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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Rail Safety Bill 2009
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used 2
4. Declaration of substance to be a drug 12
5. Railways to which this Act does not apply 13
6. The concept of ensuring safety 13
7. Rail safety work 14
8. Relationship to Government Railways Act 1904 15
9. Crown bound 16
Part 2 -- Relationship to
Occupational Safety and Health
Act 1984
10. Act adds to protection provided by Occupational
Safety and Health Act 1984 17
11. Occupational Safety and Health Act 1984 prevails 17
12. Compliance with this Act is no defence to
prosecution under Occupational Safety and Health
Act 1984 17
13. Relationship between duties under this Act and
Occupational Safety and Health Act 1984 17
14. No double jeopardy 17
Part 3 -- Administration
Division 1 -- The Rail Safety Regulator
15. Rail Safety Regulator 18
16. Functions of the Rail Safety Regulator 18
17. Information to be included in annual report 19
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Rail Safety Bill 2009
Contents
18. Delegation 19
19. Rail Safety Regulator may exercise functions of
rail safety officers 20
Division 2 -- Rail safety officers
20. Designation of departmental officer as a rail safety
officer 20
21. Use of other government staff and appointment of
other government staff as rail safety officers 22
22. Appointment of rail safety officers 23
23. Reciprocal powers of rail safety officers 23
24. Identification cards for rail safety officers 24
25. Rail safety officer must not exercise functions
without identification card 24
26. Display and production of identification card 24
27. Return of identification cards 25
Part 4 -- Rail safety
Division 1 -- General safety duties
28. Safety duties of rail transport operators 26
29. Duties of rail transport operators extend to
contractors 29
30. Duties of designers, manufacturers, suppliers etc. 29
Division 2 -- Accreditation
31. Purpose of accreditation 31
32. Accreditation required for railway operations 31
33. Purpose for which accreditation may be granted 33
34. Application for accreditation 33
35. What applicant for accreditation must demonstrate 34
36. Rail Safety Regulator may direct applicants to
coordinate and cooperate in applications 35
37. Coordination between Rail Safety Regulators 36
38. Determination of application 36
39. Prescribed conditions and restrictions 38
40. Penalty for breach of condition or restriction 38
41. Annual fees 38
42. Late payment fees 39
43. Rail Safety Accreditation Account 39
44. Periodic returns 39
45. Surrender of accreditation 40
46. Revocation or suspension of accreditation 40
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Rail Safety Bill 2009
Contents
47. Immediate suspension of accreditation 42
48. Keeping and making available documents for
public inspection 43
49. Application for variation of accreditation 44
50. Application that relates to cooperative railway
operations or operations in another jurisdiction 44
51. Determination of application for variation 44
52. Prescribed conditions and restrictions 46
53. Rail Safety Regulator may direct amendment of a
safety management system 46
54. Variation of conditions and restrictions 46
55. Rail Safety Regulator may make changes to
conditions or restrictions 47
56. Accreditation cannot be transferred or assigned 48
57. Sale or transfer of railway operations by accredited
person 48
Division 3 -- Private sidings
58. Exemption from accreditation 49
Division 4 -- Safety management
59. Safety management system 50
60. Compliance with safety management system 53
61. Review of safety management system 54
62. Safety performance reports 54
63. Interface coordination -- rail transport operators 56
64. Interface coordination -- rail infrastructure
manager -- public roads 56
65. Interface coordination -- rail infrastructure
manager --roads other than public roads 57
66. Interface coordination -- road manager -- public
roads and other roads 58
67. Identification and assessment of risks 59
68. Scope of interface agreements 59
69. Rail Safety Regulator may give directions 59
70. Register of interface agreements 61
71. Security management plan 62
72. Emergency management plan 62
73. Health and fitness management programme 64
74. Alcohol and drug management programme 64
75. Testing for presence of alcohol or drugs 65
76. Fatigue management programme 65
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Rail Safety Bill 2009
Contents
77. Assessment of competence 65
78. Identification for rail safety workers 67
79. Duties of rail safety workers 67
80. Contractors to comply with safety management
system 68
Division 5 -- Information about rail safety
81. Rail transport operators to provide information 69
Division 6 -- Investigating and reporting by rail
transport operators
82. Notification of certain occurrences 70
83. Investigation of notifiable occurrences 71
Division 7 -- Audit by Rail Safety Regulator
84. Audit of railway operations of rail transport
operators 72
Part 5 -- Enforcement
Division 1 -- Entry to places by rail safety
officers
85. Power to enter places 74
86. Limitation on entry powers: places used for
residential purposes 75
87. Notice of entry 75
Division 2 -- General enforcement powers
88. General powers after entering a place 75
89. Use of assistants and equipment 77
90. Use of electronic equipment 77
91. Use of equipment to examine or process things 77
92. Securing a site 78
Division 3 -- Search warrants
93. Search warrant 79
94. Issue of search warrant 79
95. Execution of warrant 80
96. Seizure of things not mentioned in the warrant 81
Division 4 -- Powers to support seizure
97. Directions relating to seizure 81
98. Rail safety officer may direct a thing's return 82
99. Receipt for seized things 83
100. Access to seized thing 83
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Rail Safety Bill 2009
Contents
101. Embargo notices 83
Division 5 -- Forfeiture
102. Return of seized things 85
103. Forfeiture 85
104. Dealing with forfeited sample or thing 86
105. Forfeiture on conviction 87
Division 6 -- Directions
106. Rail safety officers may direct certain persons to
give assistance 87
107. Power to direct name and address be given 88
108. Failure to give name or address 89
109. Power to direct production of documents 89
110. Failure to produce document 89
Division 7 -- Improvement notices
111. Improvement notices 90
112. Contravention of improvement notice 92
113. Withdrawal or amendment of improvement notices 93
114. Proceedings for offences not affected by
improvement notices 94
115. Rail Safety Regulator to arrange for rail safety
work required by improvement notice to be carried
out 94
Division 8 -- Prohibition notices
116. Prohibition notice 94
117. Contravention of prohibition notice 96
118. Oral direction before prohibition notice served 97
119. Withdrawal or amendment of prohibition notice 98
120. Proceedings for offences not affected by
prohibition notices 98
Division 9 -- Miscellaneous
121. Directions may be given under more than one
provision 98
122. Temporary closing of railway crossings, bridges
etc. 99
123. Restoring rail infrastructure and rolling stock etc.
to original condition after action taken 100
124. Use of force 100
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Rail Safety Bill 2009
Contents
125. Power to use force against persons to be exercised
only by police officers 100
126. Protection from incrimination 101
Part 6 -- Investigations
Division 1 -- Independent investigators
127. Appointment of independent investigator 102
128. Conduct of investigation 103
129. Advise as to immediate action that is required 104
130. Release of information in the interests of rail safety 104
131. Investigation may continue despite other
proceedings 104
132. Draft report or excerpt 104
133. Report 106
134. Reports not admissible in evidence 106
135. Response to report: installation of safety or
protective devices 107
136. Appointment of authorised officers 107
137. Delegation by independent investigator 107
138. Certificate of appointment for independent
investigators and authorised officers 108
139. Independent investigators and authorised officers
must not exercise functions without a certificate of
appointment 108
140. Production of a certificate of appointment 108
141. Return of certificate of appointment 109
Division 2 -- Investigation powers
142. Securing a site 109
143. Power to obtain information 110
144. Other powers 111
145. Limitation on entry powers: places used for
residential purposes 113
146. Occupier entitled to be present during inspection 113
147. Use of equipment 113
148. Occupier to provide independent investigator with
facilities and assistance 113
149. Use of electronic equipment 114
150. Use of equipment to examine or process things 114
151. Notices relating to exercise of powers 115
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Rail Safety Bill 2009
Contents
152. Protection orders by Rail Safety Regulator or
independent investigator 115
153. Medical examination 116
154. Analysis 118
155. Regulations relating to medical examinations and
analysis 120
156. Independent investigator not to use force against
persons 120
Division 3 -- Search warrants
157. Search warrant 121
158. Issue of search warrant 121
159. Execution of warrant 122
160. Seizure of things not mentioned in the warrant 122
Division 4 -- Seized things and samples taken
161. Provisions relating to seizure 123
162. Securing seized things 124
163. Powers to support seizure 124
164. Independent investigator may direct a thing's
return 125
165. Manner in which independent investigator may
give directions under this Division 126
166. Receipt for seized things or sample 126
167. Copies of certain seized things to be given 127
168. Transfer of seized thing to independent
investigator 127
169. Transfer of seized thing to a rail safety officer 128
Division 5 -- Provisions relating to
investigations
170. Offences in relation to investigation 129
171. Offence to hinder persons appointed under this
Part 130
172. Incriminating information, questions or documents 130
173. Legal professional privilege 130
174. Certification of independent investigator's or
authorised officer's involvement in investigation 131
175. Independent investigator and authorised officer not
compellable as witnesses 131
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Rail Safety Bill 2009
Contents
Division 6 -- Protection of restricted
information
176. Limitations on disclosure etc. of restricted
information 131
177. Disclosure of restricted information in the interests
of rail safety 132
Part 7 -- Review of decisions
178. Terms used 134
179. Application of Parliamentary Commissioner
Act 1971 to Rail Safety Regulator and rail safety
officers 134
180. Reviewable decisions 134
181. Review by the Rail Safety Regulator 137
182. Review by the State Administrative Tribunal 139
Part 8 -- General liability and
evidentiary provisions
Division 1 -- General
183. Period within which proceedings for offences may
be commenced 140
184. Authority to take proceedings 141
185. Vicarious responsibility 141
186. Records and evidence from records 142
187. Certificate evidence 143
188. Proof of appointments and signatures unnecessary 143
189. Offences relating to bodies corporate, partnerships,
associations and employees 144
Division 2 -- Discrimination against employees
190. Dismissal or other victimisation of employee 146
191. Defendant bears onus of proof 148
192. Order for damages or reinstatement 148
Division 3 -- False or misleading information
193. False or misleading information provided to Rail
Safety Regulator or officials 148
Division 4 -- Other offences
194. Obstructing or hindering rail safety officers 150
195. Offence to impersonate rail safety officer 151
196. Not to interfere with rail infrastructure etc. 151
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Rail Safety Bill 2009
Contents
197. Applying brake or emergency device 151
198. Stopping a train or tram 152
Division 5 -- Enforceable voluntary
undertakings
199. Rail Safety Regulator may accept undertakings 152
200. Enforcement of undertakings 152
Division 6 -- Court based sanctions
201. Daily penalty for continuing offences 153
202. Commercial benefits order 153
203. Exclusion orders 155
204. Contravention of exclusion order 156
Division 7 -- Undertakings
205. Court may allow offender to make election 157
206. Making of election 158
207. Failure to enter into undertaking 159
208. Time for payment of fine 159
209. Nature and terms of undertaking 160
210. What may be included in undertaking 160
211. Effect of undertaking 162
212. Failure to comply with undertaking 162
213. Amendment of undertaking 163
214. Compliance report 163
Part 9 -- General
Division 1 -- Confidentiality
215. Confidentiality 165
Division 2 -- Civil liability
216. Civil liability not affected by Part 4 Division 1 or 4 166
217. Immunity from tortious liability 166
218. Immunity for reporting unfit rail safety worker 167
Division 3 -- Compliance codes and guidelines
219. Approval of compliance codes and guidelines 168
220. Effect of compliance code or guidelines 169
221. Effect of complying with a compliance code 169
222. Disallowance of compliance codes 169
Division 4 -- Miscellaneous
223. Recovery of certain costs 170
224. Recovery of amounts due 170
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Rail Safety Bill 2009
Contents
225. Compliance with conditions of accreditation 170
226. Prescribed persons 170
227. Contracting out prohibited 171
228. Regulations 171
229. Repeals 173
Part 10 -- Transitional
230. Terms used 174
231. Interpretation Act 1984 not affected 174
232. Authorised officer 174
233. Accreditation 174
234. Interim accreditation 175
235. Temporary accreditation 175
236. Annual fees 175
237. Private siding 176
238. Suspension of accreditation 176
239. Safety management plan 176
240. Emergency Management Plan 177
241. Health and fitness management programme 178
242. Alcohol and drug management programme 179
243. Fatigue management programme 179
244. Assessment of competence 180
245. Identification for rail safety workers 180
246. Installation of safety or protective devices 180
247. Closing railway crossings, bridges etc. 181
248. Direction to stop, alter or not to start the works 181
249. Direction to undertake remedial safety work 181
250. Safety reports 181
251. Supply of information 182
252. Notifiable occurrences and other incidents 182
253. Report from owner or operator 182
254. Request for certain details 183
255. Inquiries 183
256. Evidentiary provision 183
257. Powers in relation to transitional provision 183
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Rail Safety Bill 2009
Contents
Part 11 -- Consequential
amendments
Division 1 -- Government Railways Act 1904
amended
258. Act amended 185
259. Section 2A amended 185
260. Section 13 amended 185
261. Section 61 amended 185
Division 2 -- Mines Safety and Inspection
Act 1994 amended
262. Act amended 185
263. Section 7 amended 186
Division 3 -- Public Transport Authority
Act 2003 amended
264. Act amended 186
265. Section 3 amended 186
266. Section 4 amended 186
Division 4 -- Rail Freight System Act 2000
amended
267. Act amended 186
268. Section 9 amended 187
Division 5 -- Railways (Access) Act 1998
amended
269. Act amended 187
270. Section 8 amended 187
Defined Terms
page xi
Western Australia
LEGISLATIVE ASSEMBLY
Rail Safety Bill 2009
A Bill for
An Act to make provision for rail safety and other matters that form
part of a system of nationally consistent rail safety laws and as a
consequence to --
· repeal the Rail Safety Act 1998; and
· amend certain other Acts,
and for other purposes.
The Parliament of Western Australia enacts as follows:
page 1
Rail Safety Bill 2009
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Rail Safety Act 2009.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act other than sections 63, 64, 65
9 and 66 -- on a day fixed by proclamation, and different
10 days may be fixed for different provisions;
11 (c) section 63 -- on the day 12 months after the day on
12 which section 3 comes into operation;
13 (d) sections 64, 65 and 66 -- on the day 36 months after the
14 day on which section 3 comes into operation.
15 3. Terms used
16 In this Act, unless the contrary intention appears --
17 accreditation means accreditation under Part 4;
18 accredited person means a rail transport operator who is
19 accredited under this Act but does not include a person whose
20 accreditation under this Act --
21 (a) has been surrendered or revoked or has otherwise ceased
22 to have effect under this Act; or
23 (b) is suspended under this Act;
24 Australian rail safety law means a rail safety law or a
25 corresponding rail safety law;
26 Australian Rail Safety Regulator means the Rail Safety
27 Regulator or a corresponding Rail Safety Regulator;
28 authorised officer means a person appointed as an authorised
29 officer under section 136;
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Rail Safety Bill 2009
Preliminary Part 1
s. 3
1 CEO means the chief executive officer of the department of the
2 Public Service principally assisting in the administration of this
3 Act;
4 commercial benefits order means an order under section 202;
5 Commissioner of Police means the person holding or acting in
6 the office of Commissioner of Police under the Police Act 1892;
7 compliance code means a compliance code approved by the
8 Minister under Part 9 Division 3;
9 corresponding law means --
10 (a) the law of another jurisdiction corresponding, or
11 substantially corresponding, to this Act; or
12 (b) a law of another jurisdiction that is declared under the
13 regulations to be a corresponding law, whether or not
14 the law corresponds, or substantially corresponds, to this
15 Act;
16 corresponding rail safety law means a rail safety law as defined
17 in a corresponding law;
18 corresponding Rail Safety Regulator means --
19 (a) the Rail Safety Regulator within the meaning of a
20 corresponding rail safety law (except in the case of a
21 jurisdiction for which a person is prescribed under
22 paragraph (b)); or
23 (b) a person prescribed by the regulations as the
24 corresponding Rail Safety Regulator for another
25 jurisdiction for the purposes of this Act;
26 document includes any record of information accessible only
27 through the use of a computer or other device;
28 drug means --
29 (a) a substance that is a drug for the purposes of this Act by
30 virtue of a declaration under section 4; and
31 (b) any other substance (other than alcohol) which, when
32 consumed or used by a person, deprives that person
page 3
Rail Safety Bill 2009
Part 1 Preliminary
s. 3
1 (temporarily or permanently) of any of his or her normal
2 mental or physical faculties;
3 embargo notice means a notice under section 101;
4 employee means a person employed under a contract of
5 employment or contract of training;
6 employer means a person who employs one or more other
7 persons under contracts of employment or contracts of training;
8 exercise includes perform;
9 footpath has the meaning given in the Road Traffic Code 2000
10 regulation 3(1);
11 guidelines means guidelines approved by the Minister under
12 Part 9 Division 3;
13 improvement notice means a notice under section 111;
14 independent investigator means a person appointed as an
15 independent investigator under section 127;
16 infringement notice means an infringement notice under the
17 Criminal Procedure Act 2004 Part 2;
18 interface agreement means an agreement in writing about
19 managing risks to safety identified and assessed under Part 4
20 Division 4 that includes provisions for --
21 (a) implementing and maintaining measures to manage
22 those risks; and
23 (b) the evaluation, testing and, where appropriate, revision,
24 of those measures; and
25 (c) the respective roles and responsibilities of each party to
26 the agreement in relation to those measures; and
27 (d) procedures by which each party to the agreement will
28 monitor compliance with the obligations under the
29 agreement; and
30 (e) a process for keeping the agreement under review and
31 its revision;
32 jurisdiction means a State or Territory;
page 4
Rail Safety Bill 2009
Preliminary Part 1
s. 3
1 level crossing has the meaning given in the Road Traffic
2 Code 2000 regulation 3(1);
3 notifiable occurrence means an accident or incident associated
4 with railway operations --
5 (a) that has, or could have, caused --
6 (i) significant property damage; or
7 (ii) serious injury; or
8 (iii) death;
9 or
10 (b) that is, or is of a class that is, prescribed by the
11 regulations to be a notifiable occurrence or class of
12 notifiable occurrence,
13 but does not include an accident or incident, or class of accident
14 or incident, that is prescribed by the regulations not to be a
15 notifiable occurrence;
16 personal information has the meaning given in the Freedom of
17 Information Act 1992 Glossary clause 1;
18 private siding means a siding that is managed, owned or
19 controlled by a person, other than a person who manages the rail
20 infrastructure with which the siding connects or to which it has
21 access, but does not include --
22 (a) a marshalling yard; or
23 (b) a crossing loop; or
24 (c) a passenger terminal; or
25 (d) a freight terminal; or
26 (e) a siding, or a siding of a class, prescribed by the
27 regulations not to be a private siding;
28 prohibition notice means a notice under section 116;
29 public place means --
30 (a) a place that --
31 (i) the public is entitled to use; or
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Rail Safety Bill 2009
Part 1 Preliminary
s. 3
1 (ii) is open to members of the public; or
2 (iii) is used by the public,
3 whether or not on payment of money; or
4 (b) a place that the occupier allows members of the public
5 to enter, whether or not on payment of money;
6 public road means a road as defined in the Road Traffic
7 Act 1974 section 5(1);
8 rail infrastructure means the facilities that are necessary to
9 enable a railway to operate safely and includes, but is not
10 limited to --
11 (a) railway tracks and associated track structures; or
12 (b) service roads, signalling systems, communications
13 systems, rolling stock control systems and data
14 management systems; or
15 (c) notices and signs; or
16 (d) electrical power supply and electric traction systems; or
17 (e) associated buildings, workshops, depots and yards; or
18 (f) plant, machinery and equipment,
19 but does not include --
20 (g) rolling stock; or
21 (h) any facility, or facility of a class, that is prescribed by
22 the regulations not to be rail infrastructure;
23 rail infrastructure manager, in relation to rail infrastructure of
24 a railway, means the person who has effective management and
25 control of the rail infrastructure, whether or not the person --
26 (a) owns the rail infrastructure; or
27 (b) has a statutory or contractual right to use the rail
28 infrastructure or to control, or provide, access to it;
29 rail or road crossing means a railway crossing, a bridge
30 carrying a road over a railway or a bridge carrying a railway
31 over a road;
page 6
Rail Safety Bill 2009
Preliminary Part 1
s. 3
1 rail safety law means this Act or a provision of this Act;
2 rail safety matter means --
3 (a) an occurrence involving rolling stock or rail
4 infrastructure that resulted in, or that had the potential to
5 result in, the death of, or injury to, any person, or in
6 damage to any property or equipment including, for
7 example --
8 (i) a derailment of rolling stock; or
9 (ii) a collision involving rolling stock; or
10 (iii) an accident or incident resulting from the
11 construction, maintenance or operation of a
12 railway; or
13 (iv) a failure of any part of rail infrastructure or any
14 rolling stock or any part of any rolling stock; or
15 (v) a failure or breach of any practice or procedure
16 involving rolling stock; or
17 (vi) a fire, explosion or other similar occurrence
18 involving rolling stock; or
19 (vii) an accident or incident in which there is evidence
20 of systematic safety deficiencies;
21 or
22 (b) any other occurrence or any state of affairs involving, or
23 in relation to, rolling stock or rail infrastructure that is
24 specified by the regulations for the purposes of this
25 definition;
26 rail safety officer means a person designated to be appointed as
27 a rail safety officer under Part 3 Division 2;
28 Rail Safety Regulator means the person referred to in
29 section 15(2);
30 rail safety work has the meaning given in section 7;
31 rail safety worker means an individual who has carried out, is
32 carrying out or is about to carry out, rail safety work;
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Rail Safety Bill 2009
Part 1 Preliminary
s. 3
1 rail transport operator means --
2 (a) a rail infrastructure manager; or
3 (b) a rolling stock operator; or
4 (c) a person who is both a rail infrastructure manager and a
5 rolling stock operator;
6 railway means a monorail or proposed monorail or a guided
7 system, or proposed guided system, designed for the movement
8 of rolling stock having the capability of transporting passengers
9 or freight, or both, on a railway track with a gauge of 600 mm
10 or more, together with its rail infrastructure and rolling stock
11 and includes the following --
12 (a) a heavy railway;
13 (b) a light railway;
14 (c) an inclined railway;
15 (d) a tramway;
16 (e) a railway within a marshalling yard or a passenger or
17 freight terminal;
18 (f) a private siding;
19 (g) a guided system, or guided system of a class, prescribed
20 by the regulations to be a railway;
21 railway crossing means --
22 (a) a level crossing; or
23 (b) any area where a footpath or shared path crosses a
24 railway at substantially the same level;
25 railway operations means --
26 (a) the construction of a railway, railway tracks and
27 associated track structures or rolling stock; or
28 (b) the management, commissioning, maintenance, repair,
29 modification, installation, operation or decommissioning
30 of rail infrastructure; or
31 (c) the commissioning, maintenance, repair, modification or
32 decommissioning of rolling stock; or
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Rail Safety Bill 2009
Preliminary Part 1
s. 3
1 (d) the operation or movement, or causing the operation or
2 movement by any means, of rolling stock on a railway
3 (including for the purposes of construction or restoration
4 of rail infrastructure); or
5 (e) the movement, or causing the movement, of rolling
6 stock for the purposes of operating a railway service;
7 railway premises means --
8 (a) land (including any premises on land) on or in which is
9 situated rail infrastructure; or
10 (b) land (including any premises on land) on or in which is
11 situated any over track or under track structure or part of
12 an over track or under track structure; or
13 (c) freight centres or depots used in connection with the
14 carrying out of railway operations; or
15 (d) workshops or maintenance depots used in connection
16 with the carrying out of railway operations; or
17 (e) premises including an office, building or housing used
18 in connection with the carrying out of railway
19 operations; or
20 (f) rolling stock or other vehicles associated with railway
21 operations;
22 railway tracks and associated track structures means --
23 (a) railway tracks and associated track structures and works
24 (such as cuttings, sidings, tunnels, bridges, stations,
25 platforms, tram stops, excavations, land fill, track
26 support earthworks and drainage works); or
27 (b) over track structures and under track structures
28 (including tunnels under tracks);
29 restricted information, in relation to an investigation under
30 Part 6, means any one or more of the following --
31 (a) a statement, whether oral or in writing, obtained from a
32 person in the course of an investigation, including any
33 record of the statement;
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Rail Safety Bill 2009
Part 1 Preliminary
s. 3
1 (b) all information recorded in the course of an
2 investigation;
3 (c) information in a document or thing created by an
4 independent investigator or an authorised officer during
5 the course of an investigation;
6 (d) all communications in the course of an investigation
7 with a person involved in the operation of rolling stock
8 that is or was the subject of the investigation;
9 (e) medical or private information (including information
10 obtained from an alcohol or drug test under section 154)
11 regarding persons, including deceased persons, involved
12 in an occurrence that is or has been the subject of an
13 investigation;
14 (f) in relation to rolling stock that is or was the subject of an
15 investigation, information recorded for the purposes of
16 monitoring or directing the progress of the rolling stock
17 from one place to another or information recorded about
18 the operation of the rolling stock;
19 (g) records of the analysis of information or anything else
20 obtained in the course of an investigation, including
21 opinions expressed by a person in that analysis;
22 (h) any information prescribed for the purpose of this
23 paragraph collected for the purpose of an investigation,
24 but does not include a train safety recording or a transcript of a
25 train safety recording;
26 road infrastructure means --
27 (a) the infrastructure which forms part of a road, footpath or
28 shoulder, including --
29 (i) structures forming part of the road, footpath or
30 shoulder; or
31 (ii) materials from which a road, footpath or
32 shoulder is made;
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Rail Safety Bill 2009
Preliminary Part 1
s. 3
1 (b) the road-related infrastructure including infrastructure
2 which is installed or constructed to --
3 (i) facilitate the operation or use of the road or
4 footpath; or
5 (ii) support or protect the road or footpath;
6 (c) all bridges (including any bridge over or under which a
7 road passes), viaducts, tunnels, culverts, grids,
8 approaches and other things appurtenant to the road or
9 footpath or used in connection with the road or footpath;
10 road manager --
11 (a) in relation to a public road, means a local government,
12 regional local government or the Commissioner of Main
13 Roads;
14 (b) in relation to a road other than a public road, means the
15 owner of, or person responsible for, the road;
16 road vehicle means a vehicle as defined in the Road Traffic
17 Act 1974 section 5(1);
18 rolling stock means a vehicle that operates on or uses a railway
19 and includes a locomotive, carriage, rail car, rail motor, light
20 rail vehicle, train, tram, light inspection vehicle, self propelled
21 infrastructure maintenance vehicle, trolley, wagon or monorail
22 vehicle, but does not include a vehicle designed to operate both
23 on and off a railway when the vehicle is not operating on a
24 railway;
25 rolling stock operator means a person who has effective
26 management and control of the operation or movement of
27 rolling stock on rail infrastructure for a particular railway but
28 does not include a person by reason only that the person drives
29 the rolling stock or controls the network or the network signals;
30 safety means the safety of people, including rail safety workers,
31 passengers, other users of railways, users of rail or road
32 crossings and the general public;
33 safety management plan means a document describing a safety
34 management system;
page 11
Rail Safety Bill 2009
Part 1 Preliminary
s. 4
1 safety management system means a rail transport operator's
2 safety management system under section 59;
3 security management plan means a rail transport operator's
4 security management plan under section 71;
5 shared path has the meaning given in the Road Traffic
6 Code 2000 regulation 3(1);
7 siding means a portion of railway track, connected by points to
8 a running line or another siding, on which rolling stock can be
9 placed clear of the running line;
10 substance means a substance in any form (whether gaseous,
11 liquid, solid or other) and includes material, preparation, extract
12 and admixture;
13 supply includes --
14 (a) in relation to goods, supply or resupply by way of sale,
15 exchange, lease, hire or hire purchase, whether as
16 principal or agent; or
17 (b) in relation to services, provide, grant or confer, whether
18 as principal or agent;
19 train means --
20 (a) 2 or more units of rolling stock coupled together, at least
21 one of which is a locomotive or other self propelled unit;
22 or
23 (b) a unit of rolling stock that is a locomotive or other self
24 propelled unit;
25 train safety recording means a recording consisting of, or
26 mainly of, sounds or images or data, or any combination of
27 sounds, images or data, produced by a device installed in a train,
28 a signal box, a train control complex or other railway premises
29 for the purpose of recording operational activities carried out by
30 persons operating a train.
31 4. Declaration of substance to be a drug
32 The Minister may, by order published in the Gazette, declare
33 any substance to be a drug for the purposes of this Act.
page 12
Rail Safety Bill 2009
Preliminary Part 1
s. 5
1 5. Railways to which this Act does not apply
2 (1) This Act does not apply to the following --
3 (a) a railway in a mine that is underground, or chiefly
4 underground, and that is used in connection with the
5 performance of mining operations;
6 (b) a slipway;
7 (c) a railway used only to guide a crane;
8 (d) an aerial cable operated system;
9 (e) a railway, or class of railway, prescribed to be a railway
10 to which this Act does not apply.
11 (2) The Minister may, by notice published in the Gazette and on
12 such conditions, if any, as are specified, exempt from this Act,
13 or specified provisions of this Act --
14 (a) specified persons or persons of a specified class; or
15 (b) specified railways or railways of a specified class.
16 (3) In subsection (2) --
17 specified means specified in the notice.
18 (4) The Minister may amend or repeal a notice at any time by
19 subsequent notice published in the Gazette.
20 (5) The Interpretation Act 1984 sections 41 and 42 apply to and in
21 relation to a notice under subsection (2) or (4) as if the notice
22 were a regulation.
23 (6) A person must not contravene a condition imposed under
24 this section.
25 Penalty: a fine of $20 000.
26 6. The concept of ensuring safety
27 (1) A duty imposed on a person under this Act to ensure, so far as
28 is reasonably practicable, safety requires the person --
29 (a) to eliminate risks to safety so far as is reasonably
30 practicable; and
page 13
Rail Safety Bill 2009
Part 1 Preliminary
s. 7
1 (b) if it is not reasonably practicable to eliminate risks to
2 safety, to reduce those risks so far as is reasonably
3 practicable.
4 (2) For the purposes of this Act, regard must be had to the
5 following matters in determining what is, or was at a particular
6 time, reasonably practicable in relation to ensuring safety --
7 (a) the likelihood of the risk concerned eventuating;
8 (b) the degree of harm that would result if the risk
9 eventuated;
10 (c) what the person concerned knows or ought reasonably to
11 know, about the risk and any ways of eliminating or
12 reducing the risk;
13 (d) the availability and suitability of ways to eliminate or
14 reduce the risk;
15 (e) the cost of eliminating or reducing the risk.
16 7. Rail safety work
17 (1) Subject to subsection (2), any of the following classes of work
18 is rail safety work for the purposes of this Act --
19 (a) driving or despatching rolling stock or any other activity
20 which is capable of controlling or affecting the
21 movement of rolling stock;
22 (b) signalling, signalling operations, receiving or relaying
23 communications or any other activity which is capable
24 of controlling or affecting the movement of rolling
25 stock;
26 (c) coupling or uncoupling rolling stock;
27 (d) maintaining, repairing, modifying, monitoring,
28 inspecting or testing --
29 (i) rolling stock, including checking that the rolling
30 stock is working properly before being used; or
31 (ii) rail infrastructure;
32 (e) installation of components in relation to rolling stock;
page 14
Rail Safety Bill 2009
Preliminary Part 1
s. 8
1 (f) work on or about rail infrastructure relating to the
2 design, construction, repair, modification, maintenance,
3 monitoring, upgrading, inspection or testing of the rail
4 infrastructure or associated works or equipment,
5 including checking that the rail infrastructure is working
6 properly before being used;
7 (g) installation or maintenance of --
8 (i) a telecommunications system relating to rail
9 infrastructure or used in connection with rail
10 infrastructure; or
11 (ii) the means of supplying electricity directly to rail
12 infrastructure or to any rolling stock using rail
13 infrastructure or to a telecommunications system;
14 (h) work involving certification as to the safety of rail
15 infrastructure or rolling stock or any part or component
16 of rail infrastructure or rolling stock;
17 (i) work involving the decommissioning of rail
18 infrastructure or rolling stock or any part or component
19 of rail infrastructure or rolling stock;
20 (j) work involving the development, management or
21 monitoring of safe working systems for railways;
22 (k) work involving the management or monitoring of
23 passenger safety on, in or at any railway;
24 (l) any other work that is prescribed to be rail safety work.
25 (2) Work, or any class of work, prescribed not to be rail safety work
26 is not rail safety work for the purposes of this Act.
27 8. Relationship to Government Railways Act 1904
28 If there is a conflict or inconsistency between a provision of this
29 Act, or subsidiary legislation made under this Act, and the
30 Government Railways Act 1904, or subsidiary legislation made
31 under that Act, the provision of this Act or subsidiary legislation
32 made under this Act prevails to the extent of the conflict or
33 inconsistency.
page 15
Rail Safety Bill 2009
Part 1 Preliminary
s. 9
1 9. Crown bound
2 This Act binds the Crown and, so far as the legislative power of
3 the State permits, the Crown in all its other capacities.
page 16
Rail Safety Bill 2009
Relationship to Occupational Safety and Health Act 1984 Part 2
s. 10
1 Part 2 -- Relationship to Occupational Safety and
2 Health Act 1984
3 10. Act adds to protection provided by Occupational Safety and
4 Health Act 1984
5 If a provision of the Occupational Safety and Health Act 1984
6 applies to railway operations, that provision continues to apply,
7 and must be observed, in addition to this Act.
8 11. Occupational Safety and Health Act 1984 prevails
9 If a provision of this Act is inconsistent with a provision of the
10 Occupational Safety and Health Act 1984, the provision of that
11 Act prevails to the extent of any inconsistency.
12 12. Compliance with this Act is no defence to prosecution under
13 Occupational Safety and Health Act 1984
14 Compliance with this Act, or with any requirement imposed
15 under this Act, is not in itself a defence in any proceedings for
16 an offence against the Occupational Safety and Health
17 Act 1984.
18 13. Relationship between duties under this Act and
19 Occupational Safety and Health Act 1984
20 Evidence of a relevant contravention of this Act is admissible in
21 any proceedings for an offence against the Occupational Safety
22 and Health Act 1984.
23 14. No double jeopardy
24 If an act or omission constitutes an offence --
25 (a) under this Act; and
26 (b) under the Occupational Safety and Health Act 1984,
27 the offender is not liable to be punished twice in respect of the
28 offence.
page 17
Rail Safety Bill 2009
Part 3 Administration
Division 1 The Rail Safety Regulator
s. 15
1 Part 3 -- Administration
2 Division 1 -- The Rail Safety Regulator
3 15. Rail Safety Regulator
4 (1) A Director Rail Safety is to be appointed.
5 (2) The Director Rail Safety or a person acting in the position of
6 Director Rail Safety is the Rail Safety Regulator.
7 (3) Despite any other written law, the Rail Safety Regulator is not
8 subject to the direction or control of any person in relation to the
9 manner in which the Regulator performs his or her functions
10 under this Act.
11 16. Functions of the Rail Safety Regulator
12 (1) In addition to any other functions conferred on the Rail Safety
13 Regulator by this Act, the Rail Safety Regulator has the
14 following functions --
15 (a) to administer, audit and review the accreditation regime
16 under this Act;
17 (b) to work with rail transport operators, rail safety workers,
18 others involved in railway operations and corresponding
19 Rail Safety Regulators to improve rail safety in this
20 jurisdiction and nationally;
21 (c) to provide information to corresponding Rail Safety
22 Regulators, including information about causal factors
23 of rail incidents, accreditation processes, investigation
24 methods and risk assessment methodologies;
25 (d) to collect and publish information relating to rail safety;
26 (e) to provide, or facilitate the provision of, advice,
27 education and training in relation to rail safety;
28 (f) to monitor, investigate and enforce compliance with
29 this Act.
page 18
Rail Safety Bill 2009
Administration Part 3
The Rail Safety Regulator Division 1
s. 17
1 (2) The functions of the Rail Safety Regulator under this Act are in
2 addition to any function that the Rail Safety Regulator has under
3 any other Act or law.
4 17. Information to be included in annual report
5 (1) The Rail Safety Regulator, not later than 31 October in each
6 year, is to make and submit to the Minister an annual report for
7 the preceding year ending on 30 June.
8 (2) The Rail Safety Regulator must in each annual report include --
9 (a) information on the development of rail safety including
10 an aggregation of statistics of a prescribed class reported
11 to the Rail Safety Regulator under this Act in respect of
12 that year; and
13 (b) information on any improvements and important
14 changes in relation to the regulation of rail safety.
15 (3) Subsection (1) is in addition to any other requirement under any
16 other Act or law to make a report or publish information.
17 (4) The Minister is to cause a copy of the Rail Safety Regulator's
18 annual report submitted under subsection (1) to be laid before
19 each House of Parliament within 21 sitting days of that House
20 after receipt of the report by the Minister.
21 (5) The Rail Safety Regulator is to ensure that after subsection (4)
22 has been complied with copies of the report are available on
23 request for inspection at the Regulator's principal place of
24 business.
25 18. Delegation
26 (1) The Rail Safety Regulator may delegate to a person any power
27 or duty of the Rail Safety Regulator under another provision of
28 this Act other than a function referred to in section 127(2).
29 (2) The delegation must be in writing signed by the Rail Safety
30 Regulator.
page 19
Rail Safety Bill 2009
Part 3 Administration
Division 2 Rail safety officers
s. 19
1 (3) A person to whom a power or duty is delegated under this
2 section cannot delegate that power or duty.
3 (4) A person exercising or performing a power or duty that has been
4 delegated to the person under this section is to be taken to do so
5 in accordance with the terms of the delegation unless the
6 contrary is shown.
7 (5) Nothing in this section limits the ability of the Rail Safety
8 Regulator to perform a function through an officer or agent.
9 19. Rail Safety Regulator may exercise functions of rail safety
10 officers
11 (1) The Rail Safety Regulator may exercise any function conferred
12 on a rail safety officer under this Act.
13 (2) In this Act, other than this Part, a reference to a rail safety
14 officer includes a reference to the Rail Safety Regulator.
15 Division 2 -- Rail safety officers
16 20. Designation of departmental officer as a rail safety officer
17 (1) In this section --
18 department means the department of the Public Service
19 principally assisting in the administration of this Act;
20 departmental officer means a public service officer employed
21 in the department;
22 designation means a designation under subsection (2);
23 employed in the department includes seconded to perform
24 functions or services for, or duties in the service of, the
25 department;
26 public service officer has the meaning given in the Public
27 Sector Management Act 1994 section 3(1).
28 (2) The chief executive officer may designate a departmental
29 officer with appropriate qualifications or experience to be a rail
30 safety officer.
page 20
Rail Safety Bill 2009
Administration Part 3
Rail safety officers Division 2
s. 20
1 (3) There are to be as many rail safety officers as are necessary to
2 perform the functions conferred on a rail safety officer by this
3 Act or any other written law.
4 (4) A person ceases to be a rail safety officer if the designation of
5 the person is revoked or ceases to have effect.
6 (5) The power to make a designation includes --
7 (a) the power to revoke a designation previously made; and
8 (b) the power to designate a person to perform functions of
9 another person who has that designation when it is
10 impractical for that other person to perform the
11 functions; and
12 (c) the power to specify one or more of the following --
13 (i) functions under this Act that may not be
14 exercised by the person designated;
15 (ii) the only functions under this Act that may be
16 exercised by the person designated;
17 (iii) the circumstances or manner in which a function
18 under this Act may be performed by the person
19 designated.
20 (6) A designation ceases to have effect if the person designated
21 ceases to be a departmental officer.
22 (7) The chief executive officer may delegate the power to make a
23 designation to another person.
24 (8) The following are to be in writing --
25 (a) a designation;
26 (b) a revocation of a designation;
27 (c) a delegation of the power to make a designation.
page 21
Rail Safety Bill 2009
Part 3 Administration
Division 2 Rail safety officers
s. 21
1 21. Use of other government staff and appointment of other
2 government staff as rail safety officers
3 (1) The CEO may by arrangement with the relevant employer make
4 use, either full-time or part-time, of the services of any officer
5 or employee --
6 (a) in the Public Service; or
7 (b) in a State agency or instrumentality; or
8 (c) otherwise in the service of the Crown in right of the
9 State.
10 (2) An arrangement under subsection (1) is to be made on the terms
11 agreed to by the parties.
12 (3) If an arrangement under subsection (1) is in effect in relation to
13 an officer or employee, the Rail Safety Regulator, by instrument
14 in writing, may appoint the officer or employee to be a rail
15 safety officer for a term, and subject to the conditions, specified
16 in the instrument.
17 (4) The Rail Safety Regulator must not appoint a person under
18 subsection (3) unless the Rail Safety Regulator is satisfied the
19 person holds appropriate qualifications, or has appropriate
20 experience, to perform the functions of a rail safety officer
21 under this Act.
22 (5) Without limiting the conditions to which the appointment of a
23 rail safety officer may be subject, a condition may specify one
24 or more of the following --
25 (a) functions under this Act that may not be exercised by
26 the rail safety officer;
27 (b) the only functions under this Act that may be exercised
28 by the rail safety officer;
29 (c) the circumstances or manner in which a function under
30 this Act may be performed by the rail safety officer.
page 22
Rail Safety Bill 2009
Administration Part 3
Rail safety officers Division 2
s. 22
1 22. Appointment of rail safety officers
2 (1) The Rail Safety Regulator, by instrument in writing, may
3 appoint a person, or person of a prescribed class, other than a
4 public service officer (as defined in section 20(1)) to be a rail
5 safety officer for a term, and subject to the conditions, specified
6 in the instrument.
7 (2) The Rail Safety Regulator must not appoint a person under
8 subsection (1) unless the Rail Safety Regulator is satisfied the
9 person holds appropriate qualifications, or has appropriate
10 experience, to perform the functions of a rail safety officer
11 under this Act.
12 (3) Without limiting the conditions to which the appointment of a
13 rail safety officer may be subject, a condition may specify one
14 or more of the following --
15 (a) functions under this Act that may not be exercised by
16 the rail safety officer;
17 (b) the only functions under this Act that may be exercised
18 by the rail safety officer;
19 (c) the circumstances or manner in which a function under
20 this Act may be performed by the rail safety officer.
21 23. Reciprocal powers of rail safety officers
22 (1) This section has effect in relation to another jurisdiction while
23 there is in force a corresponding rail safety law that contains
24 provisions corresponding to this section.
25 (2) The Minister may enter into an agreement with a Minister of
26 another jurisdiction for the purposes of this section, including an
27 agreement to amend or revoke any such agreement.
28 (3) To the extent envisaged by an agreement --
29 (a) rail safety officers of this jurisdiction may, in this
30 jurisdiction or the other jurisdiction, exercise functions
31 conferred on rail safety officers of the other jurisdiction
page 23
Rail Safety Bill 2009
Part 3 Administration
Division 2 Rail safety officers
s. 24
1 under the corresponding rail safety law of that other
2 jurisdiction; and
3 (b) rail safety officers of that other jurisdiction may, in this
4 jurisdiction or that other jurisdiction, exercise functions
5 conferred on rail safety officers under this Act.
6 (4) Anything done or omitted to be done by a rail safety officer of
7 this jurisdiction under subsection (3) is taken to have been done
8 under this Act as well as under the corresponding rail safety
9 law.
10 (5) The regulations may make provision for or with respect to the
11 exercise of functions under this section.
12 (6) Nothing in this section affects the appointment under section 22
13 of persons as rail safety officers for the purposes of this Act.
14 24. Identification cards for rail safety officers
15 The Rail Safety Regulator must --
16 (a) issue a rail safety officer with an identification card; or
17 (b) designate a card issued to a rail safety officer by a
18 corresponding Rail Safety Regulator or by a person,
19 body or authority, whether or not of this jurisdiction, as
20 an identification card for the purposes of this Act.
21 25. Rail safety officer must not exercise functions without
22 identification card
23 A rail safety officer must not exercise a function conferred
24 under this Act unless an identification card has been issued to,
25 or designated for, the officer by the Rail Safety Regulator.
26 26. Display and production of identification card
27 (1) In this section --
28 approved, in relation to a uniform or badge worn by a rail safety
29 officer, means a uniform or badge approved by the Rail Safety
30 Regulator.
page 24
Rail Safety Bill 2009
Administration Part 3
Rail safety officers Division 2
s. 27
1 (2) This section applies to a rail safety officer who is exercising, or
2 about to exercise, a function under this Act.
3 (3) A rail safety officer must --
4 (a) display his or her identification card if the officer is not
5 wearing an approved uniform or badge; or
6 (b) produce his or her identification card if requested to do
7 so by a person in relation to whom the officer is
8 exercising, or about to exercise, the function.
9 (4) If it is not practical for a rail safety officer to produce his or her
10 identification card on being requested to do so, the rail safety
11 officer must produce his or her identification card as soon as
12 practicable after the request is made.
13 27. Return of identification cards
14 A person who has ceased to be a rail safety officer must not,
15 without reasonable excuse, refuse or fail to return to the Rail
16 Safety Regulator, within such period as is specified by the Rail
17 Safety Regulator in a request for return of the card, any
18 identification card issued to the person by the Rail Safety
19 Regulator.
20 Penalty: a fine of $2 000.
page 25
Rail Safety Bill 2009
Part 4 Rail safety
Division 1 General safety duties
s. 28
1 Part 4 -- Rail safety
2 Division 1 -- General safety duties
3 28. Safety duties of rail transport operators
4 (1) A rail transport operator must ensure, so far as is reasonably
5 practicable, the safety of the operator's railway operations.
6 (2) An offence under subsection (1) is a crime.
7 Penalty:
8 (a) for an individual --
9 (i) for a first offence, a fine of $55 000;
10 (ii) for a second or subsequent offence, a fine of
11 $82 000;
12 (b) for a body corporate --
13 (i) for a first offence, a fine of $550 000;
14 (ii) for a second or subsequent offence, a fine of
15 $820 000.
16 (3) Without limiting subsection (1), a rail transport operator
17 contravenes that subsection if the operator fails to do any of the
18 following --
19 (a) develop and implement, so far as is reasonably
20 practicable, safe systems for the carrying out of the
21 operator's railway operations;
22 (b) ensure, so far as is reasonably practicable, that each rail
23 safety worker who is to perform rail safety work in
24 relation to the operator's railway operations --
25 (i) is of sufficient good health and fitness to carry
26 out that work safely; and
27 (ii) is competent to undertake that work;
28 (c) ensure, so far as is reasonably practicable, that rail
29 safety workers do not carry out rail safety work in
page 26
Rail Safety Bill 2009
Rail safety Part 4
General safety duties Division 1
s. 28
1 relation to the operator's railway operations, and are not
2 on duty --
3 (i) while there is present in his or her blood, alcohol
4 of, or greater than, the concentration prescribed;
5 or
6 (ii) while affected by a drug in a way which could
7 detrimentally affect the person's ability to
8 perform that work;
9 (d) ensure, so far as is reasonably practicable, that rail
10 safety workers who perform rail safety work in relation
11 to the operator's railway operations comply with the
12 operator's fatigue management programme in force
13 under section 76;
14 (e) provide, so far as is reasonably practicable, adequate
15 facilities for the safety of persons at any railway
16 premises under the control or management of the
17 operator;
18 (f) provide, so far as is reasonably practicable --
19 (i) such information and instruction to, and training
20 and supervision of, rail safety workers as is
21 necessary to enable those workers to perform rail
22 safety work in relation to the operator's railway
23 operations in a way that is safe; and
24 (ii) such information to rail transport operators and
25 other persons on railway premises under the
26 control or management of the operator as is
27 necessary to enable those persons to ensure their
28 safety.
29 (4) Without limiting subsection (1), a rail infrastructure manager
30 contravenes that subsection if the manager fails to do any of the
31 following --
32 (a) ensure, so far as is reasonably practicable, that any
33 design, construction, commissioning, use, installation,
34 modification, maintenance, repair or decommissioning
page 27
Rail Safety Bill 2009
Part 4 Rail safety
Division 1 General safety duties
s. 28
1 of the manager's rail infrastructure is done or carried out
2 in a way that ensures, so far as is reasonably practicable,
3 the safety of railway operations;
4 (b) establish, so far as is reasonably practicable, such
5 systems and procedures for the scheduling, control and
6 monitoring of railway operations that ensure, so far as is
7 reasonably practicable, the safety of the manager's
8 railway operations.
9 (5) Without limiting subsection (1), a rolling stock operator
10 contravenes that subsection if the rolling stock operator fails to
11 do any of the following --
12 (a) provide or maintain rolling stock that, so far as is
13 reasonably practicable, is safe;
14 (b) ensure, so far as is reasonably practicable, that any
15 design, construction, commissioning, use, modification,
16 maintenance, repair, cleaning or decommissioning of
17 rolling stock is done or carried out in a way that, so far
18 as is reasonably practicable, ensures safety;
19 (c) comply, so far as is reasonably practicable, with such
20 rules and procedures for the scheduling, control and
21 monitoring of rolling stock that have been established by
22 a rail infrastructure manager in relation to the use of the
23 manager's rail infrastructure by the rolling stock
24 operator;
25 (d) so far as is reasonably practicable, establish and
26 maintain equipment, procedures and systems to
27 minimise risks to the safety of the operator's railway
28 operations;
29 (e) make arrangements for ensuring, so far as is reasonably
30 practicable, safety in connection with the use, operation
31 and maintenance of the operator's rolling stock.
page 28
Rail Safety Bill 2009
Rail safety Part 4
General safety duties Division 1
s. 29
1 29. Duties of rail transport operators extend to contractors
2 (1) The duties of a rail transport operator under section 28 extend to
3 a person who, not being an employee employed to carry out
4 railway operations, undertakes railway operations on or in
5 relation to rail infrastructure or rolling stock of the operator, and
6 any employee of the person, in relation to matters over which
7 the operator has control or would have control if not for any
8 agreement purporting to limit or remove that control.
9 (2) A person to whom the duties under section 28 extend by reason
10 of subsection (1) must comply with those duties in respect of
11 railway operations referred to in that subsection undertaken by
12 the person.
13 Penalty:
14 (a) for an individual --
15 (i) for a first offence, a fine of $55 000;
16 (ii) for a second or subsequent offence, a fine of
17 $82 000;
18 (b) for a body corporate --
19 (i) for a first offence, a fine of $550 000;
20 (ii) for a second or subsequent offence, a fine of
21 $820 000.
22 30. Duties of designers, manufacturers, suppliers etc.
23 (1) A person who --
24 (a) designs, commissions, manufactures, supplies, installs
25 or erects any thing; and
26 (b) knows, or ought reasonably to know, that the thing is to
27 be used as or in connection with rail infrastructure or
28 rolling stock,
29 must --
30 (c) ensure, so far as is reasonably practicable, that the thing
31 is safe if it is used for a purpose for which it was
page 29
Rail Safety Bill 2009
Part 4 Rail safety
Division 1 General safety duties
s. 30
1 designed, commissioned, manufactured, supplied,
2 installed or erected; and
3 (d) carry out, or arrange the carrying out, of such testing and
4 examination of the thing as may be necessary for
5 compliance with this section; and
6 (e) take such action as is necessary to ensure, so far as is
7 reasonably practicable, that there will be available in
8 connection with the use of the thing adequate
9 information about --
10 (i) the use for which the thing was designed,
11 commissioned, manufactured, supplied, installed
12 or erected; and
13 (ii) the results of any testing or examination referred
14 to in paragraph (d); and
15 (iii) any conditions necessary to ensure, so far as is
16 reasonably practicable, the thing is safe if it is
17 used for a purpose for which it was designed,
18 commissioned, manufactured, supplied, installed
19 or erected.
20 (2) A person who decommissions any rail infrastructure or rolling
21 stock must --
22 (a) ensure, so far as is reasonably practicable, that the
23 decommissioning is carried out safely; and
24 (b) carry out, or arrange the carrying out of, such testing and
25 examination as may be necessary for compliance with
26 this section.
27 (3) An offence under subsection (1) or (2) is a crime.
28 Penalty:
29 (a) for an individual --
30 (i) for a first offence, a fine of $55 000;
31 (ii) for a second or subsequent offence, a fine of
32 $82 000;
page 30
Rail Safety Bill 2009
Rail safety Part 4
Accreditation Division 2
s. 31
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $550 000;
3 (ii) for a second or subsequent offence, a fine of
4 $820 000.
5 (4) For the purposes of subsection (1), if the person who supplies
6 the thing --
7 (a) carries on the business of financing the acquisition of
8 the thing by customers; and
9 (b) has, in the course of that business, acquired an interest in
10 the thing solely for the purpose of financing its
11 acquisition by a customer from a third person or its
12 provision to a customer by a third person; and
13 (c) has not taken possession of the thing or has taken
14 possession of it solely for the purpose of passing
15 possession to that customer,
16 the reference in subsection (1) to the person who supplies that
17 thing is instead taken to be a reference to the third person.
18 Division 2 -- Accreditation
19 31. Purpose of accreditation
20 The purpose of accreditation of a rail transport operator in
21 relation to railway operations is to attest that the rail transport
22 operator has demonstrated to the Rail Safety Regulator the
23 competence and capacity to manage risks to safety associated
24 with those railway operations.
25 32. Accreditation required for railway operations
26 (1) A person must not carry out, or cause or permit to be carried
27 out, any railway operations unless the person --
28 (a) is a rail transport operator who --
29 (i) is accredited under this Part in relation to those
30 operations; or
page 31
Rail Safety Bill 2009
Part 4 Rail safety
Division 2 Accreditation
s. 32
1 (ii) is exempt under this Act from compliance with
2 this section in relation to those operations;
3 or
4 (b) is carrying out those operations, or causing or permitting
5 those operations to be carried out, for or on behalf of --
6 (i) a rail transport operator who is accredited under
7 this Part in relation to those operations; or
8 (ii) a rail transport operator who is exempt under this
9 Act from compliance with this section in relation
10 to those operations;
11 or
12 (c) is exempt under this Act from compliance with this
13 section in relation to those operations.
14 Penalty:
15 (a) for an individual --
16 (i) for a first offence, a fine of $55 000;
17 (ii) for a second or subsequent offence, a fine of
18 $82 000;
19 (b) for a body corporate --
20 (i) for a first offence, a fine of $550 000;
21 (ii) for a second or subsequent offence, a fine of
22 $820 000.
23 (2) Subsection (1) does not apply to a rail safety worker, not being a
24 rail transport operator, carrying out rail safety work for or on
25 behalf of a rail transport operator who --
26 (a) is accredited under this Part; or
27 (b) is exempt under this Act from compliance with this
28 section in relation to that rail safety work.
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Rail Safety Bill 2009
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1 33. Purpose for which accreditation may be granted
2 (1) An accreditation may be granted to a rail transport operator for
3 any one or more of the following purposes --
4 (a) for the carrying out of railway operations for the part or
5 parts of a railway designated in the notice of
6 accreditation under section 38(1), or for a part or parts
7 having the scope or characteristics so designated;
8 (b) for any service or aspect, or part of a service or aspect,
9 of railway operations designated in the notice of
10 accreditation;
11 (c) for specified railway operations to permit any one or
12 more of the following --
13 (i) site preparation;
14 (ii) construction of rail infrastructure;
15 (iii) restoration or repair work;
16 (iv) testing of railway track or other infrastructure;
17 (v) other activities relating to railway operations
18 considered appropriate by the Rail Safety
19 Regulator and designated in the notice of
20 accreditation.
21 (2) If the applicant so requests, accreditation may be granted for a
22 specified period only.
23 34. Application for accreditation
24 (1) A rail transport operator may apply to the Rail Safety Regulator
25 for accreditation in respect of specified railway operations
26 carried out, or proposed to be carried out, by, or on behalf of,
27 that operator.
28 (2) An application must be made in the manner and form approved
29 by the Rail Safety Regulator and --
30 (a) must specify the scope and nature of the railway
31 operations in respect of which accreditation is sought;
32 and
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1 (b) must include a safety management plan relating to those
2 railway operations; and
3 (c) must specify whether or not the applicant is accredited,
4 or has applied for accreditation, under a corresponding
5 law; and
6 (d) must contain the prescribed information; and
7 (e) must be accompanied by the application fee, if any,
8 prescribed.
9 (3) The Rail Safety Regulator may require a rail transport operator
10 who has applied for accreditation --
11 (a) to supply further information requested by the Rail
12 Safety Regulator; and
13 (b) to verify by statutory declaration any information
14 supplied to the Rail Safety Regulator.
15 35. What applicant for accreditation must demonstrate
16 The Rail Safety Regulator must not grant accreditation to an
17 applicant unless satisfied, having regard to the guidelines
18 applicable to this section, that the applicant has demonstrated --
19 (a) that the applicant is or is to be a rail infrastructure
20 manager or rolling stock operator in relation to the
21 railway operations for which accreditation is sought; and
22 (b) that the applicant has the competence and capacity to
23 manage risks to safety associated with the railway
24 operations for which accreditation is sought; and
25 (c) that the applicant --
26 (i) has the competence and capacity to implement
27 the proposed safety management system; and
28 (ii) has the financial capacity, or has public risk
29 insurance arrangements, to meet reasonable
30 potential accident liabilities arising from the
31 railway operations;
32 and
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1 (d) that the applicant has met the consultation requirements
2 of this Act in relation to the applicant's safety
3 management system; and
4 (e) that the applicant has complied with the requirements
5 prescribed, if any, for the purposes of this section.
6 36. Rail Safety Regulator may direct applicants to coordinate
7 and cooperate in applications
8 (1) If the Rail Safety Regulator --
9 (a) receives applications from 2 or more rail transport
10 operators for accreditation; and
11 (b) believes that coordinated preparation of the applications
12 is necessary to ensure that the railway operations of the
13 applicants are carried out safely,
14 the Rail Safety Regulator may give a direction in writing to the
15 rail transport operators to coordinate their applications.
16 (2) A direction under this section may require each rail transport
17 operator that is the subject of the direction to provide to each
18 other rail transport operator that is the subject of the direction
19 information concerning any circumstances in relation to the
20 carrying out of railway operations by the first mentioned rail
21 transport operator that could constitute a risk to safety in
22 relation to the carrying out of rail operations by another rail
23 transport operator that is the subject of the direction.
24 (3) A rail transport operator that is given a direction under
25 subsection (1) must comply with the direction.
26 Penalty: a fine of $28 000.
27 (4) A rail transport operator that has coordinated the preparation of
28 an application in accordance with this section must include in
29 the application reference to information given by the rail
30 transport operator to each other rail transport operator, and
31 information given to the rail transport operator by each other
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1 rail transport operator, in accordance with a direction under this
2 section.
3 Penalty: a fine of $28 000.
4 37. Coordination between Rail Safety Regulators
5 (1) This section applies if the Rail Safety Regulator receives an
6 application for accreditation, or for variation of accreditation or
7 the conditions or restrictions of accreditation, that indicates that
8 the applicant is accredited, or is seeking accreditation, under a
9 corresponding law of one or more other jurisdictions, whether
10 or not contiguous with this jurisdiction.
11 (2) The Rail Safety Regulator must, as soon as possible and before
12 deciding whether or not to grant the application, consult with
13 the relevant corresponding Rail Safety Regulator, or Regulators,
14 in relation to the application with a view to the outcome of the
15 application being consistent with the outcome of applications
16 made in the other jurisdiction or jurisdictions.
17 (3) The Rail Safety Regulator, in complying with subsection (2),
18 must take into account any guidelines applicable to this section.
19 (4) If the Rail Safety Regulator does not, in relation to an
20 application, act consistently with the provisions of the
21 guidelines, the Rail Safety Regulator must give the applicant
22 reasons for not so acting.
23 38. Determination of application
24 (1) Subject to this section, the Rail Safety Regulator must give to
25 the applicant, within the relevant period --
26 (a) if the Rail Safety Regulator is satisfied as to the matters
27 referred to in section 35 and, if applicable, section 36,
28 notice in writing granting accreditation to the applicant
29 with or without any conditions or restrictions; or
30 (b) if the Rail Safety Regulator is not so satisfied, notice in
31 writing refusing the application.
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1 (2) A notice under subsection (1) granting an application must
2 specify --
3 (a) the prescribed details of the applicant; and
4 (b) the scope and nature of the railway operations, and the
5 manner in which they are to be carried out, in respect of
6 which the accreditation is granted; and
7 (c) any conditions and restrictions imposed by the Rail
8 Safety Regulator on the grant of accreditation; and
9 (d) any other prescribed information.
10 (3) A notice --
11 (a) under subsection (1) refusing an application, or
12 imposing a condition or restriction, must include --
13 (i) the reasons for the decision to refuse to grant the
14 application or impose the condition or restriction;
15 and
16 (ii) information about the right of review under
17 Part 7;
18 and
19 (b) under subsection (4)(c) extending a period, must include
20 information about the right of review under Part 7.
21 (4) In this section, the relevant period, in relation to an application,
22 is --
23 (a) 6 months after the application was received by the Rail
24 Safety Regulator; or
25 (b) if the Rail Safety Regulator requested further
26 information, 6 months, or such other period, as is agreed
27 between the Rail Safety Regulator and the applicant,
28 after the Rail Safety Regulator receives the last
29 information so requested; or
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1 (c) if the Rail Safety Regulator, by notice in writing given
2 to the applicant before the expiry of the relevant
3 6 months, specifies another period, that period,
4 whichever is the longer.
5 39. Prescribed conditions and restrictions
6 Accreditation granted to a person under this Part is subject to
7 any conditions or restrictions prescribed for the purposes of this
8 section and that are applicable to the grant of accreditation.
9 40. Penalty for breach of condition or restriction
10 An accredited person must not fail to comply with a condition
11 or restriction of accreditation applying under this Part.
12 Penalty:
13 (a) a fine of $55 000;
14 (b) for a second or subsequent offence, a fine of $82 000.
15 41. Annual fees
16 (1) Such annual fee as is prescribed must be paid by a rail transport
17 operator at the time of accreditation and in each subsequent year
18 on or before the anniversary of the person's accreditation for the
19 particular railway operation.
20 (2) The Rail Safety Regulator may accept payment of an annual
21 accreditation fee due and payable by an accredited person in
22 accordance with an agreement made with the person, whether
23 for payment by instalments or otherwise.
24 (3) If an accreditation is varied, such additional annual fee as is
25 prescribed in respect of the variation is to be paid.
26 (4) Different fees may be prescribed for different kinds of
27 accreditation and for different classes of rail transport operators.
28 (5) The regulations may prescribe various methods for the
29 calculation of various fees.
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1 42. Late payment fees
2 (1) The regulations may impose additional fees for late payment of
3 fees after the due date for payment.
4 (2) A fee for late payment of fees may be, but is not required to be,
5 calculated on a daily basis.
6 43. Rail Safety Accreditation Account
7 (1) The account called the "Rail Safety Accreditation Account" is a
8 continuation of the account established under the Rail Safety
9 Act 1998 section 23 and is as an agency special purpose account
10 under the Financial Management Act 2006 section 16.
11 (2) The account is to be credited with --
12 (a) all fees and charges collected under this Act; and
13 (b) any amount appropriated by Parliament to, or otherwise
14 lawfully received for, the account.
15 (3) The account is to be charged with the costs of administering
16 this Act.
17 44. Periodic returns
18 (1) An accredited person must, for each period prescribed, not later
19 than the relevant day for the accreditation, as determined in
20 accordance with the regulations, lodge with the Rail Safety
21 Regulator a return containing the information prescribed.
22 (2) If an accredited person fails to comply with subsection (1), the
23 Rail Safety Regulator may, by written notice given to the
24 accredited person, require him or her to do so and in that notice
25 is to advise the person of the effect of subsection (3).
26 (3) An accredited person must comply with a notice given to the
27 person under subsection (2) within 2 months after service of the
28 notice.
29 Penalty:
30 (a) for an individual --
31 (i) for a first offence, a fine of $28 000;
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1 (ii) for a second or subsequent offence, a fine of
2 $41 000;
3 (b) for a body corporate --
4 (i) for a first offence, a fine of $280 000;
5 (ii) for a second or subsequent offence, a fine of
6 $410 000.
7 45. Surrender of accreditation
8 An accredited person may, in accordance with the regulations,
9 surrender the person's accreditation.
10 46. Revocation or suspension of accreditation
11 (1) This section applies in respect of an accredited person if --
12 (a) the Rail Safety Regulator considers that the accredited
13 person --
14 (i) is no longer able to demonstrate to the
15 satisfaction of the Rail Safety Regulator the
16 matters referred to in section 35 or to satisfy the
17 conditions, or to comply with the restrictions, of
18 the accreditation; or
19 (ii) is not managing the rail infrastructure, or is not
20 operating rolling stock in relation to any rail
21 infrastructure, to which the accreditation relates
22 and has not done so for at least the preceding
23 12 months;
24 or
25 (b) the accredited person contravenes this Act.
26 (2) The Rail Safety Regulator --
27 (a) may suspend the accreditation, or part of the
28 accreditation, of the accredited person for a period
29 determined by the Rail Safety Regulator; or
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1 (b) may revoke the accreditation of the accredited person
2 wholly or in part, or in respect of particular railway
3 operations specified in the notice, with immediate effect
4 or with effect from a specified future date; or
5 (c) may impose conditions or restrictions on the
6 accreditation; or
7 (d) may vary conditions or restrictions to which the
8 accreditation is subject.
9 (3) If the Rail Safety Regulator revokes the accreditation, the Rail
10 Safety Regulator may declare that the accredited person is
11 disqualified from applying for accreditation, or for accreditation
12 in relation to specified railway operations, during a specified
13 period.
14 (4) The Rail Safety Regulator may withdraw a suspension of the
15 accreditation of a person by written notice given to the person.
16 (5) Before making a decision under subsection (2), the Rail Safety
17 Regulator --
18 (a) must notify the person in writing --
19 (i) that the Rail Safety Regulator is considering
20 making a decision under subsection (2) of the
21 kind, and for the reasons, specified in the notice;
22 and
23 (ii) that the person may, within 28 days or such
24 longer period as is specified in the notice, make
25 written representations to the Rail Safety
26 Regulator showing cause why the decision
27 should not be made;
28 and
29 (b) must consider any representations made under
30 paragraph (a)(ii) and not withdrawn.
31 (6) If the Rail Safety Regulator suspends or revokes the
32 accreditation of the accredited person wholly or in part, or in
33 respect of specified railway operations, the Rail Safety
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1 Regulator must include in the notice of suspension or revocation
2 the reasons for the suspension or revocation and information
3 about the right of review under Part 7.
4 (7) If the Rail Safety Regulator suspends or revokes the
5 accreditation of a person who is accredited in another
6 jurisdiction, the Rail Safety Regulator must give notice of the
7 suspension or revocation to the relevant corresponding Rail
8 Safety Regulator.
9 47. Immediate suspension of accreditation
10 (1) If the Rail Safety Regulator considers that there is, or would be,
11 an immediate and serious risk to safety unless an accreditation
12 is suspended immediately, the Rail Safety Regulator may,
13 without complying with section 46(5) or (6), by written notice
14 given to the accredited person, immediately suspend the
15 accreditation of the person --
16 (a) wholly or in part, or in respect of particular railway
17 operations specified in the notice; and
18 (b) for a specified period, not exceeding 6 weeks.
19 (2) The Rail Safety Regulator may, by notice in writing given to a
20 person whose accreditation is suspended wholly or in part or in
21 respect of specified railway operations --
22 (a) reduce the period of suspension specified in a notice
23 under subsection (1); or
24 (b) extend the period of suspension specified in a notice
25 under subsection (1) but not so that the suspension
26 continues for more than 6 weeks after the date of the
27 notice under that subsection.
28 (3) The Rail Safety Regulator may withdraw a suspension of the
29 accreditation of a person by written notice given to the person.
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1 (4) Before making a decision under subsection (2)(b) to extend a
2 period of suspension, the Rail Safety Regulator --
3 (a) must notify the person in writing --
4 (i) that the Rail Safety Regulator is considering
5 extending the period of suspension for the
6 reasons specified in the notification; and
7 (ii) that the person may, within 7 days or such longer
8 period as is specified in the notification, make
9 written representations to the Rail Safety
10 Regulator showing cause why the suspension
11 should not be extended;
12 and
13 (b) must consider any representations made under
14 paragraph (a)(ii) and not withdrawn.
15 (5) If the Rail Safety Regulator extends the suspension of the
16 person, the Rail Safety Regulator must include in the notice
17 extending the suspension the reasons for the extension and
18 information about the right of review under Part 7.
19 48. Keeping and making available documents for public
20 inspection
21 A rail transport operator must ensure that --
22 (a) if the operator is an accredited person or has an
23 exemption under this Part, the current notice of
24 accreditation or an exemption under this Part; and
25 (b) if the operator is a rail infrastructure manager of a
26 private siding registered with the Rail Safety Regulator,
27 the notice of registration; and
28 (c) any other document prescribed for the purposes of this
29 section,
30 are available for inspection --
31 (d) if the operator is a body corporate, at the operator's
32 registered office during ordinary business hours; or
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s. 49
1 (e) if the operator is not a body corporate, at the operator's
2 principal place of business or, if the Rail Safety
3 Regulator approves another place and time, at that place
4 and time.
5 Penalty: a fine of $2 000.
6 49. Application for variation of accreditation
7 (1) An accredited person may apply to the Rail Safety Regulator, in
8 the manner and form approved by the Rail Safety Regulator, for
9 a variation of the accreditation.
10 (2) An application for variation --
11 (a) must specify the details of the variation being sought;
12 and
13 (b) must contain the prescribed information.
14 (3) The Rail Safety Regulator may require an accredited person
15 who has applied for a variation --
16 (a) to supply further information requested by the Rail
17 Safety Regulator; and
18 (b) to verify by statutory declaration any information
19 supplied to the Rail Safety Regulator.
20 50. Application that relates to cooperative railway operations or
21 operations in another jurisdiction
22 Sections 36 and 37 apply to an application for variation as if a
23 reference in those sections to accreditation were a reference to
24 variation of accreditation.
25 51. Determination of application for variation
26 (1) Subject to this section, the Rail Safety Regulator must, within
27 the relevant period, give to the applicant --
28 (a) if the Rail Safety Regulator is satisfied as to the matters
29 referred to in sections 35 and 36 so far as they are
30 applicable to the proposed variation, notice in writing
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1 varying the accreditation, with or without any conditions
2 or restrictions; or
3 (b) if the Rail Safety Regulator is not so satisfied, notice in
4 writing refusing the application.
5 (2) A notice under subsection (1) varying an accreditation must
6 specify --
7 (a) the prescribed details of the applicant; and
8 (b) the variation to the accreditation so far as it applies to
9 the scope and nature of the railway operations, or the
10 manner in which they are to be carried out; and
11 (c) any conditions and restrictions imposed by the Rail
12 Safety Regulator on the accreditation as varied; and
13 (d) any other prescribed information.
14 (3) A notice --
15 (a) under subsection (1) refusing an application, or
16 imposing a condition or restriction, must include --
17 (i) the reasons for the decision to refuse to grant the
18 application for variation or imposing the
19 condition or restriction; and
20 (ii) information about the right of review under
21 Part 7;
22 (b) under subsection (4)(c) extending a period, must include
23 information about the right of review under Part 7.
24 (4) In this section, the relevant period, in relation to an application,
25 is --
26 (a) 6 months after the application was received by the Rail
27 Safety Regulator; or
28 (b) if the Rail Safety Regulator requested further
29 information, 6 months, or such other period, as is agreed
30 between the Rail Safety Regulator and the applicant,
31 after the Rail Safety Regulator receives the last
32 information so requested; or
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1 (c) if the Rail Safety Regulator, by notice in writing given
2 to the applicant before the expiry of the relevant
3 6 months, specifies another period, that period,
4 whichever is the longer.
5 52. Prescribed conditions and restrictions
6 The accreditation of a person that is varied under this Part is
7 subject to any conditions or restrictions prescribed under
8 section 39 that are applicable to the accreditation as varied.
9 53. Rail Safety Regulator may direct amendment of a safety
10 management system
11 (1) The Rail Safety Regulator may direct a rail transport operator,
12 by notice in writing, to amend the operator's safety management
13 system within a specified period, being not less than 28 days
14 after the giving of the direction.
15 (2) A direction under subsection (1) must state the reasons why the
16 Rail Safety Regulator considers it is necessary for the rail
17 transport operator to amend the safety management system.
18 (3) The rail transport operator must not, without reasonable excuse,
19 fail to comply with a direction under subsection (1).
20 Penalty:
21 (a) for an individual, a fine of $55 000;
22 (b) for a body corporate, a fine of $550 000.
23 54. Variation of conditions and restrictions
24 (1) An accredited person may apply to the Rail Safety Regulator for
25 a variation of any condition or restriction to which the
26 accreditation is subject and that was imposed by the Rail Safety
27 Regulator.
28 (2) An application for variation of a condition or restriction must be
29 made as if it were an application for variation of accreditation
30 and section 49 applies accordingly.
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1 (3) The Rail Safety Regulator must consider the application and, if
2 satisfied as to the matters referred to in sections 35 and 36 so far
3 as they are applicable to the proposed variation, may, by notice
4 given to the accredited person and in accordance with the
5 provisions of this Part so far as they are applicable, grant or
6 refuse to grant the variation.
7 (4) A notice under subsection (3) refusing to grant a variation of a
8 condition or restriction must include the reasons for the decision
9 to refuse to grant the variation and information about the right
10 of review under Part 7.
11 55. Rail Safety Regulator may make changes to conditions or
12 restrictions
13 (1) The Rail Safety Regulator may, subject to this section, at any
14 time and in the discretion of the Rail Safety Regulator, vary or
15 revoke a condition or restriction imposed by the Rail Safety
16 Regulator to which the accreditation of an accredited person is
17 subject or impose a new condition or restriction.
18 (2) Before taking action under this section, the Rail Safety
19 Regulator must --
20 (a) give the accredited person written notice of the action
21 that the Rail Safety Regulator proposes to take; and
22 (b) allow the accredited person to make written
23 representations about the intended action within 14 days
24 or any other period that the Rail Safety Regulator and
25 the accredited rail operator agree upon; and
26 (c) consider any representations made under paragraph (b)
27 and not withdrawn.
28 (3) Subsection (2) does not apply if the Rail Safety Regulator
29 considers it necessary to take immediate action in the interests
30 of safety.
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1 (4) The Rail Safety Regulator must --
2 (a) give, in writing, to the accredited person --
3 (i) details of any action taken under subsection (1);
4 and
5 (ii) a statement of reasons for any action taken under
6 subsection (1);
7 and
8 (b) notify, in writing, the accredited person that the person
9 has a right of review of the decision under Part 7.
10 56. Accreditation cannot be transferred or assigned
11 (1) An accreditation --
12 (a) is personal to the person who holds it; and
13 (b) is not capable of being transferred or assigned to any
14 other person or otherwise dealt with by the person who
15 holds it; and
16 (c) does not vest by operation of law in any other person.
17 (2) A purported transfer or assignment of an accreditation or any
18 other purported dealing with an accreditation by the person who
19 holds it is of no effect.
20 (3) This section has effect despite anything in any Act or rule of
21 law to the contrary.
22 57. Sale or transfer of railway operations by accredited person
23 (1) If an accredited person proposes to sell or otherwise transfer any
24 railway operations for which the person is accredited, the Rail
25 Safety Regulator may, on an application for accreditation under
26 this Part being made by the proposed transferee, waive
27 compliance by the proposed transferee with any one or more of
28 the requirements of this Division.
29 (2) The Rail Safety Regulator is not to waive compliance with any
30 such requirements unless the proposed transferee demonstrates,
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1 to the satisfaction of the Rail Safety Regulator, that the
2 proposed transferee has the competence and capacity to comply
3 with the relevant requirements of this Division that apply to
4 applicants for accreditation of the appropriate kind.
5 (3) A waiver of compliance with requirements may be given subject
6 to such conditions and restrictions, if any, as appear to the Rail
7 Safety Regulator to be necessary.
8 Division 3 -- Private sidings
9 58. Exemption from accreditation
10 (1) A rail infrastructure manager of a private siding --
11 (a) is not required to be accredited under this Part in respect
12 of railway operations carried out in the private siding;
13 and
14 (b) except to the extent that the regulations or a condition
15 referred to in subsection (2) otherwise provides, is not
16 required to comply with Division 4, 5 or 6 in relation to
17 the private siding.
18 (2) Despite subsection (1), if the rail infrastructure manager wishes
19 the private siding to be, or to continue to be, connected with, or
20 to have access to, a railway or siding of an accredited person,
21 the rail infrastructure manager must --
22 (a) register the private siding with the Rail Safety Regulator
23 and pay the prescribed annual fee, if any; and
24 (b) comply with conditions imposed by the Rail Safety
25 Regulator from time to time or prescribed by the
26 regulations with respect to the safe construction,
27 maintenance and operation of the private siding; and
28 (c) comply with the provisions of section 63 in relation to
29 the management of the interface with the railway of the
30 accredited person; and
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1 (d) notify the accredited person in writing of any railway
2 operations affecting or relating to the safety of the
3 railway or siding of the accredited person.
4 Penalty:
5 (a) for an individual --
6 (i) for a first offence, a fine of $28 000;
7 (ii) for a second or subsequent offence, a fine of
8 $41 000;
9 (b) for a body corporate --
10 (i) for a first offence, a fine of $280 000;
11 (ii) for a second or subsequent offence, a fine of
12 $410 000.
13 (3) Conditions and regulations referred to in subsection (2) may
14 establish requirements that are the same as, or similar to, any
15 provisions of Division 4, 5 or 6.
16 (4) The Rail Safety Regulator must issue a notice of registration to
17 a rail infrastructure manager who registers a private siding with
18 the Rail Safety Regulator.
19 (5) If the regulations so prescribe, the Rail Safety Regulator must
20 make prescribed particulars of a registration under
21 subsection (2) available for public inspection at the Rail Safety
22 Regulator's office or a prescribed place, during ordinary
23 business hours.
24 Division 4 -- Safety management
25 59. Safety management system
26 (1) A rail transport operator must have a safety management system
27 for railway operations, other than railway operations in respect
28 of which the operator is not required to be accredited, carried
29 out on or in relation to the rail transport operator's rail
30 infrastructure or rolling stock that --
31 (a) is in a form approved by the Rail Safety Regulator; and
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1 (b) complies with the relevant prescribed requirements and
2 the prescribed risk management principles, methods and
3 procedures; and
4 (c) identifies and assesses any risks to safety that have
5 arisen or may arise from the carrying out of railway
6 operations on or in relation to the rail transport
7 operator's rail infrastructure or rolling stock; and
8 (d) specifies the controls, including audits, expertise,
9 resources and staff, that are to be used by the rail
10 transport operator to manage risks to safety and to
11 monitor safety in relation to those railway operations;
12 and
13 (e) includes procedures for monitoring, reviewing and
14 revising the adequacy of those controls; and
15 (f) includes --
16 (i) measures to manage risks to safety identified
17 under section 63, 64 or 65; and
18 (ii) a security management plan in accordance with
19 section 71; and
20 (iii) an emergency management plan in accordance
21 with section 72; and
22 (iv) a health and fitness management programme in
23 accordance with section 73; and
24 (v) an alcohol and drug management programme in
25 accordance with section 74; and
26 (vi) a fatigue management programme in accordance
27 with section 76.
28 Penalty:
29 (a) for an individual --
30 (i) for a first offence, a fine of $55 000;
31 (ii) for a second or subsequent offence, a fine of
32 $82 000;
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1 (b) for a body corporate --
2 (i) for a first offence, a fine of $550 000;
3 (ii) for a second or subsequent offence, a fine of
4 $820 000.
5 (2) A rail transport operator, before establishing a safety
6 management system in relation to railway operations in respect
7 of which the operator is required to be accredited or reviewing
8 or varying any such safety management system, must consult,
9 so far as is reasonably practicable, with --
10 (a) persons likely to be affected by the safety management
11 system or its review or variation, being persons who
12 carry out those railway operations or work on or at the
13 rail transport operator's railway premises or with the rail
14 transport operator's rolling stock; and
15 (b) a safety and health representative as defined in the
16 Occupational Safety and Health Act 1984 section 3(1)
17 representing any of the persons referred to in
18 paragraph (a); and
19 (c) any union representing any of the persons referred to in
20 paragraph (a); and
21 (d) any other rail transport operator with whom the first
22 mentioned operator has an interface agreement under
23 section 63 relating to risks to safety of railway
24 operations carried out by or on behalf of either of them;
25 and
26 (e) the public, as appropriate.
27 (3) If the safety management system of a rail transport operator and
28 the safety management system of another rail transport operator
29 who has an agreement referred to in subsection (2)(d) with the
30 first mentioned rail transport operator, when taken as one
31 system, comply with this Act, both safety management systems
32 are taken to comply with this Act.
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Safety management Division 4
s. 60
1 (4) A safety management system must be evidenced in writing
2 and --
3 (a) must identify each person responsible for preparing any
4 part of the safety management system; and
5 (b) must identify the person, or class of persons, responsible
6 for implementing the system.
7 60. Compliance with safety management system
8 (1) A rail transport operator must implement the rail transport
9 operator's safety management system.
10 Penalty:
11 (a) for an individual --
12 (i) for a first offence, a fine of $55 000;
13 (ii) for a second or subsequent offence, a fine of
14 $82 000;
15 (b) for a body corporate --
16 (i) for a first offence, a fine of $550 000;
17 (ii) for a second or subsequent offence, a fine of
18 $820 000.
19 (2) A rail transport operator must not, without reasonable excuse,
20 fail to comply with the rail transport operator's safety
21 management system for the rail transport operator's railway
22 operations.
23 Penalty:
24 (a) for an individual --
25 (i) for a first offence, a fine of $55 000;
26 (ii) for a second or subsequent offence, a fine of
27 $82 000;
28 (b) for a body corporate --
29 (i) for a first offence, a fine of $550 000;
30 (ii) for a second or subsequent offence, a fine of
31 $820 000.
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Division 4 Safety management
s. 61
1 (3) It is a reasonable excuse if the rail transport operator --
2 (a) complies with the safety management system to the
3 extent practicable while complying with a condition or
4 restriction of accreditation; or
5 (b) demonstrates that compliance with the system in
6 particular circumstances would have increased the
7 likelihood of a notifiable occurrence happening.
8 (4) Subsection (3) does not limit the excuses that may be reasonable
9 excuses.
10 61. Review of safety management system
11 A rail transport operator must review the rail transport
12 operator's safety management system in accordance with the
13 regulations at such times or within such periods as are
14 prescribed or, if no times or periods are prescribed, at least once
15 each year or at such other time as is agreed between the rail
16 transport operator and the Rail Safety Regulator.
17 Penalty:
18 (a) for an individual --
19 (i) for a first offence, a fine of $28 000;
20 (ii) for a second or subsequent offence, a fine of
21 $41 000;
22 (b) for a body corporate --
23 (i) for a first offence, a fine of $280 000;
24 (ii) for a second or subsequent offence, a fine of
25 $410 000.
26 62. Safety performance reports
27 (1) In this section --
28 reporting period means a calendar year or such other period as
29 is agreed from time to time by the Rail Safety Regulator and the
30 rail transport operator.
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Safety management Division 4
s. 62
1 (2) A rail transport operator must give the Rail Safety Regulator a
2 safety performance report in respect of each reporting period
3 that --
4 (a) is in a form approved by the Rail Safety Regulator; and
5 (b) complies with the requirements, if any, prescribed for
6 the purposes of this section; and
7 (c) contains --
8 (i) a description and assessment of the safety
9 performance of the rail transport operator's
10 railway operations; and
11 (ii) comments on any deficiencies in, and any
12 irregularities in, the railway operations that may
13 be relevant to the safety of the railway; and
14 (iii) a description of any safety initiatives in relation
15 to the railway operations undertaken during the
16 reporting period or proposed to be undertaken in
17 the next reporting period; and
18 (iv) any other information or performance indicators
19 prescribed for the purpose of this section.
20 (3) A rail transport operator must submit a report in accordance
21 with this section within 6 months after the end of each reporting
22 period.
23 Penalty:
24 (a) for an individual --
25 (i) for a first offence, a fine of $28 000;
26 (ii) for a second or subsequent offence, a fine of
27 $41 000;
28 (b) for a body corporate --
29 (i) for a first offence, a fine of $280 000;
30 (ii) for a second or subsequent offence, a fine of
31 $410 000.
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Part 4 Rail safety
Division 4 Safety management
s. 63
1 63. Interface coordination -- rail transport operators
2 (1) A rail transport operator --
3 (a) must identify and assess, so far as is reasonably
4 practicable, risks to safety that may arise from railway
5 operations carried out by or on behalf of the operator
6 because of, or partly because of, railway operations
7 carried out by or on behalf of any other rail transport
8 operator; and
9 (b) must determine measures to manage, so far as is
10 reasonably practicable, those risks; and
11 (c) must, for the purpose of managing those risks, seek to
12 enter into an interface agreement with the other rail
13 transport operator or rail transport operators.
14 (2) Except to the extent that the regulations otherwise provide,
15 subsection (1)(c) does not apply if none of the rail transport
16 operators is a rail infrastructure manager.
17 64. Interface coordination -- rail infrastructure manager --
18 public roads
19 A rail infrastructure manager --
20 (a) must identify and assess, so far as is reasonably
21 practicable, risks to safety that may arise from railway
22 operations carried out on or in relation to the manager's
23 rail infrastructure and that may so arise because of, or
24 partly because of --
25 (i) the existence of road infrastructure of a
26 prescribed public road; and
27 (ii) the existence or use of any rail or road crossing
28 that is part of the road infrastructure of any
29 public road;
30 and
31 (b) must determine measures to manage, so far as is
32 reasonably practicable, those risks; and
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Safety management Division 4
s. 65
1 (c) must, for the purpose of managing those risks, seek to
2 enter into an interface agreement with the road manager
3 in relation to that road.
4 65. Interface coordination -- rail infrastructure manager --
5 roads other than public roads
6 A rail infrastructure manager --
7 (a) must identify and assess, so far as is reasonably
8 practicable, risks to safety that may arise from railway
9 operations carried out on or in relation to the manager's
10 rail infrastructure and that may so arise because of, or
11 partly because of, the existence or use of any rail or road
12 crossing that is part of the road infrastructure of any
13 road, other than a public road; and
14 (b) must consider whether it is necessary to manage those
15 risks in conjunction with the road manager in relation to
16 that road and --
17 (i) if the rail infrastructure manager is of the opinion
18 that it is necessary that those risks be managed in
19 conjunction with the road manager, must give
20 written notice of that opinion to the road
21 manager and must determine measures to
22 manage, so far as is reasonably practicable, those
23 risks; or
24 (ii) if the rail infrastructure manager is of the opinion
25 that the management of those risks does not need
26 to be carried out in conjunction with the road
27 manager, must keep a written record of that
28 opinion;
29 and
30 (c) unless paragraph (b)(ii) applies, must, for the purpose of
31 managing those risks, seek to enter into an interface
32 agreement with the road manager in relation to that road.
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Part 4 Rail safety
Division 4 Safety management
s. 66
1 66. Interface coordination -- road manager -- public roads and
2 other roads
3 (1) The road manager in relation to a public road --
4 (a) must identify and assess, so far as is reasonably
5 practicable, risks to safety that may arise from the
6 existence or use of any rail or road crossing that is part
7 of the road infrastructure of that public road because of,
8 or partly because of, railway operations carried out on or
9 in relation to any rail infrastructure; and
10 (b) must determine measures to manage, so far as is
11 reasonably practicable, those risks; and
12 (c) must, for the purpose of managing those risks, seek to
13 enter into an interface agreement with the rail
14 infrastructure manager of the rail infrastructure.
15 (2) If, under section 65(b), a rail infrastructure manager gives a
16 written notice to a road manager in relation to a road that is not
17 a public road of an opinion that certain risks need to be
18 managed in conjunction with the road manager, the road
19 manager --
20 (a) must identify and assess, so far as is reasonably
21 practicable, risks to safety that may arise from the
22 existence or use of any rail or road crossing that is part
23 of the road infrastructure of the road because of, or
24 partly because of, railway operations; and
25 (b) must determine measures to manage, so far as is
26 reasonably practicable, those risks; and
27 (c) must, for the purpose of managing those risks, seek to
28 enter into an interface agreement with the rail
29 infrastructure manager.
30 (3) Nothing in this section authorises or requires a road manager to
31 act inconsistently with, or without regard to, the functions,
32 obligations or powers conferred on it under an Act other than
33 this Act.
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Rail safety Part 4
Safety management Division 4
s. 67
1 67. Identification and assessment of risks
2 A rail transport operator, rail infrastructure manager or road
3 manager which is required under section 63, 64, 65 or 66 to
4 identify and assess risks to safety that may arise from operations
5 carried out by another person may do so --
6 (a) by itself identifying and assessing those risks; or
7 (b) by identifying and assessing those risks jointly with the
8 other person; or
9 (c) by adopting the identification and assessment of those
10 risks carried out by the other person.
11 68. Scope of interface agreements
12 An interface agreement under this Division --
13 (a) may be entered into by 2 or more rail transport operators
14 or by one or more rail transport operators and one or
15 more road managers; and
16 (b) may include measures to manage any number of risks to
17 safety that may arise because of, or partly because of,
18 any railway operations; and
19 (c) may include measures to manage any number of risks to
20 safety that may arise from any railway operations
21 because of, or partly because of, the existence or use of
22 any road infrastructure; and
23 (d) may make provision for or in relation to any matter by
24 applying, adopting or incorporating any matter
25 contained in any document; and
26 (e) may consist of 2 or more documents.
27 69. Rail Safety Regulator may give directions
28 (1) This section applies if the Rail Safety Regulator is satisfied that
29 a rail transport operator, rail infrastructure manager or road
30 manager referred to in section 63, 64, 65 or 66 --
31 (a) is unreasonably refusing or failing to enter into an
32 interface agreement with another person as required
33 under this Division; or
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Part 4 Rail safety
Division 4 Safety management
s. 69
1 (b) is unreasonably delaying the negotiation of such an
2 agreement.
3 (2) The Rail Safety Regulator may issue a written notice to the rail
4 transport operator, the rail infrastructure manager or the road
5 manager, as the case requires, and the other person that --
6 (a) warns of the Rail Safety Regulator's powers under this
7 section, including the power to issue a direction under
8 subsection (4) at any time after a specified date; and
9 (b) includes a copy of this section; and
10 (c) may contain suggested terms for inclusion in an
11 interface agreement.
12 (3) If the Rail Safety Regulator issues a notice under subsection (2)
13 to a rail transport operator, rail infrastructure manager or road
14 manager, the Rail Safety Regulator may, in writing, request the
15 manager to provide such information as the Rail Safety
16 Regulator reasonably requires for the purposes of making a
17 direction under subsection (4).
18 (4) If a notice is issued under subsection (2) and an interface
19 agreement has not been entered into by or on the date specified
20 in the notice, the Rail Safety Regulator --
21 (a) may determine the arrangements that are to apply in
22 relation to the management of risks to safety referred to
23 in section 63, 64, 65 or 66, as the case requires; and
24 (b) may direct either or both persons to whom the notice is
25 issued to give effect to those arrangements; and
26 (c) must specify by when a direction must be complied
27 with.
28 (5) A direction under subsection (4) --
29 (a) must be in writing; and
30 (b) must set out any arrangements determined by the Rail
31 Safety Regulator under that subsection.
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Safety management Division 4
s. 70
1 (6) A person to whom a direction under subsection (4) is given
2 must comply with the direction.
3 Penalty:
4 (a) for an individual --
5 (i) for a first offence, a fine of $14 000;
6 (ii) for a second or subsequent offence, a fine of
7 $21 000;
8 (b) for a body corporate --
9 (i) for a first offence, a fine of $550 000;
10 (ii) for a second or subsequent offence, a fine of
11 $820 000.
12 70. Register of interface agreements
13 (1) A rail transport operator must maintain a register of --
14 (a) interface agreements to which it is a party; and
15 (b) arrangements determined by the Rail Safety Regulator
16 under section 69,
17 that are applicable to its railway operations.
18 (2) A road manager must maintain a register of --
19 (a) interface agreements to which it is a party; and
20 (b) arrangements determined by the Rail Safety Regulator
21 under section 69,
22 that are applicable to any road in relation to which it is the road
23 manager.
24 Penalty:
25 (a) for an individual, a fine of $2 000;
26 (b) for a body corporate, a fine of $20 000.
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Part 4 Rail safety
Division 4 Safety management
s. 71
1 71. Security management plan
2 A rail transport operator --
3 (a) must have a security management plan for railway
4 operations carried out by or on behalf of the operator on
5 or in relation to the operator's rail infrastructure or
6 rolling stock that --
7 (i) incorporates measures to protect people from
8 theft, assault, sabotage, terrorism and other
9 criminal acts of other parties and from other
10 harm; and
11 (ii) complies with this Act;
12 and
13 (b) must ensure that the security management plan is
14 implemented; and
15 (c) must ensure that the appropriate response measures of
16 the security management plan are implemented without
17 delay if an incident of a kind referred to in paragraph (a)
18 occurs.
19 Penalty:
20 (a) for an individual --
21 (i) for a first offence, a fine of $55 000;
22 (ii) for a second or subsequent offence, a fine of
23 $82 000;
24 (b) for a body corporate --
25 (i) for a first offence, a fine of $550 000;
26 (ii) for a second or subsequent offence, a fine of
27 $820 000.
28 72. Emergency management plan
29 (1) A rail transport operator must have an emergency management
30 plan for railway operations carried out by or on behalf of the
31 operator on or in relation to the operator's railway operations
32 that complies with subsection (2).
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Safety management Division 4
s. 72
1 Penalty:
2 (a) for an individual --
3 (i) for a first offence, a fine of $55 000;
4 (ii) for a second or subsequent offence, a fine of
5 $82 000;
6 (b) for a body corporate --
7 (i) for a first offence, a fine of $550 000;
8 (ii) for a second or subsequent offence, a fine of
9 $820 000.
10 (2) The emergency management plan must --
11 (a) address and include the matters that are prescribed; and
12 (b) be prepared --
13 (i) in conjunction with emergency services and any
14 other person who is prescribed; and
15 (ii) in accordance with the regulations;
16 and
17 (c) be kept and maintained in accordance with the
18 regulations; and
19 (d) be provided to the emergency services and any other
20 person who is prescribed; and
21 (e) be tested in accordance with the regulations.
22 (3) A rail transport operator must ensure that the appropriate
23 response measures of the emergency management plan are
24 implemented if an emergency occurs.
25 Penalty:
26 (a) for an individual --
27 (i) for a first offence, a fine of $55 000;
28 (ii) for a second or subsequent offence, a fine of
29 $82 000;
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Division 4 Safety management
s. 73
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $550 000;
3 (ii) for a second or subsequent offence, a fine of
4 $820 000.
5 73. Health and fitness management programme
6 A rail transport operator must have and implement a health and
7 fitness programme for rail safety workers who carry out rail
8 safety work on or in relation to the rail transport operator's rail
9 infrastructure or rolling stock that complies with the prescribed
10 requirements relating to health and fitness programmes.
11 Penalty:
12 (a) for an individual --
13 (i) for a first offence, a fine of $55 000;
14 (ii) for a second or subsequent offence, a fine of
15 $82 000;
16 (b) for a body corporate --
17 (i) for a first offence, a fine of $550 000;
18 (ii) for a second or subsequent offence, a fine of
19 $820 000.
20 74. Alcohol and drug management programme
21 A rail transport operator must prepare and implement an alcohol
22 and drug management programme for rail safety workers who
23 carry out railway operations in relation to the rail transport
24 operator's rail infrastructure or rolling stock that complies with
25 this Act.
26 Penalty:
27 (a) for an individual --
28 (i) for a first offence, a fine of $55 000;
29 (ii) for a second or subsequent offence, a fine of
30 $82 000;
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Safety management Division 4
s. 75
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $550 000;
3 (ii) for a second or subsequent offence, a fine of
4 $820 000.
5 75. Testing for presence of alcohol or drugs
6 The Rail Safety Regulator may arrange with a rail transport
7 operator or a person undertaking railway operations on or in
8 relation to the rail transport operator's rail infrastructure or
9 rolling stock for the testing for the presence of alcohol or any
10 other drug, in accordance with the regulations, of any person on
11 duty for the purpose of carrying out rail safety work.
12 76. Fatigue management programme
13 A rail transport operator must prepare and implement a
14 programme, in accordance with the prescribed requirements, for
15 the management of fatigue of rail safety workers who carry out
16 railway operations in relation to the rail transport operator's rail
17 infrastructure or rolling stock.
18 Penalty:
19 (a) for an individual --
20 (i) for a first offence, a fine of $55 000;
21 (ii) for a second or subsequent offence, a fine of
22 $82 000;
23 (b) for a body corporate --
24 (i) for a first offence, a fine of $550 000;
25 (ii) for a second or subsequent offence, a fine of
26 $820 000.
27 77. Assessment of competence
28 (1) A rail transport operator must ensure that each rail safety
29 worker who is to carry out rail safety work in relation to the rail
30 transport operator's rail infrastructure or rolling stock has the
31 competence to carry out that work.
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Division 4 Safety management
s. 77
1 Penalty:
2 (a) for an individual --
3 (i) for a first offence, a fine of $28 000;
4 (ii) for a second or subsequent offence, a fine of
5 $41 000;
6 (b) for a body corporate --
7 (i) for a first offence, a fine of $280 000;
8 (ii) for a second or subsequent offence, a fine of
9 $410 000.
10 (2) For the purposes of subsection (1), the competence of a rail
11 safety worker to carry out rail safety work must be assessed --
12 (a) by reference to any qualification or any units of
13 competence recognised under the regulations applicable
14 to the rail safety work to be carried out; and
15 (b) by reference to the knowledge and skills of the rail
16 safety worker that would enable the worker to carry out
17 the rail safety work safely.
18 (3) A certificate purporting to have been issued to a rail safety
19 worker certifying that the worker has any qualification or units
20 of competence recognised under subsection (2)(a) is evidence
21 that the worker has those qualifications or units of competence.
22 (4) Nothing in this section prevents a rail transport operator from
23 requiring a rail safety worker to undertake further training
24 before carrying out rail safety work.
25 (5) A rail transport operator must maintain records in accordance
26 with the regulations of the competence of rail safety workers
27 who carry out rail safety work on or in relation to the rail
28 transport operator's rail infrastructure or rolling stock.
29 Penalty:
30 (a) for an individual --
31 (i) for a first offence, a fine of $14 000;
32 (ii) for a second or subsequent offence, a fine of
33 $21 000;
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Safety management Division 4
s. 78
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $140 000;
3 (ii) for a second or subsequent offence, a fine of
4 $210 000.
5 78. Identification for rail safety workers
6 (1) A rail transport operator must ensure that each rail safety
7 worker who is to carry out rail safety work in relation to the rail
8 transport operator's railway operations has a form of
9 identification that is sufficient to enable the type of competence
10 and training of the rail safety worker for that rail safety work to
11 be checked by a rail safety officer.
12 Penalty:
13 (a) for an individual, a fine of $2 000;
14 (b) for a body corporate, a fine of $20 000.
15 (2) A rail safety worker who is carrying out rail safety work must,
16 when requested by a rail safety officer to do so, produce the
17 identification provided in accordance with subsection (1) to the
18 rail safety officer.
19 Penalty: a fine of $2 000.
20 79. Duties of rail safety workers
21 (1) A rail safety worker, when carrying out rail safety work must --
22 (a) take reasonable care for his or her own safety; and
23 (b) take reasonable care for the safety of persons who may
24 be affected by the rail safety worker's acts or omissions;
25 and
26 (c) cooperate with the rail transport operator with respect to
27 any action taken by the rail transport operator to comply
28 with a requirement imposed under this Act.
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Division 4 Safety management
s. 80
1 (2) A rail safety worker, when carrying out rail safety work, must
2 not intentionally or recklessly interfere with or misuse anything
3 provided to the worker by the rail transport operator --
4 (a) in the interests of safety; or
5 (b) under this Act.
6 (3) A rail safety worker, when carrying out rail safety work, must
7 not wilfully or recklessly place the safety of another person on
8 or in the immediate vicinity of rail infrastructure at risk.
9 (4) An offence under subsection (1), (2) or (3) is a crime.
10 Penalty:
11 (a) for a first offence, a fine of $100 000;
12 (b) for a second or subsequent offence, a fine of
13 $125 000.
14 (5) For the purposes of subsection (1)(a) or (b), in determining
15 whether a rail safety worker failed to take reasonable care,
16 regard must be had to what the rail safety worker knew about
17 the relevant circumstances.
18 80. Contractors to comply with safety management system
19 A person, not being an employee employed to carry out railway
20 operations, who undertakes railway operations on or in relation
21 to rail infrastructure or rolling stock of a rail transport operator
22 must comply with the safety management system of the rail
23 transport operator to the extent that it applies to those railway
24 operations.
25 Penalty:
26 (a) for an individual --
27 (i) for a first offence, a fine of $100 000;
28 (ii) for a second or subsequent offence, a fine of
29 $125 000;
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Information about rail safety Division 5
s. 81
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $200 000;
3 (ii) for a second or subsequent offence, a fine of
4 $250 000.
5 Division 5 -- Information about rail safety
6 81. Rail transport operators to provide information
7 (1) The Rail Safety Regulator may, by notice in writing given to a
8 rail transport operator, require the operator to provide to the Rail
9 Safety Regulator on or before a specified date and in a manner
10 and form approved by the Rail Safety Regulator, any or all of
11 the following --
12 (a) information concerning measures taken by the rail
13 transport operator to promote rail safety;
14 (b) information concerning matters, including matters
15 relating to the financial capacity or insurance
16 arrangements of the rail transport operator, relating to
17 rail safety or the accreditation of the rail transport
18 operator that the Rail Safety Regulator reasonably
19 requires;
20 (c) information prescribed for the purposes of this
21 subsection.
22 (2) The rail transport operator must comply with a notice given to
23 the operator under subsection (1).
24 Penalty:
25 (a) for an individual --
26 (i) for a first offence, a fine of $28 000;
27 (ii) for a second or subsequent offence, a fine of
28 $41 000;
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Part 4 Rail safety
Division 6 Investigating and reporting by rail transport operators
s. 82
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $280 000;
3 (ii) for a second or subsequent offence, a fine of
4 $410 000.
5 (3) A rail transport operator must provide to the Rail Safety
6 Regulator, in a manner and form approved by the Rail Safety
7 Regulator and at the prescribed times and in respect of the
8 prescribed periods, information prescribed for the purposes of
9 this subsection relating to rail safety or accreditation.
10 Penalty:
11 (a) for an individual --
12 (i) for a first offence, a fine of $28 000;
13 (ii) for a second or subsequent offence, a fine of
14 $41 000;
15 (b) for a body corporate --
16 (i) for a first offence, a fine of $280 000;
17 (ii) for a second or subsequent offence, a fine of
18 $410 000.
19 Division 6 -- Investigating and reporting by rail
20 transport operators
21 82. Notification of certain occurrences
22 (1) A rail transport operator must report to the Rail Safety
23 Regulator or another authority specified by the Rail Safety
24 Regulator within the time, and in the manner, prescribed, all
25 notifiable occurrences that happen on, or in relation to, the rail
26 transport operator's railway premises or railway operations.
27 Penalty:
28 (a) for a first offence, a fine of $55 000;
29 (b) for a second or subsequent offence, a fine of $82 000.
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Investigating and reporting by rail transport operators Division 6
s. 83
1 (2) Two or more rail transport operators may make a joint report
2 with respect to a notifiable occurrence affecting them.
3 (3) In addition to the matters specified in subsection (1), the Rail
4 Safety Regulator may, by notice in writing, require a rail
5 transport operator to report to the Rail Safety Regulator or
6 another authority specified by the Rail Safety Regulator, any
7 other occurrence or type of occurrence which endangers or
8 could endanger the safe operation of any railway operations.
9 (4) The Rail Safety Regulator may require information in a report
10 under this section to be verified by statutory declaration.
11 (5) A rail transport operator to whom a requirement under
12 subsection (3) applies must comply with the requirement.
13 Penalty:
14 (a) for an individual --
15 (i) for a first offence, a fine of $28 000;
16 (ii) for a second or subsequent offence, a fine of
17 $41 000;
18 (b) for a body corporate --
19 (i) for a first offence, a fine of $280 000;
20 (ii) for a second or subsequent offence, a fine of
21 $410 000.
22 83. Investigation of notifiable occurrences
23 (1) The Rail Safety Regulator may, by written notice to a rail
24 transport operator, require the rail transport operator to
25 investigate notifiable occurrences, or any other occurrences, that
26 have endangered or that may endanger the safe operation of the
27 railway operations carried out by the rail transport operator.
28 (2) The level of investigation must be determined by the severity
29 and potential consequences of the notifiable occurrence as well
30 as by other similar occurrences and its focus should be to
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Division 7 Audit by Rail Safety Regulator
s. 84
1 determine the cause and contributing factors, rather than to
2 apportion blame.
3 (3) The rail transport operator must ensure that the investigation is
4 conducted in a manner approved by the Rail Safety Regulator
5 and within the period specified by the Rail Safety Regulator.
6 Penalty:
7 (a) for a first offence, a fine of $28 000;
8 (b) for a second or subsequent offence, a fine of $41 000.
9 (4) A rail transport operator who has carried out an investigation
10 under this section must report to the Rail Safety Regulator on
11 the investigation within the period specified by the Rail Safety
12 Regulator.
13 Penalty:
14 (a) for a first offence, a fine of $28 000;
15 (b) for a second or subsequent offence, a fine of $41 000.
16 Division 7 -- Audit by Rail Safety Regulator
17 84. Audit of railway operations of rail transport operators
18 (1) In this section --
19 rail transport operator includes a person, not being an
20 employee employed to carry out railway operations, who
21 undertakes railway operations on or in relation to rail
22 infrastructure or rolling stock of a rail transport operator.
23 (2) The Rail Safety Regulator --
24 (a) may audit the railway operations of a rail transport
25 operator; and
26 (b) may prepare and implement a programme (an audit
27 programme) for each year for inspecting the railway
28 operations of rail transport operators; and
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Rail Safety Bill 2009
Rail safety Part 4
Audit by Rail Safety Regulator Division 7
s. 84
1 (c) may, for the purposes of an audit, inspect the railway
2 operations of a rail transport operator whether or not
3 under an audit programme.
4 (3) Without limiting subsection (2)(b), an audit programme may
5 focus on one or more of the following --
6 (a) particular rail transport operators;
7 (b) particular criteria relating to rail transport operators;
8 (c) particular aspects of rail safety;
9 (d) particular aspects of railway operations.
10 (4) The Rail Safety Regulator must give not less than 24 hours
11 notice in writing to a rail transport operator before inspecting
12 the operator's railway operations under this section.
13 (5) The regulations may establish procedures for the conduct of
14 audits under this section, including procedures to ensure the
15 confidentiality of records.
page 73
Rail Safety Bill 2009
Part 5 Enforcement
Division 1 Entry to places by rail safety officers
s. 85
1 Part 5 -- Enforcement
2 Division 1 -- Entry to places by rail safety officers
3 85. Power to enter places
4 (1) In this section --
5 compliance and investigative purposes includes purposes --
6 (a) related to ascertaining whether a rail safety law has been
7 or is being complied with, including whether an offence
8 has been committed against a rail safety law; or
9 (b) related to ascertaining whether the terms of, or a
10 condition or restriction of, an accreditation has been or
11 is being complied with.
12 (2) A rail safety officer may, for compliance and investigative
13 purposes or in an emergency, enter a place if --
14 (a) the place is a public place and the entry is made when
15 the place is open to the public; or
16 (b) the occupier of the place consents to the entry; or
17 (c) the entry to the place is authorised by a warrant under
18 section 94; or
19 (d) the place is railway premises and the entry is made when
20 the place is --
21 (i) open for carrying on activities by reason of
22 which the place is railway premises; or
23 (ii) otherwise open for entry; or
24 (iii) not open as mentioned in subparagraph (i) or (ii)
25 but the entry is urgently required to investigate
26 the circumstances of a notifiable occurrence at
27 any time during which railway operations are
28 being carried out or are usually carried out.
29 (3) A rail safety officer who enters railway premises under
30 subsection (2)(d) must not unnecessarily impede any activities
31 being conducted at the premises.
page 74
Rail Safety Bill 2009
Enforcement Part 5
General enforcement powers Division 2
s. 86
1 86. Limitation on entry powers: places used for residential
2 purposes
3 Despite anything to the contrary in this Part, the powers of a rail
4 safety officer under this Part in relation to entering a place are
5 not exercisable in respect of any place that is used only for
6 residential purposes except --
7 (a) with the consent of the occupier of the place; or
8 (b) under the authority conferred by a warrant under
9 section 94.
10 87. Notice of entry
11 Before a rail safety officer enters railway premises, not being a
12 public place, under section 85, the rail safety officer must give
13 the occupier of the railway premises reasonable notice of the
14 intention to enter unless --
15 (a) the giving of the notice would be reasonably likely to
16 defeat the purpose for which it is intended to enter the
17 premises; or
18 (b) entry to the premises is made with the consent of the
19 occupier of the premises; or
20 (c) entry is required in circumstances where the rail safety
21 officer reasonably believes there is an immediate risk to
22 safety because of the carrying out of railway operations
23 at the premises; or
24 (d) entry is authorised by a warrant under section 94.
25 Division 2 -- General enforcement powers
26 88. General powers after entering a place
27 (1) A rail safety officer who enters a place under this Part, may do
28 any of the following --
29 (a) search and inspect any part of the place and any rail
30 infrastructure, rolling stock or road vehicle or any other
31 thing at the place;
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Rail Safety Bill 2009
Part 5 Enforcement
Division 2 General enforcement powers
s. 88
1 (b) enter or open, using reasonable force, rail infrastructure,
2 rolling stock, a road vehicle or other thing at the place to
3 examine the structure, rolling stock, road vehicle or
4 other thing;
5 (c) take measurements, make surveys and take levels and,
6 for those purposes, dig trenches, break up the soil and
7 set up any posts, stakes or markers;
8 (d) test any part of rail infrastructure or rolling stock for the
9 purpose of identifying quality or faults;
10 (e) inspect, film, photograph, videotape or otherwise record
11 an image of --
12 (i) rail infrastructure or rolling stock, or a road
13 vehicle or other thing, at the place;
14 (ii) a document at the place or in rolling stock or a
15 road vehicle at the place;
16 (f) take, or authorise another person to take, for analysis a
17 thing, or a sample of or from the thing, at the place;
18 (g) seize anything that the rail safety officer suspects on
19 reasonable grounds is connected with an offence against
20 this Act or to secure any such thing against interference;
21 (h) mark, tag or otherwise identify rolling stock, a road
22 vehicle or other thing at the place;
23 (i) take a copy of the whole or any part of a document at
24 the place or in rolling stock or a road vehicle at the
25 place;
26 (j) take all necessary steps to allow a power under
27 paragraphs (a) to (i) to be exercised.
28 (2) A film, photograph, videotape or image taken under
29 subsection (1)(e) of rail infrastructure, or of any part of rail
30 infrastructure, is not inadmissible as evidence by reason only of
31 the fact that it includes the likeness of one or more persons if the
32 capturing of that likeness does not appear to have been the main
33 reason for the taking of the film, photograph, videotape or
34 image.
page 76
Rail Safety Bill 2009
Enforcement Part 5
General enforcement powers Division 2
s. 89
1 89. Use of assistants and equipment
2 (1) A rail safety officer may exercise powers under this Part with
3 the aid of such assistants and equipment as the officer considers
4 reasonably necessary in the circumstances.
5 (2) Powers that may be exercised by a rail safety officer under this
6 Part may be exercised by an assistant authorised and supervised
7 by the officer, but only if the officer considers that it is
8 reasonably necessary in the circumstances that the powers be
9 exercised by an assistant.
10 90. Use of electronic equipment
11 (1) Without limiting section 88, if --
12 (a) a thing found in or on rolling stock or a road vehicle, or
13 at a place, is, or includes, a disk, tape or other device for
14 the storage of information; and
15 (b) the equipment in or on the rolling stock or road vehicle,
16 or at the place, may be used with the disk, tape or other
17 device,
18 the rail safety officer may operate the equipment to access the
19 information.
20 (2) A rail safety officer must not operate or seize equipment for the
21 purpose mentioned in this section unless the officer believes on
22 reasonable grounds that the operation or seizure of the
23 equipment can be carried out without damage to the equipment.
24 91. Use of equipment to examine or process things
25 (1) Without limiting section 89, a rail safety officer exercising a
26 power under this Part may bring to, onto, or into, rolling stock, a
27 road vehicle or a place any equipment reasonably necessary for
28 the examination or processing of things found at, on or in the
29 rolling stock, road vehicle or place in order to determine
30 whether they are things that may be seized.
page 77
Rail Safety Bill 2009
Part 5 Enforcement
Division 2 General enforcement powers
s. 92
1 (2) The rail safety officer may operate equipment already in or on
2 the rolling stock or road vehicle, or at the place, to carry out the
3 examination or processing of a thing found in or on the rolling
4 stock or road vehicle, or at the place in order to determine
5 whether it is a thing that may be seized, if the officer believes
6 on reasonable grounds that --
7 (a) the equipment is suitable for the examination or the
8 processing; and
9 (b) the examination or processing can be carried out without
10 damage to the equipment.
11 92. Securing a site
12 (1) For the purpose of protecting evidence that might be relevant
13 for compliance or investigative purposes, a rail safety officer
14 may secure the perimeter of any site at a place by whatever
15 means the rail safety officer considers appropriate.
16 (2) A person must not, without the permission of a rail safety
17 officer, enter or remain at a site the perimeter of which is
18 secured under this section.
19 Penalty: a fine of $28 000.
20 (3) Subsection (2) does not apply if the person enters the site or
21 remains at the site --
22 (a) to ensure the safety of persons; or
23 (b) to remove deceased persons or animals from the site; or
24 (c) to move a road vehicle, or the wreckage of a road
25 vehicle, to a safe place; or
26 (d) to protect the environment from significant damage or
27 pollution.
28 (4) A rail safety officer must not unreasonably withhold a
29 permission referred to in subsection (2).
page 78
Rail Safety Bill 2009
Enforcement Part 5
Search warrants Division 3
s. 93
1 Division 3 -- Search warrants
2 93. Search warrant
3 (1) A rail safety officer may apply to a justice for the issue of a
4 search warrant in relation to particular railway premises or
5 residential premises if the rail safety officer believes on
6 reasonable grounds that there is, or may be within the next
7 72 hours, in, or on, railway premises or residential premises a
8 thing or things of a kind that may be evidence of the
9 commission of an offence against a rail safety law.
10 (2) An application for a search warrant must --
11 (a) be in writing; and
12 (b) set out the grounds for seeking the warrant; and
13 (c) the offence suspected; and
14 (d) the railway premises or residential premises to be
15 searched; and
16 (e) a description of the thing for which the search is to be
17 made.
18 (3) A justice to whom an application is made under this section is to
19 refuse it if --
20 (a) the application does not comply with the requirements
21 of this Act; or
22 (b) when required to do so by the justice, the rail safety
23 officer does not give to the justice more information
24 about the application.
25 (4) The information in an application or given to a justice under this
26 section must be verified before the justice on oath or affirmation
27 or by affidavit, and the justice may for that purpose administer
28 an oath or affirmation or take an affidavit.
29 94. Issue of search warrant
30 (1) If a justice is satisfied that there are reasonable grounds for
31 suspecting that there is, or may be within the next 72 hours, in,
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Rail Safety Bill 2009
Part 5 Enforcement
Division 3 Search warrants
s. 95
1 or on, the railway premises or residential premises evidence of
2 the commission of an offence against a rail safety law, the
3 justice may issue a search warrant authorising a rail safety
4 officer named in the warrant and any assistants the rail safety
5 officer considers necessary --
6 (a) to enter the railway premises or residential premises
7 named or described in the warrant; and
8 (b) to search for and seize any thing named or described in
9 the warrant.
10 (2) In addition to any other requirement, a search warrant issued
11 under this section must state --
12 (a) the offence suspected; and
13 (b) the railway premises or residential premises to be
14 searched; and
15 (c) a description of the thing for which the search is to be
16 made; and
17 (d) any conditions to which the warrant is subject; and
18 (e) whether entry is authorised to be made at any time or
19 during stated hours; and
20 (f) a day, not later than 7 days after the issue of the warrant,
21 on which the warrant ceases to have effect.
22 (3) A justice who issues a warrant is to cause a record to be made of
23 particulars of the grounds that the justice has relied on to justify
24 the issue of the warrant.
25 95. Execution of warrant
26 (1) If asked to do so by an occupier, or a person in charge, of
27 premises, the person executing a warrant at those premises is to
28 produce it for inspection.
29 (2) A warrant ceases to have effect --
30 (a) on the day stated in the warrant as the day on which it
31 ceases to have effect; or
page 80
Rail Safety Bill 2009
Enforcement Part 5
Powers to support seizure Division 4
s. 96
1 (b) if it is withdrawn by the justice who issued it; or
2 (c) when it is executed,
3 whichever occurs first.
4 96. Seizure of things not mentioned in the warrant
5 A search warrant authorises the rail safety officer executing the
6 warrant, in addition to the seizure of any thing of the kind
7 described in the warrant, to seize any thing which is not of the
8 kind described in the warrant if --
9 (a) the rail safety officer believes, on reasonable grounds,
10 that the thing --
11 (i) is of a kind which could have been included in a
12 warrant issued under this Division; or
13 (ii) will afford evidence about the commission of an
14 offence against a rail safety law;
15 and
16 (b) in the case of seizure, the rail safety officer believes, on
17 reasonable grounds, that it is necessary to seize that
18 thing in order to prevent its concealment, loss or
19 destruction or its use in the commission of an offence
20 against a rail safety law.
21 Division 4 -- Powers to support seizure
22 97. Directions relating to seizure
23 (1) In this section --
24 in control, in relation to a thing, means having, or reasonably
25 appearing to a rail safety officer as having, authority to exercise
26 control over the thing.
27 (2) To enable a thing to be seized under this Part, a rail safety
28 officer may direct the person in control of it --
29 (a) to take it to a specified place within a specified time;
30 and
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Rail Safety Bill 2009
Part 5 Enforcement
Division 4 Powers to support seizure
s. 98
1 (b) if necessary, to remain in control of it at the specified
2 place for a period specified in the direction.
3 (3) A direction under subsection (2) --
4 (a) must be given by signed notice in writing given to the
5 person; or
6 (b) if for any reason it is not practicable to give a signed
7 notice in writing to the person, may be given orally and
8 confirmed by signed notice in writing given to the
9 person as soon as is practicable.
10 (4) A further direction may be made under this section about the
11 thing if it is necessary and reasonable to make the further
12 direction.
13 (5) A person given a direction under subsection (2) or (4) must
14 comply with that direction unless the person has a reasonable
15 excuse.
16 Penalty: a fine of $28 000.
17 (6) Without limiting what may otherwise be a reasonable excuse
18 under subsection (5), it is a reasonable excuse for a person in
19 control of a thing not to comply with a direction under
20 subsection (2) or (4) if, in all the circumstances, the direction
21 was unreasonable.
22 98. Rail safety officer may direct a thing's return
23 (1) If a rail safety officer has directed a person to take a thing to a
24 specified place within a specified time under section 97(2), a
25 rail safety officer may direct the person to return the thing to the
26 place from which it was taken.
27 (2) A person given a direction under subsection (1) must comply
28 with that direction unless the person has a reasonable excuse.
29 Penalty:
30 (a) for an individual, a fine of $28 000;
31 (b) for a body corporate, a fine of $280 000.
page 82
Rail Safety Bill 2009
Enforcement Part 5
Powers to support seizure Division 4
s. 99
1 99. Receipt for seized things
2 (1) After a rail safety officer seizes a thing under this Part, the
3 officer must give a receipt for it to the person from whom the
4 thing was seized or the owner of the thing.
5 (2) Despite subsection (1), if for any reason it is not practicable to
6 comply with that subsection, the officer must leave the receipt at
7 the place of seizure in a conspicuous position and in a
8 reasonably secure way.
9 (3) The receipt must describe generally the thing seized and its
10 condition.
11 (4) This section does not apply if it would be impracticable or
12 unreasonable to expect the officer to account for the thing, given
13 its condition, nature and value.
14 100. Access to seized thing
15 (1) Until a seized thing is forfeited or returned, a rail safety officer
16 must allow its owner to inspect it and, if it is a document, to
17 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.
20 101. Embargo notices
21 (1) This section applies if --
22 (a) a rail safety officer is authorised to seize any record,
23 device or other thing under this Part; and
24 (b) the record, device or other thing cannot, or cannot
25 readily, be physically seized and removed.
26 (2) A rail safety officer may issue an embargo notice under this
27 section.
28 (3) An embargo notice is a notice forbidding the use, movement,
29 sale, leasing, transfer, deletion of information from or other
30 dealing with the record, device or other thing, or any part of it,
page 83
Rail Safety Bill 2009
Part 5 Enforcement
Division 4 Powers to support seizure
s. 101
1 without the written consent of a rail safety officer or the Rail
2 Safety Regulator.
3 (4) The embargo notice must --
4 (a) contain the particulars required by the regulations; and
5 (b) list the activities that it forbids; and
6 (c) set out a copy of subsection (9).
7 (5) On issuing an embargo notice, a rail safety officer must --
8 (a) cause a copy of the notice to be served on the owner of
9 the record, device or other thing; or
10 (b) if that person cannot be located after all reasonable steps
11 have been taken to do so, affix a copy of the notice to
12 the record, device or other thing in a prominent position.
13 (6) A person must not knowingly do anything that is forbidden by
14 an embargo notice.
15 Penalty: a fine of $28 000.
16 (7) A person must not instruct or request another person to do
17 anything that the first mentioned person knows is forbidden by
18 an embargo notice.
19 Penalty: a fine of $28 000.
20 (8) It is a defence to a prosecution for an offence against
21 subsection (6) to establish that the person charged --
22 (a) moved the record, device or other thing, or part of it, for
23 the purpose of protecting or preserving it; and
24 (b) notified the rail safety officer who issued the embargo
25 notice of the move, and of the new location of the
26 record, device or other thing or part of it, within
27 48 hours after the move.
28 (9) A person on whom an embargo notice has been served must
29 take reasonable steps to prevent another person from doing
30 anything forbidden by the embargo notice.
31 Penalty: a fine of $28 000.
page 84
Rail Safety Bill 2009
Enforcement Part 5
Forfeiture Division 5
s. 102
1 (10) Despite anything to the contrary in any other Act or at law, a
2 sale, lease, transfer or other dealing with a record, device or
3 other thing, or part of it, in contravention of this section is void.
4 Division 5 -- Forfeiture
5 102. Return of seized things
6 (1) As soon as possible after a rail safety officer seizes any thing,
7 including a document, under this Part, the rail safety officer
8 must return the thing to the owner unless --
9 (a) the rail safety officer considers it necessary to retain the
10 thing because it may afford evidence in proceedings,
11 that have been or may be commenced, for an offence
12 against this Act; or
13 (b) the thing is forfeited to the Crown under section 103; or
14 (c) the rail safety officer is otherwise authorised by law or
15 an order of a court to retain, destroy or dispose of the
16 thing.
17 (2) The thing may be returned either unconditionally or on such
18 terms and conditions as the rail safety officer considers
19 appropriate to eliminate or reduce any risks to safety.
20 (3) If the rail safety officer imposes terms or conditions on the
21 return of a thing, the owner must comply with each of those
22 terms and conditions.
23 Penalty: a fine of $28 000.
24 103. Forfeiture
25 (1) In this section --
26 owner, in relation to a sample or a thing taken for analysis,
27 includes the person in charge of the thing or place from which
28 the sample or thing was taken.
29 (2) A sample or thing taken for analysis or a thing seized under this
30 Part is forfeited to the Crown if the rail safety officer who took,
page 85
Rail Safety Bill 2009
Part 5 Enforcement
Division 5 Forfeiture
s. 104
1 or arranged the taking of, the sample or thing or who seized the
2 thing --
3 (a) after making reasonable efforts, cannot return it to its
4 owner; or
5 (b) after making reasonable inquiries, cannot find its owner;
6 or
7 (c) considers it necessary to retain the sample or thing to
8 prevent the commission of an offence against this Act.
9 (3) For purposes of subsection (2), the officer is not required to --
10 (a) make efforts if it would be unreasonable to make efforts
11 to return the sample or thing to its owner; or
12 (b) make inquiries if it would be unreasonable to make
13 inquiries to find the owner.
14 (4) In deciding whether --
15 (a) it is reasonable to make efforts or inquiries; and
16 (b) if efforts or inquiries are made, what efforts or inquiries,
17 including the period over which they are made, are
18 reasonable,
19 regard must be had to the sample's or thing's condition, nature
20 and value.
21 104. Dealing with forfeited sample or thing
22 (1) On forfeiture of a sample or thing to the Crown, the sample or
23 thing becomes the Crown's property and may be dealt with by
24 the Rail Safety Regulator in any way the Rail Safety Regulator
25 considers is appropriate.
26 (2) Without limiting subsection (1), the Rail Safety Regulator may
27 destroy or dispose of the sample or thing.
28 (3) If a thing is forfeited to the Crown under section 103(2)(c), the
29 rail safety officer must notify the owner in writing accordingly,
30 setting out how the owner may seek review under Part 7 of the
page 86
Rail Safety Bill 2009
Enforcement Part 5
Directions Division 6
s. 105
1 decision to forfeit the thing, unless the rail safety officer cannot
2 find the owner despite making reasonable enquiries.
3 105. Forfeiture on conviction
4 (1) If a court finds a person guilty of an offence against this Act, the
5 court may order forfeiture to the Crown of any thing used or
6 otherwise involved in the commission of the offence.
7 (2) A thing ordered by a court to be forfeited under this section
8 becomes the property of the Crown and may be sold or
9 otherwise dealt with in accordance with the directions of the
10 Rail Safety Regulator.
11 (3) Until the Rail Safety Regulator gives a direction, the thing must
12 be kept in such custody as the Regulator directs.
13 Division 6 -- Directions
14 106. Rail safety officers may direct certain persons to give
15 assistance
16 (1) In this section --
17 reasonable assistance includes the following --
18 (a) assistance to enable the rail safety officer to find and
19 gain access to material and information stored
20 electronically;
21 (b) unloading rolling stock;
22 (c) running the engine of a locomotive;
23 (d) driving a train;
24 (e) giving the rail safety officer assistance to enter any rail
25 infrastructure or any part of rail infrastructure or open
26 rolling stock or any part of rolling stock.
27 (2) A rail safety officer may direct a rail transport operator or a rail
28 safety worker to give the rail safety officer reasonable assistance
29 to enable the officer to exercise a power under this Part.
page 87
Rail Safety Bill 2009
Part 5 Enforcement
Division 6 Directions
s. 107
1 (3) When giving a direction to a person under subsection (2), the
2 rail safety officer must warn the person that it is an offence to
3 fail to comply with the direction unless the person has a
4 reasonable excuse.
5 (4) A person given a direction under subsection (2) must comply
6 with the direction unless the person has a reasonable excuse.
7 Penalty: a fine of $28 000.
8 107. Power to direct name and address be given
9 (1) A rail safety officer may direct a person to state the person's
10 name and residential or business address if the officer --
11 (a) finds the person committing an offence against a rail
12 safety law; or
13 (b) finds the person in circumstances that lead, or has
14 information that leads, the officer reasonably to suspect
15 the person has committed an offence against a rail safety
16 law; or
17 (c) finds the person at railway premises and --
18 (i) reasonably believes the person is carrying out
19 railway operations for a rail transport operator;
20 and
21 (ii) reasonably considers that it is necessary for the
22 purposes of this Act to know the person's name
23 and residential or business address.
24 (2) When giving a direction under subsection (1), the officer must
25 warn the person it is an offence to fail to state the person's name
26 or address unless the person has a reasonable excuse.
27 (3) The officer may also direct the person to give evidence of the
28 correctness of the stated name or required address if the officer
29 reasonably suspects the stated name or address is false.
page 88
Rail Safety Bill 2009
Enforcement Part 5
Directions Division 6
s. 108
1 108. Failure to give name or address
2 A person given a direction under section 107(1) or (3) must
3 comply with the direction, unless the person has a reasonable
4 excuse.
5 Penalty: a fine of $2 000.
6 109. Power to direct production of documents
7 (1) A rail safety officer may direct a person to make available for
8 inspection by the officer, or produce to the officer for
9 inspection, at a specified time and place --
10 (a) a document that is required to be kept by the person
11 under a rail safety law; or
12 (b) a document that is prepared by the person under a rail
13 safety law for the management of rail infrastructure or
14 the operation of rolling stock that the officer reasonably
15 believes is necessary for the officer to consider to
16 understand or verify a document that is required to be
17 kept under a rail safety law; or
18 (c) a document held by, or under the control of, the person
19 relating to the carrying out of railway operations.
20 (2) When giving a direction under subsection (1), the rail safety
21 officer must warn the person it is an offence to fail to comply
22 with the direction, unless the person has a reasonable excuse.
23 (3) The rail safety officer may keep the document to copy it but
24 must return the document to the person after copying it.
25 110. Failure to produce document
26 A person given a direction to make available, or produce, for
27 inspection a document under section 109 must comply with the
28 direction, unless the person has a reasonable excuse.
29 Penalty:
30 (a) for an individual, a fine of $28 000;
31 (b) for a body corporate, a fine of $280 000.
page 89
Rail Safety Bill 2009
Part 5 Enforcement
Division 7 Improvement notices
s. 111
1 Division 7 -- Improvement notices
2 111. Improvement notices
3 (1) A rail safety officer may serve an improvement notice on a
4 person if the officer believes on reasonable grounds that the
5 person --
6 (a) is contravening a provision of a rail safety law; or
7 (b) has contravened a provision of a rail safety law and it is
8 likely that the contravention will continue or be
9 repeated; or
10 (c) is carrying out or has carried out railway operations that
11 threaten safety.
12 (2) The rail safety officer may serve on a person an improvement
13 notice requiring the person, within the period specified in the
14 notice --
15 (a) to undertake remedial rail safety work or do any other
16 thing to remedy the contravention or likely
17 contravention, or the matters or activities occasioning
18 the contravention or likely contravention; or
19 (b) to carry out railway operations so that safety is not
20 threatened or likely to be threatened.
21 (3) The period within which a person is required by the
22 improvement notice to comply with the notice must be at least
23 7 days after service of the notice.
24 (4) An improvement notice must --
25 (a) state the reasons for the service of the notice; and
26 (b) in the case of an improvement notice served in respect
27 of a contravention or likely contravention of a rail safety
28 law, specify the provision of the rail safety law in
29 respect of which that belief is held; and
30 (c) in the case of an improvement notice served on a person
31 who is carrying out or has carried out railway operations
page 90
Rail Safety Bill 2009
Enforcement Part 5
Improvement notices Division 7
s. 111
1 that threaten safety, specify the operations in respect of
2 which that belief is held; and
3 (d) include information about the right to a review under
4 Part 7 of the decision to serve the notice; and
5 (e) set out the penalty for contravening the notice; and
6 (f) include a statement of the effect of section 114
7 (proceedings for offences not affected by improvement
8 notices); and
9 (g) state that it is served under this section.
10 (5) An improvement notice served on a person on a ground stated in
11 subsection (1)(a) or (b) --
12 (a) may specify a method by which the alleged
13 contravention or likely contravention, or the matters or
14 activities occasioning the alleged contravention or likely
15 contravention are to be remedied; and
16 (b) may offer the person on whom the notice has been
17 served a choice of ways by which an alleged
18 contravention or likely contravention, or the matters or
19 activities occasioning the alleged contravention or likely
20 contravention may be remedied; and
21 (c) may specify that a person provide the Rail Safety
22 Regulator with a programme of rail safety work that the
23 person proposes to carry out to remedy the alleged
24 contravention or likely contravention, or the matters or
25 activities occasioning the alleged contravention or likely
26 contravention.
27 (6) An improvement notice served on a person on the ground stated
28 in subsection (1)(c) --
29 (a) may specify a method by which railway operations may
30 be carried out so that safety is not threatened or likely to
31 be threatened; and
page 91
Rail Safety Bill 2009
Part 5 Enforcement
Division 7 Improvement notices
s. 112
1 (b) may offer the person on whom the notice has been
2 served a choice of ways by which railway operations
3 may be carried out so that safety is not threatened or
4 likely to be threatened; and
5 (c) may specify that the person provide the Rail Safety
6 Regulator with a programme of railway operations that
7 the person proposes to carry out to remedy the threat or
8 likely threat to the safety.
9 (7) A programme referred to in subsection (5)(c) or (6)(c) may
10 include a timetable for the completion of the programme of rail
11 safety work.
12 112. Contravention of improvement notice
13 (1) A person on whom an improvement notice has been served
14 must comply with the notice unless the person has a reasonable
15 excuse.
16 Penalty:
17 (a) for an individual --
18 (i) for a first offence, a fine of $28 000;
19 (ii) for a second or subsequent offence, a fine of
20 $41 000;
21 (b) for a body corporate --
22 (i) for a first offence, a fine of $280 000;
23 (ii) for a second or subsequent offence, a fine of
24 $410 000.
25 (2) In proceedings against a person for an offence of engaging in
26 conduct that results in a contravention of a requirement of an
27 improvement notice served on a ground stated in
28 section 111(1)(a) or (b), it is a defence if the person charged
29 establishes that --
30 (a) the alleged contravention or likely contravention; or
page 92
Rail Safety Bill 2009
Enforcement Part 5
Improvement notices Division 7
s. 113
1 (b) the matters or activities occasioning the alleged
2 contravention or likely contravention,
3 were remedied within the period specified in the notice, though
4 by a method different from that specified in the improvement
5 notice.
6 (3) In proceedings for an offence against a person of engaging in
7 conduct that results in a contravention of a requirement of an
8 improvement notice on the ground stated in section 111(1)(c), it
9 is a defence if the person charged establishes that the threat to
10 safety was removed within the period specified in the notice,
11 though by a method different from that specified in the
12 improvement notice.
13 113. Withdrawal or amendment of improvement notices
14 (1) An improvement notice served by a rail safety officer --
15 (a) may be withdrawn by notice served by a rail safety
16 officer on the person affected by the notice; or
17 (b) may be amended by a rail safety officer by notice served
18 on the person affected by the notice.
19 (2) An amendment of an improvement notice is effected by service
20 on the person affected of a notice stating the terms of the
21 amendment.
22 (3) An amendment of an improvement notice served on a person is
23 ineffective if it purports to deal with a contravention of a
24 different provision of a rail safety law from that dealt with in the
25 improvement notice as first served.
26 (4) A notice of an amendment of an improvement notice must --
27 (a) state the reasons for the amendment; and
28 (b) include information about obtaining a review under
29 Part 7 of the decision to amend the notice; and
30 (c) state that it is served under this section.
page 93
Rail Safety Bill 2009
Part 5 Enforcement
Division 8 Prohibition notices
s. 114
1 114. Proceedings for offences not affected by improvement
2 notices
3 The service, amendment or withdrawal of an improvement
4 notice does not affect any proceedings for an offence against a
5 rail safety law in connection with any matter in respect of which
6 the improvement notice was served.
7 115. Rail Safety Regulator to arrange for rail safety work
8 required by improvement notice to be carried out
9 (1) If a person fails to comply with an improvement notice served
10 on the person that requires the person to carry out rail safety
11 work to remedy --
12 (a) the alleged contravention or likely contravention; or
13 (b) the matters or activities occasioning the alleged
14 contravention or likely contravention,
15 the Rail Safety Regulator may arrange for that rail safety work
16 to be carried out.
17 (2) The Rail Safety Regulator may recover from the person served
18 with an improvement notice referred to in subsection (1) the
19 reasonable costs and expenses incurred by the Rail Safety
20 Regulator for rail safety work carried out.
21 Division 8 -- Prohibition notices
22 116. Prohibition notice
23 (1) This section applies if an activity --
24 (a) is occurring in relation to railway operations or railway
25 premises that involves or will involve an immediate risk
26 to safety; or
27 (b) may occur in relation to railway operations or railway
28 premises that, if it occurs, will involve an immediate
29 risk to safety; or
page 94
Rail Safety Bill 2009
Enforcement Part 5
Prohibition notices Division 8
s. 116
1 (c) may occur at, on, or in the immediate vicinity of, rail
2 infrastructure or rolling stock that, if it occurs, will
3 involve an immediate risk to safety.
4 (2) If a rail safety officer believes on reasonable grounds that an
5 activity referred to in subsection (1) is occurring or may occur,
6 the rail safety officer may serve on a person who has or appears
7 to have control over the activity a prohibition notice prohibiting
8 the carrying on of the activity, or the carrying on of the activity
9 in a specified way, until the rail safety officer has certified in
10 writing that the matters that give or will give rise to the risk
11 have been remedied.
12 (3) A prohibition notice has effect upon being served or, if the
13 notice specifies a later date, on that later date.
14 (4) A prohibition notice must --
15 (a) state the basis for the rail safety officer's belief on which
16 the service of the notice is based; and
17 (b) specify the activity which the rail safety officer believes
18 involves or will involve the risk and the matters which
19 give or will give rise to the risk; and
20 (c) if the rail safety officer believes that the activity
21 involves a contravention or likely contravention of a
22 provision of a rail safety law, specify that provision and
23 state the basis for that belief; and
24 (d) include information about the right to a review under
25 Part 7 of the decision to serve the notice; and
26 (e) set out the penalty for contravening the notice; and
27 (f) include a statement of the effect of section 120; and
28 (g) state that it is served under this section.
29 (5) A prohibition notice may include directions on the measures to
30 be taken to minimise or eliminate the risk, activities or matters
31 to which the notice relates, or the contravention or likely
32 contravention mentioned in subsection (4)(c).
page 95
Rail Safety Bill 2009
Part 5 Enforcement
Division 8 Prohibition notices
s. 117
1 (6) A direction in a prohibition notice may --
2 (a) require that measures be taken in accordance with a
3 compliance code; or
4 (b) offer the person on whom the notice has been served a
5 choice of ways to remedy the risk, activities or matters
6 to which the notice relates, or the contravention or likely
7 contravention mentioned in subsection (4)(c).
8 (7) A prohibition notice that prohibits the carrying on of an activity
9 in a specified way may do so by specifying one or more of the
10 following --
11 (a) a place, or part of a place, at which the activity is not to
12 be carried out;
13 (b) any thing that is not to be used in connection with the
14 activity;
15 (c) any procedure that is not to be followed in connection
16 with the activity.
17 117. Contravention of prohibition notice
18 A person on whom a prohibition notice is served must comply
19 with the notice unless the person has a reasonable excuse.
20 Penalty:
21 (a) for an employee of a rail transport operator --
22 (i) for a first offence, a fine of $11 000;
23 (ii) for a second or subsequent offence, a fine of
24 $16 000;
25 (b) for any other individual --
26 (i) for a first offence, a fine of $55 000;
27 (ii) for a second or subsequent offence, a fine of
28 $82 000;
page 96
Rail Safety Bill 2009
Enforcement Part 5
Prohibition notices Division 8
s. 118
1 (c) for a body corporate --
2 (i) for a first offence, a fine of $550 000;
3 (ii) for a second or subsequent offence, a fine of
4 $820 000.
5 118. Oral direction before prohibition notice served
6 (1) If a rail safety officer --
7 (a) believes on reasonable grounds that an activity referred
8 to in section 116(1) is occurring or may occur; and
9 (b) that it is not possible or reasonable to serve a prohibition
10 notice under that section immediately,
11 the officer may direct a person who has or appears to have
12 control over the activity to do or not to do a stated act by telling
13 the person --
14 (c) to do or not to do the stated act; and
15 (d) the reason for the officer giving the direction.
16 (2) A person to whom a direction is given under subsection (1)
17 must comply with it, unless the person has a reasonable excuse.
18 Penalty:
19 (a) for an individual, a fine of $28 000;
20 (b) for a body corporate, a fine of $280 000.
21 (3) It is a reasonable excuse if the rail safety officer did not tell the
22 person that the person commits an offence if the person does not
23 comply with the direction.
24 (4) If a rail safety officer gives a direction under subsection (1) in
25 respect of an activity but does not, within 5 days of giving the
26 direction, serve a prohibition notice in respect of the activity,
27 the direction ceases to have effect.
page 97
Rail Safety Bill 2009
Part 5 Enforcement
Division 9 Miscellaneous
s. 119
1 119. Withdrawal or amendment of prohibition notice
2 (1) A prohibition notice served by a rail safety officer --
3 (a) may be withdrawn by notice served by a rail safety
4 officer on the person affected by the notice; or
5 (b) may be amended by notice served by a rail safety officer
6 on the person affected by the notice.
7 (2) An amendment of a prohibition notice is effected by service, on
8 the person affected, of a notice stating the terms of the
9 amendment.
10 (3) An amendment of a prohibition notice is ineffective if it
11 purports to deal with a contravention of a different provision of
12 a rail safety law from that dealt with in the prohibition notice as
13 first served.
14 (4) A notice of an amendment of a prohibition notice must --
15 (a) state the reasons for the amendment; and
16 (b) include information about obtaining a review under
17 Part 7 of the decision to amend the notice; and
18 (c) state that it is served under this section.
19 120. Proceedings for offences not affected by prohibition notices
20 The service, amendment or withdrawal of a prohibition notice
21 does not affect any proceedings for an offence against a rail
22 safety law in connection with any matter in respect of which the
23 prohibition notice was served.
24 Division 9 -- Miscellaneous
25 121. Directions may be given under more than one provision
26 (1) A rail safety officer may, on the same occasion, give directions
27 under one or more provisions of this Part.
page 98
Rail Safety Bill 2009
Enforcement Part 5
Miscellaneous Division 9
s. 122
1 (2) Without limiting subsection (1), a rail safety officer may, in the
2 course of exercising powers under a provision of this Part, give
3 either or both of the following --
4 (a) further directions under the provision;
5 (b) directions under one or more other provisions of this
6 Part.
7 122. Temporary closing of railway crossings, bridges etc.
8 (1) In this section --
9 authorised person means --
10 (a) a person who holds a specific authority from the Rail
11 Safety Regulator for the purposes of this section; or
12 (b) a senior manager within the staff of the rail
13 infrastructure manager who holds a specific authority
14 issued by the rail infrastructure manager in accordance
15 with relevant guidelines issued by the Rail Safety
16 Regulator;
17 railway crossing means a level crossing, bridge or another
18 structure used to cross over or under a railway.
19 (2) An authorised person may close temporarily or regulate a
20 railway crossing, bridge or other structure for crossing or
21 passing over or under a railway if satisfied it is necessary
22 because of an immediate threat to safety.
23 (3) If an authorised person decides to close temporarily or regulate
24 a railway crossing, bridge or other structure the authorised
25 person must, as soon as practicable after its closure or
26 regulation, notify the person or authority responsible for the
27 railway crossing, bridge or other structure of its closure or
28 regulation.
page 99
Rail Safety Bill 2009
Part 5 Enforcement
Division 9 Miscellaneous
s. 123
1 123. Restoring rail infrastructure and rolling stock etc. to
2 original condition after action taken
3 If --
4 (a) a rail safety officer, or a person assisting the officer,
5 takes any action in the exercise or purported exercise of
6 any power under this Part in relation to rail
7 infrastructure or rolling stock, railway premises or a
8 road vehicle; and
9 (b) damage was caused by the unreasonable exercise of the
10 power or by the use of force that was not authorised
11 under this Part,
12 the Rail Safety Regulator must take reasonable steps to return
13 the rail infrastructure or rolling stock, railway premises or road
14 vehicle to the condition it or they were in immediately before
15 the action was taken.
16 124. Use of force
17 A power conferred by this Part to enter any railway premises, or
18 to do anything in or on any railway premises, may not be
19 exercised unless the rail safety officer or a person assisting an
20 officer proposing to exercise the power, uses no more force than
21 is reasonably necessary to effect the entry or to do the thing for
22 which the entry is effected.
23 125. Power to use force against persons to be exercised only by
24 police officers
25 A provision in this Part that authorises a rail safety officer, or a
26 person assisting an officer, to use reasonable force does not
27 authorise a rail safety officer, or a person, who is not a police
28 officer to use force against another person.
page 100
Rail Safety Bill 2009
Enforcement Part 5
Miscellaneous Division 9
s. 126
1 126. Protection from incrimination
2 (1) An individual is not excused from complying with a direction
3 under Division 4 or 6 --
4 (a) to give his or her name and residential or business
5 address; or
6 (b) to produce a document; or
7 (c) to give or provide information,
8 on the ground that compliance with the direction may result in
9 information being provided that might incriminate the person or
10 may make the person liable to a penalty.
11 (2) Any information obtained or document produced as a direct
12 result of the compliance with the direction is not admissible in
13 evidence against the person in criminal proceedings, other than
14 proceedings in respect of false information, or proceedings that
15 may make the person liable to a penalty --
16 (a) if the person claims before giving the information or
17 producing the document that it might incriminate the
18 person or make the person liable to a penalty; or
19 (b) if the person's entitlement to make a claim of the kind
20 referred to in paragraph (a) was not drawn to the
21 person's attention before the information was given or
22 the document was produced.
23 (3) Except as provided in subsection (2), any information given, or
24 document produced, by an individual as a direct result of the
25 compliance with the direction may be used in evidence in any
26 criminal or civil proceedings against the person.
page 101
Rail Safety Bill 2009
Part 6 Investigations
Division 1 Independent investigators
s. 127
1 Part 6 -- Investigations
2 Division 1 -- Independent investigators
3 127. Appointment of independent investigator
4 (1) The CEO may, on the CEO's own initiative, and must, at the
5 direction of the Minister, appoint an independent investigator to
6 investigate and report on a rail safety matter in accordance with
7 this Part if the matter causes or results in --
8 (a) a person's death; or
9 (b) serious personal injury; or
10 (c) major property damage.
11 (2) The CEO or the Rail Safety Regulator may, on the CEO's or the
12 Rail Safety Regulator's own initiative, appoint an independent
13 investigator to investigate and report on any other rail safety
14 matter in accordance with this Part.
15 (3) An independent investigator appointed by the CEO or the Rail
16 Safety Regulator is to be appointed on such terms and
17 conditions as are agreed between the CEO or the Rail Safety
18 Regulator and the independent investigator.
19 (4) The Minister, the CEO and the Rail Safety Regulator must not
20 give a direction to an independent investigator relating to the
21 performance of the independent investigator's functions in
22 relation to an investigation into a rail safety matter including a
23 direction --
24 (a) on how to conduct the investigation; or
25 (b) as to which persons the independent investigator may
26 request or direct to assist the independent investigator in
27 the investigation; or
28 (c) as to the outcome of the investigation; or
29 (d) to stop the investigation.
page 102
Rail Safety Bill 2009
Investigations Part 6
Independent investigators Division 1
s. 128
1 (5) In exercising powers under this Part, the independent
2 investigator must have regard to the desirability of minimising
3 any resulting disruption to railway operations.
4 (6) The reasonable costs of conducting the investigation are
5 recoverable jointly or severally from any one or more rail
6 transport operators responsible for the railway operations
7 concerned.
8 (7) The CEO may, in a court of competent jurisdiction, recover the
9 costs that are recoverable under subsection (6) as a debt due to
10 the Crown.
11 128. Conduct of investigation
12 (1) In conducting an investigation under this Part, an independent
13 investigator --
14 (a) is to attempt to determine the circumstances surrounding
15 the rail safety matter to prevent the occurrence of a rail
16 safety matter and is not to apportion blame for the rail
17 safety matter or determine the liability of any person in
18 respect of any rail safety matter; and
19 (b) must consult with the CEO, the Rail Safety Regulator
20 and any person to whom a report under section 133 may
21 be relevant; and
22 (c) must follow such procedures as are approved in writing
23 by the CEO with respect to investigations; and
24 (d) must act as quickly, and with as little formality and
25 technicality, as is consistent with a fair and proper
26 consideration of the issues; and
27 (e) is not bound by the rules of evidence, but may inform
28 himself or herself on any matter as the independent
29 investigator considers appropriate.
page 103
Rail Safety Bill 2009
Part 6 Investigations
Division 1 Independent investigators
s. 129
1 (2) Except as provided by this Part, an investigation under this Part
2 is to be conducted in a manner determined by the independent
3 investigator.
4 129. Advise as to immediate action that is required
5 If in the course of an investigation an independent investigator
6 reasonably believes that immediate action is required to prevent
7 an occurrence involving the rolling stock or rail infrastructure of
8 a rail transport operator that could result in, or that has the
9 potential to result in, the death of, or injury to, any person, or in
10 damage to any property or equipment the independent
11 investigator may, in writing, advise the CEO, the Rail Safety
12 Regulator and the rail transport operator that that action is
13 required.
14 130. Release of information in the interests of rail safety
15 (1) Subject to Division 6, an independent investigator may disclose
16 to any person information acquired by the independent
17 investigator in carrying out his or her functions under this Part if
18 the independent investigator considers that the disclosure is
19 necessary or desirable for the purposes of rail safety.
20 (2) Despite subsection (1), the independent investigator may only
21 disclose information that is, or that contains, personal
22 information in the circumstances allowed by the regulations.
23 131. Investigation may continue despite other proceedings
24 An investigation under this Part may start or continue, and a
25 report may be prepared or given, despite proceedings before a
26 court or tribunal constituted by law, unless a court or tribunal
27 with the necessary jurisdiction orders otherwise.
28 132. Draft report or excerpt
29 (1) Before giving a report under section 133(1), the independent
30 investigator may provide a draft report or an excerpt from a
page 104
Rail Safety Bill 2009
Investigations Part 6
Independent investigators Division 1
s. 132
1 draft report, on a confidential basis, to any person whom the
2 independent investigator considers appropriate, for any one or
3 more of the following purposes --
4 (a) allowing the person to make submissions to the
5 independent investigator about the draft report or
6 excerpt;
7 (b) taking steps to remedy safety deficiencies that are
8 identified in the draft report or excerpt;
9 (c) giving the person advance notice of the likely form of
10 the final report.
11 (2) A person who receives a draft report or an excerpt under
12 subsection (1) or (3) must not --
13 (a) make a copy of the whole or any part of the draft report
14 or excerpt; or
15 (b) disclose any of the contents of the draft report or excerpt
16 to any other person or to a court.
17 Penalty: a fine of $55 000.
18 (3) Subsection (2) does not apply to any copying or disclosure that
19 is necessary for the purpose of --
20 (a) preparing submissions on the draft report or excerpt; or
21 (b) taking steps to remedy safety deficiencies that are
22 identified in the draft report or excerpt.
23 (4) A person who receives a draft report or excerpt under
24 subsection (1) or (3) cannot be required to disclose it to a court.
25 (5) A person who receives a draft report or excerpt under
26 subsection (1) or (3) is not entitled to take any disciplinary
27 action against an employee of the person on the basis of
28 information in the draft report or excerpt.
29 (6) A draft report or excerpt provided under subsection (1) must not
30 include the name of an individual unless he or she has consented
31 in writing to that inclusion.
page 105
Rail Safety Bill 2009
Part 6 Investigations
Division 1 Independent investigators
s. 133
1 (7) The Coroners Act 1996 sections 33(1)(b) and (c) and 46(1)(a)
2 do not apply to a draft report or excerpt.
3 133. Report
4 (1) On its completion, an independent investigator must give his or
5 her report to the Minister, the CEO and the Rail Safety
6 Regulator.
7 (2) The report is to be in a prescribed format, if any, and contain --
8 (a) details of any advice given under section 129; and
9 (b) such recommendations, if any, that the independent
10 investigator considers appropriate; and
11 (c) any other relevant matters.
12 (3) The independent investigator's report must be published by
13 electronic or other means by --
14 (a) the CEO, if the CEO appointed the independent
15 investigator; or
16 (b) the Rail Safety Regulator, if the Rail Safety Regulator
17 appointed the independent investigator,
18 within 28 days of receiving the report.
19 (4) A published report must not include the name of an individual
20 unless he or she has consented in writing to that inclusion.
21 134. Reports not admissible in evidence
22 (1) A report under section 133 is not admissible in evidence in any
23 civil or criminal proceedings.
24 (2) Subsection (1) does not apply to a coronial inquest.
25 (3) A draft report under section 132 is not admissible in evidence in
26 any civil or criminal proceedings.
page 106
Rail Safety Bill 2009
Investigations Part 6
Independent investigators Division 1
s. 135
1 135. Response to report: installation of safety or protective
2 devices
3 (1) The Rail Safety Regulator may, if of the opinion as a result of a
4 report under section 133 that action is necessary for the purpose
5 of the safe construction or operation of a railway, direct a rail
6 transport operator, by written notice, to install on or with respect
7 to the infrastructure of the railway, or on or with respect to
8 rolling stock, within the time specified in the notice, safety or
9 protective systems, devices, equipment or appliances specified
10 in the notice.
11 (2) A rail transport operator must comply with the requirements of
12 the notice.
13 Penalty:
14 (a) for an individual --
15 (i) for a first offence, a fine of $28 000;
16 (ii) for a second or subsequent offence, a fine of
17 $41 000;
18 (b) for a body corporate --
19 (i) for a first offence, a fine of $280 000;
20 (ii) for a second or subsequent offence, a fine of
21 $410 000.
22 136. Appointment of authorised officers
23 An independent investigator may, in writing, appoint a suitable
24 person to be an authorised officer for the purposes of this Part.
25 137. Delegation by independent investigator
26 (1) An independent investigator may delegate to an authorised
27 officer any power or duty of the independent investigator under
28 another provision of this Part other than a function referred to in
29 section 136.
30 (2) The delegation must be in writing signed by the independent
31 investigator.
page 107
Rail Safety Bill 2009
Part 6 Investigations
Division 1 Independent investigators
s. 138
1 (3) An authorised person to whom a power or duty is delegated
2 under this section cannot delegate that power or duty.
3 (4) An authorised person exercising or performing a power or duty
4 that has been delegated to the person under this section is to be
5 taken to do so in accordance with the terms of the delegation
6 unless the contrary is shown.
7 (5) An authorised officer remains subject to the direction and
8 control of the independent investigator.
9 138. Certificate of appointment for independent investigators
10 and authorised officers
11 (1) The person who appoints an independent investigator must issue
12 a certificate of appointment to the investigator.
13 (2) An independent investigator must issue an authorised officer
14 appointed by the independent investigator with a certificate of
15 appointment.
16 139. Independent investigators and authorised officers must not
17 exercise functions without a certificate of appointment
18 An independent investigator or authorised officer must not
19 exercise a function under this Act unless a certificate of
20 appointment has been issued to the independent investigator or
21 authorised officer.
22 140. Production of a certificate of appointment
23 (1) This section applies to an independent investigator or authorised
24 officer who is exercising, or about to exercise, a function under
25 this Part.
26 (2) An independent investigator or authorised officer must produce
27 his or her certificate of appointment or a copy or reproduction of
28 it if requested to do so by a person in relation to whom the
29 officer is exercising, or is about to exercise, the function.
page 108
Rail Safety Bill 2009
Investigations Part 6
Investigation powers Division 2
s. 141
1 (3) If it is not practical for an independent investigator or authorised
2 officer to produce his or her certificate of appointment or a copy
3 or reproduction of it on being requested to do so, the
4 independent investigator or authorised officer must produce it as
5 soon as practicable after the request is made.
6 141. Return of certificate of appointment
7 A person who has ceased to be an independent investigator or
8 authorised officer must not, without reasonable excuse, refuse
9 or fail to return to the person who appointed him or her (the
10 appointer), within such period as is specified by the appointer in
11 a request for the return of the certificate of appointment, any
12 certificate of appointment issued by the appointer.
13 Penalty: a fine of $2 000.
14 Division 2 -- Investigation powers
15 142. Securing a site
16 (1) For the purpose of protecting evidence that might be relevant to
17 an investigation of a rail safety matter, the Rail Safety Regulator
18 or an independent investigator may secure the perimeter of any
19 site at a place by whatever means the Rail Safety Regulator or
20 the independent investigator considers appropriate.
21 (2) A person must not, without the permission of the Rail Safety
22 Regulator or an independent investigator, enter or remain at a
23 site the perimeter of which is secured under this section.
24 Penalty: a fine of $28 000.
25 (3) Subsection (2) does not apply if the person enters the site or
26 remains at the site --
27 (a) to ensure the safety of persons; or
28 (b) to remove deceased persons or animals from the site; or
29 (c) to move a road vehicle, or the wreckage of a road
30 vehicle, to a safe place; or
page 109
Rail Safety Bill 2009
Part 6 Investigations
Division 2 Investigation powers
s. 143
1 (d) to protect the environment from significant damage or
2 pollution.
3 (4) The Rail Safety Regulator or an independent investigator must
4 not unreasonably withhold a permission referred to in
5 subsection (2).
6 143. Power to obtain information
7 (1) An independent investigator may, for the purposes of an
8 investigation under this Part --
9 (a) require a person to produce to the investigator any
10 document or other thing concerning the investigation
11 that is in the possession or under the control of the
12 person; and
13 (b) require a person --
14 (i) to give the investigator such information as the
15 investigator requires; and
16 (ii) to answer any question put to that person,
17 in relation to the matter the subject of the investigation.
18 (2) Subsection (1) does not apply to a person in his or her capacity
19 as a coroner.
20 (3) A requirement made under subsection (1)(a) --
21 (a) must be made by notice in writing given to the person
22 required to produce the document or other thing; and
23 (b) must specify the time at or within which the document
24 or other thing is to be produced; and
25 (c) may, by its terms, require that the document or other
26 thing required be produced at a place and by means
27 specified in the requirement; and
page 110
Rail Safety Bill 2009
Investigations Part 6
Investigation powers Division 2
s. 144
1 (d) where the document required is not in a readable format,
2 is to be treated as a requirement to produce --
3 (i) the document itself; and
4 (ii) the contents of the document in a readable
5 format.
6 (4) If under subsection (1)(a) an independent investigator requires a
7 person to produce any document or other thing concerning the
8 investigation that is in the possession or under the control of the
9 person, the investigator is to inform that person that the person
10 is required under this Act to produce the document or thing.
11 (5) If under subsection (1)(b) an independent investigator requires a
12 person to give information or answer a question, the investigator
13 is to inform that person that the person is required under this
14 Act to give the information or answer the question.
15 (6) If a document or other thing is produced to an independent
16 investigator, the independent investigator may --
17 (a) inspect it; and
18 (b) make copies of, photograph or take extracts from, or
19 test, it.
20 144. Other powers
21 (1) An independent investigator may, for the purpose of an
22 investigation under this Part, at all reasonable times of the day
23 or night, using reasonable force, enter railway premises or other
24 premises.
25 (2) An independent investigator may, for the purpose of an
26 investigation under this Part, do any one or more of the
27 following --
28 (a) having entered a premises under subsection (1), inspect
29 the premises, or any railway, rail infrastructure or rolling
30 stock or other thing at the premises;
31 (b) give directions with respect to the stopping or movement
32 of rolling stock;
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Division 2 Investigation powers
s. 144
1 (c) take measurements, make surveys and take levels and,
2 for those purposes, dig trenches, break up soil and set up
3 any posts, stakes or markers;
4 (d) take samples or authorise another person to take samples
5 of any substance or thing from any place or rolling stock
6 or other vehicle for analysis;
7 (e) mark, tag or otherwise identify rolling stock or other
8 things at the place;
9 (f) take photographs, films, audio, video or other
10 recordings;
11 (g) examine or test any rail infrastructure, rolling stock,
12 plant, system, device, equipment, appliance, vehicle or
13 other thing, or cause or require it to be examined or
14 tested, or seize it or require its production for
15 examination or testing;
16 (h) issue a seizure order under section 161 in respect of
17 anything that the independent investigator reasonably
18 believes is relevant to the investigation;
19 (i) require a person to produce evidence of an accreditation
20 or qualification required under this Act;
21 (j) give directions reasonably required in connection with
22 the exercise of a power conferred by this subsection or
23 otherwise in connection with conducting an
24 investigation;
25 (k) exercise other powers as are prescribed for the purposes
26 of this paragraph.
27 (3) In the exercise of powers under this section, an independent
28 investigator must do as little damage as possible but may test
29 something even though that might result in damage, destruction
30 or reduction in the value of the thing.
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Investigations Part 6
Investigation powers Division 2
s. 145
1 145. Limitation on entry powers: places used for residential
2 purposes
3 Despite anything to the contrary in this Part, the powers of an
4 independent investigator under this Part in relation to entering
5 premises are not exercisable in respect of any premises that is
6 used only for residential purposes except --
7 (a) with the consent of the occupier of the premises; or
8 (b) under the authority conferred by a warrant under
9 section 158.
10 146. Occupier entitled to be present during inspection
11 (1) If premises are being inspected under section 144 and the
12 occupier of the premises is present at the premises, the occupier
13 is entitled to observe the inspection.
14 (2) The right to observe the inspection ceases if the occupier
15 impedes the inspection.
16 (3) This section does not prevent 2 or more areas of the premises
17 being inspected at the same time.
18 147. Use of equipment
19 An independent investigator may exercise powers under this
20 Part with the aid of such equipment as the independent
21 investigator considers reasonably necessary in the
22 circumstances.
23 148. Occupier to provide independent investigator with facilities
24 and assistance
25 The occupier of premises being inspected under section 144
26 must provide the independent investigator with all reasonable
27 facilities and assistance for the effective exercise of his or her
28 powers.
29 Penalty: a fine of $28 000.
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Division 2 Investigation powers
s. 149
1 149. Use of electronic equipment
2 (1) Without limiting section 144, if --
3 (a) a thing found in or on rolling stock or a road vehicle, or
4 at a place, is, or includes, a disk, tape or other device for
5 the storage of information; and
6 (b) the equipment in or on the rolling stock or road vehicle,
7 or at the place, may be used with the disk, tape or other
8 device,
9 the independent investigator may operate the equipment to
10 access the information.
11 (2) An independent investigator must not operate equipment for the
12 purpose mentioned in this section unless the independent
13 investigator believes on reasonable grounds that the operation of
14 the equipment can be carried out without --
15 (a) damage to the equipment; or
16 (b) destroying, erasing or corrupting any information stored
17 or recorded by the equipment.
18 150. Use of equipment to examine or process things
19 (1) Without limiting section 144, an independent investigator
20 exercising a power under this Part may bring to, onto, or into,
21 rolling stock, a road vehicle or premises any equipment
22 reasonably necessary for the examination or processing of
23 things found at, on or in the rolling stock, a road vehicle or
24 premises in order to determine whether they are things that may
25 be seized.
26 (2) The independent investigator may operate equipment already in
27 or on the rolling stock, a road vehicle or premises, to carry out
28 the examination or processing of a thing found in or on the
29 rolling stock, a road vehicle or premises, or at the premises in
30 order to determine whether it is a thing that may be seized, if the
31 independent investigator believes on reasonable grounds that --
32 (a) the equipment is suitable for the examination or the
33 processing; and
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Investigation powers Division 2
s. 151
1 (b) the examination or processing can be carried out without
2 damage to the equipment.
3 151. Notices relating to exercise of powers
4 If an independent investigator enters railway premises, not
5 being a public place, under section 144(1), the independent
6 investigator must give the occupier of the railway premises
7 written notice of the entry as soon as practicable after the entry
8 is made.
9 152. Protection orders by Rail Safety Regulator or independent
10 investigator
11 (1) For the purpose of protecting evidence that might be relevant to
12 an investigation, the Rail Safety Regulator, before an
13 independent investigator begins conducting an investigation,
14 and an independent investigator, after the investigator begins
15 conducting an investigation, may direct that specified things, or
16 things in a specified class of things, must not be removed or
17 interfered with except with the permission of the person giving
18 the direction.
19 (2) The Rail Safety Regulator, before an independent investigator
20 begins conducting an investigation, and the independent
21 investigator, after the investigator begins conducting an
22 investigation, may revoke or vary a direction under
23 subsection (1).
24 (3) A person must not contravene a direction under subsection (1).
25 Penalty: a fine of $28 000.
26 (4) Subsection (3) does not apply if the conduct concerned was
27 necessary --
28 (a) to ensure the safety of persons, animals or property; or
29 (b) to remove deceased persons or animals from an accident
30 site; or
31 (c) to move rolling stock, or the wreckage of rolling stock,
32 to a safe place; or
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Division 2 Investigation powers
s. 153
1 (d) to protect the environment from significant damage or
2 pollution.
3 (5) The Rail Safety Regulator or an independent investigator must
4 not unreasonably withhold a permission under subsection (1).
5 153. Medical examination
6 (1) In this section --
7 employee includes an individual who works under a contract for
8 services;
9 medical practitioner has the meaning given in the Medical
10 Practitioners Act 2008 section 4.
11 (2) If an independent investigator has reason to believe that --
12 (a) a person caused, or was directly involved in, a rail safety
13 matter; and
14 (b) the result of a medical examination of the person may
15 help in determining the circumstances and probable
16 cause of the matter,
17 the independent investigator may by written notice direct the
18 person to undergo a medical examination within a period
19 specified by the independent investigator in the notice.
20 (3) The person is to be examined by a medical practitioner agreed
21 upon by the independent investigator and the person.
22 (4) If the independent investigator and the person are unable to
23 agree upon the person to conduct the examination, the CEO is to
24 appoint a medical practitioner to perform the examination.
25 (5) A medical practitioner who conducts an examination under this
26 section is to give a report of the examination to the independent
27 investigator.
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Investigation powers Division 2
s. 153
1 (6) The cost of the examination must be paid --
2 (a) if the person is an employee of a rail transport operator,
3 by the rail transport operator; or
4 (b) in other cases, by the CEO.
5 (7) A person must comply with a direction under this section,
6 unless the person has a reasonable excuse.
7 Penalty: a fine of $28 000.
8 (8) It is not a reasonable excuse for a person to fail to comply with
9 the direction that complying with the direction might tend to
10 incriminate the person or make the person liable to a penalty.
11 (9) Anything obtained under the direction, and any evidence
12 derived directly or indirectly from anything obtained under the
13 direction is not admissible in evidence against a person in any
14 civil or criminal proceeding.
15 (10) When giving a direction to a person under this section, an
16 independent investigator must --
17 (a) warn the person it is an offence to fail to comply with
18 the direction unless the person has a reasonable excuse;
19 and
20 (b) advise the person that --
21 (i) it is not a reasonable excuse that complying with
22 the direction might tend to incriminate the person
23 or make the person liable to a penalty; and
24 (ii) anything obtained under the direction, and any
25 evidence derived directly or indirectly from
26 anything obtained under the direction, is not
27 admissible in evidence against the person in any
28 civil or criminal proceeding.
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Part 6 Investigations
Division 2 Investigation powers
s. 154
1 154. Analysis
2 (1) In this section --
3 authorised person means --
4 (a) an authorised officer; or
5 (b) an independent investigator; or
6 (c) a police officer; or
7 (d) a rail safety officer; or
8 (e) the Rail Safety Regulator;
9 employee includes an individual who works under a contract for
10 services.
11 (2) If an authorised person has reason to believe that --
12 (a) a person caused, or was directly involved in, a rail safety
13 matter; and
14 (b) the results of a breath test or an analysis may help in
15 determining the circumstances and probable cause of the
16 matter,
17 the authorised person may direct the person to do one or more
18 of the following --
19 (c) submit to a breath test;
20 (d) give a sample of the person's blood or urine for analysis.
21 (3) The purpose of a test or an analysis is to determine the presence
22 or level of alcohol or any prescribed drug in any form in the
23 breath, blood or urine of the person.
24 (4) A direction under subsection (2)(d) must --
25 (a) specify the day on which and time and place at which
26 the person is to attend; and
27 (b) indicate what sample or samples are to be given.
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Investigation powers Division 2
s. 154
1 (5) If a direction is given under this section --
2 (a) any breath test is to be conducted; and
3 (b) any sample is to be taken and dealt with,
4 in accordance with regulations referred to in section 155.
5 (6) The cost of conducting a breath test or obtaining a sample and
6 carrying out the analysis must be paid --
7 (a) if the person is an employee of a rail transport operator,
8 by the rail transport operator; or
9 (b) in other cases, by the CEO.
10 (7) A person must comply with a direction under this section,
11 unless the person has a reasonable excuse.
12 Penalty: a fine of $28 000.
13 (8) It is not a reasonable excuse for a person to fail to comply with
14 the direction that complying with the direction might tend to
15 incriminate the person or make the person liable to a penalty.
16 (9) The results of a breath test or an analysis under this section are
17 not admissible in evidence against a person in any civil or
18 criminal proceeding.
19 (10) When making a direction to a person under this section, an
20 authorised person must --
21 (a) warn the person it is an offence to fail to comply with
22 the direction unless the person has a reasonable excuse;
23 and
24 (b) advise the person that --
25 (i) it is not a reasonable excuse that complying with
26 the direction might tend to incriminate the person
27 or make the person liable to a penalty; and
28 (ii) the results of a breath test or an analysis under
29 this section are not admissible in evidence
30 against the person in any civil or criminal
31 proceeding.
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Rail Safety Bill 2009
Part 6 Investigations
Division 2 Investigation powers
s. 155
1 155. Regulations relating to medical examinations and analysis
2 Regulations may be made under section 228(1) with respect to
3 examinations and breath tests or analysis under sections 153
4 and 154 including the following --
5 (a) procedures for medical examinations;
6 (b) the manner of giving directions under section 154;
7 (c) prescribing drugs for which a breath test or an analysis
8 may be conducted pursuant to a direction under
9 section 154 to submit to a breath test or to give a sample
10 of the person's blood or urine for analysis;
11 (d) regulating the manner of conducting breath tests and
12 taking and dealing with samples of blood and urine and
13 their analysis;
14 (e) providing for the authorisation of persons as analysts for
15 the purposes of section 154;
16 (f) the analysis of test results;
17 (g) the reporting of the results of breath tests or blood or
18 urine analysis;
19 (h) the collection, keeping and disposal of samples;
20 (i) the approval of equipment or any apparatus for the
21 purposes of testing or analysis;
22 (j) the devices used in conducting breath tests and other
23 tests, including the calibration, inspection and testing of
24 those devices;
25 (k) protection against liability for persons administering
26 tests or taking samples of blood or urine or other body
27 tissues or fluids.
28 156. Independent investigator not to use force against persons
29 A provision in this Division that authorises an independent
30 investigator to use reasonable force does not authorise the
31 independent investigator to use force against another person.
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Rail Safety Bill 2009
Investigations Part 6
Search warrants Division 3
s. 157
1 Division 3 -- Search warrants
2 157. Search warrant
3 (1) An independent investigator may apply to a justice for the issue
4 of a search warrant in relation to premises used only for
5 residential purposes if the independent investigator believes on
6 reasonable grounds that there is any thing on the premises that is
7 relevant to his or her investigation.
8 (2) An application for a search warrant must --
9 (a) be in writing; and
10 (b) set out the grounds for seeking the warrant; and
11 (c) state the premises to be searched; and
12 (d) state a description of the thing for which the search is to
13 be made.
14 (3) A justice to whom an application is made under this section is to
15 refuse it if --
16 (a) the application does not comply with the requirements
17 of this Act; or
18 (b) when required to do so by the justice, the independent
19 investigator does not give to the justice more
20 information about the application.
21 (4) The information in an application or given to a justice under this
22 section must be verified before the justice on oath or affirmation
23 or by affidavit, and the justice may for that purpose administer
24 an oath or affirmation or take an affidavit.
25 158. Issue of search warrant
26 (1) If a justice is satisfied that there is any thing on the premises
27 that might be relevant to the investigation, the justice may issue
28 a search warrant authorising the independent investigator named
29 in the warrant --
30 (a) to enter the premises named or described in the warrant;
31 and
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Division 3 Search warrants
s. 159
1 (b) to search for and seize any thing named or described in
2 the warrant.
3 (2) In addition to any other requirement, a search warrant issued
4 under this section must state --
5 (a) the premises to be searched; and
6 (b) a description of the thing for which the search is to be
7 made; and
8 (c) any conditions to which the warrant is subject; and
9 (d) whether entry is authorised to be made at any time or
10 during stated hours; and
11 (e) a day, not later than 7 days after the issue of the warrant,
12 on which the warrant ceases to have effect.
13 (3) A justice who issues a warrant is to cause a record to be made of
14 particulars of the grounds that the justice has relied on to justify
15 the issue of the warrant.
16 159. Execution of warrant
17 (1) If asked to do so by an occupier, or a person in charge, of
18 premises, the person executing a warrant at those premises is to
19 produce it for inspection.
20 (2) A warrant ceases to have effect --
21 (a) on the day stated in the warrant as the day on which it
22 ceases to have effect; or
23 (b) if it is withdrawn by the justice who issued it; or
24 (c) when it is executed,
25 whichever occurs first.
26 160. Seizure of things not mentioned in the warrant
27 A search warrant authorises the independent investigator
28 executing the warrant, in addition to the seizure of any thing of
29 the kind described in the warrant, to seize any thing which is not
30 of the kind described in the warrant if the independent
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Investigations Part 6
Seized things and samples taken Division 4
s. 161
1 investigator believes, on reasonable grounds, that the thing is of
2 a kind which could have been included in a warrant issued
3 under this Division.
4 Division 4 -- Seized things and samples taken
5 161. Provisions relating to seizure
6 (1) A seizure order issued by an independent investigator under
7 section 144(2)(h) --
8 (a) is to be in the form of a written notice served on the
9 owner or person in control of the thing to which the
10 order relates; and
11 (b) may be varied or revoked by a further such written
12 notice.
13 (2) If a seizure order is issued, a person must not remove or
14 interfere with the thing to which the order relates without the
15 approval of the independent investigator.
16 Penalty: a fine of $28 000.
17 (3) If a thing has been seized, the thing must be held pending
18 completion of the independent investigator's report under
19 section 133 in relation to the investigation in respect of which
20 the thing was seized unless the independent investigator, on
21 application or of his or her own volition, authorises its release to
22 the person from whom it was seized, or to a person who had
23 legal title to it at the time of its seizure, subject to such
24 conditions as the independent investigator considers
25 appropriate.
26 (4) If --
27 (a) a report is given under section 133 in relation to the
28 investigation in respect of which the thing was seized; or
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Part 6 Investigations
Division 4 Seized things and samples taken
s. 162
1 (b) a report is not given under that section within the
2 prescribed period after the seizure of the thing or the
3 issuing of the seizure order,
4 the person from whom the thing was seized, or a person with
5 legal title to it, is entitled to recover the thing from the
6 independent investigator (if necessary, by action in a court of
7 competent jurisdiction) unless the thing has been transferred to a
8 rail safety officer under section 169(1).
9 (5) In subsection (4) --
10 prescribed period means 6 months, or such longer period not
11 exceeding 12 months as the independent investigator allows.
12 162. Securing seized things
13 On seizing a thing under this Part, an independent investigator
14 may --
15 (a) move the thing from the place where it was seized (the
16 place of seizure); or
17 (b) leave the thing at the place of seizure but take steps to
18 restrict access to it; or
19 (c) in relation to equipment that is seized, make the
20 equipment inoperable.
21 163. Powers to support seizure
22 (1) In this section --
23 in control, in relation to a thing, means having, or reasonably
24 appearing to an independent investigator as having, authority to
25 exercise control over the thing.
26 (2) To enable a thing to be seized under this Part, an independent
27 investigator may direct the person in control of it --
28 (a) to take it to a specified place within a specified time;
29 and
30 (b) if necessary, to remain in control of it at the specified
31 place for a period specified in the direction.
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Seized things and samples taken Division 4
s. 164
1 (3) A further direction may be made under this section about the
2 thing if it is necessary and reasonable to make the further
3 direction.
4 (4) A person given a direction under subsection (2) or (3) must not
5 without reasonable excuse refuse or fail to comply with that
6 direction.
7 Penalty: a fine of $28 000.
8 (5) Without limiting what may be a reasonable excuse under
9 subsection (4), it is a reasonable excuse for a person in control
10 of a thing not to comply with a direction under subsection (2)
11 or (3) if in all the circumstances, the direction was
12 unreasonable.
13 (6) The cost of complying with subsection (2) or (3) must be borne
14 by the person.
15 164. Independent investigator may direct a thing's return
16 (1) If an independent investigator has directed a person to take a
17 thing to a specified place within a specified time under
18 section 163(2), the independent investigator may direct the
19 person to return the thing to the place from which it was taken.
20 (2) A person given a direction under subsection (1) must not
21 without reasonable excuse refuse or fail to comply with that
22 direction.
23 Penalty: a fine of $11 000.
24 (3) The cost of complying with a direction under subsection (1)
25 must be borne by the person.
26 (4) If a person who is not the owner of the thing fails to comply
27 with a direction under subsection (1), the independent
28 investigator may release the thing to its owner or any other
29 person entitled to its possession.
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Division 4 Seized things and samples taken
s. 165
1 165. Manner in which independent investigator may give
2 directions under this Division
3 (1) Unless otherwise provided, an independent investigator may
4 give a direction under this Division orally or in writing.
5 (2) If giving a direction orally, the independent investigator giving
6 the direction --
7 (a) must state whether it is to be complied with immediately
8 or within a specified period; and
9 (b) must warn the person to whom the direction is given that
10 it is an offence under this Act to refuse or fail to comply
11 with a direction.
12 (3) If giving a direction in writing, the independent investigator
13 must ensure that the direction --
14 (a) states the period within which it is to be complied with;
15 and
16 (b) states that it is an offence under this Act to refuse or fail
17 to comply with a direction.
18 (4) A written direction may be given to, or sent by post to, the
19 person to whom it is directed.
20 166. Receipt for seized things or sample
21 (1) If an independent investigator seizes a thing, or takes a sample
22 of, or from, a thing at railway premises or residential premises
23 under this Part, the independent investigator must give a receipt
24 to the person in charge of the thing or the railway premises or
25 residential premises from which it was taken.
26 (2) A receipt must --
27 (a) identify the thing seized or sample taken; and
28 (b) state the name of the independent investigator who
29 seized the thing or took the sample and the reason why
30 the thing was seized or the sample was taken.
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Seized things and samples taken Division 4
s. 167
1 (3) If for any reason it is not practicable for the independent
2 investigator to comply with subsection (1), the independent
3 investigator may --
4 (a) leave the receipt at the railway premises or residential
5 premises in a conspicuous position and in a reasonably
6 secure way; or
7 (b) send the receipt, by post, to the occupier of the railway
8 premises or residential premises from where the thing
9 was seized or the sample was taken.
10 167. Copies of certain seized things to be given
11 (1) If, under this Part, an independent investigator seizes --
12 (a) a document; or
13 (b) a thing that can be readily copied; or
14 (c) a storage device containing information that can be
15 readily copied,
16 the independent investigator must give a copy of the document,
17 thing or information to the owner or custodian of the document,
18 thing or device as soon as practicable after the seizure.
19 (2) Subsection (1) does not apply if the independent investigator --
20 (a) has reason to believe that the owner or custodian of the
21 document, thing or device seized has a copy of the
22 document, thing or information; or
23 (b) is unable to discover the identity of the owner or
24 custodian of any document, thing or device seized.
25 168. Transfer of seized thing to independent investigator
26 If --
27 (a) a thing has been seized by a rail safety officer under the
28 authority of a warrant issued under section 94; and
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Part 6 Investigations
Division 4 Seized things and samples taken
s. 169
1 (b) an independent investigator requests the rail safety
2 officer named in the warrant to transfer the thing to the
3 investigator,
4 the rail safety officer must --
5 (c) transfer the thing to the investigator and, for the
6 purposes of this Act, the thing is to be taken to have
7 been seized under this Part; and
8 (d) advise the owner of the thing that it has been transferred
9 to the investigator.
10 169. Transfer of seized thing to a rail safety officer
11 (1) If --
12 (a) a thing has been seized by an independent investigator
13 under this Part; and
14 (b) the thing could have been seized under the authority of a
15 warrant issued under section 94; and
16 (c) the rail safety officer named in the warrant requests the
17 independent investigator to transfer the thing to the
18 officer,
19 the independent investigator must --
20 (d) transfer the thing to the rail safety officer when his or
21 her investigation is complete or the investigator is
22 satisfied that the transfer would not prejudice his or her
23 investigation; and
24 (e) advise the owner of the thing that it has been transferred
25 to the rail safety officer.
26 (2) If a thing is transferred to a rail safety officer under
27 subsection (1), for the purposes of this Act, the thing is to be
28 taken to have been seized under the authority of the warrant.
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Investigations Part 6
Provisions relating to investigations Division 5
s. 170
1 Division 5 -- Provisions relating to investigations
2 170. Offences in relation to investigation
3 (1) Where under section 143 a person is required to give any
4 information, answer any question, or produce any document or
5 thing and that person, without reasonable excuse (proof of
6 which lies on the person) --
7 (a) fails to give that information or answer that question; or
8 (b) gives any information or answer that is false in any
9 particular; or
10 (c) omits anything without which the statement is, to the
11 person's knowledge, misleading in a material particular;
12 or
13 (d) fails to produce that document or thing at or within the
14 time specified in the requirement,
15 the person commits an offence.
16 Penalty: a fine of $28 000.
17 (2) It is a defence in any proceeding for an offence under
18 subsection (1)(a) or (d) for the accused to show --
19 (a) that the investigator did not, when making the
20 requirement, inform the accused that he or she was
21 required under this Act to give the information or
22 answer the question, or produce the document or thing,
23 as the case may be; or
24 (b) that the time specified in a requirement to produce a
25 document or thing did not afford the accused sufficient
26 notice to enable him or her to comply with the
27 requirement; or
28 (c) that, in any case, the investigator did not, before making
29 the requirement, have reasonable grounds to believe that
30 compliance with the requirement would materially assist
31 in the investigation being carried out.
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Rail Safety Bill 2009
Part 6 Investigations
Division 5 Provisions relating to investigations
s. 171
1 171. Offence to hinder persons appointed under this Part
2 A person must not --
3 (a) wilfully hinder, obstruct or interfere with an independent
4 investigator or an authorised officer in the exercise of a
5 power conferred under this Part; or
6 (b) use abusive, threatening or insulting language to an
7 independent investigator or an authorised officer; or
8 (c) without reasonable excuse, refuse or fail to comply with
9 a requirement or direction of an independent
10 investigator or an authorised officer under this Part; or
11 (d) falsely represent, by words or conduct, that he or she is
12 an independent investigator or an authorised officer.
13 Penalty: a fine of $28 000.
14 172. Incriminating information, questions or documents
15 An individual is not excused from complying with a
16 requirement under section 143 on the ground that the answer to
17 a question or the production of a document or other thing might
18 incriminate the individual or render the individual liable to a
19 penalty, but neither --
20 (a) an answer given by the individual that was given to
21 comply with the requirement; nor
22 (b) the fact that a document or other thing produced by the
23 individual to comply with the requirement was
24 produced,
25 is admissible in evidence in any civil or criminal proceedings
26 against the individual other than proceedings for an offence
27 against section 170(1)(b).
28 173. Legal professional privilege
29 Nothing in this Part prevents a person from refusing to answer a
30 question, provide information or produce a document or other
31 thing because the answer or information would relate to, or the
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Rail Safety Bill 2009
Investigations Part 6
Protection of restricted information Division 6
s. 174
1 document or thing contains, information in respect of which the
2 person claims legal professional privilege.
3 174. Certification of independent investigator's or authorised
4 officer's involvement in investigation
5 In all courts, a certificate purporting to be issued by the person
6 who appointed an independent investigator or authorised officer
7 stating that a person is or was an independent investigator or an
8 authorised officer in relation to an investigation under this Part
9 is evidence of that matter.
10 175. Independent investigator and authorised officer not
11 compellable as witnesses
12 (1) A person who is or has been an independent investigator or
13 authorised officer is not obliged to comply with a summons or
14 similar direction of a court to attend and answer questions
15 relating to a rail safety matter or to produce any document or
16 other thing related to an investigation.
17 (2) An independent investigator or authorised officer is not
18 compellable to give an expert opinion in any civil or criminal
19 proceedings in relation to a matter related to rail safety.
20 (3) This section does not apply to a coronial inquest.
21 Division 6 -- Protection of restricted information
22 176. Limitations on disclosure etc. of restricted information
23 (1) A person who is or has been an independent investigator or
24 authorised officer must not --
25 (a) make a record of restricted information; or
26 (b) disclose restricted information to a person or a court.
27 Penalty: a fine of $55 000.
page 131
Rail Safety Bill 2009
Part 6 Investigations
Division 6 Protection of restricted information
s. 177
1 (2) A person who has, or had, access to restricted information under
2 section 177 must not --
3 (a) make a record of the information; or
4 (b) disclose the information to any person or to a court.
5 Penalty: a fine of $55 000.
6 (3) Subsections (1) and (2) do not apply to --
7 (a) anything done by a person in performing functions
8 under this Act or in connection with this Act; or
9 (b) disclosure to a court in criminal proceedings for an
10 offence against this Act; or
11 (c) disclosure to a coroner for the purposes of a coronial
12 inquest.
13 (4) If a person is prohibited by this section from disclosing
14 restricted information, then --
15 (a) the person cannot be required by a court to disclose the
16 information; and
17 (b) any information disclosed by the person in
18 contravention of this section is not admissible in any
19 civil or criminal proceedings, other than proceedings
20 against the person under this section.
21 177. Disclosure of restricted information in the interests of rail
22 safety
23 (1) Subject to subsection (2), the independent investigator may
24 direct that restricted information be disclosed to any person if
25 the independent investigator considers that the disclosure is
26 necessary or desirable --
27 (a) for the purposes of rail safety; or
28 (b) for the purpose of an investigation under another Act or
29 an Act of the Commonwealth, another State or a
30 Territory.
page 132
Rail Safety Bill 2009
Investigations Part 6
Protection of restricted information Division 6
s. 177
1 (2) The independent investigator may only disclose restricted
2 information that is, or that contains, personal information in the
3 circumstances prescribed by the regulations.
page 133
Rail Safety Bill 2009
Part 7 Review of decisions
s. 178
1 Part 7 -- Review of decisions
2 178. Terms used
3 In this Part --
4 eligible person in relation to the reviewable decision has the
5 meaning given in section 180(b);
6 reviewable decisions has the meaning given in section 180(a).
7 179. Application of Parliamentary Commissioner Act 1971 to Rail
8 Safety Regulator and rail safety officers
9 The Parliamentary Commissioner Act 1971 applies to the Rail
10 Safety Regulator as if --
11 (a) the Rail Safety Regulator were an authority within the
12 meaning of that Act; and
13 (b) rail safety officers exercising functions under this Act
14 were employees of the Rail Safety Regulator.
15 180. Reviewable decisions
16 The Table sets out --
17 (a) decisions made under this Act that are reviewable under
18 this Part (reviewable decisions); and
19 (b) who is eligible to apply for review of a reviewable
20 decision (the eligible person in relation to the
21 reviewable decision).
22 Table
Item Provision under Eligible person in relation
which reviewable to the reviewable decision
decision is made
1. s. 37(4) A rail transport operator
who has applied for
accreditation.
page 134
Rail Safety Bill 2009
Review of decisions Part 7
s. 180
Item Provision under Eligible person in relation
which reviewable to the reviewable decision
decision is made
2. s. 38(1) A rail transport operator
whose application for
accreditation is refused or is
subject to conditions or
restrictions.
3. s. 38(4) A rail transport operator
who has applied for
accreditation.
4. s. 46 A rail transport operator
whose accreditation is
revoked or suspended.
5. s. 47(1) A rail transport operator
whose accreditation is
suspended.
6. s. 47(2)(b) A rail transport operator
whose accreditation is
suspended.
7. s. 51(1) A rail transport operator
whose application for
variation of accreditation is
refused.
8. s. 51(1) A rail transport operator
whose accreditation is
varied subject to a condition
or restriction.
9. s. 51(4) A rail transport operator
who has applied for
variation of accreditation.
page 135
Rail Safety Bill 2009
Part 7 Review of decisions
s. 180
Item Provision under Eligible person in relation
which reviewable to the reviewable decision
decision is made
10. s. 53(1) A rail transport operator
given a direction to amend a
safety management system.
11. s. 54(3) A rail transport operator
whose application for
variation of a condition or
restriction is refused.
12. s. 55 A rail transport operator
whose conditions or
restrictions of accreditation
are changed.
13. s. 103(2)(c) A person who is the owner
as defined in section 103(1)
of the sample or thing.
14. s. 111(1) A person on whom an
improvement notice is
served.
15. s. 113(1)(b) A person on whom a notice
of amendment of an
improvement notice is
served.
16. s. 116(2) A person on whom a
prohibition notice is served.
17. s. 119(1)(b) A person on whom a notice
of amendment of a
prohibition notice is served.
page 136
Rail Safety Bill 2009
Review of decisions Part 7
s. 181
Item Provision under Eligible person in relation
which reviewable to the reviewable decision
decision is made
18. s. 135(1) A rail transport operator
who has been given a
written notice under the
provision.
1 181. Review by the Rail Safety Regulator
2 (1) An eligible person --
3 (a) in relation to a reviewable decision made by the Rail
4 Safety Regulator may, within 28 days after the decision
5 was made, apply to the Rail Safety Regulator for a
6 review of the decision; or
7 (b) in relation to a reviewable decision, other than a
8 decision made by the Rail Safety Regulator, may apply
9 to the Rail Safety Regulator for review of the decision
10 within --
11 (i) 28 days after the day on which the decision first
12 came to the eligible person's notice; or
13 (ii) such longer period as the Rail Safety Regulator
14 allows.
15 (2) The application must be in the form approved in writing by the
16 Rail Safety Regulator.
17 (3) If an application is made to the Rail Safety Regulator in
18 accordance with this section, the Rail Safety Regulator must
19 make a decision --
20 (a) to affirm or vary the reviewable decision; or
21 (b) to set aside the reviewable decision and substitute
22 another decision that the Rail Safety Regulator considers
23 appropriate.
page 137
Rail Safety Bill 2009
Part 7 Review of decisions
s. 181
1 (4) The Rail Safety Regulator must give a written notice to the
2 applicant setting out --
3 (a) the Rail Safety Regulator's decision under
4 subsection (3) and the reasons for the decision; and
5 (b) the findings on material questions of fact that led to the
6 decision, referring to the evidence or other material on
7 which those findings were based,
8 and must do so within 14 days after the application is made or,
9 if the reviewable decision was made under section 111, 116
10 or 119, within 7 days after the application is made.
11 (5) If the Rail Safety Regulator has not notified an applicant of a
12 decision in accordance with subsection (4), the Rail Safety
13 Regulator is taken to have made a decision to affirm the
14 reviewable decision.
15 (6) An application under this section does not affect the operation
16 of the reviewable decision or prevent the taking of any action to
17 implement it unless the Rail Safety Regulator, on the Rail
18 Safety Regulator's own initiative or on the application of the
19 applicant for review, stays the operation of the decision, not
20 being a prohibition notice, pending the determination of the
21 review.
22 (7) The Rail Safety Regulator must make a decision on an
23 application for a stay within 24 hours after the making of the
24 application.
25 (8) If the Rail Safety Regulator has not made a decision in
26 accordance with subsection (7), the Rail Safety Regulator is
27 taken to have made a decision to grant a stay.
28 (9) The Rail Safety Regulator may attach any conditions to a stay of
29 the operation of a reviewable decision that the Rail Safety
30 Regulator considers appropriate.
page 138
Rail Safety Bill 2009
Review of decisions Part 7
s. 182
1 182. Review by the State Administrative Tribunal
2 (1) A person may apply to the State Administrative Tribunal for a
3 review of --
4 (a) a reviewable decision made by the Rail Safety
5 Regulator; or
6 (b) a decision made, or taken to have been made, by the
7 Rail Safety Regulator under section 181 in respect of a
8 reviewable decision, including a decision concerning a
9 stay of the operation of the reviewable decision,
10 if the person is an eligible person in relation to the reviewable
11 decision.
12 (2) The application must be made --
13 (a) if the decision is to forfeit a thing, including a document,
14 seized under Part 5, within 28 days after the day on
15 which the decision first came to the applicant's notice;
16 or
17 (b) in the case of any other decision, within 14 days after
18 the day on which the decision first came to the
19 applicant's notice; or
20 (c) if the Rail Safety Regulator is required by the State
21 Administrative Tribunal Act 2004 section 21 to give the
22 applicant a statement of reasons, within 14 days after the
23 day on which the applicant is given the statement,
24 whichever period ends last.
page 139
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 1 General
s. 183
1 Part 8 -- General liability and evidentiary provisions
2 Division 1 -- General
3 183. Period within which proceedings for offences may be
4 commenced
5 (1) This section applies to an offence against a rail safety law, other
6 than --
7 (a) an offence prescribed for the purposes of this section;
8 and
9 (b) an offence in respect of which proceedings may only be
10 commenced within a period of less than 2 years after its
11 alleged commission.
12 (2) Despite anything to the contrary in any other Act, proceedings
13 for an offence against a rail safety law to which this section
14 applies may be commenced within --
15 (a) the period of 2 years after the commission of the alleged
16 offence; or
17 (b) a further period of one year commencing on the day on
18 which the Rail Safety Regulator, a rail safety officer or a
19 police officer first obtained evidence of the commission
20 of the alleged offence considered reasonably sufficient
21 by the Rail Safety Regulator or officer to warrant
22 commencing proceedings.
23 (3) For the purposes of subsection (2), a certificate purporting to
24 have been issued by the Rail Safety Regulator, a rail safety
25 officer or a police officer as to the date when the Rail Safety
26 Regulator or officer first obtained evidence considered
27 reasonably sufficient by the Rail Safety Regulator or officer to
28 warrant commencing proceedings is admissible in any
29 proceedings and is evidence of the matters stated.
page 140
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
General Division 1
s. 184
1 184. Authority to take proceedings
2 (1) Legal proceedings for an offence against, or to recover any
3 charge, fee or money due under this Act may be taken only by
4 the Rail Safety Regulator or by a person authorised by the Rail
5 Safety Regulator for the purpose, either generally or in any
6 particular case.
7 (2) In any proceedings referred to in this section, the production of
8 an authority purporting to be signed by the Rail Safety
9 Regulator is to be evidence of the authority without proof of the
10 signature of the Rail Safety Regulator.
11 (3) The Rail Safety Regulator may, for the purposes of
12 subsection (1), authorise any person who is a member of a
13 specified class of persons to take the actions referred to in that
14 subsection.
15 185. Vicarious responsibility
16 (1) In this section --
17 director of a body corporate includes a constituent member of a
18 body corporate incorporated for a public purpose by a law of
19 any jurisdiction;
20 state of mind of a person includes --
21 (a) the knowledge, intention, opinion, belief or purpose of
22 the person; and
23 (b) the person's reasons for the intention, opinion, belief or
24 purpose.
25 (2) If, in any proceedings for an offence against a rail safety law, it
26 is necessary to establish the state of mind of a body corporate in
27 relation to particular conduct, it is sufficient to show --
28 (a) that the conduct was engaged in by a director, employee
29 or agent of the body corporate within the scope of his or
30 her actual or apparent authority; and
31 (b) that the director, employee or agent had the relevant
32 state of mind.
page 141
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 1 General
s. 186
1 (3) For the purposes of a prosecution for an offence against a rail
2 safety law, conduct engaged in on behalf of a body corporate by
3 a director, employee or agent of the body corporate within the
4 scope of his or her actual or apparent authority is taken to have
5 been engaged in also by the body corporate unless the body
6 corporate establishes that it took reasonable precautions and
7 exercised due diligence to avoid the conduct.
8 (4) If, in proceedings for an offence against a rail safety law, it is
9 necessary to establish the state of mind of a person other than
10 the body corporate (the employer) in relation to particular
11 conduct, it is sufficient to show --
12 (a) that the conduct was engaged in by an employee or
13 agent of the employer within the scope of his or her
14 actual or apparent authority; and
15 (b) that the employee or agent had the relevant state of
16 mind.
17 (5) For the purposes of a prosecution for an offence against a rail
18 safety law, conduct engaged in on behalf of a person other than
19 a body corporate (the employer) by an employee or agent of the
20 employer within the scope of his or her actual or apparent
21 authority is taken to have been engaged in also by the employer,
22 unless the employer establishes that the employer took
23 reasonable precautions and exercised due diligence to avoid the
24 conduct.
25 186. Records and evidence from records
26 (1) The Rail Safety Regulator must keep records of the grant,
27 refusal, variation, suspension, surrender and revocation of
28 accreditations, and of any conditions or restrictions of
29 accreditations, and of improvement notices and prohibition
30 notices, under this Act.
31 (2) A certificate purporting to be signed by the Rail Safety
32 Regulator and certifying that --
33 (a) on a date specified in the certificate; or
page 142
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
General Division 1
s. 187
1 (b) during any period so specified,
2 the particulars set out in the certificate as to any matter required
3 to be recorded under this section did or did not appear on or
4 from the records is, for the purposes of any legal proceedings,
5 evidence of what it certifies.
6 (3) A certificate is admissible in any proceedings --
7 (a) without proof of the signature of the Rail Safety
8 Regulator; and
9 (b) without production of any record or document on which
10 the certificate is founded.
11 187. Certificate evidence
12 A statement in a certificate purporting to be issued by the Rail
13 Safety Regulator, a corresponding Rail Safety Regulator, a rail
14 safety officer or a police officer as to any matter that appears in,
15 or can be calculated from, records kept or accessed by the Rail
16 Safety Regulator is admissible in any proceedings and is
17 evidence of the matter.
18 188. Proof of appointments and signatures unnecessary
19 (1) In this section --
20 office holder means --
21 (a) the Rail Safety Regulator; or
22 (b) a corresponding Rail Safety Regulator; or
23 (c) the Commissioner of Police; or
24 (d) the head of the police force or police service of any
25 other jurisdiction; or
26 (e) a rail safety officer; or
27 (f) a rail safety officer of another jurisdiction; or
28 (g) a police officer; or
29 (h) a police officer of another jurisdiction.
page 143
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 1 General
s. 189
1 (2) For the purposes of this Act, it is not necessary to prove the
2 appointment of an office holder.
3 (3) For the purposes of this Act, a signature purporting to be the
4 signature of an office holder is evidence of the signature it
5 purports to be.
6 189. Offences relating to bodies corporate, partnerships,
7 associations and employees
8 (1) In this section --
9 officer, in relation to a body corporate, has the meaning given in
10 the Corporations Act 2001 (Commonwealth) but does not
11 include an employee of the body corporate unless he or she was
12 concerned in the management of the body corporate;
13 volunteer means a person who is acting on a voluntary basis
14 (irrespective of whether the person receives out of pocket
15 expenses).
16 (2) If a body corporate commits an offence against this Act and it is
17 proved that --
18 (a) the offence was committed with the consent or
19 connivance of an officer of the body corporate; or
20 (b) the officer failed to exercise such due diligence to
21 prevent the commission of the offence as ought to have
22 been exercised having regard to the nature of the
23 officer's functions and to all the circumstances,
24 the officer commits the same offence.
25 (3) If a person who is a partner in a partnership commits an offence
26 against a rail safety law in the course of the activities of the
27 partnership and it is proved that --
28 (a) the offence was committed with the consent or
29 connivance of another partner in the partnership or a
30 person concerned in the management of the partnership;
31 or
page 144
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
General Division 1
s. 189
1 (b) another partner in the partnership failed to exercise such
2 due diligence to prevent the commission of the offence
3 as ought to have been exercised having regard to the
4 nature of the partner's functions and to all the
5 circumstances; or
6 (c) a person concerned in the management of the
7 partnership failed to exercise such due diligence to
8 prevent the commission of the offence as ought to have
9 been exercised having regard to the nature of the
10 person's functions and to all the circumstances,
11 the other partner or the person concerned in the management of
12 the partnership, as the case may be, commits the same offence.
13 (4) If a person who is concerned in the management of an
14 unincorporated association commits an offence against a rail
15 safety law in the course of the activities of the unincorporated
16 association and it is proved that --
17 (a) the offence was committed with the consent or
18 connivance of another person concerned in the
19 management of the unincorporated association; or
20 (b) another person concerned in the management of the
21 unincorporated association failed to exercise such due
22 diligence to prevent the commission of the offence as
23 ought to have been exercised having regard to the nature
24 of the person's functions and to all the circumstances,
25 the other person concerned in the management of the
26 unincorporated association commits the same offence.
27 (5) Subsections (2), (3) and (4) do not affect the liability of the
28 person who actually committed the offence.
29 (6) If an employee commits an offence against a rail safety law, the
30 employer is taken to have committed the offence and is
31 punishable accordingly.
32 (7) A person may be proceeded against and found guilty of an
33 offence arising under this section whether or not the body
page 145
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 2 Discrimination against employees
s. 190
1 corporate or other person who actually committed the offence
2 has been proceeded against or been found guilty of the offence.
3 (8) It is a defence to a charge for an offence arising under
4 subsection (6) if the defendant establishes that --
5 (a) the defendant had no knowledge of the actual offence;
6 or
7 (b) the defendant took reasonable precautions and exercised
8 due diligence to prevent the commission of the actual
9 offence.
10 (9) A person who is --
11 (a) an officer of a body corporate (including a body
12 corporate representing the Crown); or
13 (b) a partner or a person concerned in the management of a
14 partnership; or
15 (c) a member of or other person concerned in the
16 management of an unincorporated association,
17 and who is a volunteer is not liable to be prosecuted under this
18 section for anything done or not done by him or her as a
19 volunteer.
20 Division 2 -- Discrimination against employees
21 190. Dismissal or other victimisation of employee
22 (1) In this section --
23 employee includes an individual who works under a contract for
24 services;
25 public agency includes an Australian Rail Safety Regulator, a
26 rail safety officer, a police officer and a police officer of another
27 jurisdiction.
28 (2) This section applies to --
29 (a) an employer who dismisses an employee, injures an
30 employee in the employment of the employer or alters
page 146
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
Discrimination against employees Division 2
s. 190
1 the position of an employee to the employee's
2 detriment; and
3 (b) an employer who threatens to do any of those things to
4 an employee; and
5 (c) an employer or prospective employer who refuses or
6 fails to offer employment to a prospective employee, or
7 treats a prospective employee less favourably than
8 another prospective employee would be treated in
9 offering terms of employment.
10 (3) The employer or prospective employer commits a crime if the
11 employer or prospective employer engaged in that conduct
12 because the employee or prospective employee, as the case may
13 be --
14 (a) has assisted or has given any information to a public
15 agency in respect of a breach or alleged breach of an
16 Australian rail safety law; or
17 (b) has made a complaint about a breach or alleged breach
18 of an Australian rail safety law to the employer, a fellow
19 employee, a union or a public agency; or
20 (c) assists or has assisted, or gives or has given any
21 information to, a public agency in respect of a breach or
22 alleged breach of an Australian rail safety law; or
23 (d) has made a complaint about a breach or alleged breach
24 of an Australian rail safety law to a former employer, a
25 former fellow employee, a union or a public agency.
26 Penalty:
27 (a) for an individual, a fine of $5 000;
28 (b) for a body corporate, a fine of $50 000.
29 (4) An employer or prospective employer may be guilty of an
30 offence against subsection (3) only if the reason mentioned in
31 subsection (3)(a), (b), (c) or (d) is the dominant reason why the
32 employer or prospective employer engaged in the conduct.
page 147
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 3 False or misleading information
s. 191
1 191. Defendant bears onus of proof
2 In proceedings for an offence against section 190, if all the facts
3 constituting the offence other than the reason for the defendant's
4 conduct are proved, the defendant bears the onus of proving that
5 the reason alleged in the charge was not the dominant reason
6 why the defendant engaged in the conduct.
7 192. Order for damages or reinstatement
8 (1) In this section --
9 employee includes an individual who works under a contract for
10 services.
11 (2) If an employer or prospective employer is convicted or found
12 guilty of an offence against section 190, the court may, in
13 addition to imposing a penalty, make either or both of the
14 following orders --
15 (a) an order that the offender pay, within a specified period,
16 such damages to the employee or prospective employee
17 against whom the offender discriminated as the court
18 considers appropriate to compensate him or her;
19 (b) an order that --
20 (i) the employee be reinstated or re-employed in his
21 or her former position or, if that position is not
22 available, in a similar position; or
23 (ii) the prospective employee be employed in the
24 position for which he or she had applied or a
25 similar position.
26 Division 3 -- False or misleading information
27 193. False or misleading information provided to Rail Safety
28 Regulator or officials
29 (1) In this section --
30 official means a rail safety officer or a person assisting a rail
31 safety officer.
page 148
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
False or misleading information Division 3
s. 193
1 (2) A person commits an offence if --
2 (a) the person makes a statement to the Rail Safety
3 Regulator or to an official who is exercising a power
4 under a rail safety law; and
5 (b) the person knows that the statement is false or
6 misleading in a material particular.
7 (3) A person commits an offence if --
8 (a) the person makes a statement to the Rail Safety
9 Regulator or to an official who is exercising a power
10 under a rail safety law; and
11 (b) the statement is false or misleading in a material
12 particular; and
13 (c) the person is reckless as to whether the statement is false
14 or misleading in a material particular.
15 (4) A person commits an offence if --
16 (a) the person gives a document to the Rail Safety
17 Regulator or to an official who is exercising a power
18 under a rail safety law; and
19 (b) the document contains a statement that is false or
20 misleading in a material particular; and
21 (c) the person is reckless as to whether the document
22 contains a statement that is false or misleading in a
23 material particular.
24 (5) Subsection (4) does not apply if, at the time the person gave the
25 document to the Rail Safety Regulator or to an official, the
26 person informed the Rail Safety Regulator or official that the
27 document contained a statement that was false or misleading in
28 a material particular and specified in what respect it was false or
29 misleading.
page 149
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 4 Other offences
s. 194
1 (6) The penalty for an offence under this section committed in
2 relation to the Rail Safety Regulator or official exercising a
3 power under a rail safety law is --
4 (a) if there is one offence under the provision of the rail
5 safety law under which the power is exercised, the
6 penalty for that offence; or
7 (b) if there is more than one offence under that provision,
8 the penalties for those offences if the penalties are the
9 same, or the lower or lowest of the penalties if they are
10 different; or
11 (c) if there is no offence under that provision, the following
12 penalty --
13 Penalty:
14 (a) for a first offence, a fine of $28 000;
15 (b) for a second or subsequent offence, a fine of $41 000.
16 Division 4 -- Other offences
17 194. Obstructing or hindering rail safety officers
18 (1) A person must not --
19 (a) intentionally hinder or obstruct the Rail Safety
20 Regulator, a rail safety officer or a person assisting the
21 Rail Safety Regulator or a rail safety officer in the
22 exercise of his or her functions under this Act, or induce
23 or attempt to induce any other person to do so; or
24 (b) intentionally conceal from the Rail Safety Regulator, a
25 rail safety officer or a person assisting the Rail Safety
26 Regulator or a rail safety officer, the location or
27 existence of, or fail to comply with a request to produce,
28 a record, document or any other thing.
29 Penalty: a fine of $28 000.
30 (2) A person must not assault, directly or indirectly intimidate or
31 threaten, or attempt to intimidate or threaten, the Rail Safety
page 150
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
Other offences Division 4
s. 195
1 Regulator, a rail safety officer or a person assisting the Rail
2 Safety Regulator or a rail safety officer.
3 Penalty: a fine of $28 000.
4 195. Offence to impersonate rail safety officer
5 A person who is not a rail safety officer must not, in any way,
6 hold himself or herself out to be a rail safety officer.
7 Penalty: a fine of $28 000.
8 196. Not to interfere with rail infrastructure etc.
9 (1) In this section --
10 authorised person means the rail transport operator, a rail safety
11 officer or a police officer.
12 (2) A person must not, without either the permission of an
13 authorised person or reasonable excuse --
14 (a) move or attempt to move; or
15 (b) interfere or attempt to interfere with; or
16 (c) disable or attempt to disable; or
17 (d) operate or attempt to operate,
18 any equipment, rail infrastructure or rolling stock owned or
19 operated by a rail transport operator.
20 Penalty: a fine of $28 000.
21 197. Applying brake or emergency device
22 A person must not, without reasonable excuse --
23 (a) apply any brake or make use of any emergency device
24 fitted to a train or tram; or
25 (b) make use of any emergency device on railway premises.
26 Penalty: a fine of $28 000.
page 151
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 5 Enforceable voluntary undertakings
s. 198
1 198. Stopping a train or tram
2 A person must not, without reasonable excuse, cause or attempt
3 to cause a train or tram in motion to be stopped.
4 Penalty: a fine of $28 000.
5 Division 5 -- Enforceable voluntary undertakings
6 199. Rail Safety Regulator may accept undertakings
7 (1) The Rail Safety Regulator may accept, by written notice, a
8 written undertaking given by a person in connection with a
9 matter relating to a contravention or alleged contravention by
10 the person of this Act.
11 (2) The person may withdraw or vary the undertaking at any time
12 but only with the Rail Safety Regulator's written consent.
13 (3) Neither the Rail Safety Regulator nor a rail safety officer may
14 bring proceedings for an offence against this Act constituted by
15 the contravention or alleged contravention to which the
16 undertaking relates.
17 200. Enforcement of undertakings
18 (1) If the Rail Safety Regulator considers that a person has
19 contravened an undertaking accepted by the Rail Safety
20 Regulator, the Rail Safety Regulator may apply to the
21 Magistrates Court for enforcement of the undertaking.
22 (2) If the Magistrates Court is satisfied that the person has
23 contravened the undertaking, it may make --
24 (a) an order that the person must comply with the
25 undertaking or take specified action to comply with the
26 undertaking; or
27 (b) any other order that it considers appropriate.
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General liability and evidentiary provisions Part 8
Court based sanctions Division 6
s. 201
1 Division 6 -- Court based sanctions
2 201. Daily penalty for continuing offences
3 (1) If an offence is committed by a person by reason of a
4 contravention of a provision of this Act, but not the regulations,
5 under which the person is required or directed to do any act or
6 thing, or to refrain from doing any act or thing, that offence is
7 taken to continue so long as the act or thing so required or
8 directed remains undone, or continues to be done, as the case
9 may be.
10 (2) A person convicted of such an offence is liable, in addition to
11 the penalty otherwise prescribed for the offence, to a daily
12 penalty not exceeding one fifth of the maximum penalty
13 prescribed for the offence for each day or part of a day during
14 which the offence continues after conviction.
15 202. Commercial benefits order
16 (1) A court that finds a person guilty of an offence against a rail
17 safety law may, on the application of the prosecutor or the Rail
18 Safety Regulator, make an order under this section.
19 (2) The court may make a commercial benefits order requiring the
20 person to pay, as a fine, an amount not exceeding 3 times the
21 amount estimated by the court to be the gross commercial
22 benefit that --
23 (a) was received or receivable, by the person or by an
24 associate of the person, from the commission of the
25 offence; and
26 (b) in the case of a journey that was interrupted or not
27 commenced because of action taken by a rail safety
28 officer in connection with the commission of the
29 offence, would have been received or receivable, by the
30 person or by an associate of the person, from the
31 commission of the offence had the journey been
32 completed.
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Part 8 General liability and evidentiary provisions
Division 6 Court based sanctions
s. 202
1 (3) In estimating the gross commercial benefit that was or would
2 have been received or receivable from the commission of the
3 offence, the court may take into account --
4 (a) benefits of any kind, whether monetary or otherwise;
5 and
6 (b) monetary savings or a reduction in any operating or
7 capital expenditure of any kind achieved because of the
8 commission of the offence; and
9 (c) any other matters that it considers relevant, including,
10 for example --
11 (i) the value per tonne or per kilometre of the
12 carriage of the goods involved in the offence as
13 freight; and
14 (ii) the distance over which any such goods were or
15 were to be carried.
16 (4) In estimating the gross commercial benefit that was or would
17 have been received or receivable from the commission of the
18 offence, the court is required to disregard any costs, expenses or
19 liabilities incurred by the person or by an associate of the
20 person.
21 (5) Nothing in this section prevents the court from ordering
22 payment of an amount that is --
23 (a) less than 3 times the estimated gross commercial
24 benefit; or
25 (b) less than the estimated gross commercial benefit.
26 (6) For the purposes of this section, a person is an associate of
27 another if --
28 (a) one is a spouse, de facto partner, parent, brother, sister
29 or child of the other; or
30 (b) they are members of the same household; or
31 (c) they are partners; or
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General liability and evidentiary provisions Part 8
Court based sanctions Division 6
s. 203
1 (d) they are both trustees or beneficiaries of the same trust,
2 or one is a trustee and the other is a beneficiary of the
3 same trust; or
4 (e) one is a body corporate and the other is a director or
5 member of the governing body of the body corporate; or
6 (f) one is a body corporate, other than a public company
7 whose shares are listed on a stock exchange, and the
8 other is a shareholder in the body corporate; or
9 (g) one is a related body corporate, as defined in the
10 Corporations Act 2001 (Commonwealth) section 9, of
11 the other; or
12 (h) a chain of relationships can be traced between them
13 under any one or more of the above paragraphs.
14 (7) For the purposes of subsection (6), a beneficiary of a trust
15 includes an object of a trust.
16 203. Exclusion orders
17 (1) A court that finds a person guilty of an offence against a rail
18 safety law may, on the application of the prosecutor or the Rail
19 Safety Regulator, if the court considers the person to be a
20 systematic or persistent offender against the Australian rail
21 safety laws, make an order under this section.
22 (2) For the purpose of restricting opportunities for the person to
23 commit or be involved in the commission of further offences
24 against Australian rail safety laws, the court may, if it considers
25 it appropriate to do so, make an exclusion order prohibiting the
26 person, for a specified period, from --
27 (a) managing rail infrastructure, or operating rolling stock,
28 or managing or operating a particular type of rail
29 infrastructure or rolling stock; or
30 (b) being a director, secretary or officer concerned in the
31 management of a body corporate involved in managing
32 rail infrastructure that is in this jurisdiction or operating
33 rolling stock in this jurisdiction; or
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Division 6 Court based sanctions
s. 204
1 (c) being involved in managing rail infrastructure that is in
2 this jurisdiction or operating rolling stock in this
3 jurisdiction except by driving a train or rolling stock.
4 (3) A court may only make an order under this section if it is
5 satisfied that the person should not continue the things the
6 subject of the proposed order, having regard to --
7 (a) the offences against the Australian rail safety laws of
8 which the person has previously been found guilty; and
9 (b) the offences against the Australian rail safety laws of
10 which the person has been proceeded against by way of
11 unwithdrawn infringement notices; and
12 (c) any other offences or other matters that the court
13 considers to be relevant to the conduct of the person in
14 connection with railway operations.
15 (4) A court that has power to make an exclusion order may revoke
16 or amend an exclusion order on the application of --
17 (a) the Rail Safety Regulator; or
18 (b) the person in respect of whom the order was made, but
19 in that case only if the court is satisfied that there has
20 been a change of circumstances warranting revocation or
21 amendment.
22 204. Contravention of exclusion order
23 A person who is subject to an exclusion order must not engage
24 in conduct that results in a contravention of the order.
25 Penalty:
26 (a) for an individual, a fine of $82 000;
27 (b) for a body corporate, a fine of $820 000.
page 156
Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
Undertakings Division 7
s. 205
1 Division 7 -- Undertakings
2 205. Court may allow offender to make election
3 (1) If --
4 (a) a person (the offender) is found guilty, whether after a
5 plea of guilty or otherwise, of an offence against a rail
6 safety law; and
7 (b) the court has fined the offender; and
8 (c) the court considers the person to be a systematic or
9 persistent offender against the Australian rail safety
10 laws; and
11 (d) the court is satisfied that an undertaking by the offender
12 is capable of improving the offender's ability or
13 willingness to comply with the rail safety laws, having
14 regard to --
15 (i) the offences against Australian rail safety laws of
16 which the offender has been previously found
17 guilty; and
18 (ii) the offences against Australian rail safety laws
19 for which the offender has been proceeded
20 against by way of unwithdrawn infringement
21 notices; and
22 (iii) any other offences or other matters that the court
23 considers to be relevant to the conduct of the
24 offender in connection with railway operations,
25 the court may, subject to subsection (2), make an order allowing
26 the offender to elect either --
27 (e) to pay the fine; or
28 (f) as an alternative, to enter into an undertaking with the
29 Rail Safety Regulator under section 209 not later than a
30 day specified by the court.
page 157
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Part 8 General liability and evidentiary provisions
Division 7 Undertakings
s. 206
1 (2) A court is not to make an order under this section unless the
2 court is satisfied that --
3 (a) the offender wishes an order to be made and the Rail
4 Safety Regulator does not oppose that being done; and
5 (b) the offender and the Rail Safety Regulator are likely to
6 reach agreement on the provisions of the proposed
7 undertaking within the time that the court proposes to
8 specify under subsection (1)(f).
9 (3) After the court has fined the offender, the court may adjourn the
10 proceedings to allow --
11 (a) the offender time to consider whether the offender
12 wishes an order to be made; and
13 (b) the Rail Safety Regulator time to consider whether to
14 oppose that being done,
15 as mentioned in subsection (2)(a).
16 (4) Nothing in this Division limits the powers of a court under the
17 Sentencing Act 1995.
18 206. Making of election
19 (1) An election is made, pursuant to an order under section 205(1),
20 by the offender --
21 (a) lodging an election in writing with the court in which
22 the order was made; and
23 (b) serving a copy of the election on the Rail Safety
24 Regulator,
25 not later than 28 days after the day on which the order was
26 made.
27 (2) If --
28 (a) an order is made under section 205(1); but
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General liability and evidentiary provisions Part 8
Undertakings Division 7
s. 207
1 (b) the offender fails to make an election in accordance with
2 subsection (1),
3 the offender is taken, at the expiry of the period mentioned in
4 subsection (1), to have elected to pay the fine.
5 207. Failure to enter into undertaking
6 An election under section 206 to enter into an undertaking
7 lapses if the undertaking is for any reason not entered into
8 before the time allowed under section 205(1)(f).
9 208. Time for payment of fine
10 (1) The liability of the offender to pay a fine in connection with
11 which an order is made under section 205(1) is suspended by
12 the making of the order.
13 (2) If the offender elects to pay the fine, for the purposes of the
14 Fines, Penalties and Infringement Notices Enforcement
15 Act 1994 section 32, the fine is taken to have been imposed on
16 the day on which the election is made.
17 (3) If the offender is taken by section 206(2) to have elected to pay
18 the fine, for the purposes of the section referred to in
19 subsection (2) the fine is taken to have been imposed at the time
20 mentioned in section 206(2).
21 (4) If --
22 (a) the offender elects to enter into an undertaking; but
23 (b) the election lapses under section 207,
24 for the purposes of the section referred to in subsection (2) the
25 fine is taken to have been imposed on the day specified under
26 section 205(1)(f).
page 159
Rail Safety Bill 2009
Part 8 General liability and evidentiary provisions
Division 7 Undertakings
s. 209
1 209. Nature and terms of undertaking
2 (1) An undertaking for the purposes of this Division is a document
3 by which the offender gives undertakings to the Rail Safety
4 Regulator that the offender will --
5 (a) take the action specified in the undertaking; and
6 (b) bear the costs and expenses of doing so; and
7 (c) complete all of the required action not later than a day
8 specified in the document.
9 (2) The action required to be taken by the offender is to come
10 within the provisions described in section 210(2) or (3).
11 (3) The provisions of the undertaking are to be such as are agreed
12 between the Rail Safety Regulator and the offender.
13 (4) The Rail Safety Regulator is to furnish a copy of an
14 undertaking, and of any amendment made under section 213, to
15 the court concerned.
16 210. What may be included in undertaking
17 (1) In this section --
18 specified means specified in the undertaking.
19 (2) An undertaking is to provide for the offender to do one or more
20 of the following --
21 (a) to do specified things that the Rail Safety Regulator
22 considers will improve the person's compliance with rail
23 safety laws or specified aspects of rail safety laws,
24 including, for example, the following --
25 (i) appointing or removing staff to or from
26 particular activities or positions;
27 (ii) training and supervising staff;
28 (iii) obtaining expert advice as to maintaining
29 appropriate compliance;
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General liability and evidentiary provisions Part 8
Undertakings Division 7
s. 210
1 (iv) installing monitoring, compliance, managerial or
2 operational equipment;
3 (v) implementing monitoring, compliance,
4 managerial or operational practices, systems or
5 procedures;
6 (b) to conduct specified monitoring, compliance,
7 managerial or operational practices, systems or
8 procedures subject to the direction of the Rail Safety
9 Regulator or a person nominated by the Rail Safety
10 Regulator;
11 (c) to furnish compliance reports to the Rail Safety
12 Regulator as specified;
13 (d) to appoint a person to have responsibilities --
14 (i) to assist the person in improving compliance
15 with rail safety laws or specified aspects of rail
16 safety laws; and
17 (ii) to monitor the person's performance in
18 complying with rail safety laws or specified
19 aspects of rail safety laws and in complying with
20 the requirements of the undertaking; and
21 (iii) to furnish compliance reports to the Rail Safety
22 Regulator as specified.
23 (3) The Rail Safety Regulator may require that an undertaking
24 contain any incidental or supplementary provision that the Rail
25 Safety Regulator considers necessary or expedient to achieve its
26 purpose, including provision for --
27 (a) the reporting of matters; and
28 (b) the reporting of compliance under section 214,
29 to the Rail Safety Regulator.
30 (4) An undertaking cannot provide for the offender to take any
31 action --
32 (a) that the offender has a duty to take in order to comply
33 with any provision of this Act; or
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Part 8 General liability and evidentiary provisions
Division 7 Undertakings
s. 211
1 (b) for the taking of which an improvement notice or a
2 prohibition notice could be issued.
3 211. Effect of undertaking
4 The liability of the offender to pay a fine in connection with
5 which the undertaking is given --
6 (a) is suspended by the giving of the undertaking; and
7 (b) is cancelled by the full discharge of the offender's
8 obligations under the undertaking.
9 212. Failure to comply with undertaking
10 (1) An offender commits an offence if the offender fails to
11 discharge fully the obligations under an undertaking before the
12 day specified in the undertaking in accordance with
13 section 209(1)(c).
14 Penalty:
15 (a) if the offence was committed by the offender as an
16 employee --
17 (i) for a first offence, a fine of $6 000;
18 (ii) for a subsequent offence, a fine of $8 000;
19 (b) if paragraph (a) does not apply --
20 (i) in the case of an individual --
21 (I) for a first offence, a fine of $28 000;
22 (II) for a subsequent offence, a fine of
23 $41 000;
24 (ii) in the case of a body corporate --
25 (I) for a first offence, a fine of $280 000;
26 (II) for a subsequent offence, a fine of
27 $410 000.
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Rail Safety Bill 2009
General liability and evidentiary provisions Part 8
Undertakings Division 7
s. 213
1 (2) A court that convicts an offender of an offence against
2 subsection (1) must order that a fine to which the undertaking
3 relates be paid in addition to any penalty imposed for the
4 offence against subsection (1).
5 (3) For the purposes of the Fines, Penalties and Infringement
6 Notices Enforcement Act 1994 section 32, a fine to which an
7 order under subsection (2) applies is taken to be imposed on the
8 day on which that order is made.
9 213. Amendment of undertaking
10 An undertaking may be amended by an instrument in writing
11 signed by the offender and the Rail Safety Regulator.
12 214. Compliance report
13 (1) A compliance report required by the Rail Safety Regulator
14 under section 210(3)(b) may require that the offender report
15 on --
16 (a) the performance of the offender in complying with --
17 (i) the rail safety laws or aspects of rail safety laws
18 specified in the undertaking; and
19 (ii) the requirements of the undertaking;
20 and
21 (b) without limiting the above --
22 (i) things done by the offender to ensure that any
23 failure by the offender to comply with the rail
24 safety laws or the specified aspects of the rail
25 safety laws does not continue; and
26 (ii) the results of those things having been done.
27 (2) A requirement of the Rail Safety Regulator may specify matters
28 that are to be dealt with in compliance reports and the form and
29 manner in which, and frequency with which, compliance reports
30 are to be prepared and furnished.
page 163
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Part 8 General liability and evidentiary provisions
Division 7 Undertakings
s. 214
1 (3) The Rail Safety Regulator may require that compliance reports
2 or aspects of compliance reports be made public, and may
3 specify the form and manner in which, and frequency with
4 which, they are to be made public.
page 164
Rail Safety Bill 2009
General Part 9
Confidentiality Division 1
s. 215
1 Part 9 -- General
2 Division 1 -- Confidentiality
3 215. Confidentiality
4 (1) This section applies to a person engaged or previously engaged
5 in the administration of this Act and without limiting the
6 foregoing to the following --
7 (a) a rail safety officer or a person assisting a rail safety
8 officer;
9 (b) an independent investigator or authorised officer;
10 (c) a person authorised by the Rail Safety Regulator or rail
11 safety officer under a provision of this Act to do the act
12 or thing provided for in that provision;
13 (d) a person who is or was a delegate of the Rail Safety
14 Regulator;
15 (e) a person who is or was employed by, or engaged to
16 provide services to or on behalf of, the Rail Safety
17 Regulator;
18 (f) a person who is or was employed by, or engaged to
19 provide services to, a person or body engaged to provide
20 services to the Rail Safety Regulator.
21 (2) Subject to Part 6 Division 6, a person to whom this section
22 applies must not disclose or communicate information obtained
23 (whether by that person or otherwise) in the administration of
24 this Act except --
25 (a) as required or authorised under this or any other Act; or
26 (b) with the consent of the person from whom the
27 information was obtained or to whom the information
28 relates; or
29 (c) in connection with the administration of rail safety laws
30 or corresponding rail safety laws; or
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Part 9 General
Division 2 Civil liability
s. 216
1 (d) for law enforcement purposes, an investigation under
2 section 83 or public safety; or
3 (e) for the purpose of enforcing the provisions of the
4 Occupational Safety and Health Act 1984; or
5 (f) to a court or in connection with any legal proceedings;
6 or
7 (g) in accordance with the regulations.
8 Penalty: a fine of $55 000.
9 (3) Nothing in this section prevents information being used to
10 enable an Australian Rail Safety Regulator to accumulate
11 aggregate data and to enable the Australian Rail Safety
12 Regulator to authorise use of the aggregate data for the purposes
13 of research or education.
14 Division 2 -- Civil liability
15 216. Civil liability not affected by Part 4 Division 1 or 4
16 (1) Nothing in Part 4 Division 1 or 4 is to be construed --
17 (a) as conferring a right of action in any civil proceedings in
18 respect of any contravention, whether by act or
19 omission, of any provisions of that Division; or
20 (b) as conferring a defence to an action in any civil
21 proceedings or as otherwise affecting a right of action in
22 any civil proceedings.
23 (2) Subsection (1) does not affect the extent, if any, to which a
24 breach of duty imposed by the regulations is actionable.
25 217. Immunity from tortious liability
26 (1) In this section --
27 official means --
28 (a) the Rail Safety Regulator; or
29 (b) a rail safety officer; or
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General Part 9
Civil liability Division 2
s. 218
1 (c) an independent investigator; or
2 (d) an authorised officer.
3 (2) In this section, a reference to the doing of anything includes a
4 reference to an omission to do anything.
5 (3) An action in tort does not lie against an official for anything that
6 the official has done, in good faith, in the performance or
7 purported performance of a function under this Act.
8 (4) The protection given by subsection (3) applies even though the
9 thing done as described in that subsection may have been
10 capable of being done whether or not this Act had been enacted.
11 (5) The State is also relieved of any liability that it might otherwise
12 have had for another person having done anything as described
13 in subsection (3).
14 218. Immunity for reporting unfit rail safety worker
15 (1) In this section --
16 person to whom this section applies means --
17 (a) a medical practitioner as defined in the Medical
18 Practitioners Act 2008 section 4; or
19 (b) an optometrist as defined in the Optometrists Act 2005
20 section 3; or
21 (c) a physiotherapist as defined in the Physiotherapists
22 Act 2005 section 3.
23 (2) No action may be taken against a person to whom this section
24 applies who, in good faith, reports to --
25 (a) an independent investigator; or
26 (b) the Rail Safety Regulator; or
27 (c) a rail transport operator; or
page 167
Rail Safety Bill 2009
Part 9 General
Division 3 Compliance codes and guidelines
s. 219
1 (d) any other person to whom this section applies who is
2 employed or engaged by the Rail Safety Regulator or a
3 rail transport operator,
4 any information which discloses that a person is unfit to carry
5 out rail safety work or certain types of rail safety work or that it
6 may be dangerous to allow that person to carry out rail safety
7 work or certain types of rail safety work.
8 (3) No action may be taken against a person to whom this section
9 applies who, in good faith, reports --
10 (a) the results of a test or examination carried out under this
11 Act; or
12 (b) an opinion formed by that person as a result of
13 conducting such a test or examination,
14 to a person referred to in subsection (2)(b), (c) or (d).
15 Division 3 -- Compliance codes and guidelines
16 219. Approval of compliance codes and guidelines
17 (1) For the purpose of providing practical guidance to persons who
18 have duties or obligations under this Act, the Minister may
19 make an order --
20 (a) approving a compliance code; or
21 (b) approving guidelines.
22 (2) The Minister may make an order approving the variation of a
23 compliance code or guidelines or revoking the approval of a
24 compliance code or guidelines.
25 (3) An order approving a compliance code or guidelines, or a
26 variation or revocation order, takes effect when notice of it is
27 published in the Gazette or on such later date as is specified in
28 the order.
29 (4) As soon as practicable after making an order approving a
30 compliance code or guidelines, or a variation or revocation
page 168
Rail Safety Bill 2009
General Part 9
Compliance codes and guidelines Division 3
s. 220
1 order, the Minister must ensure that notice of the making of the
2 order is published in the Gazette.
3 (5) The Minister must ensure that a copy of --
4 (a) each compliance code that is currently approved; and
5 (b) guidelines that are currently approved,
6 is or are available for inspection by members of the public
7 without charge at the office of the Rail Safety Regulator during
8 normal business hours.
9 (6) The Interpretation Act 1984 section 44 applies to a compliance
10 code or guidelines as if the code or guidelines were subsidiary
11 legislation.
12 220. Effect of compliance code or guidelines
13 A failure to comply with a compliance code or guidelines does
14 not give rise to any civil or criminal liability.
15 221. Effect of complying with a compliance code
16 If --
17 (a) a compliance code makes provision for or with respect
18 to a duty or obligation imposed by this Act; and
19 (b) a person complies with the compliance code to the
20 extent that it makes that provision,
21 the person is, for the purposes of this Act, taken to have
22 complied with this Act in relation to that duty or obligation.
23 222. Disallowance of compliance codes
24 The Interpretation Act 1984 sections 41 and 42 apply to an
25 order approving a compliance code, or a variation order, as if
26 the order were a regulation having legislative effect.
page 169
Rail Safety Bill 2009
Part 9 General
Division 4 Miscellaneous
s. 223
1 Division 4 -- Miscellaneous
2 223. Recovery of certain costs
3 The Rail Safety Regulator may recover as a debt from a rail
4 transport operator the reasonable costs of the entry and
5 inspection of railway infrastructure, rolling stock or railway
6 premises in respect of which the person is accredited, other than
7 the costs of an inspection of an accredited person under
8 section 84.
9 224. Recovery of amounts due
10 Every fee, charge or other amount of money payable under this
11 Act may be recovered by the Rail Safety Regulator as a debt
12 due to the Crown in a court of competent jurisdiction.
13 225. Compliance with conditions of accreditation
14 If --
15 (a) a condition or restriction to which the accreditation of a
16 person is subject makes provision for or with respect to
17 a duty or obligation imposed by this Act; and
18 (b) the accredited person complies with the condition or
19 restriction to the extent that it makes that provision,
20 the accredited person is, for the purposes of this Act, taken to
21 have complied with this Act in relation to that duty or
22 obligation.
23 226. Prescribed persons
24 A person prescribed by the regulations for the purposes of this
25 section must give notice in the prescribed form and within a
26 prescribed period to a rail transport operator of the
27 commencement, or discontinuation, or completion of prescribed
28 operations or activities that may adversely affect the safety of
page 170
Rail Safety Bill 2009
General Part 9
Miscellaneous Division 4
s. 227
1 any rail infrastructure or rolling stock of a rail transport
2 operator.
3 Penalty:
4 (a) for an individual --
5 (i) for a first offence, a fine of $28 000;
6 (ii) for a second or subsequent offence, a fine of
7 $41 000;
8 (b) for a body corporate --
9 (i) for a first offence, a fine of $280 000;
10 (ii) for a second or subsequent offence, a fine of
11 $410 000.
12 227. Contracting out prohibited
13 A term of any contract or agreement that purports to exclude,
14 limit or modify the operation of this Act or of any provision of
15 this Act is void to the extent that it would otherwise have effect.
16 228. Regulations
17 (1) The Governor may make regulations prescribing all matters that
18 are required or permitted by this Act to be prescribed, or are
19 necessary or convenient to be prescribed for giving effect to the
20 purposes of this Act.
21 (2) Without affecting the generality of subsection (1), regulations
22 may be made with respect to the following --
23 (a) trespassing on railway tracks, tramway tracks or railway
24 premises;
25 (b) fees for the purposes of this Act;
26 (c) forms for the purposes of this Act.
page 171
Rail Safety Bill 2009
Part 9 General
Division 4 Miscellaneous
s. 228
1 (3) Regulations made under this Act --
2 (a) may apply, adopt or incorporate any matter contained in
3 any document whether --
4 (i) wholly or partially or as amended by the
5 regulations; or
6 (ii) as in force at a particular time or as in force from
7 time to time;
8 and
9 (b) may provide that an application may be made to the
10 State Administrative Tribunal for the review of a
11 decision made under the regulations.
12 (4) Regulations made under this Act may impose a penalty for a
13 contravention of the regulations not exceeding --
14 (a) in the case of an offence committed by a person as an
15 employee --
16 (i) for a first offence, a fine of $6 000; and
17 (ii) for a subsequent offence, a fine of $8 000;
18 (b) in the case of an offence committed by an individual
19 where paragraph (a) does not apply --
20 (i) for a first offence, a fine of $28 000; and
21 (ii) for a subsequent offence, a fine of $41 000;
22 (c) in the case of an offence committed by a body
23 corporate --
24 (i) for a first offence, a fine of $280 000; and
25 (ii) for a subsequent offence, a fine of $410 000,
26 and if the offence is a continuing one a further penalty not
27 exceeding --
28 (d) $200, in the case of an offence committed by a person as
29 an employee;
30 (e) $1 000, in the case of an offence committed by an
31 individual where paragraph (d) does not apply;
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Rail Safety Bill 2009
General Part 9
Miscellaneous Division 4
s. 229
1 (f) $2 000, in the case of an offence committed by a body
2 corporate,
3 for each day or part of a day during which the offence continues
4 after notice of the offence has been given by a rail safety officer
5 to the offender.
6 (5) The regulations may exempt, or provide for the exemption of,
7 either absolutely or subject to conditions, any person, railway,
8 part of a railway or operation from all or any of the provisions
9 of this Act.
10 229. Repeals
11 (1) The Rail Safety Act 1998 is repealed.
12 (2) The Rail Safety Regulations 1999 are repealed.
page 173
Rail Safety Bill 2009
Part 10 Transitional
s. 230
1 Part 10 -- Transitional
2 230. Terms used
3 In this Part --
4 commencement day means the day on which section 3 comes
5 into operation;
6 development period means a period of 12 months beginning on
7 the commencement day;
8 the repealed Act means the Rail Safety Act 1998.
9 231. Interpretation Act 1984 not affected
10 The provisions of this Part do not prejudice or affect the
11 application of the Interpretation Act 1984 to and in relation to
12 the repeals effected by section 229.
13 232. Authorised officer
14 (1) A person who was an authorised officer under the repealed Act
15 immediately before the commencement day is to be taken to be
16 a rail safety officer appointed under section 22(1) for a period of
17 2 years beginning on that day on the same conditions and
18 limitations, if any, as applied to his or her appointment as an
19 authorised officer.
20 (2) An identity card held by an authorised officer referred to in
21 subsection (1) immediately before the commencement day is to
22 be taken, for a period of 6 months after that day, to be an
23 identification card issued to that person under section 24(a).
24 233. Accreditation
25 A person accredited under section 8(1) or (2) of the repealed
26 Act immediately before the commencement day is to be taken to
27 have been granted accreditation under section 38 appropriate to
28 the person's circumstances (unless there is no requirement to
29 hold such an accreditation under this Act), and subject to the
page 174
Rail Safety Bill 2009
Transitional Part 10
s. 234
1 same conditions as applied to that person's accreditation under
2 the repealed Act.
3 234. Interim accreditation
4 A person accredited under section 11(a), (b) or (c) of the
5 repealed Act immediately before the commencement day is, on
6 and after that day, to be taken to be accredited under
7 section 33(1)(c) for a period of 12 months beginning on the
8 commencement day --
9 (a) for the purpose for which accreditation was granted
10 under the repealed Act; and
11 (b) on the same conditions imposed under section 14 of the
12 repealed Act (if any) as, applied to that person's
13 accreditation immediately before the commencement
14 day.
15 235. Temporary accreditation
16 A person with temporary accreditation under section 12(2) of
17 the repealed Act immediately before the commencement day is
18 to be taken to be accredited under section 32 --
19 (a) for the period for which temporary accreditation was
20 granted or for the period of 12 months beginning on the
21 commencement day, whichever is the longer; and
22 (b) on the same conditions imposed under section 14 of the
23 repealed Act (if any) as, applied to that person's
24 temporary accreditation immediately before the
25 commencement day.
26 236. Annual fees
27 If a person is taken to be accredited under this Act, for the
28 purposes of section 41(1), the person is to be taken to have been
29 accredited on the day on which the person was accredited under
30 the repealed Act.
page 175
Rail Safety Bill 2009
Part 10 Transitional
s. 237
1 237. Private siding
2 (1) A private siding registered under section 15(2)(a) of the
3 repealed Act immediately before the commencement day is, on
4 and after that day, to be taken to be registered under
5 section 58(2)(a).
6 (2) During the development period, section 58(2)(c) does not apply
7 to a rail infrastructure manager's private siding that is referred
8 to in subsection (1).
9 238. Suspension of accreditation
10 If immediately before the commencement day a person's
11 accreditation was suspended under section 18 or 19 of the
12 repealed Act, section 18 or 19, as the case may be, of the
13 repealed Act applies to the person as if it had not been repealed.
14 239. Safety management plan
15 (1) A safety management plan referred to in section 10 of the
16 repealed Act that exists immediately before the commencement
17 day, is to be taken to be --
18 (a) a safety management system under section 59 during the
19 development period; and
20 (b) a security management plan under section 71 during the
21 development period,
22 to the extent that the safety management plan deals with matters
23 that must be incorporated in a safety management system or a
24 security management plan.
25 (2) During the development period the Rail Safety Regulator may
26 give a rail transport operator who has a safety management plan
27 referred to in subsection (1) a written instruction relating to the
28 development of a safety management system under section 59
29 or a security management plan under section 71.
page 176
Rail Safety Bill 2009
Transitional Part 10
s. 240
1 (3) A rail transport operator must comply with a written instruction
2 given under subsection (2) within any time specified in the
3 instruction.
4 Penalty:
5 (a) for an individual --
6 (i) for a first offence, a fine of $28 000;
7 (ii) for a second or subsequent offence, a fine of
8 $41 000;
9 (b) for a body corporate --
10 (i) for a first offence, a fine of $280 000;
11 (ii) for a second or subsequent offence, a fine of
12 $410 000.
13 (4) Subsections (1), (2) and (3) cease to apply to a rail transport
14 operator once the operator has a safety management system
15 under section 59.
16 240. Emergency Management Plan
17 (1) Section 72 does not apply to a rail transport operator during the
18 development period.
19 (2) During the development period the Rail Safety Regulator may
20 give a rail transport operator a written instruction relating to the
21 development of an emergency management plan under
22 section 72.
23 (3) A rail transport operator must comply with a written instruction
24 given under subsection (2) within any time specified in the
25 instruction.
26 Penalty:
27 (a) for an individual --
28 (i) for a first offence, a fine of $28 000;
29 (ii) for a second or subsequent offence, a fine of
30 $41 000;
page 177
Rail Safety Bill 2009
Part 10 Transitional
s. 241
1 (b) for a body corporate --
2 (i) for a first offence, a fine of $280 000;
3 (ii) for a second or subsequent offence, a fine of
4 $410 000.
5 (4) Subsections (1), (2) and (3) cease to apply to a rail transport
6 operator once the operator has an emergency management plan
7 under section 72.
8 241. Health and fitness management programme
9 (1) Section 73 does not apply to a rail transport operator during the
10 development period.
11 (2) During the development period the Rail Safety Regulator may
12 give a rail transport operator a written instruction relating to the
13 development of a health and fitness management programme
14 under section 73.
15 (3) A rail transport operator must comply with a written instruction
16 given under subsection (2) within any time specified in the
17 instruction.
18 Penalty:
19 (a) for an individual --
20 (i) for a first offence, a fine of $28 000;
21 (ii) for a second or subsequent offence, a fine of
22 $41 000;
23 (b) for a body corporate --
24 (i) for a first offence, a fine of $280 000;
25 (ii) for a second or subsequent offence, a fine of
26 $410 000.
27 (4) Subsections (1), (2) and (3) cease to apply to a rail transport
28 operator once the operator has a health and fitness management
29 programme under section 73.
page 178
Rail Safety Bill 2009
Transitional Part 10
s. 242
1 242. Alcohol and drug management programme
2 (1) Section 74 does not apply to a rail transport operator during the
3 development period.
4 (2) During the development period the Rail Safety Regulator may
5 give a rail transport operator a written instruction relating to the
6 development of an alcohol and drug management programme
7 under section 74.
8 (3) A rail transport operator must comply with a written instruction
9 given under subsection (2) within any time specified in the
10 instruction.
11 Penalty:
12 (a) for an individual --
13 (i) for a first offence, a fine of $28 000;
14 (ii) for a second or subsequent offence, a fine of
15 $41 000;
16 (b) for a body corporate --
17 (i) for a first offence, a fine of $280 000;
18 (ii) for a second or subsequent offence, a fine of
19 $410 000.
20 (4) Subsections (1), (2) and (3) cease to apply to a rail transport
21 operator once the operator has an alcohol and drug management
22 programme under section 74.
23 243. Fatigue management programme
24 (1) Section 76 does not apply to a rail transport operator during the
25 development period.
26 (2) During the development period the Rail Safety Regulator may
27 give a rail transport operator a written instruction relating to the
28 development of a fatigue management programme under
29 section 76.
page 179
Rail Safety Bill 2009
Part 10 Transitional
s. 244
1 (3) A rail transport operator must comply with a written instruction
2 given under subsection (2) within any time specified in the
3 instruction.
4 Penalty:
5 (a) for an individual --
6 (i) for a first offence, a fine of $28 000;
7 (ii) for a second or subsequent offence, a fine of
8 $41 000;
9 (b) for a body corporate --
10 (i) for a first offence, a fine of $280 000;
11 (ii) for a second or subsequent offence, a fine of
12 $410 000.
13 (4) Subsections (1), (2) and (3) cease to apply to a rail transport
14 operator once the operator has a fatigue management
15 programme under section 76.
16 244. Assessment of competence
17 Section 77 does not apply to a rail transport operator during the
18 period of 24 months beginning on the commencement day.
19 245. Identification for rail safety workers
20 Section 78 does not apply during the period of 24 months
21 beginning on the commencement day or any other prescribed
22 period beginning on that day.
23 246. Installation of safety or protective devices
24 If the Director General has given a direction under section 28 of
25 the repealed Act and the person to whom the direction was
26 given has not complied with the direction before the
27 commencement day, that person must comply with the direction
28 on or after the commencement day and that section applies to
29 and in respect of that person and the direction as if the section
30 had not been repealed.
page 180
Rail Safety Bill 2009
Transitional Part 10
s. 247
1 247. Closing railway crossings, bridges etc.
2 If immediately before the commencement day, a railway
3 crossing, bridge or other structure is temporarily closed or is
4 regulated under section 29(1) of the repealed Act, on the
5 commencement day section 122 applies to the temporary
6 closure or regulation as if the railway crossing, bridge or other
7 structure were closed temporarily or regulated under
8 section 122.
9 248. Direction to stop, alter or not to start the works
10 If the Director General has given a direction to a person under
11 section 30 of the repealed Act and the direction is in effect
12 immediately before the commencement day --
13 (a) the direction and that section apply to and in respect of
14 that person as if the section had not been repealed; and
15 (b) a reference in that section to an authorised officer is to
16 be taken to be a reference to a rail safety officer.
17 249. Direction to undertake remedial safety work
18 If the Director General has directed an accredited person to
19 undertake remedial safety work under section 33 of the repealed
20 Act and the direction is in effect immediately before the
21 commencement day, the direction and that section apply to and
22 in respect of the accredited person as if the section had not been
23 repealed.
24 250. Safety reports
25 If --
26 (a) an accredited person is required under section 36(1) of
27 the repealed Act to submit an annual safety report to the
28 Director General within the period of 28 days before the
29 commencement day; and
page 181
Rail Safety Bill 2009
Part 10 Transitional
s. 251
1 (b) the report is not submitted before the commencement
2 day,
3 the accredited person must submit the report as if section 36 of
4 the repealed Act had not been repealed and the reference to the
5 Director General in section 36(1) of the repealed Act were a
6 reference to the Rail Safety Regulator.
7 251. Supply of information
8 If under section 37(1) of the repealed Act an accredited person
9 has been required by the Director General to provide the
10 Director General with information and that information has not
11 been provided before the commencement day, sections 37 and
12 51(2) of the repealed Act apply to the accredited person as if
13 they had not been repealed.
14 252. Notifiable occurrences and other incidents
15 If under section 38 of the repealed Act an accredited person is
16 under an obligation or requirement to report to the Director
17 General and the accredited person has not made that report
18 before the commencement day, that report is to be made on or
19 after the commencement day as if the obligation or requirement
20 were an obligation or requirement under section 82.
21 253. Report from owner or operator
22 If a notice has been given to an accredited person under
23 section 39(1) of the repealed Act and the accredited person has
24 not provided a written report under section 39(3) of the repealed
25 Act before the commencement day --
26 (a) the notice is to be taken to be a notice under
27 section 83(1); and
28 (b) a reference in section 83 to a rail transport operator is to
29 be taken to be a reference to the accredited person; and
30 (c) a reference in section 83 to a notifiable occurrence is to
31 be taken to be a reference to the railway accident or
page 182
Rail Safety Bill 2009
Transitional Part 10
s. 254
1 incident or other matter referred to in the notice given
2 under section 39(1) of the repealed Act.
3 254. Request for certain details
4 If a notice has been given to an accredited person under
5 section 40(1) of the repealed Act and the accredited person has
6 not provided a written report under that provision before the
7 commencement day, sections 40 and 51(2) of the repealed Act
8 apply to the accredited person as if they had not been repealed.
9 255. Inquiries
10 If immediately before the commencement day an investigator
11 was conducting an inquiry under Part 5 of the repealed Act but a
12 report had not been furnished under section 43 of the repealed
13 Act before that day, the investigator is to continue to conduct
14 the inquiry as if he or she had been appointed under Part 6.
15 256. Evidentiary provision
16 In any proceedings under the repealed Act on or after the
17 commencement day, section 57 of the repealed Act applies as if
18 it had not been repealed.
19 257. Powers in relation to transitional provision
20 (1) If there is no sufficient provision in this Part for dealing with a
21 transitional matter the Governor may make regulations
22 prescribing all matters that are required, necessary or convenient
23 to be prescribed in relation to that matter.
24 (2) Regulations made under subsection (1) may provide that
25 specific provisions of this Act --
26 (a) do not apply; or
27 (b) apply with specific modifications,
28 to or in relation to any matter.
page 183
Rail Safety Bill 2009
Part 10 Transitional
s. 257
1 (3) Regulations made under subsection (1) must be made within
2 12 months after the commencement day.
3 (4) If regulations made under subsection (1) provide that a specified
4 state of affairs is to be taken to have existed, or not to have
5 existed, on and from a day that is earlier than the day on which
6 the regulations are published in the Gazette but not earlier than
7 the commencement day, the regulations have effect according to
8 their terms.
9 (5) In subsection (4) --
10 specified means specified or described in the regulations.
11 (6) If regulations contain a provision referred to in subsection (4),
12 the provision does not operate so as --
13 (a) to affect in a manner prejudicial to any person (other
14 than the State), the right of that person existing before
15 the day of publication of those regulations; or
16 (b) to impose liabilities on any person (other than the State
17 or an authority of the State) in respect of anything done
18 or omitted to be done before the day of publication of
19 those regulations.
page 184
Rail Safety Bill 2009
Consequential amendments Part 11
Government Railways Act 1904 amended Division 1
s. 258
1 Part 11 -- Consequential amendments
2 Division 1 -- Government Railways Act 1904 amended
3 258. Act amended
4 This Division amends the Government Railways Act 1904.
5 259. Section 2A amended
6 In section 2A delete "Rail Safety Act 1998" and insert:
7
8 Rail Safety Act 2009
9
10 260. Section 13 amended
11 In section 13(1a) delete paragraph (d) and insert:
12
13 (d) the Rail Safety Act 2009.
14
15 261. Section 61 amended
16 In section 61(5) delete "Rail Safety Act 1998." and insert:
17
18 Rail Safety Act 2009.
19
20 Division 2 -- Mines Safety and Inspection Act 1994 amended
21 262. Act amended
22 This Division amends the Mines Safety and Inspection
23 Act 1994.
page 185
Rail Safety Bill 2009
Part 11 Consequential amendments
Division 3 Public Transport Authority Act 2003 amended
s. 263
1 263. Section 7 amended
2 In section 7(2) delete "Rail Safety Act 1998" and insert:
3
4 Rail Safety Act 2009
5
6 Division 3 -- Public Transport Authority Act 2003 amended
7 264. Act amended
8 This Division amends the Public Transport Authority Act 2003.
9 265. Section 3 amended
10 In section 3 in the definition of train delete "Rail Safety
11 Act 1998 section 3(1);" and insert:
12
13 Rail Safety Act 2009 section 3;
14
15 266. Section 4 amended
16 In section 4(1)(a) delete "Rail Safety Act 1998" and insert:
17
18 Rail Safety Act 2009
19
20 Division 4 -- Rail Freight System Act 2000 amended
21 267. Act amended
22 This Division amends the Rail Freight System Act 2000.
page 186
Rail Safety Bill 2009
Consequential amendments Part 11
Railways (Access) Act 1998 Division 5
s. 268
1 268. Section 9 amended
2 In section 9(1)(a) delete "Rail Safety Act 1998" and insert:
3
4 Rail Safety Act 2009
5
6 Division 5 -- Railways (Access) Act 1998 amended
7 269. Act amended
8 This Division amends the Railways (Access) Act 1998.
9 270. Section 8 amended
10 In section 8 delete "Rail Safety Act 1998." and insert:
11
12 Rail Safety Act 2009.
13
14 Note: The heading to amended section 8 is to read:
15 Code is subject to Rail Safety Act 2009
16
17
18
page 187
Rail Safety Bill 2009
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
accreditation..........................................................................................................3
accredited person ..................................................................................................3
appointer ...........................................................................................................141
approved ........................................................................................................ 26(1)
audit programme ............................................................................................ 84(2)
Australian rail safety law ......................................................................................3
Australian Rail Safety Regulator ..........................................................................3
authorised officer ..................................................................................................3
authorised person ................................................................122(1), 154(1), 196(1)
CEO ......................................................................................................................3
commencement day ..........................................................................................230
commercial benefits order.....................................................................................3
Commissioner of Police........................................................................................3
compliance and investigative purposes.......................................................... 85(1)
compliance code ...................................................................................................3
corresponding law.................................................................................................3
corresponding rail safety law ................................................................................3
corresponding Rail Safety Regulator ....................................................................3
department ..................................................................................................... 20(1)
departmental officer ....................................................................................... 20(1)
designation ..................................................................................................... 20(1)
development period...........................................................................................230
director......................................................................................................... 185(1)
document...............................................................................................................3
drug .......................................................................................................................3
eligible person in relation to the reviewable decision ...............................178, 180
embargo notice......................................................................................................3
employed........................................................................................................ 20(1)
employee............................................................ 3, 153(1), 154(1), 190(1), 192(1)
employer ..................................................................................... 3, 185(4), 185(5)
exercise .................................................................................................................3
footpath .................................................................................................................3
guidelines..............................................................................................................3
improvement notice ..............................................................................................3
in control........................................................................................... 97(1), 163(1)
independent investigator .......................................................................................3
infringement notice ...............................................................................................3
interface agreement...............................................................................................3
page 188
Rail Safety Bill 2009
Defined Terms
jurisdiction ............................................................................................................3
level crossing ........................................................................................................3
medical practitioner ..................................................................................... 153(1)
notifiable occurrence.............................................................................................3
offender........................................................................................................ 205(1)
office holder................................................................................................. 188(1)
officer........................................................................................................... 189(1)
official............................................................................................. 193(1), 217(1)
owner ........................................................................................................... 103(1)
person to whom this section applies ............................................................ 218(1)
personal information .............................................................................................3
place of seizure .................................................................................................162
prescribed period.......................................................................................... 161(5)
private siding.........................................................................................................3
prohibition notice ..................................................................................................3
public agency ............................................................................................... 190(1)
public place ...........................................................................................................3
public road ............................................................................................................3
public service officer...................................................................................... 20(1)
rail infrastructure...................................................................................................3
rail infrastructure manager....................................................................................3
rail or road crossing ..............................................................................................3
rail safety law........................................................................................................3
rail safety matter ...................................................................................................3
rail safety officer...................................................................................................3
Rail Safety Regulator............................................................................................3
rail safety work .....................................................................................................3
rail safety worker ..................................................................................................3
rail transport operator................................................................................. 3, 84(1)
railway ..................................................................................................................3
railway crossing ....................................................................................... 3, 122(1)
railway operations.................................................................................................3
railway premises ...................................................................................................3
railway tracks and associated track structures ......................................................3
reasonable assistance ................................................................................... 106(1)
reporting period.............................................................................................. 62(1)
restricted information............................................................................................3
reviewable decisions .................................................................................178, 180
road infrastructure.................................................................................................3
road manager.........................................................................................................3
road vehicle...........................................................................................................3
rolling stock ..........................................................................................................3
rolling stock operator ............................................................................................3
safety.....................................................................................................................3
safety management plan........................................................................................3
page 189
Rail Safety Bill 2009
Defined Terms
safety management system ...................................................................................3
security management plan.....................................................................................3
shared path ............................................................................................................3
siding.....................................................................................................................3
specified..................................................................................5(3), 210(1), 257(5)
state of mind of a person.............................................................................. 185(1)
substance...............................................................................................................3
supply....................................................................................................................3
the repealed Act ................................................................................................230
train .......................................................................................................................3
train safety recording ............................................................................................3
volunteer ...................................................................................................... 189(1)
page 190
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