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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Rail Safety National Law (South Australia)
Bill 2012
A BILL FOR
An Act to make provision for a national system of rail safety; to repeal
the Rail
Safety Act 2007; to make related amendments to the Rail
Commissioner Act 2009, the Railways
(Operations and Access) Act 1997 and the Terrorism
(Surface Transport Security) Act 2011; and for other
purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
Part 2—Application of Rail Safety
National Law
4Application of Rail Safety
National Law
5Interpretation of certain expressions
6No double
jeopardy
7Exclusion of legislation of
this jurisdiction
Part 3—National
regulations
8National
regulations
Part 4—Provisions
relating to drug and alcohol testing
Division 1—Preliminary
9Interpretation
10Approval of
couriers
11Approval of apparatus for
purposes of breath analysis etc
Division 2—Procedures relating to
testing and analyses
12Conduct of preliminary breath test or breath
analysis
13Conduct of drug screening tests, oral fluid
analyses and blood tests
14Breath analysis where drinking occurs after
rail safety work is carried out
15Oral fluid analysis or blood test where
consumption of alcohol or drug occurs after rail safety work is carried
out
16Compulsory blood
testing following a prescribed notifiable occurrence
17Processes relating to
blood samples
18Processes relating to oral fluid
samples
Division 3—Miscellaneous
19Concentration
of alcohol in breath taken to indicate concentration of alcohol in
blood
20Evidence
21Blood samples may be taken by nurses
outside Metropolitan Adelaide
22Protection of medical practitioners etc from
liability
23Regulations—drug
and alcohol testing procedures
Part 5—Repeal and transitional
provisions and related amendments
Division 1—Interpretation
24Interpretation
Division 2—Repeal of Rail Safety
Act 2007
25Repeal of Rail Safety
Act 2007
Division 3—Transitional
provisions
26Accreditation
27Registration
28Notifiable
occurrences
29Notices
30Reviews and appeals
31Provision of information
and assistance by Rail Safety Regulator
32Regulations—saving and transitional
provisions
Division 4—Related
amendments
33Amendment provisions
34Amendment of Rail
Commissioner Act 2009
35Amendment of Railways (Operations and Access)
Act 1997
36Amendment of Terrorism (Surface Transport
Security) Act 2011
37Expiry of this Division
Schedule—Rail Safety
National Law
Part 1—Preliminary
1Short title
2Commencement
3Purpose, objects and guiding
principles of Law
4Interpretation
5Interpretation generally
6Declaration of substance to be
drug
7Railways to
which this Law does not apply
8Meaning of rail safety
work
9Single national entity
10Extraterritorial operation of Law
11Crown to be
bound
Part 2—Office of the
National Rail Safety Regulator
Division 1—Establishment,
functions, objectives, etc
12Establishment
13Functions and objectives
14Independence of
ONRSR
15Powers
Division 2—Office of
the National Rail Safety Regulator
Subdivision 1—Constitution of
ONRSR
16Constitution of ONRSR
Subdivision 2—National Rail Safety
Regulator
17Appointment of
Regulator
18Acting National Rail Safety
Regulator
19Functions of
Regulator
20Power of Regulator to obtain
information
Subdivision 3—Non-executive
members
21Appointment of non-executive
members
Subdivision 4—Miscellaneous
provisions relating to membership
22Vacancy in or removal from office
23Member to give responsible Ministers notice of
certain events
24Extension of term of
office during vacancy in membership
25Members to act in public interest
26Disclosure of conflict of interest
Division 3—Procedures
27Times and places of meetings
28Conduct of meetings
29Defects in appointment of members
30Decisions without meetings
31Common seal and execution of
documents
Division 4—Finance
32Establishment of
Fund
33Payments into Fund
34Payments out of
Fund
35Investment of money in
Fund
36Financial management duties of
ONRSR
Division 5—Staff
37Chief executive
38Staff
39Secondments to ONRSR
40Consultants and contractors
Division 6—Miscellaneous
41Regulator may be directed to investigate rail
safety matter
42National Rail Safety
Register
43Annual report
44Other reporting requirements
45Delegation
Part 3—Regulation of
rail safety
Division 1—Interpretation
46Management of risks
47Meaning of reasonably
practicable
Division 2—Occupational health and safety
and railway operations
48Relationship between this Law and OHS
legislation
49No double
jeopardy
Subdivision 1—Principles
50Principles of shared
responsibility, accountability, integrated risk management, etc
51Principles applying to rail safety
duties
Subdivision 2—Duties
52Duties of rail transport
operators
53Duties
of designers, manufacturers, suppliers etc
54Duties of persons loading or
unloading freight
55Duty of officers to exercise
due diligence
56Duties of rail safety
workers
Subdivision 3—Offences
and penalties
57Meaning of safety
duty
58Failure to
comply with safety duty—reckless conduct—Category 1
59Failure to comply with safety
duty—Category 2
60Failure to comply with safety
duty—Category 3
Subdivision 1—Purpose and
requirement for accreditation
61Purpose of
accreditation
62Accreditation required for
railway operations
63Purposes for which
accreditation may be granted
Subdivision 2—Procedures
for granting accreditation
64Application for
accreditation
65What
applicant must demonstrate
66Regulator may direct
applicants to coordinate applications
67Determination of
application
Subdivision 3—Variation
of accreditation
68Application for variation of
accreditation
69Determination of application
for variation
70Prescribed conditions and
restrictions
71Variation of conditions and
restrictions
72Regulator may make changes to
conditions or restrictions
Subdivision 4—Revocation,
suspension or surrender of accreditation
73Revocation or suspension of
accreditation
74Immediate suspension of
accreditation
75Surrender of
accreditation
Subdivision 5—Miscellaneous
76Annual fees
77Waiver of fees
78Penalty for breach of
condition or restriction
79Accreditation
cannot be transferred or assigned
80Sale
or transfer of railway operations by accredited person
81Keeping and making available
records for public inspection
Division 5—Registration
of rail infrastructure managers of private sidings
Subdivision 1—Exemptions relating
to certain private sidings
82Exemption from accreditation
in respect of certain private sidings
83Requirement for managers of
certain private sidings to be registered
Subdivision 2—Procedures
for granting registration
84Application for
registration
85What
applicant must demonstrate
86Determination of
application
Subdivision 3—Variation
of registration
87Application for variation of
registration
88Determination of application
for variation
89Prescribed conditions and
restrictions
90Variation of conditions and
restrictions
91Regulator may make changes to
conditions or restrictions
Subdivision 4—Revocation,
suspension or surrender of registration
92Revocation or suspension of
registration
93Immediate suspension of
registration
94Surrender of
registration
Subdivision 5—Miscellaneous
95Annual fees
96Waiver of fees
97Registration cannot be transferred or
assigned
98Offences
relating to registration
Subdivision 1—Safety
management systems
99Safety management
system
100Conduct of
assessments for identified risks
101Compliance with safety
management system
102Review of safety management
system
103Safety
performance reports
104Regulator may direct
amendment of safety management system
Subdivision 2—Interface
agreements
105Requirements for and scope
of interface agreements
106Interface
coordination—rail transport operators
107Interface
coordination—rail infrastructure and public roads
108Interface
coordination—rail infrastructure and private roads
109Identification and assessment of risks
110Regulator may give
directions
111Register of interface
agreements
Subdivision 3—Other
safety plans and programs
112Security management
plan
113Emergency
management plan
114Health and fitness
management program
115Drug and alcohol management
program
116Fatigue
risk management program
Subdivision 4—Provisions relating
to rail safety workers
117Assessment of
competence
118Identification of rail
safety workers
Subdivision 5—Other persons to
comply with safety management system
119Other persons to comply with safety management
system
Division 7—Information
about rail safety etc
120Power of Regulator to obtain
information from rail transport operators
Division 8—Investigating
and reporting by rail transport operators
121Notification of certain
occurrences
122Investigation of notifiable
occurrences
Division 9—Drug and
alcohol testing by Regulator
123Testing for presence of
drugs or alcohol
124Appointment of authorised
persons
125Identity cards
126Authorised person may
require preliminary breath test or breath analysis
127Authorised person may
require drug screening test, oral fluid analysis and blood test
128Offence relating to
prescribed concentration of alcohol or prescribed drug
129Oral fluid or blood sample or results of analysis
etc not to be used for other purposes
Division 10—Train
safety recordings
130Interpretation
131Disclosure of train safety
recordings
132Admissibility of evidence of
train safety recordings in civil proceedings
Division 11—Audit of
railway operations by Regulator
133Audit of railway operations
by Regulator
Division 1—Guiding
principle
134Guiding
principle
Division 2—Rail
safety officers
135Appointment
136Identity cards
137Accountability of rail safety officers
138Suspension and ending of appointment of rail
safety officers
Division 3—Regulator has functions and
powers of rail safety officers
139Regulator has functions and powers of rail safety
officers
Division 4—Functions and powers of rail
safety officers
140Functions and
powers
141Conditions on rail safety
officers' powers
142Rail safety officers
subject to Regulator's directions
Division 5—Powers
relating to entry
Subdivision 1—General powers of
entry
143Powers of
entry
144Notification of entry
145General powers on
entry
146Persons
assisting rail safety officers
147Use of
electronic equipment
148Use of equipment
to examine or process things
149Securing a
site
Subdivision 2—Search
warrants
150Search warrants
151Announcement before entry on warrant
152Copy of warrant to be given to person with control
or management of place
Subdivision 3—Limitation on entry
powers
153Places
used for residential purposes
Subdivision 4—Specific powers on
entry
154Power to require production of
documents and answers to questions
155Abrogation of privilege
against self-incrimination
156Warning to be
given
157Power to copy and retain
documents
Subdivision 5—Powers to support
seizure
158Power to seize evidence
etc
159Directions
relating to seizure
160Rail safety officer
may direct a thing's return
161Receipt for
seized things
162Forfeiture of seized
things
163Return of
seized things
164Access to seized
thing
Division 6—Damage
and compensation
165Damage etc to be
minimised
166Rail safety officer to give
notice of damage
167Compensation
Division 7—Other
matters
168Power to require name
and address
169Rail safety officer may
take affidavits
170Attendance of rail
safety officer at inquiries
171Directions
may be given under more than 1 provision
Division 8—Offences
in relation to rail safety officers
172Offence to hinder or obstruct rail safety
officer
173Offence to impersonate rail
safety officer
174Offence to assault,
threaten or intimidate rail safety officer
Division 1—Improvement
notices
175Issue of improvement
notices
176Contents
of improvement notices
177Compliance with improvement
notice
178Extension
of time for compliance with improvement notices
Division 2—Prohibition
notices
179Issue of prohibition
notice
180Contents of prohibition
notice
181Compliance
with prohibition notice
Division 3—Non-disturbance
notices
182Issue of non-disturbance
notice
183Contents
of non-disturbance notice
184Compliance
with non-disturbance notice
185Issue of subsequent
notices
Division 4—General
requirements applying to notices
186Application of Division
187Notice to be in writing
188Directions in notices
189Recommendations in notice
190Variation or cancellation of
notice by rail safety officer
191Formal
irregularities or defects in notice
192Serving
notices
Division 5—Remedial
action
193When Regulator may carry out
action
194Power of
Regulator to take other remedial action
195Costs of remedial or other action
Division 6—Injunctions
196Application of Division
197Injunctions for
non-compliance with notices
Division 7—Miscellaneous
198Response to certain
reports
199Power to
require works to stop
200Temporary closing of railway
crossings, bridges etc
201Use of
force
202Power to use force against
persons to be exercised only by police officers
Division 1—Ministerial
exemptions
203Ministerial
exemptions
Division 2—Exemptions
granted by Regulator
Subdivision 1—Interpretation
204Interpretation
Subdivision 2—Procedures for
conferring exemptions
205Application for
exemption
206What
applicant must demonstrate
207Determination of
application
Subdivision 3—Variation
of an exemption
208Application for variation of
an exemption
209Determination of application
for variation
210Prescribed conditions and
restrictions
211Variation of conditions and
restrictions
212Regulator may make changes
to conditions or restrictions
Subdivision 4—Revocation or
suspension of an exemption
213Revocation or suspension of
an exemption
Subdivision 5—Penalty for breach
of condition or restriction
214Penalty for breach of
condition or restriction
Part 7—Review of
decisions
215Reviewable
decisions
216Review
by Regulator
217Appeals
Part 8—General
liability and evidentiary provisions
Subdivision 1—General
matters
218Period within which proceedings
for offences may be commenced
219Multiple
contraventions of rail safety duty provision
220Authority to take proceedings
Subdivision 2—Imputing conduct to
bodies corporate
221Imputing conduct to
bodies corporate
Subdivision 3—Records and
evidence
222Records and evidence from
records
223Certificate evidence
224Proof of appointments and signatures
unnecessary
Division 2—Discrimination against
employees
225Dismissal or other
victimisation of employee
Division 3—Offences
226Offence to give false or misleading
information
227Not to interfere with
train, tram etc
228Applying brake or
emergency device
229Stopping a train or
tram
Division 4—Court-based
sanctions
230Commercial benefits
order
231Supervisory
intervention order
232Exclusion
orders
Part 9—Infringement
notices
233Meaning of infringement
penalty provision
234Power to serve
notice
235Form of
notice
236Regulator cannot institute
proceedings while infringement notice on foot
237Late payment of
penalty
238Withdrawal of
notice
239Refund of infringement
penalty
240Payment expiates breach of
infringement penalty provision
241Payment
not to have certain consequences
242Conduct in breach of more than 1 infringement
penalty provision
Division 1—Delegation by
Minister
243Delegation by
Minister
Division 2—Confidentiality of
information
244Confidentiality of
information
Division 3—Law does
not affect legal professional privilege
245Law does not affect legal
professional privilege
Division 4—Civil
liability
Part 3 Division 3
or
Division 6
247Protection from personal liability for persons
exercising functions
248Immunity for
reporting unfit rail safety worker
Division 5—Codes of
practice
249Approved codes of
practice
250Use of codes of practice in
proceedings
Division 6—Enforceable
voluntary undertakings
251Enforceable voluntary undertaking
252Notice of decisions and reasons for
decision
253When a rail safety undertaking
is enforceable
254Compliance with rail safety
undertaking
255Contravention of rail
safety undertaking
256Withdrawal or variation of
rail safety undertaking
257Proceedings for
alleged contravention
Division 7—Other
matters
258Service of
documents
259Recovery of certain
costs
260Recovery of amounts
due
261Compliance with conditions of
accreditation or registration
262Contracting out prohibited
Division 8—Application of certain South
Australian Acts to this Law
263Application of certain South Australian Acts to
this Law
Division 9—National
regulations
264National
regulations
265Publication of national
regulations
Schedule 1—National
regulations
Schedule 2—Miscellaneous
provisions relating to interpretation
Part 1—Preliminary
1Displacement of Schedule by contrary
intention
Part 2—General
2Law to be construed not to exceed legislative power
of Parliament
3Every section to be a
substantive enactment
4Material that is,
and is not, part of this Law
5References
to particular Acts and to enactments
6References taken to be included in Law or Act
citation etc
7Interpretation best
achieving Law's purpose or object
8Use of
extrinsic material in interpretation
9Effect of change of drafting practice
10Use of examples
11Compliance with forms
Part 3—Terms and
references
12Definitions
13Provisions relating to defined terms and gender and
number
14Meaning of may and
must etc
15Words and expressions
used in statutory instruments
16Effect of
express references to bodies corporate and individuals
17Production of records kept in computers
etc
18References to this jurisdiction to
be implied
19References to officers and
holders of offices
20Reference to certain
provisions of Law
21Reference to
provisions of this Law or an Act is inclusive
Part 4—Functions and
powers
22Exercise of statutory
functions
23Power to make instrument or
decision includes power to amend or repeal
24Matters for which statutory instruments may make
provision
25Presumption of validity and
power to make
26Appointments may be made
by name or office
27Acting
appointments
28Powers of appointment imply
certain incidental powers
29Delegation of
functions
30Exercise of powers between
enactment and commencement
Part 5—Distance,
time and age
31Matters relating to
distance, time and age
Part 6—Effect of
repeal, amendment or expiration
32Time of Law ceasing to have effect
33Repealed provisions not revived
34Saving of operation of repealed Law
provisions
35Continuance of repealed
provisions
36Law and amending Acts to be
read as one
Part 7—Instruments
under Law
37Schedule applies to
statutory instruments
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Rail Safety National Law (South Australia)
Act 2012.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts
Interpretation Act 1915 does not apply to this Act or a provision
of this Act.
(1) For the purposes of this Act, the local application provisions
of this Act are the provisions of this Act other than the Rail Safety
National Law set out in the schedule.
(2) In the local application provisions of this Act—
Rail Safety National Law (South Australia) means the
provisions in operation in this jurisdiction because of
section 4 of this
Act.
(3) Terms used in the local application provisions of this Act and also in
the Rail Safety National Law set out in the schedule to this Act have the
same meanings in those provisions as they have in that Law.
(4) This section does not apply to the extent that the context or subject
matter otherwise indicates or requires.
Part 2—Application
of Rail Safety National Law
4—Application
of Rail Safety National Law
The Rail Safety National Law, as amended from time to time, set out
in the schedule—
(a) applies as a law of this jurisdiction; and
(b) as so applying may be referred to as the Rail Safety National Law
(South Australia); and
(c) as so applying is part of this Act.
5—Interpretation
of certain expressions
(1) In the Rail Safety National Law (South Australia), unless
the contrary intention appears—
court—a reference to a court in the
Law—
(a) in Part 5 (Enforcement measures) and Part 6
(Review of decisions)—is a reference to the Administrative and
Disciplinary Division of the District Court;
(b) in Part 9 Division 6 (Enforceable voluntary
undertakings)—is a reference to the Magistrates Court;
emergency services means each of the following:
(a) South Australia Police;
(b) South Australian Country Fire Service;
(c) South Australian Metropolitan Fire Service;
(d) SA Ambulance Service Inc;
(e) any body prescribed by the regulations for the purposes of this
definition;
Gazette means the South Australian Government Gazette
(including any supplement to that gazette) printed and published, or purporting
to be printed and published, by the Government Printer of the State;
Health Practitioner Regulation National Law
means—
(a) the Health
Practitioner Regulation National Law—
(i) as in force from time to time, set out in the schedule to the
Health Practitioner Regulation National Law Act 2009 of Queensland;
and
(ii) as it applies as a law of South Australia, another State or a
Territory (with or without modification); or
(b) the law that substantially corresponds to the law referred to in
paragraph (a);
magistrate means a person holding office as a magistrate
under the
Magistrates
Act 1983;
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
Minister means the Minister to whom the Rail
Safety National Law (South Australia) Act 2012 is
committed;
police officer means a member of South Australia Police under
the
Police
Act 1998;
public sector auditor means the Auditor-General of South
Australia;
Rail Safety National Law or this Law means the
Rail Safety National Law (South Australia);
registered nurse means a person registered under the
Health Practitioner Regulation National Law—
(a) to practise in the nursing and midwifery profession as a nurse (other
than as a student); and
(b) in the registered nurses division of that profession;
road means a road within the meaning of the Road
Traffic Act 1961;
road vehicle means a motor vehicle within the meaning of the
Motor
Vehicles Act 1959;
shared path has the same meaning as in the Australian
Road Rules;
State entity means a public sector agency within the meaning
of the
Public
Sector Act 2009;
the jurisdiction or this jurisdiction means
South Australia.
(2) For the purposes of this Act and the Rail Safety National Law
(South Australia) and any other Act or law—
(a) the Office of the National Rail Safety Regulator—
(i) is not a State entity (and therefore not a South Australian entity);
and
(ii) is not an agency or instrumentality of the South Australian Crown;
and
(b) an employee of the Office of the National Rail Safety Regulator is not
a public sector employee employed by a public sector agency.
If—
(a) an act or omission is an offence against the Rail Safety National
Law (South Australia) and is also an offence against a law of another
participating jurisdiction; and
(b) the offender has been punished for the offence under the law of the
other jurisdiction,
the offender is not liable to be punished for the offence against the
Rail Safety National Law (South Australia).
7—Exclusion
of legislation of this jurisdiction
(1) The Acts
Interpretation Act 1915 does not apply to the Rail Safety
National Law (South Australia) or to instruments made under that
Law.
(2) Subject to
subsection (3), the
following Acts of this jurisdiction do not apply to this Act and the Rail
Safety National Law (South Australia) or to instruments made under that
Law (except as applied under the Law):
(a) the Freedom
of Information Act 1991;
(b) the Ombudsman
Act 1972;
(c) the Public
Finance and Audit Act 1987;
(d) the Public
Sector Act 2009;
(e) the Public
Sector (Honesty and Accountability) Act 1995;
(f) the State
Procurement Act 2004;
(g) the State
Records Act 1997.
(3) The Acts referred
to in
subsection (2) apply
to a State entity or an employee of a State entity exercising a function under
the Rail Safety National Law (South Australia).
(1) Subject to this section, the Subordinate
Legislation Act 1978 does not apply to the national
regulations.
(2) Sections 10, 10A and 11 of the Subordinate
Legislation Act 1978 apply to the national regulations.
(3) However, if a
regulation made by the Governor for the purposes of the Rail Safety
National Law is disallowed in this jurisdiction, the regulation does
not cease to have effect in this jurisdiction unless the regulation is
disallowed in a majority of the participating jurisdictions (and, in such a
case, the regulation will cease to have effect on the date of its disallowance
in the last of the jurisdictions forming the majority).
(4) In this section—
Rail Safety National Law means the Rail Safety National
Law, as amended from time to time, set out in the schedule.
Part 4—Provisions
relating to drug and alcohol testing
alcotest means a test by means of an apparatus approved under
the
Road
Traffic Act 1961 or this Part for the purpose of conducting
alcotests;
analyst means—
(a) a person who is an analyst for the purposes of the Road
Traffic Act 1961; or
(b) a person appointed as an analyst by the Minister specifically for the
purposes of this Part and Part 3 Division 9 (Drug and alcohol
testing by Regulator) of the Rail Safety National Law; or
(c) a person holding an office of a class approved by the Minister for the
purposes of this Part and Part 3 Division 9 of the Rail Safety
National Law;
approved blood test kit means a kit of a kind declared under
the
Road
Traffic Act 1961 or this Part to be an approved blood test
kit;
approved courier means a person approved by the Minister as a
courier for the purposes of this Part and Part 3 Division 9 of the
Rail Safety National Law;
breath analysing instrument means an apparatus of a kind
approved under the
Road
Traffic Act 1961 or this Part as a breath analysing
instrument;
breath analysis means an analysis of breath by a breath
analysing instrument;
Commissioner of Police means the Commissioner of Police
appointed under the
Police
Act 1998;
drug screening test means a test by means of an apparatus of
a kind approved under the
Road
Traffic Act 1961 or this Part for the purpose of conducting drug
screening tests;
forensic material means any human material from which the
person from whom the material was taken could be identified;
Metropolitan Adelaide has the same meaning as in the Development
Act 1993;
oral fluid analysis means an analysis of oral fluid by means
of an apparatus of a kind approved under the
Road
Traffic Act 1961 or this Part for the purpose of conducting oral
fluid analyses;
preliminary breath test means an alcotest;
Rail Safety National Law or Law means the
Rail Safety National Law, as amended from time to time, set out in the
schedule.
(2) In this Part, a reference to regulations is a reference
to regulations made for the purposes of this Part and Part 3
Division 9 of the Rail Safety National Law.
(3) For the purposes of this Part and Part 3 Division 9 of the
Rail Safety National Law, a thing is to be regarded as having been done
by a medical practitioner, registered nurse or analyst if it is done by a person
acting under the supervision or direction of the medical practitioner,
registered nurse or analyst.
The Minister may, by notice in the Gazette—
(a) approve a
person as a courier for the purposes of this Part and Part 3
Division 9 of the Rail Safety National Law; or
(b) revoke an approval under
paragraph (a).
11—Approval
of apparatus for purposes of breath analysis etc
(1) The Governor may, by notice in the Gazette—
(a) approve apparatus of a specified kind as breath analysing instruments
for the purposes of this Part and Part 3 Division 9 of the Rail
Safety National Law; or
(b) approve apparatus of a specified kind for the purpose of conducting
alcotests for the purposes of this Part and Part 3 Division 9 of the
Rail Safety National Law; or
(c) approve apparatus of a specified kind for the purpose of conducting
oral fluid analyses for the purposes of this Part and Part 3
Division 9 of the Rail Safety National Law; or
(d) approve apparatus of a specified kind for the purpose of conducting
drug screening tests for the purposes of this Part and Part 3
Division 9 of the Rail Safety National Law; or
(e) declare a kit of a specified kind to be an approved blood test kit for
the purposes of this Part and Part 3 Division 9 of the Rail Safety
National Law.
(2) The Governor may, by subsequent notice, vary or revoke any such
notice.
(3) An approved blood test kit, or an apparatus approved as a breath
analysing instrument, or for the purpose of conducting alcotests, oral fluid
analyses or drug screening tests, under the Road
Traffic Act 1961 will be taken to have been approved under this
Part for the purposes of this Part or Part 3 Division 9 of the Rail
Safety National Law.
Division 2—Procedures
relating to testing and analyses
12—Conduct
of preliminary breath test or breath analysis
(1) This section applies when an authorised person requires a rail safety
worker to submit to testing by means of a preliminary breath test or breath
analysis (or both) under section 126 (Authorised person may require
preliminary breath test or breath analysis) of the
Rail
Safety National Law.
(2) A preliminary breath test or breath analysis to which a rail safety
worker has been required to submit may not be commenced more than 8 hours
after the worker has ceased to carry out rail safety work or more than
8 hours following a prescribed notifiable occurrence (as the case may
be).
(3) The performance of a preliminary breath test or breath analysis
commences when a direction is first given by an authorised person that the rail
safety worker concerned exhale into the preliminary breath test apparatus or
breath analysing instrument to be used for the test or analysis.
(4) A rail safety
worker required to submit to a preliminary breath test or breath analysis must
not refuse or fail to comply with all reasonable directions of an authorised
person in relation to the requirement and, in particular, must not refuse or
fail to exhale into the apparatus by which the preliminary breath test or breath
analysis is conducted in accordance with the directions of the authorised
person.
Maximum penalty: $10 000.
(5) It is a defence to a prosecution under
subsection (4)
that there was, in the circumstances of the case, good reason for the refusal or
failure of the defendant to comply with the requirement or direction.
(6) If a rail
safety worker refuses or fails to comply with a requirement or direction of an
authorised person by reason of some physical or medical condition of the worker
and immediately makes a request of the authorised person that a sample of his or
her blood be taken by a medical practitioner, the authorised person must do all
things reasonably necessary to facilitate the taking of a sample of the worker's
blood for analysis by—
(a) a medical practitioner nominated by the worker; or
(b) a medical practitioner nominated by the authorised person at the
request of the worker.
(7) A rail safety worker is not relieved from the obligation to submit to
a breath analysis in accordance with this section or section 126 of the
Rail
Safety National Law by—
(a) the making of a request under
subsection (6);
or
(b) the taking of a sample of the worker’s blood under
subsection (6).
(8) A rail safety worker is not entitled to refuse or fail to comply with
a requirement or direction under this section or section 126 of the Rail
Safety National Law on the ground that—
(a) the worker would, or might, by complying with that requirement or
direction, provide evidence that could be used against himself or herself;
or
(b) the worker consumed alcohol after the worker last performed rail
safety work or was involved in a prescribed notifiable occurrence (as the case
may be), but before the requirement was made or the direction given.
(9) The taking of a blood sample under
subsection (6)
must be in the presence of an authorised person.
13—Conduct
of drug screening tests, oral fluid analyses and blood
tests
(1) This section applies when an authorised person requires a rail safety
worker to submit to testing by means of a preliminary breath test or breath
analysis (or both) under section 127 (Authorised person may require drug
screening test, oral fluid analysis and blood test) of the
Rail
Safety National Law.
(2) A drug screening test or an oral fluid analysis may only be
conducted—
(a) in the case of an authorised person who is a police officer—by a
police officer authorised by the Commissioner of Police to conduct such tests
and analyses under section 47EAA(7) of the Road
Traffic Act 1961; or
(b) in any other case—by an authorised person authorised by the
Regulator to conduct such tests or analyses.
(3) A drug screening test, oral fluid analysis or blood test to which a
rail safety worker has been required to submit may not be commenced more than
8 hours after the worker ceased to carry out rail safety work or more than
8 hours following a prescribed notifiable occurrence (as the case may
be).
(4) The performance of a drug screening test, oral fluid analysis or blood
test commences when a direction is first given by an authorised person that the
rail safety worker concerned provide a sample of oral fluid or blood to be used
for the drug screening test, oral fluid analysis or blood test.
(5) A rail safety
worker required by an authorised person to submit to a drug screening test, oral
fluid analysis or blood test must not refuse or fail to comply with all
reasonable directions of an authorised person in relation to the requirement
and, in particular, must not refuse or fail to allow a sample of oral fluid or
blood to be taken in accordance with the directions of the authorised
person.
Maximum penalty: $10 000.
(6) It is a defence to a prosecution under
subsection (5)
that there was, in the circumstances of the case, good reason for the refusal or
failure of the defendant to comply with the requirement or direction.
(7) If a rail
safety worker of whom a requirement is made or to whom a direction is given by
an authorised person relating to a drug screening test or oral fluid analysis,
refuses or fails to comply with the requirement or direction by reason of some
physical or medical condition of the worker and immediately makes a request of
the authorised person that a sample of his or her blood be taken by a medical
practitioner, the authorised person must do all things reasonably necessary to
facilitate the taking of a sample of the worker's blood for analysis
by—
(a) a medical practitioner nominated by the worker; or
(b) a medical practitioner nominated by the authorised person at the
request of the worker.
(8) If a rail
safety worker of whom a requirement is made or to whom a direction is given
under this section relating to a blood test required in connection
with—
(a) drug
testing—refuses or fails to comply with the requirement or direction by
reason of some physical or medical condition of the worker and immediately makes
a request of an authorised person that an oral fluid analysis be conducted, an
authorised person must do all things reasonably necessary to facilitate the
conduct of an oral fluid analysis; or
(b) alcohol
testing—refuses or fails to comply with the requirement or direction by
reason of some physical or medical condition of the worker and immediately makes
a request of an authorised person that a breath analysis be conducted, an
authorised person must do all things reasonably necessary to facilitate the
conduct of a breath analysis.
(9) A rail safety worker is not relieved from the obligation to submit to
a drug screening test, oral fluid analysis or blood test in accordance with this
section or section 127 of the Rail
Safety National Law by—
(a) the making of a request under
subsection (7)
or
(8); or
(b) the taking of a sample of—
(i) the worker’s blood under
subsection (7);
or
(ii) the worker's oral fluid under
subsection (8)(a);
or
(c) the conduct of a breath analysis under
subsection (8)(b).
(10) A rail safety worker is not entitled to refuse or fail to comply with
a requirement or direction under this section or section 127 of the Rail
Safety National Law on the ground that—
(a) the worker would, or might, by complying with that requirement or
direction, provide evidence that could be used against himself or herself;
or
(b) the worker consumed a drug or alcohol after the worker last performed
rail safety work or was involved in a prescribed notifiable occurrence (as the
case may be), but before the requirement was made or the direction
given.
(11) The taking of a blood sample under this section must be in the
presence of an authorised person.
14—Breath
analysis where drinking occurs after rail safety work is carried
out
(1) This section applies to proceedings for an offence in which the
results of a breath analysis under this Part or Part 3 Division 9 of
the Rail Safety National Law are relied on to establish the commission of
the offence.
(2) If in
proceedings to which this section applies the defendant satisfies the
court—
(a) that the defendant consumed alcohol during the relevant period;
and
(b) that the alcohol was not consumed by the defendant after an authorised
person first exercised powers under section 126 of the Rail
Safety National Law preliminary to the performance of the breath
analysis; and
(c) that, after taking into account the quantity of alcohol consumed by
the defendant during the relevant period and its likely effect on the
concentration of alcohol indicated as being present in the defendant's blood by
the breath analysis, the defendant should not be found guilty of the offence
charged,
the court may, despite the other provisions of this Part or the Rail
Safety National Law, find the defendant not guilty of the offence
charged.
(3) In
subsection (2)—
relevant period means the period between—
(a) the prescribed notifiable occurrence or the conduct of the defendant
giving rise to the making of the requirement under section 126 of the Rail
Safety National Law that the defendant submit to the breath analysis;
and
(b) the performance of the breath analysis.
15—Oral
fluid analysis or blood test where consumption of alcohol or drug occurs after
rail safety work is carried out
(1) This section applies to proceedings for an offence relating
to—
(a) the presence of alcohol in which the results of a blood test under
section 127 of the Rail
Safety National Law are relied on to establish the commission of the
offence; or
(b) the presence of a drug in which the results of an oral fluid analysis
or blood test under section 127 of the Rail
Safety National Law are relied on to establish the commission of the
offence.
(2) If in
proceedings to which this section applies the defendant satisfies the
court—
(a) that the defendant consumed alcohol or consumed or used the drug (as
the case may be) during the relevant period; and
(b) that the alcohol was not consumed or the drug was not consumed or used
by the defendant (as the case may be) after an authorised person first exercised
powers under section 127 of the Rail
Safety National Law preliminary to the performance of the blood test or
oral fluid analysis; and
(c) that, after taking into account the quantity of alcohol consumed, or
drug consumed or used, by the defendant during the relevant period and its
likely effect on the concentration of alcohol or drug indicated as being present
in the defendant's blood or oral fluid by the test or analysis, the defendant
should not be found guilty of the offence charged,
the court may, despite the other provisions of this Part or the Rail
Safety National Law, find the defendant not guilty of the offence
charged.
(3) In
subsection (2)—
relevant period means the period between—
(a) the prescribed notifiable occurrence or the conduct of the defendant
giving rise to the making of the requirement that the defendant submit to the
oral fluid analysis or blood test under section 127 of the Rail
Safety National Law; and
(b) the performance of the oral fluid analysis or blood test (as the case
may be).
16—Compulsory
blood testing following a prescribed notifiable occurrence
(1) If a rail safety worker suffers an injury as a result of a prescribed
notifiable occurrence and, within 8 hours after the prescribed notifiable
occurrence, the worker attends at, or is admitted into, a hospital for the
purposes of receiving treatment for that injury, it is (subject to this section)
the duty of the medical practitioner who attends the worker to take, as soon as
practicable, a sample of the worker's blood (notwithstanding that the worker may
be unconscious) in accordance with this section.
(2) If a rail
safety worker suffers an injury as a result of a prescribed notifiable
occurrence and the worker is dead on arrival at the hospital, or dies before a
sample of blood has been taken in accordance with this section and within
8 hours after admission to the hospital, it is the duty of the medical
practitioner who, pursuant to Part 5 of the Coroners
Act 2003, notifies the State Coroner or a police officer of the
death—
(a) to take a sample of blood from the body of the deceased in accordance
with this section; or
(b) to notify the State Coroner as soon as practicable that, in view of
the circumstances in which the death of the deceased occurred, a sample of blood
should be taken from the body under this section.
(3) The State Coroner, on receiving a notification under
subsection (2),
may authorise and direct a pathologist to take a sample of blood from the body
of the deceased in accordance with this section.
(4) A medical practitioner is not obliged to take a sample of blood under
this section if a sample of blood has been taken in accordance with this section
by another medical practitioner.
(5) Any person who, on being requested to submit to the taking of a sample
of blood under this section, refuses or fails to comply with that request and
who—
(a) fails to assign any reason based on genuine medical grounds for that
refusal or failure; or
(b) assigns a reason for that refusal or failure that is false or
misleading; or
(c) makes any other false or misleading statement in response to the
request,
is guilty of an offence.
Maximum penalty: $10 000.
(6) In this section—
hospital means an institution at which medical care or
attention is provided for injured persons that is declared to be a hospital for
the purposes of section 47I of the Road
Traffic Act 1961.
17—Processes
relating to blood samples
The following provisions apply where a sample of blood is taken under this
Part or Part 3 Division 9 of the Rail Safety National
Law:
(a) the medical
practitioner by whom the sample of blood is taken must—
(i) place the sample of blood in approximately equal proportions in
2 separate containers marked with an identification number distinguishing
the sample from other samples of blood and seal the containers; and
(ii) give to the person from whom the sample was taken or (in the case of
a sample taken under
section 16)
leave with the person's personal effects at the hospital, a notice in
writing—
(A) advising that the sample has been taken under the relevant section;
and
(B) advising that a container containing part of the sample and marked
with the identification number specified in the notice will be available for
collection by or on behalf of the person at a specified place; and
(C) containing any other information prescribed by the regulations;
and
(iii) complete and sign a certificate containing the information required
under
paragraph (d);
and
(iv) make the containers and the certificate available to an authorised
person;
(b) each container must contain a sufficient quantity of blood to enable
an analysis to be made of the concentration of alcohol present in the blood or
of the presence of a drug in the blood;
(c) it is the duty of the medical practitioner by whom the sample is taken
to take such measures as are reasonably practicable in the circumstances to
ensure that the blood is not adulterated and does not deteriorate so as to
prevent a proper analysis of the concentration of alcohol present in the blood,
or the presence of a drug in the blood;
(d) the certificate
referred to in
paragraph (a)
must state—
(i) the identification number of the sample marked on the containers
referred to in that paragraph; and
(ii) the name and address of the person from whom the sample was taken;
and
(iii) the name of the medical practitioner by whom the sample was taken;
and
(iv) the date, time and place at which the sample was taken; and
(v) that the medical practitioner gave the notice referred to in that
paragraph to the person from whom the sample was taken, or, as the case may be,
left the notice with the person's personal effects;
(e) 1 of the containers containing the sample must—
(i) as soon as reasonably practicable be taken by an authorised person or
approved courier to the place specified in the notice given to the person or
left with the person's personal effects under
paragraph (a);
and
(ii) be kept available at that place for collection by or on behalf of the
person for the period prescribed by the regulations;
(f) after analysis of the sample in a container made available to an
authorised person in accordance with
paragraph (a),
the analyst who performed or supervised the analysis must sign a certificate
containing the following information:
(i) the identification number of the sample marked on the
container;
(ii) the name and professional qualifications of the analyst;
(iii) the date the sample was received in the laboratory in which the
analysis was performed;
(iv) the concentration of alcohol, prescribed drug or other drug found to
be present in the sample;
(v) any factors relating to the sample or the analysis that might, in the
opinion of the analyst, adversely affect the accuracy or validity of the
analysis;
(vi) any other information relating to the sample or analysis that the
analyst thinks fit to include;
(g) on completion
of an analysis of a sample, the certificate of the medical practitioner by whom
the sample was taken and the certificate of the analyst who performed or
supervised the analysis must be sent to the Regulator and copies of the
certificates must be sent—
(i) if the sample was taken as a result of testing required by a police
officer—to the Commissioner of Police; and
(ii) to the medical practitioner by whom the sample was taken;
and
(iii) to the person
from whom the sample was taken or, if the person is dead, a relative or personal
representative of the deceased;
(h) if the whereabouts of the person from whom the sample is taken, or the
identity or whereabouts of a relative or personal representative of the deceased
(as the case may be) is unknown, there is no obligation to comply with
paragraph (g)(iii)
but copies of the certificates must, on application made within 3 years
after the completion of the analysis, be provided to any person to whom they
should, but for this paragraph, have been sent.
18—Processes
relating to oral fluid samples
The following provisions apply where a sample of oral fluid is taken under
this Part or Part 3 Division 9 of the Rail Safety National
Law:
(a) the authorised
person who conducts the oral fluid analysis must—
(i) place the sample of oral fluid (and any other reagent or other
substance required by the regulations to be added to the sample) in
approximately equal proportions, in 2 separate containers marked with an
identification number distinguishing the sample from other samples of oral fluid
and seal the containers; and
(ii) give to the person from whom the sample was taken a notice in
writing—
(A) advising that the sample has been taken under section 127 of the
Rail Safety National Law; and
(B) advising that a container containing part of the sample and marked
with the identification number specified in the notice will be available for
collection by or on behalf of the person at a specified place; and
(C) containing any other information prescribed by the regulations;
and
(iii) complete and sign a certificate containing the information required
under
paragraph (d);
(b) each container must contain a sufficient quantity of oral fluid to
enable an analysis to be made of the presence of a prescribed drug in the oral
fluid;
(c) it is the duty of the authorised person who conducts the oral fluid
analysis to take such measures as are reasonably practicable in the
circumstances to ensure that the sample is not adulterated (other than as
required under
paragraph (a))
and does not deteriorate so as to prevent a proper analysis of the presence of a
prescribed drug in the oral fluid;
(d) the certificate
referred to in
paragraph (a)
must state—
(i) the identification number of the sample marked on the containers
referred to in that paragraph; and
(ii) the name and address of the person from whom the sample was taken;
and
(iii) the identification number of the authorised person by whom the
sample was taken; and
(iv) the date, time and place at which the sample was taken; and
(v) that the authorised person gave the notice referred to in that
paragraph to the person from whom the sample was taken;
(e) 1 of the containers containing the sample must—
(i) as soon as reasonably practicable be taken by an authorised person or
approved courier to the place specified in the notice given to the person under
paragraph (a);
and
(ii) be kept available at that place for collection by or on behalf of the
person for the period prescribed by the regulations;
(f) after analysis of the sample in a container referred to in
paragraph (a),
the analyst who performed or supervised the analysis must sign a certificate
containing the following information:
(i) the identification number of the sample marked on the
container;
(ii) the name and professional qualifications of the analyst;
(iii) the date the sample was received in the laboratory in which the
analysis was performed;
(iv) the information required by the regulations in relation to any
prescribed drug or other drug found to be present in the sample;
(v) any factors relating to the sample or the analysis that might, in the
opinion of the analyst, adversely affect the accuracy or validity of the
analysis;
(vi) any other information relating to the sample or analysis that the
analyst thinks fit to include;
(g) on completion
of an analysis of a sample, the certificate of the analyst who performed or
supervised the analysis must be sent—
(i) to the Regulator; and
(ii) if the sample was taken as a result of testing required by a police
officer—to the Commissioner of Police; and
(iii) to the person
from whom the sample was taken or, if the person is dead, a relative or personal
representative of the deceased;
(h) if the whereabouts of the person from whom the sample is taken or,
that person being dead, the identity or whereabouts of a relative or personal
representative of the deceased is unknown, there is no obligation to comply with
paragraph (g)(iii)
(but copies of the certificates must, on application made within 3 years
after completion of the analysis, be provided to any person to whom they should,
but for this paragraph, have been sent).
19—Concentration
of alcohol in breath taken to indicate concentration of alcohol in
blood
If a person submits to a preliminary breath test or breath analysis and the
preliminary breath test apparatus or the breath analysing instrument produces a
reading in terms of a number of grams of alcohol in 210 litres of the
person's breath, the reading will, for the purposes of this Act, the Rail
Safety National Law and any other Act, be taken to be that number of grams
of alcohol in 100 millilitres of the person's blood.
(1) Without
affecting the admissibility of evidence that might be given otherwise than
pursuant to this section, evidence may be given, in any proceedings for an
offence, of the concentration of alcohol indicated as being present in the blood
of the defendant by a breath analysing instrument operated by an authorised
person and, if the requirements and procedures in relation to breath analysing
instruments and breath analysis under this Part, Part 3 Division 9 of
the Rail Safety National Law or prescribed by regulation, including
subsections (4)
and
(5), have been
complied with, it must be presumed, in the absence of proof to the contrary,
that the concentration of alcohol so indicated was present in the blood of the
defendant at the time of the analysis, and throughout the preceding period of
2 hours.
(2) No evidence can
be adduced in rebuttal of the presumption created by
subsection (1)
except—
(a) evidence of the concentration of alcohol in the blood of the defendant
as indicated by analysis of a sample of blood taken and dealt with in accordance
with this Part, Part 3 Division 9 of the Rail Safety National
Law or in accordance with the regulations; and
(b) evidence as to whether the results of analysis of the sample of blood
demonstrate that the breath analysing instrument gave an exaggerated reading of
the concentration of alcohol present in the blood of the defendant.
(3) No evidence can be adduced as to a breath or blood alcohol reading
obtained from a coin-operated breath testing or breath analysing machine
installed in a hotel or other licensed premises.
(4) As soon as
practicable after a person has submitted to an analysis of breath by means of a
breath analysing instrument, the person operating the instrument must deliver to
the person whose breath has been analysed a statement in writing
specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(5) If a person has
submitted to an analysis of breath by means of a breath analysing instrument and
the concentration of alcohol indicated as being present in the blood of that
person by the instrument is the prescribed concentration of alcohol, the person
operating the breath analysing instrument must immediately—
(a) give the person
the prescribed oral advice and deliver to the person the prescribed written
notice as to the operation of this Part and Part 3 Division 9 of the
Rail Safety National Law in relation to the results of the breath
analysis and as to the procedures prescribed for the taking and analysis of a
sample of the person's blood; and
(b) at the request
of the person made in accordance with the regulations, deliver an approved blood
test kit to the person.
(6) A certificate—
(a) purporting to be signed by the Regulator and to certify that a person
named in the certificate is an authorised person; or
(b) purporting to be signed by the Commissioner of Police and to certify
that a person named in the certificate is authorised by the Commissioner of
Police to operate breath analysing instruments; or
(c) purporting to be signed by an authorised person and to certify
that—
(i) the apparatus used by the authorised person was a breath analysing
instrument within the meaning of this Part; and
(ii) the breath analysing instrument was in proper order and was properly
operated; and
(iii) the provisions of this Part, Part 3 Division 9 of the
Rail Safety National Law and the regulations with respect to breath
analysing instruments and the manner in which an analysis of breath by means of
a breath analysing instrument is to be conducted were complied with,
is admissible in proceedings before a court and is, in the absence of proof
to the contrary, proof of the matters so certified.
(7) A certificate purporting to be signed by an authorised person and to
certify that an apparatus referred to in the certificate is or was of a kind
approved under
section 11 for the
purpose of performing alcotests, a drug screening test or an oral fluid analysis
is admissible in proceedings before a court and is, in the absence of proof to
the contrary, proof of the matter so certified.
(8) A certificate purporting to be signed by an authorised person and to
certify that a person named in the certificate submitted to an alcotest on a
specified day and at a specified time and that the alcotest indicated that the
prescribed concentration of alcohol may then have been present in the blood of
that person is admissible in proceedings before a court and is, in the absence
of proof to the contrary, proof of the matters so certified.
(9) Subject to
subsection (21)
a certificate purporting to be signed by an analyst, certifying as to the
concentration of alcohol, or any drug, found in a specimen of blood identified
in the certificate expressed in grams in 100 millilitres of blood is, in
the absence of proof to the contrary, proof of the matters so
certified.
(10) Subject to
subsection (21),
a certificate purporting to be signed by an authorised person and to certify
that—
(a) a person named in the certificate submitted to an analysis of breath
by means of a breath analysing instrument on a day and at a time specified in
the certificate; and
(b) the breath analysing instrument produced a reading specified in the
certificate; and
(c) a statement in writing required by
subsection (4)
was delivered in accordance with that subsection,
is admissible in proceedings before a court and is, in the absence of proof
to the contrary, proof of the matters so certified.
(11) A certificate purporting to be signed by an authorised person and to
certify—
(a) that on a date and at a time stated in the certificate, a person named
in the certificate submitted to a breath analysis; and
(b) that the prescribed oral advice and the prescribed written notice were
given and delivered to the person in accordance with
subsection (5)(a);
and
(c) that—
(i) the person did not make a request for an approved blood test kit in
accordance with the regulations; or
(ii) at the request of the person, a kit that, from an examination of its
markings, appeared to the person signing the certificate to be an approved blood
test kit was delivered to the person in accordance with
subsection (5)(b),
is, in the absence of proof to the contrary, proof that the requirements of
subsection (5)
were complied with in relation to the person.
(12) A prosecution for an offence will not fail because of a deficiency of
a kit delivered to the defendant in purported compliance with
subsection (5)(b)
and the presumption under
subsection (1)
will apply despite such a deficiency unless it is proved—
(a) that the defendant delivered the kit unopened to a medical
practitioner for use in taking a sample of the defendant's blood; and
(b) by evidence of the medical practitioner, that the medical practitioner
was, because of a deficiency of the kit, unable to comply with the prescribed
procedures governing the manner in which a sample of a person's blood must be
taken and dealt with for the purposes of
subsection (2).
(13) Subject to
subsection (21),
an apparently genuine document purporting to be a certificate under this Part,
or a copy of such a certificate, and purporting to be signed by an authorised
person, medical practitioner or analyst under this Part is admissible in
proceedings before a court and is, in the absence of proof to the contrary,
proof of the matters stated in the certificate.
(14) If a certificate of an analyst relating to a sample of blood taken
under this Part or Part 3 Division 9 of the Rail Safety National
Law is received in evidence in proceedings before a court and states that
the prescribed concentration of alcohol has been found to be present in the
sample of blood to which the certificate relates, it will be presumed, in the
absence of proof to the contrary, that the concentration of alcohol stated in
the certificate was present in the sample when the sample was taken.
(15) If it is proved by the prosecution in the proceedings for an offence
that a concentration of alcohol was present in the defendant's blood at the time
at which a sample of blood was taken under this Part or Part 3
Division 9 of the Rail Safety National Law, it will be conclusively
presumed that that concentration of alcohol was present in the defendant's blood
throughout the period of 2 hours immediately preceding the taking of the
sample.
(16) If certificates of an authorised person and analyst, or a medical
practitioner and analyst under this Part or Part 3 Division 9 of the
Rail Safety National Law are received as evidence in proceedings before a
court and contain the same identification number for the samples of oral fluid
or blood to which they relate, the certificates will be presumed, in the absence
of proof to the contrary, to relate to the same sample of oral fluid or
blood.
(17) If a certificate of an analyst relating to a sample of oral fluid or
blood taken under this Part or Part 3 Division 9 of the Rail Safety
National Law is received as evidence in proceedings before a court and
states that a drug has been found to be present in the sample of oral fluid or
blood to which the certificate relates, it will be presumed, in the absence of
proof to the contrary, that the drug stated in the certificate was present in
the sample when the sample was taken.
(18) If it is proved by the prosecution in proceedings for an offence that
a drug was present in the defendant's oral fluid or blood at the time at which a
sample of oral fluid or blood was taken under this Part or Part 3
Division 9 of the Rail Safety National Law, it will be conclusively
presumed that the drug was present in the defendant's oral fluid or blood (as
the case may require) throughout the period of 3 hours immediately
preceding the taking of the sample.
(19) A certificate purporting to be signed by an authorised person and to
certify that a person named in the certificate submitted to a drug screening
test on a specified day and at a specified time and that the drug screening test
indicated that a prescribed drug may then have been present in the oral fluid of
the person is admissible in proceedings before a court and is, in the absence of
proof to the contrary, proof of the matters so certified.
(20) A certificate—
(a) purporting to be signed by the Regulator or the Commissioner of Police
and to certify that a person named in the certificate is authorised by the
Regulator or the Commissioner of Police (as the case may be) to conduct oral
fluid analyses or drug screening tests; or
(b) purporting to be signed by an authorised person authorised to conduct
oral fluid analyses or drug screening tests for the purposes of this Part or
Part 3 Division 9 of the Rail Safety National Law and to
certify that the apparatus used to conduct an oral fluid analysis or a drug
screening test was in proper order and the oral fluid analysis or drug screening
test was properly conducted,
is admissible in proceedings before a court and is, in the absence of proof
to the contrary, proof of the matters so certified.
(21) A certificate
referred to in
subsection (9),
(10) or
(13) cannot be
received as evidence in proceedings for an offence—
(a) unless a copy of the certificate proposed to be put in evidence at the
trial of a person for the offence has, not less than 7 days before the
commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served has,
not less than 2 days before the commencement of the trial, served written
notice on the complainant or informant requiring the attendance at the trial of
the person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the
certificate was signed to attend at the trial.
21—Blood
samples may be taken by nurses outside Metropolitan
Adelaide
(1) If a person is to provide a sample of blood in accordance with the
requirements of this Part and Part 3 Division 9 of the Rail
Safety National Law and the place at which the person attends for that
purpose is outside Metropolitan Adelaide, a sample of the person's blood may be
taken by a registered nurse instead of a medical practitioner for the purposes
of this Part and the Rail
Safety National Law.
(2) The provisions of this Part and Part 3 Division 9 of the
Rail
Safety National Law, and the regulations made under this Part, apply in
relation to the taking of the sample by a registered nurse, and the subsequent
dealing with the sample, as if a reference in those provisions to a medical
practitioner included a reference to a registered nurse.
(3) This section does not apply to a sample of blood taken under
section 16 of
this Part.
22—Protection
of medical practitioners etc from liability
(1) No proceedings lie against a medical practitioner or registered nurse,
or a person acting under the supervision or direction of a medical practitioner
or registered nurse, in respect of anything done in good faith and in
compliance, or purported compliance, with the provisions of this Part or
Part 3 Division 9 of the Rail Safety National Law.
(2) A medical practitioner or registered nurse must not take a sample of
the person's blood under this Part or Part 3 Division 9 of the Rail
Safety National Law if, in his or her opinion, it would be injurious to the
medical condition of the person to do so.
(3) A medical practitioner or registered nurse is not obliged to take a
sample of a person's blood under this Part or Part 3 Division 9 of the
Rail Safety National Law if the person objects to the taking of the
sample of blood and persists in that objection after the medical practitioner or
registered nurse (as the case requires) has informed the person, that unless the
objection is made on genuine medical grounds, it may constitute an offence
against this Part or the Rail Safety National Law.
23—Regulations—drug
and alcohol testing procedures
(1) The Governor
may make any regulations that are contemplated by this Part or Part 3
Division 9 of the Rail Safety National Law, or are necessary or
expedient for the purposes of this Part or Part 3 Division 9 of the
Rail Safety National Law.
(2) Without limiting
subsection (1),
the Governor may make regulations making provision for or in relation to any
other matter associated with—
(a) the testing of persons for the presence of alcohol or a drug, the
analysis of test results, the use of results from any testing or analysis, or
the steps that may be taken on account of any testing or any evidence or
information produced as a result of testing; or
(b) the destruction of a sample of oral fluid or blood taken under this
Part or Part 3 Division 9 of the Rail Safety National Law (and
any other forensic material taken incidentally during a drug screening test,
oral fluid analysis or blood test).
Part 5—Repeal
and transitional provisions and related amendments
In this Part—
Rail Safety National Law or Law means the
Rail Safety National Law, as amended from time to time, set out in the
schedule;
relevant day means the day on which the Rail
Safety Act 2007 is repealed;
repealed Act means the Rail
Safety Act 2007.
Division 2—Repeal
of Rail Safety
Act 2007
25—Repeal
of Rail Safety
Act 2007
The Rail
Safety Act 2007 is repealed.
Division 3—Transitional
provisions
(1) An application for accreditation, or variation of accreditation, made
but not determined under the repealed Act immediately before the relevant day,
will be taken to be an application for accreditation, or variation of
accreditation, under the Rail
Safety National Law and will, accordingly, be determined in accordance
with the Law.
(2) A rail
transport operator that, immediately before the relevant day, holds an
accreditation under the repealed Act in respect of railway operations carried
out by or on behalf of the operator will be taken, on the relevant day, to hold
an accreditation in respect of those railway operations under the Rail
Safety National Law subject to such conditions and restrictions as
applied to the accreditation under the repealed Act.
(3) If, immediately
before the relevant day, the accreditation, or part of the accreditation, of a
rail transport operator has been suspended under the repealed Act, the
accreditation under the Rail
Safety National Law that the operator will be taken to have by virtue of
subsection (2)
will be subject to the same suspension as applied to the accreditation under the
repealed Act.
(1) A rail
infrastructure manager of a private siding that, immediately before the relevant
day, is registered under the repealed Act will be taken, on the relevant
day, to be registered under the Rail
Safety National Law in respect of the private siding.
(2) A registration
under
subsection (1)
will be subject to such conditions as applied to the registration under the
repealed Act, subject to any variations, or new conditions, as the
Regulator may, by notice in writing to the relevant rail infrastructure manager,
determine.
(3) Notification
under
subsection (2)—
(a) must be in writing and given to the rail infrastructure manager;
and
(b) if a condition or restriction has been imposed on the registration,
must include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under Part 7 of the
Law.
(1) A report of a notifiable occurrence made under Part 4
Division 6 of the repealed Act immediately before the relevant day will
have effect as if it were a report of a notifiable occurrence made under
Part 3 Division 8 of the Rail
Safety National Law.
(2) A notifiable occurrence that is being investigated under Part 4
Division 6 of the repealed Act immediately before the relevant day will
continue as if it were an investigation under Part 3 Division 8 of the
Rail
Safety National Law.
(1) An improvement notice in force under Part 5 Division 7 of
the repealed Act immediately before the relevant day will continue to have force
and effect as if it were an improvement notice under Part 5 Division 1
of the Rail
Safety National Law.
(2) A prohibition notice in force under Part 5 Division 8 of the
repealed Act immediately before the relevant day will continue to have force and
effect as if it were a prohibition notice under Part 5 Division 2 of
the Rail
Safety National Law.
(1) If an application for accreditation, or variation of accreditation,
has been refused under the repealed Act and the period within which the
applicant could have applied for a review of the decision had that Act not been
repealed has not, immediately before the relevant day, expired, the applicant
may, before the expiry of that period, apply for a review of the decision under
the Rail
Safety National Law as if the decision had been made under the
Law.
(2) A person who is to be granted accreditation as the result of a review
of, or appeal against, a decision made under the repealed Act who has not,
immediately before the relevant day, been accredited, will be granted
accreditation under the Rail
Safety National Law subject to such conditions and restrictions as would
have applied to the accreditation under the repealed Act.
31—Provision
of information and assistance by Rail Safety Regulator
(1) Despite any other
Act or law, the Rail Safety Regulator under the repealed Act is authorised, on
his or her own initiative or at the request of ONRSR—
(a) to provide ONRSR with such information (including information given in
confidence) in the possession or control of the Rail Safety Regulator that is
reasonably required by ONRSR for the purposes of this Act or the Rail
Safety National Law; and
(b) to provide ONRSR with such other assistance as is reasonably required
by ONRSR to exercise a function or power under this Act or the Rail
Safety National Law.
(2) Despite any other
Act or law, the Rail Safety Regulator under the repealed Act may authorise ONRSR
to disclose information provided under
subsection (1) even
if the information was given to the Rail Safety Regulator in
confidence.
(3) Nothing done, or authorised to be done, by the Rail Safety Regulator
in acting under
subsection (1) or
(2)—
(a) constitutes a breach of, or default under, an Act or other law;
or
(b) constitutes a breach of, or default under, a contract, agreement,
understanding or undertaking; or
(c) constitutes a breach of duty of confidence (whether arising by
contract, in equity or by custom) or in any other way; or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation or fulfils any condition that
allows a person to terminate an agreement or obligation, or gives rise to any
other right or remedy; or
(f) releases a surety or any other obligee wholly or in part from an
obligation.
32—Regulations—saving
and transitional provisions
(1) The Governor may make regulations containing provisions of a
transitional nature, including matters of an application or savings nature,
arising as a result of the enactment of this Act, including any repeals and
amendments made as a result of the enactment of this Act.
(2) Regulations made under this section may—
(a) have a retrospective effect to a day on or from a date not earlier
than the day on which this Act receives Royal Assent; and
(b) be of limited or general application; and
(c) leave any matter or thing to be decided by a specified person or class
of person.
(3) Regulations under this section have effect despite anything to the
contrary in any Act (other than this Act) or in any statutory
instrument.
In this Division, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
34—Amendment
of Rail Commissioner
Act 2009
(1) Section 3(2)—delete "Rail
Safety Act 2007" and substitute:
Rail
Safety National Law (South Australia) Act 2012
(2) Section 7(1)(g)—delete "Rail
Safety Act 2007" and substitute:
Rail
Safety National Law (South Australia) Act 2012
(3) Section 8(7), definition of owner, (a)—delete
"
Rail
Safety Act 2007" and substitute:
Rail
Safety National Law (South Australia) Act 2012
35—Amendment
of Railways (Operations and Access)
Act 1997
Section 4, definition of railway
infrastructure—delete "
Rail
Safety Act 2007" and substitute:
Rail
Safety National Law (South Australia) Act 2012
36—Amendment
of Terrorism (Surface Transport Security)
Act 2011
Section 6(8)—delete "Rail
Safety Act 2007" wherever occurring and substitute in each
case:
Rail
Safety National Law (South Australia) Act 2012
This Division will expire immediately after the amendments effected by this
Division have come into operation.
Schedule—Rail
Safety National Law
Part 1—Preliminary
1—Short title
This Law may be cited as the Rail Safety National Law.
2—Commencement
This Law commences in a participating jurisdiction as provided by the
application Act of the jurisdiction.
3—Purpose, objects and guiding principles of
Law
(1) The main purpose of this Law is to provide for safe railway operations
in Australia.
(2) The objects of this Law are—
(a) to establish the Office of the National Rail Safety Regulator (the
ONRSR); and
(b) to make provision for the appointment, functions and powers of the
National Rail Safety Regulator (the Regulator); and
(c) to make provision for a national system of rail safety, including by
providing a scheme for national accreditation of rail transport operators in
respect of railway operations; and
(d) to provide for the effective management of safety risks associated
with railway operations; and
(e) to provide for the safe carrying out of railway operations;
and
(f) to provide for continuous improvement of the safe carrying out of
railway operations; and
(g) to make special provision for the control of particular risks arising
from railway operations; and
(h) to promote public confidence in the safety of transport of persons or
freight by rail; and
(i) to promote the provision of advice, information, education and
training for safe railway operations; and
(j) to promote the effective involvement of relevant stakeholders, through
consultation and cooperation, in the provision of safe railway
operations.
(3) The guiding principles under this Law are—
(a) to assist rail transport operators to achieve productivity by the
provision of a national scheme for rail safety; and
(b) to operate the national scheme in a timely, transparent, accountable,
efficient, effective, consistent and fair way; and
(c) that fees required to be paid for the provision of the national scheme
are to be reasonable having regard to the efficient and effective operation of
the scheme.
(4) The Parliament does not intend by this section to create in any person
any legal right or give rise to any civil cause of action.
4—Interpretation
(1) In this Law, unless the contrary intention appears—
accredited person means a rail transport operator who is
accredited under this Law, but does not include a person whose accreditation
under this Law—
(a) has been surrendered or revoked or has otherwise ceased to have effect
under this Law; or
(b) is suspended under this Law;
Acting Regulator means an Acting National Rail Safety
Regulator appointed under
Part 2
Division 2;
amusement structure means a structure or device operated for
hire or reward, or provided on hire or lease—
(a) that is used or designed to be used for amusement or entertainment and
on which persons may be moved, carried, raised, lowered or supported by any part
of the structure or device; and
(b) that is an arrangement of structural or mechanical elements (or both)
that has as its prime function the provision of movement of a passenger or
passengers in a controlled manner so that the passenger or passengers are not
necessarily required to move themselves to obtain the desired effect;
application Act means the Act of a jurisdiction that applies
the Rail Safety National Law set out in the schedule to the
Rail
Safety National Law (South Australia) Act 2011 of South Australia as a
law of the jurisdiction;
approved code of practice means a code of practice approved
under
section 249;
AQF means the Australian Qualifications Framework within the
meaning of the Skilling Australia's Workforce Act 2005 of the
Commonwealth;
AQTF means the Australian Quality Training Framework within
the meaning of the Skilling Australia's Workforce Act 2005 of the
Commonwealth;
associated railway track structures includes—
(a) associated works (such as cuttings, sidings, tunnels, bridges,
stations, platforms, tram stops, excavations, land fill, track support
earthworks and drainage works); and
(b) over-track structures and under-track structures (including tunnels
under tracks);
Australian Accounting Standards means Accounting Standards
issued by the Australian Accounting Standards Board;
Australian rail safety law means this Law or a corresponding
previous enactment in a participating jurisdiction corresponding, or
substantially corresponding, to this Law;
authorised person means—
(a) a police officer; or
(b) a person appointed under
section 124;
Category 1 offence—see
section 58;
Category 2 offence—see
section 59;
Category 3 offence—see
section 60;
commercial benefits order means an order under
section 230;
designated provision of this Law—see
section 204;
drug means—
(a) a substance declared by the national regulations to be a drug for the
purposes of this Law; and
(b) a substance declared under
section 6 to be a drug
for the purposes of this Law; and
(c) any other substance (other than alcohol) that, when consumed or used
by a person, deprives that person (temporarily or permanently) of any of his or
her normal mental or physical faculties;
employee means a person employed under a contract of
employment or contract of training;
employer means a person who employs 1 or more other
persons under contracts of employment or contracts of training;
exercise, for a function, includes perform;
footpath means an area open to the public that is designated
for, or 1 of its main uses is, use by pedestrians;
Fund means the National Rail Safety Regulator Fund
established under
Part 2
Division 4;
improvement notice means a notice under
Part 5
Division 1;
infringement penalty provision has the meaning given by
section 233;
interface agreement means an agreement made under
Part 3 Division 6
Subdivision 2 about managing risks to safety identified and assessed in
accordance with that Subdivision;
jurisdiction means a State or Territory;
level crossing means an area where a road and a railway meet
at substantially the same level, whether or not there is a level crossing sign
on the road at all or any of the entrances to the area;
member, of ONRSR, means the Regulator, an Acting Regulator or
a non-executive member appointed under
Part 2
Division 2;
national regulations means the regulations made under
section 264;
non-disturbance notice means a notice under
Part 5
Division 3;
notifiable occurrence means an accident or incident
associated with railway operations—
(a) that has, or could have, caused—
(i) significant property damage; or
(ii) serious injury; or
(iii) death; or
(b) that is, or is of a class that is, prescribed by the national
regulations to be a notifiable occurrence or class of notifiable
occurrence,
but does not include an accident or incident, or class of accident or
incident, that is prescribed by the national regulations not to be a notifiable
occurrence;
occupational health and safety legislation means legislation
relating to occupational health and safety prescribed by the national
regulations for the purposes of this definition;
Office of the National Rail Safety Regulator or
ONRSR means the Office of the National Rail Safety Regulator
established under
Part 2
Division 1;
officer—
(a) in relation to a body corporate, has the same meaning as officer has
in relation to a corporation under section 9 of the Corporations Act 2001
of the Commonwealth;
(b) in relation to any other person, means an individual who makes, or
participates in making, decisions that affect the whole, or a substantial part,
of the business or undertaking of the person;
participating jurisdiction means a jurisdiction in
which—
(a) this Law applies as a law of the jurisdiction; or
(b) a law that substantially corresponds to the provisions of this Law has
been enacted; or
(c) a law prescribed by the national regulations for the purposes of this
definition has been enacted;
prescribed drug—see
section 128;
private siding means a siding that is owned, controlled or
managed by a person, other than a person who manages the rail infrastructure
with which the siding connects or to which it has access, but does not
include—
(a) a marshalling yard; or
(b) a crossing loop; or
(c) a passenger terminal; or
(d) a freight terminal; or
(e) a siding under the control and management of an accredited rail
infrastructure manager; or
(f) a siding, or a siding of a class, prescribed by the national
regulations not to be a private siding;
prohibition notice means a notice under
Part 5
Division 2;
public place means—
(a) a place that—
(i) the public is entitled to use; or
(ii) is open to members of the public; or
(iii) is used by the public,
whether or not on payment of money; or
(b) a place that the occupier allows members of the public to enter,
whether or not on payment of money;
public road means any road other than a private
road;
public sector auditor means—
(a) the Auditor-General (however described) of a participating
jurisdiction; or
(b) an auditor employed, appointed or otherwise engaged, by an
Auditor-General of a participating jurisdiction;
rail infrastructure means the facilities that are necessary
to enable a railway to operate and includes—
(a) railway tracks and associated railway track structures; and
(b) service roads, signalling systems, communications systems, rolling
stock control systems, train control systems and data management systems;
and
(c) notices and signs; and
(d) electrical power supply and electric traction systems; and
(e) associated buildings, workshops, depots and yards; and
(f) plant, machinery and equipment,
but does not include—
(g) rolling stock; or
(h) any facility, or facility of a class, that is prescribed by the
national regulations not to be rail infrastructure;
rail infrastructure manager, in relation to rail
infrastructure of a railway, means the person who has effective control and
management of the rail infrastructure, whether or not the
person—
(a) owns the rail infrastructure; or
(b) has a statutory or contractual right to use the rail infrastructure or
to control, or provide, access to it;
rail or road crossing includes a railway crossing, a bridge
carrying a road over a railway and a bridge carrying a railway over a
road;
rail safety officer means a person holding an appointment as
a rail safety officer under
Part 4
Division 2;
rail safety undertaking—see
Part 10
Division 6;
rail safety work—see
section 8;
rail safety worker means an individual who has carried out,
is carrying out, or is about to carry out, rail safety work;
rail transport operator means—
(a) a rail infrastructure manager; or
(b) a rolling stock operator; or
(c) a person who is both a rail infrastructure manager and a rolling stock
operator;
rail workplace means a place where rail safety work is
carried out, and includes any place where a rail safety worker goes, or is
likely to be, while doing rail safety work;
railway means a guided system, or proposed guided system,
designed for the movement of rolling stock having the capability of transporting
passengers or freight (or both) on a railway track with a gauge of
600 millimetres or more, together with its rail infrastructure and rolling
stock, and includes the following:
(a) a heavy railway;
(b) a light railway;
(c) a monorail;
(d) an inclined railway;
(e) a tramway;
(f) a railway within a marshalling yard or a passenger or freight
terminal;
(g) a private siding;
(h) a guided system, or guided system of a class, prescribed by the
national regulations to be a railway;
Note—
See
section 7
for railways to which this Law does not apply.
railway crossing means—
(a) a level crossing; or
(b) any area where a footpath or shared path crosses a railway at
substantially the same level;
railway operations means any of the following:
(a) the construction of a railway, railway tracks and associated railway
track structures;
(b) the construction of rolling stock;
(c) the management, commissioning, maintenance, repair, modification,
installation, operation or decommissioning of rail infrastructure;
(d) the commissioning, use, modification, maintenance, repair or
decommissioning of rolling stock;
(e) the operation or movement, or causing the operation or movement by any
means, of rolling stock on a railway (including for the purposes of construction
or restoration of rail infrastructure);
(f) the movement, or causing the movement, of rolling stock for the
purposes of operating a railway service;
(g) the scheduling, control and monitoring of rolling stock being operated
or moved on rail infrastructure;
railway premises means—
(a) land (including any premises on land) on or in which is situated rail
infrastructure; or
(b) land (including any premises on land) on or in which is situated any
over-track or under-track structure or part of an over-track or under-track
structure; or
(c) freight centres or depots used in connection with the carrying out of
railway operations; or
(d) workshops or maintenance depots used in connection with the carrying
out of railway operations; or
(e) premises (including an office, building or housing) used in connection
with the carrying out of railway operations; or
(f) rolling stock or other vehicles associated with railway operations;
or
(g) any other rail workplace;
reasonably practicable—see
section 47;
Register means the National Rail Safety Register established
under
section 42;
registered person means a rail infrastructure manager who is
registered under this Law, but does not include a person whose registration
under this Law—
(a) has been surrendered or revoked or has otherwise ceased to have effect
under this Law; or
(b) is suspended under this Law;
Regulator means the National Rail Safety Regulator or an
Acting National Rail Safety Regulator appointed under
Part 2
Division 2;
relevant concentration of alcohol—see
section 128;
responsible Minister, for a participating jurisdiction, means
the Minister of that jurisdiction nominated by that jurisdiction as its
responsible Minister for the purposes of this Law;
road infrastructure includes—
(a) a road,
including its surface or pavement; and
(b) anything under or supporting a road or its surface or pavement;
and
(c) any bridge, tunnel, causeway, road-ferry, ford or other work or
structure forming part of a road system or supporting a road; and
(d) any bridge or
other work or structure located above, in or on a road; and
(e) any traffic control devices, electricity equipment, emergency
telephone systems or any other facilities (whether of the same or a different
kind) in, on, over, under or connected with anything referred to in
paragraphs (a)
to
(d); and
(f) anything prescribed by the national regulations to be road
infrastructure,
but does not include rail infrastructure or anything that is prescribed by
the national regulations not to be road infrastructure;
road manager—
(a) in relation to a private road—means the owner, or other person
responsible for the care, control and management, of the road; or
(b) in relation to a public road—means an authority, person or body
responsible for the care, control or management of the road;
rolling stock means a vehicle that operates on or uses a
railway, and includes a locomotive, carriage, rail car, rail motor, light rail
vehicle, train, tram, light inspection vehicle, self propelled infrastructure
maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a
vehicle designed to operate both on and off a railway when the vehicle is not
operating on a railway;
rolling stock operator means a person who has effective
control and management of the operation or movement of rolling stock on rail
infrastructure for a railway, but does not include a person by reason only that
the person drives the rolling stock or controls the network or the network
signals;
running line means a railway track used primarily for the
through movement of trains;
safety means the safety of people, including rail safety
workers, passengers, other users of railways, users of rail or road crossings
and the general public;
safety duty—see
section 57;
safety management system—see
Part 3
Division 6;
siding means a portion of railway track, connected by points
to a running line or another siding, on which rolling stock can be placed clear
of the running line;
South Australian Minister means the responsible Minister for
South Australia;
substance means substance in any form (whether gaseous,
liquid, solid or other), and includes material, preparation, extract and
admixture;
supervisory intervention order—see
section 231;
supply includes—
(a) in relation to goods—supply or resupply by way of sale,
exchange, lease, hire or hire purchase, whether as principal or agent;
or
(b) in relation to services—provide, grant or confer, whether as
principal or agent;
Territory means the Australian Capital Territory or the
Northern Territory;
this Law means—
(a) this Law as it applies as a law of a participating jurisdiction;
or
(b) a law of a participating jurisdiction that—
(i) substantially corresponds to the provisions of this Law; or
(ii) is prescribed by the national regulations for the purposes of
paragraph (c) of the definition of participating
jurisdiction;
train means—
(a) 2 or more units of rolling stock coupled together, at least 1 of which
is a locomotive or other self propelled unit; or
(b) a unit of rolling stock that is a locomotive or other self propelled
unit;
train safety recording—see
section 130;
union means—
(a) an employee organisation that is registered, or taken to be
registered, under the Fair Work (Registered Organisations) Act 2009 of
the Commonwealth; or
(b) an association of employees or independent contractors (or both) that
is registered or recognised as such an association (however described) under a
State or Territory industrial law.
(2) In this Law—
(a) a reference to this Law extends to a statutory
instrument made under this Law, or a provision of this Law or a statutory
instrument made under this Law; and
(b) a reference to the responsible Ministers is a reference
to a group of Ministers consisting of—
(i) the responsible Minister for each participating jurisdiction;
and
(ii) a Commonwealth Minister nominated by the Commonwealth as the
responsible Minister for the Commonwealth for the purposes of this Law (the
Commonwealth Minister).
(3) The Commonwealth Minister has complete discretion as to whether or not
to exercise a function or power given to the responsible Ministers under this
Law and so, for the purposes of this Law, a recommendation of the responsible
Ministers that is required to be unanimous will be taken to be unanimous if the
Commonwealth Minister declines to exercise the function or power and the
responsible Minister for each participating jurisdiction agrees with the
recommendation.
5—Interpretation generally
Schedule 2 to this
Law applies in relation to this Law.
6—Declaration of substance to be
drug
(1) The responsible
Ministers may declare a substance to be a drug for the purposes of this
Law.
(2) A declaration under
subsection (1)—
(a) is to be published on the NSW legislation website in accordance with
Part 6A of the Interpretation Act 1987 of New South Wales;
and
(b) will commence on the day specified in the declaration for its
commencement (being not earlier than the date it is published); and
(c) is to be published by ONRSR on its website.
7—Railways to which this Law does not
apply
(1) This Law does
not apply to or in relation to—
(a) a railway in a mine that is underground, or chiefly underground, and
that is used in connection with the performance of mining operations;
or
(b) a slipway; or
(c) a railway used only to guide a crane; or
(d) an aerial cable operated system; or
(e) a railway used only by a horse-drawn tram; or
(f) a railway used only for a static display; or
(g) any other railway, or class of railway, prescribed by the national
regulations to be a railway, or railway of a class, to which this Law does not
apply.
(2) This Law does
not apply to or in relation to the following railways:
(a) a railway that—
(i) is privately owned and operated as a hobby; and
(ii) is operated only on private property; and
(iii) does not operate on or cross a public road; and
(iv) is not operated for hire or reward, or provided on hire or lease;
and
(v) to which members of the public do not have access (whether by
invitation or otherwise);
(i) is used only for the purposes of an amusement structure; and
(ii) is operated only within an amusement park; and
(iii) does not operate on or cross a public road; and
(iv) is not connected with another railway in respect of which a rail
transport operator is required to be accredited or registered under this
Law.
(3) Despite
subsection (2)(b),
the national regulations may prescribe a specified railway of a class referred
to in that paragraph to be a railway to which or in relation to which this Law
applies.
8—Meaning of rail safety work
(1) Subject to
subsection (2),
any of the following classes of work is rail safety work for the
purposes of this Law:
(a) driving or despatching rolling stock or any other activity which is
capable of controlling or affecting the movement of rolling stock;
(b) signalling (and signalling operations), receiving or relaying
communications or any other activity which is capable of controlling or
affecting the movement of rolling stock;
(c) coupling or uncoupling rolling stock;
(d) maintaining, repairing, modifying, monitoring, inspecting or
testing—
(i) rolling stock, including checking that the rolling stock is working
properly before being used; or
(ii) rail infrastructure;
(e) installation of components in relation to rolling stock;
(f) work on or about rail infrastructure relating to the design,
construction, repair, modification, maintenance, monitoring, upgrading,
inspection or testing of the rail infrastructure or associated works or
equipment, including checking that the rail infrastructure is working properly
before being used;
(g) installation or maintenance of—
(i) a telecommunications system relating to rail infrastructure or used in
connection with rail infrastructure; or
(ii) the means of supplying electricity directly to rail infrastructure,
any rolling stock using rail infrastructure or a telecommunications
system;
(h) work involving certification as to the safety of rail infrastructure
or rolling stock or any part or component of rail infrastructure or rolling
stock;
(i) work involving the decommissioning of rail infrastructure or rolling
stock or any part or component of rail infrastructure or rolling
stock;
(j) work involving the development, management or monitoring of safe
working systems for railways;
(k) work involving the management or monitoring of passenger safety on, in
or at any railway;
(l) any other work that is prescribed by the national regulations to be
rail safety work.
(2) For the
purposes of this Law, rail safety work does not include any work,
or any class of work, prescribed by the national regulations not to be rail
safety work.
9—Single national entity
(1) It is the intention of the Parliament of this jurisdiction that this
Law as applied by an Act of this jurisdiction, together with this Law as applied
by Acts of the other participating jurisdictions, has the effect that an entity
established by this Law is 1 single national entity, with functions
conferred by this Law as so applied.
(2) An entity established by this Law has power to do acts in or in
relation to this jurisdiction in the exercise of a function expressed to be
conferred on it by this Law as applied by Acts of each participating
jurisdiction.
(3) An entity established by this Law may exercise its functions in
relation to—
(a) 1 participating jurisdiction; or
(b) 2 or more or all participating jurisdictions collectively.
(4) In this section, a reference to this Law as applied by an Act of a
jurisdiction includes—
(a) a reference to a law that substantially corresponds to this Law
enacted in a jurisdiction; and
(b) a law prescribed by the national regulations for the purposes of the
definition of a participating jurisdiction.
10—Extraterritorial operation of
Law
It is the intention of the Parliament of this jurisdiction that the
operation of this Law is to, as far as possible, include operation in relation
to the following:
(a) things situated in or outside the territorial limits of this
jurisdiction;
(b) acts, transactions and matters done, entered into or occurring in or
outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done,
entered into or occurring) that would, apart from this Law, be governed or
otherwise affected by the law of another jurisdiction.
11—Crown to be bound
(1) This Law binds the Crown, in right of this jurisdiction and, insofar
as the legislative power of the Parliament of this jurisdiction permits, the
Crown in all its other capacities.
(2) No criminal liability attaches to the Crown itself (as distinct from
its agents, instrumentalities, officers and employees) under this Law.
Part 2—Office of the National Rail Safety
Regulator
Division 1—Establishment, functions,
objectives, etc
12—Establishment
(1) The Office of the National Rail Safety Regulator (ONRSR)
is established.
(2) ONRSR—
(a) is a body corporate with perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name.
(3) ONRSR represents the Crown.
13—Functions and objectives
(1) In addition to any other function conferred on ONRSR by this Law or an
Act, ONRSR has the following functions:
(a) to administer, audit and review the accreditation regime under this
Law;
(b) to work with rail transport operators, rail safety workers, and others
involved in railway operations, to improve rail safety nationally;
(c) to conduct research, collect and publish information relating to rail
safety;
(d) to provide, or facilitate the provision of, advice, education and
training in relation to rail safety;
(e) to monitor, investigate and enforce compliance with this
Law;
(f) to engage in, promote and coordinate the sharing of information to
achieve the objects of this Law, including the sharing of information with a
prescribed authority;
(g) at the request of the Commonwealth or a jurisdiction—to carry
out any other function as agreed between ONRSR and the jurisdiction.
(2) In exercising its functions, ONRSR must—
(a) facilitate the safe operations of rail transport in Australia;
and
(b) exhibit independence, rigour and excellence in carrying out its
regulatory functions; and
(c) promote safety and safety improvement as a fundamental objective in
the delivery of rail transport in Australia.
(3) In this section—
prescribed authority means—
(a) the Australian Transport Safety Bureau established under the
Transport Safety Investigation Act 2003 of the Commonwealth;
and
(b) any other relevant authority established under a law of a
participating jurisdiction.
14—Independence of ONRSR
Except as provided under this Law or an Act, ONRSR is not subject to
Ministerial direction in the exercise of its functions or powers.
15—Powers
(1) ONRSR has all
the powers of an individual and, in particular, may—
(a) enter into contracts; and
(b) acquire, hold, dispose of, and deal with, real and personal property;
and
(c) do anything necessary or convenient to be done in the exercise of its
functions.
(2) Without
limiting
subsection (1),
ONRSR may enter into an agreement (a service agreement) with a
State or Territory that makes provision for—
(a) the State or
Territory to provide services to ONRSR that assist ONRSR in exercising its
functions; or
(b) ONRSR to
provide services to the State or Territory.
Division 2—Office of the National Rail Safety
Regulator
Subdivision 1—Constitution of
ONRSR
16—Constitution of ONRSR
(a) a person appointed by the South Australian Minister acting on the
unanimous recommendation of the responsible Ministers as the National Rail
Safety Regulator (the Regulator); and
(b) 2 non-executive members (full-time or part-time) as are appointed
by the South Australian Minister acting on the unanimous recommendation of the
responsible Ministers.
(2) The exercise of a function or power of ONRSR is not affected by a
vacancy in the membership of ONRSR.
Subdivision 2—National Rail Safety
Regulator
17—Appointment of Regulator
(1) A person may be appointed as the National Rail Safety Regulator who is
qualified for appointment because the person has a high level of expertise in
1 or more areas relevant to ONRSR's functions.
(2) The Regulator will be appointed for a term not exceeding 5 years
on terms and conditions determined by the South Australian Minister acting on
the unanimous recommendation of the responsible Ministers.
(3) The Regulator
is entitled to be paid the remuneration and allowances decided by the South
Australian Minister acting on the unanimous recommendation of the responsible
Ministers from time to time.
(4) In setting the remuneration and allowances for the Regulator, regard
must be had to relevant rates (if any) published by the Remuneration Tribunal of
the Commonwealth from time to time.
(5) At the expiration of a term of appointment, the Regulator will be
eligible for reappointment.
(6) The conditions of appointment of the Regulator must not, without the
consent of the Regulator, be varied while the Regulator is in office so as to
become less favourable to the Regulator.
(7) The Regulator must not engage, without the written consent of the
South Australian Minister acting on the unanimous recommendation of the
responsible Ministers, in any other remunerated employment.
18—Acting National Rail Safety
Regulator
(1) The South Australian Minister may appoint an Acting National Rail
Safety Regulator (who may, or may not, be a non-executive member or a member of
the staff of ONRSR) to act in the office of the Regulator and a person so
appointed has, while so acting, all the functions and powers of the
Regulator.
(2) An Acting Regulator may act in the office of the
Regulator—
(a) during a vacancy in the office of the Regulator (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the
Regulator—
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to exercise the duties of the office;
or
(c) if the Regulator is disqualified from acting in relation to a
particular matter—in relation to that matter.
(3) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) there is a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
19—Functions of Regulator
(1) The functions
of the Regulator include—
(a) being the chief executive of ONRSR; and
(b) exercising the functions of ONRSR conferred on the Regulator under
this Law or an Act; and
(c) otherwise acting on behalf of ONRSR in appropriate cases.
(2) An act of the Regulator will be taken to be an act of ONRSR.
(3) Except as provided under this Law or an Act of a participating
jurisdiction, the Regulator is not subject to direction in the exercise of his
or her functions or powers.
(4) The Regulator must act consistently with the policies determined by
ONRSR.
20—Power of Regulator to obtain
information
(1) This section applies if the Regulator has reasonable grounds to
believe that a person is capable of giving information, providing documents or
giving evidence in relation to a possible contravention of this Law or that will
assist to monitor or enforce compliance with this Law.
(2) The Regulator
may, by written notice served on the person, require the person to do 1 or more
of the following:
(a) to give the
Regulator in writing signed by the person (or in the case of a body corporate,
by a competent officer of the body corporate) and within the time and in the
manner specified in the notice, that information of which the person has
knowledge;
(b) to produce to
the Regulator, in accordance with the notice, those documents;
(c) to appear
before a person appointed by the Regulator on a day, and at a time and place,
specified in the notice (being a day, time and place that are reasonable in the
circumstances) and give either orally or in writing that evidence and produce
those documents.
(3) The notice must—
(a) state that the requirement is made under this section; and
(b) contain a statement to the effect that a failure to comply with a
requirement is an offence; and
(c) if the notice requires the person to provide information or documents
or answer questions—
(i) contain a statement about the effect of
sections 155 and
245; and
(ii) state that the person may attend with a legal practitioner.
(4) The Regulator must not make a requirement under
subsection (2)(c)
unless the Regulator has taken all reasonable steps to obtain the information
under
subsections (2)(a)
and
(b) and has been
unable to do so.
(5) A person must
not, without reasonable excuse, fail to comply with a requirement under this
section.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(6)
Subsection (5) places
an evidential burden on the accused to show a reasonable excuse.
(7)
Section 155
(with any necessary changes) applies to a requirement under this
section.
Subdivision 3—Non-executive
members
21—Appointment of non-executive
members
(1) A person may be appointed as a non-executive member of ONRSR who is
qualified for appointment because the person has a high level of expertise in
1 or more areas relevant to ONRSR's functions.
(2) A non-executive member will be appointed for a term not exceeding
4 years on terms and conditions determined by the South Australian Minister
acting on the unanimous recommendation of the responsible Ministers.
(3) A non-executive
member is entitled to be paid the remuneration and allowances decided by the
South Australian Minister acting on the unanimous recommendation of the
responsible Ministers from time to time.
(4) In setting the remuneration and allowances for a non-executive member
regard must be had to relevant rates (if any) published by the Remuneration
Tribunal of the Commonwealth from time to time.
(5) At the expiration of a term of appointment, a non-executive member
will be eligible for reappointment.
(6) The conditions of appointment of a non-executive member must not,
without the consent of the member, be varied while the member is in office so as
to become less favourable to the member.
Subdivision 4—Miscellaneous provisions
relating to membership
22—Vacancy in or removal from
office
(1) The office of a member of ONRSR becomes vacant if the
member—
(a) completes a term of office; or
(b) resigns by written notice given to the responsible Ministers;
or
(c) has been found guilty of an offence, whether in a participating
jurisdiction or elsewhere, that the responsible Ministers consider renders the
member unfit to continue to hold the office of member; or
(d) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with the member’s
creditors or makes an assignment of the member’s remuneration for their
benefit; or
(e) is absent, without leave first being granted by the relevant entity
from 3 or more consecutive meetings of ONRSR of which reasonable notice has been
given to the member personally or by post; or
(f) is removed from office by the South Australian Minister under this
section; or
(g) dies.
(2) The South Australian Minister may remove a member of ONRSR from office
if the responsible Ministers recommend the removal of the member on the basis
that the member has engaged in misconduct or has failed to or is unable to
properly exercise the member’s functions as a member of ONRSR.
(3) In this section—
relevant entity means—
(a) for the Regulator—the responsible Ministers; or
(b) for a non-executive member—the Regulator.
23—Member to give responsible Ministers notice of
certain events
A member of ONRSR must, within 7 days of either of the following events
occurring, give the responsible Ministers notice of the event:
(a) the member is convicted of an offence;
(b) the member becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors, compounds with the
member’s creditors or makes an assignment of the member’s
remuneration for their benefit.
24—Extension of term of office during vacancy in
membership
(1) If the office of a member of ONRSR becomes vacant because the member
has completed the member’s term of office, the member is taken to continue
to be a member during that vacancy until the date on which the vacancy is
filled, whether by reappointment of the member or appointment of a successor to
the member.
(2) However, this section ceases to apply to the member
if—
(a) the member resigns the member’s office by signed notice given to
the responsible Ministers; or
(b) the responsible Ministers decide the services of the member are no
longer required.
(3) The maximum period for which a member of ONRSR is taken to continue to
be a member under this section after completion of the member’s term of
office is 6 months.
25—Members to act in public
interest
A member of ONRSR is to act impartially and in the public interest in the
exercise of the member’s functions as a member.
26—Disclosure of conflict of
interest
(1) If a member of
ONRSR has a direct or indirect pecuniary or other interest that conflicts or may
conflict with the exercise of the member’s functions as a member, the
member must, as soon as possible after the relevant facts have come to the
member’s knowledge, disclose the nature of the member’s interest and
the conflict to—
(a) for the Regulator—the responsible Ministers; or
(b) for a non-executive member—the Regulator.
(2) If a disclosure is made under
subsection (1),
the entity to whom the disclosure is made must notify ONRSR of the
disclosure.
(3) Particulars of any disclosure made under
subsection (1)
must be recorded by ONRSR in a register of interests kept for the
purpose.
(4) After a member
of ONRSR has disclosed the nature of an interest and conflict or potential
conflict under
subsection (1),
the member must not be present during any deliberation of ONRSR with respect to
any matter that is, or may be, affected by the conflict, or take part in any
decision of ONRSR with respect to any matter that is, or may be, affected by the
conflict, unless—
(a) for the Regulator, the responsible Ministers otherwise decide;
or
(b) for a non-executive member, ONRSR otherwise decides.
(5) For the purposes of the making of a decision by ONRSR under
subsection (4)
in relation to a matter, a member of ONRSR who has a direct or indirect
pecuniary or other interest that conflicts or may conflict with the exercise of
the member’s functions as a member with respect to the matter must
not—
(a) be present during any deliberation of ONRSR for the purpose of making
the decision; or
(b) take part in the making of the decision by ONRSR.
(6) A contravention of this section does not invalidate any decision of
ONRSR but if ONRSR becomes aware a member of ONRSR contravened this section,
ONRSR must reconsider any decision made by ONRSR in which the member took part
in contravention of this section.
Division 3—Procedures
27—Times and places of
meetings
(1) The Regulator must hold such meetings as he or she considers necessary
for the efficient exercise of ONRSR's functions.
(2) Meetings are to be held at such times and places as the Regulator
decides.
28—Conduct of meetings
(1) The Regulator is to preside at all meetings of ONRSR at which he or
she is present.
(2) If the Regulator is not present at a meeting, a person appointed to
act as the Regulator must be present and preside.
(3) A quorum of ONRSR consists of 2 members.
(4) A decision supported by a majority of the votes cast at a meeting of
ONRSR at which a quorum is present is the decision of ONRSR.
(5) The person presiding at a meeting of ONRSR has a deliberative vote
and, in the event of an equality of votes, has a second or casting
vote.
(6) Subject to this Division, ONRSR may regulate its own
procedures.
(7) ONRSR must ensure that minutes of its meetings are kept.
29—Defects in appointment of
members
A decision of ONRSR is not invalidated by any defect or irregularity in the
appointment of a member.
30—Decisions without meetings
(1) A decision is
taken to have been made at a meeting of ONRSR if—
(a) without meeting, a majority of the members indicate agreement with the
proposed decision in accordance with the method determined under this section;
and
(b) all members were informed, or reasonable efforts were made to inform
all members, of the proposed decision.
(2)
Subsection (1)
applies only if ONRSR—
(a) has determined that it applies; and
(b) has determined the method by which members are to indicate agreement
with proposed decisions.
(3) ONRSR must keep a record of decisions made under this
section.
31—Common seal and execution of
documents
(1) The common seal of ONRSR must not be affixed to a document except in
pursuance of a decision of ONRSR, and the affixing of the seal must be attested
by the signature of the Regulator or Acting Regulator.
(2) ONRSR may, by
instrument under ONRSR's common seal, authorise an employee of ONRSR (whether
nominated by name or by office or title) or any other person to execute
documents on behalf of ONRSR subject to conditions and limitations (if any)
specified in the instrument of authority.
(3) Without limiting
subsection (2),
an authority may be given so as to authorise 2 or more persons to
execute documents jointly on behalf of ONRSR.
(4) A document is duly executed by ONRSR if—
(a) the common seal of ONRSR is affixed to the document in accordance with
this section; or
(b) the document is signed on behalf of ONRSR by a person or persons in
accordance with an authority conferred under this section.
(5) Where an apparently genuine document purports to bear the common seal
of ONRSR, it will be presumed in any legal proceedings, in the absence of proof
to the contrary, that the common seal of ONRSR has been duly affixed to that
document.
Division 4—Finance
32—Establishment of Fund
(1) The National Rail Safety Regulator Fund is established.
(2) The Fund is to be administered by ONRSR.
(3) ONRSR may establish accounts with any financial institution for money
in the Fund.
(4) The Fund does not form part of the consolidated fund or consolidated
account of a participating jurisdiction or the Commonwealth.
33—Payments into Fund
There is payable into the Fund—
(a) all money appropriated by the Parliament of any participating
jurisdiction or the Commonwealth for the purposes of the Fund; and
(b) all fees, charges, costs and expenses paid to or recovered by ONRSR
under this Law; and
(c) the proceeds of the investment of money in the Fund; and
(d) all grants, gifts and donations made to ONRSR, but subject to any
trusts declared in relation to the grants, gifts or donations; and
(e) all money directed or authorised to be paid into the Fund under this
Law, any law of a participating jurisdiction or any law of the Commonwealth;
and
(f) any other money or property received by ONRSR in connection with the
exercise of its functions; and
(g) any money paid to ONRSR for the provision of services to a State or
Territory under an agreement mentioned in
section 15(2)(b).
34—Payments out of Fund
Payments may be made from the Fund for the purpose of—
(a) paying any
costs or expenses, or discharging any liabilities, incurred in the
administration or enforcement of this Law, including (for example) payments made
to a State or Territory for the provision of services under an agreement
mentioned in
section 15(2)(a);
and
(b) paying any money directed or authorised to be paid out of the Fund
under this Law; and
(c) any other payments recommended by ONRSR and approved by the
responsible Ministers.
35—Investment of money in Fund
(1) ONRSR must
invest its funds in a way that is secure and provides a low risk so that ONRSR's
exposure to the loss of funds is minimised.
(2) ONRSR must keep records that show it has invested in a way that
complies with
subsection (1).
36—Financial management duties of
ONRSR
ONRSR must—
(a) ensure its operations are carried out efficiently, effectively and
economically; and
(b) keep proper books and records in relation to the Fund and other money
received by ONRSR; and
(c) ensure expenditure is made from the Fund for lawful purposes only and,
as far as possible, reasonable value is obtained for money expended from the
Fund; and
(d) ensure its procedures, including internal control procedures, afford
adequate safeguards with respect to—
(i) the correctness, regularity and propriety of payments made from the
Fund; and
(ii) receiving and accounting for payments made to the Fund; and
(iii) prevention of fraud or mistake; and
(e) take any action necessary to ensure the preparation of accurate
financial statements in accordance with Australian Accounting Standards for
inclusion in its annual report; and
(f) take any action necessary to facilitate the audit of those financial
statements under this Law; and
(g) arrange for any further audit by a qualified person of the books and
records kept by ONRSR in relation to the Fund, if directed to do so by the
responsible Ministers.
Division 5—Staff
37—Chief executive
(1) The Regulator is the chief executive of ONRSR responsible
for—
(a) the day to day management of ONRSR; and
(b) carrying out any other function conferred on the chief executive under
this Law, an Act or by ONRSR.
(2) The chief executive must act consistently with the policies determined
by ONRSR.
38—Staff
(1) ONRSR may, for the purpose of exercising its functions, employ
staff.
(2) The staff of
ONRSR are to be employed on the terms and conditions decided by ONRSR from time
to time.
(3)
Subsection (2) is
subject to any relevant industrial award or agreement that applies to the
staff.
39—Secondments to ONRSR
ONRSR may make arrangements for the services of a person who is a member of
the staff of a government agency of a participating jurisdiction or the
Commonwealth to be made available to ONRSR in connection with the exercise of
its functions.
40—Consultants and contractors
(1) ONRSR may engage persons with suitable qualifications and experience
as consultants or contractors.
(2) The terms and conditions of engagement of consultants or contractors
are as decided by ONRSR from time to time.
Division 6—Miscellaneous
41—Regulator may be directed to investigate rail
safety matter
(1) The responsible Minister for a participating jurisdiction may give a
written direction to the Regulator to investigate, or provide advice or
information about, a rail safety matter relating to the participating
jurisdiction.
(2) A direction may not be given under this section—
(a) that directs the Regulator as to how to conduct an investigation into
a rail safety matter; or
(b) that directs the Regulator as to which persons the Regulator may
request or direct to provide assistance in investigating a rail safety matter;
or
(c) about the outcome of any such investigation; or
(d) that directs the Regulator to stop any such investigation.
(3) The Regulator must cause a direction given under this section to be
published in ONRSR's next annual report.
42—National Rail Safety
Register
(1) The Regulator must establish and maintain the National Rail Safety
Register for the purposes of this Law.
(2) The Regulator must ensure that the following matters are recorded in
the Register:
(a) the accreditation of a rail transport operator under
Part 3
Division 4;
(b) the variation, cancellation, suspension or expiry of the accreditation
of a rail transport operator under
Part 3
Division 4;
(c) the registration of a rail infrastructure manager of a private siding
under
Part 3
Division 5;
(d) the variation, cancellation, suspension or expiry of the registration
of a rail infrastructure manager of a private siding under
Part 3
Division 5;
(e) an exemption from this Law or specified provisions of this Law
conferred on a person and details of the exemption;
(f) a decision to accept a rail safety undertaking and the reasons for
that decision under
Part 10
Division 6;
(g) a decision to withdraw or vary a rail safety undertaking under
Part 10
Division 6;
(h) the issuing of an improvement notice to a person;
(i) the variation, cancellation or expiry of an improvement
notice;
(j) the issuing of a prohibition notice to a person;
(k) the variation, cancellation or expiry of a prohibition
notice;
(l) the issuing of a non-disturbance notice to a person;
(m) the variation, cancellation or expiry of a non-disturbance
notice;
(n) any other matter that is prescribed in the national regulations to be
included in the Register.
(3) The Register will be kept in the form of a computer record and
published on ONRSR's website.
(4) The Register is to be available for inspection, without fee, during
ordinary office hours at a public office, or public offices, determined by the
Regulator.
43—Annual report
(1) The Regulator must, on or before 30 September in each year, deliver to
the responsible Ministers a report on ONRSR's activities for the financial year
ending on the preceding 30 June.
(2) The annual
report must include—
(a) information on the development of rail safety (including an
aggregation of statistics of a prescribed class reported to ONRSR under this Law
for the relevant financial year); and
(b) information on any improvements and important changes in relation to
the regulation of rail safety for the relevant financial year; and
(c) details of all rail safety issues brought to the attention of ONRSR
during the relevant financial year and the action (if any) taken in relation to
each such issue; and
(d) if, at the start of the relevant financial year, there are still
outstanding any rail safety issues that previously had been brought to the
attention of ONRSR—details of the action (if any) taken in respect of each
such issue; and
(e) details about any significant activity undertaken in each
participating jurisdiction during the relevant financial year by, or on behalf
of, ONRSR; and
(f) the financial statement in respect of the relevant financial year;
and
(g) the report on the financial statement made by the public sector
auditor who conducted the audit; and
(h) any other information required to be included in the report by another
provision under this Law or by the responsible Ministers.
(3) The financial statement must be—
(a) prepared in accordance with Australian Accounting Standards;
and
(b) audited, and reported on, by a public sector auditor.
(4) The responsible Ministers must make arrangements for the tabling of
ONRSR’s annual report in the Parliament of each participating
jurisdiction.
(5) The responsible Ministers may extend, or further extend, the period
for submission of an annual report to the responsible Ministers by a total
period of up to 3 months.
(6) As soon as practicable after the annual report has been tabled in at
least 1 House of the Parliament of a participating jurisdiction, the Regulator
must publish a copy of the report on ONRSR's website.
44—Other reporting
requirements
The national regulations may require ONRSR to deliver to a prescribed body
or person, at prescribed intervals, a report containing prescribed
matters.
45—Delegation
(1) ONRSR may
delegate to a body or person (including a person for the time being holding or
acting in a specified office or position) a function or power of ONRSR under
this Law or an Act.
(2) The Regulator
may delegate to a body or person (including a person for the time being holding
or acting in a specified office or position) a function or power of the
Regulator under this Law or an Act.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
Part 3—Regulation of rail
safety
Division 1—Interpretation
46—Management of risks
A duty imposed on a person under this Law to ensure, so far as is
reasonably practicable, safety requires the person—
(a) to eliminate risks to safety so far as is reasonably practicable;
and
(b) if it is not reasonably practicable to eliminate risks to safety, to
minimise those risks so far as is reasonably practicable.
47—Meaning of reasonably
practicable
In this Part—
reasonably practicable, in relation to a duty to ensure
safety, means that which is (or was at a particular time) reasonably able to be
done in relation to ensuring safety, taking into account and weighing up all
relevant matters, including—
(a) the likelihood of the hazard or the risk concerned occurring;
and
(b) the degree of harm that might result from the hazard or the risk;
and
(c) what the person concerned knows, or ought reasonably to know,
about—
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the
risk; and
(e) after assessing the extent of the risk and the available ways of
eliminating or minimising the risk—the cost associated with available ways
of eliminating or minimising the risk (including whether the cost is grossly
disproportionate to the risk).
Division 2—Occupational health and safety and
railway operations
48—Relationship between this Law and OHS
legislation
(1) If a provision of the occupational health and safety legislation
applies to railway operations, that provision continues to apply, and must be
observed, in addition to this Law.
(2) If a provision of this Law is inconsistent with a provision of the
occupational health and safety legislation, the provision of the occupational
health and safety legislation prevails to the extent of any
inconsistency.
Note—
For example, if a provision of this Law deals with a certain matter and a
provision of the occupational health and safety legislation deals with the same
matter and it is impossible to comply with both provisions, a person must comply
with the occupational health and safety legislation and not with this Law. If
provisions of both this Law and the occupational health and safety legislation
deal with the same matter but it is possible to comply with both provisions, a
person must comply with both.
(3) Compliance with this Law or with any requirement imposed under this
Law is not in itself a defence in any proceedings for an offence against the
occupational health and safety legislation.
(4) Evidence of a relevant contravention of this Law is admissible in any
proceedings for an offence against the occupational health and safety
legislation.
49—No double jeopardy
Where an act or omission constitutes an offence—
(a) under this Law; and
(b) under the occupational health and safety legislation,
the offender is not liable to be punished twice in respect of the
offence.
Division 3—Rail safety
duties
Subdivision 1—Principles
50—Principles of shared responsibility,
accountability, integrated risk management, etc
(1) Rail safety is
the shared responsibility of—
(a) rail transport operators; and
(b) rail safety workers; and
(c) other persons who—
(i) design, commission, construct, manufacture, supply, install, erect,
maintain, repair, modify or decommission rail infrastructure or rolling stock;
or
(ii) supply rail infrastructure operations or rolling stock operations to
rail operators; or
(iii) in relation to the transport of freight by railway—load or
unload freight on or from rolling stock; and
(d) the Regulator; and
(e) ONRSR; and
(f) the public.
(2) The level and nature of responsibility that a person referred to in
subsection (1),
or falling within a class of person referred to in that subsection, has for rail
safety is dependent on the nature of the risk to rail safety that the person
creates from the carrying out of an activity (or the making of a decision) and
the capacity that person has to control, eliminate or mitigate those
risks.
(3) The persons and classes of persons referred to in
subsection (1)
should—
(a) participate in or be able to participate in; and
(b) be consulted on; and
(c) be involved in the formulation and implementation of,
measures to manage risks to safety associated with railway
operations.
(4) Managing risks associated with the carrying out of rail infrastructure
operations or rolling stock operations is the responsibility of the person best
able to control those risks.
(5) If approaches to managing risks associated with any particular railway
have potential impacts on any other railway or a railway network of which the
railway is a part, the best practicable rail safety outcome should be
sought.
51—Principles applying to rail safety
duties
(1) A duty under this Law cannot be transferred to another
person.
(2) A person can have more than 1 duty under this Law by virtue of being
in more than 1 class of duty holder.
(3) More than 1 person can concurrently have the same duty under this Law
and each duty holder must comply with that duty to the standard required by this
Law even if another duty holder has the same duty.
(4) If more than 1 person has a duty for the same matter, each
person—
(a) retains responsibility for the person's duty in relation to the
matter; and
(b) must discharge the person's duty to the extent to which the person has
the capacity to influence and control the matter (or would have had that
capacity but for an agreement or arrangement purporting to limit or remove that
capacity).
Subdivision 2—Duties
52—Duties of rail transport
operators
(1) A rail
transport operator must ensure, so far as is reasonably practicable, the safety
of the operator's railway operations.
(2) Without limiting
subsection (1),
a rail transport operator must ensure, so far as is reasonably
practicable—
(a) that safe systems for the carrying out of the operator's railway
operations are developed and implemented; and
(b) that each rail safety worker who is to perform rail safety work in
relation to the operator's railway operations—
(i) is of sufficient good health and fitness to carry out that work
safely; and
(ii) is competent to undertake that work; and
(c) that rail safety workers do not carry out rail safety work in relation
to the operator's railway operations, and are not on duty, while impaired by
alcohol or a drug; and
(d) that rail safety workers who perform rail safety work in relation to
the operator's railway operations do not carry out rail safety work while
impaired by fatigue or if they may become so impaired; and
(e) the provision of adequate facilities for the safety of persons at any
railway premises under the control or management of the operator; and
(f) the provision of—
(i) such information and instruction to, and training and supervision of,
rail safety workers as is necessary to enable those workers to perform rail
safety work in relation to the operator's railway operations in a way that is
safe; and
(ii) such information to rail transport operators and other persons on
railway premises under the control or management of the operator as is necessary
to enable those persons to ensure their safety.
(3) Without
limiting
subsection (1),
a rail infrastructure manager must ensure, so far as is reasonably
practicable—
(a) the provision or maintenance of rail infrastructure that is safe;
and
(b) that any design, construction, commissioning, use, installation,
modification, maintenance, repair or decommissioning of the manager's rail
infrastructure is done or carried out in a way that ensures the safety of
railway operations; and
(c) that systems
and procedures for the scheduling, control and monitoring of railway operations
are established and maintained so as to ensure the safety of the manager's
railway operations; and
(d) that communications systems and procedures are established and
maintained so as to ensure the safety of the manager's railway
operations.
(4) Without
limiting
subsection (1),
a rolling stock operator must ensure, so far as is reasonably
practicable—
(a) the provision or maintenance of rolling stock that is safe;
and
(b) that any design, construction, commissioning, use, modification,
maintenance, repair or decommissioning of the operator's rolling stock is done
or carried out in a way that ensures safety; and
(c) compliance with
the rules and procedures for the scheduling, control and monitoring of rolling
stock that have been established by a rail infrastructure manager in relation to
the use of the manager's rail infrastructure by the rolling stock operator;
and
(d) that equipment, procedures and systems are established and maintained
so as to minimise risks to the safety of the operator's railway operations;
and
(e) that arrangements are made for ensuring safety in connection with the
use, operation and maintenance of the operator's rolling stock; and
(f) that communications systems and procedures are established and
maintained so as to ensure the safety of the operator's railway
operations.
(5) This section applies to a person (other than a rail transport
operator) who carries out railway operations in the same way as it applies to a
rail transport operator, but does not apply if the person carries out those
operations as a rail safety worker or an employee.
53—Duties of designers, manufacturers, suppliers
etc
(a) who designs, commissions, manufactures, supplies, installs or erects
any thing; and
(b) who knows, or ought reasonably to know, that the thing is to be used
as or in connection with rail infrastructure or rolling stock,
must—
(c) ensure, so far as is reasonably practicable, that the thing is safe if
it is used for a purpose for which it was designed, commissioned, manufactured,
supplied, installed or erected; and
(d) ensure, so far
as is reasonably practicable, that such testing and examination of the thing as
may be necessary for compliance with this section is carried out; and
(e) take such action as is necessary to ensure, so far as is reasonably
practicable, that there will be available in connection with the use of the
thing adequate information about—
(i) the use for which the thing was designed, commissioned, manufactured,
supplied, installed or erected; and
(ii) the results of any testing or examination referred to in
paragraph (d);
and
(iii) any conditions necessary to ensure, so far as is reasonably
practicable, that the thing is safe if it is used for a purpose for which it was
designed, commissioned, manufactured, supplied, installed or erected.
(2) For the purposes of
subsection (1),
if the person who supplies the thing—
(a) carries on the business of financing the acquisition of the thing by
customers; and
(b) has, in the course of that business, acquired an interest in the thing
solely for the purpose of financing its acquisition by a customer from a third
person or its provision to a customer by a third person; and
(c) has not taken possession of the thing or has taken possession of it
solely for the purpose of passing possession to that customer,
the reference in that subsection to the person who supplies that thing is
instead taken to be a reference to the third person.
(3) A person who
decommissions any rail infrastructure or rolling stock must ensure, so far as is
reasonably practicable—
(a) that the decommissioning is carried out safely; and
(b) such testing and examination as may be necessary for compliance with
this section is carried out.
54—Duties of persons loading or unloading
freight
A person who loads or unloads freight on or from rolling stock in relation
to the transport of the freight by railway must ensure, so far as is reasonably
practicable, that the loading or unloading is carried out safely and so as to
ensure the safe operation of the rolling stock.
55—Duty of officers to exercise due
diligence
(1) If a person has
a duty or obligation under this Law, an officer of the person must exercise due
diligence to ensure that the person complies with that duty or
obligation.
(2) An officer of a person referred to in
subsection (1)
may be convicted or found guilty of an offence under this Law relating to a duty
under this section whether or not the person has been convicted or found guilty
of an offence under this Law relating to the duty or obligation.
(3) In this section—
due diligence includes taking reasonable
steps—
(a) to acquire and keep up-to-date knowledge of rail safety matters;
and
(b) to gain an understanding of the nature of the railway operations of
the person and, generally, of the risks associated with those operations;
and
(c) to ensure that
the person has available for use, and uses, appropriate resources and processes
to eliminate or minimise risks to safety from the railway operations of the
person; and
(d) to ensure that the person has appropriate processes for receiving and
considering information regarding incidents and risks and responding in a timely
way to that information; and
(e) to ensure that
the person has, and implements, processes for complying with any duty or
obligation of the person under this Law; and
(f) to verify the provision and use of the resources and processes
referred to in
paragraphs (c) to
(e).
56—Duties of rail safety
workers
(1) A rail safety
worker must, when carrying out rail safety work—
(a) take reasonable
care for his or her own safety; and
(b) take reasonable
care that his or her acts or omissions do not adversely affect the safety of
other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable
instruction given by the rail transport operator to allow the operator to comply
with this Law.
(2) A rail safety
worker must not, when carrying out rail safety work, intentionally or recklessly
interfere with or misuse anything provided to the worker by the rail transport
operator—
(a) in the interests of safety; or
(b) under this Law.
(3) A rail safety
worker must not, when carrying out rail safety work, wilfully or recklessly
place the safety of another person on or in the immediate vicinity of rail
infrastructure at risk.
(4) For the purposes of
subsection (1)(a)
or
(b), in determining
whether a rail safety worker failed to take reasonable care, regard must be had
as to what the worker knew about the relevant circumstances.
Subdivision 3—Offences and
penalties
57—Meaning of safety
duty
In this Subdivision—
safety duty means a duty imposed under
Subdivision 2.
58—Failure to comply with safety
duty—reckless conduct—Category 1
(1) A person commits a Category 1 offence if—
(a) the person has a safety duty; and
(b) the person, without reasonable excuse, engages in conduct that exposes
an individual to whom that duty is owed to a risk of death or serious injury or
illness; and
(c) the person is reckless as to the risk to an individual of death or
serious injury or illness.
Maximum penalty:
(a) in the case of an individual—$300 000 or imprisonment for 5
years, or both;
(b) in the case of a body corporate—$3 000 000.
(2) The prosecution bears the burden of proving that the conduct was
engaged in without reasonable excuse.
59—Failure to comply with safety
duty—Category 2
A person commits a Category 2 offence if—
(a) the person has a safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury
or illness.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
60—Failure to comply with safety
duty—Category 3
A person commits a Category 3 offence if—
(a) the person has a safety duty; and
(b) the person fails to comply with that duty.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
Division 4—Accreditation
Subdivision 1—Purpose and requirement for
accreditation
61—Purpose of accreditation
The purpose of accreditation of a rail transport operator in respect of
railway operations is to attest that the rail transport operator has
demonstrated to the Regulator the competence and capacity to manage risks to
safety associated with those railway operations.
62—Accreditation required for railway
operations
(1) A person must
not carry out any railway operations unless the person—
(a) is a rail transport operator who—
(i) is accredited under this Part in respect of those operations;
or
(ii) is exempt under this Law from compliance with this section in respect
of those operations; or
(b) is carrying out those operations for or on behalf of—
(i) a rail transport operator who is accredited under this Part in respect
of those operations; or
(ii) a rail transport operator who is exempt under this Law from
compliance with this section in respect of those operations; or
(c) is exempt under this Law from compliance with this section in respect
of those operations.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
Note—
If a body corporate and related bodies corporate are involved, an exemption
may be given so that only 1 of the bodies need be accredited (related body
corporate meaning related by virtue of section 50 of the
Corporations Act 2001 of the Commonwealth).
(2)
Subsection (1)
does not apply to a rail safety worker, not being a rail transport operator,
carrying out rail safety work for or on behalf of a rail transport operator
who—
(a) is accredited under this Part; or
(b) is exempt under this Law from compliance with this section,
in relation to that rail safety work.
63—Purposes for which accreditation may be
granted
(1) Accreditation may be granted to a rail transport operator for any 1 or
more of the following purposes:
(a) for the carrying out of railway operations for the part or parts of a
railway specified in the accreditation, or for a part or parts having the scope
or characteristics so specified;
(b) for any service or aspect, or part of a service or aspect, of railway
operations specified in the accreditation;
(c) for specified railway operations to permit any 1 or more of the
following:
(i) construction of rail infrastructure;
(ii) restoration or repair work;
(iii) testing of railway tracks or other infrastructure;
(iv) other activities relating to railway operations considered
appropriate by the Regulator and specified in the accreditation.
(2) Accreditation may be granted for railway operations carried out, or
proposed to be carried out, in 1 or more jurisdictions by a rail transport
operator.
(3) If the applicant so requests, accreditation may be granted for a
specified period only.
Subdivision 2—Procedures for granting
accreditation
64—Application for
accreditation
(1) A rail transport operator may apply to the Regulator for accreditation
in respect of specified railway operations carried out, or proposed to be
carried out, by or on behalf of that operator.
(2) An application must be made in the manner and form approved by the
Regulator and—
(a) must specify the scope and nature of the railway operations in respect
of which accreditation is sought; and
(b) must include a description of the safety management system (including
a description of the measures to be taken to manage identified risks) relating
to those railway operations; and
(c) must contain the prescribed information; and
(d) must be accompanied by the prescribed application fee.
(3) The Regulator may require a rail transport operator who has applied
for accreditation—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
65—What applicant must
demonstrate
The Regulator must not grant accreditation to an applicant unless satisfied
that the applicant has demonstrated—
(a) that the applicant is, or is to be, a rail infrastructure manager or
rolling stock operator in respect of the railway operations for which
accreditation is sought; and
(b) that the
applicant has the competence and capacity to manage risks to safety associated
with the railway operations for which accreditation is sought; and
(i) has the
competence and capacity to implement the proposed safety management system;
and
(ii) has the financial capacity, or has public risk insurance
arrangements, to meet reasonable potential accident liabilities arising from the
railway operations; and
(iii) has met the consultation requirements set out in
Division 6 in relation
to the applicant's safety management system; and
(iv) has complied with the requirements prescribed by the national
regulations (if any) for the purposes of this section.
66—Regulator may direct applicants to coordinate
applications
(a) receives applications from 2 or more rail transport operators for
accreditation; and
(b) believes that coordinated preparation of the applications is necessary
to ensure railway operations of the applicants are carried out safely,
the Regulator may give a direction in writing to each of the applicants to
coordinate their applications (a coordination
direction).
(2) A coordination direction—
(a) may be given to rail transport operators carrying out, or proposing to
carry out, railway operations in different jurisdictions; and
(b) may require each rail transport operator subject to the direction to
provide to each other rail transport operator subject to the direction
information concerning any circumstances in relation to the carrying out of
railway operations by the first mentioned operator that could constitute a risk
to safety in relation to the carrying out of railway operations by another
operator subject to the direction.
(3) A rail
transport operator to whom a coordination direction has been given under this
section must comply with the direction.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(4) A rail
transport operator who has coordinated the preparation of an application with
other rail transport operators in accordance with a coordination direction under
this section must include in the application reference to—
(a) information given by the operator to each other operator subject to
the direction; and
(b) information given to the operator by each other operator subject to
the direction.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
67—Determination of
application
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
section 65 and (if
applicable)
section 66—notify
the applicant that accreditation has been granted, with or without conditions or
restrictions; or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) Accreditation under this Law is subject to—
(a) any conditions or restrictions prescribed by the national regulations
for the purposes of this section that are applicable to the accreditation;
and
(b) any other condition or restriction imposed on the accreditation by the
Regulator.
(3) Before imposing
a condition or restriction on the accreditation of an applicant, the Regulator
must, if the imposition of the intended condition or restriction is likely to
result in significant costs or expenses to the applicant or any other
person—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of imposing the intended condition or restriction on the accreditation;
and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the imposition of the intended condition or restriction
on the accreditation.
(4) Notification
under this section—
(a) must be in writing and given to the applicant; and
(b) if accreditation has been granted, must specify—
(i) the prescribed details of the applicant; and
(ii) the scope and nature of the railway operations, and the manner in
which they are to be carried out, in respect of which the accreditation is
granted; and
(iii) any condition
or restriction imposed by the Regulator under this section on the grant of
accreditation; and
(iv) any other prescribed information; and
(c) if a condition
or restriction has been imposed on the accreditation, must
include—
(i) the reasons for imposing the condition or restriction, including (if
applicable) the results of any cost-benefit analysis carried out under this
section; and
(ii) information about the right of review under
Part 7; and
(d) if the application has been refused, must include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to the application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
Subdivision 3—Variation of
accreditation
68—Application for variation of
accreditation
(1) An accredited person may, at any time, apply to the Regulator for
variation of the accreditation.
(2) An accredited person must apply to the Regulator for variation of the
accreditation if—
(a) the applicant proposes to vary the scope and nature of the railway
operations in respect of which the applicant is accredited; or
(b) the applicant
no longer has the competence or capacity to manage risks to safety associated
with the railway operations in respect of which the applicant is accredited;
or
(c) any other variation is proposed in respect of the railway operations
in respect of which the applicant is accredited that should be reflected in the
accreditation.
(3) An application for variation must be made in the manner and form
approved by the Regulator and—
(a) must specify the details of the variation being sought; and
(b) must contain the prescribed information; and
(c) must be accompanied by the prescribed application fee.
(4) The Regulator may require an accredited person who has applied for a
variation—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
(5)
Section 66
applies to an application for variation as if a reference in that section to
accreditation were a reference to variation of accreditation.
69—Determination of application for
variation
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
sections 65 and
66 (so far as they are
applicable to the proposed variation)—notify the applicant that the
accreditation has been varied, with or without conditions or restrictions;
or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) Notification under this section—
(a) must be in writing and given to the applicant; and
(b) if the accreditation has been varied, must specify—
(i) the prescribed details of the applicant; and
(ii) the variation to the accreditation so far as it applies to the scope
and nature of the railway operations, or the manner in which they are to be
carried out; and
(iii) any conditions and restrictions imposed by the Regulator on the
accreditation as varied; and
(iv) any other prescribed information; and
(c) if a condition or restriction has been imposed on the accreditation as
varied, must include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under
Part 7; and
(d) if the application to vary an accreditation has been refused, must
include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to an application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
70—Prescribed conditions and
restrictions
The accreditation of a person that is varied under this Part is subject to
any conditions or restrictions prescribed by the national regulations that are
applicable to the accreditation as varied.
71—Variation of conditions and
restrictions
(1) An accredited person may, at any time, apply to the Regulator for a
variation of a condition or restriction imposed by the Regulator to which the
accreditation is subject.
(2) An application for variation of a condition or restriction must be
made as if it were an application for variation of accreditation (and
section 68 applies
accordingly).
(3) The Regulator
must consider the application and, if satisfied as to the matters referred to in
sections 65 and
66 (so far as they are
applicable to the proposed variation), notify the accredited person in
accordance with the provisions of this Division applicable to a grant of
accreditation (so far as is practicable) that the variation has been granted or
refused.
(4) Notification under
subsection (3)
that a variation has been refused must include the reasons for the decision to
refuse to grant the variation and information about the right of review under
Part 7.
72—Regulator may make changes to conditions or
restrictions
(1) The Regulator
may, subject to this section, at any time, vary or revoke a condition or
restriction imposed by the Regulator to which the accreditation of an accredited
person is subject or impose a new condition or restriction.
(2) Before taking
action under this section, the Regulator must—
(a) give the accredited person written notice of the action that the
Regulator proposes to take; and
(b) allow the
accredited person to make written representations about the intended action
within 28 days (or any other period that the Regulator and the accredited person
agree on); and
(c) consider any representations made under
paragraph (b)
and not withdrawn; and
(d) if the intended
action is likely to result in significant costs or expenses to the accredited
person or any other person—
(i) conduct or cause to be conducted a cost-benefit analysis of the effect
of the intended action; and
(ii) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the intended action.
(3)
Subsection (2)(d)
does not apply if the Regulator considers it necessary to take immediate action
in the interests of safety but, if the action is likely to result in significant
costs or expenses to the accredited person or any other person, the Regulator
must, as soon as practicable after taking the action—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of the action; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the action.
(4) The Regulator
must, by written notice given to the accredited person, provide—
(a) details of any action taken under this section; and
(b) a statement of
reasons for any action taken under this section, including (if applicable) the
results of any cost-benefit analysis carried out; and
(c) information about the right of review under
Part 7.
Subdivision 4—Revocation, suspension or
surrender of accreditation
73—Revocation or suspension of
accreditation
(1) This section applies in respect of an accredited person
if—
(a) the Regulator considers that the accredited person—
(i) is no longer able to demonstrate to the satisfaction of the Regulator
the matters referred to in
section 65 or to
satisfy the conditions, or to comply with the restrictions, of the
accreditation; or
(ii) is not managing the rail infrastructure, or is not operating rolling
stock in relation to any rail infrastructure, to which the accreditation relates
and has not done so for at least the preceding 12 months; or
(b) the accredited person contravenes this Law.
(a) suspend the accreditation, or part of the accreditation, of the
accredited person for a period determined by the Regulator; or
(b) revoke the accreditation of the accredited person, wholly or in part,
or in respect of particular railway operations specified in the notice, with
immediate effect or with effect from a specified future date; or
(c) impose conditions or restrictions on the accreditation; or
(d) vary conditions or restrictions to which the accreditation is
subject,
and, if the Regulator revokes the accreditation, the Regulator may declare
that the accredited person is disqualified from applying for accreditation, or
for accreditation in respect of specified railway operations, during a specified
period.
(3) Before making a
decision under
subsection (2),
the Regulator—
(a) must notify the
person in writing—
(i) that the Regulator is considering making a decision under
subsection (2)
of the kind, and for the reasons, specified in the notice; and
(ii) that the
person may, within 28 days or such longer period as is specified in the
notice, make written representations to the Regulator showing cause why the
decision should not be made; and
(b) must consider any representations made under
paragraph (a)(ii)
and not withdrawn.
(4) If the
Regulator suspends or revokes the accreditation of the accredited person, wholly
or in part, or in respect of specified railway operations, the Regulator must
include in the notice of suspension or revocation the reasons for the suspension
or revocation and information about the right of review under
Part 7.
(5) The Regulator may withdraw a suspension of the accreditation of a
person by written notice given to the person.
74—Immediate suspension of
accreditation
(1) If the
Regulator considers that there is, or would be, an immediate and serious risk to
safety unless an accreditation is suspended immediately, the Regulator may,
without complying with
section 73(3) or
(4), by written
notice given to the accredited person, immediately suspend the accreditation of
the person—
(a) wholly or in part, or in respect of particular railway operations
specified in the notice; and
(b) for a specified period, not exceeding 6 weeks.
(2) The Regulator
may, by written notice given to a person whose accreditation is suspended,
wholly or in part, or in respect of particular railway
operations—
(a) reduce the period of suspension specified in a notice under
subsection (1);
or
(b) extend the
period of suspension specified in a notice under
subsection (1)
but not so that the suspension continues for more than 6 weeks after the
date of the notice under that subsection.
(3) The Regulator may withdraw a suspension of the accreditation of a
person by written notice given to the person.
(4) Before making a decision under
subsection (2)(b)
to extend a period of suspension, the Regulator—
(a) must notify the
person in writing—
(i) that the Regulator is considering extending the period of suspension
for the reasons specified in the notice; and
(ii) that the
person may, within 7 days or such longer period as is specified in the
notification, make written representations to the Regulator showing cause why
the suspension should not be extended; and
(b) must consider any representations made under
paragraph (a)(ii)
and not withdrawn.
(5) If the Regulator extends the suspension of the person, the Regulator
must notify the person in writing that the suspension is being extended and
include in the notice the reasons for the extension and information about the
right of review under
Part 7.
75—Surrender of accreditation
(1) Accreditation may only be surrendered in accordance with this
section.
(2) If an accredited person intends to surrender accreditation, the
accredited person must—
(a) give the Regulator written notice of the intention to surrender the
accreditation; and
(b) provide the Regulator with details as to the arrangements proposed in
relation to the cessation of the person's railway operations.
(3) If the Regulator is satisfied as to the arrangements proposed in
relation to the cessation of the accredited person's railway operations, the
Regulator must, as soon as reasonably practicable, by written notice given to
the person, inform the person that the person's accreditation may be surrendered
in accordance with the proposed arrangements on the date specified in the
notice.
(4) If the Regulator is not satisfied as to the arrangements proposed in
relation to the cessation of the accredited person's railway operations, the
Regulator must, as soon as reasonably practicable, by written notice given to
the person, inform the person—
(a) that the Regulator is not satisfied as to the proposed arrangements;
and
(b) of the reasons for the Regulator's dissatisfaction; and
(c) that the person's accreditation may not be surrendered until the
Regulator is satisfied as to the proposed arrangements.
Subdivision 5—Miscellaneous
76—Annual fees
(1) An accredited person must pay the annual fee prescribed by the
national regulations.
(2) The annual fee must be paid by an accredited person at the time
accreditation is granted and thereafter on an annual basis on or before the
prescribed date.
(3) However, the Regulator may accept payment of an annual fee in
accordance with an agreement (that provides, for example, for the payment of
fees by instalments) made with the person who is liable to pay the
fee.
(4) The national regulations may—
(a) fix different fees for different kinds of accreditations;
and
(b) fix various methods for the calculation of various fees; and
(c) fix fees which may be differential, varying according to any factor
determined by the Regulator; and
(d) impose additional fees for the late payment of fees under this
section.
77—Waiver of fees
The Regulator may waive, or refund, the whole or part of any fee payable
under this Division.
78—Penalty for breach of condition or
restriction
An accredited person must not contravene a condition or restriction of
accreditation applying under this Part.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
79—Accreditation cannot be transferred or
assigned
(1) An accreditation—
(a) is personal to the person who holds it; and
(b) is not capable of being transferred or assigned to any other person or
otherwise dealt with by the person who holds it; and
(c) does not vest by operation of law in any other person.
(2) A purported transfer or assignment of an accreditation or any other
purported dealing with an accreditation by the person who holds it is of no
effect.
(3) This section has effect despite anything in this Law, an Act or a rule
of law to the contrary.
80—Sale or transfer of railway operations by
accredited person
(1) If an accredited person proposes to sell or otherwise transfer any
railway operations for which the person is accredited, the Regulator may, on an
application for accreditation being made by the proposed transferee, waive
compliance by the proposed transferee with any 1 or more of the requirements of
this Part.
(2) However, the Regulator must not waive compliance with any such
requirements unless the proposed transferee demonstrates, to the satisfaction of
the Regulator, that the proposed transferee has the competence and capacity to
comply with the relevant requirements of this Part that apply to applicants for
accreditation of the appropriate kind.
(3) A waiver of compliance with requirements may be given subject to such
conditions and restrictions (if any) as appear to the Regulator to be
necessary.
81—Keeping and making available records for public
inspection
(1) A person must
ensure that—
(a) if the person is an accredited person or has an exemption under this
Law—the current notice of accreditation or exemption; and
(b) any other document prescribed by the national regulations for the
purposes of this section,
are available for inspection—
(c) if the person is a body corporate—at the person's registered
office during ordinary business hours;
(d) if the person is not a body corporate—at the person's principal
place of business during ordinary business hours (or, if the Regulator approves
another place and time, at that place and time).
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(2) A person who is
required under
subsection (1)
to make available documents for inspection must maintain a register of those
documents for inspection.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
Division 5—Registration of rail infrastructure
managers of private sidings
Subdivision 1—Exemptions relating to certain
private sidings
82—Exemption from accreditation in respect of
certain private sidings
(1) A rail infrastructure manager of a private siding is not required to
be accredited under this Part in respect of railway operations (other than those
involving the operation of rolling stock) carried out in the private
siding.
(2) Subject to
section 83(2), a
rail infrastructure manager of a private siding is not required to comply with
Division 6,
Division 7 or
Division 8 of this
Part in relation to the private siding in respect of railway operations (other
than those involving the operation of rolling stock) carried out in the private
siding.
83—Requirement for managers of certain private
sidings to be registered
(1) A rail
infrastructure manager of a private siding that is to be (or continue to be)
connected with, or to have access to, a railway of an accredited person or
another private siding, must be registered in respect of the private siding in
accordance with this Division.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2) A rail
infrastructure manager of a private siding that is to be (or continue to be)
connected with, or to have access to, a railway of an accredited person or
another private siding must—
(a) comply with the requirements of
Division 6
Subdivision 2 of this Part insofar as they are relevant to the railway
operations carried out in the private siding; and
(b) seek to enter into an interface agreement with the accredited person
or rail infrastructure manager of the other private siding (as the case may
be).
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
Subdivision 2—Procedures for granting
registration
84—Application for
registration
(1) A rail
infrastructure manager of a private siding to which
section 83 applies may
apply to the Regulator for registration in respect of the private
siding.
(2) An application must be made in the manner and form approved by the
Regulator and—
(a) must contain—
(i) details about the scale and complexity of the private siding;
and
(ii) details about the extent of the railway track layout and other rail
infrastructure of the private siding; and
(iii) details about the railway operations to be carried out in the
private siding; and
(iv) if the private siding is to be (or continue to be) connected with, or
to have access to—
(A) a railway of an accredited person—the prescribed details about
the railway and the accredited person; or
(B) another private siding—the prescribed details about that siding
and the rail infrastructure manager of that siding; and
(v) any other prescribed information; and
(b) must be accompanied by the prescribed application fee.
(3) The Regulator may require an applicant for
registration—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
85—What applicant must
demonstrate
The Regulator must not grant registration to an applicant unless satisfied
that the applicant has demonstrated—
(a) that the applicant is, or is to be, the rail infrastructure manager of
the private siding; and
(b) that the railway operations to be carried out (or continue to be
carried out) in the private siding are such that registration of the applicant
(rather than accreditation of the applicant in respect of the railway
operations) is, in the opinion of the Regulator, the appropriate action;
and
(c) that the
applicant has complied with the requirements prescribed by the national
regulations (if any) for the purposes of this section.
86—Determination of
application
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
section 85—notify
the applicant that registration has been granted, with or without conditions or
restrictions; or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) Registration under this Law is subject to—
(a) any conditions or restrictions prescribed by the national regulations
for the purposes of this section; and
(b) any other condition or restriction imposed on the registration by the
Regulator.
(3) Notification
under this section—
(a) must be in writing and given to the applicant; and
(b) if registration has been granted, must specify—
(i) the prescribed details of the applicant; and
(ii) the prescribed details of the private siding; and
(iii) any conditions and restrictions imposed by the Regulator on the
registration; and
(iv) any other prescribed information; and
(c) if a condition
or restriction has been imposed on the registration, must
include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under
Part 7; and
(d) if the application has been refused, must include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to the application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
Subdivision 3—Variation of
registration
87—Application for variation of
registration
(1) A registered
person may, at any time, apply to the Regulator for a variation of the
registration.
(2) A registered person must apply to the Regulator for a variation of the
registration if—
(a) the applicant proposes to vary the scale and complexity of the private
siding in respect of which the applicant is registered; or
(b) the applicant
proposes to vary the railway operations to be carried out in the private siding
in respect of which the applicant is registered; or
(c) any other variation is proposed in relation to the private siding in
respect of which the applicant is registered that should be reflected in the
registration.
(3) An application for variation must be made in the manner and form
approved by the Regulator and—
(a) must specify the details of the variation being sought; and
(b) must contain the prescribed information; and
(c) must be accompanied by the prescribed application fee.
(4) The Regulator
may require a registered person who has applied for a variation under this
section—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
88—Determination of application for
variation
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
section 85 (so far as
they are applicable to the proposed variation), notify the applicant that
registration has been varied, with or without conditions or restrictions;
or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) Notification
under this section—
(a) must be in writing and given to the applicant; and
(b) if registration has been varied, must specify—
(i) the prescribed details of the applicant; and
(ii) the variation to the registration; and
(iii) any conditions and restrictions imposed by the Regulator on the
registration as varied; and
(iv) any other prescribed information; and
(c) if a condition or restriction has been imposed on the registration as
varied, must include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under
Part 7; and
(d) if the application has been refused, must include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to an application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
89—Prescribed conditions and
restrictions
The registration of a person that is varied under this Division is subject
to any conditions or restrictions prescribed by the national regulations that
are applicable to the registration as varied.
90—Variation of conditions and
restrictions
(1) A registered person may, at any time, apply to the Regulator for a
variation of a condition or restriction imposed by the Regulator to which the
registration is subject.
(2) An application for variation of a condition or restriction must be
made as if it were an application for variation of registration (and
section 87 applies
accordingly).
(3) The Regulator
must consider the application and, if satisfied as to the matters referred to in
section 86 (so far
as they are applicable to the proposed variation), notify the registered person
in accordance with the provisions of this Division applicable to a grant of
registration (so far as is practicable), that the variation has been granted or
refused.
(4) Notification under
subsection (3)
that a variation has been refused must include the reasons for the decision to
refuse to grant the variation and information about the right of review under
Part 7.
91—Regulator may make changes to conditions or
restrictions
(1) The Regulator
may, subject to this section, at any time, vary or revoke a condition or
restriction imposed by the Regulator to which the registration of a registered
person is subject or impose a new condition or restriction.
(2) Before taking
action under this section, the Regulator must—
(a) give the registered person written notice of the action that the
Regulator proposes to take; and
(b) allow the
registered person to make written representations about the intended action
within 28 days (or any other period that the Regulator and the registered person
agree on); and
(c) consider any representations made under
paragraph (b)
and not withdrawn.
(3)
Subsection (2)
does not apply if the Regulator considers it necessary to take immediate action
in the interests of safety.
(4) The Regulator must, by written notice given to the registered person,
provide—
(a) details of any action taken under
subsection (1);
and
(b) a statement of reasons for any action taken under
subsection (1);
and
(c) information about the right of review under
Part 7.
Subdivision 4—Revocation, suspension or
surrender of registration
92—Revocation or suspension of
registration
(1) This section applies in respect of a registered person
if—
(a) the Regulator considers that the registered person—
(i) is no longer able to demonstrate to the satisfaction of the Regulator
the matters referred to in
section 85 or to
satisfy the conditions, or to comply with the restrictions, of the registration;
or
(ii) is not controlling or managing the private siding and has not done so
for at least the preceding 12 months; or
(b) the registered person contravenes this Law.
(a) suspend the registration of the registered person for a period
determined by the Regulator; or
(b) revoke the registration of the registered person with immediate effect
or with effect from a specified future date; or
(c) impose conditions or restrictions on the registration; or
(d) vary conditions or restrictions to which the registration is
subject.
(3) Before making a
decision under
subsection (2),
the Regulator—
(a) must notify the
person in writing—
(i) that the Regulator is considering making a decision under
subsection (2)
of the kind, and for the reasons, specified in the notice; and
(ii) that the
person may, within 28 days or such longer period as is specified in the
notice, make written representations to the Regulator showing cause why the
decision should not be made; and
(b) must consider any representations made under
paragraph (a)(ii)
and not withdrawn.
(4) If the
Regulator suspends or revokes the registration of the registered person, the
Regulator must include in the notice of suspension or revocation the reasons for
the suspension or revocation and information about the right of review under
Part 7.
(5) The Regulator may withdraw a suspension of the registration of a
person by written notice given to the person.
93—Immediate suspension of
registration
(1) If the
Regulator considers that there is, or would be, an immediate and serious risk to
safety unless a registration is suspended immediately, the Regulator may,
without complying with
section 92(3) or
(4), by written
notice given to the registered person, immediately suspend the registration of
the person for a specified period, not exceeding 6 weeks.
(2) The Regulator
may, by written notice given to a person whose registration is
suspended—
(a) reduce the period of suspension specified in a notice under
subsection (1);
or
(b) extend the
period of suspension specified in a notice under
subsection (1)
but not so that the suspension continues for more than 6 weeks after the
date of the notice under that subsection.
(3) The Regulator may withdraw a suspension of the registration of a
person by written notice given to the person.
(4) Before making a decision under
subsection (2)(b)
to extend a period of suspension, the Regulator—
(a) must notify the
person in writing—
(i) that the Regulator is considering extending the period of suspension
for the reasons specified in the notification; and
(ii) that the
person may, within 7 days or such longer period as is specified in the
notification, make written representations to the Regulator showing cause why
the suspension should not be extended; and
(b) must consider any representations made under
paragraph (a)(ii)
and not withdrawn.
(5) If the Regulator extends the suspension of the person, the Regulator
must notify the person in writing that the suspension is being extended and
include in the notice the reasons for the extension and information about the
right of review under
Part 7.
94—Surrender of registration
(1) Registration may only be surrendered in accordance with this
section.
(2) If a registered person intends to surrender registration, the
registered person must—
(a) give the Regulator written notice of the intention to surrender the
registration; and
(b) provide the Regulator with details as to the arrangements proposed in
relation to the cessation of the person's railway operations in respect of the
private siding.
(3) If the Regulator is satisfied as to the arrangements proposed in
relation to the cessation of the registered person's railway operations, the
Regulator must, as soon as reasonably practicable, by written notice given to
the person, inform the person that the person's registration may be surrendered
in accordance with the proposed arrangements on the date specified in the
notice.
(4) If the Regulator is not satisfied as to the arrangements proposed in
relation to the cessation of the registered person's railway operations, the
Regulator must, as soon as reasonably practicable, by written notice given to
the person, inform the person—
(a) that the Regulator is not satisfied as to the proposed arrangements;
and
(b) of the reasons for the Regulator's dissatisfaction; and
(c) that the person's registration may not be surrendered until the
Regulator is satisfied as to the proposed arrangements.
Subdivision 5—Miscellaneous
95—Annual fees
(1) A registered person must pay the annual fee prescribed by the national
regulations.
(2) The annual fee must be paid by a registered person at the time
registration is granted and thereafter on an annual basis on or before the
prescribed date.
(3) However, the Regulator may accept payment of an annual fee in
accordance with an agreement (that provides, for example, for the payment of
fees by instalments) made with the person who is liable to pay the
fee.
(4) The national regulations may—
(a) fix different fees for different kinds of registration; and
(b) fix various methods for the calculation of various fees; and
(c) fix fees which may be differential, varying according to any factor
determined by the Regulator; and
(d) impose additional fees for the late payment of fees under this
section.
96—Waiver of fees
The Regulator may waive, or refund, the whole or part of any fee payable
under this Division.
97—Registration cannot be transferred or
assigned
(1) Registration—
(a) is personal to the person who holds it; and
(b) is not capable of being transferred or assigned to any other person or
otherwise dealt with by the person who holds it; and
(c) does not vest by operation of law in any other person.
(2) A purported transfer or assignment of a registration or any other
purported dealing with a registration by the person who holds it is of no
effect.
(3) This section has effect despite anything in this Law, an Act or a rule
of law to the contrary.
98—Offences relating to
registration
(1) A registered person must not contravene a condition or restriction of
the registration.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) A registered
person must ensure that the notice of registration, and any other document
prescribed by the national regulations for the purposes of this section, is
available for inspection—
(a) if the person is a body corporate—at the person's registered
office during ordinary business hours;
(b) if the person is not a body corporate—at the person's principal
place of business during ordinary business hours (or, if the Regulator approves
another place and time, at that place and time).
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(3) A person who is
required under
subsection (2)
to make available documents for inspection must maintain a register of those
documents for inspection.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
Division 6—Safety
management
Subdivision 1—Safety management
systems
99—Safety management system
(1) A rail
transport operator must have a safety management system for railway operations
in respect of which the operator is required to be accredited
that—
(a) is in a form approved by the Regulator; and
(b) provides for systems and procedures for compliance with the risk
management obligations under this Law; and
(c) identifies any
risks to safety in relation to railway operations in respect of which the
operator is required to be accredited; and
(d) provides for
the comprehensive and systematic assessment of any identified risks;
and
(e) specifies the controls (including audits, expertise, resources and
staff) that are to be used by the operator to manage identified risks and to
monitor safety in relation to those railway operations; and
(f) includes procedures for monitoring, reviewing and revising the
adequacy of those controls; and
(g) addresses and includes any other matter prescribed by the national
regulations that is relevant to the railway operations for which the rail
transport operator is accredited.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
(2) The safety management system for a rail transport operator must also
include the following matters prepared in accordance with the requirements of
this Division:
(a) measures to manage identified risks to safety for the purposes of
interface agreements;
(b) a security management plan;
(c) an emergency management plan;
(d) a health and fitness management program;
(e) a drug and alcohol management program;
(f) a fatigue risk management program.
(3) Before
establishing a safety management system in relation to railway operations in
respect of which a rail transport operator is required to be accredited or
reviewing or varying any such safety management system, the operator must, so
far as is reasonably practicable—
(i) persons likely
to be affected by the safety management system or its review or variation, being
persons who carry out those railway operations or work on or at the operator's
railway premises or with the operator's rolling stock; and
(ii) health and safety representatives (within the meaning of the
occupational health and safety legislation) representing any of the persons
referred to in
subparagraph (i);
and
(iii) any union representing any of the persons referred to in
subparagraph (i);
and
(iv) any other rail
transport operator with whom the first mentioned operator is required to enter
into an interface agreement relating to risks to safety of railway operations
carried out by or on behalf of either of them; and
(v) the public, as appropriate; and
(b) provide the persons consulted with a reasonable opportunity to make
submissions on the proposed safety management system; and
(c) advise those persons in a timely manner of the outcome of the
consultation process.
(4) If the safety management system of a rail transport operator and the
safety management system of another rail transport operator who has an agreement
referred to in
subsection (3)(a)(iv)
with the first mentioned operator, when taken as 1 system, comply with this Law,
both safety management systems are taken to comply with this Law.
(5) A safety management system must be evidenced in writing and must
identify—
(a) each person responsible for preparing any part of the safety
management system; and
(b) the person, or class of persons, responsible for implementing the
system.
100—Conduct of assessments for identified
risks
(1) In conducting an assessment for the purposes of
section 99(1)(d),
the rail transport operator must—
(a) examine and analyse each identified risk, including—
(i) the nature of the risk; and
(ii) the likelihood of the risk occurring; and
(iii) the magnitude and severity of the consequences should a risk be
realised; and
(iv) the range of control measures available and considered to eliminate
or minimise the risk; and
(b) consider risks cumulatively as well as individually; and
(c) use assessment methodologies that are appropriate to the risks under
consideration.
(2) The rail transport operator must keep a detailed record of all aspects
of the assessment process, including—
(a) the risks considered; and
(b) the likelihood, severity of consequences and control measures
considered, including reasons for selecting certain control measures and
rejecting others.
101—Compliance with safety management
system
(1) A rail transport operator must implement the operator's safety
management system.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
(2) A rail
transport operator must not, without reasonable excuse, fail to comply with the
operator's safety management system for the operator's railway
operations.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
(3)
Subsection (2) places
an evidential burden on the accused to show a reasonable excuse.
102—Review of safety management
system
A rail transport operator must review the operator's safety management
system in accordance with the national regulations at such times or within such
periods as are prescribed (or, if no times or periods are prescribed, at least
once each year or at such other time as is agreed between the operator and the
Regulator).
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
103—Safety performance reports
(1) A rail transport operator must give the Regulator a safety performance
report about the operator's railway operations in respect of which the operator
is required to be accredited for each reporting period that—
(a) is in a form approved by the Regulator; and
(b) complies with the requirements (if any) prescribed by the national
regulations for the purposes of this section; and
(c) contains—
(i) a description and assessment of the safety performance of the
operator's railway operations; and
(ii) comments on any deficiencies, and any irregularities, in the railway
operations that may be relevant to the safety of the railway; and
(iii) a description of any safety initiatives in relation to the railway
operations undertaken during the reporting period or proposed to be undertaken
in the next reporting period; and
(iv) any other information or performance indicators prescribed by the
national regulations for the purposes of this section.
(2) A rail transport operator must submit a report in accordance with this
section within 6 months after the end of each reporting period.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(3) In this section—
reporting period means a financial year or such other period
as is agreed from time to time by the Regulator and the rail transport
operator.
104—Regulator may direct amendment of safety
management system
(1) The Regulator
may, by written notice given to an accredited person, direct the person to amend
the person's safety management system in a specified manner within a specified
period, being not less than 28 days after the giving of the
direction.
(2) Before giving a
direction to amend a safety management system under
subsection (1),
the Regulator must, if the intended amendment is likely to result in significant
costs or expenses to the accredited person or any other person—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of the intended amendment; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the intended amendment.
(3) A direction
under
subsection (1)—
(a) must state the reasons why the Regulator considers it necessary for
the rail transport operator to amend the safety management system; and
(b) must include (if applicable) the results of any cost-benefit analysis
carried out under this section; and
(c) must include information about the right of review under
Part 7.
(4) An accredited
person must not, without reasonable excuse, fail to comply with a direction
under
subsection (1).
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(5)
Subsection (4) places
an evidential burden on the accused to show a reasonable excuse.
Subdivision 2—Interface
agreements
105—Requirements for and scope of interface
agreements
(1) An interface agreement must include provisions for—
(a) implementing and maintaining measures to manage risks identified under
section 99(1)(c)
associated with the interface; and
(b) the evaluation, testing and (where appropriate) revision of measures
in relation to identified risks and incidents considered; and
(c) the respective roles and responsibilities of each party to the
agreement in relation to those measures; and
(d) procedures by which the parties to the agreement will exchange
information about, and monitor compliance with, their obligations under the
agreement; and
(e) a process for keeping the agreement under review and its
revision.
(2) An interface agreement may—
(a) be entered into by 2 or more rail transport operators or by
1 or more rail transport operators and 1 or more road managers;
and
(b) include measures to manage any number of risks to safety that may
arise because of, or partly because of, any railway operations; and
(c) include measures to manage any number of risks to safety that may
arise from any railway operations because of, or partly because of, the
existence or use of any road infrastructure; and
(d) make provision for or in relation to any matter by applying, adopting
or incorporating any matter contained in any document; and
(e) consist of 2 or more documents.
106—Interface coordination—rail transport
operators
A rail transport operator must—
(a) identify and assess, so far as is reasonably practicable, risks to
safety that may arise from railway operations carried out by or on behalf of the
operator because of, or partly because of, railway operations carried out by or
on behalf of any other rail transport operator; and
(b) determine measures to manage, so far as is reasonably practicable,
those risks; and
(c) for the purpose
of managing those risks—seek to enter into an interface agreement with the
other rail transport operator or rail transport operators.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
107—Interface coordination—rail
infrastructure and public roads
(1) A rail infrastructure manager must—
(a) identify and assess, so far as is reasonably practicable, risks to
safety that may arise from railway operations carried out on or in relation to
the manager's rail infrastructure because of, or partly because
of—
(i) the existence of road infrastructure of a prescribed public road;
or
(ii) the existence or use of any rail or road crossing that is part of the
road infrastructure of a public road; and
(b) determine measures to manage, so far as is reasonably practicable,
those risks; and
(c) for the purpose of managing those risks—seek to enter into an
interface agreement with the road manager of that road.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) The road manager of a public road must—
(a) identify and assess, so far as is reasonably practicable, risks to
safety that may arise from the existence or use of any rail or road crossing
that is part of the road infrastructure of the road because of, or partly
because of—
(i) the existence of road infrastructure of a prescribed public road;
or
(ii) the existence or use of any rail or road crossing that is part of the
road infrastructure of a public road; and
(b) determine measures to manage, so far as is reasonably practicable,
those risks; and
(c) for the purpose of managing those risks—seek to enter into an
interface agreement with the rail infrastructure manager of the rail
infrastructure.
(3) Nothing in this section authorises or requires a road manager to act
inconsistently with, or without regard to, the functions, obligations or powers
conferred on it by or under an Act or law.
108—Interface coordination—rail
infrastructure and private roads
(1) A rail
infrastructure manager must—
(a) identify and assess, so far as is reasonably practicable, risks to
safety that may arise from railway operations carried out on or in relation to
the manager's rail infrastructure because of, or partly because of, the
existence or use of any rail or road crossing that is part of the road
infrastructure of a private road; and
(b) consider the extent to which those risks are managed by any prescribed
protocols; and
(c) consider
whether it is necessary to manage those risks in conjunction with the road
manager of that road and—
(i) if the rail
infrastructure manager is of the opinion that it is necessary that those risks
be managed in conjunction with the road manager—give written notice of
that opinion to the road manager and determine measures to manage, so far as is
reasonably practicable, those risks; or
(ii) if the rail
infrastructure manager is of the opinion that the management of those risks does
not need to be carried out in conjunction with the road manager—keep a
written record of that opinion; and
(d) unless
paragraph (c)(ii)
applies—for the purpose of managing those risks, seek to enter into an
interface agreement with the road manager.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) If a rail infrastructure manager gives a road manager of a private
road a written notice under
subsection (1)(c)(i),
the road manager must—
(a) identify and assess, so far as is reasonably practicable, risks to
safety that may arise from the existence or use of any rail or road crossing
that is part of the road infrastructure of the road because of, or partly
because of, railway operations; and
(b) determine measures to manage, so far as is reasonably practicable,
those risks; and
(c) for the purpose of managing those risks—seek to enter into an
interface agreement with the rail infrastructure manager.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
109—Identification and assessment of
risks
A rail transport operator, rail infrastructure manager or road manager that
is required under this Subdivision to identify and assess risks to safety that
may arise from operations carried out by another person may do
so—
(a) by itself identifying and assessing those risks; or
(b) by identifying and assessing those risks jointly with the other
person; or
(c) by adopting the identification and assessment of those risks carried
out by the other person.
110—Regulator may give
directions
(1) This section applies if the Regulator is satisfied that a rail
transport operator, rail infrastructure manager or road manager referred to in
this Subdivision—
(a) is unreasonably refusing or failing to enter into an interface
agreement with another person as required under this Subdivision; or
(b) is unreasonably delaying the negotiation of such an
agreement.
(2) The Regulator
may give a written notice to the rail transport operator, rail infrastructure
manager or road manager (as the case requires) and the other person
that—
(a) warns of the Regulator's powers under this section, including the
power to issue a direction under
subsection (3)
at any time after a specified date; and
(b) includes a copy of this section; and
(c) may contain suggested terms for inclusion in an interface
agreement.
(3) If the
Regulator gives a notice under
subsection (2)
to a rail transport operator, rail infrastructure manager or road manager, the
Regulator may, in writing, require the operator or manager to provide such
information as the Regulator reasonably requires for the purposes of making a
direction under this section.
(4) If a notice is
given under
subsection (2)
and an interface agreement has not been entered into by or on the date specified
in the notice, the Regulator—
(a) may determine the arrangements that are to apply in relation to the
management of risks to safety referred to in
section 106,
107 or
108 (as the case requires);
and
(b) may direct any of the persons to whom the notice is issued to give
effect to those arrangements; and
(c) must specify the time within which a direction is to be complied
with.
(5) A direction under
subsection (4)—
(a) must be in writing; and
(b) must set out any arrangements determined by the Regulator under that
subsection.
(6) A person to whom a notice or direction is given under this section
must comply with the notice or direction within the time specified in the notice
or direction.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
111—Register of interface
agreements
(1) A rail
transport operator must maintain a register of—
(a) interface agreements to which it is a party; and
(b) arrangements determined by the Regulator under
section 110,
that are applicable to the operator's railway operations.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(2) A road manager
must maintain a register of—
(a) interface agreements to which it is a party; and
(b) arrangements determined by the Regulator under
section 110,
that are applicable to any road in relation to which it is the road
manager.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
Subdivision 3—Other safety plans and
programs
112—Security management plan
(1) A rail
transport operator must have a security management plan for railway operations
in respect of which the operator is required to be accredited
that—
(a) incorporates
measures to protect people from theft, assault, sabotage, terrorism and other
criminal acts of other parties and from other harm; and
(b) complies with this Law and any requirements prescribed by the national
regulations.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) The rail transport operator must ensure—
(a) that the security management plan is implemented; and
(b) that appropriate response measures of the security management plan are
implemented without delay if an incident of a kind referred to in
subsection (1)(a)
occurs.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
113—Emergency management plan
(1) A rail transport operator must have an emergency management plan that
complies with
subsection (2)
for railway operations in respect of which the operator is required to be
accredited.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) The emergency
management plan must—
(a) address and include the matters that are prescribed; and
(b) be prepared—
(i) so far as is reasonably practicable—in conjunction with any of
the emergency services that would be expected to attend in the event of a
significant incident involving the operator's railway operations and any other
person who is prescribed; and
(ii) in accordance with the national regulations; and
(c) be kept and maintained in accordance with the national regulations;
and
(d) be provided to the relevant emergency services and any other person
who is prescribed; and
(e) be tested in accordance with the national regulations.
(3) A rail transport operator must ensure that the appropriate response
measures of the emergency management plan are implemented if an emergency
occurs.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
114—Health and fitness management
program
A rail transport operator must prepare and implement a health and fitness
program for rail safety workers who carry out rail safety work in relation to
railway operations in respect of which the operator is required to be accredited
that complies with the prescribed requirements relating to health and fitness
programs.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
115—Drug and alcohol management
program
A rail transport operator must prepare and implement a drug and alcohol
management program for rail safety workers who carry out rail safety work in
relation to railway operations in respect of which the operator is required to
be accredited that complies with the prescribed requirements relating to drug
and alcohol management programs.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
116—Fatigue risk management
program
A rail transport operator must prepare and implement a program, in
accordance with the prescribed requirements, for the management of fatigue of
rail safety workers who carry out rail safety work in relation to railway
operations in respect of which the operator is required to be accredited that
complies with the prescribed requirements relating to fatigue risk management
programs.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
Subdivision 4—Provisions relating to rail
safety workers
117—Assessment of competence
(1) A rail
transport operator must ensure that each rail safety worker who is to carry out
rail safety work in relation to railway operations in respect of which the
operator is required to be accredited has the competence to carry out that
work.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
(2) For the
purposes of
subsection (1),
the competence of a rail safety worker to carry out rail safety
work—
(i) in accordance
with the provisions of the AQTF and any qualification and units of competence
recognised under the AQF applicable to that rail safety work; or
(ii) if
subparagraph (i)
does not apply—in accordance with any qualifications or competencies
prescribed by the national regulations; and
(b) must be assessed by reference to the knowledge and skills of the
worker that would enable the worker to carry out the rail safety work
safely.
(3) A certificate purporting to have been issued under the AQF to a rail
safety worker certifying that the worker has certain qualifications or units of
competence is evidence that the worker has those qualifications or units of
competence.
(4)
Subsection (2)
does not apply if—
(a) it is not
reasonably practicable for a rail transport operator to assess the competence of
a rail safety worker to carry out rail safety work in relation to the operator's
rail infrastructure or rolling stock in accordance with that subsection;
and
(b) the operator satisfies the Regulator that—
(i) the worker has otherwise acquired the necessary qualifications and
competencies applicable to that rail safety work; and
(ii) the worker has the knowledge and skills that would enable the worker
to carry out the rail safety work safely.
(5) Nothing in this section prevents a rail transport operator from
requiring a rail safety worker to undertake further training before carrying out
rail safety work.
(6) A rail
transport operator must maintain records in accordance with the national
regulations of the competence of rail safety workers who carry out rail safety
work on or in relation to the operator's rail infrastructure or rolling
stock.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
118—Identification of rail safety
workers
(1) A rail
transport operator must ensure that each rail safety worker who is to carry out
rail safety work in relation to the operator's railway operations has a form of
identification that is sufficient to enable the type of competence and training
of the worker for that rail safety work to be checked by a rail safety
officer.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(2) A rail safety
worker who is carrying out rail safety work must, when requested by a rail
safety officer to do so, produce the identification provided in accordance with
subsection (1)
to the officer.
Maximum penalty: $2 500.
Subdivision 5—Other persons to comply with
safety management system
119—Other persons to comply with safety management
system
A person, not being an employee employed to carry out railway operations,
who undertakes railway operations on or in relation to rail infrastructure or
rolling stock of a rail transport operator must comply with the safety
management system of the rail transport operator to the extent that it applies
to those railway operations.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
Division 7—Information about rail safety
etc
120—Power of Regulator to obtain information from
rail transport operators
(1) The Regulator
may, by written notice given to a rail transport operator, require the operator
to provide to the Regulator on or before a specified date and in a manner and
form approved by the Regulator, 1 or more of the following:
(a) information concerning measures taken by the rail transport operator
to promote rail safety;
(b) information concerning matters, including matters relating to the
financial capacity or insurance arrangements of the rail transport operator,
relating to rail safety or the accreditation of the rail transport operator that
the Regulator reasonably requires;
(c) the information prescribed for the purposes of this
subsection.
(2) A rail
transport operator must comply with a notice given to the operator under
subsection (1).
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(3) A rail
transport operator must provide to the Regulator, in a manner and form approved
by the Regulator and at the prescribed times and in respect of the prescribed
periods, information prescribed by the national regulations for the purposes of
this subsection relating to rail safety or accreditation.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
Division 8—Investigating and reporting by rail
transport operators
121—Notification of certain
occurrences
(1) A rail
transport operator must report to the Regulator or another authority specified
by the Regulator within the time, and in the manner, prescribed by the national
regulations, all notifiable occurrences that happen on, or in relation to, the
operator's railway premises or railway operations.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2) Two or more rail transport operators may make a joint report with
respect to a notifiable occurrence affecting them.
(3) In addition to
the matters specified in
subsection (1),
the Regulator may, by written notice given to a rail transport operator, require
the operator to report to the Regulator or another authority specified by the
Regulator, any other occurrence or type of occurrence which endangers or could
endanger the safe operation of any railway operations.
(4) A rail transport operator to whom a requirement under
subsection (3)
applies must comply with the requirement.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(5) The Regulator may require information in a report under this section
to be verified by statutory declaration.
122—Investigation of notifiable
occurrences
(1) The Regulator may, by written notice given to a rail transport
operator, require the operator to investigate notifiable occurrences, or any
other occurrences that have endangered or may endanger the safe operation of the
railway operations carried out by the operator.
(2) The level of investigation must be determined by the severity and
potential consequences of the notifiable occurrence as well as by other similar
occurrences and its focus should be to determine the cause and contributing
factors, rather than to apportion blame.
(3) The rail transport operator must ensure that the investigation is
conducted in a manner approved by the Regulator and within the period specified
by the Regulator.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(4) A rail
transport operator who has carried out an investigation under this section must
report to the Regulator on the investigation in a manner specified by the
Regulator within the period specified by the Regulator.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(5) However, information or a document provided by a rail transport
operator in a report under this section is not admissible as evidence against
the operator in civil or criminal proceedings other than proceedings arising out
of the false or misleading nature of the information or document.
Division 9—Drug and alcohol testing by
Regulator
123—Testing for presence of drugs or
alcohol
A rail safety worker may be required to undertake a test for the presence
of a drug or alcohol in accordance with this Law and the application
Act.
124—Appointment of authorised
persons
(1) The Regulator
may, by instrument in writing, appoint—
(a) a rail safety officer; or
(b) a person with
qualifications or experience considered by the Regulator to be appropriate for
the performance of relevant functions under this Law and the application
Act,
to be an authorised person for a term, and subject to the conditions,
specified in the instrument.
Note—
A person appointed under
subsection (1)(b)
need not be an employee of a government agency or instrumentality.
(2) The authority of an authorised person may be limited by the relevant
instrument of appointment to a particular part of a participating jurisdiction,
to a particular railway or to particular rail safety workers, or
otherwise.
125—Identity cards
(1) The Regulator must give each authorised person appointed under
section 124 an
identity card that states the person's name and appointment as an authorised
person and includes any other matter prescribed by the national
regulations.
(2) An authorised person to whom an identity card has been issued must
produce his or her identity card for inspection on request to a person required
by the authorised person to submit to a test or to do any other thing under this
Law or the application Act.
(3) If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the Regulator as
soon as practicable.
Maximum penalty: $5 000.
126—Authorised person may require preliminary
breath test or breath analysis
(1) Subject to this
section, an authorised person may at any time require a rail safety worker
who—
(a) is about to carry out rail safety work; or
(b) is carrying out rail safety work; or
(c) is attempting to carry out rail safety work; or
(d) is still on railway premises after carrying out rail safety work;
or
(e) without limiting a preceding paragraph—is involved in a
prescribed notifiable occurrence,
to submit to testing by means of a preliminary breath test or breath
analysis (or both).
(2) For the
purposes of making a requirement that a rail safety worker submit to a
preliminary breath test or breath analysis, an authorised person
may—
(a) require the worker to provide the worker's name and residential
address; and
(b) give any other reasonable direction to the worker.
Example—
An authorised person may (for example) direct the rail safety worker to
accompany the authorised person and attend at a specified place for the purposes
of carrying out the preliminary breath test or breath analysis.
(3) A rail safety worker must immediately comply with a direction given by
an authorised person (whether under this section or the application Act) for the
purpose of requiring the worker to submit to a preliminary breath test or breath
analysis.
Maximum penalty: $10 000.
(4) The application Act and regulations made under the application Act may
prescribe the manner in which a preliminary breath test or breath analysis is to
be conducted and may (for example) require that more than 1 sample of
breath is to be provided for testing or analysis (and, in such a case, specify
which reading of the apparatus or instrument will be taken to be the result of
the preliminary breath test or breath analysis for the purposes of this Law, the
application Act or any other Act).
127—Authorised person may require drug screening
test, oral fluid analysis and blood test
(1) Subject to this
section, an authorised person may at any time require a rail safety worker
who—
(a) is about to carry out rail safety work; or
(b) is carrying out rail safety work; or
(c) is attempting to carry out rail safety work; or
(d) is still on railway premises after carrying out rail safety work;
or
(e) without limiting a preceding paragraph—is involved in a
prescribed notifiable occurrence,
to submit to a drug screening test, oral fluid analysis or blood test (or
any combination of these).
(2) For the
purposes of making a requirement that a rail safety worker submit to a drug
screening test, oral fluid analysis or blood test, an authorised person
may—
(a) require the worker to provide the worker's name and residential
address; and
(b) give any other reasonable direction to the worker.
Example—
An authorised person may (for example) direct the rail safety worker to
accompany the authorised person and attend at a specified place for the purposes
of carrying out the drug screening test, oral fluid analysis or blood
test.
(3) A rail safety worker must immediately comply with a direction given by
an authorised person (whether under this section or the application Act) for the
purpose of requiring the worker to submit to a drug screening test, oral fluid
analysis or blood test (or any combination of these).
Maximum penalty: $10 000.
(4) The application Act and regulations made under the application Act may
prescribe the manner in which a drug screening test, oral fluid analysis or
blood test is to be conducted.
128—Offence relating to prescribed concentration of
alcohol or prescribed drug
(1) A rail safety
worker must not carry out, or attempt to carry out, rail safety
work—
(a) while there is present in his or her blood the prescribed
concentration of alcohol; or
(b) while a
prescribed drug is present in his or her oral fluid or blood; or
(c) while so much
under the influence of alcohol or a drug as to be incapable of effectively
discharging a function or duty of a rail safety worker.
Maximum penalty: $10 000.
(2) For the purposes of
subsection (1)(c),
a person is incapable of effectively discharging a function or duty of a rail
safety worker if, owing to the influence of alcohol or a drug, the use of any
mental or physical faculty of that person is lost or appreciably impaired (but
this subsection does not restrict in any way the operation of
subsection (1)(c)).
(3) Subject to
subsection (4),
it is a defence to a charge of an offence against
subsection (1)(b)
if the defendant proves that he or she did not knowingly consume the prescribed
drug present in his or her oral fluid or blood.
(4)
Subsection (3) does
not apply if the defendant consumed the prescribed drug believing that he or she
was consuming a substance unlawfully but was mistaken as to, unaware of, or
indifferent to, the identity of the prescribed drug.
(5) For the purposes of this section—
prescribed concentration of alcohol, in relation to a rail
safety worker, means—
(a) any concentration of alcohol in the blood; or
(b) if some other concentration of alcohol is prescribed in the national
regulations (being a specified amount of alcohol in 100 millilitres of blood)
for the purposes of this definition—that concentration;
prescribed drug means—
(a) any of the following substances:
(i) delta-9-tetrahydrocannabinol;
(ii) Methylamphetamine (Methamphetamine);
(iii) 3,4-Methylenedioxymethylamphetamine (MDMA); and
(b) any other substance declared by the national regulations to be a
prescribed drug for the purposes of this section.
129—Oral fluid or blood sample or results of
analysis etc not to be used for other purposes
A sample of oral fluid or blood taken under this Part or the application
Act (and any other forensic material taken incidentally during a drug screening
test, oral fluid analysis or blood test) must not be used for a purpose other
than that contemplated by this Part or the application Act, in connection with
the control or management of any work or activity associated with railway
operations, or for the purpose of disciplinary proceedings against a rail safety
worker.
Division 10—Train safety
recordings
130—Interpretation
In this Division—
train safety recording means a recording consisting of (or
mainly of) sounds or images or data, or any combination of sounds, images or
data, produced by a device installed in a train, signal box, train control
complex or other railway premises for the purpose of recording activities
carried out by rail safety workers in relation to the operation of a
train.
131—Disclosure of train safety
recordings
A person must not publish or communicate to any person—
(a) a train safety recording or any part of a train safety recording;
or
(b) any information obtained from a train safety recording or any part of
a train safety recording,
otherwise than in the course of an inquiry or an investigation into an
accident or incident under this Part or for the purposes of, or in connection
with—
(c) criminal proceedings (not being criminal proceedings in which it is
not admissible), investigations relating to any such criminal proceedings or
investigations by or proceedings before a coroner; or
(d) civil proceedings in which an order is made under
section 132;
or
(e) a disclosure or publication that is otherwise permitted under this Law
or an Act.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
132—Admissibility of evidence of train safety
recordings in civil proceedings
(1) A train safety
recording is not admissible in evidence in any civil proceedings against a rail
safety worker.
(2) A party to
civil proceedings may, at any time before the determination of the proceedings,
apply to the court in which the proceedings have been instituted for an order
that a train safety recording, or part of a train safety recording, be
admissible in evidence in the proceedings.
(3) If an
application is made to a court under
subsection (2),
the court must—
(a) examine the train safety recording; and
(b) if satisfied that—
(i) a material question of fact in the proceedings will not be able to be
properly determined from other evidence available to the court; and
(ii) the train safety recording, or a part of the train safety recording,
if admitted in evidence in the proceedings, will assist in the proper
determination of that material question of fact; and
(iii) in the circumstances of the case, the public interest in the proper
determination of that material question of fact outweighs the public interest in
protecting the privacy of rail safety workers,
the court may order that the train safety recording, or that part of the
train safety recording, be admissible in evidence in the proceedings.
(4) If the court makes an order referred to in
subsection (3),
the train safety recording is (despite
subsection (1))
admissible in evidence in the proceedings.
Note—
Part 6 of the Transport Safety Investigation Act 2003 of the
Commonwealth provides for limitations on the disclosure and use of train safety
recordings in court proceedings.
Division 11—Audit of railway operations by
Regulator
133—Audit of railway operations by
Regulator
(a) may audit the railway operations of a rail transport operator;
and
(b) may prepare and
implement a program (an audit program) for each year for
inspecting the railway operations of rail transport operators; and
(c) may, for the purposes of an audit, inspect the railway operations of a
rail transport operator, whether or not under an audit program.
(2) Without limiting
subsection (1)(b),
an audit program may focus on 1 or more of the following:
(a) particular rail transport operators;
(b) particular criteria relating to rail transport operators;
(c) particular aspects of rail safety;
(d) particular aspects of railway operations.
(3) The Regulator must give not less than 24 hours written notice to
a rail transport operator before inspecting the operator's railway operations
under this section.
(4) The national regulations may establish procedures for the conduct of
audits under this section, including procedures to ensure the confidentiality of
records.
(5) In this section—
rail transport operator includes a person, not being an
employee, engaged to carry out railway operations, who undertakes railway
operations on or in relation to rail infrastructure or rolling stock of a rail
transport operator.
Part 4—Securing
compliance
Division 1—Guiding
principle
134—Guiding principle
Enforcement of this Law should be undertaken for the purpose
of—
(a) protecting public safety; and
(b) promoting improvement in rail safety; and
(c) removing incentive for any unfair commercial advantage that might be
derived from contravening the rail safety requirements under this Law;
and
(d) influencing the attitude and behaviour of persons whose actions may
have adverse impacts on rail safety; and
(e) securing compliance with this Law through effective and appropriate
compliance and enforcement measures.
Division 2—Rail safety
officers
135—Appointment
(1) The Regulator
may, by instrument in writing, appoint a person, or a person of a prescribed
class, to be a rail safety officer for a term, and subject to the conditions,
specified in the instrument.
Notes—
1 A person appointed under
subsection (1)
need not be an employee of a government agency or instrumentality.
2 A person appointed under
subsection (1)
may be a police officer of a participating jurisdiction.
(2) Without limiting the conditions to which the appointment of a rail
safety officer may be subject, a condition may specify 1 or more of the
following:
(a) functions under this Law that may not be exercised by the
officer;
(b) the only functions under this Law that may be exercised by the
officer;
(c) the circumstances or manner in which a function under this Law may be
performed by the officer.
136—Identity cards
(1) The Regulator must give each rail safety officer an identity card that
states the person's name and appointment as a rail safety officer and includes
any other matter prescribed by the national regulations.
(2) A rail safety officer must produce his or her identity card for
inspection on request when exercising a function under this Law.
(3) If a person to
whom an identity card has been issued ceases to be a rail safety officer, the
person must return the identity card to the Regulator as soon as
practicable.
Maximum penalty: $5 000.
137—Accountability of rail safety
officers
(1) A rail safety officer must give written notice to the Regulator of all
interests, pecuniary or otherwise, that the officer has, or acquires, and that
conflict or could conflict with the proper exercise of the officer's
functions.
(2) The Regulator must give a direction to a rail safety officer not to
deal, or to no longer deal, with a matter if the Regulator becomes aware that
the officer has a potential conflict of interest in relation to a matter and the
Regulator considers that the officer should not deal, or should no longer deal,
with the matter.
138—Suspension and ending of appointment of rail
safety officers
(1) The Regulator may suspend or end the appointment of a rail safety
officer.
(2) A person's appointment as a rail safety officer ends when the person
ceases to be eligible for appointment as a rail safety officer.
Division 3—Regulator has functions and powers
of rail safety officers
139—Regulator has functions and powers of rail
safety officers
(1) The Regulator has all the functions and powers that a rail safety
officer has under this Law.
(2) Accordingly, a reference in this Law to a rail safety
officer includes a reference to the Regulator.
Division 4—Functions and powers of rail safety
officers
140—Functions and powers
A rail safety officer has the following functions and powers under this
Law:
(a) to provide information and advice about compliance with this
Law;
(b) to require compliance with this Law through the issuing of
notices;
(c) to investigate contraventions of this Law and assist in the
prosecution of offences;
(d) other functions or powers conferred by the national
regulations.
141—Conditions on rail safety officers'
powers
A rail safety officer's powers under this Law are subject to any conditions
specified in the instrument of the officer's appointment.
142—Rail safety officers subject to Regulator's
directions
(1) A rail safety
officer is subject to the directions of the Regulator in the exercise of his or
her powers under this Law.
(2) A direction under
subsection (1)
may be of a general nature or may relate to a specified matter or specified
class of matter.
Division 5—Powers relating to
entry
Subdivision 1—General powers of
entry
143—Powers of entry
(1) A rail safety
officer may at any time enter a place that is, or that the officer reasonably
suspects is, railway premises.
(2) If a rail safety officer enters a place under
subsection (1)
and it is not railway premises, the officer must leave the place
immediately.
(3) A rail safety
officer may enter a place that adjoins railway premises if the entry is urgently
required for the purpose of dealing with a railway accident or
incident.
(4) An entry may be made under
subsection (1)
or
(3) with or without
the consent of the person with control or management of the place.
(5) A rail safety officer may enter any place if the entry is authorised
by a search warrant.
Note—
A rail safety officer may enter residential premises to gain access to
railway premises—see
section 153(c).
144—Notification of entry
(1) A rail safety officer may enter a place under
section 143 without
prior notice to any person.
(2) A rail safety officer must, as soon as practicable after entry to a
place that is, or that the officer reasonably suspects is, railway premises,
take all reasonable steps to notify the person with control or management of the
place.
(3) However, a rail safety officer is not required to notify any person if
to do so would defeat the purpose for which the place was entered or cause
unreasonable delay.
145—General powers on entry
(1) A rail safety
officer who enters a place under
section 143 may do any
of the following:
(a) inspect,
examine and make inquiries at the place;
(b) inspect and examine any thing (including a document) at the
place;
(c) bring to the place and use any equipment or materials that may be
required;
(d) enter or open, using reasonable force, rail infrastructure, rolling
stock, a road vehicle or other thing to examine the structure, rolling stock,
road vehicle or other thing;
(e) give directions with respect to the stopping or movement of any
rolling stock or road vehicle;
(f) take measurements, make surveys and take levels and, for those
purposes, dig trenches, break up the soil and set up any posts, stakes or
markers;
(g) conduct tests
and make sketches or recordings (including photographs, films, audio, video,
digital or other recordings);
(h) mark, tag or otherwise identify rolling stock, a road vehicle or other
thing;
(i) seize any thing (including a document) at the place if the officer
reasonably believes the thing is evidence of an offence against this
Law;
(j) take and remove
for analysis, testing or examination a sample of any substance or thing without
paying for it;
(k) require a
person at the place to give the officer reasonable help to exercise the
officer's powers under
paragraphs (a) to
(j);
(l) exercise any power that is reasonably necessary to be exercised by the
officer for the purposes of this Law.
(2) A film, photograph, video or digital recording, or other image, taken
under
subsection (1)(g)
of rail infrastructure, or of any part of rail infrastructure, is not
inadmissible as evidence by reason only of the fact that it includes the
likeness of 1 or more persons if the capturing of that likeness is incidental to
the taking of the film, photograph, video or digital recording, or other
image.
(3) A person
required to give reasonable help under
subsection (1)(k)
must not, without reasonable excuse, fail to comply with the
requirement.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(4)
Subsection (3) places
an evidential burden on the accused to show a reasonable excuse.
(5) In this section—
reasonable help includes—
(a) assistance to enable the rail safety officer to find and gain access
to electronically stored material and information; and
(b) unloading rolling stock; and
(c) running the engine of a locomotive; and
(d) driving a train; and
(e) giving the rail safety officer assistance to enter any rail
infrastructure or any part of rail infrastructure, or open rolling stock or any
part of rolling stock.
146—Persons assisting rail safety
officers
(1) A person (the assistant), including an interpreter, may
accompany a rail safety officer entering a place under this Part to assist the
officer if the officer considers the assistance necessary.
(2) The assistant—
(a) may do such things at the place and in such manner as the rail safety
officer reasonably requires to assist the officer in the exercise of his or her
powers under this Law; but
(b) must not do anything that the officer does not have power to do,
except as permitted under a search warrant.
(3) Anything done lawfully by the assistant is taken for all purposes to
have been done by the rail safety officer.
147—Use of electronic
equipment
(1) Without limiting
section 145,
if—
(a) a thing found in or on rolling stock or a road vehicle, or at a place,
is, or includes, a disk, tape or other device for the storage of information;
and
(b) the equipment in or on the rolling stock or road vehicle, or at the
place, may be used with the disk, tape or other device,
the rail safety officer, or a person assisting the officer, may operate the
equipment to access the information.
(2) A rail safety officer, or a person assisting a rail safety officer,
must not operate or seize equipment for the purpose mentioned in this section
unless the officer or person assisting believes on reasonable grounds that the
operation or seizure of the equipment can be carried out without damage to the
equipment.
148—Use of equipment to examine or process
things
(1) Without limiting
section 145, a rail
safety officer exercising a power under this Part may bring to, onto, or into,
rolling stock, a road vehicle or a place any equipment reasonably necessary for
the examination or processing of things found at, on or in the rolling stock,
road vehicle or place in order to determine whether they are things that may be
seized.
(2) The rail safety officer, or a person assisting the officer, may
operate equipment already in or on the rolling stock or road vehicle, or at the
place, to carry out the examination or processing of a thing found in or on the
rolling stock or road vehicle, or at the place in order to determine whether it
is a thing that may be seized, if the officer or person assisting believes on
reasonable grounds that—
(a) the equipment is suitable for the examination or the processing;
and
(b) the examination or processing can be carried out without damage to the
equipment.
149—Securing a site
(1) For the purpose of protecting evidence that might be relevant for
compliance or investigative purposes, an authorised officer may secure the
perimeter of any site at a place by whatever means the authorised officer
considers appropriate.
(2) A person must
not, without the permission of an authorised officer, enter or remain at a site
the perimeter of which is secured under this section.
Maximum penalty: $10 000.
(3)
Subsection (2)
does not apply if the person enters the site, or remains at the
site—
(a) to ensure the safety of persons; or
(b) to remove deceased persons or animals from the site; or
(c) to move a road vehicle, or the wreckage of a road vehicle, to a safe
place; or
(d) to protect the environment from significant damage or
pollution.
(4) An authorised officer must not unreasonably withhold a permission
referred to in
subsection (2).
(5) In this section—
authorised officer means a rail safety officer or a police
officer.
Note—
See also
Part 5
Division 3 which provides for the issue of a non-disturbance
notice.
Subdivision 2—Search
warrants
150—Search warrants
(1) A rail safety officer may apply to a magistrate for a search warrant
for a place.
(2) Subject to
subsection (6),
the application must be sworn and state the grounds on which the warrant is
sought.
(3) The magistrate may refuse to consider the application until the rail
safety officer gives the magistrate all the information the magistrate requires
about the application in the way the magistrate requires.
Example—
The magistrate may require additional information supporting the
application to be given by statutory declaration.
(4) The magistrate
may issue a search warrant only if the magistrate is satisfied there are
reasonable grounds for suspecting—
(a) there is a particular thing or activity (the evidence)
that may provide evidence of an offence against this Law; and
(b) the evidence is, or may be within the next 72 hours, at the
place.
(5) Subject to
subsection (6),
the search warrant must state—
(a) that a stated rail safety officer may, with necessary and reasonable
help and force, enter the place and exercise the powers of the officer;
and
(b) the offence for which the search warrant is sought; and
(c) the evidence that may be seized under the search warrant;
and
(d) the hours of the day or night when the place may be entered;
and
(e) the date, within 7 days after the search warrant's issue, the search
warrant ends.
(6) A rail safety
officer may apply to a magistrate for a search warrant by telephone, fax or
other prescribed means if the officer considers the urgency of the situation
requires it and, in such a case, the following provisions will apply:
(a) the magistrate
may complete and sign the warrant without the provision of sworn evidence and
without a written application that states the grounds on which the warrant is
sought if the magistrate is satisfied that there are reasonable grounds for
issuing the warrant urgently;
(b) if the
magistrate completes and signs a warrant under
paragraph (a),
the magistrate must then tell the officer—
(i) the terms of the warrant (as contemplated by
subsection (5));
and
(ii) the date on which, and the time at which, the warrant was
signed;
(c) if steps are
taken under
paragraph (b),
the officer must then—
(i) complete a form of warrant in the same terms as the warrant signed by
the magistrate and write on the form—
(A) the name of the magistrate; and
(B) the date on which, and the time at which, the warrant was signed;
and
(ii) send the magistrate the completed form of warrant not later than the
day after the warrant is executed or comes to an end;
(d) a form of warrant completed by an officer under
paragraph (c)
has the same force and effect as a warrant signed by the magistrate under
subsections (4) and
(5).
151—Announcement before entry on
warrant
(1) Before
executing a search warrant, the rail safety officer named in the warrant or an
assistant to the officer must—
(a) announce that he or she is authorised by the warrant to enter the
place; and
(b) give any person at the place an opportunity to allow that
entry.
(2) However, the rail safety officer or an assistant to the officer need
not comply with
subsection (1)
if he or she believes on reasonable grounds that immediate entry to the place is
needed to ensure—
(a) the safety of any person; or
(b) that the effective execution of the warrant is not
frustrated.
152—Copy of warrant to be given to person with
control or management of place
If the person who has or appears to have control or management of a place
is present at the place when a search warrant is being executed, the rail safety
officer must—
(a) identify himself or herself to that person by producing his or her
identity card for inspection; and
(b) give that person a copy of the warrant.
Subdivision 3—Limitation on entry
powers
153—Places used for residential
purposes
Despite anything else in this Division, the powers of a rail safety officer
under this Part in relation to entering a place are not exercisable in respect
of any part of a place that is used only for residential purposes
except—
(a) with the consent of the person with control or management of the
place; or
(b) under the authority conferred by a search warrant; or
(c) for the sole
purpose of gaining access to suspected railway premises, but
only—
(i) if the officer reasonably believes that no reasonable alternative
access is available; and
(ii) at a reasonable time, having regard to the times at which the officer
believes rail safety work is being carried out at the place to which access is
sought.
Subdivision 4—Specific powers on
entry
154—Power to require production of documents and
answers to questions
(1) A rail safety
officer who enters a place under this Division may—
(a) require a person to tell the officer who has custody of, or access to,
a document; or
(b) require a
person who has custody of, or access to, a document to produce that document to
the officer while the officer is at the place, or within a specified period;
or
(c) require a
person at the place to answer any questions put by the officer.
(2) A requirement under
subsection (1)(b)
must be made by written notice unless the circumstances require the rail safety
officer to have immediate access to the document.
(3) An interview
conducted by a rail safety officer under
subsection (1)(c)
must be conducted in private if—
(a) the rail safety officer considers it appropriate; or
(b) the person being interviewed so requests.
(4)
Subsection (3) does
not limit the operation of
section 146 or prevent
a representative of the person being interviewed from being present at the
interview.
(5)
Subsection (3) may be
invoked during an interview by—
(a) the rail safety officer; or
(b) the person being interviewed,
in which case the subsection applies to the remainder of the
interview.
(6) A person must
not, without reasonable excuse, fail to comply with a requirement under this
section.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(7)
Subsection (6) places
an evidential burden on the accused to show a reasonable excuse.
155—Abrogation of privilege against
self-incrimination
(1) A person is not excused from answering a question or providing
information or a document under this Part on the ground that the answer to the
question, or the information or document, may tend to incriminate the person or
expose the person to a penalty.
(2) However, the answer to a question or information or a document
provided by an individual is not admissible as evidence against that individual
in civil or criminal proceedings other than proceedings arising out of the false
or misleading nature of the answer, information or document.
156—Warning to be given
(1) Before
requiring a person to answer a question or provide information or a document
under this Part, a rail safety officer must—
(a) identify himself or herself to the person as a rail safety officer by
producing the officer's identity card or in some other way; and
(b) warn the person that failure to comply with the requirement or to
answer the question, without reasonable excuse, would constitute an offence;
and
(c) warn the person
about the effect of
section 155;
and
(d) advise the person about the effect of
section 245.
(2) It is not an offence for an individual to refuse to answer a question
put by a rail safety officer or provide information or a document to a rail
safety officer under this Part on the ground that the question, information or
document might tend to incriminate him or her, unless he or she was first given
the warning in
subsection (1)(c).
(3) Nothing in this section prevents a rail safety officer from obtaining
and using evidence given to the officer voluntarily by any person.
157—Power to copy and retain
documents
(1) A rail safety officer may—
(a) make copies of, or take extracts from, a document given to the officer
in accordance with a requirement under this Law; and
(b) keep that document for the period that the officer considers
necessary.
(2) While a rail safety officer retains custody of a document, the officer
must permit the following persons to inspect or make copies of the document at
all reasonable times:
(a) the person who
produced the document;
(b) the owner of
the document;
(c) a person authorised by a person referred to in
paragraph (a) or
(b).
Subdivision 5—Powers to support
seizure
158—Power to seize evidence
etc
(1) A rail safety officer who enters railway premises under
section 143 may seize
anything (including a document) at the premises if the officer reasonably
believes the thing is evidence of an offence against this Law.
(2) A rail safety officer who enters a place with a search warrant may
seize the evidence for which the warrant was issued.
(3) A rail safety officer may also seize anything else at the place if the
officer reasonably believes—
(a) the thing is evidence of an offence against this Law; and
(b) the seizure is necessary to prevent the thing being hidden, lost or
destroyed or used to continue or repeat the offence.
159—Directions relating to
seizure
(1) To enable a
thing to be seized under this Part, a rail safety officer may direct the person
in control of it—
(a) to take it to a specified place within a specified time; and
(b) if necessary, to remain in control of it at the specified place for a
period specified in the direction.
(2) A direction under
subsection (1)—
(a) must be given by signed written notice given to the person;
or
(b) if for any reason it is not practicable to give a signed written
notice to the person—may be given orally and confirmed by signed written
notice given to the person as soon as is practicable.
(3) A further
direction may be made under this section about the thing if it is necessary and
reasonable to make the further direction.
Example—
A further direction may (for example) be that the thing be transported
during stated off-peak hours, be transported along a particular route, or be
transported in a particular way.
(4) A person given
a direction under
subsection (1)
or
(3) must comply with
that direction unless the person has a reasonable excuse.
Maximum penalty: $5 000.
(5)
Subsection (4) places
an evidential burden on the accused to show a reasonable excuse.
(6) Without limiting what may otherwise be a reasonable excuse under
subsection (4),
it is a reasonable excuse for a person in control of a thing not to comply with
a direction under
subsection (1)
or
(3) if, in all the
circumstances, the direction was unreasonable.
(7) In this section—
in control, in relation to a thing, means having, or
reasonably appearing to a rail safety officer as having, authority to exercise
control over the thing.
160—Rail safety officer may direct a thing's
return
(1) If a rail
safety officer has directed a person to take a thing to a specified place within
a specified time under
section 159(1),
a rail safety officer may direct the person to return the thing to the place
from which it was taken.
(2) A person given
a direction under
subsection (1)
must comply with that direction unless the person has a reasonable
excuse.
Maximum penalty: $5 000.
(3)
Subsection (2) places
an evidential burden on the accused to show a reasonable excuse.
161—Receipt for seized things
(1) After a rail
safety officer seizes a thing under this Part, the officer must give a receipt
for it to the person from whom the thing was seized or the owner of the
thing.
(2) However, if for any reason it is not practicable to comply with
subsection (1),
the rail safety officer must leave the receipt at the place of seizure in a
conspicuous position and in a reasonably secure way.
(3) The receipt must describe generally the thing seized and its
condition.
(4) This section does not apply if it would be impracticable or
unreasonable to expect the rail safety officer to account for the thing, given
its condition, nature and value.
162—Forfeiture of seized
things
(1) A seized thing
is forfeited to the Regulator if the Regulator—
(a) cannot find the
person entitled to the thing after making reasonable inquiries; or
(b) cannot return
it to the person entitled to it, after making reasonable efforts; or
(c) reasonably
believes it is necessary to forfeit the thing to prevent it being used to commit
an offence against this Law.
(2)
Subsection (1)(a)
does not require the Regulator to make inquiries if it would be unreasonable to
make inquiries to find the person entitled to the thing.
(3)
Subsection (1)(b)
does not require the Regulator to make efforts if it would be unreasonable to
make efforts to return the thing to the person entitled to it.
(4) If the
Regulator decides to forfeit the thing under
subsection (1)(c),
the Regulator must tell the person entitled to the thing of the decision by
written notice.
(5)
Subsection (4) does
not apply if—
(a) the Regulator cannot find the person entitled to the thing, after
making reasonable inquiries; or
(b) it is impracticable or would be unreasonable to give the
notice.
(6) The notice must state—
(a) the reasons for the decision; and
(b) information about the right of review under
Part 7.
(7) In deciding whether and, if so, what inquiries and efforts are
reasonable or whether it would be unreasonable to give notice about a thing,
regard must be had to the thing's nature, condition and value.
(8) Any costs reasonably incurred by the Regulator in storing or disposing
of a thing forfeited under
subsection (1)(c)
may be recovered in a court of competent jurisdiction as a debt due to the
Regulator from that person.
(9) In this section—
person entitled to a thing means the person from whom it was
seized unless that person is not entitled to possess it in which case it means
the owner of the thing.
163—Return of seized things
(1) If a seized
thing has not been forfeited under this Part, the person entitled to the thing
may apply to the Regulator for the return of the thing after the end of 6 months
after it was seized.
(2) The Regulator must return the thing to the applicant under
subsection (1)
unless the Regulator has reasonable grounds to retain the thing.
(3) The Regulator may impose any conditions on the return of the thing
under this section that the Regulator considers appropriate to eliminate or
minimise any risk to rail safety related to the thing.
(4) In this section—
person entitled to a thing means the person entitled to
possess the thing or the owner of the thing.
164—Access to seized thing
(1) Until a seized
thing is forfeited or returned under this Part, a rail safety officer must allow
its owner to inspect it and, if it is a document, to copy it.
(2)
Subsection (1)
does not apply if it is impracticable or it would be unreasonable to allow the
inspection or copying.
Division 6—Damage and
compensation
165—Damage etc to be minimised
In the exercise, or purported exercise, of a power under this Law, a rail
safety officer must take all reasonable steps to ensure that the officer, and
any assistant to the officer, cause as little inconvenience, detriment and
damage as is practicable.
166—Rail safety officer to give notice of
damage
(1) This section applies if a rail safety officer or an assistant to a
rail safety officer damages a thing when exercising or purporting to exercise a
power under this Law.
(2) The rail safety
officer must, as soon as practicable, give written notice of the damage to the
person whom the officer believes on reasonable grounds is the person in control
of the thing.
(3) If the rail safety officer believes the damage was caused by a latent
defect in the thing or circumstances beyond the officer's or assistant's
control, the officer may state it in the notice.
(4) If, for any reason, it is impracticable to comply with
subsection (2),
the rail safety officer must leave the notice in a conspicuous position and in a
reasonably secure way where the damage happened.
(5) This section does not apply to damage the rail safety officer
reasonably believes is trivial.
167—Compensation
(1) A person may claim compensation from the Regulator if the person
incurs loss or expense because of the exercise or purported exercise of a power
under
Division 5.
(2) Compensation may be claimed and ordered in a
proceeding—
(a) brought in a court of competent jurisdiction; or
(b) for an offence against this Law brought against the person claiming
compensation.
(3) The court may order compensation to be paid only if it is satisfied it
is just to make the order in the circumstances of the particular case.
(4) The national regulations may prescribe matters that may, or must, be
taken into account by the court when considering whether it is just to make the
order.
Division 7—Other matters
168—Power to require name and
address
(1) A rail safety
officer may require a person to provide the person's name and residential
address if—
(a) the officer finds the person committing an offence against this Law;
or
(b) the officer finds the person in circumstances that lead, or has
information that leads, the officer to reasonably suspect the person has
committed an offence against this Law; or
(c) the officer reasonably believes that the person may be able to assist
in the investigation of an offence against this Law.
(2) When asking a person to provide the person's name and residential
address, the rail safety officer must—
(a) tell the person the reason for the requirement to provide the person's
name and residential address; and
(b) warn the person that it is an offence to fail to state that name and
residential address, unless the person has a reasonable excuse.
(3) If the rail
safety officer reasonably believes that the name or residential address is
false, the officer may require the person to give evidence of its
correctness.
(4) A person must
not, without reasonable excuse, fail to comply with a requirement under
subsection (1)
or
(3).
Maximum penalty: $5 000.
(5)
Subsection (4) places
an evidential burden on the accused to show a reasonable excuse.
169—Rail safety officer may take
affidavits
A rail safety officer is authorised to take affidavits for any purpose
relating or incidental to the exercise of his or her powers under this
Law.
170—Attendance of rail safety officer at
inquiries
A rail safety officer may participate in any inquiry into the cause of any
death or injury of a rail safety worker while carrying out rail safety work, or
into any other incident or event relevant to safety at railway
premises.
171—Directions may be given under more than
1 provision
(1) A rail safety
officer may, on the same occasion, give directions under 1 or more provisions of
this Law.
(2) Without limiting
subsection (1),
a rail safety officer may, in the course of exercising powers under a provision
of this Law, give—
(a) further directions under the provision; or
(b) directions under 1 or more other provisions of this Law,
or both.
Division 8—Offences in relation to rail safety
officers
172—Offence to hinder or obstruct rail safety
officer
A person must not intentionally hinder or obstruct a rail safety officer in
exercising his or her powers under this Law, or induce or attempt to induce any
other person to do so.
Maximum penalty: $10 000.
173—Offence to impersonate rail safety
officer
A person who is not a rail safety officer must not, in any way, hold
himself or herself out to be a rail safety officer.
Maximum penalty: $10 000.
174—Offence to assault, threaten or intimidate rail
safety officer
A person must not directly or indirectly assault, threaten or intimidate,
or attempt to assault, threaten or intimidate, a rail safety officer or a person
assisting a rail safety officer.
Maximum penalty:
(a) in the case of an individual—$50 000 or imprisonment for 2
years, or both;
(b) in the case of a body corporate—$250 000.
Part 5—Enforcement
measures
Division 1—Improvement
notices
175—Issue of improvement
notices
(1) This section
applies if a rail safety officer reasonably believes that a
person—
(a) is contravening
a provision of this Law; or
(b) has contravened
a provision of this Law in circumstances that make it likely that the
contravention will continue or be repeated; or
(c) is carrying out
or has carried out—
(i) railway operations that threaten safety; or
(ii) other operations that threaten rail safety.
(2) Subject to this
section, the rail safety officer may issue an improvement notice requiring the
person—
(a) to remedy the contravention; or
(b) to prevent a likely contravention from occurring; or
(c) to remedy the things or operations causing the contravention or likely
contravention; or
(d) to carry out railway operations or other operations so that safety is
not threatened or likely to be threatened.
(3) Before serving
an improvement notice issued to a person on a ground stated in
subsection (1)(a)
or
(b) that includes a
direction that the person take specified action to remedy the contravention or
prevent the likely contravention, or to remedy the things or operations causing
the contravention or likely contravention, the Regulator must, if of the opinion
that the action is likely to result in significant costs or expenses to the
person or any other person—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of the action; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the action.
(4) Before serving
an improvement notice issued to a person on a ground stated in
subsection (1)(c)
that includes a direction that the person take specified action by which railway
operations or other operations may be carried out so that safety is not
threatened or likely to be threatened, the Regulator must, if of the opinion
that the action is likely to result in significant costs or expenses to the
person or any other person—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of the action; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the action.
(5)
Subsections (3) and
(4) do not apply if
the Regulator considers it necessary to take immediate action in the interests
of safety but, if the action is likely to result in significant costs or
expenses to the person or any other person, the Regulator must, as soon as
practicable after taking the action—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of the action; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the action.
176—Contents of improvement
notices
(1) An improvement
notice must—
(a) if the notice relates to a contravention or likely contravention of
this Law—
(i) state that the rail safety officer believes the
person—
(A) is contravening a provision of this Law; or
(B) has contravened a provision of this Law in circumstances that make it
likely that the contravention will continue or be repeated; and
(ii) state the provision the officer believes is being, or has been,
contravened; and
(iii) briefly, state how the provision is being, or has been, contravened;
and
(iv) state the day before which the person is required to remedy the
contravention or likely contravention; and
(b) in any other case—
(i) state that the rail safety officer believes the person is carrying out
or has carried out—
(A) railway operations that threaten safety; or
(B) other operations that threaten rail safety; and
(ii) briefly, state how—
(A) the railway operations are threatening, or have threatened, safety;
or
(B) the other operations are threatening, or have threatened, rail safety;
and
(iii) state the day before which the person is required to carry out
railway operations or other operations so that safety is not threatened or
likely to be threatened; and
(c) if a
cost-benefit analysis has been carried out under
section 175, set out
the results of that analysis; and
(d) set out the penalty for non-compliance with the notice; and
(e) include information about the right to a review under
Part 7 of the decision
to serve the notice; and
(f) state that the notice is served under this section.
(2) An improvement
notice served on a person on a ground stated in
section 175(1)(a)
or
(b) may include
directions concerning the action to be taken to remedy the contravention or
prevent the likely contravention, or the things or operations causing the
contravention or likely contravention, to which the notice relates.
(3) An improvement
notice served on a person on the ground stated in
section 175(1)(c)
may include directions concerning the action to be taken by which railway
operations or other operations to which the notice relates may be carried out so
that safety is not threatened or likely to be threatened.
(4) The day stated for compliance with the improvement notice must be
reasonable in all the circumstances.
177—Compliance with improvement
notice
The person to whom an improvement notice is issued must comply with the
notice within the period specified in the notice.
Maximum penalty:
(a) in the case of an individual—$50 000;
(b) in the case of a body corporate—$500 000.
178—Extension of time for compliance with
improvement notices
(1) This section applies if a person has been issued with an improvement
notice.
(2) A rail safety officer may, by written notice given to the person,
extend the compliance period for the improvement notice.
(3) However, the rail safety officer may only extend the compliance period
if the period has not ended.
(4) In this section—
compliance period means the period stated in the improvement
notice under
section 176, and
includes that period as extended under this section.
Division 2—Prohibition
notices
179—Issue of prohibition
notice
(1) This section
applies if a rail safety officer reasonably believes that—
(a) an activity is occurring in relation to railway operations or railway
premises that involves or will involve an immediate risk to safety; or
(b) an activity may occur in relation to railway operations or railway
premises that, if it occurs, will involve an immediate risk to safety;
or
(c) an activity may occur at, on, or in, the immediate vicinity of rail
infrastructure or rolling stock that, if it occurs, will involve an immediate
risk to safety.
(2) The rail safety
officer may issue a prohibition notice to a person who has, or appears to have,
control over the activity prohibiting the carrying on of the activity, or the
carrying on of the activity in a specified way, until a rail safety officer is
satisfied that the matters that give or will give rise to the risk have been
remedied.
(3) A prohibition
notice may be issued orally, but must be confirmed by written notice given to
the person as soon as practicable.
180—Contents of prohibition
notice
(1) A prohibition
notice must—
(a) state that the rail safety officer believes that grounds for the issue
of the prohibition notice exist and the basis for that belief; and
(b) briefly, state the activity that the officer believes involves or will
involve the risk and the matters that give or will give rise to the risk;
and
(c) state the
provision (if any) of this Law that the officer believes is being, or is likely
to be, contravened by that activity; and
(d) set out the penalty for contravening the notice; and
(e) include information about the right to a review under
Part 7 of the decision
to serve the notice; and
(f) state that the notice is served under this section.
(2) A prohibition notice may include directions on the measures to be
taken to remedy the risk, activities or matters to which the notice relates, or
the contravention or likely contravention mentioned in
subsection (1)(c).
(3) A direction in a prohibition notice may offer the person on whom the
notice has been served a choice of ways to remedy the risk, activities or
matters to which the notice relates, or the contravention or likely
contravention mentioned in
subsection (1)(c).
(4) Without limiting
section 179, a
prohibition notice that prohibits the carrying on of an activity in a specified
way may do so by specifying 1 or more of the following:
(a) a place, or part of a place, at which the activity is not to be
carried out;
(b) any thing that is not to be used in connection with the
activity;
(c) any procedure that is not to be followed in connection with the
activity.
181—Compliance with prohibition
notice
The person to whom a direction is given under this Division or a
prohibition notice is issued must comply with the direction or notice.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
Division 3—Non-disturbance
notices
182—Issue of non-disturbance
notice
A rail safety officer may issue a non-disturbance notice to the person with
control or management of railway premises if the officer reasonably believes
that it is necessary to do so to facilitate the exercise of his or her powers
under this Law.
183—Contents of non-disturbance
notice
(1) A
non-disturbance notice may require the person to—
(a) preserve the site at which a notifiable occurrence has occurred for a
specified period; or
(b) prevent the disturbance of a particular site (including the operation
of plant) in other circumstances for a specified period that is reasonable in
the circumstances.
(2) A non-disturbance notice must specify the period (of no more than
7 days) for which it applies and set out—
(a) the obligations of the person to whom the notice is issued;
and
(b) the measures to be taken to preserve a site or prevent disturbance of
a site; and
(c) information about the right to a review under
Part 7 of the decision
to serve the notice; and
(d) the penalty for contravening the notice.
(3) In
subsection (1),
a reference to a site includes any plant, substance, structure or thing
associated with the site.
(4) A non-disturbance notice does not prevent any action—
(a) to assist an injured person; or
(b) to remove a deceased person; or
(c) that is essential to make the site safe or prevent a further incident;
or
(d) that is associated with a police investigation; or
(e) in respect of which a rail safety officer has given
permission.
184—Compliance with non-disturbance
notice
(1) A person must
not, without reasonable excuse, fail to comply with a non-disturbance notice
issued to the person.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2)
Subsection (1) places
an evidential burden on the accused to show a reasonable excuse.
185—Issue of subsequent
notices
If a rail safety officer considers it necessary to do so, he or she may
issue 1 or more subsequent non-disturbance notices to a person, whether before
or after the expiry of the previous notice, each of which must comply with
section 183.
Division 4—General requirements applying to
notices
186—Application of Division
In this Division—
notice means an improvement notice, or a prohibition notice
or non-disturbance notice.
187—Notice to be in writing
(1) Subject to
subsection (2),
a notice must be in writing.
(2) A prohibition
notice may be issued orally, but must be confirmed by written notice as soon as
practicable.
188—Directions in notices
A direction included in an improvement notice or prohibition notice
may—
(a) refer to an approved code of practice; and
(b) offer the person to whom it is issued a choice of ways in which to
remedy the contravention.
189—Recommendations in notice
(1) An improvement notice or prohibition notice may include
recommendations.
(2) It is not an offence to fail to comply with recommendations in an
improvement notice or a prohibition notice.
190—Variation or cancellation of notice by rail
safety officer
(1) A rail safety officer may make minor changes to a
notice—
(a) for clarification; or
(b) to correct errors or references; or
(c) to reflect changes of address or other circumstances.
(2) A rail safety officer may extend the compliance period for an
improvement notice in accordance with
section 178.
(3) A rail safety officer may cancel a notice.
191—Formal irregularities or defects in
notice
A notice is not invalid merely because of—
(a) a formal defect or irregularity in the notice unless the defect or
irregularity causes or is likely to cause substantial injustice; or
(b) a failure to use the correct name of the person to whom the notice is
issued if the notice sufficiently identifies the person and is issued or given
to the person in accordance with
section 192.
192—Serving notices
(1) A notice may be served on a person—
(a) in accordance with
section 258;
or
(b) by leaving it for the person at the railway premises to which the
notice relates with a person who is or appears to be the person with control or
management of the premises; or
(c) in a prescribed manner.
(2) The national regulations may prescribe—
(a) the manner of serving a notice; and
(b) the steps a person on whom a notice is served must take to bring it to
the attention of other persons.
Division 5—Remedial
action
193—When Regulator may carry out
action
(1) This section applies if a person to whom a prohibition notice is
issued fails to take reasonable steps to comply with the notice.
(2) The Regulator may take any remedial action the Regulator believes
reasonable to make the railway premises or situation safe after giving written
notice to the person to whom the prohibition notice was issued
of—
(a) the Regulator's intention to take that action; and
(b) the owner's or person's liability for the costs of that
action.
194—Power of Regulator to take other remedial
action
(1) This section applies if the Regulator reasonably believes
that—
(a) circumstances in which a prohibition notice can be issued exist;
and
(b) a prohibition notice cannot be issued at railway premises because,
after taking reasonable steps, the person with control or management of the
premises cannot be found.
(2) The Regulator may take any remedial action necessary to make the
railway premises safe.
195—Costs of remedial or other
action
The Regulator may recover the reasonable costs of any remedial action taken
under—
(a)
section 193 from the
person to whom the notice is issued; or
(b)
section 194 from any
person to whom the prohibition notice could have been issued in respect of the
matter,
as a debt due to the Regulator.
Division 6—Injunctions
196—Application of Division
In this Division—
notice means an improvement notice, or a prohibition notice
or non-disturbance notice.
197—Injunctions for non-compliance with
notices
(1) The Regulator may apply to the court for an
injunction—
(a) compelling a person to comply with a notice; or
(b) restraining a person from contravening a notice.
(2) The Regulator may do so—
(a) whether or not proceedings have been brought for an offence against
this Law in connection with any matter in respect of which the notice was
issued; and
(b) whether any period for compliance with the notice has
expired.
Division 7—Miscellaneous
198—Response to certain
reports
(1) The Regulator
may, if of the opinion as a result of a report to which this section applies
that action is necessary for the purpose of the safe construction or operation
of a railway, direct a rail transport operator, by written notice, to install on
or with respect to the infrastructure of the railway, or on or with respect to
rolling stock, within the time specified in the notice, safety or protective
systems, devices, equipment or appliances specified in the notice.
(2) A direction under this section must state the reasons why the
Regulator considers it is necessary for the rail transport operator to take the
action specified in the direction and include information about the right of
review under
Part 7.
(3) If the action
specified to be taken in a direction is, in the opinion of the Regulator, likely
to result in significant costs or expenses to the rail transport operator, the
Regulator must, before giving the direction—
(a) conduct or cause to be conducted a cost-benefit analysis of the effect
of taking the action; and
(b) consult with the Premier or Chief Minister, the Treasurer, and any
other Minister, of a participating jurisdiction whose area of responsibility is
likely to be affected by the action.
(4) A rail
transport operator must not, without reasonable excuse, fail to comply with a
direction under this section.
Maximum penalty:
(a) in the case of an individual—$150 000;
(b) in the case of a body corporate—$1 500 000.
(5)
Subsection (4) places
an evidential burden on the accused to show a reasonable excuse.
(6) A report to which this section applies
is—
(a) a report (including any recommendations) following an inquest held by
a coroner under an Act of a participating jurisdiction; or
(b) a report of an investigation held under the Transport Safety
Investigation Act 2003 of the Commonwealth; or
(c) any other report of an investigation into a matter relating to rail
safety.
199—Power to require works to
stop
(1) A person (other
than a rail transport operator) must, before carrying out any works near a
railway that threaten, or are likely to threaten—
(a) the safety of the railway; or
(b) the operational integrity of the railway,
notify the relevant rail infrastructure manager of the intention to carry
out those works.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(a) a person is carrying out, or proposes to carry out, works near a
railway; and
(b) the Regulator believes on reasonable grounds that the works threaten,
or are likely to threaten—
(i) the safety of the railway; or
(ii) the operational integrity of the railway,
the Regulator may, by written notice, give the person a direction to stop,
alter or not to commence the work.
(a) a rail transport operator is carrying out, or proposes to carry out,
railway operations on or near land on which there is infrastructure, or works,
of a utility; and
(b) the Regulator believes on reasonable grounds that the railway
operations threaten, or are likely to threaten—
(i) the safety of the utility infrastructure or works; or
(ii) the safe provision by the utility of water, gas or electricity or
other like services,
the Regulator may, by written notice, give the operator a direction to
stop, alter or not to commence the railway operations.
(4) A person who is
given a notice under
subsection (2)
or
(3) must comply with
the direction set out in the notice unless the person has a reasonable
excuse.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(5) If a person
carries out work in contravention of
subsection (1)
or a direction given under
subsection (2)
or
(3), the Regulator
may, by written notice, direct a person who has the care, control or management
of the land where the infrastructure or works are situated to alter, demolish or
take away the work within a reasonable time specified in the notice.
(6) A person who is
given a notice under
subsection (5)
must comply with the requirement unless the person has a reasonable
excuse.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(7)
Subsections (4) and
(6) place an
evidential burden on the accused to show a reasonable excuse.
(8) A notice under this section must—
(a) include information about the right to a review under
Part 7 of the decision
to serve the notice; and
(b) state that the notice is served under this section.
200—Temporary closing of railway crossings, bridges
etc
(1) An authorised officer may close temporarily or regulate a railway
crossing, bridge, subway or other structure for crossing or passing over or
under a railway if satisfied it is necessary because of an immediate threat to
safety.
(2) If an authorised officer decides to close temporarily or regulate a
railway crossing, bridge, subway or other structure, the authorised officer
must, as soon as practicable after its closure or regulation, notify the person
or authority responsible for the railway crossing, bridge, subway or other
structure of its closure or regulation.
(3) In this section—
authorised officer means—
(a) a person who holds a specific authority from the Regulator for the
purposes of this section; or
(b) a person who holds a specific authority issued by an accredited person
for the purposes of this section.
201—Use of force
A power conferred by this Law to enter railway premises, or to do anything
in or on railway premises, may not be exercised unless the rail safety officer
or a person assisting a rail safety officer proposing to exercise the power,
uses no more force than is reasonably necessary to effect the entry or to do the
thing for which the entry is effected.
202—Power to use force against persons to be
exercised only by police officers
A provision in this Law that authorises a person to use reasonable force
does not authorise a person who is not a police officer to use force against
another person.
Part 6—Exemptions
Division 1—Ministerial
exemptions
203—Ministerial exemptions
(1) The Minister
may, after consultation with the Regulator, by notice in the Gazette, grant
exemptions from this Law or specified provisions of this Law in respect of
railway operations carried out, or proposed to be carried out, in this
jurisdiction—
(a) to a person specified by the Minister; or
(b) in relation to a railway specified by the Minister.
(2) The Minister may grant an exemption under
subsection (1)—
(a) on conditions specified in the notice; and
(b) for a period (not exceeding 3 months) specified in the
notice.
(3) The Minister may, at any time, by further notice in the
Gazette—
(a) vary or revoke an exemption; or
(b) vary or revoke a condition of an exemption.
(4) A person who has been granted an exemption under this section who
contravenes a condition imposed on the exemption is guilty of an
offence.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
Division 2—Exemptions granted by
Regulator
Subdivision 1—Interpretation
204—Interpretation
In this Division—
designated provision of this Law means a provision
of—
(a)
Part 3
Division 4; or
(b)
Part 3
Division 5; or
(c)
Part 3
Division 6 Subdivision 3.
Subdivision 2—Procedures for conferring
exemptions
205—Application for exemption
(1) A rail transport operator may apply to the Regulator for an exemption
from a designated provision of this Law in respect of specified railway
operations carried out, or proposed to be carried out, by or on behalf of the
operator.
(2) An application must be made in the manner and form approved by the
Regulator and—
(a) must specify the scope and nature of the railway operations in respect
of which an exemption is sought; and
(b) if the railway operations include the operation or movement of rolling
stock on a railway—must include details about the operation or movement of
rolling stock; and
(c) must contain the prescribed information; and
(d) must be accompanied by the prescribed application fee.
(3) The Regulator may require a rail transport operator who has applied
for an exemption—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
206—What applicant must
demonstrate
The Regulator must not grant an exemption to an applicant unless satisfied
that the applicant has demonstrated—
(a) that the applicant is, or is to be, a rail infrastructure manager or
rolling stock operator in relation to the railway operations in respect of which
the exemption is sought; and
(i) has the financial capacity, or has public risk insurance arrangements,
to meet reasonable potential accident liabilities arising from the railway
operations; and
(ii) has complied with the requirements prescribed by the national
regulations (if any) for the purposes of this section.
207—Determination of
application
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
section 206—notify
the applicant that an exemption from a designated provision of this Law has been
granted, with or without conditions or restrictions; or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) An exemption under this Division is subject to—
(a) any conditions or restrictions prescribed by the national regulations
for the purposes of this section that are applicable to the exemption;
and
(b) any other condition or restriction imposed on the exemption by the
Regulator.
(3) Notification
under this section—
(a) must be in writing and given to the applicant; and
(b) if the exemption has been granted, must specify—
(i) the prescribed details of the applicant; and
(ii) the scope and nature of the railway operations, and the manner in
which they are to be carried out, in respect of which the exemption is granted;
and
(iii) any condition
or restriction imposed by the Regulator under this section on the exemption;
and
(iv) any other prescribed information; and
(c) if a condition
or restriction has been imposed on the exemption, must include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under
Part 7; and
(d) if the application has been refused must include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to an application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
Subdivision 3—Variation of an
exemption
208—Application for variation of an
exemption
(1) A rail transport operator who has been granted an exemption under this
Division may, at any time, apply to the Regulator for a variation of the
exemption.
(2) A rail transport operator who has been granted an exemption under this
Division must apply to the Regulator for a variation of the exemption
if—
(a) the applicant proposes to vary the scope and nature of the railway
operations in respect of which the exemption has been granted; or
(b) any other variation is proposed in respect of the railway operations
in respect of which the exemption has been granted that should be reflected in
the exemption.
(3) An application for variation must be made in the manner and form
approved by the Regulator and—
(a) must specify the details of the variation being sought; and
(b) must contain the prescribed information; and
(c) must be accompanied by the prescribed application fee.
(4) The Regulator may require an applicant for a
variation—
(a) to supply further information requested by the Regulator;
and
(b) to verify by statutory declaration any information supplied to the
Regulator.
209—Determination of application for
variation
(1) Subject to this
section, the Regulator must, within the relevant period—
(a) if the Regulator is satisfied as to the matters referred to in
section 206 (so far as
they are applicable to the proposed variation)—notify the applicant that
the exemption has been varied, with or without conditions or restrictions;
or
(b) if the Regulator is not so satisfied—notify the applicant that
the application has been refused.
(2) Notification under this section—
(a) must be in writing and given to the applicant; and
(b) if the exemption has been varied, must specify—
(i) the prescribed details of the applicant; and
(ii) the variation to the exemption so far as it applies to the scope and
nature of the railway operations, or the manner in which they are to be carried
out; and
(iii) any conditions and restrictions imposed by the Regulator on the
exemption as varied; and
(iv) any other prescribed information; and
(c) if a condition or restriction has been imposed on the exemption as
varied, must include—
(i) the reasons for imposing the condition or restriction; and
(ii) information about the right of review under
Part 7; and
(d) if the application has been refused, must include—
(i) the reasons for the decision to refuse to grant the application;
and
(ii) information about the right of review under
Part 7; and
(e) if the relevant period in relation to an application has been
extended, must include information about the right of review under
Part 7.
relevant period, in relation to an application,
means—
(a) 6 months after the application was received by the Regulator;
or
(b) if the Regulator requested further information, 6 months, or such
other period, as is agreed between the Regulator and the applicant, after the
Regulator receives the last information so requested; or
(c) if the
Regulator, by written notice given to the applicant before the expiry of the
relevant 6 months, specifies another period, that period,
whichever is the longer.
210—Prescribed conditions and
restrictions
An exemption granted to a rail transport operator that is varied under this
Division is subject to any conditions or restrictions prescribed by the national
regulations that are applicable to the exemption as varied.
211—Variation of conditions and
restrictions
(1) A rail transport operator who has been granted an exemption under this
Division may, at any time, apply to the Regulator for a variation of a condition
or restriction imposed by the Regulator to which the exemption is
subject.
(2) An application for variation of a condition or restriction must be
made as if it were an application for variation of an exemption (and
section 208 applies
accordingly).
(3) The Regulator
must consider the application and, if satisfied as to the matters referred to in
sections 206 and
207 (so far as they are
applicable to the proposed variation), notify the applicant in accordance with
the provisions of this Division applicable to the granting of an exemption (so
far as is practicable) that the variation has been granted or refused.
(4) Notification under
subsection (3)
that a variation has been refused must include the reasons for the decision to
refuse to grant the variation and information about the right of review under
Part 7.
212—Regulator may make changes to conditions or
restrictions
(1) The Regulator
may, subject to this section, at any time, vary or revoke a condition or
restriction imposed by the Regulator on an exemption granted to a rail transport
operator under this Division or impose a new condition or restriction.
(2) Before taking
action under this section, the Regulator must—
(a) give the rail transport operator written notice of the action that the
Regulator proposes to take; and
(b) allow the
operator to make written representations about the intended action within 28
days (or any other period that the Regulator and the operator agree on);
and
(c) consider any representations made under
paragraph (b)
and not withdrawn.
(3) The Regulator
must, by written notice given to the rail transport operator,
provide—
(a) details of any action taken under this section; and
(b) a statement of
reasons for any action taken under this section; and
(c) information about the right of review under
Part 7.
Subdivision 4—Revocation or suspension of an
exemption
213—Revocation or suspension of an
exemption
(1) This section applies in respect of a rail transport operator who has
been granted an exemption under this Division if—
(a) the Regulator considers that the operator—
(i) is no longer able to demonstrate to the satisfaction of the Regulator
the matters referred to in
section 206 or to
satisfy the conditions, or to comply with the restrictions, of the exemption;
or
(ii) is not managing the rail infrastructure, or is not operating rolling
stock in relation to any rail infrastructure, to which the exemption relates and
has not done so for at least the preceding 12 months; or
(b) the operator contravenes this Law.
(a) suspend the exemption for a period determined by the Regulator;
or
(b) revoke the exemption with immediate effect or with effect from a
specified future date; or
(c) impose conditions or restrictions on the exemption; or
(d) vary conditions or restrictions to which the exemption is
subject.
(3) Before making a
decision under
subsection (2),
the Regulator—
(a) must notify the
rail transport operator in writing—
(i) that the Regulator is considering making a decision under
subsection (2)
of the kind, and for the reasons, specified in the notice; and
(ii) that the
person may, within 28 days or such longer period as is specified in the
notice, make written representations to the Regulator showing cause why the
decision should not be made; and
(b) must consider any representations made under
paragraph (a)(ii)
and not withdrawn.
(4) If the
Regulator suspends or revokes the exemption, the Regulator must include in the
notice of suspension or revocation the reasons for the suspension or revocation
and information about the right of review under
Part 7.
(5) The Regulator may withdraw a suspension of the exemption by written
notice given to the rail transport operator.
Subdivision 5—Penalty for breach of condition
or restriction
214—Penalty for breach of condition or
restriction
A rail transport operator who has been granted an exemption under this
Division must not contravene a condition or restriction of the exemption
applying under this Division.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
Part 7—Review of
decisions
215—Reviewable decisions
(1) The following table sets out—
(a) decisions made under this Law that are reviewable in accordance with
this Part (reviewable decisions); and
(b) who is eligible to apply for review of a reviewable decision (the
eligible person in relation to the reviewable decision).
Item |
Provision under which reviewable decision is made |
Eligible person in relation to reviewable decision |
---|---|---|
1 |
Section 67
(refusal to accredit or imposing conditions or restrictions on
accreditation) |
A rail transport operator whose application for accreditation is refused or
is subject to conditions or restrictions |
2 |
Section 67
(extending the period for determining an application) |
A rail transport operator who has applied for accreditation |
3 |
Section 69
(refusal to grant variation of accreditation or imposing a condition or
restriction) |
A rail transport operator whose application for variation of accreditation
is refused |
4 |
Section 69
(grant of variation of accreditation subject to conditions or
restrictions) |
A rail transport operator whose accreditation is varied subject to a
condition or restriction |
5 |
Section 69
(extending the period for determining an application for variation) |
A rail transport operator who has applied for variation of
accreditation |
6 |
Section 71
(refusal to grant variation of a condition or restriction of
accreditation) |
A rail transport operator whose application for variation of a condition or
restriction is refused |
7 |
Section 72
(variation or revocation of a condition or restriction, or imposition of a new
condition or restriction) |
A rail transport operator whose conditions or restrictions of accreditation
are changed |
8 |
Section 73
(revocation or suspension of accreditation) |
A rail transport operator whose accreditation is revoked or
suspended |
9 |
Section 74
(immediate suspension) |
A rail transport operator whose accreditation is suspended |
10 |
Section 74
(extension of immediate suspension) |
A rail transport operator whose accreditation is suspended |
11 |
Section 75
(surrender of accreditation) |
An accredited person whose application for surrender of accreditation has
been refused |
12 |
Section 86 (refusal
to register or imposing conditions or restrictions on registration) |
A rail infrastructure manager whose application for registration is refused
or is subject to conditions or restrictions |
13 |
Section 86
(extending the period for determining an application) |
A rail infrastructure manager who has applied for registration |
14 |
Section 88 (refusal
to grant variation of registration or imposing a condition or
restriction) |
A rail infrastructure manager whose application for variation of
registration is refused |
15 |
Section 88 (grant
of variation of registration subject to conditions or restrictions) |
A rail infrastructure manager whose registration is varied subject to a
condition or restriction |
16 |
Section 88
(extending the period for determining an application for variation) |
A rail infrastructure manager who has applied for variation of
registration |
17 |
Section 90 (refusal
to grant variation of a condition or restriction of registration) |
A rail infrastructure manager whose application for variation of a
condition or restriction is refused |
18 |
Section 91
(variation or revocation of a condition or restriction, or imposition of a new
condition or restriction) |
A rail infrastructure manager whose conditions or restrictions of
registration are changed |
19 |
Section 92
(revocation or suspension of registration) |
A rail infrastructure manager whose registration is revoked or
suspended |
20 |
Section 93
(immediate suspension) |
A rail infrastructure manager whose registration is suspended |
21 |
Section 93
(extension of immediate suspension) |
A rail infrastructure manager whose registration is suspended |
22 |
Section 94
(surrender of registration) |
A registered person whose application for surrender of registration has
been refused |
23 |
Section 104
(direction to amend safety management system) |
A rail transport operator given a direction to amend a safety management
system |
24 |
Section 162
(forfeiture of seized thing) |
A person who is entitled to the thing |
25 |
Section 175
(decision to serve an improvement notice) |
A person on whom an improvement notice is served A rail transport operator whose interests are affected by the
decision |
26 |
Section 178
(extension of time for compliance with improvement notice) |
A person on whom an improvement notice is served A rail transport operator whose interests are affected by the
decision |
27 |
Section 179
(decision to serve a prohibition notice) |
A person on whom a prohibition notice is served A rail transport operator whose interests are affected by the
decision |
28 |
Section 182
(decision to serve a non-disturbance notice) |
A person on whom a non-disturbance notice is served A rail transport operator whose interests are affected by the
decision |
29 |
Section 185
(decision to issue subsequent non-disturbance notice) |
A person on whom a subsequent non-disturbance notice is served A rail transport operator whose interests are affected by the
decision |
30 |
Section 198
(direction to take specified action following report) |
A rail transport operator given a direction to take specified
action |
31 |
Section 199
(decision to serve notice giving a direction) |
A person given a direction to stop, alter or not to commence works on or
near a railway A rail transport operator given a direction to stop, alter or not to
commence railway operations A person given a direction to alter, demolish or take away work |
32 |
Section 205
(refusal to exempt or imposing conditions or restrictions on
exemption) |
A rail transport operator whose application for exemption is refused or is
subject to conditions or restrictions |
33 |
Section 205
(extending the period for determining an application) |
A rail transport operator who has applied for an exemption |
34 |
Section 209
(refusal to grant variation of exemption or imposing a condition or
restriction) |
A rail transport operator whose application for variation of an exemption
is refused |
35 |
Section 209 (grant
of variation of exemption subject to conditions or restrictions) |
A rail transport operator whose exemption is varied subject to a condition
or restriction |
36 |
Section 209
(extending the period for determining an application for variation) |
A rail transport operator who has applied for variation of an
exemption |
37 |
Section 211
(refusal to grant variation of a condition or restriction of
exemption) |
A rail transport operator whose application for variation of a condition or
restriction is refused |
38 |
Section 212
(variation or revocation of a condition or restriction, or imposition of a new
condition or restriction) |
A rail transport operator whose conditions or restrictions of an exemption
are changed |
39 |
Section 213
(revocation or suspension of exemption) |
A rail transport operator whose exemption is revoked or suspended |
(2) Unless the contrary intention appears, a reference in this Part to a
decision includes a reference to—
(a) include information about the right to a review under
Part 7 of the decision
to serve the notice; or
(b) state that the notice is served under this section; or
(c) making, suspending, revoking or refusing to make a determination or
decision; or
(d) giving, suspending, revoking or refusing to give a direction,
approval, consent or permission; or
(e) issuing, suspending, revoking or refusing to issue an accreditation or
a registration, or to grant an exemption; or
(f) imposing a condition; or
(g) making a declaration, demand or requirement; or
(h) retaining, or refusing to deliver up, an article; or
(i) doing or refusing to do any other act or thing.
(3) In this section—
person entitled to a thing means the person from whom it was
seized unless that person is not entitled to possess it, in which case it means
the owner of the thing.
216—Review by Regulator
(a) in relation to
a reviewable decision made by the Regulator—may, within 28 days after
the decision was made, apply to the Regulator for a review of the
decision;
(b) in relation to a reviewable decision other than a decision made by the
Regulator—may apply to the Regulator for review of the decision
within—
(i) 28 days after the day on which the decision first came to the
eligible person's notice; or
(ii) such longer period as the Regulator allows.
(2) The Regulator may appoint a person to review decisions on applications
under
subsection (1)(a)
(who must not be the person who made the decision the subject of the
review).
(3) An application for a review must be in the form approved (in writing)
by the Regulator.
(4) If an
application is made to the Regulator in accordance with this section, the
Regulator may make a decision—
(a) to affirm or vary the reviewable decision; or
(b) to set aside the reviewable decision and substitute another decision
that the Regulator considers appropriate.
(5) The Regulator
must give a written notice to the applicant setting out—
(a) the Regulator's decision under
subsection (4)
and the reasons for the decision; and
(b) the findings on material questions of fact that led to the decision,
referring to the evidence or other material on which those findings were
based,
and must do so within 14 days after the application is made or, if the
reviewable decision was made under
Division 1,
Division 2 or
Division 3 of
Part 5, within
7 days after the application is made.
(6) If the Regulator has not notified an applicant of a decision in
accordance with
subsection (5),
the Regulator is taken to have made a decision to affirm the reviewable
decision.
(7) An application under this section does not affect the operation of the
reviewable decision or prevent the taking of any action to implement it unless
the Regulator, on the Regulator's own initiative or on the application of the
applicant for review, stays the operation of the decision (not being an
immediate suspension of accreditation or registration, or a prohibition notice)
pending the determination of the review.
(8) The Regulator
must make a decision on an application for a stay by the end of the next
business day following the day on which the application is made.
(9) If the Regulator has not made a decision in accordance with
subsection (8),
the Regulator is taken to have made a decision to grant a stay.
(10) The Regulator may attach any conditions to a stay of the operation of
a reviewable decision that the Regulator considers appropriate.
217—Appeals
(1) A person may appeal to the court against—
(a) a reviewable decision made by the Regulator; or
(b) a decision made, or taken to have been made, by the Regulator under
section 216 in respect
of a reviewable decision (including a decision concerning a stay of the
operation of the reviewable decision),
if the person is an eligible person in relation to the reviewable
decision.
(2) An appeal must be instituted within 28 days of the making of the
decision appealed against.
Part 8—General liability and evidentiary
provisions
Division 1—Legal
proceedings
Subdivision 1—General
matters
218—Period within which proceedings for offences
may be commenced
(1) This section
applies to an offence against this Law, other than—
(a) an offence prescribed by the national regulations for the purposes of
this section; or
(b) an offence in respect of which proceedings may only be commenced
within a period of less than 2 years after its alleged
commission.
(2) Despite
anything to the contrary in an Act, proceedings for an offence against this Law
to which this section applies may be commenced within—
(a) the period of 2 years after commission of the alleged offence;
or
(b) if evidence of an alleged offence comes to light as a result of an
inquiry by a prescribed authority—within 1 year after the report of the
inquiry is published; or
(c) if a rail safety undertaking has been given in relation to the
offence—within 6 months after—
(i) the undertaking is contravened; or
(ii) it comes to the notice of the Regulator that the undertaking has been
contravened; or
(iii) the Regulator has agreed under
section 256 to the
withdrawal of the undertaking.
(3) A proceeding for a Category 1 offence may be brought after the
end of the applicable limitation period in
subsection (2)
if fresh evidence relevant to the offence is discovered and the court is
satisfied that the evidence could not reasonably have been discovered within the
relevant limitation period.
(4) In this section—
prescribed authority means—
(a) a coroner of a participating jurisdiction; or
(b) a commission of inquiry (by whatever name) established under a law of
a participating jurisdiction; or
(c) any other relevant authority established under a law of a
participating jurisdiction.
219—Multiple contraventions of rail safety duty
provision
(1) Two or more contraventions of a rail safety duty provision by a person
that arise out of the same factual circumstances may be charged as a single
offence or as separate offences.
(2) This section does not authorise contraventions of 2 or more rail
safety duty provisions to be charged as a single offence.
(3) A single penalty only may be imposed in respect of 2 or more
contraventions of a rail safety duty provision that are charged as a single
offence.
(4) In this section—
rail safety duty provision means a provision of
Part 3
Division 3.
220—Authority to take
proceedings
(1) Any legal
proceedings to recover any charge, fee or money due under this Law or the
national regulations in this jurisdiction may be taken only by the Minister or
the Regulator, or by a person authorised by the Minister or the Regulator for
the purpose, either generally or in any particular case.
(2) Any legal proceedings for an offence against this Law or the national
regulations in this jurisdiction may be taken only by the Minister or the
Regulator, or by a person authorised by the Minister or the Regulator for the
purpose, either generally or in any particular case.
(3) In any proceedings referred to in this section, the production of an
authority or consent purporting to be signed by the Minister or the Regulator is
to be evidence of the authority or consent without proof of the signature of the
Minister or the Regulator.
(4) The Minister or the Regulator may, for the purposes of this section,
authorise any person who is a member of a specified class of persons to take the
actions referred to in this section.
Subdivision 2—Imputing conduct to bodies
corporate
221—Imputing conduct to bodies
corporate
(1) For the
purposes of this Law, any conduct engaged in on behalf of a body corporate by an
employee, agent or officer of the body corporate acting within the actual or
apparent scope of his or her employment, or within his or her actual or apparent
authority, is conduct also engaged in by the body corporate.
(2) If an offence under this Law requires proof of knowledge, intention or
recklessness, it is sufficient in proceedings against a body corporate for that
offence to prove that the person referred to in
subsection (1)
had the relevant knowledge, intention or recklessness.
(3) If for an offence against this Law mistake of fact is relevant to
determining liability, it is sufficient in proceedings against a body corporate
for that offence if the person referred to in
subsection (1)
made that mistake of fact.
Subdivision 3—Records and
evidence
222—Records and evidence from
records
(1) A certificate purporting to be signed by the Regulator and certifying
that—
(a) on a date specified in the certificate; or
(b) during any period so specified,
the particulars set out in the certificate as to any matter required to be
recorded in the National Rail Safety Register under
section 42 did or did
not appear on or from the Register is, for the purposes of any legal
proceedings, evidence of what it certifies.
(2) Such a certificate is admissible in any proceedings—
(a) without proof of the signature of the Regulator; and
(b) without production of any record or document on which the certificate
is founded.
223—Certificate evidence
A statement in a certificate purporting to be issued by the Regulator, a
rail safety officer or a police officer as to any matter that appears in, or can
be calculated from, records kept or accessed by the Regulator is admissible in
any proceedings and is evidence of the matter.
224—Proof of appointments and signatures
unnecessary
(1) For the purposes of this Law and the national regulations, it is not
necessary to prove the appointment of an office holder.
(2) For the purposes of this Law, a signature purporting to be the
signature of an office holder is evidence of the signature it purports to
be.
(3) In this section—
office holder means—
(a) a member of ONRSR; or
(b) the head of the police force or police service of any participating
jurisdiction; or
(c) a rail safety officer; or
(d) an authorised person; or
(e) a police officer of a participating jurisdiction.
Division 2—Discrimination against
employees
225—Dismissal or other victimisation of
employee
(1) This section applies to—
(a) an employer who dismisses an employee, injures an employee in the
employment of the employer or alters the position of an employee to the
employee's detriment; and
(b) an employer who threatens to do any of those things to an employee;
and
(c) an employer or prospective employer who refuses or fails to offer
employment to a prospective employee, or treats a prospective employee less
favourably than another prospective employee would be treated in offering terms
of employment.
(2) The employer or
prospective employer is guilty of an offence if the employer or prospective
employer engaged in that conduct because the employee or prospective employee
(as the case may be)—
(a) has assisted or
has given any information to a public agency in respect of a breach or alleged
breach of an Australian rail safety law; or
(b) has made a
complaint about a breach or alleged breach of an Australian rail safety law to
the employer, a fellow employee, union, public authority or public official;
or
(c) assists or has
assisted, or gives or has given any information to, a public agency in respect
of a breach or alleged breach of an Australian rail safety law; or
(d) has made a
complaint about a breach or alleged breach of an Australian rail safety law to a
former employer, former fellow employee, union, public authority or public
official.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(3) An employer or prospective employer may be guilty of an offence
against
subsection (2)
only if the reason mentioned in
subsection (2)(a),
(b),
(c) or
(d) is the dominant
reason why the employer or prospective employer engaged in the
conduct.
(4) In proceedings for an offence against
subsection (2),
if all the facts constituting the offence other than the reason for the
defendant's conduct are proved, the defendant bears the onus of proving that the
reason alleged in the charge was not the dominant reason why the defendant
engaged in the conduct.
(5) If an employer or prospective employer is convicted or found guilty of
an offence against this section, the court may (in addition to imposing a
penalty) make either or both of the following orders:
(a) an order that the offender pay (within a specified period) such
damages to the employee or prospective employee against whom the offender
discriminated as the court considers appropriate to compensate him or
her;
(b) an order that—
(i) the employee be reinstated or re-employed in his or her former
position or, if that position is not available, in a similar position;
or
(ii) the prospective employee be employed in the position for which he or
she had applied or a similar position.
(6) In this section—
employee includes an individual who works under a contract
for service;
public authority includes ONRSR, the Regulator, a rail safety
officer or police officer, and a police officer of another
jurisdiction.
Division 3—Offences
226—Offence to give false or misleading
information
(1) A person must not give information in complying or purportedly
complying with this Law that the person knows—
(a) to be false or misleading in a material particular; or
(b) omits any matter or thing without which the information is
misleading.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(2) A person must
not produce a document in complying or purportedly complying with this Law that
the person knows to be false or misleading in a material particular
without—
(a) indicating the respect in which it is false or misleading and, if
practicable, providing correct information; or
(b) accompanying the document with a written certificate—
(i) stating that the document is, to the knowledge of the first-mentioned
person, false or misleading in a material particular; and
(ii) setting out, or referring to, the material particular in which the
document is, to the knowledge of the first-mentioned person, false or
misleading.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
(3)
Subsection (2) places
an evidential burden on the accused to show that the accused had indicated the
extent to which the document was false or misleading or that the accompanying
document sufficiently explained the extent to which the document was false or
misleading.
227—Not to interfere with train, tram
etc
(1) A person must
not, without either the permission of an authorised officer or reasonable
excuse—
(a) move or attempt to move; or
(b) interfere or attempt to interfere with; or
(c) disable, or attempt to disable; or
(d) operate or attempt to operate,
any equipment, rail infrastructure or rolling stock owned or operated by a
rail transport operator.
Maximum penalty: $10 000.
(2)
Subsection (1) places
an evidential burden on the accused to show a reasonable excuse.
(3) In this section—
authorised officer means the rail transport operator, a rail
safety officer or a police officer.
228—Applying brake or emergency
device
(1) A person must
not, without reasonable excuse—
(a) apply any brake or make use of any emergency device fitted to a train
or tram; or
(b) make use of any emergency device on railway premises.
Maximum penalty: $10 000.
Example—
Emergency devices include an emergency button on a station communication
board or on an escalator.
(2)
Subsection (1) places
an evidential burden on the accused to show a reasonable excuse.
229—Stopping a train or tram
(1) A person must
not, without reasonable excuse, cause or attempt to cause a train or tram in
motion to be stopped.
Maximum penalty: $10 000.
(2)
Subsection (1) places
an evidential burden on the accused to show a reasonable excuse.
Division 4—Court-based
sanctions
230—Commercial benefits order
(1) The court that finds a person guilty of an offence against this Law
may, on the application of the prosecutor or the Regulator, make an order under
this section.
(2) The court may make a commercial benefits order requiring the person to
pay, as a fine, an amount not exceeding 3 times the amount estimated by the
court to be the gross commercial benefit that—
(a) was received or receivable, by the person or by an associate of the
person, from commission of the offence; and
(b) in the case of a journey that was interrupted or not commenced because
of action taken by a rail safety officer in connection with commission of the
offence, would have been received or receivable, by the person or by an
associate of the person—from commission of the offence had the journey
been completed.
(3) In estimating the gross commercial benefit that was or would have been
received or receivable from commission of the offence, the court may take into
account—
(a) benefits of any kind, whether monetary or otherwise; and
(b) monetary savings or a reduction in any operating or capital
expenditure of any kind achieved because of commission of the offence;
and
(c) any other matters that it considers relevant, including (for
example)—
(i) the value per tonne or per kilometre of the carriage of the goods
involved in the offence as freight; and
(ii) the distance over which any such goods were or were to be
carried.
(4) However, in estimating the gross commercial benefit that was or would
have been received or receivable from commission of the offence, the court is
required to disregard any costs, expenses or liabilities incurred by the person
or by an associate of the person.
(5) Nothing in this section prevents the court from ordering payment of an
amount that is—
(a) less than 3 times the estimated gross commercial benefit;
or
(b) less than the estimated gross commercial benefit.
(6) For the
purposes of this section, a person is an associate of another
if—
(a) 1 is a spouse, de facto partner, parent, brother, sister or child of
the other; or
(b) they are members of the same household; or
(c) they are partners; or
(d) they are both trustees or beneficiaries of the same trust, or 1 is a
trustee and the other is a beneficiary of the same trust; or
(e) 1 is a body corporate and the other is a director or member of the
governing body of the body corporate; or
(f) 1 is a body corporate (other than a public company whose shares are
listed on a stock exchange) and the other is a shareholder in the body
corporate; or
(g) they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(h) a chain of relationships can be traced between them under any 1 or
more of the above paragraphs.
(7) For the purposes of
subsection (6),
a beneficiary of a trust includes an object of a trust.
231—Supervisory intervention
order
(1) The court that finds a person guilty of an offence against this Law
may, on the application of the prosecutor or the Regulator, if the court
considers the person to be a systematic or persistent offender against the
Australian rail safety laws, make an order under this section.
(2) The court may make a supervisory intervention order requiring the
person (at the person's own expense and for a specified period not exceeding 1
year) to do all or any of the following:
(a) to do specified things that the court considers will improve the
person's compliance with this Law or specified aspects of this Law, including
(for example) the following:
(i) appointing or removing staff to or from particular activities or
positions;
(ii) training and supervising staff;
(iii) obtaining expert advice as to maintaining appropriate
compliance;
(iv) installing monitoring, compliance, managerial or operational
equipment;
(v) implementing monitoring, compliance, managerial or operational
practices, systems or procedures;
(b) to conduct specified monitoring, compliance, managerial or operational
practices, systems or procedures subject to the direction of the Regulator or a
person nominated by the Regulator;
(c) to furnish compliance reports to the Regulator or the court or both as
specified in the order;
(d) to appoint a person to have responsibilities—
(i) to assist the person in improving compliance with this Law or
specified aspects of this Law; and
(ii) to monitor the person's performance in complying with this Law or
specified aspects of this Law and in complying with the requirements of the
order; and
(iii) to furnish compliance reports to the Regulator or the court or both
as specified in the order.
(3) The court may specify matters that are to be dealt with in compliance
reports and the form and manner in which, and frequency with which, compliance
reports are to be prepared and furnished.
(4) The court may require that compliance reports or aspects of compliance
reports be made public, and may specify the form and manner in which, and
frequency with which, they are to be made public.
(5) The court may only make a supervisory intervention order if it is
satisfied that the order is capable of improving the person's ability or
willingness to comply with this Law, having regard to—
(a) the offences against Australian rail safety laws of which the person
has been previously found guilty; and
(b) the offences against Australian rail safety laws for which the person
has been proceeded against by way of unwithdrawn expiation notices or
infringement notices; and
(c) any other offences or other matters that the court considers to be
relevant to the conduct of the person in connection with railway
operations.
(6) The order may direct that any other penalty or sanction imposed for
the offence by the court is suspended until the court determines that there has
been a substantial failure to comply with the order.
(7) A court that has power to make supervisory intervention orders may
revoke or amend a supervisory intervention order on the application
of—
(a) the Regulator; or
(b) the person in respect of whom the order was made, but in that case
only if the court is satisfied that there has been a change of circumstances
warranting revocation or amendment.
(8) A person who is
subject to a requirement of a supervisory intervention order must not engage in
conduct that results in a contravention of the requirement.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(9) In this section—
compliance report, in relation to a person in respect of whom
a supervisory intervention order is made, means a report relating
to—
(a) the performance of the person in complying with—
(i) the rail safety laws or aspects of rail safety laws specified in the
order; and
(ii) the requirements of the order; and
(b) without limiting the above—
(i) things done by the person to ensure that any failure by the person to
comply with the rail safety laws or the specified aspects of the rail safety
laws does not continue; and
(ii) the results of those things having been done.
232—Exclusion orders
(1) The court that finds a person guilty of an offence against this Law
may, on the application of the prosecutor or the Regulator, if the court
considers the person to be a systematic or persistent offender against an
Australian rail safety law, make an order under this section.
(2) For the purpose of restricting opportunities for the person to commit
or be involved in commission of further offences against this Law, the court
may, if it considers it appropriate to do so, make an exclusion order
prohibiting the person, for a specified period, from—
(a) managing rail infrastructure, or operating rolling stock, or managing
or operating a particular type of rail infrastructure or rolling stock;
or
(b) being a director, secretary or officer concerned in the management of
a body corporate involved in managing rail infrastructure that is in this
jurisdiction or operating rolling stock in this jurisdiction; or
(c) being involved in managing rail infrastructure that is in this
jurisdiction or operating rolling stock in this jurisdiction except by driving a
train or rolling stock.
(3) The court may only make an order under this section if it is satisfied
that the person should not continue the things the subject of the proposed order
and that a supervisory intervention order is not appropriate, having regard
to—
(a) the offences against an Australian rail safety law of which the person
has previously been found guilty; and
(b) the offences against an Australian rail safety law for which the
person has been proceeded against by way of unwithdrawn expiation notices or
infringement notices; and
(c) any other offences or other matters that the court considers to be
relevant to the conduct of the person in connection with railway
operations.
(4) A court that has power to make an exclusion order may revoke or amend
an exclusion order on the application of—
(a) the Regulator; or
(b) the person in respect of whom the order was made, but in that case
only if the court is satisfied that there has been a change of circumstances
warranting revocation or amendment.
(5) A person who is subject to an exclusion order must not engage in
conduct that results in a contravention of the order.
Maximum penalty:
(a) in the case of an individual—$20 000;
(b) in the case of a body corporate—$100 000.
Part 9—Infringement
notices
233—Meaning of infringement penalty
provision
For the purposes of this Law, an infringement penalty
provision is—
(a) a provision of this Law specified in an item in the Table at the foot
of this section; or
(b) a provision of this Law (other than an offence provision) or the
national regulations that is prescribed by the national regulations to be an
infringement penalty provision.
Item |
Infringement penalty provision |
Infringement penalty |
---|---|---|
1 |
Section 66(3)
(Regulator may direct applicants to coordinate in applications) |
$1 000 |
2 |
Section 66(4)
(Regulator may direct applicants to coordinate in applications) |
$1 000 |
3 |
Section 81(1)
(Keeping and making available records for public inspection) |
$1 000 |
4 |
Section 81(2)
(Keeping and making available records for public inspection) |
$1 000 |
5 |
Section 98(2)
(Offences relating to registration) |
$1 000 |
6 |
Section 98(3)
(Offences relating to registration) |
$1 000 |
7 |
Section 102
(Review of safety management system) |
$2 000 |
8 |
Section 103
(Safety performance reports) |
$1 000 |
9 |
Section 111(1)
(Register of interface agreements) |
$1 000 |
10 |
Section 111(2)
(Register of interface agreements) |
$1 000 |
11 |
Section 117(6)
(Assessment of competence) |
$2 000 |
12 |
Section 118(1)
(Identification of rail safety workers) |
$2 000 |
13 |
Section 118(2)
(Identification of rail safety workers) |
$500 |
14 |
Section 120(2) (Power
of Regulator to obtain information from rail transport operators) |
$2 000 |
15 |
Section 120(3) (Power
of Regulator to obtain information from rail transport operators) |
$2 000 |
16 |
Section 131
(Disclosure of train safety recordings) |
$2 000 |
17 |
Section 136(3)
(Identity cards) |
$1 000 |
18 |
Section 149(2)
(Securing a site) |
$2 000 |
19 |
Section 231(8)
(Supervisory intervention order) |
$2 000 |
20 |
Section 254
(Compliance with rail safety undertaking) |
$2 000 |
234—Power to serve notice
(1) The Regulator may serve an infringement notice on a person that the
Regulator has reason to believe has breached an infringement penalty
provision.
(2) The Regulator must, however, serve an infringement notice not later
than 12 months after the date on which the Regulator forms a belief that
there has been a breach of an infringement penalty provision.
(3) An infringement notice may be served on an individual—
(a) by delivering it personally to the individual; or
(b) by sending it by post addressed to the individual to his or her usual
or last known place of residence or business.
(4) An infringement notice may be served on a person that is a body
corporate—
(a) by delivering it personally to the registered office or usual or last
known place of business of the body corporate; or
(b) by sending it by post addressed to the body corporate to its
registered office or usual or last known place of business.
235—Form of notice
An infringement notice must state—
(a) the date of the notice; and
(b) that the alleged breach is a breach of the infringement penalty
provision; and
(c) the nature, and a brief description, of the alleged breach;
and
(d) the date, time and place of the alleged breach; and
(e) the infringement penalty for the alleged breach; and
(f) the manner in which the infringement penalty may be paid;
and
(g) the time (being not less than 28 days after the date on which the
notice is served) within which the infringement penalty must be paid;
and
(h) that, if the amount of the infringement penalty is paid before the end
of the time specified in the notice, proceedings will not be instituted in
respect of the alleged breach by the Regulator unless the notice is withdrawn
before the end of that time in accordance with
section 238;
and
(i) that the person is entitled to disregard the notice and defend any
proceedings in respect of the infringement penalty provision; and
(j) any other particulars prescribed by the national
regulations.
236—Regulator cannot institute proceedings while
infringement notice on foot
On serving an infringement notice under this Part, the Regulator must not
institute a proceeding in respect of the breach for which the infringement
notice was served if—
(a) the time for payment stated in the infringement notice has not
expired; and
(b) the infringement notice has not been withdrawn by the Regulator in
accordance with
section 238.
237—Late payment of penalty
The Regulator may accept payment of the infringement penalty even after the
expiration of the time for payment stated in the infringement notice
if—
(a) a proceeding has not been instituted in respect of the breach to which
the infringement penalty relates; and
(b) the infringement notice has not been withdrawn by the Regulator in
accordance with
section 238.
238—Withdrawal of notice
(1) The Regulator may withdraw an infringement notice at any time before
the end of the time for payment specified in the notice by serving a withdrawal
notice on the person served with the infringement notice.
(2) A withdrawal notice may be served on an individual—
(a) by delivering it personally to the individual; or
(b) by sending it by post addressed to the individual to his or her usual
or last known place of residence or business.
(3) A withdrawal notice may be served on a person that is a body
corporate—
(a) by delivering it personally to the registered office or usual or last
known place of business of the body corporate; or
(b) by sending it by post addressed to the body corporate to its
registered office or usual or last known place of business.
(4) An infringement notice may be withdrawn even if the infringement
penalty has been paid.
239—Refund of infringement
penalty
If an infringement notice is withdrawn in accordance with
section 238, the
amount of any infringement penalty paid must be refunded by the
Regulator.
240—Payment expiates breach of infringement penalty
provision
No proceedings may be taken by the Regulator against a person on whom an
infringement notice was served in respect of an alleged breach of an
infringement penalty provision if—
(a) the infringement penalty is—
(i) paid within the time for payment stated in the notice; and
(ii) not withdrawn by the Regulator within the time for payment stated in
the notice in accordance with
section 238;
or
(b) the infringement penalty is accepted in accordance with
section 237.
241—Payment not to have certain
consequences
The payment of an infringement penalty under this Part is not and must not
be taken to be an admission of a breach of an infringement penalty provision or
an admission of liability for the purpose of any proceeding instituted in
respect of the breach.
242—Conduct in breach of more than 1 infringement
penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more
infringement penalty provisions, an infringement notice may be served on the
person under this Part in relation to the breach of any 1 or more of those
provisions.
(2) However, the person is not liable to pay more than 1 infringement
penalty in respect of the same conduct.
Part 10—General
Division 1—Delegation by
Minister
243—Delegation by Minister
(1) The Minister
may delegate to a body or person (including a person for the time being holding
or acting in a specified office or position) a function or power of the Minister
under this Law.
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
Division 2—Confidentiality of
information
244—Confidentiality of
information
(1) This section applies if a person obtains information or gains access
to a document in exercising any power or function under this Law.
(2) The person must
not do any of the following:
(a) disclose to anyone else—
(i) the information; or
(ii) the contents of or information contained in the document;
(b) give access to the document to anyone else;
(c) use the information or document for any purpose.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(3)
Subsection (2) does
not apply to the disclosure of information, or the giving of access to a
document or the use of information or a document—
(a) about a person, with the person's consent; or
(b) that is necessary for the exercise of a function or power under this
Law; or
(c) that is made or given by ONRSR, a member of ONRSR, or a person
authorised by ONRSR, if ONRSR reasonably believes the disclosure, access or
use—
(i) is necessary for administering, or monitoring or enforcing compliance
with, this Law; or
(ii) is necessary for the administration or enforcement of an Act
prescribed by the national regulations; or
(iii) is necessary for the administration or enforcement of an Act or
other law, if the disclosure, access or use is necessary to lessen or prevent a
serious risk to public health or safety; or
(d) that is required by any court, tribunal, authority or person having
lawful authority to require the production of documents or the answering of
questions; or
(e) that is required or authorised under a law; or
(f) to a Minister of a participating jurisdiction.
(4) A person must not intentionally disclose to another person the name of
an individual who has made a complaint in relation to that other person
unless—
(a) the disclosure is made with the consent of the complainant;
or
(b) the disclosure is required under a law.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
(5) Nothing in this section prevents information being used to enable
ONRSR to accumulate aggregate data and to enable ONRSR to authorise use of the
aggregate data for the purposes of research or education.
Division 3—Law does not affect legal
professional privilege
245—Law does not affect legal professional
privilege
Nothing in this Law requires a person to produce a document that would
disclose information, or otherwise provide information, that is the subject of
legal professional privilege.
Division 4—Civil
liability
246—Civil liability not affected by
Part 3 Division 3
or
Division 6
Nothing in
Part 3
Division 3 or
Part 3 Division 6
is to be construed—
(a) as conferring a right of action in civil proceedings in respect of a
contravention (whether by act or omission) of any provisions of those Divisions;
or
(b) as conferring a defence to an action in civil proceedings or otherwise
affecting a right of action in civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises, or
civil proceedings may be taken, with respect to breaches of duties or
obligations imposed by the national regulations.
247—Protection from personal liability for persons
exercising functions
(1) A person who is
or was a protected person is not personally liable for anything done or omitted
to be done in good faith—
(a) in the exercise of a function under this Law; or
(b) in the reasonable belief that the act or omission was the exercise of
a function under this Law.
(2) Any liability resulting from an act or omission that would, but for
subsection (1),
attach to a protected person attaches instead to ONRSR.
(3) In this section—
protected person means any of the following:
(b) a member of a committee of ONRSR;
(c) a member of the staff of ONRSR;
(d) a rail safety officer;
(e) an authorised person;
(f) a person to whom ONRSR has delegated any of its functions;
(g) a person to
whom an entity, or the chief executive of an entity or department of government,
of a participating jurisdiction has subdelegated a function delegated to the
chief executive by ONRSR;
(h) a member of the
staff of an entity or department referred to in
paragraph (g);
(i) a person acting under the authority or direction of a person referred
to in
paragraphs (a) to
(h).
248—Immunity for reporting unfit rail safety
worker
(1) No action may
be taken against a person to whom this section applies who, in good faith,
reports to—
(c) a rail
transport operator; or
(d) any other
person who is employed or engaged by ONRSR or a rail transport
operator,
any information which discloses that a person is unfit to carry out rail
safety work or certain types of rail safety work or that it may be dangerous to
allow that person to carry out rail safety work or certain types of rail safety
work.
(2) No action may be taken against a person to whom this section applies
who, in good faith, reports—
(a) the results of a test or examination carried out under this Law or the
national regulations; or
(b) an opinion formed by that person as a result of conducting such a test
or examination,
to a person referred to in
subsection (1)(a),
(b),
(c) or
(d).
(3) In this section—
person to whom this section applies means—
(a) a person registered under the Health Practitioner Regulation
National Law to practise in the medical profession (other than as a
student); or
(b) a person registered under the Health Practitioner Regulation
National Law to practise in the nursing and midwifery profession as a nurse
(other than as a student); or
(c) a person registered under the Health Practitioner Regulation
National Law to practise in the optometry profession (other than as a
student); or
(d) a person registered under the Health Practitioner Regulation
National Law to practise in the physiotherapy profession (other than as a
student); or
(e) a person brought within the ambit of this definition by the national
regulations.
Division 5—Codes of
practice
249—Approved codes of practice
(1) The responsible
Ministers may approve a code of practice for the purposes of this Law and may
vary or revoke an approved code of practice.
(2) The responsible Ministers may only approve, vary or revoke a code of
practice under
subsection (1)
if that code of practice, variation or revocation was developed by a process
that involved consultation among—
(a) each participating jurisdiction; and
(b) rail transport operators and any relevant employer organisation;
and
(c) rail safety workers and any relevant union.
(3) A code of practice may apply, adopt or incorporate any matter
contained in a document formulated, issued or published by a person or body
whether—
(a) with or without modification; or
(b) as in force at a particular time or from time to time.
(4) An approval of a code of practice, or a variation or revocation of an
approved code of practice—
(a) is to be published on the NSW legislation website in accordance with
Part 6A of the Interpretation Act 1987 of New South Wales; and
(b) will commence on the day or days specified in the approval, variation
or revocation for its commencement (being not earlier than the date it is
published); and
(c) is to be published by the Regulator on ONRSR's website.
(5) The Regulator must ensure that a copy of—
(a) each code of practice that is currently approved; and
(b) each document applied, adopted or incorporated (to any extent) by an
approved code of practice,
is available for inspection by members of the public without charge at
ONRSR's office during normal business hours.
250—Use of codes of practice in
proceedings
(1) This section applies in a proceeding for an offence against this
Law.
(2) An approved code of practice is admissible in the proceeding as
evidence of whether or not a duty or obligation under this Law has been complied
with.
(3) The court may—
(a) have regard to the code as evidence of what is known about a hazard or
risk, risk assessment or risk control to which the code relates; and
(b) rely on the code in determining what is reasonably practicable in the
circumstances to which the code relates.
Note—
See
section 47
for the meaning of reasonably practicable.
(4) Nothing in this section prevents a person from introducing evidence of
compliance with this Law in a manner that is different from the code but
provides a standard of rail work safety that is equivalent to or higher than the
standard required in the code.
Division 6—Enforceable voluntary
undertakings
251—Enforceable voluntary
undertaking
(1) The Regulator may accept (by written notice) a written undertaking (a
rail safety undertaking) given by a person in connection with a
matter relating to a contravention or alleged contravention by the person of
this Law.
(2) A rail safety undertaking cannot be accepted for a contravention or
alleged contravention that is a Category 1 offence.
(3) The giving of a rail safety undertaking does not constitute an
admission of guilt by the person giving it in respect of the contravention or
alleged contravention to which the undertaking relates.
252—Notice of decisions and reasons for
decision
(1) The Regulator must give the person seeking to make a rail safety
undertaking written notice of the Regulator's decision to accept or reject the
undertaking and of the reasons for the decision.
(2) The Regulator must publish, on the Register, notice of a decision to
accept a rail safety undertaking and the reasons for that decision.
253—When a rail safety undertaking is
enforceable
A rail safety undertaking takes effect and becomes enforceable when the
Regulator's decision to accept the undertaking is given to the person who made
the undertaking or at any later date specified by the Regulator.
254—Compliance with rail safety
undertaking
A person must not contravene a rail safety undertaking made by that person
that is in effect.
Maximum penalty:
(a) in the case of an individual—$10 000;
(b) in the case of a body corporate—$50 000.
255—Contravention of rail safety
undertaking
(1) If the Regulator considers that a person has contravened an
undertaking accepted by the Regulator, the Regulator may apply to the court for
enforcement of the undertaking.
(2) If the court is
satisfied that the person has contravened the undertaking, the court, in
addition to the imposition of any penalty, may make any of the following
orders:
(a) an order that the person must comply with the undertaking or take
specified action to comply with the undertaking;
(b) an order discharging the undertaking;
(c) an order directing the person to pay to the Regulator—
(i) the costs of the proceedings; and
(ii) the reasonable costs of the Regulator in monitoring compliance with
the rail safety undertaking in the future;
(d) any other order that it considers appropriate in the
circumstances.
(3) A person must not fail to comply with an order under this
section.
Maximum penalty:
(a) in the case of an individual—$5 000;
(b) in the case of a body corporate—$25 000.
(4) Nothing in this section prevents proceedings being brought for the
contravention or alleged contravention of this Law to which the rail safety
undertaking relates.
256—Withdrawal or variation of rail safety
undertaking
(1) A person who has made a rail safety undertaking may, at any time, with
the written agreement of the Regulator—
(a) withdraw the undertaking; or
(b) vary the undertaking.
(2) However, the provisions of the undertaking cannot be varied to provide
for a different alleged contravention of this Law.
(3) The Regulator must publish, on the Register, notice of the withdrawal
or variation of a rail safety undertaking.
257—Proceedings for alleged
contravention
(1) Subject to this section, no proceedings for a contravention or alleged
contravention of this Law may be brought against a person if a rail safety
undertaking is in effect in relation to that contravention.
(2) No proceedings may be brought for a contravention or alleged
contravention of this Law against a person who has made a rail safety
undertaking in respect of that contravention and has completely discharged the
rail safety undertaking.
(3) The Regulator may accept a rail safety undertaking in respect of a
contravention or alleged contravention before proceedings in respect of that
contravention have been finalised.
(4) If the Regulator accepts a rail safety undertaking before the
proceedings are finalised, the Regulator must take all reasonable steps to have
the proceedings discontinued as soon as possible.
Division 7—Other matters
258—Service of documents
(1) A notice or document required or authorised by or under this Law to be
given or served on a person may be served on the person—
(a) by delivering it personally to the person; or
(b) be sending it by post addressed to the person to the person's last
known address; or
(c) if the person holds an accreditation or registration, or has been
granted an exemption, under this Law—
(i) by sending it by post addressed to the person to that person's address
for service; or
(ii) be left for the person at the person's address for service with
someone apparently over the age of 16 years; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person for that purpose (in which case the notice or document
will be taken to have been given or served at the time of
transmission).
(2) The address for service of a person is the address last
provided by the person in writing to the Regulator as the address for
service.
259—Recovery of certain costs
The Regulator may recover as a debt from a rail transport operator the
reasonable costs of the entry and inspection of railway infrastructure, rolling
stock or railway premises in respect of which the person is accredited, other
than the costs of an inspection of an accredited person under
Part 3
Division 11.
260—Recovery of amounts due
Every fee, charge or other amount of money payable under this Law may be
recovered by the Regulator as a debt due to the Regulator in a court of
competent jurisdiction.
261—Compliance with conditions of accreditation or
registration
(1) If—
(a) a condition or restriction to which the accreditation of a person is
subject makes provision for or with respect to a duty or obligation imposed by
this Law; and
(b) the accredited person complies with the condition or restriction to
the extent that it makes that provision,
the accredited person is, for the purposes of this Law, taken to have
complied with this Law in relation to that duty or obligation.
(2) If—
(a) a condition or restriction to which the registration of a person is
subject makes provision for or with respect to a duty or obligation imposed by
this Law; and
(b) the registered person complies with the condition or restriction to
the extent that it makes that provision,
the registered person is, for the purposes of this Law, taken to have
complied with this Law in relation to that duty or obligation.
262—Contracting out prohibited
A term of any contract or agreement that purports to exclude, limit or
modify the operation of this Law or any duty under this Law or to transfer to
another person any duty owed under this Law is void.
Division 8—Application of certain South
Australian Acts to this Law
263—Application of certain South Australian Acts to
this Law
(1) The following
Acts (as in force from time to time) apply as laws of a participating
jurisdiction for the purposes of this Law:
(a) the Freedom
of Information Act 1991 of South Australia;
(b) the Ombudsman
Act 1972 of South Australia;
(c) the Public
Finance and Audit Act 1987 of South Australia;
(d) the State
Records Act 1997 of South Australia.
(2) However, subject to
subsection (4),
the Acts referred to in
subsection (1)
do not apply for the purposes of this Law to the extent that functions are being
exercised under this Law by a State or Territory entity, other than a South
Australian entity.
(3) The national
regulations may modify any such Act for the purposes of this Law.
(4) Without
limiting
subsection (3),
the national regulations may—
(a) provide that the Act applies as if a provision of the Act specified in
the national regulations were omitted; or
(b) provide that the Act applies as if an amendment to the Act made by a
law of South Australia, and specified in the national regulations, had not taken
effect; or
(c) confer a function on a State or Territory entity; or
(d) confer jurisdiction on a tribunal or court of a participating
jurisdiction.
(5) An Act referred to in
subsection (1)
applies for the purposes of this Law as if the Minister responsible for a
government agency were the Minister in relation to a body established by this
Law.
Division 9—National
regulations
264—National regulations
(1) For the purposes of this section, the designated authority is the
Governor of the State of South Australia, or other officer for the time being
administering the Government of that State, acting with the advice and consent
of the Executive Council of that State.
(2) The designated authority, on the unanimous recommendation of the
responsible Ministers, may make regulations (national regulations)
as contemplated by this Law, or as necessary or expedient for the purposes of
this Law, including regulations that make provision for or in relation to any of
the matters specified in
Schedule 1 to this
Law.
(3) Where the national regulations refer to or incorporate a code,
standard or other document prepared or published by a prescribed
body—
(a) a copy of the code, standard or other document must be kept available
for inspection by members of the public, without charge and during normal office
hours, at the office or offices specified in the regulations; and
(b) in legal proceedings, evidence of the contents of the code, standard
or other document may be given by production of a document purporting to be
certified by or on behalf of the Regulator as a true copy of the code, standard
or other document; and
(c) the code, standard or other document has effect as if it were a
regulation made under this Law.
265—Publication of national
regulations
(1) The national regulations are to be published on the NSW legislation
website in accordance with Part 6A of the Interpretation Act 1987 of New
South Wales.
(2) A regulation commences on the day or days specified in the regulation
for its commencement (being not earlier than the date it is
published).
Schedule 1—National
regulations
1 Accreditations
under this Law, including—
(a) requirements, standards, qualifications or conditions that must be
satisfied; and
(b) requirements as to the terms, conditions, restrictions or particulars
applying under or with respect to them; and
(c) other matters relating to their granting, refusal, variation,
suspension, cancellation or surrender.
2 Registrations
under this Law, including—
(a) requirements, standards, qualifications or conditions that must be
satisfied; and
(b) requirements as to the terms, conditions, restrictions or particulars
applying under or with respect to them; and
(c) other matters relating to their granting, refusal, variation,
suspension, cancellation or surrender.
3 A
scheme for certificates of competency (or provisional certificates of
competency) for persons employed or engaged in rail safety work, and for the
duration, variation, suspension or cancellation of those certificates.
4 The
prohibition of the carrying on of rail safety work or other prescribed activity
except by or under the supervision of a person—
(a) who holds an appropriate certificate of competency; or
(b) who has prescribed qualifications, training or experience.
5 Safety
standards or other requirements that must be complied with—
(a) in connection with the construction, maintenance or operation of a
railway; or
(b) in connection with the performance of any work or activity;
or
(c) in relation to any rail infrastructure, rolling stock, trains, system,
devices, appliance or equipment; or
(d) in relation to sidings.
6 Procedures
(including consultation) for the making, adoption and amendment of rules and
procedures relating to rail network operations made or adopted for the purposes
of
Part 3
Division 3 by the rail infrastructure manager responsible for the
management of that part of the rail network.
7 The
safeguarding, siting, installing, testing, altering, maintaining or removal of
any rail infrastructure, rolling stock, system, device, appliance or
equipment.
8 The
records and documents to be kept by any person, the manner of keeping those
records and documents, and their inspection.
9 The
providing of returns and other information, verified as prescribed.
10 The
registration of plans and other documents required under this Law.
11 The
recording, investigation and reporting of accidents and incidents.
12 The
health, fitness and functions of rail safety workers.
13 Drug
and alcohol management of rail safety workers, including—
(a) the allowed concentration of alcohol; and
(b) procedures for drug and alcohol testing, including compulsory testing;
and
(c) providing for the authorisation of persons to conduct drug and alcohol
testing and operate equipment for that purpose; and
(d) regulating the collection of biological samples from rail safety
workers for the purposes of drug and alcohol testing; and
(e) providing for the analysis of test results, including the
accreditation of persons conducting the analysis; and
(f) providing for the approval of devices used in carrying out drug and
alcohol testing and analysis; and
(g) providing for the use of results from any testing or analysis, or the
steps that may be taken on account of any testing or any evidence or information
produced as a result of testing; and
(h) prescribing the circumstances that amount to a defence to a breach of
the regulations, including where the consumption of alcohol or drugs occurs
after rail safety work has been carried out; and
(i) providing for the confidentiality of test results; and
(j) regulating the destruction of biological samples collected for
testing; and
(k) providing for the protection of persons involved in taking or
conducting testing from liability for acts or omissions done in good faith and
in accordance with the regulations.
14 Fatigue
management of rail safety workers, including work hours and rest
periods.
15 The
regulation of the conduct of passengers and other persons on railways, or on
land or premises associated with a railway.
16 Trespass
on, or entry to, railways, or on land, premises, infrastructure or rolling stock
associated with a railway.
17 The
regulation or prohibition of the carriage of goods, freight or animals on
railways.
18 The
unauthorised use of railways or rolling stock.
19 The
display of signs and notices.
20 The
opening and closing of railway gates.
21 The
regulation of vehicles, animals and pedestrians crossing railways.
22 The
regulation of crossings.
23 The
loading, unloading or transportation of freight.
24 The
identification of rolling stock, rail infrastructure, devices, appliances,
equipment or freight.
25 Causing
damage to, or interfering with or removing, rolling stock, rail infrastructure,
devices, appliances, equipment or freight.
26 Procedures
associated with inspections, examinations or tests under this Law.
27 The
form and service of notices and other documents under this Law.
28 Empowering
the Regulator to prohibit a person from acting (or from continuing to act) as a
rail safety worker for a specified period, or until further order of the
Regulator.
29 Fixing
fees and charges for the purposes of this Law or in respect of any matter
arising under this Law, including a fee that the Regulator may recover from an
accredited person as a debt if the accredited person fails to comply with a
requirement of this Law within a specified time.
30 Generally,
evidence in proceedings for an offence against the regulations.
31 Infringement
penalty provisions, including requirements for infringement notices and the
fixing of infringement penalties, not exceeding $1 500, for contravention of an
alleged offence against this Law or the regulations.
32 The
imposition of penalties, not exceeding $10 000 for a contravention of, or
failure to comply with, a regulation.
Schedule 2—Miscellaneous provisions relating
to interpretation
Part 1—Preliminary
1—Displacement of Schedule by contrary
intention
The application of this Schedule may be displaced, wholly or partly, by a
contrary intention appearing in this Law.
Part 2—General
2—Law to be construed not to exceed legislative
power of Parliament
(1) This Law is to be construed as operating to the full extent of, but so
as not to exceed, the legislative power of the Parliament of this
jurisdiction.
(2) If a provision of this Law, or the application of a provision of this
Law to a person, subject matter or circumstance, would, but for this clause, be
construed as being in excess of the legislative power of the Parliament of this
jurisdiction—
(a) it is a valid provision to the extent to which it is not in excess of
the power; and
(b) the remainder of this Law, and the application of the provision to
other persons, subject matters or circumstances, is not affected.
(3) This clause applies to this Law in addition to, and without limiting
the effect of, any provision of this Law.
3—Every section to be a substantive
enactment
Every section of this Law has effect as a substantive enactment without
introductory words.
4—Material that is, and is not, part of this
Law
(1) The heading to a Part, Division or Subdivision into which this Law is
divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) Punctuation in this Law is part of this Law.
(4) A heading to a section or subsection of this Law does not form part of
this Law.
5—References to particular Acts and to
enactments
In this Law—
(a) an Act of this jurisdiction may be cited—
(i) by its short title; or
(ii) by reference to the year in which it was passed and its number;
and
(b) a Commonwealth Act may be cited—
(i) by its short title; or
(ii) in another way sufficient in a Commonwealth Act for the citation of
such an Act,
together with a reference to the Commonwealth; and
(c) an Act of another jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of the jurisdiction for the
citation of such an Act,
together with a reference to the jurisdiction.
6—References taken to be included in Law or Act
citation etc
(1) A reference in
this Law to this Law or an Act includes a reference to—
(a) this Law or the Act as originally enacted, and as amended from time to
time since its original enactment; and
(b) if this Law or the Act has been repealed and re-enacted (with or
without modification) since the enactment of the reference—this Law or the
Act as re-enacted, and as amended from time to time since its
re-enactment.
(2) A reference in
this Law to a provision of this Law or of an Act includes a reference
to—
(a) the provision as originally enacted, and as amended from time to time
since its original enactment; and
(b) if the provision has been omitted and re-enacted (with or without
modification) since the enactment of the reference—the provision as
re-enacted, and as amended from time to time since its re-enactment.
(3)
Subclauses (1) and
(2) apply to a
reference in this Law to a law of the Commonwealth or another jurisdiction as
they apply to a reference in this Law to an Act and to a provision of an
Act.
7—Interpretation best achieving Law's purpose or
object
(1) In the
interpretation of a provision of this Law, the interpretation that will best
achieve the purpose or object of this Law is to be preferred to any other
interpretation.
(2)
Subclause (1) applies
whether or not the purpose is expressly stated in this Law.
8—Use of extrinsic material in
interpretation
(1) In this clause—
extrinsic material means relevant material not forming part
of this Law, including (for example)—
(a) material that is set out in the document containing the text of this
Law as printed by the Government Printer; and
(b) a relevant report of a Royal Commission, Law Reform Commission,
commission or committee of inquiry, or a similar body, that was laid before the
Parliament of this jurisdiction before the provision concerned was enacted; and
(c) a relevant report of a committee of the Parliament of this
jurisdiction that was made to the Parliament before the provision was enacted;
and
(d) a treaty or other international agreement that is mentioned in this
Law; and
(e) an explanatory note or memorandum relating to the Bill that contained
the provision, or any relevant document, that was laid before, or given to the
members of, the Parliament of this jurisdiction by the member bringing in the
Bill before the provision was enacted; and
(f) the speech made to the Parliament of this jurisdiction by the member
in moving a motion that the Bill be read a second time; and
(g) material in the Votes and Proceedings of the Parliament of this
jurisdiction or in any official record of debates in the Parliament of this
jurisdiction; and
(h) a document that is declared by this Law to be a relevant document for
the purposes of this clause;
ordinary meaning means the ordinary meaning conveyed by a
provision having regard to its context in this Law and to the purpose of this
Law.
(2) Subject to
subclause (3),
in the interpretation of a provision of this Law, consideration may be given to
extrinsic material capable of assisting in the interpretation—
(a) if the provision is ambiguous or obscure—to provide an
interpretation of it; or
(b) if the ordinary meaning of the provision leads to a result that is
manifestly absurd or is unreasonable—to provide an interpretation that
avoids such a result; or
(c) in any other case—to confirm the interpretation conveyed by the
ordinary meaning of the provision.
(3) In determining
whether consideration should be given to extrinsic material, and in determining
the weight to be given to extrinsic material, regard is to be had
to—
(a) the desirability of a provision being interpreted as having its
ordinary meaning; and
(b) the undesirability of prolonging proceedings without compensating
advantage; and
(c) other relevant matters.
9—Effect of change of drafting
practice
If—
(a) a provision of this Law expresses an idea in particular words;
and
(b) a provision enacted later appears to express the same idea in
different words for the purpose of implementing a different legislative drafting
practice, including (for example)—
(i) the use of a clearer or simpler style; or
(ii) the use of gender-neutral language,
the ideas must not be taken to be different merely because different words
are used.
10—Use of examples
If this Law includes an example of the operation of a
provision—
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the
provision; and
(c) the example and the provision are to be read in the context of each
other and the other provisions of this Law, but, if the example and the
provision so read are inconsistent, the provision prevails.
11—Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of this Law,
strict compliance with the form is not necessary and substantial compliance is
sufficient.
(2) If a form prescribed or approved by or for the purpose of this Law
requires—
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included in, attached to or
given with the form; or
(c) the form, or information or documents included in, attached to or
given with the form, to be verified in a specified way,
the form is not properly completed unless the requirement is complied
with.
Part 3—Terms and
references
12—Definitions
(1) In this Law—
Act means an Act of the Parliament of this
jurisdiction;
adult means an individual who is 18 or more;
affidavit, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration and promise;
amend includes—
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint includes reappoint;
Australia means the Commonwealth of Australia but, when used
in a geographical sense, does not include an external Territory;
business day means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in
which any relevant act is to be or may be done;
calendar month means a period starting at the beginning of
any day of 1 of the 12 named months and ending—
(a) immediately before the beginning of the corresponding day of the next
named month; or
(b) if there is no such corresponding day—at the end of the next
named month;
calendar year means a period of 12 months beginning on 1
January;
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which this Law, the Act or
provision comes into operation;
Commonwealth means the Commonwealth of Australia but, when
used in a geographical sense, does not include an external Territory;
confer, in relation to a function, includes impose;
contravene includes fail to comply with;
country includes—
(a) a federation; or
(b) a state, province or other part of a federation;
date of assent, in relation to an Act, means the day on which
the Act receives the Royal Assent;
definition means a provision of this Law (however expressed)
that—
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression;
document means any record of information and
includes—
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for a person qualified to interpret them;
or
(c) any computer, disc, tape or other article or any material from which
sounds, images, writings or messages are capable of being reproduced (with or
without the aid of another article or device); or
(d) a map, plan, drawing or photograph;
electronic communication means—
(a) a communication of information in the form of data, text or images by
means of guided or unguided electromagnetic energy, or both; or
(b) a communication of information in the form of sound by means of guided
or unguided electromagnetic energy, or both, where the sound is processed at its
destination by an automated voice recognition system;
estate includes easement, charge, right, title, claim,
demand, lien or encumbrance, whether at law or in equity;
expire includes lapse or otherwise cease to have
effect;
external Territory means a Territory, other than an internal
Territory, for the government of which as a Territory provision is made by a
Commonwealth Act;
fail includes refuse;
financial year means a period of 12 months beginning on 1
July;
function includes a power or duty;
Government Printer means the Government Printer of this
jurisdiction, and includes any other person authorised by the Government of this
jurisdiction to print an Act or instrument;
individual means a natural person;
information system means a system for generating, sending,
receiving, storing or otherwise processing electronic communications;
insert, in relation to a provision of this Law, includes
substitute;
instrument includes a statutory instrument;
interest, in relation to land or other property,
means—
(a) a legal or equitable estate in the land or other property;
or
(b) a right, power or privilege over, or in relation to, the land or other
property;
internal Territory means the Australian Capital Territory,
the Jervis Bay Territory or the Northern Territory;
Jervis Bay Territory means the Territory mentioned in the
Jervis Bay Territory Acceptance Act 1915 of the Commonwealth;
make includes issue or grant;
minor means an individual who is under 18;
modification includes addition, omission or
substitution;
month means a calendar month;
named month means 1 of the 12 months of the year;
Northern Territory means the Northern Territory of
Australia;
number means—
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter;
oath, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration or promise;
office includes position;
omit, in relation to a provision of this Law or an Act,
includes repeal;
party includes an individual or a body politic or
corporate;
penalty includes forfeiture or punishment;
person includes an individual or a body politic or
corporate;
power includes authority;
prescribed means prescribed by, or by regulations made or in
force for the purposes of or under, this Law;
printed includes typewritten, lithographed or reproduced by
any mechanical means;
proceeding means a legal or other action or
proceeding;
property means any legal or equitable estate or interest
(whether present or future, vested or contingent, or tangible or intangible) in
real or personal property of any description (including money), and includes
things in action;
provision, in relation to this Law or an Act, means words or
other matter that form or forms part of this Law or the Act, and
includes—
(a) a Chapter, Part, Division, Subdivision, section, subsection,
paragraph, subparagraph, subsubparagraph or Schedule of or to this Law or the
Act; or
(b) a clause, section, subsection, item, column, table or form of or in a
Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
repeal includes—
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of this Law or instrument concerned;
or
(d) exclude from, or include in, the application of this Law or instrument
concerned, any person, subject matter or circumstance;
sign includes the affixing of a seal or the making of a
mark;
statutory declaration means a declaration made under an Act
of this jurisdiction, or under a Commonwealth Act or an Act of another
jurisdiction, that authorises a declaration to be made otherwise than in the
course of a judicial proceeding;
statutory instrument means an instrument (including a
regulation) made or in force under or for the purposes of this Law, and includes
an instrument made or in force under any such instrument;
swear, in relation to a person allowed by law to affirm,
declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing
words in a visible form;
year, without specifying the type of year, means calendar
year.
(2) In a statutory instrument—
the Law means this Law.
13—Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression, other parts of speech and
grammatical forms of the word or expression have corresponding
meanings.
(2) Definitions in or applicable to this Law apply except so far as the
context or subject matter otherwise indicates or requires.
(3) In this Law, words indicating a gender include each other
gender.
(4) In this Law—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
14—Meaning of may and must
etc
(1) In this Law, the word "may", or a similar word or expression, used in
relation to a power indicates that the power may be exercised or not exercised,
at discretion.
(2) In this Law, the word "must", or a similar word or expression, used in
relation to a power indicates that the power is required to be
exercised.
(3) This clause has effect despite any rule of construction to the
contrary.
15—Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory instrument have the same
meanings as they have, from time to time, in this Law, or relevant provisions of
this Law, under or for the purposes of which the instrument is made or in
force.
(2) This clause has effect in relation to an instrument except so far as
the contrary intention appears in the instrument.
16—Effect of express references to bodies corporate
and individuals
In this Law, a reference to a person generally (whether the expression
“person”, “party”, “someone”,
“anyone”, “no-one”, “one”,
“another” or “whoever” or another expression is
used)—
(a) does not exclude a reference to a body corporate or an individual
merely because elsewhere in this Law there is particular reference to a body
corporate (however expressed); and
(b) does not exclude a reference to an individual or a body corporate
merely because elsewhere in this Law there is particular reference to an
individual (however expressed).
17—Production of records kept in computers
etc
If a person who keeps a record of information by means of a mechanical,
electronic or other device is required by or under this Law—
(a) to produce the information or a document containing the information to
a court, tribunal or person; or
(b) to make a document containing the information available for inspection
by a court, tribunal or person,
then, unless the court, tribunal or person otherwise
directs—
(c) the requirement obliges the person to produce or make available for
inspection (as the case may be) a document that reproduces the information in a
form capable of being understood by the court, tribunal or person; and
(d) the production to the court, tribunal or person of the document in
that form complies with the requirement.
18—References to this jurisdiction to be
implied
In this Law—
(a) a reference to an officer, office or statutory body is a reference to
such an officer, office or statutory body in and for this jurisdiction;
and
(b) a reference to a locality or other matter or thing is a reference to
such a locality or other matter or thing in and of this jurisdiction.
19—References to officers and holders of
offices
In this Law, a reference to a particular officer, or to the holder of a
particular office, includes a reference to the person for the time being
occupying or acting in the office concerned.
20—Reference to certain provisions of
Law
If a provision of this Law refers—
(a) to a Part, section or Schedule by a number and without reference to
this Law—the reference is a reference to the Part, section or Schedule,
designated by the number, of or to this Law; or
(b) to a Schedule without reference to it by a number and without
reference to this Law—the reference, if there is only 1 Schedule to this
Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph, subparagraph,
subsubparagraph, clause, subclause, item, column, table or form by a number and
without reference to this Law—the reference is a reference
to—
(i) the Division, designated by the number, of the Part in which the
reference occurs; and
(ii) the Subdivision, designated by the number, of the Division in which
the reference occurs; and
(iii) the subsection, designated by the number, of the section in which
the reference occurs; and
(iv) the paragraph, designated by the number, of the section, subsection,
Schedule or other provision in which the reference occurs; and
(v) the paragraph, designated by the number, of the section, subsection,
item, column, table or form of or in the Schedule in which the reference occurs;
and
(vi) the subparagraph, designated by the number, of the paragraph in which
the reference occurs; and
(vii) the subsubparagraph, designated by the number, of the subparagraph
in which the reference occurs; and
(viii) the clause, section, subsection, item, column, table or form,
designated by the number, of or in the Schedule in which the reference
occurs,
as the case requires.
21—Reference to provisions of this Law or an Act is
inclusive
In this Law, a reference to a portion of this Law or an Act
includes—
(a) a reference to the Chapter, Part, Division, Subdivision, section,
subsection or other provision of this Law or the Act referred to that forms the
beginning of the portion; and
(b) a reference to the Chapter, Part, Division, Subdivision, section,
subsection or other provision of this Law or the Act referred to that forms the
end of the portion.
Example—
A reference to “sections 5 to 9” includes both section 5 and
section 9. It is not necessary to refer to “sections 5 to 9 (both
inclusive)” to ensure that the reference is given an inclusive
interpretation.
Part 4—Functions and
powers
22—Exercise of statutory
functions
(1) If this Law confers a function on a person or body, the function may
be exercised from time to time as occasion requires.
(2) If this Law confers a function on a particular officer or the holder
of a particular office, the function may be exercised by the person for the time
being occupying or acting in the office concerned.
(3) If this Law confers a function on a body (whether or not
incorporated), the exercise of the function is not affected merely because of
vacancies in the membership of the body.
23—Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an instrument or
decision—
(a) the power includes power to amend or repeal the instrument or
decision; and
(b) the power to amend or repeal the instrument or decision is exercisable
in the same way, and subject to the same conditions, as the power to make the
instrument or decision.
24—Matters for which statutory instruments may make
provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument made under this Law
may make provision for the matter by applying, adopting or incorporating (with
or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind), as in
force at a particular time or as in force from time to time.
(2) If a statutory instrument applies, adopts or incorporates the
provisions of a document, the statutory instrument applies, adopts or
incorporates the provisions as in force from time to time, unless the statutory
instrument otherwise expressly provides.
(3) A statutory instrument may—
(a) apply generally throughout this jurisdiction or be limited in its
application to a particular part of this jurisdiction; or
(b) apply generally to all persons, matters or things or be limited in its
application to—
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or things; or
(c) otherwise apply generally or be limited in its application by
reference to specified exceptions or factors.
(4) A statutory instrument may—
(a) apply differently according to different specified factors;
or
(b) otherwise make different provision in relation to—
(i) different persons, matters or things; or
(ii) different classes of persons, matters or things.
(5) A statutory instrument may authorise a matter or thing to be from time
to time determined, applied or regulated by a specified person or
body.
(6) If this Law authorises or requires a matter to be regulated by
statutory instrument, the power may be exercised by prohibiting by statutory
instrument the matter or any aspect of the matter.
(7) If this Law authorises or requires provision to be made with respect
to a matter by statutory instrument, a statutory instrument made under this Law
may make provision with respect to a particular aspect of the matter despite the
fact that provision is made by this Law in relation to another aspect of the
matter or in relation to another matter.
(8) A statutory instrument may provide for the review of, or a right of
appeal against, a decision made under the statutory instrument, or this Law, and
may, for that purpose, confer jurisdiction on any court, tribunal, person or
body.
(9) A statutory instrument may require a form prescribed by or under the
statutory instrument, or information or documents included in, attached to or
given with the form, to be verified by statutory declaration.
25—Presumption of validity and power to
make
(1) All conditions and preliminary steps required for the making of a
statutory instrument are presumed to have been satisfied and performed in the
absence of evidence to the contrary.
(2) A statutory instrument is taken to be made under all powers under
which it may be made, even though it purports to be made under this Law or a
particular provision of this Law.
26—Appointments may be made by name or
office
(1) If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing,
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office,
by reference to the title of the office concerned.
(2) An appointment of a particular officer, or the holder of a particular
office, is taken to be the appointment of the person for the time being
occupying or acting in the office concerned.
27—Acting appointments
(1) If this Law authorises a person or body to appoint a person to act in
an office, the person or body may, in accordance with this Law,
appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by
reference to the title of the office concerned,
to act in the office.
(2) The appointment
may be expressed to have effect only in the circumstances specified in the
instrument of appointment.
(3) The appointer may—
(a) determine the terms and conditions of the appointment, including
remuneration and allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the appointment, must be in, or
evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than 1 year during a vacancy in
the office.
(6) If the appointee is acting in the office otherwise than because of a
vacancy in the office and the office becomes vacant, then, subject to
subclause (2),
the appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy,
whichever happens first.
(7) The appointment ceases to have effect if the appointee resigns by
writing signed and delivered to the appointer.
(8) While the appointee is acting in the office—
(a) the appointee has all the powers and functions of the holder of the
office; and
(b) this Law and other laws apply to the appointee as if the appointee
were the holder of the office.
(9) Anything done by or in relation to a person purporting to act in the
office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had
ceased.
(10) If this Law authorises the appointer to appoint a person to act
during a vacancy in the office, an appointment to act in the office may be made
by the appointer whether or not an appointment has previously been made to the
office.
28—Powers of appointment imply certain incidental
powers
(1) If this Law
authorises or requires a person or body to appoint a person to an
office—
(a) the power may be exercised from time to time as occasion requires;
and
(i) power to remove or suspend, at any time, a person appointed to the
office; and
(ii) power to appoint another person to act in the office if a person
appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended;
and
(iv) power to appoint a person to act in the office if it is vacant
(whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed
to the office is absent or is unable to discharge the functions of the office
(whether because of illness or otherwise).
(2) The power to remove or suspend a person under
subclause (1)(b)
may be exercised even if this Law provides that the holder of the office to
which the person was appointed is to hold office for a specified
period.
(3) The power to make an appointment under
subclause (1)(b)
may be exercised from time to time as occasion requires.
(4) An appointment under
subclause (1)(b)
may be expressed to have effect only in the circumstances specified in the
instrument of appointment.
29—Delegation of functions
(1) If this Law authorises a person or body to delegate a function, the
person or body may, in accordance with this Law and any other applicable law,
delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference
to the title of the office concerned.
(2) The delegation may—
(a) be general or limited; and
(b) be made from time to time; and
(c) be revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation, must be in, or
evidenced by, writing signed by the delegator or, if the delegator is a body, by
a person authorised by the body for the purpose.
(4) A delegated function may be exercised only in accordance with any
conditions to which the delegation is subject.
(5) The delegate may, in the exercise of a delegated function, do anything
that is incidental to the delegated function.
(6) A delegated function that purports to have been exercised by the
delegate is taken to have been properly exercised by the delegate unless the
contrary is proved.
(7) A delegated function that is properly exercised by the delegate is
taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a function is dependent on the
delegator’s opinion, belief or state of mind, then, when exercised by the
delegate, the function is dependent on the delegate’s opinion, belief or
state of mind.
(9) If—
(a) the delegator is a specified officer or the holder of a specified
office; and
(b) the person who was the specified officer or holder of the specified
office when the delegation was made ceases to be the holder of the
office,
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office
concerned is taken to be the delegator for the purposes of this
clause.
(10) If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body,
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be delegator
for the purposes of this clause.
(11) If a function is delegated to a specified officer or the holder of a
specified office—
(a) the delegation does not cease to have effect merely because the person
who was the specified officer or the holder of the specified office when the
function was delegated ceases to be the officer or the holder of the office;
and
(b) the function may be exercised by the person for the time being
occupying or acting in the office concerned.
(12) A function that has been delegated may, despite the delegation, be
exercised by the delegator.
(13) The delegation of a function does not relieve the delegator of the
delegator’s obligation to ensure that the function is properly
exercised.
(14) Subject to
subclause (15),
this clause applies to a subdelegation of a function in the same way as it
applies to a delegation of a function.
(15) If this Law
authorises the delegation of a function, the function may be subdelegated only
if this Law expressly authorises the function to be subdelegated.
30—Exercise of powers between enactment and
commencement
(1) If a provision
of this Law (the empowering provision) that does not commence on
its enactment would, had it commenced, confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative
character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the
power or of bringing the appointment, instrument or other thing into
effect,
before the empowering provision commences.
(2) If a provision
of a South Australian Act (the empowering provision) that does not
commence on its enactment would, had it commenced, amend a provision of this Law
so that it would confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative
character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the
power or of bringing the appointment, instrument or other thing into
effect,
before the empowering provision commences.
(3) If—
(a) this Law has commenced and confers a power to make a statutory
instrument (the basic instrument-making power); and
(b) a provision of a South Australian Act that does not commence on its
enactment would, had it commenced, amend this Law so as to confer additional
power to make a statutory instrument (the additional instrument-making
power),
then—
(c) the basic instrument-making power and the additional instrument-making
power may be exercised by making a single instrument; and
(d) any provision of the instrument that required an exercise of the
additional instrument-making power is to be treated as made under
subclause (2).
(4) If an
instrument, or a provision of an instrument, is made under
subclause (1) or
(2) that is necessary
for the purpose of—
(a) enabling the exercise of a power mentioned in the subclause;
or
(b) bringing an appointment, instrument or other thing made or done under
such a power into effect,
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the instrument or provision is expressed to take effect.
(a) an appointment is made under
subclause (1) or
(2); or
(b) an instrument, or a provision of an instrument, made under
subclause (1) or
(2) is not necessary
for a purpose mentioned in
subclause (4),
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the appointment, instrument or provision is expressed to take
effect.
(6) Anything done under
subclause (1) or
(2) does not confer a
right, or impose a liability, on a person before the relevant empowering
provision commences.
(7) After the enactment of a provision mentioned in
subclause (1)
but before the provision’s commencement, this clause applies as if the
references in
subclauses (2) and
(5) to the
commencement of the empowering provision were references to the commencement of
the provision mentioned in
subclause (2) as
amended by the empowering provision.
(8) In the application of this clause to a statutory instrument, a
reference to the enactment of the instrument is a reference to the making of the
instrument.
Part 5—Distance, time and
age
31—Matters relating to distance, time and
age
(1) In the measurement of distance for the purposes of this Law, the
distance is to be measured along the shortest road ordinarily used for
travelling.
(2) If a period beginning on a given day, act or event is provided or
allowed for a purpose by this Law, the period is to be calculated by excluding
the day, or the day of the act or event, and—
(a) if the period is expressed to be a specified number of clear days or
at least a specified number of days—by excluding the day on which the
purpose is to be fulfilled; and
(b) in any other case—by including the day on which the purpose is
to be fulfilled.
(3) If the last day of a period provided or allowed by this Law for doing
anything is not a business day in the place in which the thing is to be or may
be done, the thing may be done on the next business day in the place.
(4) If the last day of a period provided or allowed by this Law for the
filing or registration of a document is a day on which the office is closed
where the filing or registration is to be or may be done, the document may be
filed or registered at the office on the next day that the office is
open.
(5) If no time is provided or allowed for doing anything, the thing is to
be done as soon as possible, and as often as the prescribed occasion
happens.
(6) If, in this Law, there is a reference to time, the reference is, in
relation to the doing of anything in a jurisdiction, a reference to the legal
time in the jurisdiction.
(7) For the purposes of this Law, a person attains an age in years at the
beginning of the person’s birthday for the age.
Part 6—Effect of repeal, amendment or
expiration
32—Time of Law ceasing to have
effect
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a
specified day,
this provision has effect until the last moment of the specified
day.
33—Repealed provisions not
revived
If a provision of this Law is repealed or amended by a South Australian
Act, or a provision of a South Australian Act, the provision is not revived
merely because the South Australian Act or the provision of the South Australian
Act—
(a) is later repealed or amended; or
(b) later expires.
34—Saving of operation of repealed Law
provisions
(1) The repeal, amendment or expiry of a provision of this Law does
not—
(a) revive anything not in force or existing at the time the repeal,
amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered,
done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the
provision; or
(e) affect an investigation, proceeding or remedy in relation to such a
right, privilege, liability or penalty.
(2) Any such penalty may be imposed and enforced, and any such
investigation, proceeding or remedy may be begun, continued or enforced, as if
the provision had not been repealed or amended or had not expired.
35—Continuance of repealed
provisions
If a South Australian Act repeals some provisions of this Law and enacts
new provisions in substitution for the repealed provisions, the repealed
provisions continue in force until the new provisions commence.
36—Law and amending Acts to be read as
one
This Law and all South Australian Acts amending this Law are to be read as
one.
Part 7—Instruments under
Law
37—Schedule applies to statutory
instruments
(1) This Schedule applies to a statutory instrument, and to things that
may be done or are required to be done under a statutory instrument, in the same
way as it applies to this Law, and things that may be done or are required to be
done under this Law, except so far as the context or subject matter otherwise
indicates or requires.
(2) The fact that a provision of this Schedule refers to this Law and not
also to a statutory instrument does not, by itself, indicate that the provision
is intended to apply only to this Law.