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Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 No , 2005 A Bill for An Act to amend the Transport Administration Act 1988, the Rail Safety Act 2002, the Passenger Transport Act 1990 and other transport legislation to implement the recommendations of the Special Commission of Inquiry into the Waterfall Rail Accident.
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Clause 1 Recommendations) Bill 2005 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Transport Legislation Amendment (Implementation of 3 Waterfall Rail Inquiry Recommendations) Act 2005. 4 2 Commencement 5 This Act commences on the date of assent. 6 3 Amendment of Acts 7 The Acts specified in Schedules 14 are amended as set out in those 8 Schedules. 9 4 Amendment of Rail Safety (Drug and Alcohol Testing) Regulation 2003 10 The Rail Safety (Drug and Alcohol Testing) Regulation 2003 is 11 amended as set out in Schedule 5. 12 Page 2
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 Schedule 1 Amendment of Transport Administration 1 Act 1988 No 109 2 (Section 3) 3 [1] Section 3 Definitions 4 Insert in alphabetical order in section 3 (1): 5 Chief Investigator means the Chief Investigator of the Office of 6 Transport Safety Investigations appointed under section 42S. 7 Joint Committee means the joint committee called the 8 Independent Transport Safety Regulator Oversight Committee, 9 constituted under this Act. 10 [2] Section 3 (1), definition of "Independent Transport Safety and Reliability 11 Advisory Board" 12 Omit the definition. 13 [3] Section 42A Definitions 14 Omit the definitions of Board and Chief Investigator. 15 [4] Section 42D General functions of ITSRR 16 Insert after section 42D (2) (h): 17 (i) without limiting any other functions conferred or imposed 18 on it, to be the body responsible for the oversight of rail 19 safety in this State. 20 [5] Section 42E ITSRR may advise on and monitor safety and reliability 21 Omit "Chairperson of the Board" from section 42E (2) (c). 22 Insert instead "Chief Investigator". 23 [6] Section 42E (2) (e) 24 Insert after section 42E (2) (d): 25 (e) the implementation of the recommendations contained in 26 Chapter 25 of the Final Report of the Special Commission 27 of Inquiry into the Waterfall Rail Accident dated 17 28 January 2005. 29 [7] Section 42G Reports to Parliament on performance 30 Omit "the Minister" in section 42G (1) and (3) wherever occurring. 31 Insert instead "each House of Parliament". 32 Page 3
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 [8] Section 42G (4) 1 Insert after section 42G (3): 2 (4) Section 42ZA applies to a report to each House of Parliament 3 under this section in the same way as it applies to a report by the 4 Joint Committee. 5 [9] Section 42H Referral of reports to Independent Transport Safety and 6 Reliability Advisory Board 7 Omit the section. 8 [10] Section 42J Duties of authorities and owners and operators to 9 co-operate with ITSRR 10 Omit "Chairperson of the Board" and "Chairperson" from section 42J (c). 11 Insert instead "Chief Investigator". 12 [11] Section 42M Chief Executive of ITSRR 13 Omit section 42M (2). 14 [12] Section 42P Limitations on Ministerial control of ITSRR 15 Omit the section. 16 [13] Section 42S Chief Investigator 17 Omit "on the recommendation of the Chairperson of the Board" wherever 18 occurring in section 42S (2) and (4). 19 [14] Section 42S (3) 20 Omit the subsection. 21 [15] Section 42S (6) (a) 22 Insert ", including the initiation of any such inquiry by the Chief Investigator" 23 after "rail safety inquiry". 24 [16] Section 42S (6) (b) 25 Insert ", including the initiation of any such inquiry by the Chief Investigator" 26 after "transport safety inquiry". 27 [17] Section 42S (6) (c) and note 28 Omit the paragraph and note. Insert instead: 29 (c) functions relating to an investigation under the Marine 30 Safety Act 1998. 31 Page 4
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 [18] Part 4A, Division 6 1 Omit Divisions 6 and 7. Insert instead: 2 Division 6 Parliamentary accountability 3 42T Special reports 4 (1) The ITSRR may, at any time, make a special report to the 5 Presiding Officer of each House of Parliament and must also 6 provide the Minister with a copy of the report (but only after 7 providing a copy to the Presiding Officer) on any matter arising 8 in respect of the discharge of the ITSRR's functions. 9 (2) The ITSRR may include in a report under subsection (1) a 10 recommendation that the report be made public forthwith. 11 (3) Section 42ZA applies to a special report to each House of 12 Parliament under this section in the same way as it applies to a 13 report by the Joint Committee. 14 42U Constitution of Joint Committee 15 (1) As soon as practicable after the commencement of this Division, 16 a joint committee of members of Parliament, to be known as the 17 Independent Transport Safety Regulator Oversight Committee, is 18 to be appointed. 19 (2) The Joint Committee has and may exercise the functions 20 conferred or imposed on it by or under this or any other Act. 21 42V Functions 22 (1) The Joint Committee has the following functions under this Act: 23 (a) to monitor and to review the exercise by the ITSRR of the 24 functions of the ITSRR under this or any other Act, 25 (b) to monitor and to review the progress made with respect to 26 the implementation of the recommendations of the Final 27 Report of the Special Commission of Inquiry into the 28 Waterfall Rail Accident dated 17 January 2005, 29 (c) to report to both Houses of Parliament, with such 30 comments as it thinks fit, on any matter appertaining to the 31 ITSRR or connected with the exercise of the functions of 32 ITSRR or connected with the progress of the 33 implementation of the recommendations to which, in the 34 opinion of the Joint Committee, the attention of Parliament 35 should be directed, 36 Page 5
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 (d) to report to both Houses of Parliament any change that the 1 Joint Committee considers desirable in respect of the 2 functions, structures and procedures of the ITSRR or in 3 respect of the implementation of the recommendations, 4 (e) to inquire into any question in connection with the Joint 5 Committee's functions which is referred to it by both 6 Houses of Parliament, and to report to both Houses on that 7 question. 8 (2) Nothing in this Division authorises the Joint Committee: 9 (a) to reconsider a decision to hold, or not to hold, a rail safety 10 inquiry or a transport safety inquiry, or 11 (b) to reconsider the findings, recommendations or 12 determinations of a person conducting a rail safety inquiry 13 or a transport safety inquiry, the ITSRR or the Chief 14 Investigator in relation to a transport accident or incident. 15 (3) The functions of the Joint Committee may be exercised in respect 16 of matters occurring before or after the commencement of this 17 section. 18 42W Membership 19 (1) The Joint Committee is to consist of 7 members, of whom: 20 (a) 3 are to be members of, and appointed by, the Legislative 21 Council, and 22 (b) 4 are to be members of, and appointed by, the Legislative 23 Assembly. 24 (2) The appointment of members of the Joint Committee is, as far as 25 practicable, to be in accordance with the practice of Parliament 26 with reference to the appointment of members to serve on joint 27 committees of both Houses of Parliament. 28 (3) A person is not eligible for appointment as a member of the Joint 29 Committee if the person is a Minister of the Crown or a 30 Parliamentary Secretary. 31 42X Vacancies 32 (1) A member of the Joint Committee ceases to hold office: 33 (a) when the Legislative Assembly is dissolved or expires by 34 the effluxion of time, or 35 (b) if the member becomes a Minister of the Crown or a 36 Parliamentary Secretary, or 37 Page 6
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 (c) if the member ceases to be a member of the Legislative 1 Council or Legislative Assembly, or 2 (d) if, being a member of the Legislative Council, the member 3 resigns the office by instrument in writing addressed to the 4 President of the Legislative Council, or 5 (e) if, being a member of the Legislative Assembly, the 6 member resigns the office by instrument in writing 7 addressed to the Speaker of the Legislative Assembly, or 8 (f) if the member is discharged from office by the House of 9 Parliament to which the member belongs. 10 (2) Either House of Parliament may appoint one of its members to fill 11 a vacancy among the members of the Joint Committee appointed 12 by that House. 13 42Y Chairperson and Vice-Chairperson 14 (1) There is to be a Chairperson and a Vice-Chairperson of the Joint 15 Committee, who are to be elected by and from the members of the 16 Joint Committee. 17 (2) A member of the Joint Committee ceases to hold office as 18 Chairperson or Vice-Chairperson of the Joint Committee if: 19 (a) the member ceases to be a member of the Committee, or 20 (b) the member resigns the office by instrument in writing 21 presented to a meeting of the Committee, or 22 (c) the member is discharged from office by the Committee. 23 (3) At any time when the Chairperson is absent from New South 24 Wales or is, for any reason, unable to perform the duties of 25 Chairperson or there is a vacancy in that office, the 26 Vice-Chairperson may exercise the functions of the Chairperson 27 under this Act or under the Parliamentary Evidence Act 1901. 28 42Z Procedure 29 (1) The procedure for the calling of meetings of the Joint Committee 30 and for the conduct of business at those meetings is, subject to 31 this Act, to be as determined by the Committee. 32 (2) The Clerk of the Legislative Assembly is to call the first meeting 33 of the Joint Committee in each Parliament in such manner as the 34 Clerk thinks fit. 35 (3) At a meeting of the Joint Committee, 3 members constitute a 36 quorum, but the Committee must meet as a joint committee at all 37 times. 38 Page 7
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 (4) The Chairperson or, in the absence of the Chairperson, the 1 Vice-Chairperson (or, in the absence of both the Chairperson and 2 the Vice-Chairperson, a member of the Joint Committee elected 3 to chair the meeting by the members present) is to preside at a 4 meeting of the Joint Committee. 5 (5) The Vice-Chairperson or other member presiding at a meeting of 6 the Joint Committee has, in relation to the meeting, all the 7 functions of the Chairperson. 8 (6) The Chairperson, Vice-Chairperson or other member presiding at 9 a meeting of the Joint Committee has a deliberative vote and, in 10 the event of an equality of votes, also has a casting vote. 11 (7) A question arising at a meeting of the Joint Committee is to be 12 determined by a majority of the votes of the members present and 13 voting. 14 (8) The Joint Committee may sit and transact business despite any 15 prorogation of the Houses of Parliament or any adjournment of 16 either House of Parliament. 17 (9) The Joint Committee may sit and transact business on a sitting 18 day of a House of Parliament during the time of sitting. 19 42ZA Reporting when Parliament not in session 20 (1) If a House of Parliament is not sitting when the Joint Committee 21 seeks to furnish a report to it, the Committee may present copies 22 of the report to the Clerk of the House. 23 (2) The report: 24 (a) on presentation and for all purposes is taken to have been 25 laid before the House, and 26 (b) may be printed by authority of the Clerk, and 27 (c) if printed by authority of the Clerk, is for all purposes taken 28 to be a document published by or under the authority of the 29 House, and 30 (d) is to be recorded in the Minutes, or Votes and Proceedings, 31 of the House on the first sitting day of the House after 32 receipt of the report by the Clerk. 33 42ZB Evidence 34 (1) The Joint Committee has power to send for persons, papers and 35 records. 36 (2) Subject to section 42ZC, the Joint Committee must take all 37 evidence in public. 38 Page 8
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 (3) If the Joint Committee as constituted at any time has taken 1 evidence in relation to a matter but the Committee as so 2 constituted has ceased to exist before reporting on the matter, the 3 Committee as constituted at any subsequent time, whether during 4 the same or another Parliament, may consider that evidence as if 5 it had taken the evidence. 6 (4) The production of documents to the Joint Committee is to be in 7 accordance with the practice of the Legislative Assembly with 8 respect to the production of documents to select committees of 9 the Legislative Assembly. 10 42ZC Confidentiality 11 (1) If any evidence proposed to be given before, or the whole or a 12 part of a document produced or proposed to be produced to, the 13 Joint Committee relates to a secret or confidential matter, the 14 Committee may, and at the request of the witness giving the 15 evidence or the person producing the document, must: 16 (a) take the evidence in private, or 17 (b) direct that the document, or the part of the document, be 18 treated as confidential. 19 (2) If any evidence proposed to be given before, or the whole or a 20 part of a document produced or proposed to be produced in 21 evidence to, the Joint Committee relates to a decision, finding, 22 recommendation or determination referred to in section 42V (2), 23 the Committee may (if it considers it appropriate in the particular 24 case): 25 (a) take the evidence in private, or 26 (b) direct that the document, or the part of the document, be 27 treated as confidential. 28 (3) Despite any other provision of this section except subsection (8), 29 the Joint Committee must not, and a person (including a member 30 of the Committee) must not, disclose any evidence or the contents 31 of a document or that part of a document to which subsection (2) 32 applies. 33 Maximum penalty: 20 penalty units or imprisonment for 3 34 months, or both. 35 (4) If a direction under subsection (1) applies to a document or part 36 of a document produced to the Joint Committee: 37 Page 9
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 (a) the contents of the document or part are, for the purposes 1 of this section, to be regarded as evidence given by the 2 person producing the document or part and taken by the 3 Committee in private, and 4 (b) the person producing the document or part is, for the 5 purposes of this section, to be regarded as a witness. 6 (5) If, at the request of a witness, evidence is taken by the Joint 7 Committee in private: 8 (a) the Committee must not, without the consent in writing of 9 the witness, and 10 (b) a person (including a member of the Committee) must not, 11 without the consent in writing of the witness and the 12 authority of the Committee under subsection (7), 13 disclose or publish the whole or a part of that evidence. 14 Maximum penalty: 20 penalty units or imprisonment for 3 15 months, or both. 16 (6) If evidence is taken by the Joint Committee in private otherwise 17 than at the request of a witness, a person (including a member of 18 the Committee) must not, without the authority of the Committee 19 under subsection (7), disclose or publish the whole or a part of 20 that evidence. 21 Maximum penalty: 20 penalty units or imprisonment for 3 22 months, or both. 23 (7) The Joint Committee may, in its discretion, disclose or publish or, 24 by writing under the hand of the Chairperson, authorise the 25 disclosure or publication of evidence taken in private by the 26 Committee, but this subsection does not operate so as to affect the 27 necessity for the consent of a witness under subsection (5). 28 (8) Nothing in this section prohibits: 29 (a) the disclosure or publication of evidence that has already 30 been lawfully published, or 31 (b) the disclosure or publication by a person of a matter of 32 which the person has become aware otherwise than by 33 reason, directly or indirectly, of the giving of evidence 34 before the Joint Committee. 35 (9) This section has effect despite section 4 of the Parliamentary 36 Papers (Supplementary Provisions) Act 1975. 37 (10) If evidence taken by the Joint Committee in private is disclosed 38 or published in accordance with this section: 39 Page 10
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 (a) sections 5 and 6 of the Parliamentary Papers 1 (Supplementary Provisions) Act 1975 apply to and in 2 relation to the disclosure or publication as if it were a 3 publication of that evidence under the authority of section 4 4 of that Act, and 5 (b) Division 5 of Part 3 of, and Schedule 2 to, the Defamation 6 Act 1974 apply to and in relation to that evidence as if it 7 were taken by the Committee in public. 8 42ZD Application of certain Acts 9 For the purposes of the Parliamentary Evidence Act 1901 and the 10 Parliamentary Papers (Supplementary Provisions) Act 1975 and 11 for any other purposes: 12 (a) the Joint Committee is to be regarded as a joint committee 13 of the Legislative Council and Legislative Assembly, and 14 (b) the proposal for the appointment of the Joint Committee is 15 to be regarded as having originated in the Legislative 16 Assembly. 17 42ZE Validity of certain acts or proceedings 18 Any act or proceeding of the Joint Committee is, even though at 19 the time when the act or proceeding was done, taken or 20 commenced there was: 21 (a) a vacancy in the office of a member of the Committee, or 22 (b) any defect in the appointment, or any disqualification, of a 23 member of the Committee, 24 as valid as if the vacancy, defect or disqualification did not exist 25 and the Committee were fully and properly constituted. 26 42ZF Provisions relating to reports 27 (1) A copy of a report furnished to the Presiding Officer of a House 28 of Parliament under this Division is to be laid before that House 29 within 15 sitting days of that House after it is received by the 30 Presiding Officer. 31 (2) If a report includes a recommendation that the report be made 32 public forthwith, a Presiding Officer of a House of Parliament 33 may make it public whether or not that House is in session and 34 whether or not the report has been laid before that House. 35 (3) If such a report is made public by a Presiding Officer of a House 36 of Parliament before it is laid before that House, it attracts the 37 same privileges and immunities as if it had been laid before that 38 House. 39 Page 11
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 (4) A Presiding Officer need not inquire whether all or any 1 conditions precedent have been satisfied as regards a report 2 purporting to have been made and furnished in accordance with 3 this Act. 4 [19] Section 43 Constitution of Transport Advisory Group 5 Omit "Chairperson of the Independent Transport Safety and Reliability 6 Advisory Board" from section 43 (2) (a). 7 Insert instead "Chief Investigator". 8 [20] Section 44 Functions of Transport Advisory Group 9 Omit "Independent Transport Safety and Reliability Advisory Board" 10 wherever occurring in section 44 (1) and (3). 11 Insert instead "ITSRR". 12 [21] Part 5A 13 Insert after Part 5: 14 Part 5A Waterfall rail inquiry recommendations 15 45A Definitions 16 In this Part: 17 Final Report means the Final Report of the Special Commission 18 of Inquiry into the Waterfall Rail Accident dated 17 January 19 2005. 20 ITSRR means the Independent Transport Safety and Reliability 21 Regulator. 22 45B Implementation of recommendations 23 (1) The Minister must ensure that all of the recommendations 24 contained in Chapter 25 of the Final Report are implemented not 25 later than one year after the commencement of this Part. 26 (2) If a recommendation relates to RailCorp or any function of 27 RailCorp, the Minister may direct RailCorp in this respect and 28 any such direction is taken to be a direction relating to public 29 safety for the purposes of section 16. 30 (3) If a recommendation relates to the ITSRR or any function of the 31 ITSRR, the ITSRR must use its best endeavours to ensure that the 32 recommendation is implemented not later than one year after the 33 commencement of this Part. 34 Page 12
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 (4) If the Minister does not implement the recommendations in 1 accordance with subsection (1), the Minister must prepare a 2 report outlining the recommendations that have not been 3 implemented and the reasons for non-compliance and furnish a 4 report to the Presiding Officer of each House of Parliament. 5 (5) Section 42ZA applies to a report to each House of Parliament 6 under this section in the same way as it applies to a report by the 7 Joint Committee. 8 45C Quarterly reports 9 (1) The ITSRR must, not later than 1 week after 30 June, 30 10 September, 31 December and 31 March in each year, prepare a 11 report of all work and activities in respect of the implementation 12 of the recommendations contained in Chapter 25 of the Final 13 Report for the preceding 3 months, including: 14 (a) a statement as to whether or not each recommendation has 15 been implemented, and 16 (b) if a recommendation has been implemented, a statement as 17 to the effectiveness of the implementation, and 18 (c) if a recommendation has not been implemented, the means 19 by which the safety objective of the recommendation is 20 otherwise being, or going to be, achieved, 21 and furnish the report to the Presiding Officer of each House of 22 Parliament. 23 (2) The requirements contained in subsection (1) continue to apply 24 until all of the recommendations contained in Chapter 25 of the 25 Final Report have been fully implemented. 26 [22] Section 111 Disputes involving transport authorities 27 Omit "relating to a matter referred to in section 42P (2)" from section 111 (5). 28 [23] Section 112 Personal liability of certain persons 29 Omit "Chairperson of the Independent Transport Safety and Reliability 30 Advisory Board" from the definition of member of a transport authority in 31 section 112 (2). 32 Insert instead "Chief Investigator". 33 [24] Section 112 (2), definition of "transport authority" 34 Omit paragraph (a2). 35 Page 13
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 1 Amendment of Transport Administration Act 1988 No 109 [25] Schedule 2A Constitution and procedure of Independent Transport 1 Safety and Reliability Advisory Board 2 Omit the Schedule. 3 [26] Schedule 7 Savings, transitional and other provisions 4 Insert at the end of clause 2 (1): 5 Transport Legislation Amendment (Implementation of Waterfall 6 Rail Inquiry Recommendations) Act 2005 7 [27] Schedule 7, Part 13 8 Insert after Part 12: 9 Part 13 Provisions consequent on enactment of 10 Transport Legislation Amendment 11 (Implementation of Waterfall Rail Inquiry 12 Recommendations) Act 2005 13 148 Definitions 14 In this Part: 15 former Board means the Independent Transport Safety and 16 Reliability Advisory Board constituted by this Act before the 17 commencement of the amending Act. 18 rail safety inquiry means an inquiry under section 67 of the Rail 19 Safety Act 2002. 20 the amending Act means the Transport Legislation Amendment 21 (Implementation of Waterfall Rail Inquiry Recommendations) 22 Act 2005. 23 transport safety inquiry means an inquiry under section 46B of 24 the Passenger Transport Act 1990. 25 149 Members and Chairperson of former Board 26 (1) A person who, immediately before the commencement of the 27 amending Act, held office as a member or Chairperson of the 28 former Board ceases to hold office as such on that 29 commencement. 30 (2) A person who ceases to hold office as a member or Chairperson 31 of the former Board because of the operation of the amending Act 32 is not entitled to be paid any remuneration or compensation 33 because of ceasing to hold that office. 34 Page 14
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Transport Administration Act 1988 No 109 Schedule 1 150 Inquiries 1 (1) This Act, the Rail Safety Act 2002 and the Passenger Transport 2 Act 1990, as in force immediately before the commencement of 3 the amending Act, continue to apply to and in respect of a rail 4 safety inquiry or transport safety inquiry commenced by the 5 former Board before that commencement. 6 (2) The functions of the Chairperson of the former Board are to be 7 exercised by the Chief Investigator for the purposes of any such 8 inquiry. 9 151 Investigations 10 (1) The Marine Safety Act 1998, as in force immediately before the 11 commencement of the amending Act, continues to apply to and 12 in respect of an investigation under that Act, where the 13 Chairperson of the former Board was appointed as the 14 investigator before that commencement. 15 (2) The functions of the Chairperson of the former Board are to be 16 exercised by the Chief Investigator for the purposes of any such 17 investigation. 18 152 Inquiries and investigations relating to previous accident or 19 incident 20 This Act, the Rail Safety Act 2002, the Passenger Transport Act 21 1990 and the Marine Safety Act 1998, as amended by the 22 amending Act, apply in respect of an accident or incident that 23 occurred before the commencement of the amending Act, if an 24 inquiry or investigation into the accident or incident was not 25 initiated before that commencement. 26 Page 15
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 2 Amendment of Rail Safety Act 2002 No 96 Schedule 2 Amendment of Rail Safety Act 2002 1 No 96 2 (Section 3) 3 [1] Section 4 Interpretation 4 Insert in alphabetical order in section 4 (1): 5 Chief Investigator means the Chief Investigator of the Office of 6 Transport Safety Investigations appointed under section 42S of 7 the Transport Administration Act 1988. 8 [2] Section 4 (1) 9 Omit the definition of Independent Transport Safety and Reliability Advisory 10 Board. 11 [3] Section 13A 12 Insert after section 13: 13 13A Communications protocols and procedures 14 (1) An applicant for accreditation must give to the ITSRR a 15 document describing its communications systems, protocols and 16 procedures. 17 (2) The communications protocols and procedures must comply with 18 any requirements prescribed by the regulations or contained in 19 guidelines issued by the ITSRR under this section. 20 (3) A guideline issued by the ITSRR under this section must be 21 published in the Gazette. 22 [4] Section 18 Grant of accreditation 23 Insert after section 18 (3): 24 (3A) An accreditation must be for a specified period of not more than 25 3 years. 26 (3B) This Act applies to an application for a renewal of an 27 accreditation in the same way that it applies to an application for 28 accreditation. 29 [5] Section 18A Referral to Chief Investigator 30 Omit "Independent Transport Safety and Reliability Advisory Board" and 31 "Board". 32 Insert instead "Chief Investigator". 33 Page 16
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Rail Safety Act 2002 No 96 Schedule 2 [6] Section 25 Variation of accreditations 1 Insert at the end of the section: 2 (2) Subsection (1) does not permit the ITSRR to extend an 3 accreditation period for a total period of more than 3 years. 4 [7] Section 31A Referral to Chief Investigator 5 Omit "Independent Transport Safety and Reliability Advisory Board" and 6 "Board". 7 Insert instead "Chief Investigator". 8 [8] Sections 43A and 43B 9 Insert after section 43: 10 43A Safety management systems 11 (1) It is a condition of accreditation that an accredited person must: 12 (a) implement the safety management system described in the 13 document prepared by that person and provided to the 14 ITSRR under section 11 (1), and 15 (b) comply with any regulations that prescribe the 16 requirements for safety management systems. 17 (2) To the extent of any inconsistency between the document 18 specified in subsection (1) (a) and the regulations, the regulations 19 prevail. 20 43B Communications protocols and procedures 21 (1) It is a condition of accreditation that an accredited person must: 22 (a) implement the communications protocols and procedures 23 described in the document prepared by that person and 24 provided to the ITSRR under section 13A (1), and 25 (b) comply with any regulations that prescribe the 26 requirements for communications protocols and 27 procedures. 28 (2) To the extent of any inconsistency between the document 29 specified in subsection (1) (a) and the regulations, the regulations 30 prevail. 31 [9] Section 65A Confidential reporting of safety information by railway 32 employees 33 Omit section 65A (5). 34 Page 17
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 2 Amendment of Rail Safety Act 2002 No 96 [10] Section 67 1 Omit the section. Insert instead: 2 67 Inquiries by ITSRR or Chief Investigator 3 (1) The ITSRR or the Chief Investigator may inquire into any 4 railway accident or incident that may affect the safe carrying out 5 of railway operations. 6 (2) The ITSRR or the Chief Investigator must provide to the Minister 7 a report on an inquiry conducted by the ITSRR or the Chief 8 Investigator under subsection (1). 9 (3) The Chief Investigator must provide to the ITSRR a report on an 10 inquiry conducted by the Chief Investigator under subsection (1). 11 (4) The Minister may request the ITSRR or the Chief Investigator to 12 inquire into and report to the Minister on any railway accident or 13 incident that may affect the safe carrying out of railway 14 operations or the personal security of any railway employee or 15 member of the public using a railway or in or on railway 16 premises. 17 (5) The Minister may not require the ITSRR or the Chief Investigator 18 to terminate a rail safety inquiry. 19 (6) The ITSRR or the Chief Investigator may recover the reasonable 20 costs of conducting an inquiry under this section as a debt due to 21 the Crown in a court of competent jurisdiction. The costs are 22 recoverable jointly or severally from any one or more accredited 23 persons in respect of the railway concerned. 24 (7) An inquiry may be carried out and a report provided under this 25 section whether or not: 26 (a) an investigation is being, or has been, conducted under any 27 other Act or law relating to the same matter, or 28 (b) the matter is or may be subject to any criminal or civil 29 proceedings. 30 (8) Schedule 4 has effect with respect to rail safety inquiries. 31 [11] Section 69 Power to require persons to attend to answer questions or 32 produce documents or other things 33 Omit "Chairperson of the Independent Transport Safety and Reliability 34 Advisory Board" from section 69 (1). 35 Insert instead "the Chief Investigator". 36 Page 18
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Rail Safety Act 2002 No 96 Schedule 2 [12] Section 71 Disclosure of train safety records to Commonwealth or 1 Commonwealth authority 2 Omit "Chairperson of the Independent Transport Safety and Reliability 3 Advisory Board" from section 71 (1). 4 Insert instead "Chief Investigator". 5 [13] Section 72 Disclosure of train safety records (other than train safety 6 recordings) to a court or person 7 Omit "Chairperson of the Independent Transport Safety and Reliability 8 Advisory Board" from section 72 (1). 9 Insert instead "Chief Investigator". 10 [14] Section 77 Compliance with subpoenas and other directions 11 Omit "Chairperson of the Independent Transport Safety and Reliability 12 Advisory Board" from section 77 (1). 13 Insert instead "Chief Investigator". 14 [15] Section 78 Admissibility of other evidence and liability 15 Omit "Chairperson of the Independent Transport Safety and Reliability 16 Advisory Board" wherever occurring in section 78 (2) and (3) (a). 17 Insert instead "Chief Investigator". 18 [16] Section 93 Tampering with railway equipment 19 Insert "and emergency doors" after "communication systems" in section 93 20 (1) (a). 21 [17] Section 98 False or misleading information 22 Omit "the ITSRR or to any other person on behalf of the ITSRR" from section 23 98 (b). 24 Insert instead "the ITSRR, Chief Investigator or to any other person on behalf 25 of the ITSRR or Chief Investigator". 26 [18] Section 108 Functions of ITSRR 27 Omit paragraph (i). Insert instead: 28 (i) arranging for and conducting inquiries into railway 29 accidents and incidents affecting the safe carrying out of 30 railway operations and reporting on those inquiries, 31 Page 19
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 2 Amendment of Rail Safety Act 2002 No 96 [19] Section 108A 1 Omit the section. Insert instead: 2 108A Functions of Chief Investigator 3 The functions of the Chief Investigator under this Act are to 4 arrange and conduct inquiries into railway accidents and 5 incidents affecting the safe carrying out of railway operations and 6 to report on those inquiries. 7 [20] Section 111 Authorised officers 8 Omit "Chairperson of the Independent Transport Safety and Reliability 9 Advisory Board". 10 Insert instead "Chief Investigator". 11 [21] Section 113 Exclusion of personal liability 12 Omit "Chairperson or other member of the Independent Transport Safety and 13 Reliability Advisory Board". 14 Insert instead "Chief Investigator". 15 [22] Section 113 16 Omit "Chairperson, the member" wherever occurring. 17 Insert instead "Chief Investigator". 18 [23] Section 114 Exclusion of liability of the State 19 Omit "Chairperson or member of the Independent Transport Safety and 20 Reliability Advisory Board". 21 Insert instead "Chief Investigator". 22 [24] Section 117 Regulations 23 Insert "required medical examinations," after "including" in section 117 (2) 24 (n). 25 [25] Schedule 4 Rail safety inquiries 26 Omit clause 1. 27 [26] Schedule 4, clause 2 (1) and (2) 28 Omit "Chairperson" wherever occurring. Insert instead "Chief Investigator". 29 [27] Schedule 4, clause 2 (3) 30 Omit "Chairperson". Insert instead "ITSRR". 31 Page 20
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Rail Safety Act 2002 No 96 Schedule 2 [28] Schedule 5 Savings and transitional provisions 1 Insert at the end of clause 1 (1): 2 Transport Legislation Amendment (Implementation of Waterfall 3 Rail Inquiry Recommendations) Act 2005 (but only to the extent 4 that it amends this Act) 5 [29] Schedule 5, Part 4 6 Insert at the end of the Schedule: 7 Part 4 Provisions consequent on enactment of 8 Transport Legislation Amendment 9 (Implementation of Waterfall Rail Inquiry 10 Recommendations) Act 2005 11 21 Definition 12 In this Part: 13 the amending Act means the Transport Legislation Amendment 14 (Implementation of Waterfall Rail Inquiry Recommendations) 15 Act 2005. 16 22 Existing accredited persons 17 A person who is an accredited person at the date of 18 commencement of sections 43A and 43B, as inserted by the 19 amending Act, must comply with those sections within 6 months 20 of that commencement or within any longer period determined by 21 the ITSRR. 22 Page 21
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 3 Amendment of Passenger Transport Act 1990 No 39 Schedule 3 Amendment of Passenger Transport Act 1 1990 No 39 2 (Section 3) 3 [1] Section 3 Definitions 4 Insert in alphabetical order: 5 Chief Investigator means the Chief Investigator of the Office of 6 Transport Safety Investigations appointed under section 42S of 7 the Transport Administration Act 1988. 8 [2] Section 3, definition of "Independent Transport Safety and Reliability 9 Advisory Board" 10 Omit the definition. 11 [3] Section 46B Investigation of certain accidents and incidents 12 Omit "Chairperson of the Independent Transport Safety and Reliability 13 Advisory Board" and "Chairperson" from section 46B (1)(5) wherever 14 occurring. 15 Insert instead "Chief Investigator". 16 [4] Section 46B (2A) 17 Insert after section 46B (2): 18 (2A) The Chief Investigator must provide to the ITSRR a report on an 19 inquiry conducted by the Chief Investigator under subsection (1). 20 [5] Section 46C Power to require persons to attend to answer questions or 21 produce documents or other things 22 Omit "Chairperson of the Independent Transport Safety and Reliability 23 Advisory Board" from section 46C (1). 24 Insert instead "Chief Investigator". 25 [6] Section 46E Confidential reporting of safety information by transport 26 safety employees 27 Omit the definition of Chief Investigator from section 46E (5). 28 [7] Section 46W Other authorised officers 29 Omit "Chairperson of the Independent Transport Safety and Reliability 30 Advisory Board". 31 Insert instead "Chief Investigator". 32 Page 22
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Passenger Transport Act 1990 No 39 Schedule 3 [8] Section 57 False or misleading information 1 Omit paragraph (b). Insert instead: 2 (b) provide to the ITSRR or the Chief Investigator, or to any 3 other person on behalf of the ITSRR or the Chief 4 Investigator, for the purposes of a transport safety inquiry 5 information (which may include or consist of a document) 6 that the person knows is false or misleading in a material 7 particular, or 8 [9] Section 66 Exclusion of liability of the State 9 Omit "Chairperson or other member of the Independent Transport Safety and 10 Reliability Advisory Board". 11 Insert instead "Chief Investigator". 12 [10] Schedule 3 Savings and transitional provisions 13 Insert at the end of clause 2 (1): 14 Transport Legislation Amendment (Implementation of Waterfall 15 Rail Inquiry Recommendations) Act 2005 (but only to the extent 16 that it amends this Act) 17 [11] Schedule 6 Transport safety inquiries 18 Omit clause 1. 19 [12] Schedule 6, clause 2 (1) and (2) 20 Omit "Chairperson" wherever occurring. Insert instead "Chief Investigator". 21 [13] Schedule 6, clause 2 (3) 22 Omit "Chairperson". Insert instead "ITSRR". 23 Page 23
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Schedule 4 Amendment of Marine Safety Act 1998 No 121 Schedule 4 Amendment of Marine Safety Act 1998 1 No 121 2 (Section 3) 3 [1] Section 94 Definitions 4 Insert in alphabetical order in section 94 (1): 5 Chief Investigator means the Chief Investigator of the Office of 6 Transport Safety Investigations appointed under section 42S of 7 the Transport Administration Act 1988. 8 [2] Section 94 (1) 9 Omit the definition of Independent Transport Safety and Reliability Advisory 10 Board. 11 [3] Section 105 Appointment of investigator 12 Omit "Chairperson of the Independent Transport Safety and Reliability 13 Advisory Board" from section 105 (1A). 14 Insert instead "Chief Investigator". 15 [4] Section 111 Action by Minister following report of investigation 16 Omit "Independent Transport Safety and Reliability Advisory Board" from 17 section 111 (2) (h). 18 Insert instead "Chief Investigator". 19 [5] Schedule 4 Savings, transitional and other provisions 20 Insert at the end of clause 1 (1): 21 Transport Legislation Amendment (Implementation of Waterfall 22 Rail Inquiry Recommendations) Act 2005 (but only to the extent 23 that it amends this Act) 24 Page 24
Transport Legislation Amendment (Implementation of Waterfall Rail Inquiry Recommendations) Bill 2005 Amendment of Rail Safety (Drug and Alcohol Testing) Regulation 2003 Schedule 5 Schedule 5 Amendment of Rail Safety (Drug and 1 Alcohol Testing) Regulation 2003 2 (Section 4) 3 Clause 9 4 Omit the clause. Insert instead: 5 9 Testing of railway employees in specified situations 6 (1) An authorised officer or a police officer who has reasonable 7 cause to believe that a railway employee (other than a train driver 8 or guard) has been involved in an accident or irregular incident 9 while carrying out railway safety work may require the 10 employee: 11 (a) to undergo a breath test in accordance with the directions 12 of the officer, or 13 (b) to provide a sample of the employee's urine for the 14 purpose of testing for the presence of drugs, 15 or both. 16 (2) An authorised officer or a police officer who has reasonable 17 cause to believe that a railway employee has been involved in an 18 accident or irregular incident while carrying out railway safety 19 work as a train driver or guard must require the employee: 20 (a) to undergo a breath test in accordance with the directions 21 of the officer, and 22 (b) to provide a sample of the employee's urine for the 23 purpose of testing for the presence of drugs. 24 (3) Nothing in this clause limits clause 8. 25 Page 25
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