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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Transport (Rail Safety) Bill
2008
Queensland
Transport (Rail Safety) Bill 2008
Contents
Page
Part 1 Preliminary
Division 1 Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Division 2 Objects and application of Act
3 Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4 Ways this Act achieves its objects . . . . . . . . . . . . . . . . . . . . . . . . 18
5 Application of Act generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6 Application of Act to circumstances to which Electrical Safety
Act applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Division 3 Interpretation
8 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9 Meaning of railway operations . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10 Meaning of rail safety work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11 Corresponding laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 4 Ensuring rail safety
12 Ensuring rail safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Part 2 Relationship with Workplace Health and Safety Act
13 Purpose of pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14 Application of this Act in circumstances to which Workplace
Health and Safety Act applies . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
15 Safety directions and relationship with Workplace Health and
Safety Act ........................................ 27
16 Compliance with this Act is no defence for Workplace Health
and Safety Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Transport (Rail Safety) Bill 2008
Contents
Part 3 Rail safety duties
Division 1 Preliminary matters
17 Duty applying to more than 1 person . . . . . . . . . . . . . . . . . . . . . . 29
18 Person may owe rail safety duties in more than 1 capacity . . . . . 29
19 Civil liability not affected by this part . . . . . . . . . . . . . . . . . . . . . . 29
Division 2 Rail transport operators and particular contractors
20 Explanation of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
21 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
22 Meaning of prescribed railway operations . . . . . . . . . . . . . . . . . . 31
23 Concept of ensuring rail safety is not affected by prescribed
railway operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
24 Duty to ensure rail safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
25 When rail transport operator fails to discharge duty . . . . . . . . . . . 35
26 When rail infrastructure manager fails to discharge duty . . . . . . . 36
27 When rolling stock operator fails to discharge duty . . . . . . . . . . . 37
28 Duty of rail transport operator extends to contractors . . . . . . . . . 38
Division 3 Rail safety workers
Subdivision 1 Preliminary
29 Explanation of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
30 Definition for div 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
31 Particular provisions of Criminal Code do not apply. . . . . . . . . . . 40
Subdivision 2 Duties
32 Duty to take reasonable care for particular rail safety work . . . . . 40
33 Duty to comply with relevant operator's instructions. . . . . . . . . . . 41
34 Duty to not interfere with or misuse things provided by relevant
operator .......................................... 42
35 Duty to not place safety of others at risk . . . . . . . . . . . . . . . . . . . 43
Subdivision 3 Defences
36 Compliance with regulation etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
37 Causes over which person has no control . . . . . . . . . . . . . . . . . . 44
Part 4 Other requirements relating to safety of railway operations
Division 1 Preliminary
38 Civil liability not affected by this part . . . . . . . . . . . . . . . . . . . . . . 44
Division 2 Accreditation requirement
Subdivision 1 Requirement to be accredited
39 Accreditation required for railway operations . . . . . . . . . . . . . . . . 45
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Transport (Rail Safety) Bill 2008
Contents
Subdivision 2 Exemption for related body corporate
40 Accreditation not required for related body corporate . . . . . . . . . 46
Subdivision 3 Exemption for private sidings
41 Accreditation not required for particular railway operations on
or at private siding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Subdivision 4 Provisions about particular private sidings
42 Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
43 Definitions for sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
44 Connection or access between private siding and accredited
railway ......................................... 48
45 Particular private sidings required to be registered . . . . . . . . . . . 49
46 Prescribed registration conditions . . . . . . . . . . . . . . . . . . . . . . . . 50
47 Compliance with registration conditions for private siding . . . . . . 51
48 Annual registration fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
49 Interface coordination plan for private siding connected with or
having access to accredited railway . . . . . . . . . . . . . . . . . . . . . . . 52
50 Chief executive may cancel registration of private siding . . . . . . . 53
Subdivision 5 Exemption notices
51 Requirement to obtain exemption notice . . . . . . . . . . . . . . . . . . . 53
Division 3 Requirements about safety management
Subdivision 1 Application
52 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Subdivision 2 Safety management system
53 Requirement to have and implement safety management
system ...................................... 54
54 General requirements for safety management system. . . . . . . . . 55
55 Review of safety management system . . . . . . . . . . . . . . . . . . . . . 56
56 Consultation requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
57 Operator must not contravene safety management system . . . . . 57
58 Contractor must not contravene safety management system . . . 58
59 Chief executive may direct amendment of safety management
system .......................................... 59
Subdivision 3 Safety performance reports
60 Requirement to give safety performance report . . . . . . . . . . . . . . 59
Subdivision 4 Interface coordination
61 Requirements about interface coordination plan . . . . . . . . . . . . . 60
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Transport (Rail Safety) Bill 2008
Contents
Subdivision 5 Management plans
62 Requirement to have and implement security management plan 61
63 Requirement to have and implement emergency management
plan ........................................... 62
Subdivision 6 Management programs
64 Requirement to have and implement health and fitness
management program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
65 Requirement to have and implement alcohol and drug
management program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
66 Requirement to have and implement fatigue management
program ....................................... 64
Subdivision 7 Other requirements about safety management
67 Testing for presence of alcohol or drugs. . . . . . . . . . . . . . . . . . . . 64
68 Assessment of competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
69 Identification for rail safety workers . . . . . . . . . . . . . . . . . . . . . . . 66
Division 4 Information giving requirements
70 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
71 Chief executive may require particular information. . . . . . . . . . . . 67
72 Requirement to give prescribed information. . . . . . . . . . . . . . . . . 67
Division 5 Investigating and reporting requirements
73 Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
74 Notification of particular occurrences . . . . . . . . . . . . . . . . . . . . . . 68
75 Investigation of particular occurrences. . . . . . . . . . . . . . . . . . . . . 69
76 Report of investigation under s 75 . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 6 Keeping documents and making them available for
inspection
77 Relevant documents must be kept and made available for
inspection ....................................... 71
Part 5 Accreditation
Division 1 Preliminary
78 Purpose of accreditation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
79 Accreditation criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
80 Accreditation may be granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Division 2 Applying for accreditation
81 Application for accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
82 What applicant for accreditation must demonstrate . . . . . . . . . . . 76
83 Coordination of applications between operators . . . . . . . . . . . . . 76
84 Coordination of decisions between rail safety regulators . . . . . . . 78
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Transport (Rail Safety) Bill 2008
Contents
85 Considering application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
86 Steps after application decided . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Division 3 Conditions of accreditation
87 Prescribed accreditation conditions . . . . . . . . . . . . . . . . . . . . . . . 80
88 Breach of accreditation condition . . . . . . . . . . . . . . . . . . . . . . . . . 81
Division 4 Fees payable for accreditation
89 Annual accreditation fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Division 5 Suspending, revoking or varying accreditation
Subdivision 1 Suspension, revocation or variation of conditions by chief
executive
90 Grounds for suspending or revoking accreditation . . . . . . . . . . . . 81
91 Procedure for suspending or revoking accreditation . . . . . . . . . . 82
92 Suspending accreditation immediately. . . . . . . . . . . . . . . . . . . . . 84
93 Varying conditions of accreditation. . . . . . . . . . . . . . . . . . . . . . . . 85
Subdivision 2 Variation of accreditation on application by accredited
person
94 Application for variation of accreditation. . . . . . . . . . . . . . . . . . . . 86
95 Requirement to consult with affected rail transport operators . . . 86
96 Coordination of decisions between rail safety regulators . . . . . . . 87
97 Considering application for variation . . . . . . . . . . . . . . . . . . . . . . 88
98 Steps after application for variation decided. . . . . . . . . . . . . . . . . 89
Subdivision 3 Variation of condition of accreditation on application by
accredited person
99 Application for variation of conditions . . . . . . . . . . . . . . . . . . . . . . 90
100 Requirement to consult with affected rail transport operators . . . 90
101 Coordination of decisions between rail safety regulators . . . . . . . 92
102 Considering application for variation of condition . . . . . . . . . . . . . 92
103 Steps after application for variation of condition decided . . . . . . . 93
Division 6 Other provisions about accreditation
104 Consolidated accreditation notice . . . . . . . . . . . . . . . . . . . . . . . . 94
105 Surrender of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
106 Accreditation can not be transferred to or vested in another
person ........................................ 94
107 Applications for accreditation if railway operations sold or
transferred by accredited person . . . . . . . . . . . . . . . . . . . . . . . . . 95
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Transport (Rail Safety) Bill 2008
Contents
Part 6 Administration
Division 1 Functions and powers of chief executive
Subdivision 1 General functions and powers
108 Functions of chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
109 Information to be included in annual reports . . . . . . . . . . . . . . . . 97
110 Chief executive may exercise powers of rail safety officers . . . . . 98
Subdivision 2 Auditing railway operations
111 Audit of railway operations of rail transport operators . . . . . . . . . 98
Subdivision 3 Provisions about access disputes relating to rail safety
112 Definitions for sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
113 Chief executive may decide matters on request. . . . . . . . . . . . . . 99
114 Notice of dispute under agreement for access . . . . . . . . . . . . . . . 101
115 Safety matter directions for disputes under agreement for
access ...................................... 101
116 Procedure for giving safety matter direction . . . . . . . . . . . . . . . . . 102
117 Compliance with safety matter direction. . . . . . . . . . . . . . . . . . . . 103
Division 2 Rail safety officers
118 Appointment of persons as rail safety officers . . . . . . . . . . . . . . . 103
119 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 104
120 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
121 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . 105
122 When rail safety officer ceases to hold office . . . . . . . . . . . . . . . . 105
123 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
124 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Division 3 Reciprocal powers
125 Reciprocal powers of rail safety officers . . . . . . . . . . . . . . . . . . . . 106
Part 7 Enforcement
Division 1 Entry to places by rail safety officers
126 Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
127 Procedure for entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . 109
128 General procedure for other entries without warrant . . . . . . . . . . 110
129 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
130 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
131 Application by electronic communication and duplicate warrant . 112
132 Defect in relation to a warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
133 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . 114
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Division 2 General enforcement powers
134 General powers after entering a place . . . . . . . . . . . . . . . . . . . . . 115
135 Procedure before entering or opening rolling stock or road
vehicle ....................................... 116
136 Power to require reasonable help or information . . . . . . . . . . . . . 117
137 Power to stop or move rolling stock or a road vehicle that may
be entered or opened .............................. 118
138 Other powers about rolling stock or road vehicles that may be
entered ...................................... 120
139 Power to use electronic equipment at the place entered . . . . . . . 120
140 Power to use equipment at the place entered to examine or
process things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
141 Power to secure a site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Division 3 Seizing evidence
Subdivision 1 Powers to seize evidence
142 Seizing evidence at a place entered without consent or warrant . 122
143 Seizing evidence at a place entered with consent or warrant . . . 122
Subdivision 2 Powers to support seizure
144 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
145 Tampering with seized thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
146 Powers to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
147 Rail safety officer may require thing's return . . . . . . . . . . . . . . . . 125
Subdivision 3 Other provisions about seizure
148 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
149 Access to seized thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
150 Return of seized things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Division 4 Embargo notices for things that can not be seized
151 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
152 Rail safety officer may issue embargo notice . . . . . . . . . . . . . . . . 127
153 Contravening embargo notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Division 5 Forfeiture
154 Forfeiture by rail safety officer . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
155 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
156 Dealing with forfeited sample or thing . . . . . . . . . . . . . . . . . . . . . 130
Division 6 Other powers
157 Power to require name and address. . . . . . . . . . . . . . . . . . . . . . . 130
158 Failure to give name or address . . . . . . . . . . . . . . . . . . . . . . . . . . 131
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159 Power to require production of documents . . . . . . . . . . . . . . . . . . 132
160 Failure to produce document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
161 Use of particular evidence in proceedings . . . . . . . . . . . . . . . . . . 133
162 Power to require information about contravention . . . . . . . . . . . . 134
163 Failure to give information about contravention . . . . . . . . . . . . . . 134
Division 7 Investigation of notifiable and other occurrences
Subdivision 1 Investigation and report
164 Chief executive may require investigation by rail safety officer. . . 134
165 Report of investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Subdivision 2 Powers of rail safety officer conducting investigation
166 Definition for sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
167 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
168 Power to require help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
169 Power to require answers to questions or production of
document or other thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
170 Power to require alcohol or drug test or examination . . . . . . . . . . 137
171 Requirement to give warning when making requirement of
individual ....................................... 138
172 Failure to comply with requirement. . . . . . . . . . . . . . . . . . . . . . . . 138
173 Use of particular evidence in proceedings . . . . . . . . . . . . . . . . . . 138
Division 8 Improvement notices
174 Rail safety officer may give improvement notice. . . . . . . . . . . . . . 139
175 What improvement notice may require . . . . . . . . . . . . . . . . . . . . . 140
176 What improvement notice must state . . . . . . . . . . . . . . . . . . . . . . 141
177 Compliance with improvement notice. . . . . . . . . . . . . . . . . . . . . . 142
178 Amendment of improvement notice . . . . . . . . . . . . . . . . . . . . . . . 142
179 Proceedings for offences not affected by improvement notice . . . 143
180 Chief executive may arrange for rail safety work not carried out . 143
Division 9 Prohibition notices
181 Rail safety officer may give prohibition notice. . . . . . . . . . . . . . . . 143
182 What prohibition notice may require . . . . . . . . . . . . . . . . . . . . . . . 144
183 What prohibition notice must state . . . . . . . . . . . . . . . . . . . . . . . . 145
184 Compliance with prohibition notice. . . . . . . . . . . . . . . . . . . . . . . . 146
185 Oral direction before prohibition notice given . . . . . . . . . . . . . . . . 146
186 Amendment of prohibition notice . . . . . . . . . . . . . . . . . . . . . . . . . 147
187 Proceedings for offences not affected by prohibition notice . . . . . 147
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Division 10 Damage to property in exercising powers under this part
188 Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
189 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Division 11 Miscellaneous
190 Only reasonable force may be used . . . . . . . . . . . . . . . . . . . . . . . 149
191 Only police officers may use force against a person . . . . . . . . . . 149
Part 8 Boards of inquiry
Division 1 General
192 Minister may establish or re-establish board . . . . . . . . . . . . . . . . 150
193 Role of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
194 Conditions of appointment of members . . . . . . . . . . . . . . . . . . . . 151
195 Chief executive to arrange for services of staff and financial
matters for board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
196 Rail safety officer may exercise powers for inquiry. . . . . . . . . . . . 152
Division 2 Conduct of inquiry
197 Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
198 Notice of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
199 Inquiry to be held in public other than in special circumstances . 153
200 Protection of members, legal representatives and witnesses . . . 153
201 Record of proceedings to be kept. . . . . . . . . . . . . . . . . . . . . . . . . 153
202 Procedural fairness and representation . . . . . . . . . . . . . . . . . . . . 153
203 Board's powers on inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
204 Notice to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
205 Inspection of documents or things . . . . . . . . . . . . . . . . . . . . . . . . 154
206 Inquiry may continue despite court proceedings unless
otherwise ordered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
207 Offences by witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
208 Self-incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
209 Contempt of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
210 Change of membership of board . . . . . . . . . . . . . . . . . . . . . . . . . 157
Part 9 Provisions about particular investigations or inquiries
Division 1 Interpretation
211 Definitions for pt 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
212 Meaning of relevant person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
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Division 2 Protection of particular information
Subdivision 1 Limitations on disclosure etc. of restricted information
213 Prohibition on recording or disclosure of restricted information
by relevant persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
214 Prohibition on recording or disclosure of restricted information
by other persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
215 Exceptions to prohibitions on recording or disclosure of
restricted information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
216 Court can not require disclosure of restricted information . . . . . . 161
217 Court may direct no publication or communication of restricted
information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Subdivision 2 Particular disclosure etc. of restricted information
authorised
218 Release of restricted information for ensuring rail safety . . . . . . . 162
219 Authorisation of coroner to have access to restricted information 163
220 Chief executive may authorise persons to have access to
restricted information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Division 3 Provisions about relevant persons
221 Certification by chief executive of relevant person's involvement
in investigation or inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
222 Relevant persons not compellable as witnesses . . . . . . . . . . . . . 163
Part 10 Other offences and provisions about liability for offences
Division 1 Offence about discrimination or victimisation
223 Discrimination against or victimisation of employees . . . . . . . . . . 164
224 Order for damages or reinstatement . . . . . . . . . . . . . . . . . . . . . . 166
Division 2 Offences about false or misleading information
225 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . 166
226 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Division 3 Other offences
227 Obstruction of officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
228 Concealing document or other thing . . . . . . . . . . . . . . . . . . . . . . 168
229 Impersonating a rail safety officer. . . . . . . . . . . . . . . . . . . . . . . . . 168
230 Interfering with equipment, rail infrastructure or rolling stock . . . . 168
231 Using brake or emergency device . . . . . . . . . . . . . . . . . . . . . . . . 169
232 Stopping a train or tram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
233 Notification requirement for prescribed persons. . . . . . . . . . . . . . 170
Division 4 Provisions about liability for offences
234 Multiple offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
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235 Responsibility for acts or omissions of representative . . . . . . . . . 171
236 Executive officers must ensure corporation complies with Act. . . 172
237 Daily penalty for continuing offences . . . . . . . . . . . . . . . . . . . . . . 173
238 Compliance with conditions of accreditation . . . . . . . . . . . . . . . . 173
239 Compliance with compliance code . . . . . . . . . . . . . . . . . . . . . . . . 173
Part 11 Review and appeal
240 Review of original decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
241 Appeal against reviewed decision . . . . . . . . . . . . . . . . . . . . . . . . 174
Part 12 Legal proceedings
Division 1 Application
242 Application of pt 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Division 2 Evidence
243 Evidence from records required to be kept under Act . . . . . . . . . 176
244 Evidence about reciprocal powers agreement . . . . . . . . . . . . . . . 176
245 Evidence of other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
246 Proof of appointment and authority unnecessary. . . . . . . . . . . . . 178
247 Proof of signature unnecessary . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Division 3 Proceedings
248 Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Part 13 General
Division 1 Confidentiality
249 Giving information to WHS chief executive. . . . . . . . . . . . . . . . . . 180
250 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Division 2 Protection from liability
251 Particular persons acting under this Act. . . . . . . . . . . . . . . . . . . . 183
252 Particular persons acting under prescribed corresponding law . . 184
253 Persons helping in accidents or emergencies . . . . . . . . . . . . . . . 185
254 Registered health practitioners advising on fitness of rail safety
worker .......................................... 186
Division 3 Compliance codes
255 Making compliance codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
256 Civil liability not affected by compliance code . . . . . . . . . . . . . . . 188
257 Use of compliance code in proceedings. . . . . . . . . . . . . . . . . . . . 188
Division 4 Rail safety undertakings
258 Meaning of rail safety undertaking . . . . . . . . . . . . . . . . . . . . . . . . 189
259 Chief executive may accept undertakings . . . . . . . . . . . . . . . . . . 189
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260 Enforcement of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Division 5 Miscellaneous
261 Records to be kept by chief executive . . . . . . . . . . . . . . . . . . . . . 190
262 Recovery of amounts payable under Act . . . . . . . . . . . . . . . . . . . 191
263 Contracting out prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
264 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
265 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
266 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . 192
Part 14 Transitional provisions
Division 1 Definitions
267 Definitions for pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Division 2 Accreditation
268 Approved safety management system . . . . . . . . . . . . . . . . . . . . . 196
269 Changes to approved safety management system . . . . . . . . . . . 196
270 Application of Act to transitioned approved safety management
system .......................................... 197
271 Continuing effect of existing accreditations . . . . . . . . . . . . . . . . . 197
272 Existing applications for accreditation . . . . . . . . . . . . . . . . . . . . . 199
273 Unpaid annual levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
274 Existing applications for amendment of conditions of
accreditation ................................... 200
275 Notices about financial capacity or public risk insurance
arrangements .................................... 201
276 Requirement to notify cancellations etc. of particular
agreements ................................... 201
277 Decisions about matters relating to access to rail transport
infrastructure ..................................... 201
278 Existing guidelines about matters relating to access to rail
transport infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
279 Dealing with disputes about access to rail transport
infrastructure if no safety direction given . . . . . . . . . . . . . . . . . . . 202
280 Continuing effect of safety directions . . . . . . . . . . . . . . . . . . . . . . 203
281 Existing audit program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
282 Existing inspections under audit program. . . . . . . . . . . . . . . . . . . 203
283 Disciplinary action against accredited persons . . . . . . . . . . . . . . 204
284 Requirement about remedying breach of accreditation condition 205
Division 3 Administration, compliance and enforcement
285 Rail safety officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
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286 Existing warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
287 Sample or thing taken for analysis . . . . . . . . . . . . . . . . . . . . . . . . 206
288 Dealing with seized property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
289 Requirements about moving things . . . . . . . . . . . . . . . . . . . . . . . 207
290 Request for report or incident details . . . . . . . . . . . . . . . . . . . . . . 208
291 Existing investigations about particular incidents . . . . . . . . . . . . . 208
292 Uncommenced investigations about particular incidents . . . . . . . 209
293 Existing inquiries about particular incidents . . . . . . . . . . . . . . . . . 209
294 Uncommenced inquiries about particular incidents . . . . . . . . . . . 209
Division 4 Restricted information
295 Restricted information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
296 Certificates of relevant person's involvement in investigation. . . . 211
Division 5 Reviews and appeals
Subdivision 1 Reviews and appeals relating to access to rail transport
infrastructure
297 Reviews about decisions relating to access to rail transport
infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
298 Appeals about decisions relating to access to rail transport
infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Subdivision 2 Other reviews and appeals
299 Reviews about particular decisions . . . . . . . . . . . . . . . . . . . . . . . 213
300 Effect of review decision generally . . . . . . . . . . . . . . . . . . . . . . . . 214
301 Appeals about particular decisions . . . . . . . . . . . . . . . . . . . . . . . 214
302 Effect of appeal decision generally. . . . . . . . . . . . . . . . . . . . . . . . 215
303 Further effect of review or appeal decision about approved
safety management systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
304 Further effect of review or appeal decision about amendment
of accreditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
305 Further effect of review or appeal decision about imposition of
conditions on accreditation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
306 Further effect of review or appeal decision about direction to
amend safety management system . . . . . . . . . . . . . . . . . . . . . . . 219
307 Further effect of review or appeal decision about amendment,
suspension or cancellation of accreditation . . . . . . . . . . . . . . . . . 219
Part 15 Amendment of Transport Infrastructure Act 1994
308 Act amended in pt 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
309 Amendment of s 2 (Objectives of this Act) . . . . . . . . . . . . . . . . . . 220
310 Amendment of s 105B (Definitions for pt 8) . . . . . . . . . . . . . . . . . 221
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311 Amendment of s 106 (Ways of achieving objectives) . . . . . . . . . . 221
312 Amendment of s 107 (Scope of chapter) . . . . . . . . . . . . . . . . . . . 222
313 Omission of ch 7, pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
314 Amendment of s 169 (Closing railway crossings). . . . . . . . . . . . . 222
315 Omission of ch 7, pts 5 and 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
316 Amendment of s 243 (Status of railway land). . . . . . . . . . . . . . . . 223
317 Amendment of s 255 (Interfering with railway) . . . . . . . . . . . . . . . 223
318 Amendment of s 257 (Trespassing on railway). . . . . . . . . . . . . . . 223
319 Omission of s 261 (Non-accredited railways) . . . . . . . . . . . . . . . . 223
320 Omission of ss 263 and 264. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
321 Amendment of s 347 (Ways of achieving light rail objectives) . . . 224
322 Amendment of s 348 (Functions) . . . . . . . . . . . . . . . . . . . . . . . . . 224
323 Amendment of s 358 (Permitted construction by local
government of roads over or under light rail land) . . . . . . . . . . . . 224
324 Omission of ch 10, pts 5 and 6. . . . . . . . . . . . . . . . . . . . . . . . . . . 224
325 Amendment of s 480 (Disposal of fees, penalties etc.) . . . . . . . . 225
326 Amendment of s 481 (No need to prove appointments). . . . . . . . 225
327 Amendment of s 487 (Altering watercourse to adversely affect
transport route). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
328 Amendment of s 488 (Altering materials etc.) . . . . . . . . . . . . . . . 225
329 Amendment of s 489 (Recovery of cost of damage) . . . . . . . . . . 226
330 Amendment of sch 1 (Subject matter for regulations) . . . . . . . . . 226
331 Amendment of sch 3 (Reviews and appeals) . . . . . . . . . . . . . . . . 226
332 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 227
Part 16 Amendment of Workplace Health and Safety Act 1995
333 Act amended in pt 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
334 Amendment of s 3 (Application of Act) . . . . . . . . . . . . . . . . . . . . . 229
335 Insertion of new s 3C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
3C Relationship with Transport (Rail Safety) Act 2008 . . 229
336 Insertion of new s 185E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
185E Giving information to rail safety chief executive . . . . . 230
Part 17 Amendment of other Acts
337 Acts amended in sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Schedule 1 Amendment of particular Acts . . . . . . . . . . . . . . . . . . . . . . . . . 233
Coroners Act 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Freedom of Information Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . 233
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Transport (Rail Safety) Bill 2008
Contents
Local Government Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Queensland Competition Authority Act 1997 . . . . . . . . . . . . . . . . 234
Transport Operations (Passenger Transport) Act 1994 . . . . . . . . 234
Transport Planning and Coordination Act 1994 . . . . . . . . . . . . . . 235
Schedule 2 Reviews and appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Schedule 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Page 15
2008
A Bill
for
An Act to provide for rail safety, and for related purposes
Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Division 1 Introduction 3
1 Short title 4
This Act may be cited as the Transport (Rail Safety) Act 2008. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
Division 2 Objects and application of Act 8
3 Objects 9
Having regard to the importance of ensuring rail safety and 10
regulatory efficiency, the objects of this Act are-- 11
(a) to provide for improvement of the safe carrying out of 12
railway operations; and 13
(b) to provide for the management of risks associated with 14
railway operations; and 15
(c) to make special provision for the control of particular 16
risks arising from railway operations; and 17
(d) to promote public confidence in the safety of transport 18
of passengers or freight by rail. 19
4 Ways this Act achieves its objects 20
(1) This section states the ways this Act achieves its objects. 21
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 4]
(2) This Act, the Workplace Health and Safety Act and the 1
Electrical Safety Act impose duties and obligations directed at 2
ensuring rail safety on-- 3
(a) rail transport operators and other persons carrying out 4
railway operations; and 5
(b) rail safety workers. 6
Note-- 7
The Workplace Health and Safety Act and the Electrical Safety Act also 8
impose obligations on other persons whose activities could affect rail 9
safety, including, for example-- 10
(a) a person who conducts a business or undertaking involving-- 11
(i) the commissioning of a thing that is to be used as or in 12
connection with rail infrastructure or rolling stock; or 13
(ii) the decommissioning of rail infrastructure or rolling stock; and 14
(b) a person who designs, manufactures, supplies, installs or erects a 15
thing that is to be used as or in connection with rail infrastructure or 16
rolling stock. 17
(3) This Act also provides for a system of accreditation directed 18
at ensuring rail transport operators have the competence and 19
capacity to carry out particular railway operations safely that 20
includes the following-- 21
(a) a requirement to be accredited before carrying out the 22
railway operations; 23
(b) criteria for deciding whether or not a rail transport 24
operator is suitable for carrying out the railway 25
operations; 26
(c) a requirement to have a safety management system for 27
the railway operations that-- 28
(i) is established and updated in consultation with 29
persons who carry out work, or will carry out 30
work, in relation to the railway operations; and 31
(ii) provides for the assessment, evaluation and control 32
of all risks associated with the railway operations. 33
(4) This Act also provides for the following-- 34
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 5]
(a) the establishment and implementation of interface 1
coordination plans to ensure an integrated approach to 2
assessing, evaluating and controlling risks to safety of a 3
rail transport operator's railway operations arising from 4
the railway operations of another rail transport operator; 5
(b) the establishment and implementation of plans and 6
programs to manage particular risks to the safety of 7
railway operations arising from security incidents, 8
emergencies, poor health and fitness of workers, fatigue 9
of workers and the presence of alcohol and drugs in 10
workers; 11
(c) measures for ensuring rail safety workers are competent 12
and not impaired by the presence of alcohol or drugs; 13
(d) the reporting of information about, and the auditing, 14
monitoring and investigation of, the carrying out of 15
railway operations, including, in particular, reporting 16
and investigation of notifiable occurrences and other 17
occurrences that endanger or could endanger the safe 18
operation of railway operations. 19
5 Application of Act generally 20
(1) This Act applies to railway operations, rail safety work and 21
other activities associated with railway operations. 22
(2) However, this Act does not apply to railway operations, rail 23
safety work or another activity relating to any of the 24
following-- 25
(a) a railway that-- 26
(i) is part of, and used solely for, mining operations; 27
and 28
(ii) is not connected to a railway used to transport 29
passengers or freight; 30
(b) a slipway; 31
(c) a railway used only to guide a crane; 32
(d) an aerial cable operated system; 33
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 5]
(e) a railway that-- 1
(i) is operated solely within an amusement or theme 2
park; and 3
(ii) is an amusement device required to be registered 4
under the Workplace Health and Safety Act for its 5
use; and 6
Editor's note-- 7
See the Workplace Health and Safety Regulation 1997, 8
part 2, division 2. 9
(iii) does not operate on or across a road; 10
(f) a monorail; 11
(g) a cane railway; 12
(h) a railway, or a class of railway, prescribed under a 13
transitional regulation to be a railway to which this Act 14
does not apply. 15
(3) In this section-- 16
cane railway means a railway that-- 17
(a) is operated, entirely or partly, on an access right under 18
the Sugar Industry Act 1999, chapter 2, part 4; and 19
(b) is used, or proposed to be used, to transport sugar cane, 20
sugar or sugar cane by-products; and 21
(c) does not transport-- 22
(i) passengers; or 23
(ii) freight other than sugar cane, sugar or sugar cane 24
by-products. 25
mining operations means-- 26
(a) coal mining operations within the meaning of the Coal 27
Mining Safety and Health Act 1999, schedule 3; or 28
(b) operations within the meaning of the Mining and 29
Quarrying Safety and Health Act 1999, section 10. 30
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 6]
6 Application of Act to circumstances to which Electrical 1
Safety Act applies 2
(1) This section applies if-- 3
(a) this Act, in the absence of this section, would have 4
application in particular circumstances; and 5
(b) the Electrical Safety Act also has application in the 6
circumstances. 7
(2) This Act does not have application in the circumstances to the 8
extent that the Electrical Safety Act has application. 9
(3) Without limiting subsection (2), to the extent that this Act 10
would impose on a person a rail safety duty that is concurrent 11
with an electrical safety obligation imposed on the person 12
under the Electrical Safety Act, the rail safety duty does not 13
apply to the person. 14
Example for subsection (3)-- 15
Section 24 of this Act imposes a duty on a rail transport operator to 16
ensure rail safety is not affected by the carrying out of the operator's 17
railway operations. Under the Electrical Safety Act, an obligation is 18
imposed on an employer to ensure the employer's business or 19
undertaking is conducted in a way that is electrically safe. Accordingly, 20
the duty under this Act of a rail transport operator to ensure rail safety is 21
not affected by the carrying out of the operator's railway operations does 22
not include a duty to ensure the railway operations are carried out in a 23
way that is electrically safe. 24
Note-- 25
See the Workplace Health and Safety Act, section 3A for a similar 26
provision to this section. 27
7 Act binds all persons 28
This Act binds all persons, including the State and, as far as 29
the legislative power of the Parliament permits, the 30
Commonwealth and the other States. 31
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 8]
Division 3 Interpretation 1
8 Definitions 2
The dictionary in schedule 3 defines particular words used in 3
this Act. 4
9 Meaning of railway operations 5
Each of the following are railway operations-- 6
(a) the construction of a railway, railway tracks and 7
associated track structures or rolling stock; 8
(b) the management, commissioning, maintenance, repair, 9
modification, installation, operation or 10
decommissioning of rail infrastructure; 11
(c) the commissioning, maintenance, repair, modification or 12
decommissioning of rolling stock; 13
(d) the operation or movement, or causing the operation or 14
movement in any way, of rolling stock on a railway 15
track, including for the construction or restoration of rail 16
infrastructure or operating a railway service. 17
Note-- 18
The commissioning, installation and decommissioning of rail 19
infrastructure, and the commissioning and decommissioning of rolling 20
stock, are railway operations for this Act. However, the Workplace 21
Health and Safety Act and Electrical Safety Act impose obligations 22
about the safety of the commissioning, installation and 23
decommissioning. See section 6 and part 2 for the application of those 24
Acts. 25
10 Meaning of rail safety work 26
(1) Work that is of any of the following classes is rail safety 27
work-- 28
(a) driving or despatching rolling stock or another similar 29
activity capable of controlling or affecting the 30
movement of rolling stock; 31
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 10]
(b) signalling, including signalling operations, receiving or 1
relaying communications or another similar activity 2
capable of controlling or affecting the movement of 3
rolling stock; 4
(c) coupling or uncoupling rolling stock; 5
(d) maintaining, repairing, modifying, monitoring, 6
inspecting or testing rolling stock, including checking 7
that the rolling stock is working properly before being 8
used; 9
(e) installation of components in relation to rolling stock; 10
(f) work on or about rail infrastructure relating to the 11
design, construction, maintenance, repair, modification, 12
monitoring, upgrading, inspection or testing of the rail 13
infrastructure or associated works or equipment, 14
including checking that the rail infrastructure is working 15
properly before being used; 16
(g) installation or maintenance of-- 17
(i) a telecommunications system relating to rail 18
infrastructure or used in connection with rail 19
infrastructure; or 20
(ii) the way of supplying electricity directly to rail 21
infrastructure, to rolling stock using rail 22
infrastructure, or to a telecommunications system 23
relating to rail infrastructure or used in connection 24
with rail infrastructure; 25
(h) work involving certification about the safety of rail 26
infrastructure or rolling stock or a component of rail 27
infrastructure or rolling stock; 28
(i) work involving the decommissioning of rail 29
infrastructure or rolling stock or a component of rail 30
infrastructure or rolling stock; 31
(j) work involving the development, management or 32
monitoring of safe working systems for a railway; 33
(k) work involving the management or monitoring of the 34
safety of passengers on or at a railway; 35
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Transport (Rail Safety) Bill 2008
Part 1 Preliminary
[s 11]
(l) any other work prescribed under a transitional 1
regulation to be rail safety work. 2
(2) However, rail safety work does not include work prescribed 3
under a transitional regulation not to be rail safety work. 4
Notes-- 5
1 In this Act, the term rail safety work is used to describe work that 6
could affect the safety of railways. It is not used to describe work 7
that is directed at ensuring rail safety. 8
2 Work relating to the design of rail infrastructure or involving the 9
decommissioning of rail infrastructure or rolling stock is rail safety 10
work for this Act. However, the Workplace Health and Safety Act 11
and Electrical Safety Act impose obligations about the safety of the 12
design and decommissioning. See section 6 and part 2 for the 13
application of those Acts. 14
11 Corresponding laws 15
For the purposes of corresponding laws-- 16
(a) this Act is a rail safety law; and 17
(b) the chief executive is the rail safety regulator for this 18
Act. 19
Division 4 Ensuring rail safety 20
12 Ensuring rail safety 21
Rail safety is ensured when persons, including rail safety 22
workers, passengers, other users of railways and the general 23
public, are free from-- 24
(a) death, injury or illness caused by railway operations, rail 25
safety work or other activities associated with railway 26
operations; and 27
(b) risk of death, injury or illness caused by railway 28
operations, rail safety work or other activities associated 29
with railway operations. 30
Page 25
Transport (Rail Safety) Bill 2008
Part 2 Relationship with Workplace Health and Safety Act
[s 13]
Part 2 Relationship with Workplace 1
Health and Safety Act 2
13 Purpose of pt 2 3
The purpose of this part is to explain, in general terms, the 4
operation of this Act in relation to the operation of the 5
Workplace Health and Safety Act. 6
14 Application of this Act in circumstances to which 7
Workplace Health and Safety Act applies 8
(1) This section applies if-- 9
(a) this Act applies in particular circumstances; and 10
(b) the Workplace Health and Safety Act also has 11
application in the circumstances. 12
Note-- 13
Under section 3C of the Workplace Health and Safety Act, that Act does 14
not apply to circumstances to which part 3, division 2 of this Act 15
applies. 16
(2) The Workplace Health and Safety Act continues to apply, and 17
must be complied with, in addition to this Act. 18
Notes-- 19
1 See the Acts Interpretation Act 1954, section 45, for the prohibition 20
on punishing a person more than once in relation to an act or 21
omission constituting an offence under 2 or more laws. 22
2 See the Workplace Health and Safety Act, section 3, for the 23
application of that Act, including the continued application of that 24
Act even if another Act imposes a lesser standard for particular 25
obligations about workplace health and safety. 26
(3) If this Act is inconsistent with the Workplace Health and 27
Safety Act, the Workplace Health and Safety Act prevails to 28
the extent of the inconsistency. 29
(4) However, this Act is not inconsistent with the Workplace 30
Health and Safety Act only because it-- 31
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[s 15]
(a) imposes additional duties on a person on whom an 1
obligation is imposed under the Workplace Health and 2
Safety Act; or 3
(b) otherwise increases the standards of safety required for 4
railway operations, rail safety work or another activity 5
associated with railway operations. 6
(5) Without limiting subsection (2), (3) or (4)-- 7
(a) if a provision of this Act deals with a particular matter 8
and a provision of the Workplace Health and Safety Act 9
deals with the same matter and it is impossible to 10
comply with both provisions, a person must comply 11
with the provision of the Workplace Health and Safety 12
Act and not with the provision of this Act; and 13
(b) if a provision of this Act deals with a particular matter 14
and a provision of the Workplace Health and Safety Act 15
deals with the same matter and it is possible to comply 16
with both provisions, a person must comply with both 17
provisions. 18
15 Safety directions and relationship with Workplace Health 19
and Safety Act 20
(1) It is a defence in a proceeding against a person for a safety 21
direction contravention for the person to prove-- 22
(a) the person committed the act or omission constituting 23
the safety direction contravention as part of complying 24
with the person's workplace health and safety 25
obligations; and 26
(b) it was not reasonably practicable for the person to 27
comply with the workplace health and safety obligations 28
without committing the act or omission constituting the 29
safety direction contravention; and 30
(c) in committing the act or omission constituting the safety 31
direction contravention, the person did each of the 32
following-- 33
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[s 16]
(i) chose an appropriate way to diminish the 1
consequences of the safety direction contravention; 2
(ii) took reasonable precautions to diminish the 3
consequences of the safety direction contravention; 4
(iii) exercised proper diligence to diminish the 5
consequences of the safety direction contravention. 6
(2) In this section-- 7
safety direction contravention means a contravention of an 8
improvement notice or prohibition notice. 9
workplace health and safety obligations, of a person, 10
means-- 11
(a) the person's obligations under the Workplace Health and 12
Safety Act, section 26 or part 3, divisions 2 and 3; or 13
(b) the person's duty to comply with a direction, notice or 14
order under the Workplace Health and Safety Act, part 15
9, division 3. 16
16 Compliance with this Act is no defence for Workplace 17
Health and Safety Act 18
Compliance with this Act, or a duty or requirement imposed 19
under it, is not in itself a defence in a proceeding for an 20
offence against the Workplace Health and Safety Act. 21
Note-- 22
See the Workplace Health and Safety Act, section 3(3) for the 23
requirement to discharge obligations under that Act even though another 24
Act imposes similar obligations with a lower standard. 25
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Part 3 Rail safety duties
[s 17]
Part 3 Rail safety duties 1
Division 1 Preliminary matters 2
17 Duty applying to more than 1 person 3
If more than 1 person has a rail safety duty for a matter, each 4
person-- 5
(a) retains responsibility for the person's rail safety duty for 6
the matter; and 7
(b) must discharge the person's rail safety duty to the extent 8
the matter is within the person's control; and 9
(c) must consult, and cooperate, with all other persons who 10
have a rail safety duty for the matter. 11
18 Person may owe rail safety duties in more than 1 capacity 12
A person on whom a rail safety duty is imposed may be 13
subject to more than 1 rail safety duty. 14
Examples-- 15
1 A person may manage rail infrastructure and operate or move 16
rolling stock on the rail infrastructure and be subject to rail safety 17
duties in both capacities. 18
2 A person may operate or move rolling stock on rail infrastructure 19
and undertake to operate or move other rolling stock on the rail 20
infrastructure for another person and be subject to rail safety duties 21
in both capacities. 22
19 Civil liability not affected by this part 23
(1) This part does not-- 24
(a) create a civil cause of action based on a contravention of 25
a provision of this part; or 26
(b) affect a civil right or remedy existing apart from this 27
part, whether at common law or otherwise. 28
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[s 20]
(2) Without limiting subsection (1)(b), compliance with this part 1
does not necessarily show that a civil obligation existing apart 2
from this part has been satisfied or has not been breached. 3
(3) This section does not affect the interpretation of this Act other 4
than this part. 5
Division 2 Rail transport operators and 6
particular contractors 7
20 Explanation of div 2 8
(1) The object of this division is to ensure, so far as is reasonably 9
practicable, rail safety is not affected by the carrying out of 10
prescribed railway operations. 11
(2) The object is achieved by providing for the elimination or 12
minimisation of risks to safety caused by prescribed railway 13
operations so far as is reasonably practicable. 14
(3) This division acknowledges that to ensure the efficient, 15
effective and safe carrying out of prescribed railway 16
operations it is necessary-- 17
(a) to provide for express and specific duties for ensuring 18
rail safety is not affected by the carrying out of 19
prescribed railway operations; and 20
(b) to ensure the duties mentioned in paragraph (a) are 21
consistently imposed and applied nationally. 22
(4) This division seeks to strike an appropriate balance 23
between-- 24
(a) the need for nationally consistent duties and obligations 25
for ensuring rail safety; and 26
(b) the need for consistency with the Workplace Health and 27
Safety Act, which is the main Act that deals with the 28
health and safety of people at work including people at 29
work at railway premises or other premises where 30
railway operations are carried out. 31
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[s 21]
(5) To achieve the balance mentioned in subsection (4)-- 1
(a) the duties imposed under this division are limited to 2
prescribed railway operations; and 3
(b) workplace health and safety obligations under the 4
Workplace Health and Safety Act continue to apply to 5
other railway operations and to activities associated with 6
railway operations. 7
Note-- 8
See section 3C of the Workplace Health and Safety Act. 9
(6) For subsection (5)(a), prescribed railway operations are 10
identified as requiring nationally consistent duties and 11
requirements to ensure the effective and efficient carrying out 12
of the prescribed railway operations across State borders. 13
21 Application of div 2 14
This division applies only in relation to prescribed railway 15
operations of a rail transport operator, including prescribed 16
railway operations carried out by another person on the 17
operator's behalf. 18
Note-- 19
Under section 14, the Workplace Health and Safety Act continues to 20
apply in relation to other railway operations. 21
Example-- 22
A rail infrastructure manager whose railway operations include 23
prescribed railway operations and the decommissioning of rail 24
infrastructure or rolling stock is subject to a rail safety duty under 25
section 24 in relation to the prescribed railway operations and a 26
workplace health and safety obligation under the Workplace Health and 27
Safety Act, section 28 in relation to the decommissioning. 28
22 Meaning of prescribed railway operations 29
(1) The following are prescribed railway operations-- 30
(a) the operation or movement of rolling stock on a railway 31
track; 32
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[s 22]
(b) an activity that affects the safe operation or movement 1
of rolling stock on a railway track, as mentioned in 2
subsection (2). 3
(2) For subsection (1)(b) and subject to subsection (3), the 4
following are activities that affect the safe operation or 5
movement of rolling stock on a railway track-- 6
(a) constructing-- 7
(i) a railway track; or 8
(ii) an associated track structure that is necessary to 9
ensure the safe operation or movement of rolling 10
stock on a railway track; 11
Examples of associated track structures necessary to ensure 12
the safe operation or movement of rolling stock on a railway 13
track-- 14
bridge, cutting, drainage works, excavation, land fill, 15
siding, track support earthworks, tunnel 16
(b) constructing any of the following if the construction is 17
carried out on or in the immediate vicinity of a railway 18
track-- 19
(i) a signalling system, communications system or 20
rolling stock control system associated with the 21
operation or movement of rolling stock on the 22
railway track; 23
(ii) an electrical traction system associated with the 24
operation or movement of rolling stock on the 25
railway track; 26
(iii) a part of a system mentioned in subparagraph (i) or 27
(ii); 28
(c) maintaining, repairing or modifying any of the 29
following if the activity is carried out on or in the 30
immediate vicinity of a railway track-- 31
(i) rail infrastructure mentioned in paragraph (a) or 32
(b); 33
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[s 22]
(ii) a data management system associated with the 1
operation or movement of rolling stock on the 2
railway track; 3
(iii) a notice or sign erected or placed on or in the 4
immediate vicinity of the railway track; 5
(iv) plant, machinery or equipment associated with the 6
operation or movement of rolling stock on the 7
railway track; 8
Examples for subparagraph (iv)-- 9
plant, machinery or equipment forming part of a level 10
crossing, bridge or another structure used to cross over or 11
under a railway 12
(v) rolling stock; 13
(d) operating any of the following to the extent the activity 14
affects the operation or movement of rolling stock on a 15
railway track-- 16
(i) a signalling system, communications system, 17
rolling stock control system or data management 18
system; 19
(ii) an electrical traction system; 20
(iii) plant, machinery or equipment; 21
Examples for subparagraph (iii)-- 22
plant, machinery or equipment forming part of a level 23
crossing, bridge or another structure used to cross over or 24
under a railway 25
(e) an activity that affects the safe operation or movement 26
of rolling stock on a railway track and is prescribed 27
under a transitional regulation for this section. 28
(3) Constructing, maintaining, repairing or modifying a platform, 29
station, tram stop or similar structure or works are not 30
activities that affect the safe operation or movement of rolling 31
stock on a railway track. 32
Note-- 33
Railway operations not mentioned in subsection (2) and railway 34
operations mentioned in subsection (3) are not the subject of rail safety 35
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[s 23]
duties under this division. See the Workplace Health and Safety Act and 1
Electrical Safety Act for obligations about safety for those railway 2
operations. 3
23 Concept of ensuring rail safety is not affected by 4
prescribed railway operations 5
(1) A duty imposed on a person under this division to ensure, so 6
far as is reasonably practicable, rail safety is not affected by 7
prescribed railway operations carried out by or on behalf of 8
the person requires the person-- 9
(a) to eliminate the risks to safety caused by the prescribed 10
railway operations, so far as is reasonably practicable; 11
or 12
(b) if it is not reasonably practicable to eliminate the risks to 13
safety caused by the prescribed railway operations--to 14
reduce the risks so far as is reasonably practicable. 15
(2) Subsection (3) states the matters to which regard must be had 16
in deciding the following-- 17
(a) whether or not it is reasonably practicable to eliminate a 18
risk to safety caused by prescribed railway operations; 19
(b) the things that should be done or omitted to be done by a 20
person to eliminate or reduce, so far as is reasonably 21
practicable, a risk to safety caused by prescribed railway 22
operations. 23
(3) The following are the matters to which regard must be had-- 24
(a) the likelihood of the risk eventuating; 25
(b) the degree of harm that would result if the risk 26
eventuated; 27
(c) what the person concerned knows or ought reasonably 28
to know about the risk and any ways of eliminating or 29
reducing the risk; 30
(d) the availability and suitability of ways to eliminate or 31
reduce the risk; 32
(e) the cost of eliminating or reducing the risk. 33
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[s 24]
24 Duty to ensure rail safety 1
A rail transport operator must ensure, so far as is reasonably 2
practicable, rail safety is not affected by the carrying out of 3
the operator's prescribed railway operations. 4
Maximum penalty-- 5
(a) if the breach causes multiple deaths--2000 penalty units 6
or 3 years imprisonment; or 7
(b) if the breach causes death or grievous bodily 8
harm--1000 penalty units or 2 years imprisonment; or 9
(c) if the breach causes bodily harm--750 penalty units or 1 10
year's imprisonment; or 11
(d) if the breach involves exposure to a substance likely to 12
cause death or grievous bodily harm--750 penalty units 13
or 1 year's imprisonment; or 14
(e) otherwise--500 penalty units or 6 months 15
imprisonment. 16
25 When rail transport operator fails to discharge duty 17
(1) Without limiting section 24, a rail transport operator 18
contravenes the section if the operator fails to do any of the 19
following-- 20
(a) develop and implement, so far as is reasonably 21
practicable, safe working systems for carrying out the 22
prescribed railway operations; 23
(b) ensure, so far as is reasonably practicable, that each rail 24
safety worker who carries out rail safety work for the 25
prescribed railway operations-- 26
(i) is of sufficient good health and fitness to carry out 27
the work safely; and 28
(ii) is competent to carry out the work; 29
(c) ensure, so far as is reasonably practicable, that each rail 30
safety worker who is on duty for carrying out rail safety 31
work for the prescribed railway operations-- 32
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[s 26]
(i) has less alcohol present in the worker's blood or 1
breath than the concentration prescribed under a 2
regulation; and 3
(ii) is not impaired by a drug; 4
(d) ensure, so far as is reasonably practicable, that each rail 5
safety worker who carries out rail safety work for the 6
prescribed railway operations complies with the 7
operator's fatigue management program in force under 8
section 66; 9
(e) provide, so far as is reasonably practicable, adequate 10
facilities for the safety of persons at prescribed railway 11
premises under the control or management of the 12
operator; 13
(f) provide, so far as is reasonably practicable, each rail 14
safety worker with the information, instruction, training 15
and supervision that is necessary to ensure the worker's 16
rail safety when carrying out rail safety work for the 17
prescribed railway operations; 18
(g) provide, so far as is reasonably practicable, other rail 19
transport operators and other persons at prescribed 20
railway premises under the control or management of 21
the operator with the information that is necessary to 22
ensure the operators' and persons' rail safety. 23
(2) For subsection (1)(c), a rail safety worker is on duty for 24
carrying out rail safety work if the worker-- 25
(a) is about to carry out the rail safety work; or 26
(b) is carrying out the rail safety work; or 27
(c) has just carried out the rail safety work. 28
26 When rail infrastructure manager fails to discharge duty 29
Without limiting section 24 or 25, a rail infrastructure 30
manager contravenes section 24 if the manager fails to do any 31
of the following-- 32
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[s 27]
(a) ensure, so far as is reasonably practicable, that the 1
construction, maintenance, repair, modification or 2
operation of the manager's rail infrastructure is done or 3
carried out in a way that ensures rail safety is not 4
affected by the prescribed railway operations; 5
Note-- 6
This paragraph does not include a reference to the 7
commissioning, decommissioning, design or installation of rail 8
infrastructure because the duty imposed under section 24 does 9
not apply to the commissioning, decommissioning, design or 10
installation. See the Workplace Health and Safety Act and 11
Electrical Safety Act for obligations about the safety of the 12
commissioning, decommissioning, design or installation. 13
(b) establish, so far as is reasonably practicable, systems 14
and procedures for the scheduling, control and 15
monitoring of the prescribed railway operations that 16
ensure rail safety is not affected by the railway 17
operations. 18
27 When rolling stock operator fails to discharge duty 19
Without limiting section 24 or 25, a rolling stock operator 20
contravenes section 24 if the operator fails to do any of the 21
following-- 22
(a) provide or maintain, for the prescribed railway 23
operations, rolling stock that, so far as is reasonably 24
practicable, is safe; 25
(b) ensure, so far as is reasonably practicable, that the 26
maintenance, repair, modification, cleaning, operation 27
or movement of rolling stock is done or carried out in a 28
way that ensures rail safety is not affected by the 29
prescribed railway operations; 30
Note-- 31
This paragraph does not include a reference to the 32
commissioning, decommissioning or design of rolling stock 33
because the duty imposed under section 24 does not apply to the 34
commissioning, decommissioning or design. See the Workplace 35
Health and Safety Act and Electrical Safety Act for obligations 36
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[s 28]
about the safety of the commissioning, decommissioning or 1
design. 2
(c) comply, so far as is reasonably practicable, with the 3
systems and procedures for the scheduling, control and 4
monitoring of rolling stock that have been established 5
by a rail infrastructure manager for the use of the 6
manager's rail infrastructure by the operator; 7
(d) so far as is reasonably practicable, establish and 8
maintain equipment, systems and procedures to 9
minimise risks to the safety of the prescribed railway 10
operations; 11
(e) make arrangements for ensuring, so far as is reasonably 12
practicable, rail safety in connection with the 13
maintenance, repair, modification, operation and 14
movement of the operator's rolling stock for the 15
prescribed railway operations. 16
28 Duty of rail transport operator extends to contractors 17
(1) This section applies if a person (a contractor) undertakes 18
prescribed railway operations on behalf of a rail transport 19
operator, other than as an employee of the operator. 20
(2) The duties under this division applying to the operator in 21
relation to the prescribed railway operations apply to the 22
contractor to the extent the duties relate to matters over which 23
the operator has control or would have had control if not for 24
an agreement purporting to limit or remove the control. 25
(3) The contractor must comply with the duties applying to the 26
contractor under subsection (2) in relation to the operator's 27
prescribed railway operations undertaken by the contractor. 28
Maximum penalty-- 29
(a) if the breach causes multiple deaths--2000 penalty units 30
or 3 years imprisonment; or 31
(b) if the breach causes death or grievous bodily 32
harm--1000 penalty units or 2 years imprisonment; or 33
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[s 29]
(c) if the breach causes bodily harm--750 penalty units or 1 1
year's imprisonment; or 2
(d) if the breach involves exposure to a substance likely to 3
cause death or grievous bodily harm--750 penalty units 4
or 1 year's imprisonment; or 5
(e) otherwise--500 penalty units or 6 months 6
imprisonment. 7
Division 3 Rail safety workers 8
Subdivision 1 Preliminary 9
29 Explanation of div 3 10
(1) The object of this division is to ensure rail safety is not 11
affected by the activities of rail safety workers. 12
(2) The object is achieved by imposing duties on rail safety 13
workers directed at ensuring the safety of the workers, and 14
other persons at railway premises, is not affected by the 15
workers' acts or omissions. 16
Note-- 17
Under section 14, the Workplace Health and Safety Act continues to 18
apply, and must be complied with, in addition to this Act. 19
30 Definition for div 3 20
In this division-- 21
relevant operator, for rail safety work, means-- 22
(a) if the rail safety work relates to railway operations 23
carried out by a rail transport operator--the rail 24
transport operator; or 25
(b) if the rail safety work relates to railway operations 26
carried out by a person (contractor) who undertakes the 27
railway operations on behalf of a rail transport operator, 28
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[s 31]
other than as an employee of the operator--the 1
contractor and the rail transport operator. 2
31 Particular provisions of Criminal Code do not apply 3
The Criminal Code, sections 23 and 24 do not apply to an 4
offence under this division. 5
Notes-- 6
1 The Criminal Code, section 23 deals with a person's criminal 7
responsibility for an act or omission that happens independently of 8
the person's will or for an event that is accidental. 9
2 The Criminal Code, section 24 deals with a person's criminal 10
responsibility for an act or omission done under an honest and 11
reasonable, but mistaken, belief in the state of things. 12
Subdivision 2 Duties 13
32 Duty to take reasonable care for particular rail safety 14
work 15
(1) A rail safety worker, when carrying out prescribed rail safety 16
work, must-- 17
(a) take reasonable care for the worker's own safety; and 18
(b) take reasonable care for the safety of persons who may 19
be affected by the worker's acts or omissions. 20
Note-- 21
Rail safety work that is not prescribed rail safety work is not the subject 22
of a duty under this section. See the Workplace Health and Safety Act 23
and Electrical Safety Act for obligations about safety for rail safety 24
work that is not prescribed rail safety work. 25
Maximum penalty-- 26
(a) if the breach causes multiple deaths--2000 penalty units 27
or 3 years imprisonment; or 28
(b) if the breach causes death or grievous bodily 29
harm--1000 penalty units or 2 years imprisonment; or 30
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[s 33]
(c) if the breach causes bodily harm--750 penalty units or 1 1
year's imprisonment; or 2
(d) if the breach involves exposure to a substance likely to 3
cause death or grievous bodily harm--750 penalty units 4
or 1 year's imprisonment; or 5
(e) otherwise--500 penalty units or 6 months 6
imprisonment. 7
(2) For subsection (1)(a) or (b), in deciding whether a rail safety 8
worker failed to take reasonable care, regard must be had to 9
what the rail safety worker knew about the relevant 10
circumstances. 11
(3) In this section-- 12
prescribed rail safety work means rail safety work 13
involving-- 14
(a) rolling stock; or 15
(b) a railway track or associated track structure. 16
33 Duty to comply with relevant operator's instructions 17
(1) This section applies if-- 18
(a) a relevant operator has given a rail safety worker who is 19
carrying out, or is about to carry out, rail safety work an 20
instruction relating to the way the rail safety work must 21
be carried out; and 22
(b) the rail safety worker knows, or ought reasonably to 23
know, the instruction is action, or a part of action, that is 24
taken by the operator to comply with a requirement 25
under this Act. 26
(2) The rail safety worker must comply with the instruction given 27
by the relevant operator when carrying out the rail safety 28
work. 29
Maximum penalty-- 30
(a) if the breach causes multiple deaths--2000 penalty units 31
or 3 years imprisonment; or 32
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[s 34]
(b) if the breach causes death or grievous bodily 1
harm--1000 penalty units or 2 years imprisonment; or 2
(c) if the breach causes bodily harm--750 penalty units or 1 3
year's imprisonment; or 4
(d) if the breach involves exposure to a substance likely to 5
cause death or grievous bodily harm--750 penalty units 6
or 1 year's imprisonment; or 7
(e) otherwise--500 penalty units or 6 months 8
imprisonment. 9
(3) In this section-- 10
requirement includes rail safety duty. 11
34 Duty to not interfere with or misuse things provided by 12
relevant operator 13
A rail safety worker, when carrying out rail safety work, must 14
not, intentionally or recklessly, interfere with or misuse 15
anything provided to the worker by the relevant operator for 16
the work-- 17
(a) in the interests of ensuring safety of persons; or 18
(b) under this Act. 19
Maximum penalty-- 20
(a) if the breach causes multiple deaths--2000 penalty units 21
or 3 years imprisonment; or 22
(b) if the breach causes death or grievous bodily 23
harm--1000 penalty units or 2 years imprisonment; or 24
(c) if the breach causes bodily harm--750 penalty units or 1 25
year's imprisonment; or 26
(d) if the breach involves exposure to a substance likely to 27
cause death or grievous bodily harm--750 penalty units 28
or 1 year's imprisonment; or 29
(e) otherwise--500 penalty units or 6 months 30
imprisonment. 31
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[s 35]
35 Duty to not place safety of others at risk 1
(1) This section applies to a rail safety worker carrying out rail 2
safety work on or in the immediate vicinity of rail 3
infrastructure. 4
(2) The rail safety worker must not, intentionally or recklessly, 5
place at risk the safety of another person on or in the 6
immediate vicinity of the rail infrastructure. 7
Maximum penalty-- 8
(a) if the breach causes multiple deaths--2000 penalty units 9
or 3 years imprisonment; or 10
(b) if the breach causes death or grievous bodily 11
harm--1000 penalty units or 2 years imprisonment; or 12
(c) if the breach causes bodily harm--750 penalty units or 1 13
year's imprisonment; or 14
(d) if the breach involves exposure to a substance likely to 15
cause death or grievous bodily harm--750 penalty units 16
or 1 year's imprisonment; or 17
(e) otherwise--500 penalty units or 6 months 18
imprisonment. 19
Subdivision 3 Defences 20
36 Compliance with regulation etc. 21
(1) It is a defence in a proceeding against a person for a 22
contravention of a duty imposed on the person under this 23
division for the person to prove-- 24
(a) if a regulation makes provision in relation to preventing 25
the contravention of the duty--that the person complied 26
with the regulation to prevent the contravention; or 27
(b) if a compliance code has been made in relation to a duty 28
stating a way or ways to prevent the contravention of the 29
duty-- 30
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[s 37]
(i) that the person adopted and followed a stated way 1
to prevent the contravention; or 2
(ii) that the person adopted and followed another way 3
to comply with the duty and took reasonable 4
precautions and exercised proper diligence to 5
prevent the contravention; or 6
(c) if no regulation makes provision, and no compliance 7
code has been made, in relation to preventing the 8
contravention of the duty--that the person chose an 9
appropriate way and took reasonable precautions and 10
exercised proper diligence to prevent the contravention. 11
(2) In this section, a reference to a regulation or compliance code 12
is a reference to the regulation or code in force at the time of 13
the contravention. 14
37 Causes over which person has no control 15
It is a defence in a proceeding against a person for an offence 16
against this division for the person to prove that the 17
commission of the offence was due to causes over which the 18
person had no control. 19
Part 4 Other requirements relating to 20
safety of railway operations 21
Division 1 Preliminary 22
38 Civil liability not affected by this part 23
(1) This part does not-- 24
(a) create a civil cause of action based on a contravention of 25
a provision of this part; or 26
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Part 4 Other requirements relating to safety of railway operations
[s 39]
(b) affect a civil right or remedy that exists apart from this 1
part, whether at common law or otherwise. 2
(2) Without limiting subsection (1)(b), compliance with this part 3
does not necessarily show that a civil obligation that exists 4
apart from this part has been satisfied or has not been 5
breached. 6
(3) This section does not affect the interpretation of this Act other 7
than this part. 8
Division 2 Accreditation requirement 9
Subdivision 1 Requirement to be accredited 10
39 Accreditation required for railway operations 11
(1) A person must not carry out, or cause or permit to be carried 12
out, railway operations unless-- 13
(a) the person is a rail transport operator who is accredited 14
for the railway operations; or 15
(b) the person is exempt under this Act from the 16
requirement to be accredited for the railway operations; 17
or 18
(c) the person is, whether as an employee or otherwise, 19
carrying out the railway operations, or causing or 20
permitting the railway operations to be carried out, on 21
behalf of another person who is-- 22
(i) accredited for the railway operations; or 23
(ii) exempt under this Act from the requirement to be 24
accredited for the railway operations. 25
Maximum penalty--500 penalty units. 26
(2) To remove any doubt, it is declared that a person is accredited 27
for railway operations only if the accreditation for the railway 28
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[s 40]
operations is in force and has not been suspended under this 1
Act. 2
Subdivision 2 Exemption for related body 3
corporate 4
40 Accreditation not required for related body corporate 5
(1) This section applies if-- 6
(a) railway operations are carried out by or on behalf of 7
both a corporation and a related body corporate of the 8
corporation; and 9
(b) the corporation is accredited for the railway operations. 10
(2) The related body corporate is exempt from the requirement to 11
be accredited for the railway operations. 12
Note-- 13
See section 51 for the requirement to apply for an exemption notice. 14
(3) In this section-- 15
related body corporate see the Corporations Act, section 50. 16
Subdivision 3 Exemption for private sidings 17
41 Accreditation not required for particular railway 18
operations on or at private siding 19
A rail infrastructure manager of a private siding is exempt 20
from the requirement to be accredited for the following 21
railway operations carried out on or at the private siding by or 22
on behalf of the manager-- 23
(a) the construction of a railway, railway tracks and 24
associated track structures; 25
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[s 42]
(b) the management, commissioning, maintenance, repair, 1
modification, installation, operation or 2
decommissioning of rail infrastructure. 3
Notes-- 4
1 See section 51 for the requirement to apply for an exemption notice. 5
2 This section refers to the commissioning, installation and 6
decommissioning of rail infrastructure because, under this Act, 7
accreditation is required for all railway operations. However, the 8
Workplace Health and Safety Act and Electrical Safety Act impose 9
obligations about the safety of the commissioning, installation and 10
decommissioning. See section 6 and part 2 for the application of 11
those Acts. 12
Subdivision 4 Provisions about particular private 13
sidings 14
42 Application of sdiv 4 15
This subdivision applies to a private siding if rail 16
infrastructure railway operations carried out on or at the 17
private siding by or on behalf of the rail infrastructure 18
manager of the private siding are not the subject of an 19
accreditation. 20
43 Definitions for sdiv 4 21
In this subdivision-- 22
accredited railway means a railway in relation to which an 23
accreditation for rail infrastructure railway operations has 24
been granted. 25
rail infrastructure railway operations means-- 26
(a) the construction of a railway, railway tracks and 27
associated track structures; or 28
(b) the management, commissioning, maintenance, repair, 29
modification, installation, operation or 30
decommissioning of rail infrastructure. 31
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44 Connection or access between private siding and 1
accredited railway 2
(1) This section applies if a rail infrastructure manager of a 3
private siding and an accredited person for an accredited 4
railway have entered into an agreement about the private 5
siding's connection with, or access to, the accredited railway. 6
(2) The accredited person may-- 7
(a) disconnect the private siding from the accredited 8
railway; or 9
(b) close the connection between the private siding and the 10
accredited railway. 11
(3) However, before taking action under subsection (2), the 12
accredited person must-- 13
(a) give at least 3 months notice of the proposed action to 14
the rail infrastructure manager; or 15
(b) obtain written agreement to the proposed action from 16
the rail infrastructure manager. 17
(4) If the accredited person acts under subsection (2), the 18
accredited person may, by notice, require the rail 19
infrastructure manager to remove any part of the private 20
siding (the part) that is on land managed by the accredited 21
person. 22
(5) If the rail infrastructure manager does not remove the part 23
within a reasonable time, the accredited person may remove it 24
and recover the costs of the removal from the rail 25
infrastructure manager as a debt. 26
(6) Subsections (2) to (5) are subject to the agreement between 27
the rail infrastructure manager and the accredited person. 28
Note-- 29
See section 38 for an explanation of the relationship between this part 30
(including this section) and civil liability. 31
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[s 45]
45 Particular private sidings required to be registered 1
(1) This section applies if a rail infrastructure manager of a 2
private siding wishes the private siding-- 3
(a) to be connected with, or to have access to, an accredited 4
railway; or 5
(b) if, on the day subsections (1) to (8) start to apply under 6
subsection (10), the private siding is connected with, or 7
has access to, an accredited railway--to continue to be 8
connected with, or have access to, the accredited 9
railway. 10
(2) The manager must lodge with the chief executive a request for 11
the registration of the private siding that-- 12
(a) is in the approved form; and 13
(b) is accompanied by a document stating details of the 14
interface coordination plan under section 49 applying to 15
the private siding. 16
Note-- 17
See also section 48(2). 18
(3) After receiving a request under subsection (2), the chief 19
executive must, within a reasonable period-- 20
(a) register the private siding, with or without conditions; 21
and 22
(b) issue a notice of registration to the manager. 23
(4) For subsection (3)(a), the chief executive may impose a 24
condition on the registration of a private siding about the safe 25
construction, maintenance or operation of the private siding. 26
Note-- 27
This subsection empowers the chief executive to impose conditions 28
about the safe construction, maintenance or operation of a private siding 29
because divisions 3 to 5 (which include requirements about safety 30
management) do not apply to railway operations carried out on or at the 31
private siding that are exempt from accreditation under section 41. 32
However, the rail infrastructure manager is also subject to rail safety 33
duties under part 2, and obligations about safety under the Workplace 34
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[s 46]
Health and Safety Act and Electrical Safety Act, in relation to railway 1
operations carried out on or at the private siding. 2
(5) However, a condition imposed under subsection (4) can not 3
apply to railway operations the subject of an accreditation. 4
(6) If the chief executive has imposed conditions on the 5
registration, the notice of registration issued under subsection 6
(3)(b) must-- 7
(a) state the conditions; and 8
(b) be accompanied by an information notice for the 9
decision to impose the conditions. 10
(7) The chief executive must make the registration particulars 11
prescribed under a regulation available for inspection by the 12
public during office hours on business days at the following 13
places-- 14
(a) each office of the department; 15
(b) each other place prescribed under a regulation. 16
(8) A rail infrastructure manager of a private siding must not 17
allow the private siding to be connected with, or have access 18
to, an accredited railway unless the manager has received a 19
notice of registration for the private siding under this section. 20
Maximum penalty--80 penalty units. 21
(9) Subsection (8) applies despite any agreement mentioned in 22
section 44(1). 23
(10) Subsections (1) to (9) do not apply until 3 years after the day 24
this section commences. 25
(11) Subsection (10) and this subsection expire the day after the 26
day subsections (1) to (8) start to apply under subsection (10). 27
46 Prescribed registration conditions 28
(1) A regulation may prescribe a condition (a prescribed 29
registration condition) about the safe construction, 30
maintenance or operation of a private siding to which a 31
person's registration of a private siding is subject. 32
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[s 47]
(2) However, a condition prescribed under subsection (1) can not 1
apply to railway operations the subject of an accreditation. 2
(3) If there is an inconsistency between a condition stated on a 3
registration notice for a private siding and a prescribed 4
registration condition applying to the registration of the 5
private siding-- 6
(a) the prescribed registration condition applies to the 7
extent of the inconsistency; and 8
(b) the condition stated on the registration notice has no 9
effect to the extent of the inconsistency. 10
(4) For the application of a prescribed registration condition to a 11
person's registration of a private siding, it is irrelevant when 12
the registration takes effect. 13
47 Compliance with registration conditions for private 14
siding 15
(1) A person carrying out railway operations on or at a private 16
siding registered under section 45 must not contravene a 17
registration condition of the registration. 18
Maximum penalty--80 penalty units. 19
(2) In this section-- 20
registration condition, of the registration of a private siding, 21
means-- 22
(a) a prescribed registration condition under section 46 to 23
which the registration is subject; or 24
(b) a condition stated on the registration notice for the 25
private siding. 26
48 Annual registration fees 27
(1) Subject to subsection (2), the rail infrastructure manager of a 28
private siding registered under section 45 must pay the annual 29
registration fee prescribed under a regulation by the date 30
prescribed under the regulation. 31
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[s 49]
Note-- 1
If the rail infrastructure manager fails to pay an annual registration fee, 2
the unpaid fee may be recovered under section 262. 3
(2) The annual registration fee payable for the first year of 4
registration must accompany the request for registration 5
lodged under section 45(2). 6
49 Interface coordination plan for private siding connected 7
with or having access to accredited railway 8
(1) This section applies if a private siding is or will be connected 9
with, or has or will have access to, an accredited railway. 10
(2) The rail infrastructure manager of the private siding and the 11
accredited person for the accredited railway-- 12
(a) must, so far as is reasonably practicable, identify-- 13
(i) risks to the safety of persons arising, or potentially 14
arising, from railway operations carried out by or 15
on behalf of the manager that may be caused, 16
wholly or partly, by railway operations carried out 17
by or on behalf of the accredited person; and 18
(ii) risks to the safety of persons arising, or potentially 19
arising, from railway operations carried out by or 20
on behalf of the accredited person that may be 21
caused, wholly or partly, by railway operations 22
carried out by or on behalf of the manager; and 23
(b) must, in the way prescribed under a regulation, develop 24
and, if necessary, implement 1 or more plans (interface 25
coordination plans) for the coordination of the interface 26
between the railway operations of the manager and the 27
accredited person to minimise or eliminate the identified 28
risks. 29
Maximum penalty--200 penalty units. 30
(3) The rail infrastructure manager must give the accredited 31
person notice of any railway operations being, or about to be, 32
carried out on or at the private siding that may affect the safety 33
of persons on or at the accredited railway. 34
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[s 50]
Maximum penalty--200 penalty units. 1
(4) The accredited person must give the rail infrastructure 2
manager notice of any railway operations being, or about to 3
be, carried out on or at the accredited railway that may affect 4
the safety of persons on or at the private siding. 5
Maximum penalty--200 penalty units. 6
(5) A rail infrastructure manager of a private siding must prepare 7
and keep a register of the current interface coordination plans 8
developed by the manager under subsection (2)(b). 9
Maximum penalty--100 penalty units. 10
(6) An accredited person must include details of any interface 11
coordination plan developed by the person under subsection 12
(2)(b) in the register kept under section 61(2). 13
Maximum penalty--100 penalty units. 14
50 Chief executive may cancel registration of private siding 15
The chief executive may cancel the registration of a private 16
siding under section 45 if-- 17
(a) the private siding is not or is no longer connected with, 18
or does not have or no longer has access to, an 19
accredited railway; and 20
(b) the chief executive has obtained written agreement for 21
the cancellation from the rail infrastructure manager of 22
the private siding. 23
Subdivision 5 Exemption notices 24
51 Requirement to obtain exemption notice 25
(1) This section applies if this Act provides that a person is 26
exempt from the requirement to be accredited for particular 27
railway operations carried out by or on behalf of the person. 28
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[s 52]
(2) The person must apply to the chief executive for the issue of 1
an exemption notice under this section. 2
Note-- 3
Under section 77, a rail transport operator who is exempt from the 4
requirement to be accredited for particular railway operations must have 5
the exemption notice for the exemption available for inspection. 6
(3) The chief executive must give the person an exemption notice 7
for the railway operations immediately after receiving the 8
application. 9
(4) In this section-- 10
exemption notice, for railway operations carried out by or on 11
behalf of a person, means a notice stating the person is exempt 12
from the requirement to be accredited for the railway 13
operations. 14
Division 3 Requirements about safety 15
management 16
Subdivision 1 Application 17
52 Application of div 3 18
This division does not apply in relation to railway operations 19
carried out by or on behalf of a rail transport operator for 20
which the operator is exempt under this Act from the 21
requirement to be accredited. 22
Subdivision 2 Safety management system 23
53 Requirement to have and implement safety management 24
system 25
(1) A rail transport operator must have and implement a safety 26
management system complying with this division for railway 27
operations carried out by or on behalf of the operator. 28
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[s 54]
Maximum penalty--200 penalty units. 1
(2) Subsection (3) applies if 2 or more rail transport operators 2
have an interface coordination plan under section 61 relating 3
to risks to the safety of persons arising, or potentially arising, 4
from railway operations carried out by or on behalf of any of 5
them. 6
(3) If the safety management systems of all of the rail transport 7
operators, when taken as 1 system, comply with this division, 8
each safety management system is taken to comply with this 9
division. 10
54 General requirements for safety management system 11
(1) A rail transport operator's safety management system for 12
railway operations must-- 13
(a) be in the approved form; and 14
(b) comply with-- 15
(i) the requirements prescribed under a regulation; 16
and 17
(ii) the risk management principles, methods and 18
procedures prescribed under a regulation; and 19
(c) identify and assess the risks to safety of persons arising 20
or potentially arising from the carrying out of the 21
railway operations; and 22
(d) state-- 23
(i) the controls, including audits, expertise, resources 24
and staff, that are to be used by the operator to 25
manage risks to the safety of persons, and to 26
monitor the safety of persons, in relation to the 27
railway operations; and 28
(ii) the procedures for monitoring, reviewing and 29
revising the adequacy of the controls mentioned in 30
subparagraph (i); and 31
(e) include a copy of each of the following applying in 32
relation to the railway operations-- 33
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[s 55]
(i) any interface coordination plan under section 49 or 1
61; 2
(ii) the operator's security management plan under 3
section 62; 4
(iii) the operator's emergency management plan under 5
section 63; 6
(iv) the operator's health and fitness management 7
program under section 64; 8
(v) the operator's alcohol and drug management 9
program under section 65; 10
(vi) the operator's fatigue management program under 11
section 66. 12
(2) Also, a rail transport operator's safety management system for 13
railway operations must identify-- 14
(a) the person responsible for preparing each part of the 15
safety management system; and 16
(b) the person, or class of persons, responsible for 17
implementing the system. 18
55 Review of safety management system 19
(1) A rail transport operator must review the operator's safety 20
management system in the way prescribed under a 21
regulation-- 22
(a) if a regulation prescribes when or the periods within 23
which the review must be conducted--at the prescribed 24
times or within the prescribed periods; or 25
(b) if paragraph (a) does not apply and the operator and 26
chief executive have agreed when or the periods within 27
which the review must be conducted--at the agreed 28
times or within the agreed periods; or 29
(c) otherwise--at least yearly. 30
Maximum penalty--200 penalty units. 31
(2) This section is subject to section 270(3). 32
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[s 56]
56 Consultation requirement 1
A rail transport operator, before establishing a safety 2
management system for railway operations, or reviewing or 3
varying a safety management system for railway operations, 4
must, so far as is reasonably practicable, consult with-- 5
(a) persons likely to be affected by the system or its review 6
or variation who are persons-- 7
(i) who carry out, or are likely to carry out, the 8
railway operations; or 9
(ii) who work, or are likely to work, on or at the 10
operator's railway premises; or 11
(iii) who work, or are likely to work, on or with the 12
operator's rolling stock; and 13
(b) workplace health and safety representatives, within the 14
meaning of the Workplace Health and Safety Act, 15
representing any of the persons mentioned in paragraph 16
(a); and 17
(c) unions representing any of the persons mentioned in 18
paragraph (a); and 19
(d) any other rail transport operator with whom the operator 20
has an interface coordination plan under section 49 or 61 21
relating to risks to the safety of persons arising, or 22
potentially arising, from railway operations carried out 23
by or on behalf of either of them; and 24
(e) the public, as appropriate. 25
57 Operator must not contravene safety management 26
system 27
(1) A rail transport operator must not contravene the operator's 28
safety management system for railway operations, unless the 29
operator has a reasonable excuse. 30
Maximum penalty--200 penalty units. 31
(2) It is a reasonable excuse for a rail transport operator 32
contravening the safety management system if-- 33
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[s 58]
(a) the contravention can not be avoided without the 1
operator contravening-- 2
(i) an accreditation condition of the operator's 3
accreditation for the railway operations; or 4
(ii) an improvement notice or prohibition notice; or 5
(b) without the contravention, the likelihood of a notifiable 6
occurrence happening would increase. 7
(3) Subsection (2) does not limit the excuses that may be 8
reasonable excuses for subsection (1). 9
58 Contractor must not contravene safety management 10
system 11
(1) This section applies if a person (a contractor) undertakes 12
railway operations on behalf of a rail transport operator, other 13
than as an employee of the operator. 14
(2) Before the contractor starts carrying out the railway 15
operations, the rail transport operator must-- 16
(a) give the contractor a notice stating where and when the 17
contractor may inspect the parts of the operator's safety 18
management system applying to the railway operations 19
(the relevant parts); and 20
(b) ensure the relevant parts are available for inspection by 21
the contractor in the way stated in the notice. 22
Maximum penalty--200 penalty units. 23
(3) The contractor must not, unless the contractor has a 24
reasonable excuse, contravene the rail transport operator's 25
safety management system, to the extent the system applies to 26
the railway operations undertaken by the contractor. 27
Maximum penalty--200 penalty units. 28
(4) It is a reasonable excuse for a person contravening the safety 29
management system if-- 30
(a) the contravention can not be avoided without the person 31
contravening-- 32
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Part 4 Other requirements relating to safety of railway operations
[s 59]
(i) an accreditation condition of the accreditation for 1
the railway operations of the rail transport operator 2
for whom the person is undertaking the railway 3
operations; or 4
(ii) an improvement notice or prohibition notice; or 5
(b) without the contravention, the likelihood of a notifiable 6
occurrence happening would increase; or 7
(c) the person complied with the parts of the safety 8
management system that were made available to the 9
person under subsection (2). 10
(5) Subsection (4) does not limit the excuses that may be 11
reasonable excuses for subsection (3). 12
59 Chief executive may direct amendment of safety 13
management system 14
(1) The chief executive may, by notice, direct a rail transport 15
operator to amend the operator's safety management system 16
within a stated period of at least 28 days after the direction is 17
given. 18
(2) A notice giving a direction under subsection (1) must include, 19
or be accompanied by, an information notice for the decision 20
to give the direction. 21
(3) The rail transport operator must comply with the direction 22
unless the operator has a reasonable excuse. 23
Maximum penalty for subsection (3)--200 penalty units. 24
Subdivision 3 Safety performance reports 25
60 Requirement to give safety performance report 26
(1) A rail transport operator must, for each reporting period, give 27
the chief executive a safety performance report complying 28
with subsection (2) within 6 months after the end of the 29
period. 30
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[s 61]
Maximum penalty--100 penalty units. 1
(2) The safety performance report must-- 2
(a) be in the approved form; and 3
(b) comply with the requirements prescribed under a 4
regulation; and 5
(c) include the following-- 6
(i) a description and assessment of the safety 7
performance of railway operations carried out by 8
or on behalf of the rail transport operator; 9
(ii) comments on any deficiencies in, and any 10
irregularities in, the railway operations that may be 11
relevant to ensuring rail safety in relation to the 12
railway operations; 13
(iii) a description of any initiatives undertaken in the 14
reporting period, or proposed to be undertaken in 15
the next reporting period, relating to the safety of 16
persons in relation to the railway operations; 17
(iv) any other information or performance indicators 18
prescribed under a regulation. 19
(3) In this section-- 20
reporting period means a calendar year or, if the chief 21
executive and rail transport operator have agreed on another 22
period for this section, the other period. 23
Subdivision 4 Interface coordination 24
61 Requirements about interface coordination plan 25
(1) A rail transport operator-- 26
(a) must identify, so far as is reasonably practicable, risks to 27
the safety of persons arising, or potentially arising, from 28
railway operations carried out by or on behalf of the 29
operator that may be caused, wholly or partly, by 30
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[s 62]
railway operations carried out by or on behalf of another 1
rail transport operator; and 2
(b) must, in the way prescribed under a regulation, develop 3
and, if necessary, implement 1 or more plans (interface 4
coordination plans) for the coordination of the interface 5
between the railway operations of the operator and the 6
other operator to minimise or eliminate the identified 7
risks. 8
Maximum penalty--200 penalty units. 9
(2) A rail transport operator must prepare and keep a register of 10
current interface coordination plans developed by the 11
operator. 12
Maximum penalty--100 penalty units. 13
(3) A rail transport operator must give another rail transport 14
operator (the other operator) with whom the operator has an 15
interface coordination plan under this section notice of any 16
railway operations carried out by or on behalf of the operator 17
that may affect the safety of railway operations carried out by 18
or on behalf of the other operator. 19
Maximum penalty--200 penalty units. 20
(4) Subsections (1) to (3) do not apply until 1 year after the day 21
this section commences. 22
(5) Subsection (4) and this subsection expire the day after the day 23
subsections (1) to (3) start to apply under subsection (4). 24
Subdivision 5 Management plans 25
62 Requirement to have and implement security 26
management plan 27
(1) A rail transport operator must have a security management 28
plan complying with subsection (2) for railway operations 29
carried out by or on behalf of the operator. 30
Maximum penalty--200 penalty units. 31
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[s 63]
(2) The security management plan must-- 1
(a) include measures to protect people from, and respond to 2
acts of, theft, assault, sabotage, terrorism and other 3
criminal acts of other parties and from other harm; and 4
(b) comply with the requirements prescribed under a 5
regulation. 6
(3) A rail transport operator must ensure-- 7
(a) the operator's security management plan is 8
implemented; and 9
(b) the appropriate response measures of the operator's 10
security management plan are implemented without 11
delay if an incident of a type mentioned in subsection 12
(2)(a) happens. 13
Maximum penalty--200 penalty units. 14
(4) However, if an incident of a type mentioned in subsection 15
(2)(a) results in an emergency, subsection (3) does not apply 16
to the extent that the implementation of the security 17
management plan, or a response measure of the security 18
management plan, is inconsistent with a response measure of 19
the emergency management plan required to be implemented 20
under section 63(4) for the emergency. 21
63 Requirement to have and implement emergency 22
management plan 23
(1) A rail transport operator must have an emergency 24
management plan complying with subsection (2) for railway 25
operations carried out by or on behalf of the operator. 26
Maximum penalty--200 penalty units. 27
(2) An emergency management plan must-- 28
(a) be prepared-- 29
(i) in conjunction with each emergency service and 30
each other entity prescribed under a regulation; and 31
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[s 64]
(ii) in a way that complies with the requirements 1
prescribed under a regulation; and 2
(b) provide for the matters prescribed under a regulation. 3
(3) A rail transport operator must ensure-- 4
(a) the operator's emergency management plan is kept in a 5
way that complies with the requirements prescribed 6
under a regulation; and 7
(b) a copy of the operator's emergency management plan is 8
given to each emergency service and each other person 9
prescribed under a regulation; and 10
(c) the operator's emergency management plan is tested in 11
the way prescribed under a regulation. 12
Maximum penalty--200 penalty units. 13
(4) A rail transport operator must ensure that the appropriate 14
response measures of the operator's emergency management 15
plan that the operator is required to take under the plan are 16
implemented without delay if an emergency happens. 17
Maximum penalty--200 penalty units. 18
(5) In this section-- 19
emergency service means the following-- 20
(a) the Queensland Ambulance Service; 21
(b) the Queensland Fire and Rescue Service; 22
(c) the Queensland Police Service. 23
Subdivision 6 Management programs 24
64 Requirement to have and implement health and fitness 25
management program 26
A rail transport operator must have and implement a health 27
and fitness management program, complying with the 28
requirements prescribed under a regulation, for rail safety 29
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[s 65]
workers who carry out rail safety work on or in relation to the 1
operator's rail infrastructure or rolling stock. 2
Maximum penalty--200 penalty units. 3
65 Requirement to have and implement alcohol and drug 4
management program 5
A rail transport operator must have and implement an alcohol 6
and drug management program, complying with the 7
requirements prescribed under a regulation, for rail safety 8
workers who carry out rail safety work on or in relation to the 9
operator's rail infrastructure or rolling stock. 10
Maximum penalty--200 penalty units. 11
66 Requirement to have and implement fatigue management 12
program 13
A rail transport operator must have and implement a fatigue 14
management program, complying with the requirements 15
prescribed under a regulation, for rail safety workers who 16
carry out rail safety work on or in relation to the operator's rail 17
infrastructure or rolling stock. 18
Maximum penalty--200 penalty units. 19
Subdivision 7 Other requirements about safety 20
management 21
67 Testing for presence of alcohol or drugs 22
(1) The chief executive may enter into an arrangement with a rail 23
transport operator about the testing, in the way prescribed 24
under a regulation, for the presence of alcohol or 1 or more 25
other drugs in a rail safety worker who is on duty for carrying 26
out rail safety work on or in relation to the operator's rail 27
infrastructure or rolling stock. 28
(2) The rail transport operator must comply with the arrangement. 29
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[s 68]
Note-- 1
If the rail transport operator fails to comply with the arrangement, the 2
chief executive may suspend or revoke the operator's accreditation for 3
railway operations, wholly or partly, under section 90. 4
(3) For subsection (1), a rail safety worker is on duty for carrying 5
out rail safety work if the worker-- 6
(a) is about to carry out the rail safety work; or 7
(b) is carrying out the rail safety work; or 8
(c) has just carried out the rail safety work. 9
68 Assessment of competence 10
(1) A rail transport operator must ensure that each rail safety 11
worker who is to carry out rail safety work on or in relation to 12
the operator's rail infrastructure or rolling stock has the 13
competence to carry out the work. 14
Maximum penalty--500 penalty units. 15
(2) For subsection (1), the competence of a rail safety worker to 16
carry out particular rail safety work must be assessed in the 17
way prescribed under a regulation for the work. 18
Note-- 19
If the rail transport operator fails to assess the competence of a rail 20
safety worker to carry out particular rail safety work in the way 21
prescribed under a regulation for the work, the chief executive may 22
suspend or revoke the operator's accreditation for railway operations, 23
wholly or partly, under section 90. 24
(3) This section does not prevent a rail transport operator from 25
requiring a rail safety worker to undergo further training 26
before carrying out rail safety work. 27
(4) A rail transport operator must keep a record, in the way 28
prescribed under a regulation, of the competence of each rail 29
safety worker who carries out rail safety work on or in relation 30
to the operator's rail infrastructure or rolling stock. 31
Maximum penalty--100 penalty units. 32
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[s 69]
(5) Subsections (1) to (4) do not apply until 2 years after the day 1
this section commences. 2
(6) Subsection (5) and this subsection expire the day after the day 3
subsections (1) to (4) start to apply under subsection (5). 4
69 Identification for rail safety workers 5
(1) A rail transport operator must ensure that each rail safety 6
worker who is to carry out rail safety work on or in relation to 7
the operator's rail infrastructure or rolling stock has 8
identification that allows a rail safety officer to check the type 9
of competence and training the worker has for the work. 10
Maximum penalty--40 penalty units. 11
(2) A rail safety worker who is on duty for carrying out rail safety 12
work on or in relation to a rail transport operator's rail 13
infrastructure or rolling stock must, if asked by a rail safety 14
officer, produce for the officer's inspection the identification 15
provided to the worker under subsection (1), unless the 16
worker has a reasonable excuse. 17
Maximum penalty--40 penalty units. 18
(3) For subsection (2), a rail safety worker is on duty for carrying 19
out rail safety work if the worker-- 20
(a) is about to carry out the rail safety work; or 21
(b) is carrying out the rail safety work; or 22
(c) has just carried out the rail safety work. 23
(4) Subsections (1) to (3) do not apply until 2 years after the day 24
this section commences. 25
(5) Subsection (4) and this subsection expire the day after the day 26
subsections (1) to (3) start to apply under subsection (4). 27
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[s 70]
Division 4 Information giving requirements 1
70 Application of div 4 2
This division does not apply in relation to railway operations 3
carried out by or on behalf of a rail transport operator for 4
which the operator is exempt under this Act from the 5
requirement to be accredited. 6
71 Chief executive may require particular information 7
(1) The chief executive may, by notice, require a rail transport 8
operator to give the chief executive, by a stated date and in the 9
stated way, any or all of the following-- 10
(a) information about measures taken by the operator to 11
ensure rail safety; 12
(b) information the chief executive reasonably requires, for 13
the administration of this Act, about rail safety or the 14
operator's accreditation for railway operations, 15
including information about the operator's financial 16
capacity or insurance arrangements; 17
(c) information prescribed under a regulation for this 18
subsection. 19
(2) A rail transport operator given a notice under subsection (1) 20
must comply with the notice, unless the operator has a 21
reasonable excuse. 22
Maximum penalty for subsection (2)--200 penalty units. 23
72 Requirement to give prescribed information 24
(1) A rail transport operator must, as provided under subsection 25
(2), give the chief executive the information about safety, or 26
the operator's accreditation for railway operations, that is 27
prescribed under a regulation for this subsection. 28
Maximum penalty--200 penalty units. 29
(2) The information under subsection (1) must be given-- 30
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[s 73]
(a) in the way prescribed under a regulation; and 1
(b) within the time prescribed under a regulation; and 2
(c) for the periods prescribed under a regulation. 3
Division 5 Investigating and reporting 4
requirements 5
73 Application of div 5 6
This division does not apply in relation to railway operations 7
carried out by or on behalf of a rail transport operator for 8
which the operator is exempt under this Act from the 9
requirement to be accredited. 10
74 Notification of particular occurrences 11
(1) If a notifiable occurrence happens on or in relation to a rail 12
transport operator's railway premises or railway operations, 13
the operator must report the occurrence, within the period and 14
in the way prescribed under a regulation, to-- 15
(a) the chief executive; or 16
(b) if the chief executive has given the operator a notice 17
nominating another entity to whom the report is to be 18
given--the nominated entity. 19
Maximum penalty--200 penalty units. 20
(2) Two or more rail transport operators may, for complying with 21
subsection (1), make a joint report about a notifiable 22
occurrence affecting them. 23
(3) The chief executive may, by notice, require a rail transport 24
operator to give to the chief executive, or another entity, a 25
written report, complying with the requirements stated in the 26
notice, about another occurrence or type of occurrence that 27
endangers or could endanger the safe operation of railway 28
operations carried out by or on behalf of the operator. 29
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Part 4 Other requirements relating to safety of railway operations
[s 75]
(4) The chief executive may, by notice, require a rail transport 1
operator who has given a report under this section to verify 2
information in the report by statutory declaration. 3
(5) A rail transport operator who is given a notice under 4
subsection (3) or (4) must comply with the notice, unless the 5
operator has a reasonable excuse. 6
Maximum penalty for subsection (5)--200 penalty units. 7
75 Investigation of particular occurrences 8
(1) The chief executive may, by notice, require a rail transport 9
operator to investigate in the way stated in the notice-- 10
(a) a notifiable occurrence that has happened on or in 11
relation to the operator's railway premises or railway 12
operations; or 13
(b) another occurrence that has endangered or could 14
endanger the safe operation of the operator's railway 15
operations. 16
(2) The chief executive must decide the level of investigation 17
required under subsection (1) having regard to-- 18
(a) the severity and potential consequences of the notifiable 19
occurrence or other occurrence; and 20
(b) whether or not there have been any similar occurrences 21
on or in relation to the operator's railway premises or 22
railway operations. 23
(3) The chief executive must ensure the focus of an investigation 24
required under subsection (1) is directed at identifying the 25
cause of, and factors contributing to, the notifiable occurrence 26
or other occurrence, rather than apportioning blame. 27
(4) The rail transport operator must, unless the operator has a 28
reasonable excuse, ensure that the investigation is conducted 29
in the way stated in the notice within-- 30
(a) the period stated in the notice; or 31
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[s 76]
(b) if the chief executive has extended the period mentioned 1
in paragraph (a) by a later notice--the extended period 2
mentioned in the later notice. 3
Maximum penalty for subsection (4)--200 penalty units. 4
76 Report of investigation under s 75 5
(1) This section applies if a rail transport operator has carried out 6
an investigation under section 75. 7
(2) The rail transport operator must give the chief executive a 8
report of the investigation, complying with the requirements 9
stated in the notice given under section 75, within-- 10
(a) the period stated in the notice; or 11
(b) if the chief executive has extended the period mentioned 12
in paragraph (a) by a later notice--the extended period 13
mentioned in the later notice. 14
Maximum penalty--200 penalty units. 15
(3) The following is not admissible in evidence against an 16
individual in any civil or criminal proceeding-- 17
(a) a report given under this section (primary evidence); 18
(b) any information, or document or other thing, obtained as 19
a direct or indirect result of the report (derived 20
evidence). 21
(4) Subsection (3) does not prevent primary evidence or derived 22
evidence being admitted in evidence in criminal proceedings 23
about the falsity or misleading nature of the primary evidence. 24
(5) Also, subsection (3) has no effect on the use or admissibility 25
of the primary evidence or derived evidence in a coronial 26
procedure. 27
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[s 77]
Division 6 Keeping documents and making 1
them available for inspection 2
77 Relevant documents must be kept and made available for 3
inspection 4
(1) A rail transport operator must-- 5
(a) keep each relevant document for the operator-- 6
(i) at the relevant place for the operator; and 7
(ii) during the relevant times for the operator; and 8
(b) if asked by a rail safety officer, produce the document 9
for the officer's inspection unless the operator has a 10
reasonable excuse. 11
Maximum penalty--40 penalty units. 12
(2) It is not a reasonable excuse for a rail transport operator to not 13
produce an exemption notice in response to a request under 14
subsection (1)(b) that the operator has not obtained the 15
exemption notice under section 51. 16
(3) In this section-- 17
relevant document, for a rail transport operator, means the 18
following-- 19
(a) if the operator is an accredited person for railway 20
operations--the operator's accreditation notice for the 21
accreditation for the railway operations; 22
(b) if the operator is exempt under this Act from the 23
requirement to be accredited for railway 24
operations--the exemption notice for the railway 25
operations; 26
(c) if the operator is a rail infrastructure manager of a 27
private siding registered with the chief executive--the 28
operator's registration notice for the private siding; 29
(d) any other document prescribed under a regulation for 30
the operator. 31
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[s 78]
relevant place, for a rail transport operator, means the 1
following-- 2
(a) if the operator is a corporation--the operator's 3
registered office; or 4
(b) otherwise--the operator's principal place of business or, 5
if the chief executive approves another place nominated 6
by the operator, the approved place. 7
relevant times, for a rail transport operator, means the 8
following-- 9
(a) if the operator is a corporation--office hours on 10
business days; or 11
(b) otherwise--office hours on business days or, if the chief 12
executive approves other periods nominated by the 13
operator, the approved periods. 14
Part 5 Accreditation 15
Division 1 Preliminary 16
78 Purpose of accreditation 17
The purpose of accrediting a person for railway operations is 18
to attest that the person has demonstrated to the chief 19
executive that the person has the competence and capacity to 20
manage risks to the safety of persons arising, or potentially 21
arising, from the railway operations. 22
79 Accreditation criteria 23
The following are the accreditation criteria for a person for 24
being accredited for railway operations-- 25
(a) the railway operations relate to-- 26
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[s 80]
(i) rail infrastructure for which the person is or will be 1
a rail infrastructure manager; or 2
(ii) proposed rail infrastructure for which the person 3
will be a rail infrastructure manager; or 4
(iii) rolling stock for which the person is or will be a 5
rolling stock operator; or 6
(iv) proposed rolling stock for which the person will be 7
a rolling stock operator; 8
(b) the person has the competence and capacity to manage 9
risks to the safety of persons arising, or potentially 10
arising, from the railway operations; 11
(c) the person-- 12
(i) has the competence and capacity to implement the 13
person's safety management system for the railway 14
operations; and 15
(ii) has the financial capacity, or has public risk 16
insurance arrangements, to meet reasonable 17
potential accident liabilities arising from the 18
railway operations; 19
(d) the person has met the consultation requirements under 20
this Act applying to the person's safety management 21
system for the railway operations; 22
(e) the person is not disqualified, under section 90(3), from 23
applying for accreditation for the railway operations; 24
(f) any other criteria prescribed under a transitional 25
regulation. 26
80 Accreditation may be granted 27
(1) The chief executive may grant an accreditation for railway 28
operations of a stated scope and nature. 29
(2) For subsection (1), the stated scope and nature of the railway 30
operations includes-- 31
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[s 80]
(a) the railway operations for which accreditation is granted 1
under subsection (3); and 2
(b) details of the nature of the railway operations mentioned 3
in paragraph (a), including, for example-- 4
(i) the location of the railway operations or the rail 5
infrastructure to which the railway operations 6
relate; and 7
(ii) for railway operations relating to rolling 8
stock--the type of rolling stock that can be used 9
for the railway operations or the type of traction 10
system that can be used for the railway operations. 11
(3) An accreditation may be granted for 1 or more of the 12
following-- 13
(a) all or stated railway operations on or at-- 14
(i) a stated railway or part of a railway; or 15
(ii) a railway, or a part of a railway, having a stated 16
scope or stated characteristics; 17
(b) a service or aspect, or part of a service or aspect, of 18
stated railway operations; 19
(c) construction of stated rail infrastructure; 20
(d) an activity that is a part of railway operations, including, 21
for example, the following-- 22
(i) site preparation; 23
(ii) restoration or repair work; 24
(iii) testing of a railway track or other rail 25
infrastructure; 26
(iv) another activity considered appropriate by the 27
chief executive. 28
Note-- 29
An accredited person is given particular powers under the Transport 30
Infrastructure Act 1994. See, for example, chapter 7, part 4 for powers 31
for entering another person's land for carrying out particular railway 32
operations. 33
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[s 81]
(4) An accreditation may, on an applicant's request, be granted 1
for a stated period only. 2
Division 2 Applying for accreditation 3
81 Application for accreditation 4
(1) A person may apply to the chief executive for accreditation 5
for railway operations of a stated scope and nature that are 6
proposed to be carried out by or on behalf of the person. 7
(2) The application for accreditation must-- 8
(a) be made in the approved form; and 9
(b) state the following-- 10
(i) the scope and nature of the railway operations for 11
which accreditation is sought; 12
(ii) whether or not the applicant-- 13
(A) is an accredited person for railway 14
operations under a corresponding law 15
(including a person whose accreditation for 16
railway operations is suspended under a 17
corresponding law); or 18
(B) has applied for accreditation for railway 19
operations under a corresponding law; 20
(iii) if the applicant is an accredited person for railway 21
operations under a corresponding law and the 22
applicant's accreditation is suspended under the 23
corresponding law--that the accreditation is 24
suspended under the corresponding law; and 25
(c) include-- 26
(i) the information or other items prescribed under a 27
regulation; and 28
(ii) a safety management plan for the railway 29
operations for which accreditation is sought; and 30
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[s 82]
(d) be accompanied by the application fee prescribed under 1
a regulation. 2
(3) The chief executive may, by notice, require the applicant-- 3
(a) to supply further information; or 4
(b) to verify by statutory declaration any information 5
supplied to the chief executive. 6
(4) In this section-- 7
safety management plan, for railway operations, means a 8
document describing the proposed safety management system 9
for the railway operations. 10
82 What applicant for accreditation must demonstrate 11
The chief executive may grant an accreditation for railway 12
operations to the applicant only if the chief executive is 13
satisfied that the applicant-- 14
(a) meets the accreditation criteria for being accredited for 15
the railway operations for which accreditation is sought; 16
and 17
(b) has complied with any other requirements prescribed 18
under a regulation for this section. 19
83 Coordination of applications between operators 20
(1) This section applies if the chief executive-- 21
(a) receives applications for accreditation for railway 22
operations from 2 or more rail transport operators; and 23
(b) believes that coordinated preparation of the applications 24
is necessary to ensure that the railway operations of the 25
rail transport operators are carried out safely. 26
(2) The chief executive may give a written direction to the rail 27
transport operators to coordinate their applications. 28
(3) Without limiting subsection (2), a direction under the 29
subsection may require a rail transport operator the subject of 30
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[s 83]
the direction to give another rail transport operator the subject 1
of the direction information about the circumstances relating 2
to the operator's railway operations that could constitute a risk 3
to the safety of persons in relation to the other operator's 4
railway operations. 5
(4) A rail transport operator who is given a direction under 6
subsection (2) must comply with the direction, unless the 7
operator has a reasonable excuse. 8
Maximum penalty--60 penalty units. 9
(5) A rail transport operator who has coordinated the preparation 10
of an application for accreditation in compliance with a 11
direction under this section must ensure the application is 12
amended, after the coordination, to include details of the 13
following-- 14
(a) the information given, under the direction, by the rail 15
transport operator to each other rail transport operator 16
the subject of the direction; 17
(b) the information given, under the direction, to the rail 18
transport operator by each other rail transport operator 19
the subject of the direction. 20
Maximum penalty--60 penalty units. 21
(6) The rail transport operator must give the amended application 22
to the chief executive. 23
(7) Subject to subsection (8), if the rail transport operator does 24
not give the amended application to the chief executive within 25
6 months after the direction is given, the operator's 26
application for accreditation lapses. 27
(8) The chief executive may, by notice to the rail transport 28
operator, extend the period within which the amended 29
application must be given. 30
(9) In this section-- 31
rail transport operator includes a person who will be a rail 32
transport operator. 33
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[s 84]
84 Coordination of decisions between rail safety regulators 1
(1) This section applies if the chief executive receives an 2
application for accreditation for railway operations that 3
indicates that the applicant-- 4
(a) is an accredited person for railway operations under a 5
corresponding law (including a person whose 6
accreditation for railway operations is suspended under 7
the corresponding law); or 8
(b) has applied for accreditation for railway operations 9
under a corresponding law. 10
(2) The chief executive must, as soon as possible and before 11
deciding the application, consult with the relevant 12
corresponding rail safety regulator about the application with 13
a view to the chief executive's decision on the application 14
being consistent with-- 15
(a) if the applicant is an accredited person under the 16
corresponding law of the other State--the applicant's 17
accreditation, including any decision of the relevant 18
corresponding rail safety regulator on an application for 19
a variation of the accreditation or a variation of a 20
condition of the accreditation, under the corresponding 21
law; or 22
(b) if the applicant is applying for accreditation in another 23
State--the decision of the relevant corresponding rail 24
safety regulator on the application in the other State. 25
85 Considering application 26
(1) The chief executive must consider each application for 27
accreditation for railway operations and-- 28
(a) if the chief executive is satisfied the chief executive can 29
grant the accreditation under section 82--grant the 30
accreditation, with or without conditions; or 31
(b) otherwise--refuse the application. 32
(2) The chief executive must grant the accreditation, or refuse the 33
application, before the latest of the following periods ends-- 34
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[s 86]
(a) 6 months after the application was received by the chief 1
executive; 2
(b) if the applicant was required to coordinate the 3
application with another rail transport operator under 4
section 83--6 months after the chief executive receives 5
the amended application after the coordination; 6
(c) if the chief executive requested further information in 7
relation to the application--6 months, or another period 8
agreed to by the chief executive and the applicant, after 9
the chief executive receives the final information 10
requested; 11
(d) if the chief executive, by notice to the applicant before 12
the expiry of a period mentioned in paragraph (a), (b) or 13
(c), nominates another period ending after the period 14
mentioned in paragraph (a), (b) or (c)--the nominated 15
period. 16
(3) If the chief executive gives a notice under subsection (2)(d), 17
the notice must include, or be accompanied by, an information 18
notice for the decision to extend the period mentioned in the 19
subsection. 20
86 Steps after application decided 21
(1) If the chief executive grants an accreditation, the chief 22
executive must give the applicant-- 23
(a) a notice granting the accreditation and stating the 24
matters mentioned in subsection (2); and 25
(b) if the chief executive has imposed a condition on the 26
accreditation--an information notice for the decision to 27
impose the condition. 28
(2) A notice under subsection (1)(a) must state the following-- 29
(a) the details of the applicant prescribed under a 30
regulation; 31
(b) the scope and nature of the railway operations for which 32
the accreditation is granted; 33
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[s 87]
(c) the way in which the railway operations for which the 1
accreditation is granted are to be carried out; 2
(d) if the chief executive has imposed conditions on the 3
accreditation--the conditions; 4
(e) any other information prescribed under a regulation. 5
(3) If the chief executive decides to refuse the application, the 6
chief executive must give the applicant an information notice 7
for the decision. 8
Division 3 Conditions of accreditation 9
87 Prescribed accreditation conditions 10
(1) A regulation may prescribe a condition (a prescribed 11
accreditation condition) to which a person's accreditation for 12
railway operations is subject. 13
(2) If there is an inconsistency between a condition stated on an 14
accreditation notice for an accreditation for railway operations 15
and a prescribed accreditation condition applying to the 16
accreditation-- 17
(a) the prescribed accreditation condition applies to the 18
extent of the inconsistency; and 19
(b) the condition stated on the accreditation notice has no 20
effect to the extent of the inconsistency. 21
(3) For the application of a prescribed accreditation condition to a 22
person's accreditation for railway operations, it is irrelevant 23
when the accreditation was granted. 24
(4) Also, if a person's accreditation for railway operations is 25
varied under this part, the accreditation as varied is subject to 26
the prescribed accreditation conditions. 27
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[s 88]
88 Breach of accreditation condition 1
A person carrying out railway operations the subject of an 2
accreditation must not contravene an accreditation condition 3
of the accreditation. 4
Maximum penalty--200 penalty units. 5
Division 4 Fees payable for accreditation 6
89 Annual accreditation fees 7
(1) An accredited person must pay the annual accreditation fee 8
prescribed under a regulation by the date prescribed under the 9
regulation. 10
(2) The chief executive may accept payment of an annual 11
accreditation fee payable by an accredited person under an 12
agreement made with the person, whether for payment by 13
instalments or otherwise. 14
Note-- 15
If the accredited person fails to pay an annual accreditation fee, the 16
unpaid fee may be recovered under section 262. Also, the chief 17
executive may suspend or revoke the accredited person's accreditation 18
for railway operations, wholly or partly, under section 90. 19
Division 5 Suspending, revoking or varying 20
accreditation 21
Subdivision 1 Suspension, revocation or variation 22
of conditions by chief executive 23
90 Grounds for suspending or revoking accreditation 24
(1) This section applies if-- 25
(a) the chief executive reasonably considers an accredited 26
person-- 27
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[s 91]
(i) no longer meets the accreditation criteria for being 1
accredited for the railway operations the subject of 2
the person's accreditation; or 3
(ii) is unable to carry out the railway operations the 4
subject of the person's accreditation in a way that 5
complies with the duties or requirements under this 6
Act for the railway operations; or 7
(iii) is not managing rail infrastructure, or is not 8
operating rolling stock, in relation to the railway 9
operations the subject of the person's accreditation 10
and has not done so for the previous year or longer; 11
or 12
(b) an accredited person contravenes this Act. 13
(2) The chief executive may, by complying with section 91-- 14
(a) suspend the person's accreditation wholly or partly, or in 15
relation to stated railway operations, for a stated period; 16
or 17
(b) revoke the person's accreditation wholly or partly, or in 18
relation to stated railway operations, with immediate 19
effect or with effect from a stated future date. 20
(3) If the chief executive revokes an accredited person's 21
accreditation, the chief executive may declare that the person 22
is disqualified from applying for accreditation, or 23
accreditation for stated railway operations, for a stated period. 24
91 Procedure for suspending or revoking accreditation 25
(1) Before making a decision under section 90, the chief 26
executive must-- 27
(a) give the person a notice stating-- 28
(i) that the chief executive is considering making a 29
decision under section 90 of the type, and for the 30
reasons, stated in the notice; and 31
(ii) that the person may, within the period of at least 28 32
days stated in the notice, make written 33
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[s 91]
representations to the chief executive showing 1
cause why the decision should not be made; and 2
(b) consider any representations made under paragraph 3
(a)(ii) that have not been withdrawn. 4
(2) If, after considering the written representations, the chief 5
executive decides to act under section 90, the chief executive 6
must give the applicant an information notice for the decision. 7
(3) If the chief executive decides to revoke the accreditation, the 8
information notice must also include a direction to the 9
accredited person to return the accreditation notice for the 10
accreditation to the chief executive within 14 days after 11
receiving the notice. 12
(4) A person who is directed under subsection (3) to return an 13
accreditation notice must comply with the direction, unless 14
the person has a reasonable excuse. 15
Maximum penalty--40 penalty units. 16
(5) A decision under section 90 takes effect on the later of the 17
following-- 18
(a) the day the information notice is given to the accredited 19
person; 20
(b) the day of effect stated in the information notice. 21
(6) If the chief executive decides to act under section 90 in 22
relation to a person who is an accredited person under a 23
corresponding law, including a person whose accreditation is 24
suspended under the corresponding law, the chief executive 25
must notify the relevant corresponding rail safety regulator of 26
the decision. 27
(7) If, after considering the written representations, the chief 28
executive decides action is no longer required under section 29
90 in relation to the accreditation, the chief executive must 30
give the applicant notice of the decision. 31
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[s 92]
92 Suspending accreditation immediately 1
(1) This section applies if the chief executive reasonably 2
considers there is, or would be, an immediate and serious risk 3
to the safety of persons if an accredited person's accreditation 4
is not suspended immediately. 5
(2) The chief executive may, by notice given to the person and 6
without complying with section 91, immediately suspend the 7
person's accreditation-- 8
(a) wholly or partly, or in relation to stated railway 9
operations; and 10
(b) for a stated period not exceeding 6 weeks. 11
(3) The notice given under subsection (2) must include, or be 12
accompanied by, an information notice. 13
(4) The chief executive may amend a suspension of a person's 14
accreditation under this section to-- 15
(a) reduce the period of suspension; or 16
(b) extend the period of suspension so long as the total 17
suspension period does not exceed 6 weeks. 18
(5) Before amending a suspension of a person's accreditation 19
under this section to extend the period of suspension, the chief 20
executive must-- 21
(a) give the person a notice stating-- 22
(i) that the chief executive is considering extending 23
the period of suspension for the reasons stated in 24
the notice; and 25
(ii) that the person may, within the period of at least 7 26
days stated in the notice, make written 27
representations to the chief executive showing 28
cause why the suspension should not be extended; 29
and 30
(b) consider any representations made under paragraph 31
(a)(ii) that have not been withdrawn. 32
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[s 93]
(6) If, after considering the written representations, the chief 1
executive decides to amend the suspension of a person's 2
accreditation to extend the period of suspension, the chief 3
executive must give the person an information notice for the 4
decision. 5
(7) If the chief executive decides to amend the suspension of a 6
person's accreditation to reduce the period of suspension, the 7
chief executive must give the person a notice stating the new 8
period of suspension. 9
(8) If the chief executive decides to act under this section in 10
relation to a person who is an accredited person under a 11
corresponding law, including a person whose accreditation is 12
suspended under the corresponding law, the chief executive 13
must notify the relevant corresponding rail safety regulator of 14
the decision. 15
93 Varying conditions of accreditation 16
(1) The chief executive may, at any time-- 17
(a) vary or revoke a condition imposed by the chief 18
executive on an accredited person's accreditation; or 19
(b) impose a new condition on an accredited person's 20
accreditation. 21
(2) Before taking action under subsection (1), the chief executive 22
must-- 23
(a) give the accredited person notice of the action the chief 24
executive proposes to take; and 25
(b) allow the accredited person to make written 26
representations about the proposed action within 14 27
days or, if the chief executive and the accredited person 28
have agreed on another period, the other period; and 29
(c) consider any representations made under paragraph (b) 30
that have not been withdrawn. 31
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[s 94]
(3) Subsection (2) does not apply if the chief executive 1
reasonably considers it necessary to take immediate action in 2
the interests of ensuring the safety of persons. 3
(4) If the chief executive decides to act under subsection (1), the 4
chief executive must give the accredited person an 5
information notice for the decision. 6
Subdivision 2 Variation of accreditation on 7
application by accredited person 8
94 Application for variation of accreditation 9
(1) An accredited person may apply to the chief executive for a 10
variation of the person's accreditation. 11
(2) An application for a variation of accreditation must-- 12
(a) be in the approved form; and 13
(b) include the following-- 14
(i) the details of the variation being sought; 15
(ii) the information or other items prescribed under a 16
regulation. 17
(3) The chief executive may, by notice, require an applicant for a 18
variation of an accreditation-- 19
(a) to supply further information; or 20
(b) to verify by statutory declaration any information 21
supplied to the chief executive. 22
95 Requirement to consult with affected rail transport 23
operators 24
(1) This section applies if the applicant for a variation of 25
accreditation is a person to whom a direction under section 83 26
(coordination direction) was given. 27
(2) The chief executive may give the applicant a written direction 28
(consultation direction) to consult with 1 or more rail 29
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transport operators who were the subject of the coordination 1
direction. 2
(3) Without limiting subsection (2), a consultation direction may 3
require the applicant to give another rail transport operator 4
information about how the proposed variation may or will 5
affect the railway operations of the other rail transport 6
operator. 7
(4) A person given a consultation direction must comply with the 8
direction, unless the person has a reasonable excuse. 9
Maximum penalty--60 penalty units. 10
(5) An applicant for a variation of accreditation who has 11
consulted with a rail transport operator in compliance with a 12
consultation direction must ensure the application is amended, 13
after the consultation, to include details of the following-- 14
(a) the information given, under the consultation direction, 15
by the applicant to the other rail transport operator; 16
(b) any information given to the applicant by the other rail 17
transport operator in response to the information given 18
to the operator under the consultation direction. 19
Maximum penalty--60 penalty units. 20
(6) The applicant must give the amended application to the chief 21
executive. 22
(7) Subject to subsection (8), if the applicant does not give the 23
amended application to the chief executive within 6 months 24
after the consultation direction is given, the applicant's 25
application for variation of accreditation lapses. 26
(8) The chief executive may, by notice to the applicant, extend the 27
period within which the amended application must be given. 28
96 Coordination of decisions between rail safety regulators 29
(1) This section applies if the chief executive receives an 30
application for a variation of accreditation that indicates that 31
the applicant-- 32
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(a) is an accredited person for railway operations under a 1
corresponding law (including a person whose 2
accreditation for railway operations is suspended under 3
a corresponding law); or 4
(b) has applied for accreditation for railway operations 5
under a corresponding law. 6
(2) The chief executive must, as soon as possible and before 7
deciding the application, consult with the relevant 8
corresponding rail safety regulator in relation to the 9
application with a view to the chief executive's decision on 10
the application being consistent with-- 11
(a) if the applicant is an accredited person under the 12
corresponding law--the applicant's accreditation, 13
including any decision of the relevant corresponding rail 14
safety regulator on an application for a variation of the 15
accreditation, or a variation of a condition of the 16
accreditation; or 17
(b) if the applicant is applying for accreditation under the 18
corresponding law--the decision of the relevant 19
corresponding rail safety regulator on the application. 20
97 Considering application for variation 21
(1) The chief executive must consider each application for a 22
variation of accreditation and-- 23
(a) if the chief executive is satisfied the applicant meets the 24
accreditation criteria for being accredited for the railway 25
operations the subject of the accreditation as varied by 26
the proposed variation--vary the accreditation, with or 27
without the imposition of new or varied conditions on 28
the accreditation; or 29
(b) otherwise--refuse the application. 30
(2) The chief executive must vary the accreditation, or refuse the 31
application, before the latest of the following periods ends-- 32
(a) 6 months after the application was received by the chief 33
executive; 34
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(b) if the applicant was required to consult with other rail 1
transport operators under section 95--6 months after the 2
chief executive receives the amended application after 3
the consultation; 4
(c) if the chief executive requested further information in 5
relation to the application--6 months, or another period 6
agreed between the chief executive and the applicant, 7
after the chief executive receives the final information 8
requested; 9
(d) if the chief executive, by notice to the applicant before 10
the expiry of a period mentioned in paragraph (a), (b) or 11
(c), nominates another period ending after the period 12
mentioned in paragraph (a), (b) or (c)--the nominated 13
period. 14
(3) If the chief executive gives a notice under subsection (2)(d), 15
the notice must include, or be accompanied by, an information 16
notice for the decision to extend the period in the way 17
mentioned in the subsection. 18
98 Steps after application for variation decided 19
(1) If the chief executive decides to vary the accreditation, the 20
chief executive must give the applicant-- 21
(a) a notice varying the accreditation and stating the matters 22
mentioned in subsection (2); and 23
(b) if the chief executive has imposed new or varied 24
conditions on the accreditation--an information notice 25
for the decision to impose the new or varied conditions. 26
(2) A notice under subsection (1)(a) must state the following-- 27
(a) the details of the applicant prescribed under a 28
regulation; 29
(b) details of the variation to the accreditation to the extent 30
the variation applies to the scope and nature of the 31
railway operations the subject of the accreditation, or 32
the way in which the railway operations are to be carried 33
out; 34
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(c) if the chief executive has imposed new or varied 1
conditions on the accreditation--the conditions of the 2
accreditation after the variation; 3
(d) any other information prescribed under a regulation. 4
(3) If the chief executive decides to refuse the application, the 5
chief executive must give the applicant an information notice 6
for the decision. 7
Subdivision 3 Variation of condition of 8
accreditation on application by 9
accredited person 10
99 Application for variation of conditions 11
(1) An accredited person may apply to the chief executive for a 12
variation of a condition of the person's accreditation for 13
railway operations imposed by the chief executive. 14
(2) An application for variation of a condition of accreditation 15
must be made as if it were an application for a variation of 16
accreditation. 17
Note-- 18
See section 94(2) for the requirements for an application for a variation 19
of accreditation. 20
(3) The chief executive may, by notice, require an applicant for a 21
variation of a condition of accreditation-- 22
(a) to supply further information; or 23
(b) to verify by statutory declaration any information 24
supplied to the chief executive. 25
100 Requirement to consult with affected rail transport 26
operators 27
(1) This section applies if the applicant for a variation of a 28
condition of accreditation is a person to whom a direction 29
under section 83 (coordination direction) was given. 30
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(2) The chief executive may give the applicant a written direction 1
(consultation direction) to consult with 1 or more rail 2
transport operators who were the subject of the coordination 3
direction. 4
(3) Without limiting subsection (2), a consultation direction may 5
require the applicant to give another rail transport operator 6
information about how the proposed variation may or will 7
affect the railway operations of the other rail transport 8
operator. 9
(4) A person given a consultation direction must comply with the 10
direction, unless the person has a reasonable excuse. 11
Maximum penalty--60 penalty units. 12
(5) An applicant for a variation of a condition of accreditation 13
who has consulted with another rail transport operator in 14
compliance with a consultation direction must ensure the 15
application is amended, after the consultation, to include 16
details of the following-- 17
(a) the information given, under the consultation direction, 18
by the applicant to the other rail transport operator; 19
(b) any information given to the applicant by the other rail 20
transport operator in response to the information given 21
to the operator under the consultation direction. 22
Maximum penalty--60 penalty units. 23
(6) The applicant must give the amended application to the chief 24
executive. 25
(7) Subject to subsection (8), if the applicant does not give the 26
amended application to the chief executive within 6 months 27
after the consultation direction is given, the applicant's 28
application for a variation of a condition of accreditation 29
lapses. 30
(8) The chief executive may, by notice to the applicant, extend the 31
period within which the amended application must be given. 32
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101 Coordination of decisions between rail safety regulators 1
(1) This section applies if the chief executive receives an 2
application for a variation of a condition of accreditation that 3
indicates that the applicant-- 4
(a) is an accredited person for railway operations under a 5
corresponding law (including a person whose 6
accreditation for railway operations is suspended under 7
a corresponding law); or 8
(b) has applied for accreditation for railway operations 9
under a corresponding law. 10
(2) The chief executive must, as soon as possible and before 11
deciding the application, consult with the relevant 12
corresponding rail safety regulator in relation to the 13
application with a view to the chief executive's decision on 14
the application being consistent with-- 15
(a) if the applicant is an accredited person under the 16
corresponding law--the applicant's accreditation, 17
including any decision of the relevant corresponding rail 18
safety regulator on an application for a variation of the 19
accreditation or a variation of a condition of the 20
accreditation; or 21
(b) if the applicant is applying for accreditation under the 22
corresponding law--the decision of the relevant 23
corresponding rail safety regulator on the application. 24
102 Considering application for variation of condition 25
(1) The chief executive must consider each application for a 26
variation of a condition of accreditation and-- 27
(a) if the chief executive is satisfied the applicant meets the 28
accreditation criteria for being accredited for the railway 29
operations the subject of the accreditation as varied by 30
the proposed variation--vary the condition; or 31
(b) otherwise--refuse the application. 32
(2) The chief executive must vary the condition, or refuse the 33
application, before the latest of the following periods ends-- 34
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(a) 6 months after the application was received by the chief 1
executive; 2
(b) if the applicant was required to consult with other rail 3
transport operators under section 100--6 months after 4
the chief executive receives the amended application 5
after the consultation; 6
(c) if the chief executive requested further information in 7
relation to the application--6 months, or another period 8
agreed between the chief executive and the applicant, 9
after the chief executive receives the final information 10
requested; 11
(d) if the chief executive, by notice to the applicant before 12
the expiry of a period mentioned in paragraph (a), (b) or 13
(c), nominates another period ending after the period 14
mentioned in paragraph (a), (b) or (c)--the nominated 15
period. 16
(3) If the chief executive gives a notice under subsection (2)(d), 17
the notice must include, or be accompanied by, an information 18
notice for the decision to extend the period in the way 19
mentioned in the subsection. 20
103 Steps after application for variation of condition decided 21
(1) If the chief executive decides to vary the condition of the 22
accreditation, the chief executive must give the applicant a 23
notice varying the condition of the accreditation and stating 24
the following-- 25
(a) the details of the applicant prescribed under a 26
regulation; 27
(b) details of the variation of the condition of the 28
accreditation to the extent the variation applies to the 29
scope and nature of the railway operations the subject of 30
the accreditation, or the way in which the railway 31
operations are to be carried out; 32
(c) the conditions of the accreditation after the variation; 33
(d) any other information prescribed under a regulation. 34
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(2) If the chief executive decides to refuse the application, the 1
chief executive must give the applicant an information notice 2
for the decision. 3
Division 6 Other provisions about 4
accreditation 5
104 Consolidated accreditation notice 6
(1) This section applies if, under this part-- 7
(a) a person's accreditation for railway operations is varied; 8
or 9
(b) a condition of a person's accreditation for railway 10
operations is varied. 11
(2) The chief executive must, immediately after the variation, 12
issue the person a notice (a consolidated accreditation notice) 13
stating the matters mentioned in section 86(2) for the 14
accreditation as applying after the variation. 15
(3) The consolidated accreditation notice must identify when 16
each variation of the accreditation, or a condition of the 17
accreditation, came into effect. 18
105 Surrender of accreditation 19
An accredited person may, in the way prescribed under a 20
regulation, surrender the person's accreditation for railway 21
operations. 22
106 Accreditation can not be transferred to or vested in 23
another person 24
(1) An accreditation for railway operations granted to a person 25
under this part can not-- 26
(a) be transferred or otherwise similarly dealt with; or 27
(b) vest in another person by operation of law. 28
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(2) A purported transfer of, or similar dealing with, an 1
accreditation is of no effect. 2
(3) This section applies despite any other Act or law. 3
107 Applications for accreditation if railway operations sold 4
or transferred by accredited person 5
(1) This section applies if-- 6
(a) an accredited person proposes to sell or otherwise 7
transfer the railway operations the subject of the 8
person's accreditation to another person (the 9
transferee); and 10
(b) the transferee applies, or notifies the chief executive of 11
the transferee's intent to apply, for accreditation for the 12
railway operations; and 13
(c) the chief executive is satisfied that, in relation to the 14
application or proposed application, the transferee-- 15
(i) meets the accreditation criteria for being accredited 16
for the railway operations; or 17
(ii) meets a part of the accreditation criteria for being 18
accredited for the railway operations; and 19
(d) the chief executive is satisfied that, having regard to the 20
matter mentioned in paragraph (c), it is not necessary to 21
require the transferee to comply with a requirement 22
under this part applying to the application. 23
(2) The chief executive may, by notice, waive compliance by the 24
transferee with the requirement. 25
Examples for subsection (2)-- 26
1 If the chief executive is satisfied the transferee has a safety 27
management system for the railway operations and the transferee 28
has the competence and capacity to implement the system, the chief 29
executive may waive the requirement that the transferee's 30
application for accreditation for the railway operations include a 31
safety management plan for the operations. 32
2 If the chief executive is satisfied the transferee meets the criteria 33
mentioned in section 79(b), (c) and (d) in relation to risks to the 34
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safety of persons arising, or potentially arising, from the railway 1
operations to an extent that a re-assessment of the transferee's 2
ability to meet the requirements is not necessary, the chief executive 3
may waive the application fee that must accompany the application. 4
(3) A waiver of compliance with a requirement under subsection 5
(2) may be given subject to the conditions or restrictions the 6
chief executive reasonably considers necessary. 7
Examples of conditions or restrictions under subsection (3)-- 8
· a condition that the waiver only applies if the transferee's 9
application for accreditation is for railway operations of the same 10
scope and nature as the railway operations that are transferred 11
· a condition that the waiver only applies if the transferee's 12
application for accreditation for railway operations is accompanied 13
by documentary evidence that stated employees of the accredited 14
person who were responsible for ensuring the safety of the 15
accredited person's railway operations are, or will be, employees of 16
the transferee and will be responsible for ensuring the safety of the 17
transferee's railway operations the subject of the accreditation 18
Part 6 Administration 19
Division 1 Functions and powers of chief 20
executive 21
Subdivision 1 General functions and powers 22
108 Functions of chief executive 23
(1) In addition to any other functions conferred on the chief 24
executive under this Act, the chief executive has the following 25
functions-- 26
(a) to administer, audit and review the accreditation regime 27
under this Act; 28
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(b) to work with rail transport operators, rail safety workers, 1
others involved in railway operations and corresponding 2
rail safety regulators to improve the safety of railways in 3
Queensland and nationally; 4
(c) to give information to corresponding rail safety 5
regulators, including information about causal factors of 6
notifiable occurrences, accreditation processes, 7
investigation methods and risk assessment 8
methodologies; 9
(d) to collect and publish information about the safety of 10
railways; 11
(e) to give, or facilitate the giving of, advice, education and 12
training about the safety of railways; 13
(f) to monitor, investigate and enforce compliance with this 14
Act. 15
(2) The functions of the chief executive under this Act are in 16
addition to the functions the chief executive has under any 17
other Act or law. 18
109 Information to be included in annual reports 19
(1) The chief executive must ensure the department's annual 20
report for a financial year includes the following-- 21
(a) information about the developments in the safety of 22
railways that happened in the year; 23
(b) information about any improvements and other 24
important changes for the regulation of the safety of 25
railways that happened in the year. 26
(2) In this section-- 27
annual report means an annual report under the Financial 28
Administration and Audit Act 1977. 29
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110 Chief executive may exercise powers of rail safety 1
officers 2
(1) The chief executive may exercise any power conferred on a 3
rail safety officer under this Act. 4
(2) For subsection (1), in this Act, other than this part, a reference 5
to a rail safety officer includes a reference to the chief 6
executive. 7
Subdivision 2 Auditing railway operations 8
111 Audit of railway operations of rail transport operators 9
(1) The chief executive may-- 10
(a) audit the railway operations of a rail transport operator; 11
and 12
(b) prepare and implement a program (an audit program), 13
for each year, for inspecting the railway operations of 14
rail transport operators; and 15
(c) for an audit, inspect the railway operations of a rail 16
transport operator whether or not under an audit 17
program. 18
(2) Without limiting subsection (1)(b), an audit program may 19
focus on 1 or more of the following-- 20
(a) particular rail transport operators; 21
(b) particular criteria relating to rail transport operators; 22
(c) particular aspects of the safety of railways; 23
(d) particular aspects of railway operations. 24
(3) Before inspecting the railway operations of a rail transport 25
operator under this section, the chief executive must give the 26
operator a notice about the proposed inspection at least 24 27
hours before the inspection is proposed to be carried out. 28
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(4) A regulation may prescribe procedures for the conduct of 1
audits under this section, including procedures to ensure the 2
confidentiality of records. 3
(5) In this section-- 4
rail transport operator includes a person who undertakes 5
railway operations on behalf of a rail transport operator, other 6
than as an employee of the operator. 7
Subdivision 3 Provisions about access disputes 8
relating to rail safety 9
112 Definitions for sdiv 3 10
In this subdivision-- 11
dispute matter see section 115(1)(a). 12
QCA means the Queensland Competition Authority 13
established under the Queensland Competition Authority Act 14
1997, section 7. 15
rail transport infrastructure has the meaning given by the 16
Transport Infrastructure Act 1994, schedule 6. 17
safety matter see section 113(1). 18
safety matter direction see section 115(1)(c). 19
113 Chief executive may decide matters on request 20
(1) This section applies if parties to negotiations for a proposed 21
agreement about access to rail transport infrastructure are 22
unable to agree about a matter relating to rail safety (a safety 23
matter). 24
(2) The chief executive may make a decision about the safety 25
matter if-- 26
(a) the access is required to be given under an access 27
undertaking and, under that undertaking, QCA asks the 28
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chief executive to make a decision about the safety 1
matter; or 2
(b) there is no access undertaking but access is required to 3
be given under the Queensland Competition Authority 4
Act 1997 and QCA asks the chief executive to make a 5
decision about the safety matter; or 6
(c) the access is not required under an access undertaking or 7
the Queensland Competition Authority Act 1997, but at 8
least 1 of the parties to the negotiations asks the chief 9
executive to make a decision about the safety matter and 10
the chief executive reasonably considers it appropriate 11
to make a decision. 12
(3) If the chief executive makes a decision about a safety matter 13
under subsection (2)(a), QCA in dealing with matters under 14
the access undertaking that include the safety matter must not 15
make a decision relating to the safety matter that is 16
inconsistent with the chief executive's decision. 17
(4) If the chief executive makes a decision about a safety matter 18
under subsection (2)(b), QCA must have regard to the 19
decision when exercising a power under the Queensland 20
Competition Authority Act 1997 relating to the safety matter. 21
(5) If the chief executive makes a decision about a safety matter 22
under subsection (2)(c), the decision is binding on the parties 23
to the negotiations only if the parties agreed to be bound by 24
the decision. 25
(6) The chief executive may develop guidelines for making 26
decisions under subsection (2). 27
(7) The chief executive must ensure a copy of the guidelines 28
mentioned in subsection (6) is available for inspection, free of 29
charge, at each department office during office hours on 30
business days. 31
(8) In this section-- 32
access undertaking see the Queensland Competition 33
Authority Act 1997, schedule. 34
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114 Notice of dispute under agreement for access 1
(1) This section applies to a dispute under an agreement for 2
accessing rail transport infrastructure if the dispute is about a 3
safety matter, including, for example, the following 4
agreements-- 5
(a) an agreement mentioned in section 44(1); 6
(b) an access agreement. 7
(2) A person who gives notice of the dispute to another party to 8
the agreement may give the chief executive a signed notice 9
stating details of the dispute. 10
(3) Each rail transport operator who is a party to the agreement 11
must give the chief executive a notice stating details of the 12
resolution of the dispute within 14 days after the resolution. 13
Maximum penalty--10 penalty units. 14
(4) In this section-- 15
access agreement see the Queensland Competition Authority 16
Act 1997, schedule. 17
resolution, of a dispute, means the end of the dispute by-- 18
(a) agreement of the parties to the dispute; or 19
(b) arbitration; or 20
(c) a decision of an expert under the agreement; or 21
(d) a decision of a court or QCA. 22
115 Safety matter directions for disputes under agreement 23
for access 24
(1) This section applies if the chief executive-- 25
(a) is given a notice under section 114(2) about a matter that 26
is in dispute (dispute matter); and 27
(b) has taken steps the chief executive considers appropriate 28
to become reasonably informed about the dispute 29
matter; and 30
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(c) reasonably considers that in relation to the dispute 1
matter it is reasonable to give a rail transport operator a 2
written direction (safety matter direction) to do or not to 3
do a stated act. 4
(2) The chief executive may, by complying with section 116, give 5
the rail transport operator the safety matter direction. 6
(3) For subsection (1)(b), the steps the chief executive takes may 7
include consulting with 1 or more of the following persons 8
about the dispute matter-- 9
(a) each rail transport operator who is a party to the 10
agreement; 11
(b) another person whom the chief executive reasonably 12
believes may be able to help the chief executive in 13
relation to the dispute matter, including, for example, 14
QCA. 15
(4) For consulting with a rail transport operator, the chief 16
executive may give a notice to the operator stating a 17
reasonable time and place for a meeting with the operator. 18
(5) A rail transport operator given a notice under subsection (4) 19
must attend the meeting at the time and place stated in the 20
notice, unless the operator has a reasonable excuse. 21
Maximum penalty for subsection (5)--10 penalty units. 22
116 Procedure for giving safety matter direction 23
(1) If the chief executive proposes to give, under section 115, a 24
rail transport operator a safety matter direction in relation to a 25
dispute matter (the proposed action), the chief executive must 26
give each party to the agreement, and QCA, a notice stating 27
the following-- 28
(a) the proposed action; 29
(b) the grounds for the proposed action; 30
(c) an outline of the facts and circumstances forming the 31
basis for the grounds; 32
(d) an invitation to each person given the notice to make 33
written representations, within a stated period of at least 34
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14 days, about why the proposed action should not be 1
taken. 2
(2) The chief executive must consider any written representations 3
made within the stated period. 4
(3) If, after considering any written representations made within 5
the stated period, the chief executive still considers it is 6
reasonable to give the safety matter direction, the chief 7
executive may give the safety matter direction. 8
(4) The safety matter direction must-- 9
(a) state the day by which the safety matter direction must 10
be complied with, which must be reasonable having 11
regard to the nature of the matters to be done under the 12
safety matter direction; and 13
(b) include, or be accompanied by, an information notice 14
about the chief executive's decision to give the safety 15
matter direction. 16
(5) The chief executive must give a notice about the fact that a 17
safety matter direction has been given to a rail transport 18
operator under section 115 to each other person who was 19
given a notice about the safety matter direction under 20
subsection (1). 21
117 Compliance with safety matter direction 22
A person to whom a safety matter direction is given under 23
section 115 must comply with the direction, unless the person 24
has a reasonable excuse. 25
Maximum penalty--200 penalty units. 26
Division 2 Rail safety officers 27
118 Appointment of persons as rail safety officers 28
(1) The chief executive may appoint an officer of the department, 29
or another person, as a rail safety officer. 30
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(2) The chief executive may appoint a person as a rail safety 1
officer only if the chief executive is satisfied the person is 2
qualified for appointment because the person has the 3
necessary expertise or experience. 4
119 Appointment conditions and limit on powers 5
(1) A rail safety officer holds office on the conditions stated in-- 6
(a) the officer's instrument of appointment; or 7
(b) a notice signed by the chief executive given to the 8
officer; or 9
(c) a regulation. 10
Example for paragraph (a)-- 11
The instrument of appointment of a rail safety officer who is an 12
employee of a rail transport operator may provide the officer is 13
appointed only to investigate, or may not investigate, a matter under 14
section 164 about particular rail transport infrastructure or rolling stock. 15
(2) The instrument of appointment, the notice signed by the chief 16
executive or a regulation may limit the officer's powers under 17
this Act. 18
120 Issue of identity card 19
(1) The chief executive must issue an identity card to each rail 20
safety officer. 21
(2) The identity card must-- 22
(a) contain a recent photo of the officer; and 23
(b) contain a copy of the officer's signature; and 24
(c) identify the person as a rail safety officer under this Act; 25
and 26
(d) state an expiry date for the card. 27
(3) This section does not prevent the issue of a single identity 28
card to a person for this Act and other purposes. 29
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121 Production or display of identity card 1
(1) In exercising a power under this Act in relation to another 2
person, a rail safety officer must-- 3
(a) produce the officer's identity card for the other person's 4
inspection before exercising the power; or 5
(b) have the officer's identity card displayed so that it is 6
clearly visible to the other person when exercising the 7
power. 8
(2) However, if it is not practical to comply with subsection (1), 9
the officer must produce the identity card for the other 10
person's inspection at the first reasonable opportunity. 11
(3) For subsection (1), a rail safety officer does not exercise a 12
power in relation to another person only because the officer 13
has entered a place as mentioned in section 126(1)(b) or (2). 14
122 When rail safety officer ceases to hold office 15
(1) A rail safety officer ceases to hold office if any of the 16
following happens-- 17
(a) the term of office stated in a condition of office ends; 18
(b) under another condition of office, the officer ceases to 19
hold office; 20
(c) the officer's resignation under section 123 takes effect. 21
(2) Subsection (1) does not limit the ways a rail safety officer may 22
cease to hold office. 23
(3) In this section-- 24
condition of office means a condition on which the rail safety 25
officer holds office. 26
123 Resignation 27
A rail safety officer may resign by signed notice given to the 28
chief executive. 29
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124 Return of identity card 1
A person who ceases to be a rail safety officer must return the 2
person's identity card to the chief executive within 21 days 3
after ceasing to be a rail safety officer, unless the person has a 4
reasonable excuse. 5
Maximum penalty--40 penalty units. 6
Division 3 Reciprocal powers 7
125 Reciprocal powers of rail safety officers 8
(1) This section applies in relation to another State (the other 9
State) only if there is a provision corresponding to this section 10
in force under the corresponding law of the other State. 11
(2) The Minister may enter into a written agreement, with the 12
Minister responsible for administering the corresponding law 13
of the other State, about-- 14
(a) the exercise of powers under the corresponding law by 15
Queensland rail safety officers; or 16
(b) the exercise of powers under this Act by interstate rail 17
safety officers of the other State. 18
Note-- 19
The Acts Interpretation Act 1954, section 24AA allows for the 20
amendment or repeal of a written agreement under this section. 21
(3) To the extent provided for in an agreement under subsection 22
(2)-- 23
(a) a Queensland rail safety officer may, in Queensland or 24
the other State, exercise powers conferred, under the 25
corresponding law, on interstate rail safety officers of 26
the other State; and 27
(b) an interstate rail safety officer of the other State may, in 28
Queensland or the other State, exercise powers 29
conferred, under this Act, on Queensland rail safety 30
officers. 31
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(4) An act or omission of a Queensland rail safety officer 1
exercising a power under subsection (3) is taken to be an act 2
or omission done or made under both this Act and the 3
corresponding law. 4
(5) A regulation may provide for the way powers may be 5
exercised under subsection (3). 6
(6) In this section-- 7
Queensland rail safety officer means a rail safety officer 8
appointed under part 6, division 2. 9
Part 7 Enforcement 10
Division 1 Entry to places by rail safety 11
officers 12
126 Power to enter places 13
(1) A rail safety officer may enter a place if-- 14
(a) an occupier of the place consents to the entry; or 15
(b) the place is a public place and the entry is made when it 16
is open to the public; or 17
(c) the entry is authorised by a warrant; or 18
(d) the place is railway premises and the entry is made-- 19
(i) when the place is open for carrying on activities for 20
which the place is railway premises; or 21
(ii) when the place is required to be open for 22
inspection under an accreditation; or 23
(iii) when the place is otherwise open for entry; or 24
(e) the place is railway premises that are not open as 25
mentioned in paragraph (d)(i), (ii) or (iii) and the entry 26
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is urgently required to investigate the circumstances of a 1
notifiable occurrence. 2
(2) For the purpose of asking the occupier of a place for consent 3
to enter, a rail safety officer may, without the occupier's 4
consent or a warrant-- 5
(a) enter land around premises at the place to an extent that 6
is reasonable to contact the occupier; or 7
(b) enter part of the place the officer reasonably considers 8
members of the public ordinarily are allowed to enter 9
when they wish to contact the occupier. 10
(3) A rail safety officer who enters railway premises under 11
subsection (1)(d) or (e) must not unnecessarily impede any 12
activities being conducted at the railway premises. 13
(4) Nothing in this part allows entry to a home without the 14
occupier's consent or a warrant. 15
(5) In this section-- 16
home means a building, caravan or other structure in which an 17
individual lives. 18
notifiable occurrence means an accident or incident 19
associated with railway operations that-- 20
(a) has caused or could have caused-- 21
(i) death; or 22
(ii) serious injury; or 23
(iii) significant property damage; and 24
(b) is not an accident or incident prescribed under a 25
transitional regulation not to be a notifiable occurrence. 26
public place means-- 27
(a) a place, or a part of a place, that the public is entitled to 28
use, that is open to members of the public or that is used 29
by the public, whether or not on payment of money; or 30
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(b) a place, or a part of a place, that the occupier allows 1
members of the public to enter, whether or not on 2
payment of money. 3
127 Procedure for entry with consent 4
(1) This section applies if a rail safety officer intends to ask the 5
occupier of a place to consent to the officer or another person 6
entering the place. 7
(2) Before asking for the consent, the officer must tell the 8
occupier-- 9
(a) the purpose of the entry; and 10
(b) that the occupier is not required to consent. 11
(3) If the consent is given, the officer may ask the occupier to 12
sign an acknowledgment of the consent. 13
(4) The acknowledgment must state-- 14
(a) that the occupier has been told-- 15
(i) the purpose of the entry; and 16
(ii) that the occupier is not required to consent; and 17
(b) the purpose of the entry; and 18
(c) that the occupier gives the officer consent to enter the 19
place and exercise powers under this part; and 20
(d) the date and time the consent was given. 21
(5) If the occupier signs an acknowledgment, the officer must 22
immediately give a copy to the occupier. 23
(6) If-- 24
(a) an issue arises in a proceeding about whether the 25
occupier consented to the entry; and 26
(b) an acknowledgment complying with subsection (4) for 27
the entry is not produced in evidence; 28
the onus of proof is on the person relying on the lawfulness of 29
the entry to prove the occupier consented. 30
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128 General procedure for other entries without warrant 1
(1) This section applies if a rail safety officer intends to enter 2
railway premises under section 126(1)(d) or (e). 3
(2) The officer must give the occupier of the railway premises 4
reasonable notice of the intention to enter unless-- 5
(a) the giving of the notice would be reasonably likely to 6
defeat the purpose for which it is intended to enter the 7
railway premises; or 8
(b) entry is required in circumstances for which the officer 9
reasonably believes there is an immediate risk to the 10
safety of persons because of the carrying out of railway 11
operations at the railway premises. 12
(3) If an occupier is present when the officer intends to enter the 13
railway premises, the officer must, before entering the railway 14
premises, tell, or make a reasonable attempt to tell, the 15
occupier-- 16
(a) the purpose of the entry; and 17
(b) that the officer is permitted under section 126(1)(d) or 18
(e) to enter the railway premises without the occupier's 19
consent or a warrant. 20
129 Application for warrant 21
(1) A rail safety officer may apply to a magistrate for a warrant 22
for a place. 23
(2) The officer must prepare a written application that states the 24
grounds on which the warrant is sought. 25
(3) The written application must be sworn. 26
(4) The magistrate may refuse to consider the application until the 27
officer gives the magistrate all the information the magistrate 28
requires about the application in the way the magistrate 29
requires. 30
Example-- 31
The magistrate may require additional information supporting the 32
application to be given by statutory declaration. 33
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130 Issue of warrant 1
(1) The magistrate may issue the warrant for the place only if the 2
magistrate is satisfied there are reasonable grounds for 3
suspecting-- 4
(a) there is a particular thing or activity (the evidence) that 5
may provide evidence of an offence against this Act; and 6
(b) the evidence is at the place or, within the next 7 days, 7
will be at the place. 8
(2) The warrant must state-- 9
(a) the place to which the warrant applies; and 10
(b) that a stated rail safety officer may, with necessary and 11
reasonable help and force-- 12
(i) enter the place and any other place necessary for 13
entry to the place; and 14
(ii) exercise the officer's powers under this part; and 15
(c) particulars of the offence the magistrate considers 16
appropriate in the circumstances; and 17
(d) the name of the person suspected of having committed 18
the offence, unless the name is unknown or the 19
magistrate considers it inappropriate to state the name; 20
and 21
(e) the evidence that may be seized under the warrant; and 22
(f) the hours of the day or night when the place may be 23
entered; and 24
(g) the magistrate's name; and 25
(h) the date and time of the warrant's issue; and 26
(i) the date, within 14 days after the warrant's issue, the 27
warrant ends. 28
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131 Application by electronic communication and duplicate 1
warrant 2
(1) An application under section 129 may be made by phone, fax, 3
email, radio, videoconferencing or another form of electronic 4
communication if a rail safety officer reasonably considers it 5
necessary because of-- 6
(a) urgent circumstances; or 7
(b) other special circumstances, including, for example, the 8
officer's remote location. 9
(2) The application-- 10
(a) may not be made before the officer prepares the written 11
application under section 129(2); but 12
(b) may be made before the written application is sworn. 13
(3) The magistrate may issue the warrant (the original warrant) 14
only if the magistrate is satisfied-- 15
(a) it was necessary to make the application under 16
subsection (1); and 17
(b) the way the application was made under subsection (1) 18
was appropriate. 19
(4) After the magistrate issues the original warrant-- 20
(a) if there is a reasonably practicable way of immediately 21
giving a copy of the warrant to the officer, for example, 22
by sending a copy by fax or email, the magistrate must 23
immediately give a copy of the warrant to the officer; or 24
(b) otherwise-- 25
(i) the magistrate must tell the officer the date and 26
time the warrant is issued and the other terms of 27
the warrant; and 28
(ii) the officer must complete a form of warrant, 29
including by writing on it-- 30
(A) the magistrate's name; and 31
(B) the date and time the magistrate issued the 32
warrant; and 33
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(C) the other terms of the warrant. 1
(5) The copy of the warrant mentioned in subsection (4)(a), or the 2
form of warrant completed under subsection (4)(b) (in either 3
case the duplicate warrant), is a duplicate of, and as effectual 4
as, the original warrant. 5
(6) The officer must, at the first reasonable opportunity, send to 6
the magistrate-- 7
(a) the written application complying with section 129(2) 8
and (3); and 9
(b) if the officer completed a form of warrant under 10
subsection (4)(b)--the completed form of warrant. 11
(7) The magistrate must keep the original warrant and, on 12
receiving the documents under subsection (6)-- 13
(a) attach the documents to the original warrant; and 14
(b) give the original warrant and documents to the clerk of 15
the court of the relevant magistrates court. 16
(8) Despite subsection (5), if-- 17
(a) an issue arises in a proceeding about whether an 18
exercise of a power was authorised by a warrant issued 19
under this section; and 20
(b) the original warrant is not produced in evidence; 21
the onus of proof is on the person relying on the lawfulness of 22
the exercise of the power to prove a warrant authorised the 23
exercise of the power. 24
(9) This section does not limit section 129. 25
(10) In this section-- 26
relevant magistrates court, in relation to a magistrate, means 27
the Magistrates Court that the magistrate constitutes under the 28
Magistrates Act 1991. 29
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132 Defect in relation to a warrant 1
(1) A warrant is not invalidated by a defect in the warrant, or in 2
compliance with section 129, 130 or 131, unless the defect 3
affects the substance of the warrant in a material particular. 4
(2) In this section-- 5
warrant includes a duplicate warrant mentioned in section 6
131(5). 7
133 Warrants--procedure before entry 8
(1) This section applies if a rail safety officer named in a warrant 9
issued under this part for a place is intending to enter the place 10
under the warrant. 11
(2) Before entering the place, the officer must do or make a 12
reasonable attempt to do the following things-- 13
(a) identify himself or herself to a person present at the 14
place who is an occupier of the place by producing a 15
copy of the officer's identity card or other document 16
evidencing the appointment; 17
(b) give the person a copy of the warrant; 18
(c) tell the person the officer is permitted by the warrant to 19
enter the place; 20
(d) give the person an opportunity to allow the officer 21
immediate entry to the place without using force. 22
(3) However, the officer need not comply with subsection (2) if 23
the officer reasonably believes that immediate entry to the 24
place is required to ensure the effective execution of the 25
warrant is not frustrated. 26
(4) In this section-- 27
warrant includes a duplicate warrant mentioned in section 28
131(5). 29
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Division 2 General enforcement powers 1
134 General powers after entering a place 2
(1) This section applies to a rail safety officer who enters a place 3
under this part. 4
(2) However, if a rail safety officer enters a place to get the 5
occupier's consent to enter a place, this section applies to the 6
officer only if the consent is given or the entry is otherwise 7
authorised. 8
(3) For compliance or investigative purposes, the officer may do 9
any of the following-- 10
(a) search any part of the place and any rail infrastructure, 11
rolling stock, road vehicle or other thing at the place; 12
(b) enter or open, using reasonable force, rail infrastructure, 13
rolling stock, a road vehicle or other thing at the place to 14
examine the rail infrastructure, rolling stock, road 15
vehicle or other thing; 16
(c) inspect, film, photograph, videotape or otherwise record 17
an image of a document, structure, rail infrastructure, 18
rolling stock, road vehicle or other thing at the place, 19
including a document or other thing that is in rolling 20
stock or a road vehicle at the place; 21
(d) take, or authorise another person to take, for analysis a 22
thing, or a sample of or from a thing, at the place; 23
(e) mark, tag or otherwise identify rolling stock, a road 24
vehicle or other thing at the place; 25
(f) take an extract from, or copy, a document at the place, 26
including a document that is in rolling stock or a road 27
vehicle at the place; 28
(g) examine, analyse or survey land or soil at the place and, 29
for the examination, analysis or survey, dig trenches, 30
break up soil or set posts, stakes or markers; 31
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(h) test any part of rail infrastructure or rolling stock at the 1
place, for identifying the quality of, or faults in, the rail 2
infrastructure or rolling stock; 3
(i) take into the place the equipment, materials or persons 4
the officer reasonably requires for exercising a power 5
under this part; 6
(j) take a necessary step to allow a power under paragraph 7
(a) to (i) to be exercised. 8
(4) If a rail safety officer takes, or authorises another person to 9
take, a sample or thing for analysis under subsection (3)(d), 10
the officer must-- 11
(a) give a receipt for the sample or thing to the person in 12
charge of the thing or the place from which it was taken; 13
and 14
(b) for a sample or thing with an intrinsic value--at the end 15
of 6 months after the sample or thing was taken, return it 16
to the person who appears to be the owner of it or the 17
person in charge of the thing or the place from which it 18
was taken. 19
Note-- 20
See section 154(1) for what happens if a sample or thing can not be 21
returned to its owner or the owner can not be found. 22
(5) However, if for any reason it is not practicable to comply with 23
subsection (4)(a), the officer must leave the receipt at the 24
place in a conspicuous position and in a reasonably secure 25
way. 26
(6) In this section-- 27
enter includes re-enter. 28
135 Procedure before entering or opening rolling stock or 29
road vehicle 30
(1) If a relevant person is present at rolling stock or a road 31
vehicle, a rail safety officer must do or make a reasonable 32
attempt to do the following before entering the rolling stock or 33
vehicle under section 134-- 34
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(a) tell the relevant person the purpose of the entry; 1
(b) ask for the consent of the relevant person to the entry; 2
(c) tell the relevant person the officer is permitted under 3
section 134 to enter the rolling stock or vehicle without 4
consent; 5
(d) for a road vehicle--if the relevant person is not the 6
owner of the vehicle, advise the vehicle's owner of the 7
officer's intention to enter it. 8
(2) If a relevant person is not present at rolling stock or a road 9
vehicle, before entering the rolling stock or vehicle, the officer 10
must-- 11
(a) take reasonable steps to find a relevant person for the 12
rolling stock or vehicle; and 13
(b) comply with subsection (1)(a) to (c) for the relevant 14
person if found. 15
(3) Subsections (1)(d) and (2) do not require the officer to take a 16
step the officer reasonably believes may frustrate or otherwise 17
hinder an inspection or investigation under this Act or the 18
purpose of the intended entry. 19
(4) In this section-- 20
relevant person means-- 21
(a) for rolling stock--a person who is the driver or guard of, 22
or engineer for, the rolling stock; or 23
(b) for a road vehicle--a person who appears to be the 24
driver, or to be in control, of the vehicle. 25
136 Power to require reasonable help or information 26
(1) A rail safety officer may require the occupier of, or someone 27
else at, a place entered under this part to give the officer-- 28
(a) reasonable help to exercise a power under section 134; 29
or 30
(b) information to help the officer ascertain whether this 31
Act is being or has been complied with. 32
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Example for subsection (1)-- 1
When inspecting rolling stock in relation to which an accreditation 2
applies, a rail safety officer may ask the driver of the rolling stock to 3
accompany the officer or to explain how a piece of equipment is used as 4
part of the accredited person's safety management system. 5
(2) When making a requirement under subsection (1), the officer 6
must warn the person that it is an offence to fail to comply 7
with the requirement unless the person has a reasonable 8
excuse. 9
(3) A person required to give reasonable help under subsection 10
(1)(a), or give information under subsection (1)(b), must 11
comply with the requirement, unless the person has a 12
reasonable excuse. 13
Maximum penalty--100 penalty units. 14
(4) It is a reasonable excuse for an individual to not comply with 15
a requirement to give information under subsection (1)(b) if 16
complying with the requirement might tend to incriminate the 17
individual or make the individual liable to a penalty. 18
137 Power to stop or move rolling stock or a road vehicle that 19
may be entered or opened 20
(1) If rolling stock or a road vehicle that a rail safety officer may 21
enter or open under this part is moving or about to move, the 22
officer may-- 23
(a) require the rail transport operator who manages or 24
controls the operation of the rolling stock or vehicle 25
to-- 26
(i) stop the rolling stock or vehicle at a stated place; or 27
(ii) not move the rolling stock or vehicle from a stated 28
place; or 29
(iii) move the rolling stock or vehicle to a stated place; 30
or 31
(b) ask or signal the person in control of the rolling stock or 32
vehicle to-- 33
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(i) stop the rolling stock or vehicle at a stated place; or 1
(ii) not move the rolling stock or vehicle from a stated 2
place. 3
(2) However-- 4
(a) before making a request or giving a signal under 5
subsection (1)(b) for rolling stock, the officer must 6
consult with the train controller for the rolling stock 7
about whether it is safe to stop the rolling stock at, or not 8
move the rolling stock from, the place taking into 9
account other rolling stock; and 10
(b) the request or signal must disrupt the operation of 11
rolling stock only to the extent that is reasonably 12
necessary. 13
(3) A rail transport operator of whom a requirement is made 14
under subsection (1)(a) must comply with the requirement, 15
unless the operator has a reasonable excuse. 16
Maximum penalty--200 penalty units. 17
(4) The person in control of rolling stock, or a road vehicle, to 18
whom a request is made or signal given under subsection 19
(1)(b) must comply with the request or signal, unless the 20
person has a reasonable excuse. 21
Maximum penalty--100 penalty units. 22
(5) It is a reasonable excuse for the person in control of rolling 23
stock or a road vehicle not to comply with the request or 24
signal if-- 25
(a) to immediately comply with the request or signal 26
would-- 27
(i) endanger the person or someone else; or 28
(ii) cause damage to rail infrastructure, rolling stock or 29
a road vehicle; and 30
(b) the person complies with the request or signal as soon as 31
is practicable to comply with it. 32
(6) In this section-- 33
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train controller, for rolling stock, means an individual who is 1
in control of train control signalling and communication for 2
the section of railway track on which the rolling stock is 3
moving or stationary. 4
138 Other powers about rolling stock or road vehicles that 5
may be entered 6
(1) If a rail safety officer enters or opens rolling stock or a road 7
vehicle under this part, the officer may require the person in 8
control of the rolling stock or vehicle-- 9
(a) to give the officer reasonable help to enter or open the 10
rolling stock or vehicle; or 11
(b) to bring the rolling stock or vehicle to a stated 12
reasonable place and remain in control of the rolling 13
stock or vehicle for a reasonable period to allow the 14
officer to exercise a power under this part. 15
(2) When making a requirement under subsection (1), the officer 16
must warn the person it is an offence to fail to comply with the 17
requirement unless the person has a reasonable excuse. 18
(3) A person must comply with the requirement, unless the 19
person has a reasonable excuse. 20
Maximum penalty for subsection (3)--100 penalty units. 21
139 Power to use electronic equipment at the place entered 22
(1) This section applies if-- 23
(a) a thing found in or on rolling stock or a road vehicle, or 24
at a place, is, or includes, a disk, tape or other device 25
used for the storage of information; and 26
(b) equipment in or on the rolling stock or road vehicle, or 27
at the place, may be used with the disk, tape or other 28
device. 29
(2) Without limiting section 134, a rail safety officer-- 30
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(a) may operate the equipment to access the information; 1
and 2
(b) may seize the equipment to enable the officer to operate 3
it to access the information. 4
(3) A rail safety officer may operate or seize equipment under 5
subsection (2) only if the officer reasonably believes the 6
operation or seizure can be carried out without damage to the 7
equipment. 8
140 Power to use equipment at the place entered to examine 9
or process things 10
(1) Without limiting section 134 or 139, a rail safety officer 11
exercising a power under this part may operate equipment in 12
or on rolling stock or a road vehicle, or at a place, to carry out 13
the examination or processing of a thing found in or on the 14
rolling stock or road vehicle, or at the place, in order to decide 15
whether it is a thing that may be seized. 16
(2) However, subsection (1) applies only if the officer reasonably 17
believes that-- 18
(a) the equipment is suitable for the examination or the 19
processing; and 20
(b) the examination or processing can be carried out without 21
damage to the equipment. 22
141 Power to secure a site 23
(1) For protecting evidence that might be relevant for compliance 24
or investigative purposes, a rail safety officer may secure a 25
part of a place (the site) entered under this part in the way the 26
officer considers appropriate. 27
(2) A person must not, without the written approval of a rail 28
safety officer or a reasonable excuse, enter or remain at the 29
site. 30
Maximum penalty--40 penalty units. 31
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(3) Subsection (2) does not apply if the person enters the site, or 1
remains at the site-- 2
(a) to ensure the safety of persons; or 3
(b) to remove deceased persons or animals from the site; or 4
(c) to move a road vehicle, or the wreckage of a road 5
vehicle, to a safe place; or 6
(d) to protect the environment from significant damage or 7
pollution. 8
Division 3 Seizing evidence 9
Subdivision 1 Powers to seize evidence 10
142 Seizing evidence at a place entered without consent or 11
warrant 12
A rail safety officer who lawfully enters a place under this part 13
without the consent of the occupier and without a warrant, 14
may seize a thing at the place only if the officer reasonably 15
believes-- 16
(a) the thing is evidence of an offence against this Act; and 17
(b) the seizure is necessary to prevent the thing being-- 18
(i) destroyed, hidden or lost; or 19
(ii) used to commit, continue or repeat an offence 20
against this Act. 21
143 Seizing evidence at a place entered with consent or 22
warrant 23
(1) This section applies if-- 24
(a) a rail safety officer is authorised to enter a place under 25
this part only with the consent of the occupier or a 26
warrant; and 27
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(b) the officer enters the place after obtaining the necessary 1
consent or warrant. 2
(2) If the officer enters the place with the occupier's consent, the 3
officer may seize a thing at the place only if-- 4
(a) the officer reasonably believes the thing is evidence of 5
an offence against this Act; and 6
(b) seizure of the thing is consistent with the purpose of 7
entry as told to the occupier when asking for the 8
occupier's consent. 9
(3) If the officer enters the place with a warrant, the officer may 10
seize the evidence for which the warrant is issued. 11
(4) The officer may seize anything else at the place if the officer 12
reasonably believes-- 13
(a) the thing is evidence of an offence against this Act; and 14
(b) the seizure is necessary to prevent the thing being-- 15
(i) destroyed, hidden or lost; or 16
(ii) used to commit, continue or repeat an offence 17
against this Act. 18
(5) Also, the officer may seize a thing at the place if the officer 19
reasonably believes it has just been used in committing an 20
offence against this Act. 21
Subdivision 2 Powers to support seizure 22
144 Securing seized things 23
Having seized a thing under this part, a rail safety officer 24
may-- 25
(a) move the thing from the place where it was seized (the 26
place of seizure); or 27
(b) leave the thing at the place of seizure but take reasonable 28
action to restrict access to it; or 29
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Examples of restricting access to a thing-- 1
· marking, sealing, tagging or otherwise identifying the thing 2
to show access to it is restricted 3
· sealing the entrance to a room where the thing is situated 4
and marking the entrance to show access to the thing is 5
restricted 6
(c) for equipment--make it inoperable. 7
Example of making equipment inoperable-- 8
dismantling equipment or removing a component of equipment 9
without which the equipment is not capable of being used 10
145 Tampering with seized thing 11
(1) If a rail safety officer restricts access to a seized thing under 12
section 144, a person must not tamper with the thing, or 13
something restricting access to the thing, without a rail safety 14
officer's written approval. 15
Maximum penalty--200 penalty units. 16
(2) If a rail safety officer makes seized equipment inoperable 17
under section 144, a person must not tamper with the 18
equipment without a rail safety officer's written approval. 19
Maximum penalty--200 penalty units. 20
(3) In this section-- 21
tamper includes attempt to tamper. 22
146 Powers to support seizure 23
(1) To enable a thing to be seized under this part, a rail safety 24
officer may require the person in control of it-- 25
(a) to take it to a stated reasonable place by a stated 26
reasonable time; and 27
(b) if necessary, to remain in control of it at the stated place 28
for a stated reasonable time. 29
(2) The requirement-- 30
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(a) must be made by notice; or 1
(b) if for any reason it is not practicable to give the notice, 2
may be given orally and confirmed by notice as soon as 3
is practicable. 4
(3) A further requirement may be made under this section about 5
the same thing if it is necessary and reasonable to make the 6
further requirement. 7
Examples of a further requirement-- 8
a requirement that the thing-- 9
· be transported during stated off-peak hours 10
· be transported along a particular route 11
· be transported in a particular way 12
(4) A person of whom a requirement is made under subsection (1) 13
or (3) must comply with the requirement unless the person has 14
a reasonable excuse. 15
Maximum penalty--100 penalty units. 16
(5) Subject to section 189, the cost of complying with subsection 17
(4) must be borne by the person. 18
(6) For this section, a person is in control of a thing if the person 19
has, or reasonably appears to a rail safety officer to have, 20
authority to exercise control over the thing. 21
147 Rail safety officer may require thing's return 22
(1) If a rail safety officer has required a person to take a thing to a 23
stated reasonable place by a stated reasonable time under 24
section 146(1), the officer may require the person to return the 25
thing to the place from which it was taken. 26
(2) A person of whom a requirement is made under subsection (1) 27
must comply with the requirement unless the person has a 28
reasonable excuse. 29
Maximum penalty--40 penalty units. 30
(3) Subject to section 189, the cost of complying with subsection 31
(2) must be borne by the person. 32
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[s 148]
Subdivision 3 Other provisions about seizure 1
148 Receipt for seized things 2
(1) As soon as practicable after a rail safety officer seizes a thing 3
under this part, the officer must give a receipt for it to the 4
person from whom it was seized. 5
(2) However, if for any reason it is not practicable to comply with 6
subsection (1), the officer must leave the receipt at the place of 7
seizure in a conspicuous position and in a reasonably secure 8
way. 9
(3) The receipt must describe generally each thing seized and its 10
condition. 11
(4) This section does not apply to a thing if it is impracticable or 12
would be unreasonable to give the receipt, given the thing's 13
nature, condition and value. 14
149 Access to seized thing 15
(1) Until a thing that has been seized under this part is forfeited or 16
returned, a rail safety officer must allow its owner to inspect it 17
and, if it is a document, to copy it. 18
(2) Subsection (1) does not apply if it is impracticable or it would 19
be unreasonable to allow the inspection or copying. 20
150 Return of seized things 21
(1) If a thing has been seized by a rail safety officer under this 22
part but not forfeited, the officer must return it to its owner-- 23
(a) at the end of 6 months after the seizure; or 24
(b) if a proceeding for an offence involving the thing is 25
started within 6 months after the seizure--at the end of 26
the proceeding and any appeal from the proceeding; or 27
(c) if the officer stops being satisfied its continued retention 28
as evidence is necessary--immediately. 29
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(2) This section does not apply if the thing seized does not have 1
any intrinsic value. 2
Division 4 Embargo notices for things that can 3
not be seized 4
151 Application of div 4 5
This division applies if-- 6
(a) a rail safety officer is authorised to seize a record, device 7
or other thing under this part; and 8
(b) the record, device or other thing can not, or can not 9
readily, be physically seized and removed. 10
152 Rail safety officer may issue embargo notice 11
(1) A rail safety officer may issue a notice (embargo notice) 12
forbidding the use, movement, sale, leasing, transfer, deletion 13
of information from or other dealing with a record, device or 14
other thing, or any part of it, without the written approval of a 15
rail safety officer or the chief executive. 16
(2) The embargo notice must state-- 17
(a) a description of the thing to which the notice applies; 18
and 19
(b) the activities that the notice forbids; and 20
(c) the particulars prescribed under a regulation; and 21
(d) the requirements under section 153 and the maximum 22
penalties for failing to comply with the requirements. 23
(3) On issuing an embargo notice, a rail safety officer must-- 24
(a) give a copy of the notice to the owner of the record, 25
device or other thing; or 26
(b) if the owner can not be found after making reasonable 27
inquiries, attach a copy of the notice to the record, 28
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[s 153]
device or other thing in a conspicuous position and in a 1
reasonably secure way. 2
153 Contravening embargo notice 3
(1) A person must not knowingly do anything that is forbidden by 4
an embargo notice. 5
Maximum penalty--60 penalty units. 6
(2) A person (relevant person) must not instruct or ask another 7
person to do anything that the relevant person knows is 8
forbidden by an embargo notice. 9
Maximum penalty--60 penalty units. 10
(3) It is a defence in a proceeding against a person for an offence 11
against subsection (1) or (2) relating to the movement of a 12
record, device or other thing, or a part of a record, device or 13
other thing, for the person to prove that the person-- 14
(a) moved, or instructed or asked another person to move, 15
the record, device, other thing or part for the purpose of 16
protecting or preserving it; and 17
(b) notified the rail safety officer who issued the embargo 18
notice of the following, within 48 hours after the 19
movement-- 20
(i) the movement of the record, device, other thing or 21
part; 22
(ii) the new location of the record, device, other thing 23
or part. 24
(4) A person to whom a copy of an embargo notice is given under 25
this division must take reasonable steps to prevent another 26
person from doing anything forbidden by the embargo notice. 27
Maximum penalty--60 penalty units. 28
(5) Despite any other Act or law, a sale, lease, transfer or other 29
dealing with a record, device or other thing, or a part of a 30
record, device or other thing, in contravention of this section 31
is void. 32
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[s 154]
Division 5 Forfeiture 1
154 Forfeiture by rail safety officer 2
(1) A sample or thing taken for analysis, or a thing seized, under 3
this part is forfeited to the State if the rail safety officer who 4
took, or arranged the taking of, the sample or thing or who 5
seized the thing-- 6
(a) can not find its owner, after making reasonable 7
inquiries; or 8
(b) can not return it to its owner, after making reasonable 9
efforts; or 10
(c) reasonably considers that it is necessary to retain it to 11
prevent the commission of an offence against this Act. 12
(2) In applying subsection (1)-- 13
(a) subsection (1)(a) does not require the officer to make 14
inquiries if it would be unreasonable to make inquiries 15
to find the owner; and 16
(b) subsection (1)(b) does not require the officer to make 17
efforts if it would be unreasonable to make efforts to 18
return the sample or thing to its owner. 19
(3) If a sample or thing is forfeited to the State under subsection 20
(1)(c), the rail safety officer who decided it is necessary to 21
retain the sample or thing to prevent the commission of an 22
offence against this Act must give the sample's or thing's 23
owner an information notice for the decision. 24
(4) Subsection (3) does not apply if the officer can not find the 25
owner after making reasonable enquiries. 26
(5) Regard must be had to a sample's or thing's nature, condition 27
and value in deciding-- 28
(a) whether it is reasonable to make inquiries or efforts; and 29
(b) if making inquiries or efforts, what inquiries or efforts, 30
including the period over which they are made, are 31
reasonable. 32
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[s 155]
(6) In this section-- 1
owner, of a sample or a thing taken for analysis, includes the 2
person in charge of the thing or place from which the sample 3
or thing was taken. 4
155 Forfeiture on conviction 5
(1) On conviction of a person for an offence against this Act, a 6
court may order the forfeiture to the State of anything owned 7
by the person and seized under this part. 8
(2) The court may make any order to enforce the forfeiture it 9
considers appropriate. 10
(3) This section does not limit the court's powers under the 11
Penalties and Sentences Act 1992 or another law. 12
156 Dealing with forfeited sample or thing 13
(1) On forfeiture of a sample or thing to the State, the sample or 14
thing becomes the State's property and may be dealt with by 15
the chief executive in a way the chief executive reasonably 16
believes is appropriate. 17
(2) Without limiting subsection (1), the chief executive may 18
destroy or dispose of the sample or thing. 19
Division 6 Other powers 20
157 Power to require name and address 21
(1) This section applies if-- 22
(a) a rail safety officer finds a person committing an offence 23
against this Act; or 24
(b) a rail safety officer finds a person in circumstances that 25
lead, or has information that leads, the officer 26
reasonably to suspect the person has committed an 27
offence against this Act; or 28
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[s 158]
(c) a rail safety officer finds a person at railway premises 1
and-- 2
(i) reasonably believes the person is carrying out 3
railway operations on behalf of a rail transport 4
operator; and 5
(ii) reasonably considers that it is necessary for this 6
Act to know the person's name and residential or 7
business address. 8
(2) The officer may require the person to state the person's name 9
and residential or business address. 10
(3) When making a requirement under subsection (2), the officer 11
must warn the person it is an offence to fail to comply with the 12
requirement unless the person has a reasonable excuse. 13
(4) The officer may also require the person to give the officer 14
evidence of the correctness of the stated name or address if the 15
officer reasonably suspects the stated name or address to be 16
false. 17
158 Failure to give name or address 18
(1) A person of whom a requirement is made under section 19
157(2) or (4) must comply with the requirement, unless the 20
person has a reasonable excuse. 21
Maximum penalty--40 penalty units. 22
(2) A person does not commit an offence against subsection (1) 23
if-- 24
(a) the person was required to state the person's name and 25
residential or business address by a rail safety officer 26
who suspected the person had committed an offence 27
against this Act; and 28
(b) the person is not proved to have committed the offence. 29
(3) It is not a reasonable excuse for an individual to fail to comply 30
with the requirement that complying with the requirement 31
might tend to incriminate the individual or make the 32
individual liable to a penalty. 33
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[s 159]
Note-- 1
Subsection (3) and other similar provisions in this Act refer to only an 2
individual on the basis that the privilege to which the subsection or 3
provision refers applies only to individuals. 4
159 Power to require production of documents 5
(1) A rail safety officer may require a person carrying out railway 6
operations to make available for inspection by the officer, or 7
produce to the officer for inspection, at a reasonable time and 8
place nominated by the officer-- 9
(a) a document that the person is required to keep under this 10
Act, including a document the person is required to 11
prepare and implement for the railway operations; or 12
Examples of documents a person may be required to prepare and 13
implement for railway operations-- 14
safety management system, emergency management plan 15
(b) a document that-- 16
(i) is prepared by the person in relation to a document 17
mentioned in paragraph (a); and 18
(ii) the officer reasonably believes is necessary for the 19
officer to consider to understand or verify the 20
document mentioned in paragraph (a); or 21
Example-- 22
A safety management system may require testing of equipment 23
as part of a scheduled maintenance program and a documented 24
record of the results of the test to be kept. If an item of 25
equipment is tested under the safety management system, the 26
document stating the results of the test is a document prepared in 27
relation to the safety management system. 28
(c) another document kept by, or otherwise under the 29
control of, the person if the document is relevant to 30
carrying out the railway operations. 31
Example for paragraph (c)-- 32
a document about a person's financial capacity, or public risk 33
insurance arrangements, for meeting potential accident liabilities 34
arising from railway operations 35
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[s 160]
(2) When making a requirement under subsection (1), the officer 1
must warn the person it is an offence to fail to comply with the 2
requirement unless the person has a reasonable excuse. 3
(3) The officer may keep the document to copy it but must return 4
the document to the person after copying it. 5
160 Failure to produce document 6
(1) A person of whom a requirement is made under section 159 7
must comply with the requirement, unless the person has a 8
reasonable excuse. 9
Maximum penalty--60 penalty units. 10
(2) It is not a reasonable excuse for an individual to fail to comply 11
with the requirement that complying with the requirement 12
might tend to incriminate the individual or make the 13
individual liable to a penalty. 14
161 Use of particular evidence in proceedings 15
(1) This section applies to the following (primary evidence)-- 16
(a) any answer given by an individual in response to a 17
requirement under section 157(2) or (4); 18
(b) any document mentioned in section 159(1) produced by 19
an individual to a rail safety officer, and the fact of that 20
production, in response to a requirement under section 21
159(1). 22
(2) The following is not admissible in evidence against an 23
individual in any civil or criminal proceeding-- 24
(a) primary evidence; 25
(b) any information, or document or other thing, obtained as 26
a direct or indirect result of primary evidence (derived 27
evidence). 28
(3) Subsection (2) does not prevent primary evidence or derived 29
evidence being admitted in evidence in criminal proceedings 30
about the falsity or misleading nature of the primary evidence. 31
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[s 162]
162 Power to require information about contravention 1
(1) This section applies if a rail safety officer reasonably 2
believes-- 3
(a) a provision of this Act has been contravened; and 4
(b) a person may be able to give information about the 5
contravention. 6
(2) The officer may require the person to give information within 7
the person's knowledge about the contravention in a stated 8
reasonable time and in a stated reasonable way. 9
(3) When making a requirement under subsection (2), the officer 10
must warn the person it is an offence to fail to comply with the 11
requirement unless the person has a reasonable excuse. 12
163 Failure to give information about contravention 13
(1) A person of whom a requirement is made under section 162 14
must comply with the requirement, unless the person has a 15
reasonable excuse. 16
Maximum penalty--60 penalty units. 17
(2) It is a reasonable excuse for an individual to not comply with 18
the requirement if complying with the requirement might tend 19
to incriminate the individual or make the individual liable to a 20
penalty. 21
Division 7 Investigation of notifiable and other 22
occurrences 23
Subdivision 1 Investigation and report 24
164 Chief executive may require investigation by rail safety 25
officer 26
(1) This section applies if-- 27
(a) a notifiable occurrence happens; or 28
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[s 165]
(b) the chief executive becomes aware that a notifiable 1
occurrence, or another occurrence that endangers or 2
could endanger the safe operation of railway operations, 3
may have happened, even if it has not been reported. 4
(2) The chief executive may require a rail safety officer to 5
investigate the matter. 6
(3) If a report has been given to the chief executive about the 7
occurrence under section 74, the chief executive may require 8
the officer to investigate the matter by reviewing the report. 9
165 Report of investigation 10
(1) After a rail safety officer finishes an investigation under 11
section 164, the officer must give a report of the results of the 12
investigation (RSO report) to the chief executive, including-- 13
(a) whether or not the officer reasonably considers the 14
occurrence being investigated to be a notifiable 15
occurrence; and 16
(b) if the officer considers the occurrence being investigated 17
to be a notifiable occurrence--the reasons for 18
considering the occurrence to be a notifiable occurrence. 19
(2) The chief executive must give the Minister a copy of the RSO 20
report within 14 days after receiving the report. 21
(3) The Minister must table in the Legislative Assembly a copy of 22
the RSO report within 14 days after receiving the report. 23
(4) The following is not admissible in evidence in any civil or 24
criminal proceeding-- 25
(a) the RSO report; 26
(b) any report prepared by the officer as an interim RSO 27
report; 28
(c) any report prepared by the officer as a draft RSO report 29
for the purposes of consultation. 30
(5) However, subsection (4) has no effect on the use or 31
admissibility of any type of report mentioned in the 32
subsection in a coronial procedure. 33
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[s 166]
Subdivision 2 Powers of rail safety officer 1
conducting investigation 2
166 Definition for sdiv 2 3
In this subdivision-- 4
alcohol test includes-- 5
(a) a preliminary test to give an indication of the presence 6
or absence of alcohol in a person's breath; and 7
(b) a test to analyse a person's blood or breath to determine 8
the person's blood alcohol concentration. 9
167 Application of sdiv 2 10
This subdivision applies if-- 11
(a) a notifiable occurrence has happened or a notifiable 12
occurrence, or another occurrence that endangers or 13
could endanger the safe operation of railway operations, 14
may have happened; and 15
(b) a rail safety officer is investigating the occurrence, 16
whether or not at the chief executive's request. 17
168 Power to require help 18
(1) If the rail safety officer reasonably needs help in investigating 19
the occurrence, the officer may require a person to give the 20
officer reasonable help in the investigation. 21
(2) A requirement may only be made of a person whom the rail 22
safety officer reasonably believes is competent to give the 23
help. 24
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[s 169]
169 Power to require answers to questions or production of 1
document or other thing 2
If the rail safety officer reasonably believes it necessary for 3
the purposes of the investigation, the officer may require a 4
person to-- 5
(a) answer questions relevant to the occurrence; or 6
(b) produce documents or other things relevant to the 7
occurrence. 8
170 Power to require alcohol or drug test or examination 9
(1) The rail safety officer may require a person carrying out rail 10
safety work on or in relation to a rail transport operator's rail 11
infrastructure or rolling stock to take an alcohol test, drug test 12
or medical examination if the officer reasonably suspects-- 13
(a) the person caused, or was directly involved in, the 14
occurrence; and 15
(b) the result of the test or examination may help in 16
deciding the circumstances and probable causes of the 17
occurrence. 18
(2) The test mentioned in subsection (1) must take place within 2 19
hours after the occurrence happens. 20
(3) The medical examination mentioned in subsection (1) must 21
take place within a reasonable time after the officer forms the 22
reasonable suspicions about the person under the subsection. 23
(4) The cost of a test or examination under this section must be 24
borne by the rail transport operator. 25
(5) If the person refuses to take a test mentioned in subsection (1), 26
the person may be taken, for a purpose prescribed under a 27
regulation, to have been under the influence of alcohol or a 28
drug when the occurrence happened, in the absence of 29
evidence to the contrary. 30
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[s 171]
171 Requirement to give warning when making requirement 1
of individual 2
When making a requirement of an individual under this 3
subdivision, a rail safety officer must-- 4
(a) warn the individual it is an offence to fail to comply 5
with the requirement unless the individual has a 6
reasonable excuse; and 7
(b) advise the individual that-- 8
(i) it is not a reasonable excuse that complying with 9
the requirement might tend to incriminate the 10
individual or make the individual liable to a 11
penalty; and 12
(ii) if the individual is not an accredited 13
person--anything obtained under the requirement, 14
and any evidence derived directly or indirectly 15
from anything obtained under the requirement, is 16
not admissible in evidence against the individual in 17
any civil or criminal proceeding. 18
172 Failure to comply with requirement 19
(1) A person of whom a requirement is made under this 20
subdivision must comply with the requirement, unless the 21
person has a reasonable excuse. 22
Maximum penalty--200 penalty units. 23
(2) It is not a reasonable excuse for an individual to fail to comply 24
with the requirement that complying with the requirement 25
might tend to incriminate the individual or make the 26
individual liable to a penalty. 27
173 Use of particular evidence in proceedings 28
(1) The following (primary evidence) is not admissible in 29
evidence against an individual in any civil or criminal 30
proceeding-- 31
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[s 174]
(a) any help given by the individual to a rail safety officer in 1
investigating an occurrence in response to a requirement 2
under section 168; 3
(b) any answer given by the individual to a question 4
mentioned in section 169(a) to a rail safety officer in 5
investigating an occurrence in response to a requirement 6
under section 169(a); 7
(c) a document or other thing mentioned in section 169(b) 8
produced by the individual to a rail safety officer in 9
investigating an occurrence, and the fact of that 10
production, in response to a requirement under section 11
169(b); 12
(d) the results of an alcohol test, drug test or medical 13
examination of the individual mentioned in section 170. 14
(2) Also, any information, or document or other thing, obtained as 15
a direct or indirect result of primary evidence (derived 16
evidence), is not admissible in evidence against the individual 17
in any civil or criminal proceeding. 18
(3) Subsections (1) and (2) do not prevent primary evidence or 19
derived evidence being admitted in evidence in criminal 20
proceedings about the falsity or misleading nature of the 21
primary evidence. 22
(4) In this section-- 23
individual does not include an individual who is an accredited 24
person. 25
Division 8 Improvement notices 26
174 Rail safety officer may give improvement notice 27
(1) This section applies if a rail safety officer reasonably 28
believes-- 29
(a) a person is contravening a provision of this Act; or 30
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[s 175]
(b) a person has contravened a provision of this Act and it is 1
likely that the contravention will continue or be 2
repeated; or 3
(c) a person is carrying out or has carried out railway 4
operations that threaten rail safety. 5
(2) The officer may give the person a notice (an improvement 6
notice) stating the person must, within the period of at least 7 7
days stated in the notice-- 8
(a) if subsection (1)(a) or (b) applies--carry out rail safety 9
work, or do another thing, to remedy the contravention 10
or likely contravention, or the matters or activities 11
occasioning the contravention or likely contravention; or 12
(b) if subsection (1)(c) applies--carry out the railway 13
operations in a way that ensures rail safety is not 14
threatened. 15
175 What improvement notice may require 16
(1) An improvement notice given to a person on a ground 17
mentioned in section 174(1)(a) or (b) may state-- 18
(a) the way in which the alleged contravention or likely 19
contravention, or the matters or activities occasioning 20
the alleged contravention or likely contravention, must 21
be remedied; or 22
(b) a choice of ways in which the alleged contravention or 23
likely contravention, or the matters or activities 24
occasioning the alleged contravention or likely 25
contravention, may be remedied; or 26
(c) that the person to whom the notice is given must give the 27
chief executive a program of rail safety work the person 28
proposes to carry out to remedy the alleged 29
contravention or likely contravention, or the matters or 30
activities occasioning the alleged contravention or likely 31
contravention. 32
(2) An improvement notice given to a person on the ground 33
mentioned in section 174(1)(c) may state-- 34
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[s 176]
(a) the way in which the railway operations may be carried 1
out to ensure rail safety is not threatened; or 2
(b) a choice of ways in which the railway operations may be 3
carried out to ensure rail safety is not threatened; or 4
(c) that the person to whom the notice is given must give the 5
chief executive a program of the railway operations the 6
person proposes to carry out to remedy the threat to rail 7
safety. 8
(3) The improvement notice may state that a program mentioned 9
in subsection (1)(c) or (2)(c) must include a timetable for the 10
completion of the program. 11
(4) This section does not limit section 174. 12
176 What improvement notice must state 13
An improvement notice given by a rail safety officer must 14
state the following-- 15
(a) the reasons for the decision to give the notice; 16
(b) for an improvement notice given on the basis a person is 17
reasonably believed to be contravening, have 18
contravened, or be likely to further contravene a 19
provision of this Act--the provision of this Act in 20
relation to which the belief is held; 21
(c) for an improvement notice given on the basis a person is 22
reasonably believed to be carrying out or have carried 23
out railway operations that threaten rail safety--the 24
railway operations in relation to which the belief is held; 25
(d) the penalty for failing to comply with the notice; 26
(e) the effect of section 179; 27
(f) that the notice is given under this section; 28
(g) the review and appeal information for the decision to 29
give the notice. 30
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[s 177]
177 Compliance with improvement notice 1
(1) A person to whom an improvement notice has been given 2
must comply with the notice, unless the person has a 3
reasonable excuse. 4
Maximum penalty--150 penalty units. 5
(2) It is a defence in a proceeding against a person for an offence 6
against subsection (1) for the person to prove that-- 7
(a) for an improvement notice given on a ground mentioned 8
in section 174(1)(a) or (b)--the alleged contravention or 9
likely contravention, or the matters or activities 10
occasioning the alleged contravention or likely 11
contravention, were remedied within the period stated in 12
the notice, though in a way different from that stated in 13
the notice; or 14
(b) for an improvement notice given on the ground stated in 15
section 174(1)(c)--the threat to rail safety was removed 16
within the period stated in the notice, though in a way 17
different from that stated in the notice. 18
Editor's note-- 19
See also section 15. 20
178 Amendment of improvement notice 21
(1) An amendment of an improvement notice given to a person is 22
ineffective to the extent it purports to deal with a 23
contravention of a different provision of this Act from that 24
dealt with in the improvement notice when first given. 25
(2) To remove any doubt, it is declared that if the chief executive 26
decides to amend an improvement notice given to a person, 27
the chief executive must give the person an information notice 28
for the decision. 29
Note-- 30
The Acts Interpretation Act 1954, section 24AA allows for the 31
amendment or repeal of an improvement notice. 32
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[s 179]
179 Proceedings for offences not affected by improvement 1
notice 2
The giving, amendment or repeal of an improvement notice 3
does not affect any proceedings for an offence against this 4
Act, or the Workplace Health and Safety Act, in connection 5
with any matter in relation to which the improvement notice 6
was given. 7
180 Chief executive may arrange for rail safety work not 8
carried out 9
(1) This section applies if a person fails to comply with an 10
improvement notice given to the person on a ground 11
mentioned in section 174(1)(a) or (b) requiring the person to 12
carry out rail safety work to remedy-- 13
(a) the alleged contravention or likely contravention; or 14
(b) the matters or activities occasioning the alleged 15
contravention or likely contravention. 16
(2) The chief executive may arrange for the rail safety work to be 17
carried out. 18
(3) The chief executive may recover from the person given the 19
improvement notice the reasonable costs and expenses 20
incurred by the chief executive for the carrying out of the rail 21
safety work as a debt. 22
Division 9 Prohibition notices 23
181 Rail safety officer may give prohibition notice 24
(1) This section applies if a rail safety officer reasonably 25
believes-- 26
(a) an activity happening in relation to railway operations or 27
railway premises involves or is likely to involve an 28
immediate risk to the safety of persons; or 29
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[s 182]
(b) an activity may happen in relation to railway operations 1
or railway premises and, if it happens, the activity will 2
involve or is likely to involve an immediate risk to the 3
safety of persons; or 4
(c) an activity may happen at, on, or in the immediate 5
vicinity of, rail infrastructure or rolling stock and, if it 6
happens, the activity will involve or is likely to involve 7
an immediate risk to the safety of persons. 8
(2) The officer may give a person who has or appears to have 9
control over the activity a notice (a prohibition notice) stating 10
that either of the following is prohibited until the officer has 11
certified in writing that the matters that give or are likely to 12
give rise to the risk have been remedied-- 13
(a) the carrying on of the activity; 14
(b) the carrying on of the activity in a stated way. 15
(3) A prohibition notice under subsection (2)(b) may state that the 16
carrying on of an activity in a stated way is prohibited by 17
stating 1 or more of the following-- 18
(a) a place, or part of a place, at which the activity must not 19
be carried on; 20
(b) a thing that must not be used in connection with the 21
activity; 22
(c) a procedure that must not be followed in connection 23
with the activity. 24
(4) A prohibition notice takes effect when it is given or, if the 25
notice states a later date, on the stated later date. 26
182 What prohibition notice may require 27
(1) A prohibition notice may state a requirement about the 28
measures that must be taken to minimise or eliminate-- 29
(a) the risk to safety to which the notice relates; or 30
(b) the activity causing, or likely to cause, the risk to safety 31
to which the notice relates; or 32
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Part 7 Enforcement
[s 183]
(c) the matters that give, or are likely to give, rise to the risk 1
to safety to which the notice relates; or 2
(d) if the officer believes the activity to which the notice 3
relates involves a contravention or likely contravention 4
of this Act--the contravention or likely contravention. 5
(2) For subsection (1), a requirement in a prohibition notice 6
may-- 7
(a) require measures be taken in a way stated in a 8
compliance code; or 9
(b) state a choice of ways in which the person to whom the 10
notice is given may minimise or eliminate the risk, 11
activity, matters, contravention or likely contravention 12
mentioned in subsection (1). 13
183 What prohibition notice must state 14
A prohibition notice given by a rail safety officer must state 15
the following-- 16
(a) the reasons for the decision to give the notice; 17
(b) the activity that the officer believes involves or is likely 18
to involve the risk to safety to which the notice relates, 19
and the matters that give, or are likely to give, rise to the 20
risk; 21
(c) if the officer believes that the activity involves a 22
contravention or likely contravention of a provision of 23
this Act, the provision and the basis for the belief; 24
(d) the penalty for failing to comply with the notice; 25
(e) the effect of section 187; 26
(f) that the notice is given under this section; 27
(g) the review and appeal information for the decision to 28
give the notice. 29
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Part 7 Enforcement
[s 184]
184 Compliance with prohibition notice 1
A person to whom a prohibition notice is given must comply 2
with the notice, unless the person has a reasonable excuse. 3
Editor's note-- 4
See, however, section 15. 5
Maximum penalty--150 penalty units. 6
185 Oral direction before prohibition notice given 7
(1) This section applies if a rail safety officer reasonably 8
believes-- 9
(a) an activity mentioned in section 181(1) is happening or 10
may happen; and 11
(b) it is not possible or reasonable to give a prohibition 12
notice under that section immediately. 13
(2) The officer may direct a person who has or appears to have 14
control over the activity to do or not to do a stated act by 15
telling the person-- 16
(a) to do or not to do the stated act; and 17
(b) the reason for the officer giving the direction. 18
(3) When giving the direction, the officer must warn the person it 19
is an offence to fail to comply with the direction unless the 20
person has a reasonable excuse. 21
(4) A person to whom a direction is given under subsection (2) 22
must comply with it, unless the person has a reasonable 23
excuse. 24
Maximum penalty--100 penalty units. 25
(5) A direction given under subsection (2) ceases to have effect if 26
the officer does not, within 5 days after giving the direction, 27
give the person to whom the direction is given a prohibition 28
notice in relation to the activity. 29
Page 146
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Part 7 Enforcement
[s 186]
186 Amendment of prohibition notice 1
(1) An amendment of a prohibition notice given to a person is 2
ineffective to the extent it purports to deal with a 3
contravention of a different provision of this Act from that 4
dealt with in the prohibition notice when first given. 5
(2) To remove any doubt, it is declared that if the chief executive 6
decides to amend a prohibition notice given to a person, the 7
chief executive must give the person an information notice for 8
the decision. 9
Note-- 10
The Acts Interpretation Act 1954, section 24AA allows for the 11
amendment or repeal of a prohibition notice. 12
187 Proceedings for offences not affected by prohibition 13
notice 14
The giving, amendment or repeal of a prohibition notice does 15
not affect any proceedings for an offence against this Act, or 16
the Workplace Health and Safety Act, in connection with any 17
matter in relation to which the prohibition notice was given. 18
Division 10 Damage to property in exercising 19
powers under this part 20
188 Notice of damage 21
(1) This section applies if-- 22
(a) a rail safety officer damages property when exercising 23
or purporting to exercise a power under this part; or 24
(b) a person (the other person) acting under the direction or 25
authority of a rail safety officer damages property. 26
(2) The officer must immediately give a notice to the person who 27
appears to the officer to be the owner of the property stating-- 28
(a) the particulars of the damage; and 29
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[s 189]
(b) that the person who suffered the damage may claim 1
compensation under section 189. 2
(3) If the officer believes the damage was caused by a latent 3
defect in the property or circumstances beyond the officer's or 4
other person's control, the officer may state the belief in the 5
notice. 6
(4) If, for any reason, it is impracticable to comply with 7
subsection (2), the officer must leave the notice in a 8
conspicuous position and in a reasonably secure way where 9
the damage happened. 10
(5) This section does not apply to damage the officer reasonably 11
believes is trivial. 12
(6) In this section-- 13
owner, of property, includes the person in possession or 14
control of it. 15
189 Compensation 16
(1) This section applies if a person incurs loss or expense because 17
of the exercise or purported exercise of a power under this part 18
by a rail safety officer, other than because of a forfeiture under 19
section 154 or 155. 20
(2) If the power was exercised or purportedly exercised under 21
division 7, the person may claim compensation for the loss or 22
expense from the officer's employing authority. 23
(3) If subsection (2) does not apply, the person is entitled to be 24
paid the reasonable compensation because of the loss or 25
expense that is agreed between the chief executive and the 26
person, or failing agreement, decided by a court. 27
(4) Payment of compensation may be claimed and ordered in a 28
proceeding-- 29
(a) brought in a court with jurisdiction for the recovery of 30
the amount of compensation claimed; or 31
(b) for an offence against this Act brought against the 32
person claiming compensation. 33
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Part 7 Enforcement
[s 190]
(5) A court may order compensation to be paid only if it is 1
satisfied it is just to make the order in the circumstances of the 2
particular case. 3
(6) A regulation may prescribe matters that may, or must, be 4
taken into account by the court in considering whether it is 5
just to make the order. 6
(7) In this section-- 7
employing authority, of a rail safety officer, means-- 8
(a) if the officer is an employee of an accredited 9
person--the accredited person; or 10
(b) otherwise--the State. 11
Division 11 Miscellaneous 12
190 Only reasonable force may be used 13
A power under this part to enter a place, or to do anything in 14
or on a place, may be exercised only if the person proposing to 15
exercise the power uses no more force than is reasonably 16
necessary to exercise the power. 17
191 Only police officers may use force against a person 18
A provision of this part authorising a person to use reasonable 19
force does not authorise a person who is not a police officer to 20
use force against another person. 21
Page 149
Transport (Rail Safety) Bill 2008
Part 8 Boards of inquiry
[s 192]
Part 8 Boards of inquiry 1
Division 1 General 2
192 Minister may establish or re-establish board 3
(1) The Minister may, by gazette notice, establish or re-establish 4
a board of inquiry about an occurrence that-- 5
(a) has happened on or in relation to railway premises or 6
railway operations; and 7
(b) the Minister considers is a notifiable occurrence. 8
(2) The gazette notice, or a subsequent gazette notice, may state 9
matters relevant to the board of inquiry, including, for 10
example, the membership of the board and its terms of 11
reference. 12
(3) The Minister may exercise powers under this section for an 13
occurrence-- 14
(a) whether or not the occurrence has been investigated by a 15
rail safety officer; and 16
(b) whether or not a board of inquiry has previously 17
inquired into the occurrence. 18
193 Role of board 19
(1) The board of inquiry must-- 20
(a) inquire into the circumstances and probable causes of 21
the relevant occurrence; and 22
(b) give the Minister a written report of the board's findings. 23
(2) The report may contain the recommendations the board 24
considers appropriate and other relevant matters. 25
(3) The Minister must table a copy of the report in the Legislative 26
Assembly within 14 days after receiving the report. 27
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Part 8 Boards of inquiry
[s 194]
(4) However, if the board gives the Minister a separate report of 1
matters that the board considers should not be made public, 2
the Minister need not table the separate report in the 3
Legislative Assembly. 4
(5) The following is not admissible in evidence in any civil or 5
criminal proceeding-- 6
(a) a report under this section; 7
(b) any report prepared by the board as an interim report 8
under this section; 9
(c) any report prepared by the board as a draft report under 10
this section for consultation purposes. 11
(6) However, subsection (5) has no effect on the use or 12
admissibility of any type of report mentioned in the 13
subsection in a coronial procedure. 14
194 Conditions of appointment of members 15
(1) Members of the board of inquiry are entitled to be paid the 16
fees and allowances that may be decided by the Minister. 17
(2) The members' terms of office are the terms provided by this 18
Act and any other terms decided by the Minister. 19
195 Chief executive to arrange for services of staff and 20
financial matters for board 21
As soon as practicable after the board of inquiry is established 22
or re-established, the chief executive must consult with the 23
chairperson of the board and arrange for the following-- 24
(a) the services of officers and employees of the 25
department, rail safety officers and other persons to be 26
made available to the board for the conduct of the 27
inquiry; 28
(b) financial matters relevant to the board. 29
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Part 8 Boards of inquiry
[s 196]
196 Rail safety officer may exercise powers for inquiry 1
(1) This section applies to a rail safety officer whose services 2
have been made available to the board of inquiry. 3
(2) The officer may exercise powers under part 7 for the 4
occurrence the subject of the board's inquiry. 5
Division 2 Conduct of inquiry 6
197 Procedure 7
(1) In conducting its inquiry, the board of inquiry-- 8
(a) must observe natural justice; and 9
(b) must act as quickly, and with as little formality and 10
technicality, as is consistent with a fair and proper 11
consideration of the issues. 12
(2) In conducting the inquiry, the board-- 13
(a) is not bound by the rules of evidence; and 14
(b) may inform itself in any way it considers appropriate, 15
including, for example, by holding hearings; and 16
(c) may decide the procedures to be followed for the 17
inquiry. 18
(3) However, the board must comply with this division and any 19
procedural rules prescribed under a regulation. 20
(4) The chairperson of the board presides at the inquiry. 21
198 Notice of inquiry 22
The chairperson of the board of inquiry must give at least 14 23
days notice of the time and place of its inquiry to anyone who 24
the chairperson has reason to believe should be given the 25
opportunity to appear at the inquiry. 26
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Part 8 Boards of inquiry
[s 199]
199 Inquiry to be held in public other than in special 1
circumstances 2
(1) The board of inquiry's inquiry must be held in public. 3
(2) However, the board may, of its own initiative or on the 4
application of a person represented at the inquiry, direct that 5
the inquiry, or a part of the inquiry, be held in private, and 6
give directions about the persons who may be present. 7
(3) The board may give a direction under subsection (2) only if it 8
is satisfied it is appropriate to make the direction in the special 9
circumstances of the inquiry. 10
200 Protection of members, legal representatives and 11
witnesses 12
(1) A member of the board of inquiry has, in the performance of 13
the member's duties, the same protection and immunity as a 14
judge of the Supreme Court. 15
(2) A lawyer or other person appearing before the board for 16
someone else has the same protection and immunity as a 17
lawyer appearing for a party in a proceeding in the Supreme 18
Court. 19
(3) A person summoned to attend or appearing before the board 20
as a witness has the same protection as a witness in a 21
proceeding in the Supreme Court. 22
201 Record of proceedings to be kept 23
The board of inquiry must keep a record of its proceedings. 24
202 Procedural fairness and representation 25
In conducting its inquiry, the board of inquiry must give 26
anyone directly concerned in the occurrence the subject of the 27
inquiry the opportunity of making a defence to all claims 28
made against the person either in person or by lawyer or 29
agent. 30
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Transport (Rail Safety) Bill 2008
Part 8 Boards of inquiry
[s 203]
203 Board's powers on inquiry 1
(1) In conducting its inquiry, the board of inquiry may-- 2
(a) act in the absence of any person who has been given a 3
notice under section 198 or some other reasonable 4
notice; and 5
(b) receive evidence on oath or affirmation or by statutory 6
declaration; and 7
(c) adjourn the inquiry; and 8
(d) disregard any defect, error, omission or insufficiency in 9
a document; and 10
(e) permit or refuse to permit a person, including a lawyer, 11
to represent someone else at the inquiry. 12
(2) A member of the board may administer an oath or affirmation 13
to a person appearing as a witness before the inquiry. 14
204 Notice to witness 15
(1) The chairperson of the board of inquiry may, by notice given 16
to a person, require the person to attend the inquiry at a stated 17
time and place to give evidence or produce stated documents 18
or things. 19
(2) A person required to appear as a witness before the board is 20
entitled to the witness fees prescribed under a regulation or, if 21
no witness fees are prescribed, the reasonable witness fees 22
decided by the chairperson. 23
205 Inspection of documents or things 24
(1) If a document or other thing is produced to the board of 25
inquiry at its inquiry, the board may-- 26
(a) inspect the document or other thing; and 27
(b) make copies of, photograph, or take extracts from, the 28
document or other thing if it is relevant to the inquiry. 29
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Part 8 Boards of inquiry
[s 206]
(2) The board may also take possession of the document or other 1
thing, and keep it while it is necessary for the inquiry. 2
(3) While the board keeps a document or other thing under this 3
section, the board must permit a person otherwise entitled to 4
possession of the document or other thing to inspect it, make 5
copies of it, photograph it, or take extracts from it, at a 6
reasonable place and time the board decides. 7
206 Inquiry may continue despite court proceedings unless 8
otherwise ordered 9
The inquiry of the board of inquiry may start or continue, and 10
a report may be prepared or given, despite a proceeding before 11
any court or tribunal, unless a court or tribunal with the 12
necessary jurisdiction orders otherwise. 13
207 Offences by witnesses 14
(1) A person given a notice under section 204 must not-- 15
(a) fail, without reasonable excuse, to attend as required by 16
the notice; or 17
(b) fail, without reasonable excuse, to continue to attend as 18
required by the chairperson of the board of inquiry until 19
excused from further attendance. 20
Maximum penalty--60 penalty units. 21
(2) A person appearing as a witness at the board's inquiry must 22
not-- 23
(a) fail to take an oath or make an affirmation when 24
required by the chairperson of the board; or 25
(b) fail, without reasonable excuse, to answer a question the 26
person is required to answer by a member of the board; 27
or 28
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Transport (Rail Safety) Bill 2008
Part 8 Boards of inquiry
[s 208]
(c) fail, without reasonable excuse, to produce a document 1
or thing the person is required to produce by a notice 2
under section 204. 3
Maximum penalty--60 penalty units. 4
208 Self-incrimination 5
(1) An individual appearing as a witness at the board of inquiry's 6
inquiry is not excused from-- 7
(a) answering a question put to the individual at the inquiry; 8
or 9
(b) producing a document or other thing at the inquiry; 10
on the ground that the answer or the production of the 11
document or other thing might tend to incriminate the 12
individual or make the individual liable to a penalty. 13
(2) The following is not admissible in evidence against an 14
individual in any civil or criminal proceeding-- 15
(a) any answer given at the inquiry by the individual, and 16
any document or other thing produced at the inquiry by 17
the individual and the fact of that production, in 18
response to a requirement under this division (primary 19
evidence); 20
(b) any information, or document or other thing, obtained as 21
a direct or indirect result of primary evidence (derived 22
evidence). 23
(3) Subsection (2) does not prevent primary evidence or derived 24
evidence being admitted in evidence in criminal proceedings 25
about the falsity or misleading nature of the primary evidence. 26
(4) In this section-- 27
individual does not include an individual who is an accredited 28
person. 29
209 Contempt of board 30
A person must not-- 31
Page 156
Transport (Rail Safety) Bill 2008
Part 9 Provisions about particular investigations or inquiries
[s 210]
(a) insult the board of inquiry; or 1
(b) deliberately interrupt the board's inquiry; or 2
(c) create or continue, or join in creating or continuing, a 3
disturbance in or near a place where the board is 4
conducting its inquiry; or 5
(d) do anything that would be contempt of court if the board 6
were a judge acting judicially. 7
Maximum penalty--60 penalty units. 8
210 Change of membership of board 9
The inquiry of the board of inquiry is not affected by a change 10
in its membership. 11
Part 9 Provisions about particular 12
investigations or inquiries 13
Division 1 Interpretation 14
211 Definitions for pt 9 15
In this part-- 16
commencement means commencement of this section. 17
court includes any tribunal, authority, person or body that has 18
power to require the production of documents or answering of 19
questions, but does not include the Legislative Assembly or a 20
commission of inquiry under the Commissions of Inquiry Act 21
1950. 22
data logger recording means a recording from a device 23
installed on a self-propelled rolling stock that records rolling 24
stock event data related to operational performance of the 25
rolling stock. 26
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Part 9 Provisions about particular investigations or inquiries
[s 211]
data logger recording information means-- 1
(a) a data logger recording or part of a data logger 2
recording; or 3
(b) a copy or printout of all or part of a data logger 4
recording; or 5
(c) any information obtained from a data logger recording 6
or part of a data logger recording. 7
inquiry means an inquiry conducted by a board of inquiry 8
under this Act. 9
investigation means an investigation of an occurrence under 10
part 7, division 7. 11
relevant person see section 212. 12
restricted information means any of the following, other than 13
data logger recording information-- 14
(a) a statement, whether oral or in writing, obtained from a 15
person in the course of an investigation or inquiry, 16
including any record of the statement; 17
(b) all information recorded in the course of an 18
investigation or inquiry; 19
(c) all communications in the course of an investigation or 20
inquiry with a person involved in the operation of rolling 21
stock that is or was the subject of an investigation or 22
inquiry; 23
(d) medical or private information regarding persons, 24
including deceased persons, involved in an occurrence 25
that is being or has been investigated or that is or has 26
been the subject of an inquiry; 27
(e) in relation to rolling stock that is or was the subject of an 28
investigation or inquiry--information recorded for the 29
purposes of monitoring or directing the progress of the 30
rolling stock from 1 place to another or information 31
recorded about the operation of the rolling stock; 32
(f) records of the analysis of information or anything else 33
obtained in the course of an investigation or inquiry, 34
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Part 9 Provisions about particular investigations or inquiries
[s 212]
including opinions expressed by a person in that 1
analysis; 2
(g) information contained in a document that is given to a 3
rail safety officer or board of inquiry in connection with 4
an investigation or inquiry. 5
212 Meaning of relevant person 6
A relevant person is any of the following-- 7
(a) the chief executive; 8
(b) a rail safety officer-- 9
(i) who is required to investigate a matter under 10
section 164(2); or 11
(ii) who is not required to investigate a matter under 12
section 164(2) but who is investigating a notifiable 13
occurrence, or another occurrence that endangers 14
or could endanger the safe operation of railway 15
operations, for the purpose of finding out its cause 16
as opposed to finding evidence of a suspected 17
offence; or 18
(iii) whose services are made available to a board of 19
inquiry under section 195; 20
(c) another person made available to help a board of inquiry 21
in any capacity. 22
Page 159
Transport (Rail Safety) Bill 2008
Part 9 Provisions about particular investigations or inquiries
[s 213]
Division 2 Protection of particular information 1
Subdivision 1 Limitations on disclosure etc. of 2
restricted information 3
213 Prohibition on recording or disclosure of restricted 4
information by relevant persons 5
(1) A person who is or has been a relevant person must not make 6
a record of restricted information. 7
Maximum penalty--2 years imprisonment. 8
(2) A person who is or has been a relevant person must not 9
disclose restricted information to any person or to a court. 10
Maximum penalty--2 years imprisonment. 11
(3) This section is subject to section 215. 12
214 Prohibition on recording or disclosure of restricted 13
information by other persons 14
(1) A person who has, or had, access to restricted information 15
under section 220 must not-- 16
(a) make a record of the information; or 17
(b) disclose the information to any person or to a court. 18
Maximum penalty--2 years imprisonment. 19
(2) This section is subject to section 215. 20
215 Exceptions to prohibitions on recording or disclosure of 21
restricted information 22
(1) Sections 213(1) and (2) and 214(1) do not apply to-- 23
(a) anything done by a person in performing functions 24
under this Act or in connection with this Act; or 25
(b) without limiting paragraph (a), disclosure to any board 26
of inquiry; or 27
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Part 9 Provisions about particular investigations or inquiries
[s 216]
(c) disclosure to a court in criminal proceedings for an 1
offence against this part, part 7, division 7 or part 8; or 2
(d) disclosure of restricted information to a court in civil 3
proceedings if-- 4
(i) the chief executive has issued a certificate stating 5
that the disclosure of the information is not likely 6
to interfere with any current or future investigation 7
or inquiry; and 8
(ii) the court makes an order under subsection (2) in 9
relation to the disclosure. 10
(2) If a court in civil proceedings is satisfied that any adverse 11
domestic and international impact that the disclosure of 12
restricted information might have on any current or future 13
investigations or inquiries is outweighed by the public interest 14
in the administration of justice, the court may order the 15
disclosure. 16
(3) In a proceeding for an offence against section 213(1) or (2) or 17
214(1), the onus is on the defendant to adduce or point to 18
evidence that suggests a reasonable possibility that subsection 19
(1) applies. 20
216 Court can not require disclosure of restricted information 21
If a person is prohibited by this subdivision from disclosing 22
restricted information-- 23
(a) the person can not be required by a court to disclose the 24
information; and 25
(b) any information disclosed by the person in 26
contravention of this section is not admissible in any 27
civil or criminal proceeding, other than a proceeding 28
against the person under this subdivision. 29
Page 161
Transport (Rail Safety) Bill 2008
Part 9 Provisions about particular investigations or inquiries
[s 217]
217 Court may direct no publication or communication of 1
restricted information 2
A court in which a disclosure mentioned in section 215(1)(c) 3
or (d) is made may direct that the restricted information, or 4
any information obtained from the restricted information, 5
must not-- 6
(a) be published or communicated to any person; or 7
(b) be published or communicated other than in the way, 8
and to the persons, the court states. 9
Subdivision 2 Particular disclosure etc. of 10
restricted information authorised 11
218 Release of restricted information for ensuring rail safety 12
(1) The chief executive may disclose restricted information to any 13
person if the chief executive considers that the disclosure is 14
necessary or desirable for the purposes of ensuring rail safety. 15
(2) However, the chief executive may only disclose restricted 16
information that is, or that contains, personal information in 17
the circumstances prescribed under a regulation. 18
(3) In this section-- 19
individual does not include an individual who is an accredited 20
person. 21
personal information means information or an opinion 22
(including information or an opinion forming part of a 23
database), whether true or not, and whether recorded in a 24
material form or not, about an individual whose identity is 25
apparent, or can reasonably be ascertained, from the 26
information or opinion. 27
Page 162
Transport (Rail Safety) Bill 2008
Part 9 Provisions about particular investigations or inquiries
[s 219]
219 Authorisation of coroner to have access to restricted 1
information 2
(1) This section applies if a coroner requests or requires the chief 3
executive to give restricted information to the coroner. 4
(2) The chief executive must give the restricted information to the 5
coroner. 6
220 Chief executive may authorise persons to have access to 7
restricted information 8
The chief executive may authorise someone other than a 9
relevant person to have access to restricted information if the 10
chief executive considers that it is necessary or desirable to do 11
so. 12
Division 3 Provisions about relevant persons 13
221 Certification by chief executive of relevant person's 14
involvement in investigation or inquiry 15
The chief executive may issue a certificate stating that a stated 16
person who is or has been a relevant person is involved, or has 17
been involved, in an investigation or inquiry about a stated 18
occurrence. 19
222 Relevant persons not compellable as witnesses 20
(1) A person who is or has been a relevant person is not obliged to 21
comply with a subpoena or similar direction of a court to 22
attend and answer questions about an occurrence if the chief 23
executive has issued a certificate under section 221 for the 24
person in relation to the occurrence. 25
(2) A relevant person is not compellable to give an expert opinion 26
in any civil or criminal proceeding in relation to rail safety. 27
(3) This section does not apply to-- 28
(a) an inquiry; or 29
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Transport (Rail Safety) Bill 2008
Part 10 Other offences and provisions about liability for offences
[s 223]
(b) an inquiry conducted by a board of inquiry established 1
or re-established under the Transport Infrastructure Act 2
1994, section 219 as in force from time to time before 3
the commencement; or 4
(c) a coronial inquest. 5
(4) In this section-- 6
expert opinion means an opinion that requires specialised 7
knowledge based on training, study or experience. 8
Part 10 Other offences and provisions 9
about liability for offences 10
Division 1 Offence about discrimination or 11
victimisation 12
223 Discrimination against or victimisation of employees 13
(1) An employer must not dismiss an employee, or otherwise 14
prejudice an employee in the employee's employment, for the 15
dominant or substantial reason that the employee-- 16
(a) has helped or given information to a public agency in 17
relation to a breach or alleged breach of an Australian 18
rail safety law; or 19
(b) has made a complaint about a breach or alleged breach 20
of an Australian rail safety law to an employer, former 21
employer, fellow employee, former fellow employee, 22
union or public agency. 23
Examples of prejudicial conduct in relation to an employee's 24
employment-- 25
· demotion of the employee 26
· unwarranted transfer of the employee 27
· reducing the employee's terms of employment 28
Page 164
Transport (Rail Safety) Bill 2008
Part 10 Other offences and provisions about liability for offences
[s 223]
Maximum penalty--40 penalty units. 1
(2) An employer must not fail to offer employment to a 2
prospective employee, or in offering employment to a 3
prospective employee treat the prospective employee less 4
favourably than another prospective employee would be 5
treated in similar circumstances, for the dominant or 6
substantial reason that the prospective employee-- 7
(a) has helped or given information to a public agency in 8
relation to a breach or alleged breach of an Australian 9
rail safety law; or 10
(b) has made a complaint about a breach or alleged breach 11
of an Australian rail safety law to an employer, former 12
employer, fellow employee, former fellow employee, 13
union or public agency. 14
Maximum penalty--40 penalty units. 15
(3) In this section-- 16
Australian rail safety law means this Act or a corresponding 17
rail safety law. 18
employee includes an individual who works under a contract 19
for services. 20
employer, of a prospective employee, includes a prospective 21
employer of the employee. 22
public agency means a public agency of any jurisdiction and 23
includes the following-- 24
(a) the chief executive; 25
(b) a rail safety officer; 26
(c) a police officer; 27
(d) a corresponding rail safety regulator; 28
(e) an interstate rail safety officer; 29
(f) a police officer of another State. 30
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224 Order for damages or reinstatement 1
(1) This section applies if an employer is convicted of an offence 2
against section 223 in relation to an employee or prospective 3
employee. 4
(2) In addition to imposing a penalty, a court may make 1 or more 5
of the following orders-- 6
(a) an order that the employer pay, within a stated period, 7
the employee or prospective employee the damages the 8
court considers appropriate to compensate the employee 9
or prospective employee; 10
(b) for an employee--an order that the employee be 11
reinstated or re-employed in the employee's former 12
position or, if that position is not available, in a similar 13
position; 14
(c) for a prospective employee--an order that the 15
prospective employee be employed in the position for 16
which the prospective employee applied, or a similar 17
position. 18
(3) In this section-- 19
employee includes an individual who works under a contract 20
for services. 21
employer, of a prospective employee, includes a prospective 22
employer of the employee. 23
Division 2 Offences about false or misleading 24
information 25
225 False or misleading statements 26
(1) A person must not state anything to an official that the person 27
knows is false or misleading in a material particular. 28
Maximum penalty--200 penalty units. 29
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(2) In a proceeding for an offence against subsection (1), it is 1
enough for a charge to state that the statement made was `false 2
or misleading', without specifying which. 3
226 False or misleading documents 4
(1) A person must not give an official a document containing 5
information the person knows is false or misleading in a 6
material particular. 7
Maximum penalty--200 penalty units. 8
(2) Subsection (1) does not apply if the person, when giving the 9
document-- 10
(a) tells the official, to the best of the person's ability, how it 11
is false or misleading; and 12
(b) if the person has, or can reasonably obtain, the correct 13
information--gives the correct information. 14
(3) In a proceeding for an offence against subsection (1), it is 15
enough for a charge to state that the document was `false or 16
misleading', without specifying which. 17
Division 3 Other offences 18
227 Obstruction of officials 19
(1) A person must not obstruct an official in the exercise of a 20
power under this Act, unless the person has a reasonable 21
excuse. 22
Maximum penalty--200 penalty units. 23
(2) If a person has obstructed an official and the official decides 24
to proceed with the exercise of the power, the official must 25
warn the person that-- 26
(a) it is an offence to obstruct the official, unless the person 27
has a reasonable excuse; and 28
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[s 228]
(b) the official considers the person's conduct is an 1
obstruction. 2
(3) In this section-- 3
obstruct includes-- 4
(a) assault, hinder, intimidate and resist; and 5
(b) attempt or threaten to obstruct. 6
official means-- 7
(a) the chief executive; or 8
(b) a rail safety officer; or 9
(c) an interstate rail safety officer exercising a power under 10
this Act as provided for in a reciprocal powers 11
agreement; or 12
(d) a person acting under the direction of a person 13
mentioned in paragraph (a), (b) or (c), in the exercise of 14
a power under this Act. 15
228 Concealing document or other thing 16
A person must not intentionally conceal the location or 17
existence of a document or other thing from an official in the 18
exercise of a power under this Act. 19
Maximum penalty--200 penalty units. 20
229 Impersonating a rail safety officer 21
A person must not pretend to be a rail safety officer. 22
Maximum penalty--100 penalty units. 23
230 Interfering with equipment, rail infrastructure or rolling 24
stock 25
(1) A person must not interfere with equipment, rail infrastructure 26
or rolling stock unless-- 27
(a) the interference is permitted or authorised-- 28
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[s 231]
(i) by an authorised person for the equipment, rail 1
infrastructure or rolling stock; or 2
(ii) under the Transport Infrastructure Act 1994, 3
section 253; or 4
(b) the person has a reasonable excuse. 5
Maximum penalty--200 penalty units. 6
(2) Subsection (1) does not apply to a person who carries out 7
urgent maintenance of equipment, rail infrastructure or rolling 8
stock. 9
(3) In this section-- 10
authorised person, for equipment, rail infrastructure or 11
rolling stock, means-- 12
(a) the rail transport operator who has the effective 13
management and control of the equipment, rail 14
infrastructure or rolling stock; or 15
(b) a rail safety officer. 16
interfere with, equipment, rail infrastructure or rolling stock, 17
includes-- 18
(a) disable, move or operate the equipment, rail 19
infrastructure or rolling stock; and 20
(b) attempt to interfere with the equipment, rail 21
infrastructure or rolling stock. 22
231 Using brake or emergency device 23
(1) A person must not, unless the person has a reasonable 24
excuse-- 25
(a) apply a brake, or use an emergency device, fitted to a 26
train or tram; or 27
(b) use an emergency device on railway premises. 28
Example of emergency device-- 29
emergency button on a station communication board or on an escalator 30
Maximum penalty--100 penalty units. 31
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(2) Subsection (1) does not apply to-- 1
(a) a person who has lawful control of the train or tram; or 2
(b) a person who is using a brake or emergency device on 3
the train or tram, or an emergency device on railway 4
premises, and has lawful authority to use the brake or 5
device. 6
232 Stopping a train or tram 7
(1) A person must not, unless the person has a reasonable excuse, 8
cause, or attempt to cause, a train or tram in motion to stop. 9
Maximum penalty--100 penalty units. 10
(2) Subsection (1) does not apply to-- 11
(a) a person who has lawful control of the train or tram; or 12
(b) a person who is using a brake or emergency device on 13
the train or tram, or an emergency device on railway 14
premises, and has lawful authority to use the brake or 15
device. 16
233 Notification requirement for prescribed persons 17
(1) This section applies if-- 18
(a) a person prescribed under a regulation for this section 19
carries out, or intends to carry out, an operation or 20
activity prescribed under a regulation for this section; 21
and 22
(b) the operation or activity could adversely affect the safety 23
of a rail transport operator's rail infrastructure or rolling 24
stock. 25
(2) The person must, within the period prescribed under a 26
regulation, notify the rail transport operator, in the approved 27
form, of the following-- 28
(a) the commencement of the operation or activity; 29
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[s 234]
(b) any discontinuation or recommencement of the 1
operation or activity; 2
(c) the completion of the operation or activity. 3
Maximum penalty--200 penalty units. 4
Division 4 Provisions about liability for 5
offences 6
234 Multiple offences 7
Despite any Act or other law, a person may be punished for 8
more than 1 breach of a requirement of this Act if the breaches 9
relate to different parts of the same railway premises, rail 10
infrastructure or rolling stock. 11
235 Responsibility for acts or omissions of representative 12
(1) This section applies in a proceeding for an offence against this 13
Act. 14
(2) If it is relevant to prove a person's state of mind about a 15
particular act or omission, it is enough to show-- 16
(a) the act was done or omitted to be done by a 17
representative of the person within the scope of the 18
representative's actual or apparent authority; and 19
(b) the representative had the state of mind. 20
(3) An act done or omitted to be done for a person by a 21
representative of the person within the scope of the 22
representative's actual or apparent authority is taken to have 23
been done or omitted to be done also by the person, unless the 24
person proves the person could not, by the exercise of 25
reasonable diligence, have prevented the act or omission. 26
(4) In this section-- 27
representative means-- 28
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[s 236]
(a) for a corporation--an executive officer, employee or 1
agent of the corporation; or 2
(b) for an individual--an employee or agent of the 3
individual. 4
state of mind of a person includes-- 5
(a) the person's knowledge, intention, opinion, belief or 6
purpose; and 7
(b) the person's reasons for the intention, opinion, belief or 8
purpose. 9
236 Executive officers must ensure corporation complies 10
with Act 11
(1) The executive officers of a corporation must ensure the 12
corporation complies with this Act. 13
(2) If a corporation commits an offence against a provision of this 14
Act, each of the corporation's executive officers also commits 15
an offence, namely, the offence of failing to ensure the 16
corporation complies with the provision. 17
Maximum penalty--the penalty for a contravention of the 18
provision by an individual. 19
(3) Evidence that the corporation has been convicted of an 20
offence against a provision of this Act is evidence that each of 21
the executive officers committed the offence of failing to 22
ensure the corporation complies with the provision. 23
(4) However, it is a defence for an executive officer to prove-- 24
(a) if the officer was in a position to influence the conduct 25
of the corporation in relation to the offence, the officer 26
exercised reasonable diligence to ensure the corporation 27
complied with the provision; or 28
(b) the officer was not in a position to influence the conduct 29
of the corporation in relation to the offence. 30
(5) This section does not apply to an executive officer acting on a 31
voluntary basis, whether or not the officer is reimbursed for 32
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[s 237]
the expenses incurred by the officer for carrying out activities 1
for the corporation. 2
237 Daily penalty for continuing offences 3
(1) This section applies to a person who commits an offence 4
against this Act that requires the person to do something or 5
not do something. 6
(2) The offence is a continuing offence and may be charged in 1 7
or more complaints for periods for which the offence 8
continues. 9
Maximum penalty for each day the offence continues after the 10
person is convicted of the offence--1/5 of the maximum 11
penalty for the offence. 12
(3) For the penalty under subsection (2), an offence that continues 13
for a part of a day is taken to have continued for the entire day. 14
238 Compliance with conditions of accreditation 15
(1) This section applies if an accreditation condition of a person's 16
accreditation makes provision in relation to preventing a 17
contravention of a requirement of this Act. 18
(2) If the person complies with the condition to the extent that it 19
makes that provision, the person is taken to have complied 20
with the requirement. 21
(3) In this section-- 22
requirement includes rail safety duty. 23
239 Compliance with compliance code 24
(1) This section applies if-- 25
(a) a compliance code makes provision in relation to 26
preventing a contravention of a requirement of this Act; 27
and 28
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[s 240]
(b) a person complies with the compliance code to the 1
extent that it makes that provision. 2
(2) The person is taken to have complied with the requirement. 3
(3) In this section-- 4
requirement includes rail safety duty. 5
Part 11 Review and appeal 6
240 Review of original decision 7
(1) A person whose interests are affected by a decision described 8
in schedule 2 (the original decision) may ask the chief 9
executive to review the decision. 10
(2) The person is entitled to receive a statement of reasons for the 11
original decision whether or not the provision of this Act 12
under which the decision is made requires that the person be 13
given a statement of reasons for the decision. 14
(3) The Transport Planning and Coordination Act 1994, part 5, 15
division 2-- 16
(a) applies to the review; and 17
(b) provides-- 18
(i) for the procedure for applying for the review and 19
the way it is to be carried out; and 20
(ii) that the original decision may be stayed by the 21
person by applying to the court stated in schedule 2 22
for the decision. 23
241 Appeal against reviewed decision 24
(1) This section applies if the chief executive conducting a review 25
under section 240 confirms or amends an original decision 26
affecting a person or substitutes another decision. 27
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(2) The person may appeal against the confirmed, amended or 1
substituted decision (the reviewed decision) to the court stated 2
in schedule 2 for the decision. 3
(3) If schedule 2 indicates that an appeal may be made to the 4
District Court or to a Magistrates Court, the appeal is to be 5
made-- 6
(a) if the amount involved exceeds $50000--to the District 7
Court; or 8
(b) otherwise--to a Magistrates Court. 9
(4) The Transport Planning and Coordination Act 1994, part 5, 10
division 3-- 11
(a) applies to the appeal; and 12
(b) provides-- 13
(i) for the procedure for the appeal and the way it is to 14
be disposed of; and 15
(ii) that the reviewed decision may be stayed by the 16
person by applying to the court that is to hear the 17
appeal. 18
Part 12 Legal proceedings 19
Division 1 Application 20
242 Application of pt 12 21
This part applies to a proceeding under this Act. 22
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[s 243]
Division 2 Evidence 1
243 Evidence from records required to be kept under Act 2
A certificate purporting to be signed by the chief executive 3
and stating any of the following matters is evidence of the 4
matter-- 5
(a) a stated document is a record, or an extract from a 6
record, kept under section 261; 7
(b) a stated document is a copy of a record or extract 8
mentioned in paragraph (a); 9
(c) on a stated day, or for a stated period, an accreditation 10
was, or was not, in force for a stated person; 11
(d) on a stated day, or for a stated period, a stated condition 12
applied, or did not apply, to an accreditation in force for 13
a stated person; 14
(e) on a stated day, or for a stated period, an accreditation 15
for a stated person was suspended; 16
(f) on a stated day, an accreditation for a stated person was 17
revoked or surrendered; 18
(g) on a stated day, a stated person was given an 19
improvement notice, or a notice amending an 20
improvement notice, and the requirements applying to 21
the person under the improvement notice, or the 22
improvement notice as amended; 23
(h) on a stated day, a stated person was given a prohibition 24
notice, or a notice amending a prohibition notice, and 25
the requirements applying to the person under the 26
prohibition notice, or the prohibition notice as amended. 27
244 Evidence about reciprocal powers agreement 28
A certificate purporting to be signed by the chief executive 29
and stating any of the following matters is evidence of the 30
matter-- 31
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[s 245]
(a) on a stated day, or during a stated period, a rail safety 1
officer was exercising, or purportedly exercising, 2
powers under a stated provision of a stated reciprocal 3
powers agreement; 4
(b) on a stated day, or during a stated period, an interstate 5
rail safety officer was exercising, or purportedly 6
exercising, powers under a stated provision of a stated 7
reciprocal powers agreement; 8
(c) a stated document is a copy of a stated reciprocal powers 9
agreement; 10
(d) a stated document is a copy of an extract from a stated 11
reciprocal powers agreement. 12
245 Evidence of other matters 13
(1) A certificate purporting to be signed by an official and stating 14
any of the following matters is evidence of the matter-- 15
(a) a stated matter appears in a stated record kept by the 16
official for the administration or enforcement of this Act 17
or a corresponding law; 18
(b) a stated matter appears in a stated record accessed by the 19
official for the administration or enforcement of this Act 20
or a corresponding law. 21
(2) A certificate purporting to be sig