)          whose registration is revoked or
                                                        suspended
           20      Section 93 (immediate suspension) A rail infrastructure manager
                                                     whose registration is suspended
           21      Section 93 (extension of immediate A rail infrastructure manager
                   suspension)                        whose registration is suspended
           22      Section 94 (surrender of             A registered person whose
                   registration)                        application for surrender of
                                                        registration has been refused
           23      Section 104 (direction to amend      A rail transport operator given a
                   safety management system)            direction to amend a safety
                                                        management system



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              Item Provision under which                  Eligible person in relation to
                   reviewable decision is made            reviewable decision
              24     Section 162 (forfeiture of seized    A person who is entitled to the
                     thing)                               thing
              25     Section 175 (decision to serve an    A person on whom an
                     improvement notice)                  improvement notice is served
                                                          A rail transport operator whose
                                                          interests are affected by the
                                                          decision
              26     Section 178 (extension of time for   A person on whom an
                     compliance with improvement          improvement notice is served
                     notice)                              A rail transport operator whose
                                                          interests are affected by the
                                                          decision
              27     Section 179 (decision to serve a     A person on whom a prohibition
                     prohibition notice)                  notice is served
                                                          A rail transport operator whose
                                                          interests are affected by the
                                                          decision
              28     Section 182 (decision to serve a     A person on whom a
                     non-disturbance notice)              non-disturbance notice is served
                                                          A rail transport operator whose
                                                          interests are affected by the
                                                          decision
              29     Section 185 (decision to issue     A person on whom a subsequent
                     subsequent non-disturbance notice) non-disturbance notice is served
                                                        A rail transport operator whose
                                                        interests are affected by the
                                                        decision
              30     Section 198 (direction to take       A rail transport operator given a
                     specified action following report)   direction to take specified action
              31     Section 199 (decision to serve       A person given a direction to
                     notice giving a direction)           stop, alter or not to commence
                                                          works on or near a railway
                                                          A rail transport operator given a
                                                          direction to stop, alter or not to
                                                          commence railway operations
                                                          A person given a direction to
                                                          alter, demolish or take away
                                                          work




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             Item Provision under which                    Eligible person in relation to
                  reviewable decision is made              reviewable decision
             32      Section 205 (refusal to exempt or A rail transport operator whose
                     imposing conditions or restrictions application for exemption is
                     on exemption)                       refused or is subject to conditions
                                                         or restrictions
             33      Section 205 (extending the period     A rail transport operator who has
                     for determining an application)       applied for an exemption
             34      Section 209 (refusal to grant      A rail transport operator whose
                     variation of exemption or imposing application for variation of an
                     a condition or restriction)        exemption is refused
             35      Section 209 (grant of variation of A rail transport operator whose
                     exemption subject to conditions or exemption is varied subject to a
                     restrictions)                      condition or restriction
             36      Section 209 (extending the period     A rail transport operator who has
                     for determining an application for    applied for variation of an
                     variation)                            exemption
             37      Section 211 (refusal to grant         A rail transport operator whose
                     variation of a condition or           application for variation of a
                     restriction of exemption)             condition or restriction is refused
             38      Section 212 (variation or             A rail transport operator whose
                     revocation of a condition or          conditions or restrictions of an
                     restriction, or imposition of a new   exemption are changed
                     condition or restriction)
             39      Section 213 (revocation or            A rail transport operator whose
                     suspension of exemption)              exemption is revoked or
                                                           suspended

       (2)   Unless the contrary intention appears, a reference in this Part to a                 1
             decision includes a reference to--                                                   2
             (a) include information about the right to a review under Part 7 of the              3
                   decision to serve the notice; or                                               4
             (b) state that the notice is served under this section; or                           5
             (c) making, suspending, revoking or refusing to make a                               6
                   determination or decision; or                                                  7
             (d) giving, suspending, revoking or refusing to give a direction,                    8
                   approval, consent or permission; or                                            9
             (e) issuing, suspending, revoking or refusing to issue an                           10
                   accreditation or a registration, or to grant an exemption; or                 11
              (f) imposing a condition; or                                                       12
             (g) making a declaration, demand or requirement; or                                 13




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              (h)    retaining, or refusing to deliver up, an article; or                     1
               (i)   doing or refusing to do any other act or thing.                          2

       (3)    In this section--                                                               3
              person entitled to a thing means the person from whom it was seized             4
              unless that person is not entitled to possess it, in which case it means the    5
              owner of the thing.                                                             6

216    Review by Regulator                                                                    7

       (1)    An eligible person--                                                            8
              (a) in relation to a reviewable decision made by the Regulator--may,            9
                    within 28 days after the decision was made, apply to the                 10
                    Regulator for a review of the decision;                                  11
              (b) in relation to a reviewable decision other than a decision made by         12
                    the Regulator--may apply to the Regulator for review of the              13
                    decision within--                                                        14
                     (i) 28 days after the day on which the decision first came to           15
                           the eligible person's notice; or                                  16
                    (ii) such longer period as the Regulator allows.                         17

       (2)    The Regulator may appoint a person to review decisions on applications         18
              under subsection (1)(a) (who must not be the person who made the               19
              decision the subject of the review).                                           20

       (3)    An application for a review must be in the form approved (in writing)          21
              by the Regulator.                                                              22

       (4)    If an application is made to the Regulator in accordance with this             23
              section, the Regulator may make a decision--                                   24
               (a) to affirm or vary the reviewable decision; or                             25
              (b) to set aside the reviewable decision and substitute another                26
                    decision that the Regulator considers appropriate.                       27

       (5)    The Regulator must give a written notice to the applicant setting out--        28
               (a) the Regulator's decision under subsection (4) and the reasons for         29
                    the decision; and                                                        30
              (b) the findings on material questions of fact that led to the decision,       31
                    referring to the evidence or other material on which those               32
                    findings were based,                                                     33
              and must do so within 14 days after the application is made or, if the         34
              reviewable decision was made under Division 1, Division 2 or                   35
              Division 3 of Part 5, within 7 days after the application is made.             36




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        (6)   If the Regulator has not notified an applicant of a decision in accordance     1
              with subsection (5), the Regulator is taken to have made a decision to         2
              affirm the reviewable decision.                                                3

        (7)   An application under this section does not affect the operation of the         4
              reviewable decision or prevent the taking of any action to implement it        5
              unless the Regulator, on the Regulator's own initiative or on the              6
              application of the applicant for review, stays the operation of the            7
              decision (not being an immediate suspension of accreditation or                8
              registration, or a prohibition notice) pending the determination of the        9
              review.                                                                       10

        (8)   The Regulator must make a decision on an application for a stay by the        11
              end of the next business day following the day on which the application       12
              is made.                                                                      13

        (9)   If the Regulator has not made a decision in accordance with                   14
              subsection (8), the Regulator is taken to have made a decision to grant       15
              a stay.                                                                       16

       (10)   The Regulator may attach any conditions to a stay of the operation of a       17
              reviewable decision that the Regulator considers appropriate.                 18

217    Appeals                                                                              19

        (1)   A person may appeal to the court against--                                    20
               (a) a reviewable decision made by the Regulator; or                          21
              (b) a decision made, or taken to have been made, by the Regulator             22
                      under section 216 in respect of a reviewable decision (including      23
                      a decision concerning a stay of the operation of the reviewable       24
                      decision),                                                            25
              if the person is an eligible person in relation to the reviewable decision.   26

        (2)   An appeal must be instituted within 28 days of the making of the              27
              decision appealed against.                                                    28


Part 8        General liability and evidentiary provisions                                  29


Division 1          Legal proceedings                                                       30

Subdivision 1           General matters                                                     31

218    Period within which proceedings for offences may be commenced                        32

        (1)   This section applies to an offence against this Law, other than--             33
              (a) an offence prescribed by the national regulations for the purposes        34
                    of this section; or                                                     35




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              (b)    an offence in respect of which proceedings may only be                  1
                     commenced within a period of less than 2 years after its alleged        2
                     commission.                                                             3

       (2)    Despite anything to the contrary in an Act, proceedings for an offence         4
              against this Law to which this section applies may be commenced                5
              within--                                                                       6
              (a) the period of 2 years after commission of the alleged offence; or          7
              (b) if evidence of an alleged offence comes to light as a result of an         8
                     inquiry by a prescribed authority--within 1 year after the report       9
                     of the inquiry is published; or                                        10
              (c) if a rail safety undertaking has been given in relation to the            11
                     offence--within 6 months after--                                       12
                      (i) the undertaking is contravened; or                                13
                     (ii) it comes to the notice of the Regulator that the undertaking      14
                            has been contravened; or                                        15
                    (iii) the Regulator has agreed under section 256 to the                 16
                            withdrawal of the undertaking.                                  17

       (3)    A proceeding for a Category 1 offence may be brought after the end of         18
              the applicable limitation period in subsection (2) if fresh evidence          19
              relevant to the offence is discovered and the court is satisfied that the     20
              evidence could not reasonably have been discovered within the relevant        21
              limitation period.                                                            22

       (4)    In this section--                                                             23
              prescribed authority means--                                                  24
               (a) a coroner of a participating jurisdiction; or                            25
              (b) a commission of inquiry (by whatever name) established under a            26
                     law of a participating jurisdiction; or                                27
               (c) any other relevant authority established under a law of a                28
                     participating jurisdiction.                                            29

219    Multiple contraventions of rail safety duty provision                                30

       (1)    Two or more contraventions of a rail safety duty provision by a person        31
              that arise out of the same factual circumstances may be charged as a          32
              single offence or as separate offences.                                       33

       (2)    This section does not authorise contraventions of 2 or more rail safety       34
              duty provisions to be charged as a single offence.                            35

       (3)    A single penalty only may be imposed in respect of 2 or more                  36
              contraventions of a rail safety duty provision that are charged as a single   37
              offence.                                                                      38




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       (4)   In this section--                                                              1
             rail safety duty provision means a provision of Part 3 Division 3.             2

220    Authority to take proceedings                                                        3

       (1)   Any legal proceedings to recover any charge, fee or money due under            4
             this Law or the national regulations in this jurisdiction may be taken         5
             only by the Minister or the Regulator, or by a person authorised by the        6
             Minister or the Regulator for the purpose, either generally or in any          7
             particular case.                                                               8

       (2)   Any legal proceedings for an offence against this Law or the national          9
             regulations in this jurisdiction may be taken only by the Minister or the     10
             Regulator, or by a person authorised by the Minister or the Regulator for     11
             the purpose, either generally or in any particular case.                      12

       (3)   In any proceedings referred to in this section, the production of an          13
             authority or consent purporting to be signed by the Minister or the           14
             Regulator is to be evidence of the authority or consent without proof of      15
             the signature of the Minister or the Regulator.                               16

       (4)   The Minister or the Regulator may, for the purposes of this section,          17
             authorise any person who is a member of a specified class of persons to       18
             take the actions referred to in this section.                                 19

Subdivision 2          Imputing conduct to bodies corporate                                20

221    Imputing conduct to bodies corporate                                                21

       (1)   For the purposes of this Law, any conduct engaged in on behalf of a           22
             body corporate by an employee, agent or officer of the body corporate         23
             acting within the actual or apparent scope of his or her employment, or       24
             within his or her actual or apparent authority, is conduct also engaged       25
             in by the body corporate.                                                     26

       (2)   If an offence under this Law requires proof of knowledge, intention or        27
             recklessness, it is sufficient in proceedings against a body corporate for    28
             that offence to prove that the person referred to in subsection (1) had the   29
             relevant knowledge, intention or recklessness.                                30

       (3)   If for an offence against this Law mistake of fact is relevant to             31
             determining liability, it is sufficient in proceedings against a body         32
             corporate for that offence if the person referred to in subsection (1)        33
             made that mistake of fact.                                                    34




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Subdivision 3              Records and evidence                                               1

222    Records and evidence from records                                                      2

       (1)    A certificate purporting to be signed by the Regulator and certifying           3
              that--                                                                          4
               (a) on a date specified in the certificate; or                                 5
              (b) during any period so specified,                                             6
              the particulars set out in the certificate as to any matter required to be      7
              recorded in the National Rail Safety Register under section 42 did or did       8
              not appear on or from the Register is, for the purposes of any legal            9
              proceedings, evidence of what it certifies.                                    10

       (2)    Such a certificate is admissible in any proceedings--                          11
              (a) without proof of the signature of the Regulator; and                       12
              (b) without production of any record or document on which the                  13
                    certificate is founded.                                                  14

223    Certificate evidence                                                                  15

              A statement in a certificate purporting to be issued by the Regulator, a       16
              rail safety officer or a police officer as to any matter that appears in, or   17
              can be calculated from, records kept or accessed by the Regulator is           18
              admissible in any proceedings and is evidence of the matter.                   19

224    Proof of appointments and signatures unnecessary                                      20

       (1)    For the purposes of this Law and the national regulations, it is not           21
              necessary to prove the appointment of an office holder.                        22

       (2)    For the purposes of this Law, a signature purporting to be the signature       23
              of an office holder is evidence of the signature it purports to be.            24

       (3)    In this section--                                                              25
              office holder means--                                                          26
               (a) a member of ONRSR; or                                                     27
              (b) the head of the police force or police service of any participating        28
                     jurisdiction; or                                                        29
               (c) a rail safety officer; or                                                 30
              (d) an authorised person; or                                                   31
               (e) a police officer of a participating jurisdiction.                         32




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Division 2         Discrimination against employees                                       1

225    Dismissal or other victimisation of employee                                       2

       (1)   This section applies to--                                                    3
             (a) an employer who dismisses an employee, injures an employee in            4
                   the employment of the employer or alters the position of an            5
                   employee to the employee's detriment; and                              6
             (b) an employer who threatens to do any of those things to an                7
                   employee; and                                                          8
             (c) an employer or prospective employer who refuses or fails to offer        9
                   employment to a prospective employee, or treats a prospective         10
                   employee less favourably than another prospective employee            11
                   would be treated in offering terms of employment.                     12

       (2)   The employer or prospective employer is guilty of an offence if the         13
             employer or prospective employer engaged in that conduct because the        14
             employee or prospective employee (as the case may be)--                     15
             (a) has assisted or has given any information to a public agency in         16
                  respect of a breach or alleged breach of an Australian rail safety     17
                  law; or                                                                18
             (b) has made a complaint about a breach or alleged breach of an             19
                  Australian rail safety law to the employer, a fellow employee,         20
                  union, public authority or public official; or                         21
             (c) assists or has assisted, or gives or has given any information to, a    22
                  public agency in respect of a breach or alleged breach of an           23
                  Australian rail safety law; or                                         24
             (d) has made a complaint about a breach or alleged breach of an             25
                  Australian rail safety law to a former employer, former fellow         26
                  employee, union, public authority or public official.                  27
             Maximum penalty:                                                            28
             (a) in the case of an individual--$10 000;                                  29
             (b) in the case of a body corporate--$50 000.                               30

       (3)   An employer or prospective employer may be guilty of an offence             31
             against subsection (2) only if the reason mentioned in subsection (2)(a),   32
             (b), (c) or (d) is the dominant reason why the employer or prospective      33
             employer engaged in the conduct.                                            34

       (4)   In proceedings for an offence against subsection (2), if all the facts      35
             constituting the offence other than the reason for the defendant's          36
             conduct are proved, the defendant bears the onus of proving that the        37
             reason alleged in the charge was not the dominant reason why the            38
             defendant engaged in the conduct.                                           39




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       (5)    If an employer or prospective employer is convicted or found guilty of       1
              an offence against this section, the court may (in addition to imposing a    2
              penalty) make either or both of the following orders:                        3
               (a) an order that the offender pay (within a specified period) such         4
                     damages to the employee or prospective employee against whom          5
                     the offender discriminated as the court considers appropriate to      6
                     compensate him or her;                                                7
              (b) an order that--                                                          8
                      (i) the employee be reinstated or re-employed in his or her          9
                            former position or, if that position is not available, in a   10
                            similar position; or                                          11
                     (ii) the prospective employee be employed in the position for        12
                            which he or she had applied or a similar position.            13

       (6)    In this section--                                                           14
              employee includes an individual who works under a contract for              15
              service;                                                                    16
              public authority includes ONRSR, the Regulator, a rail safety officer or    17
              police officer, and a police officer of another jurisdiction.               18

Division 3           Offences                                                             19

226    Offence to give false or misleading information                                    20

       (1)    A person must not give information in complying or purportedly              21
              complying with this Law that the person knows--                             22
              (a) to be false or misleading in a material particular; or                  23
              (b) omits any matter or thing without which the information is              24
                   misleading.                                                            25
              Maximum penalty:                                                            26
              (a) in the case of an individual--$20 000;                                  27
              (b) in the case of a body corporate--$100 000.                              28

       (2)    A person must not produce a document in complying or purportedly            29
              complying with this Law that the person knows to be false or misleading     30
              in a material particular without--                                          31
               (a) indicating the respect in which it is false or misleading and, if      32
                    practicable, providing correct information; or                        33
              (b) accompanying the document with a written certificate--                  34
                     (i) stating that the document is, to the knowledge of the            35
                            first-mentioned person, false or misleading in a material     36
                            particular; and                                               37




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                    (ii)setting out, or referring to, the material particular in which      1
                        the document is, to the knowledge of the first-mentioned            2
                        person, false or misleading.                                        3
             Maximum penalty:                                                               4
             (a) in the case of an individual--$20 000;                                     5
             (b) in the case of a body corporate--$100 000.                                 6

       (3)   Subsection (2) places an evidential burden on the accused to show that         7
             the accused had indicated the extent to which the document was false or        8
             misleading or that the accompanying document sufficiently explained            9
             the extent to which the document was false or misleading.                     10

227    Not to interfere with train, tram etc                                               11

       (1)   A person must not, without either the permission of an authorised             12
             officer or reasonable excuse--                                                13
             (a) move or attempt to move; or                                               14
             (b) interfere or attempt to interfere with; or                                15
             (c) disable, or attempt to disable; or                                        16
             (d) operate or attempt to operate,                                            17
             any equipment, rail infrastructure or rolling stock owned or operated by      18
             a rail transport operator.                                                    19
             Maximum penalty: $10 000.                                                     20

       (2)   Subsection (1) places an evidential burden on the accused to show a           21
             reasonable excuse.                                                            22

       (3)   In this section--                                                             23
             authorised officer means the rail transport operator, a rail safety officer   24
             or a police officer.                                                          25

228    Applying brake or emergency device                                                  26

       (1)   A person must not, without reasonable excuse--                                27
             (a) apply any brake or make use of any emergency device fitted to a           28
                   train or tram; or                                                       29
             (b) make use of any emergency device on railway premises.                     30
             Maximum penalty: $10 000.                                                     31
             Example. Emergency devices include an emergency button on a station           32
             communication board or on an escalator.                                       33

       (2)   Subsection (1) places an evidential burden on the accused to show a           34
             reasonable excuse.                                                            35




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229    Stopping a train or tram                                                             1
       (1)    A person must not, without reasonable excuse, cause or attempt to cause       2
              a train or tram in motion to be stopped.                                      3
              Maximum penalty: $10 000.                                                     4

       (2)    Subsection (1) places an evidential burden on the accused to show a           5
              reasonable excuse.                                                            6

Division 4           Court-based sanctions                                                  7

230    Commercial benefits order                                                            8

       (1)    The court that finds a person guilty of an offence against this Law may,      9
              on the application of the prosecutor or the Regulator, make an order         10
              under this section.                                                          11

       (2)    The court may make a commercial benefits order requiring the person          12
              to pay, as a fine, an amount not exceeding 3 times the amount estimated      13
              by the court to be the gross commercial benefit that--                       14
               (a) was received or receivable, by the person or by an associate of the     15
                     person, from commission of the offence; and                           16
              (b) in the case of a journey that was interrupted or not commenced           17
                     because of action taken by a rail safety officer in connection with   18
                     commission of the offence, would have been received or                19
                     receivable, by the person or by an associate of the person--from      20
                     commission of the offence had the journey been completed.             21

       (3)    In estimating the gross commercial benefit that was or would have been       22
              received or receivable from commission of the offence, the court may         23
              take into account--                                                          24
               (a) benefits of any kind, whether monetary or otherwise; and                25
              (b) monetary savings or a reduction in any operating or capital              26
                     expenditure of any kind achieved because of commission of the         27
                     offence; and                                                          28
               (c) any other matters that it considers relevant, including (for            29
                     example)--                                                            30
                      (i) the value per tonne or per kilometre of the carriage of the      31
                           goods involved in the offence as freight; and                   32
                     (ii) the distance over which any such goods were or were to be        33
                           carried.                                                        34

       (4)    However, in estimating the gross commercial benefit that was or would        35
              have been received or receivable from commission of the offence, the         36
              court is required to disregard any costs, expenses or liabilities incurred   37
              by the person or by an associate of the person.                              38




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       (5)   Nothing in this section prevents the court from ordering payment of an        1
             amount that is--                                                              2
             (a) less than 3 times the estimated gross commercial benefit; or              3
             (b) less than the estimated gross commercial benefit.                         4

       (6)   For the purposes of this section, a person is an associate of another if--    5
             (a) 1 is a spouse, de facto partner, parent, brother, sister or child of      6
                   the other; or                                                           7
             (b) they are members of the same household; or                                8
             (c) they are partners; or                                                     9
             (d) they are both trustees or beneficiaries of the same trust, or 1 is a     10
                   trustee and the other is a beneficiary of the same trust; or           11
             (e) 1 is a body corporate and the other is a director or member of the       12
                   governing body of the body corporate; or                               13
              (f) 1 is a body corporate (other than a public company whose shares         14
                   are listed on a stock exchange) and the other is a shareholder in      15
                   the body corporate; or                                                 16
             (g) they are related bodies corporate within the meaning of the              17
                   Corporations Act 2001 of the Commonwealth; or                          18
             (h) a chain of relationships can be traced between them under any 1          19
                   or more of the above paragraphs.                                       20

       (7)   For the purposes of subsection (6), a beneficiary of a trust includes an     21
             object of a trust.                                                           22

231    Supervisory intervention order                                                     23

       (1)   The court that finds a person guilty of an offence against this Law may,     24
             on the application of the prosecutor or the Regulator, if the court          25
             considers the person to be a systematic or persistent offender against the   26
             Australian rail safety laws, make an order under this section.               27

       (2)   The court may make a supervisory intervention order requiring the            28
             person (at the person's own expense and for a specified period not           29
             exceeding 1 year) to do all or any of the following:                         30
             (a) to do specified things that the court considers will improve the         31
                   person's compliance with this Law or specified aspects of this         32
                   Law, including (for example) the following:                            33
                    (i) appointing or removing staff to or from particular activities     34
                          or positions;                                                   35
                   (ii) training and supervising staff;                                   36
                  (iii) obtaining expert advice as to maintaining appropriate             37
                          compliance;                                                     38




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                     (iv)    installing monitoring, compliance, managerial or                1
                             operational equipment;                                          2
                      (v) implementing monitoring, compliance, managerial or                 3
                             operational practices, systems or procedures;                   4
              (b)     to conduct specified monitoring, compliance, managerial or             5
                      operational practices, systems or procedures subject to the            6
                      direction of the Regulator or a person nominated by the                7
                      Regulator;                                                             8
              (c)     to furnish compliance reports to the Regulator or the court or both    9
                      as specified in the order;                                            10
              (d)     to appoint a person to have responsibilities--                        11
                       (i) to assist the person in improving compliance with this Law       12
                             or specified aspects of this Law; and                          13
                      (ii) to monitor the person's performance in complying with            14
                             this Law or specified aspects of this Law and in complying     15
                             with the requirements of the order; and                        16
                     (iii) to furnish compliance reports to the Regulator or the court      17
                             or both as specified in the order.                             18

       (3)    The court may specify matters that are to be dealt with in compliance         19
              reports and the form and manner in which, and frequency with which,           20
              compliance reports are to be prepared and furnished.                          21

       (4)    The court may require that compliance reports or aspects of compliance        22
              reports be made public, and may specify the form and manner in which,         23
              and frequency with which, they are to be made public.                         24

       (5)    The court may only make a supervisory intervention order if it is             25
              satisfied that the order is capable of improving the person's ability or      26
              willingness to comply with this Law, having regard to--                       27
              (a) the offences against Australian rail safety laws of which the             28
                     person has been previously found guilty; and                           29
              (b) the offences against Australian rail safety laws for which the            30
                     person has been proceeded against by way of unwithdrawn                31
                     expiation notices or infringement notices; and                         32
              (c) any other offences or other matters that the court considers to be        33
                     relevant to the conduct of the person in connection with railway       34
                     operations.                                                            35

       (6)    The order may direct that any other penalty or sanction imposed for the       36
              offence by the court is suspended until the court determines that there       37
              has been a substantial failure to comply with the order.                      38




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       (7)   A court that has power to make supervisory intervention orders may           1
             revoke or amend a supervisory intervention order on the application          2
             of--                                                                         3
              (a) the Regulator; or                                                       4
             (b) the person in respect of whom the order was made, but in that            5
                   case only if the court is satisfied that there has been a change of    6
                   circumstances warranting revocation or amendment.                      7

       (8)   A person who is subject to a requirement of a supervisory intervention       8
             order must not engage in conduct that results in a contravention of the      9
             requirement.                                                                10
             Maximum penalty:                                                            11
              (a) in the case of an individual--$10 000;                                 12
             (b) in the case of a body corporate--$50 000.                               13

       (9)   In this section--                                                           14
             compliance report, in relation to a person in respect of whom a             15
             supervisory intervention order is made, means a report relating to--        16
              (a) the performance of the person in complying with--                      17
                     (i) the rail safety laws or aspects of rail safety laws specified   18
                           in the order; and                                             19
                    (ii) the requirements of the order; and                              20
             (b) without limiting the above--                                            21
                     (i) things done by the person to ensure that any failure by the     22
                           person to comply with the rail safety laws or the specified   23
                           aspects of the rail safety laws does not continue; and        24
                    (ii) the results of those things having been done.                   25

232    Exclusion orders                                                                  26

       (1)   The court that finds a person guilty of an offence against this Law may,    27
             on the application of the prosecutor or the Regulator, if the court         28
             considers the person to be a systematic or persistent offender against an   29
             Australian rail safety law, make an order under this section.               30

       (2)   For the purpose of restricting opportunities for the person to commit or    31
             be involved in commission of further offences against this Law, the         32
             court may, if it considers it appropriate to do so, make an exclusion       33
             order prohibiting the person, for a specified period, from--                34
             (a) managing rail infrastructure, or operating rolling stock, or            35
                   managing or operating a particular type of rail infrastructure or     36
                   rolling stock; or                                                     37




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              (b)    being a director, secretary or officer concerned in the                   1
                     management of a body corporate involved in managing rail                  2
                     infrastructure that is in this jurisdiction or operating rolling stock    3
                     in this jurisdiction; or                                                  4
              (c)    being involved in managing rail infrastructure that is in this            5
                     jurisdiction or operating rolling stock in this jurisdiction except       6
                     by driving a train or rolling stock.                                      7

       (3)    The court may only make an order under this section if it is satisfied that      8
              the person should not continue the things the subject of the proposed            9
              order and that a supervisory intervention order is not appropriate,             10
              having regard to--                                                              11
               (a) the offences against an Australian rail safety law of which the            12
                    person has previously been found guilty; and                              13
              (b) the offences against an Australian rail safety law for which the            14
                    person has been proceeded against by way of unwithdrawn                   15
                    expiation notices or infringement notices; and                            16
               (c) any other offences or other matters that the court considers to be         17
                    relevant to the conduct of the person in connection with railway          18
                    operations.                                                               19

       (4)    A court that has power to make an exclusion order may revoke or amend           20
              an exclusion order on the application of--                                      21
              (a) the Regulator; or                                                           22
              (b) the person in respect of whom the order was made, but in that               23
                    case only if the court is satisfied that there has been a change of       24
                    circumstances warranting revocation or amendment.                         25

       (5)    A person who is subject to an exclusion order must not engage in                26
              conduct that results in a contravention of the order.                           27
              Maximum penalty:                                                                28
              (a) in the case of an individual--$20 000;                                      29
              (b) in the case of a body corporate--$100 000.                                  30


Part 9        Infringement notices                                                            31

233    Meaning of infringement penalty provision                                              32

              For the purposes of this Law, an infringement penalty provision is--            33
              (a) a provision of this Law specified in an item in the Table at the            34
                    foot of this section; or                                                  35




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           (b)     a provision of this Law (other than an offence provision) or the         1
                   national regulations that is prescribed by the national regulations      2
                   to be an infringement penalty provision.                                 3


            Item Infringement penalty provision                              Infringement
                                                                             penalty
           1        Section 66(3) (Regulator may direct applicants to              $1 000
                    coordinate in applications)
           2        Section 66(4) (Regulator may direct applicants to              $1 000
                    coordinate in applications)
           3        Section 81(1) (Keeping and making available                    $1 000
                    records for public inspection)
           4        Section 81(2) (Keeping and making available                    $1 000
                    records for public inspection)
           5        Section 98(2) (Offences relating to registration)              $1 000
           6        Section 98(3) (Offences relating to registration)              $1 000
           7        Section 102 (Review of safety management system)               $2 000
           8        Section 103 (Safety performance reports)                       $1 000
           9        Section 111(1) (Register of interface agreements)              $1 000
           10       Section 111(2) (Register of interface agreements)              $1 000
           11       Section 117(6) (Assessment of competence)                      $2 000
           12       Section 118(1) (Identification of rail safety workers)         $2 000
           13       Section 118(2) (Identification of rail safety workers)           $500
           14       Section 120(2) (Power of Regulator to obtain                   $2 000
                    information from rail transport operators)
           15       Section 120(3) (Power of Regulator to obtain                   $2 000
                    information from rail transport operators)
           16       Section 131 (Disclosure of train safety recordings)            $2 000
           17       Section 136(3) (Identity cards)                                $1 000
           18       Section 149(2) (Securing a site)                               $2 000
           19       Section 231(8) (Supervisory intervention order)                $2 000
           20       Section 254 (Compliance with rail safety                       $2 000
                    undertaking)




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234    Power to serve notice                                                               1
       (1)    The Regulator may serve an infringement notice on a person that the          2
              Regulator has reason to believe has breached an infringement penalty         3
              provision.                                                                   4

       (2)    The Regulator must, however, serve an infringement notice not later          5
              than 12 months after the date on which the Regulator forms a belief that     6
              there has been a breach of an infringement penalty provision.                7

       (3)    An infringement notice may be served on an individual--                      8
              (a) by delivering it personally to the individual; or                        9
              (b) by sending it by post addressed to the individual to his or her         10
                    usual or last known place of residence or business.                   11

       (4)    An infringement notice may be served on a person that is a body             12
              corporate--                                                                 13
              (a) by delivering it personally to the registered office or usual or last   14
                    known place of business of the body corporate; or                     15
              (b) by sending it by post addressed to the body corporate to its            16
                    registered office or usual or last known place of business.           17

235    Form of notice                                                                     18

              An infringement notice must state--                                         19
              (a) the date of the notice; and                                             20
              (b) that the alleged breach is a breach of the infringement penalty         21
                    provision; and                                                        22
              (c) the nature, and a brief description, of the alleged breach; and         23
              (d) the date, time and place of the alleged breach; and                     24
              (e) the infringement penalty for the alleged breach; and                    25
              (f) the manner in which the infringement penalty may be paid; and           26
              (g) the time (being not less than 28 days after the date on which the       27
                    notice is served) within which the infringement penalty must be       28
                    paid; and                                                             29
              (h) that, if the amount of the infringement penalty is paid before the      30
                    end of the time specified in the notice, proceedings will not be      31
                    instituted in respect of the alleged breach by the Regulator unless   32
                    the notice is withdrawn before the end of that time in accordance     33
                    with section 238; and                                                 34
               (i) that the person is entitled to disregard the notice and defend any     35
                    proceedings in respect of the infringement penalty provision; and     36
               (j) any other particulars prescribed by the national regulations.          37




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236    Regulator cannot institute proceedings while infringement notice on                1
       foot                                                                               2

             On serving an infringement notice under this Part, the Regulator must        3
             not institute a proceeding in respect of the breach for which the            4
             infringement notice was served if--                                          5
              (a) the time for payment stated in the infringement notice has not          6
                    expired; and                                                          7
             (b) the infringement notice has not been withdrawn by the Regulator          8
                    in accordance with section 238.                                       9

237    Late payment of penalty                                                           10

             The Regulator may accept payment of the infringement penalty even           11
             after the expiration of the time for payment stated in the infringement     12
             notice if--                                                                 13
             (a) a proceeding has not been instituted in respect of the breach to        14
                    which the infringement penalty relates; and                          15
             (b) the infringement notice has not been withdrawn by the Regulator         16
                    in accordance with section 238.                                      17

238    Withdrawal of notice                                                              18

       (1)   The Regulator may withdraw an infringement notice at any time before        19
             the end of the time for payment specified in the notice by serving a        20
             withdrawal notice on the person served with the infringement notice.        21

       (2)   A withdrawal notice may be served on an individual--                        22
             (a) by delivering it personally to the individual; or                       23
             (b) by sending it by post addressed to the individual to his or her         24
                   usual or last known place of residence or business.                   25

       (3)   A withdrawal notice may be served on a person that is a body                26
             corporate--                                                                 27
             (a) by delivering it personally to the registered office or usual or last   28
                   known place of business of the body corporate; or                     29
             (b) by sending it by post addressed to the body corporate to its            30
                   registered office or usual or last known place of business.           31

       (4)   An infringement notice may be withdrawn even if the infringement            32
             penalty has been paid.                                                      33

239    Refund of infringement penalty                                                    34

             If an infringement notice is withdrawn in accordance with section 238,      35
             the amount of any infringement penalty paid must be refunded by the         36
             Regulator.                                                                  37




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240    Payment expiates breach of infringement penalty provision                           1
              No proceedings may be taken by the Regulator against a person on             2
              whom an infringement notice was served in respect of an alleged breach       3
              of an infringement penalty provision if--                                    4
              (a) the infringement penalty is--                                            5
                      (i) paid within the time for payment stated in the notice; and       6
                     (ii) not withdrawn by the Regulator within the time for               7
                            payment stated in the notice in accordance with                8
                            section 238; or                                                9
              (b) the infringement penalty is accepted in accordance with                 10
                     section 237.                                                         11

241    Payment not to have certain consequences                                           12

              The payment of an infringement penalty under this Part is not and must      13
              not be taken to be an admission of a breach of an infringement penalty      14
              provision or an admission of liability for the purpose of any proceeding    15
              instituted in respect of the breach.                                        16

242    Conduct in breach of more than 1 infringement penalty provision                    17

       (1)    If the conduct of a person constitutes a breach of 2 or more infringement   18
              penalty provisions, an infringement notice may be served on the person      19
              under this Part in relation to the breach of any 1 or more of those         20
              provisions.                                                                 21

       (2)    However, the person is not liable to pay more than 1 infringement           22
              penalty in respect of the same conduct.                                     23


Part 10 General                                                                           24


Division 1           Delegation by Minister                                               25

243    Delegation by Minister                                                             26

       (1)    The Minister may delegate to a body or person (including a person for       27
              the time being holding or acting in a specified office or position) a       28
              function or power of the Minister under this Law.                           29

       (2)    A function or power delegated under this section may, if the instrument     30
              of delegation so provides, be further delegated.                            31




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Division 2         Confidentiality of information                                         1

244    Confidentiality of information                                                     2

       (1)   This section applies if a person obtains information or gains access to a    3
             document in exercising any power or function under this Law.                 4

       (2)   The person must not do any of the following:                                 5
             (a) disclose to anyone else--                                                6
                    (i) the information; or                                               7
                   (ii) the contents of or information contained in the document;         8
             (b) give access to the document to anyone else;                              9
             (c) use the information or document for any purpose.                        10
             Maximum penalty:                                                            11
             (a) in the case of an individual--$10 000;                                  12
             (b) in the case of a body corporate--$50 000.                               13

       (3)   Subsection (2) does not apply to the disclosure of information, or the      14
             giving of access to a document or the use of information or a               15
             document--                                                                  16
             (a) about a person, with the person's consent; or                           17
             (b) that is necessary for the exercise of a function or power under this    18
                    Law; or                                                              19
             (c) that is made or given by ONRSR, a member of ONRSR, or a                 20
                    person authorised by ONRSR, if ONRSR reasonably believes the         21
                    disclosure, access or use--                                          22
                     (i) is necessary for administering, or monitoring or enforcing      23
                          compliance with, this Law; or                                  24
                    (ii) is necessary for the administration or enforcement of an        25
                          Act prescribed by the national regulations; or                 26
                   (iii) is necessary for the administration or enforcement of an        27
                          Act or other law, if the disclosure, access or use is          28
                          necessary to lessen or prevent a serious risk to public        29
                          health or safety; or                                           30
             (d) that is required by any court, tribunal, authority or person having     31
                    lawful authority to require the production of documents or the       32
                    answering of questions; or                                           33
             (e) that is required or authorised under a law; or                          34
              (f) to a Minister of a participating jurisdiction.                         35




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       (4)    A person must not intentionally disclose to another person the name of      1
              an individual who has made a complaint in relation to that other person     2
              unless--                                                                    3
              (a) the disclosure is made with the consent of the complainant; or          4
              (b) the disclosure is required under a law.                                 5
              Maximum penalty:                                                            6
              (a) in the case of an individual--$10 000;                                  7
              (b) in the case of a body corporate--$50 000.                               8

       (5)    Nothing in this section prevents information being used to enable           9
              ONRSR to accumulate aggregate data and to enable ONRSR to                  10
              authorise use of the aggregate data for the purposes of research or        11
              education.                                                                 12

Division 3           Law does not affect legal professional privilege                    13

245    Law does not affect legal professional privilege                                  14

              Nothing in this Law requires a person to produce a document that would     15
              disclose information, or otherwise provide information, that is the        16
              subject of legal professional privilege.                                   17

Division 4           Civil liability                                                     18

246    Civil liability not affected by Part 3 Division 3 or Division 6                   19

              Nothing in Part 3 Division 3 or Part 3 Division 6 is to be construed--     20
              (a) as conferring a right of action in civil proceedings in respect of a   21
                    contravention (whether by act or omission) of any provisions of      22
                    those Divisions; or                                                  23
              (b) as conferring a defence to an action in civil proceedings or           24
                    otherwise affecting a right of action in civil proceedings; or       25
              (c) affecting the extent (if any) to which a right of action arises, or    26
                    civil proceedings may be taken, with respect to breaches of duties   27
                    or obligations imposed by the national regulations.                  28

247    Protection from personal liability for persons exercising functions               29

       (1)    A person who is or was a protected person is not personally liable for     30
              anything done or omitted to be done in good faith--                        31
              (a) in the exercise of a function under this Law; or                       32
              (b) in the reasonable belief that the act or omission was the exercise     33
                    of a function under this Law.                                        34




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       (2)   Any liability resulting from an act or omission that would, but for         1
             subsection (1), attach to a protected person attaches instead to ONRSR.     2

       (3)   In this section--                                                           3
             protected person means any of the following:                                4
              (a) a member of ONRSR;                                                     5
             (b) a member of a committee of ONRSR;                                       6
              (c) a member of the staff of ONRSR;                                        7
             (d) a rail safety officer;                                                  8
              (e) an authorised person;                                                  9
              (f) a person to whom ONRSR has delegated any of its functions;            10
             (g) a person to whom an entity, or the chief executive of an entity or     11
                    department of government, of a participating jurisdiction has       12
                    subdelegated a function delegated to the chief executive by         13
                    ONRSR;                                                              14
             (h) a member of the staff of an entity or department referred to in        15
                    paragraph (g);                                                      16
              (i) a person acting under the authority or direction of a person          17
                    referred to in paragraphs (a) to (h).                               18

248    Immunity for reporting unfit rail safety worker                                  19

       (1)   No action may be taken against a person to whom this section applies       20
             who, in good faith, reports to--                                           21
              (a) ONRSR; or                                                             22
             (b) a member of ONRSR; or                                                  23
              (c) a rail transport operator; or                                         24
             (d) any other person who is employed or engaged by ONRSR or a              25
                   rail transport operator,                                             26
             any information which discloses that a person is unfit to carry out rail   27
             safety work or certain types of rail safety work or that it may be         28
             dangerous to allow that person to carry out rail safety work or certain    29
             types of rail safety work.                                                 30

       (2)   No action may be taken against a person to whom this section applies       31
             who, in good faith, reports--                                              32
              (a) the results of a test or examination carried out under this Law or    33
                    the national regulations; or                                        34
             (b) an opinion formed by that person as a result of conducting such a      35
                    test or examination,                                                36
             to a person referred to in subsection (1)(a), (b), (c) or (d).             37




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       (3)    In this section--                                                           1
              person to whom this section applies means--                                 2
               (a) a person registered under the Health Practitioner Regulation           3
                     National Law to practise in the medical profession (other than as    4
                     a student); or                                                       5
              (b) a person registered under the Health Practitioner Regulation            6
                     National Law to practise in the nursing and midwifery profession     7
                     as a nurse (other than as a student); or                             8
               (c) a person registered under the Health Practitioner Regulation           9
                     National Law to practise in the optometry profession (other than    10
                     as a student); or                                                   11
              (d) a person registered under the Health Practitioner Regulation           12
                     National Law to practise in the physiotherapy profession (other     13
                     than as a student); or                                              14
               (e) a person brought within the ambit of this definition by the           15
                     national regulations.                                               16

Division 5           Codes of practice                                                   17

249    Approved codes of practice                                                        18

       (1)    The responsible Ministers may approve a code of practice for the           19
              purposes of this Law and may vary or revoke an approved code of            20
              practice.                                                                  21

       (2)    The responsible Ministers may only approve, vary or revoke a code of       22
              practice under subsection (1) if that code of practice, variation or       23
              revocation was developed by a process that involved consultation           24
              among--                                                                    25
               (a) each participating jurisdiction; and                                  26
              (b) rail transport operators and any relevant employer organisation;       27
                     and                                                                 28
               (c) rail safety workers and any relevant union.                           29

       (3)    A code of practice may apply, adopt or incorporate any matter contained    30
              in a document formulated, issued or published by a person or body          31
              whether--                                                                  32
               (a) with or without modification; or                                      33
              (b) as in force at a particular time or from time to time.                 34




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       (4)   An approval of a code of practice, or a variation or revocation of an         1
             approved code of practice--                                                   2
             (a) is to be published on the NSW legislation website in accordance           3
                   with Part 6A of the Interpretation Act 1987 of New South Wales;         4
                   and                                                                     5
             (b) will commence on the day or days specified in the approval,               6
                   variation or revocation for its commencement (being not earlier         7
                   than the date it is published); and                                     8
             (c) is to be published by the Regulator on ONRSR's website.                   9

       (5)   The Regulator must ensure that a copy of--                                   10
              (a) each code of practice that is currently approved; and                   11
             (b) each document applied, adopted or incorporated (to any extent)           12
                    by an approved code of practice,                                      13
             is available for inspection by members of the public without charge at       14
             ONRSR's office during normal business hours.                                 15

250    Use of codes of practice in proceedings                                            16

       (1)   This section applies in a proceeding for an offence against this Law.        17

       (2)   An approved code of practice is admissible in the proceeding as              18
             evidence of whether or not a duty or obligation under this Law has been      19
             complied with.                                                               20

       (3)   The court may--                                                              21
             (a) have regard to the code as evidence of what is known about a             22
                   hazard or risk, risk assessment or risk control to which the code      23
                   relates; and                                                           24
             (b) rely on the code in determining what is reasonably practicable in        25
                   the circumstances to which the code relates.                           26
             Note. See section 47 for the meaning of reasonably practicable.              27

       (4)   Nothing in this section prevents a person from introducing evidence of       28
             compliance with this Law in a manner that is different from the code but     29
             provides a standard of rail work safety that is equivalent to or higher      30
             than the standard required in the code.                                      31

Division 6         Enforceable voluntary undertakings                                     32

251    Enforceable voluntary undertaking                                                  33

       (1)   The Regulator may accept (by written notice) a written undertaking (a        34
             rail safety undertaking) given by a person in connection with a matter       35
             relating to a contravention or alleged contravention by the person of this   36
             Law.                                                                         37




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       (2)    A rail safety undertaking cannot be accepted for a contravention or            1
              alleged contravention that is a Category 1 offence.                            2

       (3)    The giving of a rail safety undertaking does not constitute an admission       3
              of guilt by the person giving it in respect of the contravention or alleged    4
              contravention to which the undertaking relates.                                5

252    Notice of decisions and reasons for decision                                          6

       (1)    The Regulator must give the person seeking to make a rail safety               7
              undertaking written notice of the Regulator's decision to accept or reject     8
              the undertaking and of the reasons for the decision.                           9

       (2)    The Regulator must publish, on the Register, notice of a decision to          10
              accept a rail safety undertaking and the reasons for that decision.           11

253    When a rail safety undertaking is enforceable                                        12

              A rail safety undertaking takes effect and becomes enforceable when           13
              the Regulator's decision to accept the undertaking is given to the person     14
              who made the undertaking or at any later date specified by the                15
              Regulator.                                                                    16

254    Compliance with rail safety undertaking                                              17

              A person must not contravene a rail safety undertaking made by that           18
              person that is in effect.                                                     19
              Maximum penalty:                                                              20
              (a) in the case of an individual--$10 000;                                    21
              (b) in the case of a body corporate--$50 000.                                 22

255    Contravention of rail safety undertaking                                             23

       (1)    If the Regulator considers that a person has contravened an undertaking       24
              accepted by the Regulator, the Regulator may apply to the court for           25
              enforcement of the undertaking.                                               26

       (2)    If the court is satisfied that the person has contravened the undertaking,    27
              the court, in addition to the imposition of any penalty, may make any of      28
              the following orders:                                                         29
               (a) an order that the person must comply with the undertaking or take        30
                     specified action to comply with the undertaking;                       31
              (b) an order discharging the undertaking;                                     32
               (c) an order directing the person to pay to the Regulator--                  33
                      (i) the costs of the proceedings; and                                 34




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                   (ii)  the reasonable costs of the Regulator in monitoring              1
                         compliance with the rail safety undertaking in the future;       2
             (d)   any other order that it considers appropriate in the circumstances.    3

       (3)   A person must not fail to comply with an order under this section.           4
             Maximum penalty:                                                             5
             (a) in the case of an individual--$5 000;                                    6
             (b) in the case of a body corporate--$25 000.                                7

       (4)   Nothing in this section prevents proceedings being brought for the           8
             contravention or alleged contravention of this Law to which the rail         9
             safety undertaking relates.                                                 10

256    Withdrawal or variation of rail safety undertaking                                11

       (1)   A person who has made a rail safety undertaking may, at any time, with      12
             the written agreement of the Regulator--                                    13
              (a) withdraw the undertaking; or                                           14
             (b) vary the undertaking.                                                   15

       (2)   However, the provisions of the undertaking cannot be varied to provide      16
             for a different alleged contravention of this Law.                          17

       (3)   The Regulator must publish, on the Register, notice of the withdrawal       18
             or variation of a rail safety undertaking.                                  19

257    Proceedings for alleged contravention                                             20

       (1)   Subject to this section, no proceedings for a contravention or alleged      21
             contravention of this Law may be brought against a person if a rail         22
             safety undertaking is in effect in relation to that contravention.          23

       (2)   No proceedings may be brought for a contravention or alleged                24
             contravention of this Law against a person who has made a rail safety       25
             undertaking in respect of that contravention and has completely             26
             discharged the rail safety undertaking.                                     27

       (3)   The Regulator may accept a rail safety undertaking in respect of a          28
             contravention or alleged contravention before proceedings in respect of     29
             that contravention have been finalised.                                     30

       (4)   If the Regulator accepts a rail safety undertaking before the proceedings   31
             are finalised, the Regulator must take all reasonable steps to have the     32
             proceedings discontinued as soon as possible.                               33




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Division 7           Other matters                                                         1

258    Service of documents                                                                2

       (1)    A notice or document required or authorised by or under this Law to be       3
              given or served on a person may be served on the person--                    4
              (a) by delivering it personally to the person; or                            5
              (b) be sending it by post addressed to the person to the person's last       6
                    known address; or                                                      7
              (c) if the person holds an accreditation or registration, or has been        8
                    granted an exemption, under this Law--                                 9
                     (i) by sending it by post addressed to the person to that            10
                           person's address for service; or                               11
                    (ii) be left for the person at the person's address for service       12
                           with someone apparently over the age of 16 years; or           13
              (d) be transmitted by fax or email to a fax number or email address         14
                    provided by the person for that purpose (in which case the notice     15
                    or document will be taken to have been given or served at the         16
                    time of transmission).                                                17

       (2)    The address for service of a person is the address last provided by the     18
              person in writing to the Regulator as the address for service.              19

259    Recovery of certain costs                                                          20

              The Regulator may recover as a debt from a rail transport operator the      21
              reasonable costs of the entry and inspection of railway infrastructure,     22
              rolling stock or railway premises in respect of which the person is         23
              accredited, other than the costs of an inspection of an accredited person   24
              under Part 3 Division 11.                                                   25

260    Recovery of amounts due                                                            26

              Every fee, charge or other amount of money payable under this Law           27
              may be recovered by the Regulator as a debt due to the Regulator in a       28
              court of competent jurisdiction.                                            29

261    Compliance with conditions of accreditation or registration                        30

       (1)    If--                                                                        31
               (a) a condition or restriction to which the accreditation of a person is   32
                   subject makes provision for or with respect to a duty or obligation    33
                   imposed by this Law; and                                               34




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             (b)   the accredited person complies with the condition or restriction to    1
                   the extent that it makes that provision,                               2
             the accredited person is, for the purposes of this Law, taken to have        3
             complied with this Law in relation to that duty or obligation.               4

       (2)   If--                                                                         5
              (a) a condition or restriction to which the registration of a person is     6
                   subject makes provision for or with respect to a duty or obligation    7
                   imposed by this Law; and                                               8
             (b) the registered person complies with the condition or restriction to      9
                   the extent that it makes that provision,                              10
             the registered person is, for the purposes of this Law, taken to have       11
             complied with this Law in relation to that duty or obligation.              12

262    Contracting out prohibited                                                        13

             A term of any contract or agreement that purports to exclude, limit or      14
             modify the operation of this Law or any duty under this Law or to           15
             transfer to another person any duty owed under this Law is void.            16

Division 8         Application of certain South Australian Acts to                       17
                   this Law                                                              18

263    Application of certain South Australian Acts to this Law                          19

       (1)   The following Acts (as in force from time to time) apply as laws of a       20
             participating jurisdiction for the purposes of this Law:                    21
             (a) the Freedom of Information Act 1991 of South Australia;                 22
             (b) the Ombudsman Act 1972 of South Australia;                              23
             (c) the Public Finance and Audit Act 1987 of South Australia;               24
             (d) the State Records Act 1997 of South Australia.                          25

       (2)   However, subject to subsection (4), the Acts referred to in                 26
             subsection (1) do not apply for the purposes of this Law to the extent      27
             that functions are being exercised under this Law by a State or Territory   28
             entity, other than a South Australian entity.                               29

       (3)   The national regulations may modify any such Act for the purposes of        30
             this Law.                                                                   31

       (4)   Without limiting subsection (3), the national regulations may--             32
             (a) provide that the Act applies as if a provision of the Act specified     33
                  in the national regulations were omitted; or                           34




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              (b)    provide that the Act applies as if an amendment to the Act made       1
                     by a law of South Australia, and specified in the national            2
                     regulations, had not taken effect; or                                 3
              (c)    confer a function on a State or Territory entity; or                  4
              (d)    confer jurisdiction on a tribunal or court of a participating         5
                     jurisdiction.                                                         6

       (5)    An Act referred to in subsection (1) applies for the purposes of this Law    7
              as if the Minister responsible for a government agency were the              8
              Minister in relation to a body established by this Law.                      9

Division 9           National regulations                                                 10

264    National regulations                                                               11

       (1)    For the purposes of this section, the designated authority is the           12
              Governor of the State of South Australia, or other officer for the time     13
              being administering the Government of that State, acting with the           14
              advice and consent of the Executive Council of that State.                  15

       (2)    The designated authority, on the unanimous recommendation of the            16
              responsible Ministers, may make regulations (national regulations) as       17
              contemplated by this Law, or as necessary or expedient for the purposes     18
              of this Law, including regulations that make provision for or in relation   19
              to any of the matters specified in Schedule 1 to this Law.                  20

       (3)    Where the national regulations refer to or incorporate a code, standard     21
              or other document prepared or published by a prescribed body--              22
              (a) a copy of the code, standard or other document must be kept             23
                    available for inspection by members of the public, without charge     24
                    and during normal office hours, at the office or offices specified    25
                    in the regulations; and                                               26
              (b) in legal proceedings, evidence of the contents of the code,             27
                    standard or other document may be given by production of a            28
                    document purporting to be certified by or on behalf of the            29
                    Regulator as a true copy of the code, standard or other document;     30
                    and                                                                   31
              (c) the code, standard or other document has effect as if it were a         32
                    regulation made under this Law.                                       33

265    Publication of national regulations                                                34

       (1)    The national regulations are to be published on the NSW legislation         35
              website in accordance with Part 6A of the Interpretation Act 1987 of        36
              New South Wales.                                                            37




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       (2)   A regulation commences on the day or days specified in the regulation         1
             for its commencement (being not earlier than the date it is published).       2


Schedule 1             National regulations                                                3

 1           Accreditations under this Law, including--                                    4
             (a) requirements, standards, qualifications or conditions that must be        5
                  satisfied; and                                                           6
             (b) requirements as to the terms, conditions, restrictions or                 7
                  particulars applying under or with respect to them; and                  8
             (c) other matters relating to their granting, refusal, variation,             9
                  suspension, cancellation or surrender.                                  10

 2           Registrations under this Law, including--                                    11
             (a) requirements, standards, qualifications or conditions that must be       12
                   satisfied; and                                                         13
             (b) requirements as to the terms, conditions, restrictions or                14
                   particulars applying under or with respect to them; and                15
             (c) other matters relating to their granting, refusal, variation,            16
                   suspension, cancellation or surrender.                                 17

 3           A scheme for certificates of competency (or provisional certificates of      18
             competency) for persons employed or engaged in rail safety work, and         19
             for the duration, variation, suspension or cancellation of those             20
             certificates.                                                                21

 4           The prohibition of the carrying on of rail safety work or other prescribed   22
             activity except by or under the supervision of a person--                    23
             (a) who holds an appropriate certificate of competency; or                   24
             (b) who has prescribed qualifications, training or experience.               25

 5           Safety standards or other requirements that must be complied with--          26
             (a) in connection with the construction, maintenance or operation of         27
                   a railway; or                                                          28
             (b) in connection with the performance of any work or activity; or           29
             (c) in relation to any rail infrastructure, rolling stock, trains, system,   30
                   devices, appliance or equipment; or                                    31
             (d) in relation to sidings.                                                  32

 6           Procedures (including consultation) for the making, adoption and             33
             amendment of rules and procedures relating to rail network operations        34
             made or adopted for the purposes of Part 3 Division 3 by the rail            35




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              infrastructure manager responsible for the management of that part of        1
              the rail network.                                                            2

  7           The safeguarding, siting, installing, testing, altering, maintaining or      3
              removal of any rail infrastructure, rolling stock, system, device,           4
              appliance or equipment.                                                      5

  8           The records and documents to be kept by any person, the manner of            6
              keeping those records and documents, and their inspection.                   7

  9           The providing of returns and other information, verified as prescribed.      8

10            The registration of plans and other documents required under this Law.       9

11            The recording, investigation and reporting of accidents and incidents.      10

12            The health, fitness and functions of rail safety workers.                   11

13            Drug and alcohol management of rail safety workers, including--             12
              (a) the allowed concentration of alcohol; and                               13
              (b) procedures for drug and alcohol testing, including compulsory           14
                    testing; and                                                          15
              (c) providing for the authorisation of persons to conduct drug and          16
                    alcohol testing and operate equipment for that purpose; and           17
              (d) regulating the collection of biological samples from rail safety        18
                    workers for the purposes of drug and alcohol testing; and             19
              (e) providing for the analysis of test results, including the               20
                    accreditation of persons conducting the analysis; and                 21
              (f) providing for the approval of devices used in carrying out drug         22
                    and alcohol testing and analysis; and                                 23
              (g) providing for the use of results from any testing or analysis, or the   24
                    steps that may be taken on account of any testing or any evidence     25
                    or information produced as a result of testing; and                   26
              (h) prescribing the circumstances that amount to a defence to a             27
                    breach of the regulations, including where the consumption of         28
                    alcohol or drugs occurs after rail safety work has been carried       29
                    out; and                                                              30
               (i) providing for the confidentiality of test results; and                 31
               (j) regulating the destruction of biological samples collected for         32
                    testing; and                                                          33
              (k) providing for the protection of persons involved in taking or           34
                    conducting testing from liability for acts or omissions done in       35
                    good faith and in accordance with the regulations.                    36




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14         Fatigue management of rail safety workers, including work hours and            1
           rest periods.                                                                  2

15         The regulation of the conduct of passengers and other persons on               3
           railways, or on land or premises associated with a railway.                    4

16         Trespass on, or entry to, railways, or on land, premises, infrastructure or    5
           rolling stock associated with a railway.                                       6

17         The regulation or prohibition of the carriage of goods, freight or animals     7
           on railways.                                                                   8

18         The unauthorised use of railways or rolling stock.                             9

19         The display of signs and notices.                                             10

20         The opening and closing of railway gates.                                     11

21         The regulation of vehicles, animals and pedestrians crossing railways.        12

22         The regulation of crossings.                                                  13

23         The loading, unloading or transportation of freight.                          14

24         The identification of rolling stock, rail infrastructure, devices,            15
           appliances, equipment or freight.                                             16

25         Causing damage to, or interfering with or removing, rolling stock, rail       17
           infrastructure, devices, appliances, equipment or freight.                    18

26         Procedures associated with inspections, examinations or tests under this      19
           Law.                                                                          20

27         The form and service of notices and other documents under this Law.           21

28         Empowering the Regulator to prohibit a person from acting (or from            22
           continuing to act) as a rail safety worker for a specified period, or until   23
           further order of the Regulator.                                               24

29         Fixing fees and charges for the purposes of this Law or in respect of any     25
           matter arising under this Law, including a fee that the Regulator may         26
           recover from an accredited person as a debt if the accredited person fails    27
           to comply with a requirement of this Law within a specified time.             28

30         Generally, evidence in proceedings for an offence against the                 29
           regulations.                                                                  30




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31            Infringement penalty provisions, including requirements for                   1
              infringement notices and the fixing of infringement penalties, not            2
              exceeding $1 500, for contravention of an alleged offence against this        3
              Law or the regulations.                                                       4

32            The imposition of penalties, not exceeding $10 000 for a contravention        5
              of, or failure to comply with, a regulation.                                  6


Schedule 2                 Miscellaneous provisions relating to                             7
                           interpretation                                                   8


Part 1        Preliminary                                                                   9

  1    Displacement of Schedule by contrary intention                                      10

              The application of this Schedule may be displaced, wholly or partly, by      11
              a contrary intention appearing in this Law.                                  12


Part 2        General                                                                      13

  2    Law to be construed not to exceed legislative power of Parliament                   14

       (1)    This Law is to be construed as operating to the full extent of, but so as    15
              not to exceed, the legislative power of the Parliament of this               16
              jurisdiction.                                                                17

       (2)    If a provision of this Law, or the application of a provision of this Law    18
              to a person, subject matter or circumstance, would, but for this clause,     19
              be construed as being in excess of the legislative power of the              20
              Parliament of this jurisdiction--                                            21
               (a) it is a valid provision to the extent to which it is not in excess of   22
                     the power; and                                                        23
              (b) the remainder of this Law, and the application of the provision to       24
                     other persons, subject matters or circumstances, is not affected.     25

       (3)    This clause applies to this Law in addition to, and without limiting the     26
              effect of, any provision of this Law.                                        27

  3    Every section to be a substantive enactment                                         28

              Every section of this Law has effect as a substantive enactment without      29
              introductory words.                                                          30

  4    Material that is, and is not, part of this Law                                      31

       (1)    The heading to a Part, Division or Subdivision into which this Law is        32
              divided is part of this Law.                                                 33




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       (2)   A Schedule to this Law is part of this Law.                                 1

       (3)   Punctuation in this Law is part of this Law.                                2

       (4)   A heading to a section or subsection of this Law does not form part of      3
             this Law.                                                                   4

 5     References to particular Acts and to enactments                                   5

             In this Law--                                                               6
              (a) an Act of this jurisdiction may be cited--                             7
                     (i) by its short title; or                                          8
                    (ii) by reference to the year in which it was passed and its         9
                          number; and                                                   10
             (b) a Commonwealth Act may be cited--                                      11
                     (i) by its short title; or                                         12
                    (ii) in another way sufficient in a Commonwealth Act for the        13
                          citation of such an Act,                                      14
                    together with a reference to the Commonwealth; and                  15
              (c) an Act of another jurisdiction may be cited--                         16
                     (i) by its short title; or                                         17
                    (ii) in another way sufficient in an Act of the jurisdiction for    18
                          the citation of such an Act,                                  19
                    together with a reference to the jurisdiction.                      20

 6     References taken to be included in Law or Act citation etc                       21

       (1)   A reference in this Law to this Law or an Act includes a reference to--    22
             (a) this Law or the Act as originally enacted, and as amended from         23
                   time to time since its original enactment; and                       24
             (b) if this Law or the Act has been repealed and re-enacted (with or       25
                   without modification) since the enactment of the reference--this     26
                   Law or the Act as re-enacted, and as amended from time to time       27
                   since its re-enactment.                                              28

       (2)   A reference in this Law to a provision of this Law or of an Act includes   29
             a reference to--                                                           30
             (a) the provision as originally enacted, and as amended from time to       31
                    time since its original enactment; and                              32
             (b) if the provision has been omitted and re-enacted (with or without      33
                    modification) since the enactment of the reference--the             34
                    provision as re-enacted, and as amended from time to time since     35
                    its re-enactment.                                                   36




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       (3)    Subclauses (1) and (2) apply to a reference in this Law to a law of the       1
              Commonwealth or another jurisdiction as they apply to a reference in          2
              this Law to an Act and to a provision of an Act.                              3

  7    Interpretation best achieving Law's purpose or object                                4

       (1)    In the interpretation of a provision of this Law, the interpretation that     5
              will best achieve the purpose or object of this Law is to be preferred to     6
              any other interpretation.                                                     7

       (2)    Subclause (1) applies whether or not the purpose is expressly stated in       8
              this Law.                                                                     9

  8    Use of extrinsic material in interpretation                                         10

       (1)    In this clause--                                                             11
              extrinsic material means relevant material not forming part of this Law,     12
              including (for example)--                                                    13
               (a) material that is set out in the document containing the text of this    14
                     Law as printed by the Government Printer; and                         15
              (b) a relevant report of a Royal Commission, Law Reform                      16
                     Commission, commission or committee of inquiry, or a similar          17
                     body, that was laid before the Parliament of this jurisdiction        18
                     before the provision concerned was enacted; and                       19
               (c) a relevant report of a committee of the Parliament of this              20
                     jurisdiction that was made to the Parliament before the provision     21
                     was enacted; and                                                      22
              (d) a treaty or other international agreement that is mentioned in this      23
                     Law; and                                                              24
               (e) an explanatory note or memorandum relating to the Bill that             25
                     contained the provision, or any relevant document, that was laid      26
                     before, or given to the members of, the Parliament of this            27
                     jurisdiction by the member bringing in the Bill before the            28
                     provision was enacted; and                                            29
               (f) the speech made to the Parliament of this jurisdiction by the           30
                     member in moving a motion that the Bill be read a second time;        31
                     and                                                                   32
              (g) material in the Votes and Proceedings of the Parliament of this          33
                     jurisdiction or in any official record of debates in the Parliament   34
                     of this jurisdiction; and                                             35
              (h) a document that is declared by this Law to be a relevant document        36
                     for the purposes of this clause;                                      37




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             ordinary meaning means the ordinary meaning conveyed by a                      1
             provision having regard to its context in this Law and to the purpose of       2
             this Law.                                                                      3

       (2)   Subject to subclause (3), in the interpretation of a provision of this Law,    4
             consideration may be given to extrinsic material capable of assisting in       5
             the interpretation--                                                           6
              (a) if the provision is ambiguous or obscure--to provide an                   7
                    interpretation of it; or                                                8
             (b) if the ordinary meaning of the provision leads to a result that is         9
                    manifestly absurd or is unreasonable--to provide an                    10
                    interpretation that avoids such a result; or                           11
              (c) in any other case--to confirm the interpretation conveyed by the         12
                    ordinary meaning of the provision.                                     13

       (3)   In determining whether consideration should be given to extrinsic             14
             material, and in determining the weight to be given to extrinsic material,    15
             regard is to be had to--                                                      16
              (a) the desirability of a provision being interpreted as having its          17
                   ordinary meaning; and                                                   18
             (b) the undesirability of prolonging proceedings without                      19
                   compensating advantage; and                                             20
              (c) other relevant matters.                                                  21

 9     Effect of change of drafting practice                                               22

             If--                                                                          23
              (a) a provision of this Law expresses an idea in particular words; and       24
             (b) a provision enacted later appears to express the same idea in             25
                  different words for the purpose of implementing a different              26
                  legislative drafting practice, including (for example)--                 27
                   (i) the use of a clearer or simpler style; or                           28
                  (ii) the use of gender-neutral language,                                 29
                  the ideas must not be taken to be different merely because               30
                  different words are used.                                                31

10     Use of examples                                                                     32

             If this Law includes an example of the operation of a provision--             33
              (a) the example is not exhaustive; and                                       34
             (b) the example does not limit, but may extend, the meaning of the            35
                     provision; and                                                        36




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              (c)    the example and the provision are to be read in the context of each    1
                     other and the other provisions of this Law, but, if the example and    2
                     the provision so read are inconsistent, the provision prevails.        3

11     Compliance with forms                                                                4

       (1)    If a form is prescribed or approved by or for the purpose of this Law,        5
              strict compliance with the form is not necessary and substantial              6
              compliance is sufficient.                                                     7

       (2)    If a form prescribed or approved by or for the purpose of this Law            8
              requires--                                                                    9
               (a) the form to be completed in a specified way; or                         10
              (b) specified information or documents to be included in, attached to        11
                     or given with the form; or                                            12
               (c) the form, or information or documents included in, attached to or       13
                     given with the form, to be verified in a specified way,               14
              the form is not properly completed unless the requirement is complied        15
              with.                                                                        16


Part 3        Terms and references                                                         17

12     Definitions                                                                         18

       (1)    In this Law--                                                                19
              Act means an Act of the Parliament of this jurisdiction;                     20
              adult means an individual who is 18 or more;                                 21
              affidavit, in relation to a person allowed by law to affirm, declare or      22
              promise, includes affirmation, declaration and promise;                      23
              amend includes--                                                             24
               (a) omit or omit and substitute; or                                         25
              (b) alter or vary; or                                                        26
               (c) amend by implication;                                                   27
              appoint includes reappoint;                                                  28
              Australia means the Commonwealth of Australia but, when used in a            29
              geographical sense, does not include an external Territory;                  30
              business day means a day that is not--                                       31
               (a) a Saturday or Sunday; or                                                32
              (b) a public holiday, special holiday or bank holiday in the place in        33
                     which any relevant act is to be or may be done;                       34




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           calendar month means a period starting at the beginning of any day of        1
           1 of the 12 named months and ending--                                        2
            (a) immediately before the beginning of the corresponding day of the        3
                  next named month; or                                                  4
           (b) if there is no such corresponding day--at the end of the next            5
                  named month;                                                          6
           calendar year means a period of 12 months beginning on 1 January;            7
           commencement, in relation to this Law or an Act or a provision of this       8
           Law or an Act, means the time at which this Law, the Act or provision        9
           comes into operation;                                                       10
           Commonwealth means the Commonwealth of Australia but, when used             11
           in a geographical sense, does not include an external Territory;            12
           confer, in relation to a function, includes impose;                         13
           contravene includes fail to comply with;                                    14
           country includes--                                                          15
            (a) a federation; or                                                       16
           (b) a state, province or other part of a federation;                        17
           date of assent, in relation to an Act, means the day on which the Act       18
           receives the Royal Assent;                                                  19
           definition means a provision of this Law (however expressed) that--         20
            (a) gives a meaning to a word or expression; or                            21
           (b) limits or extends the meaning of a word or expression;                  22
           document means any record of information and includes--                     23
            (a) any paper or other material on which there is writing; or              24
           (b) any paper or other material on which there are marks, figures,          25
                  symbols or perforations having a meaning for a person qualified      26
                  to interpret them; or                                                27
            (c) any computer, disc, tape or other article or any material from         28
                  which sounds, images, writings or messages are capable of being      29
                  reproduced (with or without the aid of another article or device);   30
                  or                                                                   31
           (d) a map, plan, drawing or photograph;                                     32
           electronic communication means--                                            33
            (a) a communication of information in the form of data, text or            34
                  images by means of guided or unguided electromagnetic energy,        35
                  or both; or                                                          36
           (b) a communication of information in the form of sound by means            37
                  of guided or unguided electromagnetic energy, or both, where the     38




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                     sound is processed at its destination by an automated voice            1
                     recognition system;                                                    2
              estate includes easement, charge, right, title, claim, demand, lien or        3
              encumbrance, whether at law or in equity;                                     4
              expire includes lapse or otherwise cease to have effect;                      5
              external Territory means a Territory, other than an internal Territory,       6
              for the government of which as a Territory provision is made by a             7
              Commonwealth Act;                                                             8
              fail includes refuse;                                                         9
              financial year means a period of 12 months beginning on 1 July;              10
              function includes a power or duty;                                           11
              Government Printer means the Government Printer of this jurisdiction,        12
              and includes any other person authorised by the Government of this           13
              jurisdiction to print an Act or instrument;                                  14
              individual means a natural person;                                           15
              information system means a system for generating, sending, receiving,        16
              storing or otherwise processing electronic communications;                   17
              insert, in relation to a provision of this Law, includes substitute;         18
              instrument includes a statutory instrument;                                  19
              interest, in relation to land or other property, means--                     20
               (a) a legal or equitable estate in the land or other property; or           21
              (b) a right, power or privilege over, or in relation to, the land or other   22
                     property;                                                             23
              internal Territory means the Australian Capital Territory, the Jervis        24
              Bay Territory or the Northern Territory;                                     25
              Jervis Bay Territory means the Territory mentioned in the Jervis Bay         26
              Territory Acceptance Act 1915 of the Commonwealth;                           27
              make includes issue or grant;                                                28
              minor means an individual who is under 18;                                   29
              modification includes addition, omission or substitution;                    30
              month means a calendar month;                                                31
              named month means 1 of the 12 months of the year;                            32
              Northern Territory means the Northern Territory of Australia;                33
              number means--                                                               34
               (a) a number expressed in figures or words; or                              35
              (b) a letter; or                                                             36
               (c) a combination of a number so expressed and a letter;                    37




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           oath, in relation to a person allowed by law to affirm, declare or           1
           promise, includes affirmation, declaration or promise;                       2
           office includes position;                                                    3
           omit, in relation to a provision of this Law or an Act, includes repeal;     4
           party includes an individual or a body politic or corporate;                 5
           penalty includes forfeiture or punishment;                                   6
           person includes an individual or a body politic or corporate;                7
           power includes authority;                                                    8
           prescribed means prescribed by, or by regulations made or in force for       9
           the purposes of or under, this Law;                                         10
           printed includes typewritten, lithographed or reproduced by any             11
           mechanical means;                                                           12
           proceeding means a legal or other action or proceeding;                     13
           property means any legal or equitable estate or interest (whether present   14
           or future, vested or contingent, or tangible or intangible) in real or      15
           personal property of any description (including money), and includes        16
           things in action;                                                           17
           provision, in relation to this Law or an Act, means words or other matter   18
           that form or forms part of this Law or the Act, and includes--              19
            (a) a Chapter, Part, Division, Subdivision, section, subsection,           20
                  paragraph, subparagraph, subsubparagraph or Schedule of or to        21
                  this Law or the Act; or                                              22
           (b) a clause, section, subsection, item, column, table or form of or in     23
                  a Schedule to this Law or the Act; or                                24
            (c) the long title and any preamble to the Act;                            25
           repeal includes--                                                           26
            (a) revoke or rescind; or                                                  27
           (b) repeal by implication; or                                               28
            (c) abrogate or limit the effect of this Law or instrument concerned;      29
                  or                                                                   30
           (d) exclude from, or include in, the application of this Law or             31
                  instrument concerned, any person, subject matter or                  32
                  circumstance;                                                        33
           sign includes the affixing of a seal or the making of a mark;               34
           statutory declaration means a declaration made under an Act of this         35
           jurisdiction, or under a Commonwealth Act or an Act of another              36
           jurisdiction, that authorises a declaration to be made otherwise than in    37
           the course of a judicial proceeding;                                        38




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              statutory instrument means an instrument (including a regulation)            1
              made or in force under or for the purposes of this Law, and includes an      2
              instrument made or in force under any such instrument;                       3
              swear, in relation to a person allowed by law to affirm, declare or          4
              promise, includes affirm, declare or promise;                                5
              word includes any symbol, figure or drawing;                                 6
              writing includes any mode of representing or reproducing words in a          7
              visible form;                                                                8
              year, without specifying the type of year, means calendar year.              9

       (2)    In a statutory instrument--                                                 10
              the Law means this Law.                                                     11

13     Provisions relating to defined terms and gender and number                         12

       (1)    If this Law defines a word or expression, other parts of speech and         13
              grammatical forms of the word or expression have corresponding              14
              meanings.                                                                   15

       (2)    Definitions in or applicable to this Law apply except so far as the         16
              context or subject matter otherwise indicates or requires.                  17

       (3)    In this Law, words indicating a gender include each other gender.           18

       (4)    In this Law--                                                               19
               (a) words in the singular include the plural; and                          20
              (b) words in the plural include the singular.                               21

14     Meaning of may and must etc                                                        22

       (1)    In this Law, the word "may", or a similar word or expression, used in       23
              relation to a power indicates that the power may be exercised or not        24
              exercised, at discretion.                                                   25

       (2)    In this Law, the word "must", or a similar word or expression, used in      26
              relation to a power indicates that the power is required to be exercised.   27

       (3)    This clause has effect despite any rule of construction to the contrary.    28

15     Words and expressions used in statutory instruments                                29

       (1)    Words and expressions used in a statutory instrument have the same          30
              meanings as they have, from time to time, in this Law, or relevant          31
              provisions of this Law, under or for the purposes of which the              32
              instrument is made or in force.                                             33

       (2)    This clause has effect in relation to an instrument except so far as the    34
              contrary intention appears in the instrument.                               35




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16     Effect of express references to bodies corporate and individuals                      1
             In this Law, a reference to a person generally (whether the expression          2
             "person", "party", "someone", "anyone", "no-one", "one", "another" or           3
             "whoever" or another expression is used)--                                      4
              (a) does not exclude a reference to a body corporate or an individual          5
                    merely because elsewhere in this Law there is particular                 6
                    reference to a body corporate (however expressed); and                   7
             (b) does not exclude a reference to an individual or a body corporate           8
                    merely because elsewhere in this Law there is particular                 9
                    reference to an individual (however expressed).                         10

17     Production of records kept in computers etc                                          11

             If a person who keeps a record of information by means of a                    12
             mechanical, electronic or other device is required by or under this            13
             Law--                                                                          14
              (a) to produce the information or a document containing the                   15
                    information to a court, tribunal or person; or                          16
             (b) to make a document containing the information available for                17
                    inspection by a court, tribunal or person,                              18
             then, unless the court, tribunal or person otherwise directs--                 19
              (c) the requirement obliges the person to produce or make available           20
                    for inspection (as the case may be) a document that reproduces          21
                    the information in a form capable of being understood by the            22
                    court, tribunal or person; and                                          23
             (d) the production to the court, tribunal or person of the document in         24
                    that form complies with the requirement.                                25

18     References to this jurisdiction to be implied                                        26

             In this Law--                                                                  27
              (a) a reference to an officer, office or statutory body is a reference to     28
                    such an officer, office or statutory body in and for this               29
                    jurisdiction; and                                                       30
             (b) a reference to a locality or other matter or thing is a reference to       31
                    such a locality or other matter or thing in and of this jurisdiction.   32

19     References to officers and holders of offices                                        33

             In this Law, a reference to a particular officer, or to the holder of a        34
             particular office, includes a reference to the person for the time being       35
             occupying or acting in the office concerned.                                   36




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20     Reference to certain provisions of Law                                               1
              If a provision of this Law refers--                                           2
               (a) to a Part, section or Schedule by a number and without reference         3
                       to this Law--the reference is a reference to the Part, section or    4
                       Schedule, designated by the number, of or to this Law; or            5
              (b) to a Schedule without reference to it by a number and without             6
                       reference to this Law--the reference, if there is only 1 Schedule    7
                       to this Law, is a reference to the Schedule; or                      8
               (c) to a Division, Subdivision, subsection, paragraph, subparagraph,         9
                       subsubparagraph, clause, subclause, item, column, table or form     10
                       by a number and without reference to this Law--the reference is     11
                       a reference to--                                                    12
                        (i) the Division, designated by the number, of the Part in         13
                              which the reference occurs; and                              14
                       (ii) the Subdivision, designated by the number, of the Division     15
                              in which the reference occurs; and                           16
                      (iii) the subsection, designated by the number, of the section in    17
                              which the reference occurs; and                              18
                      (iv) the paragraph, designated by the number, of the section,        19
                              subsection, Schedule or other provision in which the         20
                              reference occurs; and                                        21
                       (v) the paragraph, designated by the number, of the section,        22
                              subsection, item, column, table or form of or in the         23
                              Schedule in which the reference occurs; and                  24
                      (vi) the subparagraph, designated by the number, of the              25
                              paragraph in which the reference occurs; and                 26
                     (vii) the subsubparagraph, designated by the number, of the           27
                              subparagraph in which the reference occurs; and              28
                    (viii) the clause, section, subsection, item, column, table or         29
                              form, designated by the number, of or in the Schedule in     30
                              which the reference occurs,                                  31
                       as the case requires.                                               32

21     Reference to provisions of this Law or an Act is inclusive                          33

              In this Law, a reference to a portion of this Law or an Act includes--       34
               (a) a reference to the Chapter, Part, Division, Subdivision, section,       35
                     subsection or other provision of this Law or the Act referred to      36
                     that forms the beginning of the portion; and                          37




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             (b)    a reference to the Chapter, Part, Division, Subdivision, section,                 1
                    subsection or other provision of this Law or the Act referred to                  2
                    that forms the end of the portion.                                                3
             Example. A reference to "sections 5 to 9" includes both section 5 and section 9.         4
             It is not necessary to refer to "sections 5 to 9 (both inclusive)" to ensure that the    5
             reference is given an inclusive interpretation.                                          6


Part 4       Functions and powers                                                                     7

22     Exercise of statutory functions                                                                8

       (1)   If this Law confers a function on a person or body, the function may be                  9
             exercised from time to time as occasion requires.                                       10

       (2)   If this Law confers a function on a particular officer or the holder of a               11
             particular office, the function may be exercised by the person for the                  12
             time being occupying or acting in the office concerned.                                 13

       (3)   If this Law confers a function on a body (whether or not incorporated),                 14
             the exercise of the function is not affected merely because of vacancies                15
             in the membership of the body.                                                          16

23     Power to make instrument or decision includes power to amend or                               17
       repeal                                                                                        18

             If this Law authorises or requires the making of an instrument or                       19
             decision--                                                                              20
              (a) the power includes power to amend or repeal the instrument or                      21
                    decision; and                                                                    22
             (b) the power to amend or repeal the instrument or decision is                          23
                    exercisable in the same way, and subject to the same conditions,                 24
                    as the power to make the instrument or decision.                                 25

24     Matters for which statutory instruments may make provision                                    26

       (1)   If this Law authorises or requires the making of a statutory instrument                 27
             in relation to a matter, a statutory instrument made under this Law may                 28
             make provision for the matter by applying, adopting or incorporating                    29
             (with or without modification) the provisions of--                                      30
              (a) an Act or statutory instrument; or                                                 31
             (b) another document (whether of the same or a different kind), as in                   32
                     force at a particular time or as in force from time to time.                    33

       (2)   If a statutory instrument applies, adopts or incorporates the provisions                34
             of a document, the statutory instrument applies, adopts or incorporates                 35
             the provisions as in force from time to time, unless the statutory                      36
             instrument otherwise expressly provides.                                                37




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       (3)    A statutory instrument may--                                                 1
              (a) apply generally throughout this jurisdiction or be limited in its        2
                    application to a particular part of this jurisdiction; or              3
              (b) apply generally to all persons, matters or things or be limited in       4
                    its application to--                                                   5
                      (i) particular persons, matters or things; or                        6
                     (ii) particular classes of persons, matters or things; or             7
              (c) otherwise apply generally or be limited in its application by            8
                    reference to specified exceptions or factors.                          9

       (4)    A statutory instrument may--                                                10
              (a) apply differently according to different specified factors; or          11
              (b) otherwise make different provision in relation to--                     12
                      (i) different persons, matters or things; or                        13
                     (ii) different classes of persons, matters or things.                14

       (5)    A statutory instrument may authorise a matter or thing to be from time      15
              to time determined, applied or regulated by a specified person or body.     16

       (6)    If this Law authorises or requires a matter to be regulated by statutory    17
              instrument, the power may be exercised by prohibiting by statutory          18
              instrument the matter or any aspect of the matter.                          19

       (7)    If this Law authorises or requires provision to be made with respect to     20
              a matter by statutory instrument, a statutory instrument made under this    21
              Law may make provision with respect to a particular aspect of the           22
              matter despite the fact that provision is made by this Law in relation to   23
              another aspect of the matter or in relation to another matter.              24

       (8)    A statutory instrument may provide for the review of, or a right of         25
              appeal against, a decision made under the statutory instrument, or this     26
              Law, and may, for that purpose, confer jurisdiction on any court,           27
              tribunal, person or body.                                                   28

       (9)    A statutory instrument may require a form prescribed by or under the        29
              statutory instrument, or information or documents included in, attached     30
              to or given with the form, to be verified by statutory declaration.         31

25     Presumption of validity and power to make                                          32

       (1)    All conditions and preliminary steps required for the making of a           33
              statutory instrument are presumed to have been satisfied and performed      34
              in the absence of evidence to the contrary.                                 35

       (2)    A statutory instrument is taken to be made under all powers under which     36
              it may be made, even though it purports to be made under this Law or a      37
              particular provision of this Law.                                           38




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26     Appointments may be made by name or office                                           1
       (1)   If this Law authorises or requires a person or body--                          2
              (a) to appoint a person to an office; or                                      3
             (b) to appoint a person or body to exercise a power; or                        4
              (c) to appoint a person or body to do another thing,                          5
             the person or body may make the appointment by--                               6
             (d) appointing a person or body by name; or                                    7
              (e) appointing a particular officer, or the holder of a particular office,    8
                     by reference to the title of the office concerned.                     9

       (2)   An appointment of a particular officer, or the holder of a particular         10
             office, is taken to be the appointment of the person for the time being       11
             occupying or acting in the office concerned.                                  12

27     Acting appointments                                                                 13

       (1)   If this Law authorises a person or body to appoint a person to act in an      14
             office, the person or body may, in accordance with this Law, appoint--        15
              (a) a person by name; or                                                     16
             (b) a particular officer, or the holder of a particular office, by            17
                     reference to the title of the office concerned,                       18
             to act in the office.                                                         19

       (2)   The appointment may be expressed to have effect only in the                   20
             circumstances specified in the instrument of appointment.                     21

       (3)   The appointer may--                                                           22
             (a) determine the terms and conditions of the appointment, including          23
                   remuneration and allowances; and                                        24
             (b) terminate the appointment at any time.                                    25

       (4)   The appointment, or the termination of the appointment, must be in, or        26
             evidenced by, writing signed by the appointer.                                27

       (5)   The appointee must not act for more than 1 year during a vacancy in the       28
             office.                                                                       29

       (6)   If the appointee is acting in the office otherwise than because of a          30
             vacancy in the office and the office becomes vacant, then, subject to         31
             subclause (2), the appointee may continue to act until--                      32
              (a) the appointer otherwise directs; or                                      33
             (b) the vacancy is filled; or                                                 34
              (c) the end of a year from the day of the vacancy,                           35
             whichever happens first.                                                      36



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       (7)    The appointment ceases to have effect if the appointee resigns by             1
              writing signed and delivered to the appointer.                                2

       (8)    While the appointee is acting in the office--                                 3
              (a) the appointee has all the powers and functions of the holder of the       4
                    office; and                                                             5
              (b) this Law and other laws apply to the appointee as if the appointee        6
                    were the holder of the office.                                          7

       (9)    Anything done by or in relation to a person purporting to act in the          8
              office is not invalid merely because--                                        9
              (a) the occasion for the appointment had not arisen; or                      10
              (b) the appointment had ceased to have effect; or                            11
              (c) the occasion for the person to act had not arisen or had ceased.         12

      (10)    If this Law authorises the appointer to appoint a person to act during a     13
              vacancy in the office, an appointment to act in the office may be made       14
              by the appointer whether or not an appointment has previously been           15
              made to the office.                                                          16

28     Powers of appointment imply certain incidental powers                               17

       (1)    If this Law authorises or requires a person or body to appoint a person      18
              to an office--                                                               19
               (a) the power may be exercised from time to time as occasion                20
                      requires; and                                                        21
              (b) the power includes--                                                     22
                       (i) power to remove or suspend, at any time, a person               23
                            appointed to the office; and                                   24
                      (ii) power to appoint another person to act in the office if a       25
                            person appointed to the office is removed or suspended;        26
                            and                                                            27
                     (iii) power to reinstate or reappoint a person removed or             28
                            suspended; and                                                 29
                     (iv) power to appoint a person to act in the office if it is vacant   30
                            (whether or not the office has ever been filled); and          31
                      (v) power to appoint a person to act in the office if the person     32
                            appointed to the office is absent or is unable to discharge    33
                            the functions of the office (whether because of illness or     34
                            otherwise).                                                    35

       (2)    The power to remove or suspend a person under subclause (1)(b) may           36
              be exercised even if this Law provides that the holder of the office to      37
              which the person was appointed is to hold office for a specified period.     38




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       (3)   The power to make an appointment under subclause (1)(b) may be                1
             exercised from time to time as occasion requires.                             2

       (4)   An appointment under subclause (1)(b) may be expressed to have effect         3
             only in the circumstances specified in the instrument of appointment.         4

29     Delegation of functions                                                             5

       (1)   If this Law authorises a person or body to delegate a function, the person    6
             or body may, in accordance with this Law and any other applicable law,        7
             delegate the function to--                                                    8
              (a) a person or body by name; or                                             9
             (b) a specified officer, or the holder of a specified office, by             10
                     reference to the title of the office concerned.                      11

       (2)   The delegation may--                                                         12
             (a) be general or limited; and                                               13
             (b) be made from time to time; and                                           14
             (c) be revoked, wholly or partly, by the delegator.                          15

       (3)   The delegation, or a revocation of the delegation, must be in, or            16
             evidenced by, writing signed by the delegator or, if the delegator is a      17
             body, by a person authorised by the body for the purpose.                    18

       (4)   A delegated function may be exercised only in accordance with any            19
             conditions to which the delegation is subject.                               20

       (5)   The delegate may, in the exercise of a delegated function, do anything       21
             that is incidental to the delegated function.                                22

       (6)   A delegated function that purports to have been exercised by the             23
             delegate is taken to have been properly exercised by the delegate unless     24
             the contrary is proved.                                                      25

       (7)   A delegated function that is properly exercised by the delegate is taken     26
             to have been exercised by the delegator.                                     27

       (8)   If, when exercised by the delegator, a function is dependent on the          28
             delegator's opinion, belief or state of mind, then, when exercised by the    29
             delegate, the function is dependent on the delegate's opinion, belief or     30
             state of mind.                                                               31

       (9)   If--                                                                         32
              (a) the delegator is a specified officer or the holder of a specified       33
                  office; and                                                             34
             (b) the person who was the specified officer or holder of the specified      35
                  office when the delegation was made ceases to be the holder of          36
                  the office,                                                             37




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Rail Safety National Law                                                  Note




              then--                                                                        1
               (c) the delegation continues in force; and                                   2
              (d) the person for the time being occupying or acting in the office           3
                    concerned is taken to be the delegator for the purposes of this         4
                    clause.                                                                 5

      (10)    If--                                                                          6
               (a) the delegator is a body; and                                             7
              (b) there is a change in the membership of the body,                          8
              then--                                                                        9
               (c) the delegation continues in force; and                                  10
              (d) the body as constituted for the time being is taken to be delegator      11
                    for the purposes of this clause.                                       12

      (11)    If a function is delegated to a specified officer or the holder of a         13
              specified office--                                                           14
               (a) the delegation does not cease to have effect merely because the         15
                     person who was the specified officer or the holder of the specified   16
                     office when the function was delegated ceases to be the officer or    17
                     the holder of the office; and                                         18
              (b) the function may be exercised by the person for the time being           19
                     occupying or acting in the office concerned.                          20

      (12)    A function that has been delegated may, despite the delegation, be           21
              exercised by the delegator.                                                  22

      (13)    The delegation of a function does not relieve the delegator of the           23
              delegator's obligation to ensure that the function is properly exercised.    24

      (14)    Subject to subclause (15), this clause applies to a subdelegation of a       25
              function in the same way as it applies to a delegation of a function.        26

      (15)    If this Law authorises the delegation of a function, the function may be     27
              subdelegated only if this Law expressly authorises the function to be        28
              subdelegated.                                                                29

30     Exercise of powers between enactment and commencement                               30

       (1)    If a provision of this Law (the empowering provision) that does not          31
              commence on its enactment would, had it commenced, confer a                  32
              power--                                                                      33
               (a) to make an appointment; or                                              34
              (b) to make a statutory instrument of a legislative or administrative        35
                     character; or                                                         36
               (c) to do another thing,                                                    37




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             then--                                                                   1
             (d) the power may be exercised; and                                      2
              (e) anything may be done for the purpose of enabling the exercise of    3
                   the power or of bringing the appointment, instrument or other      4
                   thing into effect,                                                 5
             before the empowering provision commences.                               6

       (2)   If a provision of a South Australian Act (the empowering provision)      7
             that does not commence on its enactment would, had it commenced,         8
             amend a provision of this Law so that it would confer a power--          9
              (a) to make an appointment; or                                         10
             (b) to make a statutory instrument of a legislative or administrative   11
                    character; or                                                    12
              (c) to do another thing,                                               13
             then--                                                                  14
             (d) the power may be exercised; and                                     15
              (e) anything may be done for the purpose of enabling the exercise of   16
                    the power or of bringing the appointment, instrument or other    17
                    thing into effect,                                               18
             before the empowering provision commences.                              19

       (3)   If--                                                                    20
              (a) this Law has commenced and confers a power to make a statutory     21
                   instrument (the basic instrument-making power); and               22
             (b) a provision of a South Australian Act that does not commence on     23
                   its enactment would, had it commenced, amend this Law so as to    24
                   confer additional power to make a statutory instrument (the       25
                   additional instrument-making power),                              26
             then--                                                                  27
              (c) the basic instrument-making power and the additional               28
                   instrument-making power may be exercised by making a single       29
                   instrument; and                                                   30
             (d) any provision of the instrument that required an exercise of the    31
                   additional instrument-making power is to be treated as made       32
                   under subclause (2).                                              33

       (4)   If an instrument, or a provision of an instrument, is made under        34
             subclause (1) or (2) that is necessary for the purpose of--             35
              (a) enabling the exercise of a power mentioned in the subclause; or    36
             (b) bringing an appointment, instrument or other thing made or done     37
                   under such a power into effect,                                   38




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Rail Safety National Law                                                   Note




              the instrument or provision takes effect--                                     1
               (c) on the making of the instrument; or                                       2
              (d) on such later day (if any) on which, or at such later time (if any)        3
                     at which, the instrument or provision is expressed to take effect.      4

       (5)    If--                                                                           5
               (a) an appointment is made under subclause (1) or (2); or                     6
              (b) an instrument, or a provision of an instrument, made under                 7
                    subclause (1) or (2) is not necessary for a purpose mentioned in         8
                    subclause (4),                                                           9
              the appointment, instrument or provision takes effect--                       10
               (c) on the commencement of the relevant empowering provision; or             11
              (d) on such later day (if any) on which, or at such later time (if any)       12
                    at which, the appointment, instrument or provision is expressed         13
                    to take effect.                                                         14

       (6)    Anything done under subclause (1) or (2) does not confer a right, or          15
              impose a liability, on a person before the relevant empowering                16
              provision commences.                                                          17

       (7)    After the enactment of a provision mentioned in subclause (1) but             18
              before the provision's commencement, this clause applies as if the            19
              references in subclauses (2) and (5) to the commencement of the               20
              empowering provision were references to the commencement of the               21
              provision mentioned in subclause (2) as amended by the empowering             22
              provision.                                                                    23

       (8)    In the application of this clause to a statutory instrument, a reference to   24
              the enactment of the instrument is a reference to the making of the           25
              instrument.                                                                   26


Part 5        Distance, time and age                                                        27

31     Matters relating to distance, time and age                                           28

       (1)    In the measurement of distance for the purposes of this Law, the              29
              distance is to be measured along the shortest road ordinarily used for        30
              travelling.                                                                   31

       (2)    If a period beginning on a given day, act or event is provided or allowed     32
              for a purpose by this Law, the period is to be calculated by excluding        33
              the day, or the day of the act or event, and--                                34
               (a) if the period is expressed to be a specified number of clear days        35
                     or at least a specified number of days--by excluding the day on        36
                     which the purpose is to be fulfilled; and                              37




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             (b)   in any other case--by including the day on which the purpose is           1
                   to be fulfilled.                                                          2

       (3)   If the last day of a period provided or allowed by this Law for doing           3
             anything is not a business day in the place in which the thing is to be or      4
             may be done, the thing may be done on the next business day in the              5
             place.                                                                          6

       (4)   If the last day of a period provided or allowed by this Law for the filing      7
             or registration of a document is a day on which the office is closed            8
             where the filing or registration is to be or may be done, the document          9
             may be filed or registered at the office on the next day that the office is    10
             open.                                                                          11

       (5)   If no time is provided or allowed for doing anything, the thing is to be       12
             done as soon as possible, and as often as the prescribed occasion              13
             happens.                                                                       14

       (6)   If, in this Law, there is a reference to time, the reference is, in relation   15
             to the doing of anything in a jurisdiction, a reference to the legal time in   16
             the jurisdiction.                                                              17

       (7)   For the purposes of this Law, a person attains an age in years at the          18
             beginning of the person's birthday for the age.                                19


Part 6       Effect of repeal, amendment or expiration                                      20

32     Time of Law ceasing to have effect                                                   21

             If a provision of this Law is expressed--                                      22
              (a) to expire on a specified day; or                                          23
             (b) to remain or continue in force, or otherwise have effect, until a          24
                    specified day,                                                          25
             this provision has effect until the last moment of the specified day.          26

33     Repealed provisions not revived                                                      27

             If a provision of this Law is repealed or amended by a South Australian        28
             Act, or a provision of a South Australian Act, the provision is not            29
             revived merely because the South Australian Act or the provision of the        30
             South Australian Act--                                                         31
              (a) is later repealed or amended; or                                          32
             (b) later expires.                                                             33




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34     Saving of operation of repealed Law provisions                                     1
       (1)    The repeal, amendment or expiry of a provision of this Law does not--       2
              (a) revive anything not in force or existing at the time the repeal,        3
                    amendment or expiry takes effect; or                                  4
              (b) affect the previous operation of the provision or anything              5
                    suffered, done or begun under the provision; or                       6
              (c) affect a right, privilege or liability acquired, accrued or incurred    7
                    under the provision; or                                               8
              (d) affect a penalty incurred in relation to an offence arising under       9
                    the provision; or                                                    10
              (e) affect an investigation, proceeding or remedy in relation to such      11
                    a right, privilege, liability or penalty.                            12

       (2)    Any such penalty may be imposed and enforced, and any such                 13
              investigation, proceeding or remedy may be begun, continued or             14
              enforced, as if the provision had not been repealed or amended or had      15
              not expired.                                                               16

35     Continuance of repealed provisions                                                17

              If a South Australian Act repeals some provisions of this Law and          18
              enacts new provisions in substitution for the repealed provisions, the     19
              repealed provisions continue in force until the new provisions             20
              commence.                                                                  21

36     Law and amending Acts to be read as one                                           22

              This Law and all South Australian Acts amending this Law are to be         23
              read as one.                                                               24


Part 7        Instruments under Law                                                      25

37     Schedule applies to statutory instruments                                         26

       (1)    This Schedule applies to a statutory instrument, and to things that may    27
              be done or are required to be done under a statutory instrument, in the    28
              same way as it applies to this Law, and things that may be done or are     29
              required to be done under this Law, except so far as the context or        30
              subject matter otherwise indicates or requires.                            31




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       (2)   The fact that a provision of this Schedule refers to this Law and not also   1
             to a statutory instrument does not, by itself, indicate that the provision   2
             is intended to apply only to this Law.                                       3




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