An Act to promote the safe construction, operation and maintenance of railways; to repeal the Rail Safety Act 1993; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Rail Safety Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Object of Act
The object of this Act is to promote the safe construction, operation and maintenance of railways.
4 Interpretation
(1) In this Act:accreditation means accreditation under Division 1 of Part 2.accredited person means a person accredited, or granted provisional accreditation, under Division 1 of Part 2.approved means approved by the ITSRR.assessor means an assessor appointed by the Minister under section 67D.means an authorised officer appointed by the ITSRR under section 111.Board of Inquiry means a Board of Inquiry constituted by the Minister under section 67B.certification means a certification of competency issued under Division 3 of Part 2.Chief Investigator means the Chief Investigator of the Office of Transport Safety Investigations appointed under the Transport Administration Act 1988.Director-General means the Director-General of the Ministry of Transport.exercise a function includes perform a duty.function includes power, authority or duty.improvement notice means a notice given under section 51.infrastructure of a railway means those facilities that are necessary to enable a railway to operate safely and includes, but is not limited to, railway track, associated track structures, tunnels, bridges, stations, platforms, signalling systems, train control systems, communication systems, overhead electrical power supply systems, buildings (including buildings used for administrative purposes), workshops and associated plant, machinery and equipment.ITSRR means the Independent Transport Safety and Reliability Regulator constituted under the Transport Administration Act 1988.notifiable occurrence means an occurrence that is required to be reported in accordance with section 64.operator of a railway—see section 5 (1).previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act.private siding means a siding that is owned and maintained by a person who does not own, control or manage the running line with which the siding connects or to which it has access.prohibition notice means a notice given under section 54.rail safety inquiry—see section 67B.railway means a guided system designed to transport passengers or freight or both (whether or not passengers, freight or both are being transported) on a railway track, together with its infrastructure and associated sidings, and includes a heavy railway, light railway, inclined railway, monorail or tramway.railway employee, in relation to a railway, means:(a) an employee or contractor of an operator of the railway who performs railway safety work, or(b) a person who, without remuneration or reward, voluntarily and without obligation performs railway safety work for an operator of the railway, or(c) an individual who is an operator of the railway and who performs railway safety work.railway operation—see section 5 (3).railway premises means:(a) land (including any premises on the land) on or in which is situated any item or part of an item of the infrastructure of a railway, or(b) land (including any premises on the land) on or in which is situated any over track structure or part of an over track structure, or(c) land (including any premises on the land) on or in which records required for, or relating to, the accreditation of an operator of a railway are kept.railway safety work means any of the following classes of work carried out by a railway employee:(a) work involving the operation or movement of a train or trains,(b) work on or about railway infrastructure relating to the repair, maintenance, cleaning or upgrading of railway tracks or any rolling stock or associated works or equipment,(c) work involving certification as to the safety of infrastructure or rolling stock (or any item of infrastructure or rolling stock),(d) work involving the development, management or monitoring of safeworking systems for railways,but does not include any work that involves the driving of a motor vehicle on a road or road related area within the meaning of the Road Transport (Safety and Traffic Management) Act 1999.(e) any other work that is prescribed by the regulations as railway safety work,rolling stock means any vehicle that operates on or uses a railway track, but does not include a vehicle designed to operate both on and off a railway track or tracks when the vehicle is not operating on a railway track or tracks.running line means all railway tracks (other than sidings) that are used for the through movement of trains.safety interface agreement—see section 12 (1).safety management system—see section 48A.safeworking systems, in relation to a railway, means the systems and procedures for operating trains safely and for protecting railway employees, passengers, freight, rolling stock and motor vehicles on or in the proximity of railway tracks.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 and stabled.train means one or more units of rolling stock operating on a railway (whether or not the units are in motion).(2) Notes in the text of this Act do not form part of this Act.s 4: Am 2003 No 65, Sch 4 [1]–[6]; 2005 No 55, Sch 2 [1]–[4].
5 Railway operations
(1) In this Act, an operator of a railway is a person who is responsible (whether because of ownership, control, management or contractual obligations) for a railway operation in relation to the railway.(2) An operator of a railway may be responsible for one or more railway operations.(3) In this Act, railway operation means any one or more of the following:(a) the construction and maintenance, or the construction or maintenance, of infrastructure of a railway,(b) the operation or movement, or causing the operation or movement, by any means, of any rolling stock on a railway, including operating a railway service if the operator of the service operates or moves, or causes the operation or movement of, rolling stock,(c) the construction and maintenance, or construction or maintenance, of rolling stock.
6 Railways to which Act applies
(1) This Act applies to:(a) any railway within, or partly within, the State with a railway track gauge equal to or greater than 600 mm, and(b) the Darling Harbour monorail transport system, andand to the operation of any such railway.(c) any other system designed to transport passengers or freight or both and declared by the regulations to be a railway for the purposes of this Act,(2) This Act does not apply to:(a) a railway in a mine that is underground or predominantly underground and to which the provisions of the Coal Mines Regulation Act 1982 or the Mines Inspection Act 1901 or regulations or rules made under those Acts apply, or(b) a railway operated at an amusement park the operator of which holds a certificate of exemption from compliance with the requirements of this Act issued by the ITSRR, or(c) an aerial, cable operated transportation system.s 6: Am 2003 No 65, Sch 4 [7].
7 Act binds Crown
(1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.(2) (Repealed)s 7: Am 2003 No 65, Sch 4 [8].
Part 2 Accreditation of operators and certification of railway employees
Division 1 Accreditation of railway operators
8 Operators of railways to be accredited
A person who is an operator of a railway is guilty of an offence unless the person is an accredited operator for the railway operations for which the person is responsible.Maximum penalty:(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or(d) in the case of an individual (not being a previous offender)—500 penalty units.
9 Purpose of accreditation
The purpose of accreditation is to attest:(a) that the accredited person is (or, in the case of an accredited corporation, the directors and managers of the corporation designated in accordance with section 17 are) considered to be of good repute and in all other respects fit and proper to be responsible for the safe carrying out of the railway operations for which the person is accredited, and(b) that the accredited person’s safety management system has been accepted by the ITSRR, and(c) that the accredited person has demonstrated, to the degree and in the manner required by the ITSRR, the competency and capacity to implement that safety management system.s 9: Am 2003 No 65, Sch 4 [9]. Subst 2005 No 55, Sch 2 [5].
10 Applicant to give information
(1) An applicant for accreditation must give to the ITSRR any information that the ITSRR reasonably requires in the circumstances to enable the ITSRR to effectively determine the application for accreditation.(2) The regulations may prescribe information that an applicant for accreditation is required to give to the ITSRR, in addition to information that the ITSRR may require to be given under subsection (1) or that is required to be given under this Division.(3) An application for accreditation is to be in the approved form.s 10: Am 2003 No 65, Sch 4 [10].
11 (Repealed)
s 11: Am 2003 No 65, Sch 4 [11]–[15]. Rep 2005 No 55, Sch 2 [6].
12 Safety interface agreements
(1) An applicant for accreditation must:(a) give to the ITSRR information identifying safety interfaces between railway operations (and the railway to which they relate) for which the applicant seeks accreditation and other railways or railway operations for which other persons are responsible, and(b) give to the ITSRR particulars of agreements relating to the management of any such safety interfaces (safety interface agreements), and(c) demonstrate to the satisfaction of the ITSRR that appropriate safety interface agreements are or will be in force in relation to any such safety interfaces.(2) Without limiting subsection (1), particulars of safety interface agreements relating to private sidings that are connected with or have access to the railway in relation to which the applicant is seeking accreditation as operator are to be provided.(3) Safety interface agreements entered into by an accredited person must comply with any requirements prescribed by the regulations.(4) An accredited person must keep a register of current safety interface agreements entered into by the accredited person.s 12: Am 2003 No 65, Sch 4 [16].
13 Passenger security
(1) An applicant for accreditation must, if the operation of the railway involves the carriage of passengers, give to the ITSRR a passenger security policy and plan.(2) The passenger security policy and plan must comply with any requirements prescribed by the regulations.s 13: Am 2003 No 65, Sch 4 [17].
14 Safety management systems and capacity to safely carry out railway operations
(1) An applicant for accreditation must submit to the ITSRR documentation, in a form approved by the ITSRR, that describes the applicant’s safety management system, being a safety management system that satisfies the requirements of section 48A.(2) An applicant for accreditation must demonstrate, to the satisfaction of the ITSRR, that the applicant possesses the competency and capacity to implement and comply with its safety management system and to otherwise safely carry out the railway operations for which the applicant is seeking accreditation.(3) The ITSRR may require an applicant for accreditation to submit additional information and standards in relation to the applicant’s safety management system.s 14: Am 2003 No 65, Sch 4 [18]. Subst 2005 No 55, Sch 2 [7].
15 Applicant to describe, and identify ownership of, infrastructure
(1) An applicant for accreditation must, to the satisfaction of the ITSRR, describe all elements that comprise the infrastructure of the railway specified in the application and must identify the owner of the infrastructure.(2) If the applicant is not the owner of the infrastructure, the applicant must show the basis of the entitlement of the applicant to control and manage the infrastructure.s 15: Am 2003 No 65, Sch 4 [19].
16 Rolling stock to be identified
(1) An applicant for accreditation must demonstrate, to the satisfaction of the ITSRR, that the applicant possesses the competency and capacity to maintain the rolling stock used by the applicant in a safe condition.(2) The applicant must also describe the proposed ambit of operation, in terms of railway location, of rolling stock that the applicant intends to use. The applicant may for this purpose identify individual units of rolling stock or classes of rolling stock, as the applicant thinks fit.(3) An applicant for accreditation must cause all rolling stock specified in the application to be clearly marked, in an approved manner, to enable each unit to be individually identified.s 16: Am 2003 No 65, Sch 4 [20].
17 Designated directors and managers
(1) For the purpose of obtaining accreditation under this Division:(a) a corporation must nominate, and the ITSRR may accept the nomination of, any one or more of its directors and managers, and(b) further nominations, and withdrawals of nominations, may be made and accepted from time to time, and(c) a person so nominated becomes a director or manager designated for the purposes of section 9 (1) (a) only when the ITSRR certifies acceptance of the nomination.(2) If a director or manager of a corporation designated for the purposes of section 9 (1) (a) ceases to be a director or manager of the corporation, the corporation must, not later than 30 days after the person ceases to be a director or manager, by notice in writing to the ITSRR:(a) withdraw the person’s nomination, and(b) nominate another director or manager for the purposes of section 9 (1) (a).Maximum penalty: 5,000 penalty units.(3) A person who ceases to be a director or manager of a corporation for which the person is designated for the purposes of section 9 (1) (a) (other than because of death or incapacity) must, not later than 30 days after the person ceases to be a director or manager, notify the ITSRR in writing that the person has ceased to be a director or manager of the corporation.Maximum penalty: 100 penalty units.s 17: Am 2003 No 65, Sch 4 [21].
18 Grant of accreditation
(1) The ITSRR may grant or refuse accreditation to a person duly applying for accreditation as an operator of a railway for specified railway operations.(2) The ITSRR must notify the person in writing of the particulars of the accreditation or of the refusal.(3) An accreditation may be general or limited and may be subject to such conditions and restrictions (if any) as are prescribed by the regulations or specified by the ITSRR in the accreditation.(3A) A condition or restriction of accreditation that is prescribed by the regulations cannot be varied or revoked by the ITSRR.(4) Without limiting subsection (3), an accreditation may be:(a) for the carrying on of railway operations for the whole of a railway, or(b) only for the carrying on of railway operations for the part or parts of a railway designated in the accreditation, or for a part or parts having the scope or characteristics so designated, or(c) only for the railway operations of the railway designated in the accreditation, or for a railway operation having the scope or characteristics so designated, or(d) only for any service or aspect, or part of a service or aspect, of a railway operation of the railway designated in the accreditation.(5) It is a condition of any accreditation that a third-party policy under the Motor Accidents Compensation Act 1999 is in force in respect of each light rail vehicle designed only to operate on a railway track or tracks that is operated by the accredited person and is required to be insured under that Act.(6) It is a condition of any accreditation that the accredited person comply with any applicable guidelines issued by the ITSRR under this Act.s 18: Am 2003 No 65, Sch 4 [22]–[24]; 2005 No 55, Sch 2 [8]–[10].
18A (Repealed)
s 18A: Ins 2003 No 65, Sch 4 [25]. Rep 2005 No 55, Sch 2 [11].
19 Provisional accreditation
(1) The ITSRR may grant provisional accreditation to a person as the operator of a railway for specified railway operations if:(a) the person is an applicant who has not satisfied all the requirements for a grant of accreditation and the ITSRR is satisfied that the person is in the course of preparing to satisfy those requirements, or(b) the ITSRR cancels the accreditation of the person, or(c) the ITSRR is of the opinion that the person requires accreditation in relation only to a specified event or for a limited period or that, for any other reason, it is appropriate to do so.(2) A grant of provisional accreditation:(a) may be subject to the same conditions and restrictions as a grant of accreditation under section 18, and(b) may be subject to conditions relating to the carrying out of work or the meeting of other requirements relating to accreditation, and(c) is to be for a specified period, not exceeding 12 months.(3) The ITSRR may renew a grant of provisional accreditation to a person only once.(4) This Act applies to a person granted provisional accreditation in the same way that it applies to a person granted accreditation under section 18.s 19: Am 2003 No 65, Sch 4 [26].
20 Notice of provisional accreditation
(1) The ITSRR must, by notice published in the Gazette, give notice of the cancellation of the accreditation of any person and the granting of provisional accreditation to the person.(2) The ITSRR may require a person granted provisional accreditation to give notice of that accreditation to specified persons or classes of persons.s 20: Am 2003 No 65, Sch 4 [27].
20A Application to Administrative Decisions Tribunal for review of decision of ITSRR
A person aggrieved by a decision of the ITSRR under this Division to refuse accreditation or to grant a provisional accreditation may apply to the Administrative Decisions Tribunal for a review of the decision.s 20A: Ins 2003 No 65, Sch 4 [28].
21 Exemptions from accreditation and accreditation requirements
(1) The ITSRR may, by written notice, exempt a person from compliance with all or any one or more of the requirements of this Division (including the requirement to be accredited), for the period specified in the notice.(2) An exemption may be subject to such conditions and restrictions (if any) as are prescribed by the regulations or specified by the ITSRR in the notice.(3) An exemption may be granted only if the person demonstrates, to the satisfaction of the ITSRR, that the systems, expertise, resources and methods to be employed with respect to the carrying out of railway operations are likely to achieve a level of safety that, in the opinion of the ITSRR, is appropriate for the railway operations concerned.(4) Without limiting subsection (2), a person may be exempted from a requirement under section 14 to submit documentation describing the applicant’s safety management system or to demonstrate the competency and capacity to implement and comply with a safety management system if the person demonstrates, to the satisfaction of the ITSRR, that those matters are covered, or are to be covered, by the provision of services to the person by another accredited person.(5) A person is not guilty of an offence of contravening a requirement of this Division in respect of which the person holds a current notice of exemption under this section.(6) The ITSRR may at any time, by written notice, revoke an exemption under this section or revoke or vary a condition or restriction to which an exemption is subject.s 21: Am 2003 No 65, Sch 4 [29]; 2005 No 55, Sch 2 [12]–[14].
22 Exemption of interstate railway operators
(1) A person who is the holder of an equivalent accreditation (however described) under an Act of another State or Territory or the Commonwealth may apply to the ITSRR for the granting of accreditation as the operator of a railway for specified railway operations.(2) The ITSRR may grant accreditation to the person, without requiring the person to comply with any or all of the requirements of this Division, if the ITSRR is satisfied that:(a) the person is the holder of an equivalent accreditation (however described) under an Act of another State or Territory or the Commonwealth, and(b) the requirements for that accreditation are of a satisfactory standard in relation to the safe carrying out of railway operations or that the carrying out of railway operations by the person is likely to achieve a level of safety that, in the opinion of the ITSRR, is appropriate for the railway operations concerned.(3) An accredited person who is the holder of an equivalent accreditation (however described) under an Act of another State or Territory or the Commonwealth must notify the ITSRR in writing, within 5 working days, of any cancellation, suspension, termination or variation or imposition of a condition affecting the person’s accreditation in that other State or Territory or the Commonwealth.(4) A person is not guilty of an offence of contravening a requirement of this Division if the person is, because of this section, not required to comply with that requirement.s 22: Am 2003 No 65, Sch 4 [30].
23 Exemption of operators of private sidings
(1) The owner of a private siding is not required to be accredited under this Act.(2) The owner of a private siding must, if the siding is connected with or has access to a railway or siding of a railway for which an accredited person is responsible:(a) enter into an agreement with the accredited person as to the management of the safety interface with the railway of the accredited person, and(b) notify the accredited person in writing of any railway operations affecting or relating to the siding that may adversely affect the safety of the railway or siding of the accredited person.(3) The agreement must comply with any requirements prescribed by the regulations.(4) An owner of a private siding who contravenes this section is guilty of an offence.Maximum penalty: 20 penalty units.(5) If the owner of a private siding does not comply with this section, the accredited operator of the railway or siding with which the private siding connects may apply to the ITSRR for permission to remove the private siding’s connection with the railway or siding.(6) If the ITSRR grants permission under subsection (5), this section authorises the disconnection of the private siding from the railway or siding concerned.(7) A person incurs no liability to the owner of a private siding if the person disconnects a private siding in accordance with permission granted under this section.s 23: Am 2003 No 65, Sch 4 [31].
24 Sale or transfer of railway by accredited person
(1) If an accredited person proposes to sell or otherwise transfer a railway in relation to which the person is accredited, the ITSRR may, on an application for accreditation under this Division being made by the proposed transferee, waive compliance by the proposed transferee with any one or more of the requirements of this Division.(2) The ITSRR is not to waive compliance with any such requirement unless the proposed transferee demonstrates, to the satisfaction of the ITSRR, that the proposed transferee has the capacity to comply with the relevant requirements of this Division that apply to applicants for accreditation of the appropriate kind.(3) A waiver of compliance with requirements under this section may be given subject to such conditions and restrictions (if any) as appear to the ITSRR to be appropriate.s 24: Am 2003 No 65, Sch 4 [32].
Division 2 Variation, suspension or cancellation of accreditation
25 Variation of accreditations
Having regard to the purpose of accreditation, the ITSRR may, at any time:(a) attach any conditions or restrictions to a person’s accreditation after it has been granted, or(b) amend or remove any conditions or restrictions on the accreditation, or(c) otherwise vary the accreditation.s 25: Am 2003 No 65, Sch 4 [33].
26 Declarations as to variation of accreditation
An accredited person must, at least 28 days before each anniversary of the person’s accreditation:(a) provide the ITSRR with a declaration stating that, so far as the person is presently aware, no circumstance exists that might require the person to apply for variation of the person’s accreditation in the forthcoming year, or(b) if any such circumstance does exist, apply to the ITSRR under this Division for variation of the accreditation.s 26: Am 2003 No 65, Sch 4 [34].
27 Requests by accredited persons for variation or surrender of accreditations
(1) An accredited person who proposes to carry out a railway operation in a manner, or a railway operation that is, not covered by the person’s accreditation must apply to the ITSRR for variation of the accreditation before commencing to carry out the railway operation concerned.Maximum penalty: 20 penalty units.(2) An accredited person may apply at any time to the ITSRR for variation of the person’s accreditation or to surrender the person’s accreditation.(3) Without limiting subsection (2), an accredited person may apply at any time for approval of a variation to a safety management system in respect of railway operations for which the person is accredited.(3A) The regulations may, unconditionally or subject to conditions, specify variations, or classes of variation, that may be made to an accredited person’s railway operations or safety management system without the need to apply to the ITSRR for a variation or an approval of a variation.(4) The ITSRR must not grant a variation of a person’s accreditation unless satisfied that the person meets the applicable accreditation requirements in respect of the varied accreditation.(5) An accredited person is not required to apply to the ITSRR for variation of the person’s accreditation if a change in carrying out a railway operation or to a railway operation is of a kind permitted under a condition of the person’s accreditation.s 27: Am 2003 No 65, Sch 4 [35]; 2005 No 55, Sch 2 [15].
28 Suspension or cancellation of accreditation
(1) Having regard to the purpose of accreditation, the ITSRR may suspend and cancel, or cancel, a person’s accreditation.(2) Without limiting this section, the ITSRR may suspend and cancel, or cancel, the accreditation of a person who contravenes the requirements of this Act, the regulations or any conditions or restrictions attached to the person’s accreditation.(3) The accreditation of a person may be cancelled by the ITSRR if no director or manager is designated for the purposes of section 9 (1) (a).s 28: Am 2003 No 65, Sch 4 [36].
29 Suspension of accreditation in emergency
(1) If the ITSRR considers that there would be an immediate and significant threat to the safety of the public or to property or both unless the accreditation of a person is suspended immediately, the ITSRR may, without complying with sections 31–34, suspend the accreditation immediately for a period (not exceeding 28 days) and on terms specified in the notice of suspension.(2) The ITSRR must have regard to the purposes of the accreditation concerned and to the matters referred to in section 31 before suspending an accreditation.(3) A suspension under this section must not be extended or the accreditation concerned cancelled unless the ITSRR has first complied with the requirements of sections 31–34 (as appropriately modified to meet the circumstances of the case).s 29: Am 2003 No 65, Sch 4 [37].
30 Requirements for variation, suspension or cancellation
(1) Before varying, suspending and cancelling or cancelling an accreditation of a railway operator, the ITSRR must comply with sections 31–34.(2) The ITSRR is not required to comply with sections 31–34 in relation to an application or variation under section 27 or 48A.s 30: Am 2003 No 65, Sch 4 [38]; 2005 No 55, Sch 2 [16].
31 Safety management system to be considered before action taken
Before varying, suspending and cancelling or cancelling an accreditation, the ITSRR must take into consideration the accredited person’s safety management system.s 31: Am 2003 No 65, Sch 4 [39]. Subst 2005 No 55, Sch 2 [17].
31A (Repealed)
s 31A: Ins 2003 No 65, Sch 4 [40]. Rep 2005 No 55, Sch 2 [18].
32 Notice of proposed action
(1) Before varying, suspending and cancelling or cancelling an accreditation, the ITSRR must give notice to the person concerned of the proposed action.(2) The notice must contain the following matters:(a) in the case of variation—the terms of the proposed variation,(b) in the case of suspension—the terms and period of the proposed suspension and the steps that it is proposed should be taken by the person to have the suspension lifted and to avoid cancellation of the accreditation,(c) a statement that the person may make representations to the ITSRR as to why the accreditation should not be varied, suspended or cancelled or as to any of the other matters in the notice.(3) The notice may provide that the representations are to be made to the ITSRR on or before a specified date, being a date that is reasonable in the circumstances of the case.s 32: Am 2003 No 65, Sch 4 [41].
33 Representations to ITSRR
(1) A person may, in accordance with a notice under section 32, make representations concerning the proposed variation, suspension and cancellation or cancellation.(2) The ITSRR must consider any representations made.s 33: Am 2003 No 65, Sch 4 [42].
34 Determination by ITSRR
(1) After considering any representations made about a proposed variation, suspension and cancellation or cancellation, the ITSRR may determine:(a) to vary, suspend or cancel the accreditation in accordance with the proposed variation, suspension and cancellation or cancellation, or(b) to vary, suspend or cancel the accreditation in accordance with modifications made to the proposed variation, suspension and cancellation or cancellation, or(c) not to vary, suspend or cancel the accreditation.(2) If the determination is to vary, suspend or cancel the accreditation in accordance with modifications made to the proposed variation, suspension and cancellation or cancellation, the ITSRR is not required to give notice under this Division of the proposed variation, suspension and cancellation or cancellation.s 34: Am 2003 No 65, Sch 4 [43].
35 Application to Administrative Decisions Tribunal for review of decision of ITSRR
A person aggrieved by a decision of the ITSRR under this Division may apply to the Administrative Decisions Tribunal for a review of the decision.s 35: Am 2003 No 65, Sch 4 [44].
Division 3 Certification of and requirements relating to railway employees
36 Employees to be issued with certificates of competency
(1) An operator of a railway may issue certificates of competency to employees or prospective employees of the operator who carry out, or intend to carry out, railway safety work.(2) A person other than the operator of the railway concerned may, if authorised in writing to do so by the ITSRR, issue certificates of competency to employees or prospective employees of an operator of a railway who carry out, or intend to carry out, railway safety work.(3) A person other than an operator of a railway must give to the ITSRR any information that the ITSRR reasonably requires in the circumstances to enable the ITSRR to effectively determine the person’s application for authorisation.(4) The regulations may prescribe information that an applicant for authorisation is required to give to the ITSRR.(5) An application for authorisation is to be in the approved form.(6) In issuing certificates of competency, an operator of a railway or other person is to have regard to any guidelines issued by the ITSRR for the purposes of this section.(7) An operator of a railway who employs, or enters into a contract with, a person to perform railway safety work is guilty of an offence unless the person is the holder of an appropriate certificate of competency issued under this section.Maximum penalty: 25 penalty units.s 36: Am 2003 No 65, Sch 4 [45] [46]; 2005 No 55, Sch 2 [19].
37 Employee must hold certificate of competency
A railway employee must not carry out railway safety work unless the employee is the holder of an appropriate certificate of competency issued under section 36.Maximum penalty: 25 penalty units.
37A Production of certificate of competency
A railway employee who is carrying out railway safety work must, when requested by an authorised officer to do so, produce to the authorised officer proof that the employee is the holder of an appropriate certificate of competency issued under section 36.Maximum penalty: 5 penalty units.s 37A: Ins 2003 No 65, Sch 4 [47].
38 Certificates of competency
The purpose of the issue of a certificate of competency is to attest that the person certified:(a) is considered to be of good health and fitness and in all other respects to be a fit and proper person to perform railway safety work, and(b) is considered to have sufficient knowledge, skills, responsibility and aptitude to perform the railway safety work to which the certification relates.
39 Register of certificates
(1) An operator of a railway or other person who issues certificates of competency must:(a) keep a register, in an approved form, of current certificates of competency issued by the operator or person, or(b) ensure that particulars of certificates issued by the operator or person are kept by an approved person in a register, in an approved form.Maximum penalty: 25 penalty units.(2) An operator of a railway or other person who keeps a register under this section may provide information obtained from the register to the ITSRR, another operator of a railway or any person who keeps a register under this section.s 39: Am 2003 No 65, Sch 4 [48].
40 Training of railway employees engaged in railway safety work
It is a condition of accreditation that an accredited person must ensure that all railway employees employed, or contracted, by the person to perform railway safety work are adequately trained to perform the functions for which they are certified.
41 Health and fitness of railway employees
(1) It is a condition of accreditation that an accredited person must ensure that all railway employees employed, or contracted, by the person to perform railway safety work are of sufficient good health and fitness to perform the functions for which they are certified.(2) An accredited person must not employ a person as a railway employee unless:(a) the employee meets any standard contained in guidelines issued under this section that are applicable to the employee, and(b) the accredited person complies with any standard contained in guidelines issued under this section that are applicable to the accredited person.Maximum penalty:(a) in the case of a corporation—250 penalty units, or(b) in the case of an individual—50 penalty units.(3) The ITSRR may issue guidelines containing standards for or with respect to the employment of railway employees, including, but not limited to, the health and fitness of those employees.s 41: Am 2005 No 55, Sch 2 [20].
42 Railway employees—alcohol or other drugs
(1) It is a condition of accreditation that an accredited person must:(a) prepare and implement a drug and alcohol program for its railway employees that complies with guidelines issued by the ITSRR for the purposes of this section, and(b) ensure that all railway employees employed, or contracted, by the person to perform railway safety work are not under the influence of alcohol or any other drug when about to carry out, or while on duty for the purpose of carrying out (whether or not carrying out), railway safety work.(2) The drug and alcohol program is to include any matters required to be included by the guidelines issued by the ITSRR for the purposes of this section.(3) Without limiting subsection (1) (a), the guidelines are to include provisions for or with respect to the following:(a) protocols for fair procedures,(b) education and assistance of railway employees.(4) The ITSRR may at any time arrange with an accredited person for the random testing of any person on duty for the purpose of carrying out railway safety work for the presence of alcohol or any other drug to ensure that the accredited person is complying with the terms of the person’s accreditation.(5) Schedule 1 has effect.(6) For the purposes of this section, a railway employee is to be regarded as being about to carry out railway safety work if the employee:(a) has left home or a temporary residence for work (being railway safety work), and(b) has not commenced work after having so left home or the temporary residence.s 42: Am 2003 No 65, Sch 4 [49]; 2005 No 55, Sch 2 [21].
43 Fatigue management
(1) It is a condition of accreditation that an accredited person must prepare and implement a program for the management of fatigue, safe hours of work and periods between work for its railway employees that complies with the regulations and guidelines issued by the ITSRR for the purposes of this section.(2) The program for the management of fatigue, safe hours of work and periods between work is to include any matters required to be included by the regulations and guidelines issued by the ITSRR for the purposes of this section.(3) It is a condition of accreditation that an accredited person must provide conditions of work in accordance with Schedule 2.(4) The regulations may exempt (either unconditionally or subject to conditions) an accredited person from a condition referred to in subsection (3).s 43: Am 2003 No 65, Sch 4 [50]; 2005 No 55, Sch 2 [21].
Division 4 Fees
44 Annual accreditation fees
An accredited person must pay the annual accreditation fee fixed by the ITSRR and published in the Gazette.s 44: Am 2003 No 65, Sch 4 [51].
45 Fixing of annual accreditation fees
(1) The ITSRR is to fix annual accreditation fees on the basis determined by the ITSRR and approved by the Minister.(2) The ITSRR may fix different fees for different classes of accredited persons or kinds of accreditations.(3) In determining the basis for fixing annual accreditation fees and in determining the fees, the ITSRR:(a) must have regard to any requirements relating to the basis on which fees are to be determined set out in the regulations, and(b) may use any information given to the ITSRR by an accredited person or an applicant for accreditation.(4) An accredited person must give to the ITSRR any information relating to the performance of a railway that the ITSRR considers necessary for the purposes of fixing annual accreditation fees under this section.s 45: Am 2003 No 65, Sch 4 [52].
46 Payment of annual fees
(1) An annual accreditation fee must be paid by a person who has applied for accreditation on or before accreditation and, by an accredited person, at least 28 days before each anniversary of the person’s accreditation.(2) The ITSRR may accept payment of an annual accreditation fee due and payable by a person in accordance with an agreement made with the person (for example, relating to the payment of fees by instalments).(3) The ITSRR may reduce or waive an annual accreditation fee having regard to the capacity of an accredited person to pay the fees.s 46: Am 2003 No 65, Sch 4 [53].
47 Additional time for payment
(1) If an annual accreditation fee is not paid by the due date, the accreditation of the person failing to pay the fee lapses and a fresh application for accreditation may be required if the person concerned wishes to continue to be accredited.(2) However, if the fee is paid by the date determined and notified to the person by the ITSRR, the accreditation is taken not to have lapsed.s 47: Am 2003 No 65, Sch 4 [54].
48 Minimum and late payment fees
(1) The ITSRR may fix minimum fees and impose additional fees for late payment of fees after the due date for payment.(2) A fee for late payment of fees may be, but is not required to be, calculated on a daily basis.(3) The ITSRR may, at the ITSRR’s discretion, waive payment of the whole or any part of a fee for late payment of a fee.s 48: Am 2003 No 65, Sch 4 [55] [56].
Part 3 Safety measures
Division 1 Safety management systems and annual safety reports
pt 3, div 1, hdg: Subst 2005 No 55, Sch 2 [22].
48A Safety management systems
(1) It is a condition of any accreditation that the accredited person:(a) has a system for identifying, managing and controlling the risks of carrying out the railway operations for which that person is accredited (a safety management system), and(b) ensures that the safety management system complies with any requirements that may be prescribed by or under this Act, and(c) ensures that the railway operations for which that person is accredited comply with the safety management system.(2) A safety management system must:(a) identify any significant risks that have arisen or may arise from the carrying out of railway operations by or on behalf of the accredited person, and(b) specify the controls (including audits, expertise, resources and staff) that are to be employed by the accredited person to manage the risks and to monitor safety outcomes in relation to those railway operations, and(c) be documented in an approved form, subject to any requirements prescribed by or under this Act.(3) An accredited person must, if directed to do so in writing by the ITSRR and within any period required by the ITSRR, vary its safety management system and amend or resubmit the relevant documentation to the ITSRR.(4) The ITSRR may issue guidelines with respect to safety management systems and the documentation of any such system.s 48A: Ins 2005 No 55, Sch 2 [22].
48B Annual safety report
(1) An accredited person must, not later than 28 days before each anniversary of the person’s accreditation or such other date as may be approved, give to the ITSRR an annual safety report.(2) The annual safety report must:(a) describe and assess the safety performance of the railway operations for which the person was accredited during the preceding 12 months, and(b) review any significant developments relating to the safety of those railway operations during that period, and(c) set out any safety initiatives proposed to be undertaken in relation to the railway operations in the next 12 months, and(d) comply with any requirements prescribed by the regulations or contained in guidelines issued by the ITSRR under this section.(3) An accredited person must, if directed to do so by the ITSRR and within any period required by the ITSRR, amend or resubmit an annual safety report given to the ITSRR.(4) The ITSRR may issue guidelines with respect to annual safety reports.s 48B: Ins 2005 No 55, Sch 2 [22].
Division 1A Inspections
pt 3, div 1A, hdg: Ins 2005 No 55, Sch 2 [22].
49 Safety inspections
(1) The ITSRR must cause inspections to be carried out to ensure that operators of railways:(a) carry out railway operations safely, and(b) comply with any applicable conditions or restrictions of accreditation or conditions or restrictions of exemptions from accreditation.(2) For the purposes of this section, the ITSRR may cause the following to be inspected:(a) the railway track, other infrastructure and rolling stock relating to the railway operations,(b) the carrying out of railway operations,(c) the performance of railway employees,(d) the arrangements for the security of members of the public using railways or in or on railway infrastructure,(e) any other thing the ITSRR considers to be relevant to the safe carrying out of railway operations.(3) The inspections are to be carried out at such intervals as the ITSRR thinks fit and:(a) in the case of an accredited person who carries out railway operations principally relating to the carriage of passengers, must be carried out at least once every 12 months, and(b) in the case of any other accredited person, must be carried out at least once every 3 years.(4) The ITSRR must, if requested to do so by the Minister and in accordance with any directions of the Minister, cause an inspection to be carried out under this section in respect of an operator of a railway.s 49: Am 2003 No 65, Sch 4 [57]; 2005 No 55, Sch 2 [23]–[28].
50 Regulations
The regulations may make provision for or with respect to the following matters:(a) the methodology or standards with which inspections carried out under this Division must comply,(b) provision of inspection reports to operators of railways,(c) procedures with respect to responses to inspection reports.s 50: Am 2005 No 55, Sch 2 [29].
Division 2 Improvement and prohibition notices and other requirements
51 Improvement notices
(1) An authorised officer may give an improvement notice to an accredited person or other person if the officer is of the opinion that:(a) the person is contravening any provision of this Act or the regulations or, in the case of an accredited person, any condition or restriction attached to the person’s accreditation, or(b) the person has contravened any such provision or condition or restriction in circumstances that make it likely that the contravention will continue or be repeated, or(c) in the case of an accredited person, that any railway operations for which the person is accredited are carried out in contravention of any applicable safety interface agreements, or(d) it is necessary to do so to ensure the safety of members of the public or other persons.(2) An improvement notice may require the person, within the period specified in the notice, to do any one or both of the following:(a) to remedy the contravention or the matters occasioning it,(b) to undertake remedial safety work.(3) The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention or to undertake remedial safety work must be at least 7 days after the notice is given.(4) However, an authorised officer may specify a period that is less than 7 days after the improvement notice is given if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of that period.(5) An improvement notice must:(a) state that the authorised officer is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) if in the authorised officer’s opinion there is a contravention of a provision of this Act or the regulations or a condition or restriction attached to an accreditation, specify the provision, condition or restriction, and(d) include information about obtaining a review of the notice under this Division.
52 Closure of level-crossings or other structures
(1) Without limiting section 51 (1), an improvement notice may direct an accredited person to close any level-crossing, bridge or other structure for crossing over or passing over or under a railway.(2) An accredited person given a direction must, before closing the level-crossing, bridge or other structure:(a) cause a notice of the proposed closure to be published in a local newspaper circulating in the area in which the level-crossing, bridge or other structure is situated, and(b) notify the Roads and Traffic Authority and the council of the area concerned of the proposed closure.(3) On the closure of the level-crossing, bridge or other structure, all rights, easements and privileges in relation to that crossing, bridge or other structure are extinguished.
53 Failure to comply with improvement notice
A person who, without reasonable excuse, fails to comply with a requirement imposed by an improvement notice is guilty of an offence.Maximum penalty:(a) in the case of a corporation (being a previous offender)—750 penalty units, or(b) in the case of a corporation (not being a previous offender)—500 penalty units, or(c) in the case of an individual not acting in the capacity of an employee (being a previous offender)—375 penalty units, or(d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)—250 penalty units, or(e) in the case of an individual acting in the capacity of an employee (being a previous offender)—22.5 penalty units, or(f) in the case of an individual acting in the capacity of an employee (not being a previous offender)—15 penalty units.
54 Prohibition notices
(1) If an authorised officer is of the opinion that at any railway premises there is occurring or is about to occur any activity that involves or will involve an immediate risk to the health or safety of any person, the authorised officer may give to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters that give or will give rise to the risk are remedied.(2) A prohibition notice must:(a) state that the authorised officer is of the opinion referred to in subsection (1), and(b) state the reasons for that opinion, and(c) specify the activity in respect of which that opinion is held, and(d) if in the authorised officer’s opinion the activity involves a contravention or likely contravention of any provision of this Act or the regulations or of a condition or restriction attached to an accreditation—specify that provision, condition or restriction and state the reasons for that opinion, and(e) include information about obtaining a review of the notice under this Division.(3) A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence.Maximum penalty:(a) in the case of a corporation (being a previous offender)—1,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—1,000 penalty units, or(c) in the case of an individual not acting in the capacity of an employee (being a previous offender)—750 penalty units, or(d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)—500 penalty units, or(e) in the case of an individual acting in the capacity of an employee (being a previous offender)—45 penalty units, or(f) in the case of an individual acting in the capacity of an employee (not being a previous offender)—30 penalty units.
55 Notices may include directions
(1) An authorised officer may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remedy any contravention or matter to which the notice relates or to otherwise comply with the notice.(2) Any such direction may:(a) adopt, by reference, the requirements of any industry or other code of practice or standard, and(b) offer the person to whom it is issued a choice of ways in which to remedy the contravention or matter or to comply with the notice.
56 Review of notices by ITSRR
(1) A person who is given a notice under this Division may apply in writing to the ITSRR for a review of the notice.(2) The application for review must be made within 7 days after the notice is given or, if the regulations prescribe a different period, within the period so prescribed.(3) An application for review may be made only once in respect of any particular notice.(4) The ITSRR is to review a notice that is the subject of a duly made application for review.(5) The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the ITSRR until the ITSRR gives notice to the applicant of the result of the review.(6) The ITSRR may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant.(7) Regulations may be made with respect to reviews under this section.s 56: Am 2003 No 65, Sch 4 [58].
57 Application to Administrative Decisions Tribunal for stay of prohibition notice
(1) A person who applies for a review of a prohibition notice under section 56 may apply to the Administrative Decisions Tribunal for a stay of the notice.(2) A stay may be granted for the period considered appropriate by the Tribunal, but not so as to extend past the time when notice of the result of the review is given to the applicant by the ITSRR.(3) A stay may be granted on such conditions as the Tribunal thinks appropriate and may be revoked or amended by the Tribunal.s 57: Am 2003 No 65, Sch 4 [59].
58 Appeal to Administrative Decisions Tribunal
A person who is aggrieved by a decision of the ITSRR on an application for a review under section 56 may apply to the Administrative Decisions Tribunal for a review of the decision.s 58: Am 2003 No 65, Sch 4 [60].
59 Withdrawal of notices
(1) An improvement notice or a prohibition notice may be withdrawn at any time by the authorised officer who gave the notice, or by the ITSRR, if satisfied that the notice was given in error or is incorrect in some respect.(2) The withdrawal has effect when notice of the withdrawal is given to the person to whom the notice was given.(3) The withdrawal or revocation of an improvement notice or a prohibition notice does not prevent the giving of any other notice.s 59: Am 2003 No 65, Sch 4 [61].
60 Proceedings for offences not affected by notices
The giving, variation, revocation or withdrawal of an improvement notice or a prohibition notice does not affect any proceedings for an offence against this Act or the regulations or any other Act or law in connection with any matter in respect of which the notice was issued.
Division 3 Safety reports and investigations
61 Definitions
In this Division:train safety record means any or all of the following:(a) all statements (whether oral or in writing) taken from persons by an authorised officer or other person for the purposes of a rail safety inquiry or an investigation under section 67, including any record of any such statement,(b) all communications (other than a train safety recording or a transcript of a train safety recording) between persons involved in the operation of a train,(c) medical or private information regarding persons (including deceased persons) involved in an accident or incident the subject of a rail safety inquiry,(d) train safety recordings and transcripts of train safety recordings,(e) any information collected for the purposes of a rail safety inquiry or an investigation under section 67 that is prescribed by the regulations.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, a signal box, a train control complex or other railway premises for the purpose of recording operational activities carried out by railway employees operating a train and other persons.s 61: Am 2005 No 55, Sch 2 [30] [31].
62 Industry safety reports
(1) The ITSRR must, in each year, provide to the Minister an industry safety report relating to the carrying out of railway operations by accredited persons.(2) The ITSRR must report on the matters prescribed by the regulations for the purposes of this section and may report on such other matters as the ITSRR thinks fit.(3) A report under this section may be included in the annual report of the ITSRR under the Annual Reports (Statutory Bodies) Act 1984.s 62: Am 2003 No 65, Sch 4 [62]–[64].
63 Provision of information relating to safety to ITSRR
(1) An accredited person must provide to the ITSRR the information concerning measures taken by the person to promote rail safety or concerning other matters relating to rail safety that the ITSRR reasonably requires.(2) An accredited person must submit a safety report to the ITSRR at such times as the ITSRR specifies by written notice given to the person.(3) The information or report must be provided in the approved form and manner.Maximum penalty:(a) in the case of a corporation (being a previous offender)—750 penalty units, or(b) in the case of a corporation (not being a previous offender)—500 penalty units, or(c) in the case of an individual (being a previous offender)—375 penalty units, or(d) in the case of an individual (not being a previous offender)—250 penalty units.s 63: Am 2003 No 65, Sch 4 [65].
64 Accredited persons must report notifiable occurrences
(1) It is a condition of accreditation that an accredited person must report any occurrence, of a kind prescribed by the regulations as a notifiable occurrence, that occurs on railway premises relating to railway operations for which the person is accredited.(2) A report under subsection (1) is to be made to the Chief Investigator, or such other person or persons as may be prescribed, within the time and manner prescribed.(3) The regulations may prescribe different reporting requirements in respect of different occurrences.s 64: Am 2003 No 65, Sch 4 [66]. Subst 2005 No 55, Sch 2 [32].
65 Reports of other matters
In addition to any other requirements of this Division, a condition may be imposed on an accredited person’s accreditation requiring the person to report specified incidents or kinds of incidents to the ITSRR.s 65: Am 2003 No 65, Sch 4 [67].
65A Confidential reporting of safety information by railway employees
(1) The Chief Investigator may establish a system for the voluntary reporting by railway employees of matters that may affect the safe carrying out of railway operations.(2) The Chief Investigator must not disclose to any other person, or to any court, any information that may identify an employee who provides information under any such voluntary reporting system unless:(a) the employee consents to the disclosure, or(b) the Chief Investigator or a court is of the opinion that it is necessary in the public interest that the information be disclosed.(3) Nothing in this section prevents the Chief Investigator from disclosing information obtained under this section to the Chief Executive or any member of staff of the ITSRR.(4) Regulations may be made for or with respect to the following matters:(a) the form and manner in which reports may be made,(b) the manner in which reports are to be dealt with and the purposes for which information reported under this section may be used,(c) other requirements for a system established under this section.(5) (Repealed)s 65A: Ins 2003 No 65, Sch 4 [68]. Am 2005 No 55, Sch 2 [33].
66 Investigation into railway accidents and incidents by railway operators
(1) An operator of a railway must, if required to do so by the Chief Investigator, investigate, and report to the Chief Investigator on:(a) any railway accident or incident that may affect the safe carrying out of railway operations for which the person is responsible, or(b) any matter that may be prescribed by the regulations.(2) A requirement under this section is to be imposed by notice in writing.(3) An investigation is to be conducted in a manner approved, and within the time required, by the Chief Investigator.(4) A report of an investigation is to be provided to the Chief Investigator and the ITSRR in a form and within the time required by the Chief Investigator.(5) An operator of a railway must, if required to do so by the Chief Investigator, review and resubmit a report prepared under this section.(6) The Chief Investigator must, on the 15th day of each month, forward to the Minister a list of any reports provided to the Chief Investigator under this section in the preceding month.(7) An operator of a railway who contravenes this section is guilty of an offence.Maximum penalty:(a) in the case of a corporation (being a previous offender)—750 penalty units, or(b) in the case of a corporation (not being a previous offender)—500 penalty units, or(c) in the case of an individual (being a previous offender)—375 penalty units, or(d) in the case of an individual (not being a previous offender)—250 penalty units.s 66: Am 2003 No 65, Sch 4 [69] [70]. Subst 2005 No 55, Sch 2 [34].
66A Information may not be used in certain proceedings
(1) Information that the Chief Investigator or ITSRR obtains by way of a report under section 66 cannot be used in evidence in any criminal or civil proceedings against the operator of a railway that provided the report.(2) However, the information may be relied on in any administrative action under this or any other Act if the action is taken for the purpose of the safe carrying out of railway operations.(3) A court may direct, if it is of the opinion that it is in the public interest to do so, that information referred to in subsection (1) may be used in evidence in particular criminal or civil proceedings, subject to the rules of evidence.(4) In determining the public interest under this section, a court is to take into account the adverse impact that use of the information may have on future disclosures by operators of railways under section 66.(5) This section does not apply:(a) to a train safety recording, or(b) in relation to criminal proceedings for an offence under Division 3 of Part 5 of the Crimes Act 1900, orNote—Division 3 of Part 5 of the Crimes Act 1900 contains offences dealing with the provision of false or misleading information.(c) to information, or in circumstances, that may be prescribed by the regulations.s 66A: Ins 2005 No 55, Sch 2 [34].
67 Investigations by the Chief Investigator
(1) The Chief Investigator may investigate any railway accident or incident that may affect the safe carrying out of railway operations.(2) The Chief Investigator must provide to the Minister a written report on an investigation under this section.(3) The Minister may require the Chief Investigator to investigate and report to the Minister on any railway accident or incident that may affect the safe carrying out of railway operations or the personal security of any railway employee or member of the public using a railway or in or on railway premises.(4) The Chief Investigator may recover the reasonable costs of conducting an investigation under this section as a debt due to the Crown in a court of competent jurisdiction. The costs are recoverable jointly or severally from any one or more operators of railways responsible for the railway operations concerned.(5) An investigation under this section may be carried out and a report provided under this section whether or not:(a) an investigation is being, or has been, conducted under any other Act or law (including any law of the Commonwealth) relating to the same matter, or(b) the matter is or may be subject to any criminal or civil proceedings, or(c) the matter is the subject of an inquest or inquiry under the Coroners Act 1980, or(d) the matter is or may be the subject of a rail safety inquiry.s 67: Am 2003 No 65, Sch 4 [71]–[77]. Subst 2005 No 55, Sch 2 [34].
67A Chief Investigator and transport safety investigator’s functions
(1) The Chief Investigator may, by notice in writing, require either or both of the following:(a) the attendance of any person at any place to answer questions in relation to an investigation under section 67,(b) the production of any documents or other things required for the purposes of any such investigation.(2) The Chief Investigator may require a person to answer questions in relation to an investigation under section 67.(3) A person must not, without reasonable excuse, fail to comply with a requirement made of the person under this section.Maximum penalty: 100 penalty units.Note—Section 89 provides protection in relation to self-incriminating evidence.(4) A person attending at a place to answer questions is to be paid expenses of the amount or at the rate approved by the Minister for the purposes of this section.(5) The Chief Investigator may appoint an authorised person (within the meaning of section 45DA of the Transport Administration Act 1988) as a transport safety investigator for the purposes of conducting an investigation under section 67.Note—Section 45DA of the Transport Administration Act 1988 permits the Chief Investigator to delegate any of his or her functions.(6) The Chief Investigator and each transport safety investigator have, in respect of any investigation under section 67, all the functions and immunities of an authorised officer and in the exercise of those functions, any reference in Division 1 of Part 4 to the ITSRR is taken to be a reference to the Chief Investigator.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
67B Rail safety inquiries
(1) The Minister may constitute one or more persons as a Board of Inquiry to conduct an inquiry (a rail safety inquiry) into any railway accident or incident or any other event, occurrence, practice or matter that may affect the safe carrying out of railway operations.(2) A rail safety inquiry may be carried out and a report provided whether or not:(a) an investigation is being, or has been, conducted under any other Act or law (including a law of the Commonwealth) relating to the same matter, or(b) the matter is or may be subject to any criminal or civil proceedings, or(c) the matter is the subject of an inquest or inquiry under the Coroners Act 1980.(3) The Minister may not terminate a rail safety inquiry.(4) A Board of Inquiry may, at a rail safety inquiry conducted by it, take evidence on oath or affirmation and, for that purpose, the person constituting the Board:(a) may require a person appearing at the inquiry to give evidence, to take an oath or to make an affirmation in a form approved by the person presiding, and(b) may administer an oath to, or take an affirmation from, a person appearing at the inquiry.(5) In conducting a rail safety inquiry, a Board of Inquiry:(a) is not bound to act in a formal manner, and(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate.(6) If the Board of Inquiry agrees, an agent (including a legal practitioner) may represent a person or body at a rail safety inquiry.(7) A Board of Inquiry is to determine its own procedure, except as provided by this Act or the regulations.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
67C Chief Investigator may request rail safety inquiry
(1) The Chief Investigator may, if he or she considers it to be appropriate in the circumstances, give a written notice to the Minister requesting that any railway accident or incident or any other event, occurrence, practice or matter that may affect the safe carrying out of railway operations be the subject of a rail safety inquiry.(2) If the Minister receives a written notice under subsection (1) from the Chief Investigator, the Minister is to:(a) constitute a Board of Inquiry to conduct a rail safety inquiry into the accident, incident, event, occurrence, practice or matter, or(b) within one month after receiving the notice, provide the Chief Investigator with written reasons for not doing so and table the notice and the reasons in each House of Parliament.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
67D Assessors
(1) A Board of Inquiry, when conducting, and making a determination in respect of, a rail safety inquiry is to sit with any assessors that may be appointed by the Minister for the purposes of the inquiry.(2) An assessor sitting with a Board of Inquiry has the power to advise the Board of Inquiry but not to adjudicate on any matter before the Board of Inquiry.(3) A Board of Inquiry has the right to consult, either collectively or individually, and either in public or in private, with assessors sitting with it.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
67E Witnesses and evidence at rail safety inquiries
(1) A Board of Inquiry may summon a person to appear at a rail safety inquiry conducted by the Board to give evidence and to produce any documents that are specified in the summons.(2) A Board of Inquiry may require a person appearing at a rail safety inquiry to do any one or more of the following:(a) be sworn or affirmed,(b) produce a document,(c) answer a question.(3) A person attending as a witness before a Board of Inquiry is to be paid expenses of the amount or at the rate approved by the Minister for the purposes of this section.(4) A person must not, without reasonable excuse, fail to comply with a requirement made of the person under this section.Maximum penalty:(a) in the case of a corporation (being a previous offender)—750 penalty units, or(b) in the case of a corporation (not being a previous offender)—500 penalty units, or(c) in the case of an individual (being a previous offender)—375 penalty units, or(d) in the case of an individual (not being a previous offender)—250 penalty units.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
67F Report on rail safety inquiry
A Board of Inquiry must, within the period required by the Minister, prepare a report as to the causes of the accident or incident or prepare a report on the other event, occurrence, practice or matter the subject of the rail safety inquiry and provide a copy of the report to the Minister.ss 67A–67F: Ins 2005 No 55, Sch 2 [34].
68 Tabling of reports
(1) The Minister is to lay (or cause to be laid) a report under section 62, 67 (2) or 67F before both Houses of Parliament as soon as reasonably practicable, but not later than 7 days, after the Minister receives the report.(2) If a House of Parliament is not sitting when the Minister seeks to lay a report before it, the Minister may present copies of the report to the Clerk of the House concerned.(3) The report:(a) is, on presentation and for all purposes, taken to have been laid before the House, and(b) may be printed by authority of the Clerk of the House, and(c) if so printed, is for all purposes taken to be a document published by or under the authority of the House, and(d) is to be recorded:(i) in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council, andon the first sitting day of the House after receipt of the report by the Clerk.(ii) in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,s 68: Am 2005 No 55, Sch 2 [35] [36].
69, 70 (Repealed)
s 69: Am 2003 No 65, Sch 4 [78]–[82]; 2005 No 55, Sch 2 [37].
s 70: Rep 2003 No 65, Sch 4 [83].
71 Disclosure of train safety record to Commonwealth or Commonwealth authority
(1) Despite any other provision of this Division, the ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was an authorised officer or any other person may, with the consent of the Minister, disclose to the Commonwealth or a Commonwealth authority the whole or part of a train safety record.(2) The Minister may not consent to a disclosure under this section unless the Minister is of the opinion that it is in the public interest to do so.s 71: Am 2003 No 65, Sch 4 [84]; 2005 No 55, Sch 2 [38].
72 Disclosure of train safety records (other than train safety recordings) to a court or person
(1) The ITSRR, Chief Investigator, a member of a Board of Inquiry or a person who is or was an authorised officer must not, except for the purposes of this Division, directly or indirectly:(a) disclose to any person, or to a court, the whole or part of a train safety record, or(b) produce to any person, or to a court, the whole or any part of a train safety record.Maximum penalty: 100 penalty units.(2) This section does not apply to or in respect of the following:(a) a train safety record that is a train safety recording,(b) criminal proceedings, investigations relating to a criminal offence, investigations by or proceedings before the coroner, or a proceeding relating to bail,(c) disclosure of a train safety record that is permitted under this Act or the regulations,(d) disclosure in accordance with an order of a court referred to in subsection (4).(3) A person may apply to the Supreme Court for an order that a train safety record must be disclosed to a court or produced to a court.(4) The Supreme Court must order the disclosure or production of the train safety record if it is satisfied that the public interest in the disclosure outweighs the adverse impact the disclosure or production may have on the inquiry or investigation to which the record relates or any future inquiries or investigations.(5) If the Supreme Court makes an order under subsection (4), the Court must also make an order that restricts access to the train safety record to:(a) the person or persons constituting the court, and(b) the parties to the proceedings (including any interveners), and(c) the parties’ legal representatives, andunless the Court is satisfied that such an order would not be in the interests of justice or would not be desirable in the interests of the court performing its functions.(d) specified witnesses for the purposes of the proceedings,s 72: Am 2003 No 65, Sch 4 [85]; 2005 No 55, Sch 2 [39] [40].
73 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, orotherwise than in the course of an inquiry or an investigation into an accident or incident under this Division or for the purposes of, or in connection with:(b) any information obtained from a train safety recording or any part of a train safety recording,(c) criminal proceedings (not being criminal proceedings in which it is not admissible) or investigations by or proceedings before the coroner, or(d) civil proceedings in which an order is made under section 75, or(e) a disclosure or publication that is permitted under this Act or the regulations.Maximum penalty: 100 penalty units.s 73: Am 2005 No 55, Sch 2 [41].
74 Evidence of train safety recordings in criminal proceedings
A train safety recording is not admissible in evidence in any criminal proceedings against a railway employee.
75 Evidence of train safety recordings in civil proceedings
(1) A train safety recording is not admissible in evidence in any civil proceedings against a railway employee.(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 it is satisfied:(i) that 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) that 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, andthe court may order that the train safety recording, or that part of the train safety recording, be admissible in evidence in the proceedings.(iii) that, 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 railway employees,(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.
76 Examination by a court of train safety recording
(1) This section applies if a court examines a train safety recording under section 75.(2) The only persons who may be present at the examination are:(a) the person or persons constituting the court, other than the members of the jury (if any), and(b) the legal representatives of the parties to the proceedings, and(c) such other persons (if any) as the court directs.(3) The court may direct that the train safety recording or the part of the train safety recording, or any information obtained from the recording or part of the recording, must not:(a) be published or communicated to any person, or(b) be published or communicated except in such manner, and to such persons, as the court specifies.(4) The train safety recording, or that part of the train safety recording, is not evidence for the purpose of the determination of the liability in the proceedings of a railway employee the subject of a recording.(5) If there are 2 or more defendants in the proceedings of whom at least one is a railway employee the subject of a recording and the remaining defendant or defendants are not railway employees the subject of a recording, the train safety recording, or that part of the train safety recording, is evidence for the purpose of determining whether or not any railway employee has been negligent for the purposes only of determining the liability in the proceedings of any defendant who is not a railway employee the subject of a recording.
77 Compliance with subpoenas and other directions
(1) The ITSRR, Chief Investigator, a member of a Board of Inquiry, an assessor or a person who is or was an authorised officer or an officer of the ITSRR or the Ministry of Transport is not obliged to comply with a subpoena or similar direction of a court in relation to civil proceedings to:(a) attend and answer questions relating to an accident or incident or other event, occurrence, practice or matter the subject of the rail safety inquiry or an investigation under section 67, orwithin 6 months after the day of the accident or incident.(b) attend and produce any part of a train safety record relating to any such accident or incident,(2) A person who has obtained a subpoena or similar direction from a court that does not have to be complied with because of subsection (1) may apply to that court for an order that the subpoena or similar direction be complied with.(3) If the court is satisfied that, in the circumstances of the case, it is desirable, in either the interests of justice or the performance by the court of its functions, for the officer or person to attend and answer questions or to attend and produce train safety records within 6 months after the day of the accident or incident, the court must order that the officer or person comply with the subpoena or similar direction.s 77: Am 2003 No 65, Sch 4 [86]; 2005 No 55, Sch 2 [42] [43].
78 Admissibility of other evidence and liability
(1) Nothing in this Division affects the admissibility in any proceedings of evidence of words spoken by a railway employee other than evidence constituted by a train safety recording or a transcript or summary of a train safety recording.(2) No liability is incurred by the State and no personal liability is incurred by, or by any person acting at the direction of, the Minister, the ITSRR, Chief Investigator or a member of a Board of Inquiry in respect of anything done in good faith in connection with the preparation or making public of a report, or the disclosure or publication of information, under this Division.(3) No liability is incurred by a person for publishing in good faith:(a) a report made public, or information published by the ITSRR, Chief Investigator or a member of a Board of Inquiry, under this Division, or(b) a fair report or summary of any such report or information.(4) In this section:liability includes liability for defamation.the State includes the Crown in right of the State and the Government of the State.s 78: Am 2003 No 65, Sch 4 [87] [88]; 2005 No 55, Sch 2 [44].
Part 4 Enforcement
Division 1 Power of entry
79 Power of entry
(1) An authorised officer may enter any railway premises for the purposes of this Act, including the following purposes:(a) the purposes of an inspection, investigation, rail safety inquiry or other inquiry under this Act,(b) the purpose of determining whether there has been a contravention of the Act, the regulations or the terms of an accreditation.(2) Entry may only be made at a reasonable hour in the daytime or at any hour during which a railway operation or other related activity is in progress or is usually carried out in or on the railway premises.
80 Inspections and investigations
An authorised officer has the following powers on railway premises that the officer is authorised to enter under this Act:(a) power to inspect any infrastructure, over track structures or rolling stock or any part of the infrastructure, over track structures or rolling stock of a railway in or on the premises,(b) power to inquire into any notifiable occurrence, railway accident or other incident affecting the safe carrying out of railway operations or the personal security of members of the public or railway employees that has happened in or on the premises,(c) power to 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,(d) power to examine and test any part of the railway or rolling stock,(e) power to take samples or photographs in connection with any inspection or inquiry,(f) power to search for evidence of any contravention of this Act, the regulations or the terms of accreditations,(g) power to search for and inspect relevant documents and require any person in or on the premises to produce to the authorised officer any relevant documents in the person’s custody or under the person’s control,(h) power to require any person in or on the premises to answer questions or otherwise give information in relation to the matter the subject of the inspection, investigation or inquiry,(i) power to exercise functions under section 81 in relation to any relevant documents found in or on the premises or produced to an authorised officer,(ia) power to seize anything that the authorised officer suspects on reasonable grounds is connected with an offence against this Act or the regulations or to secure any such thing against interference,(j) power to secure the perimeter of the site of any notifiable occurrence, railway accident or other incident by whatever means, and for such period, as the authorised officer considers appropriate or the ITSRR specifies.s 80: Am 2003 No 65, Sch 4 [89]–[91].
81 Functions of authorised officers in relation to relevant documents
(1) An authorised officer has the following powers in relation to relevant documents found by an authorised officer in or on railway premises entered by the authorised officer or produced to the authorised officer pursuant to a requirement made under this Part:(a) power to take possession of the documents or secure them against interference,(b) power to make copies of, or take extracts from, the documents,(c) power to require any person who was party to the creation of the documents to make a statement providing any explanation that the person is able to provide as to any matter relating to the creation of the documents or as to any matter to which the documents relate,(d) power to retain possession of the documents for such period as is necessary to enable the documents to be inspected, and copies of, or extracts from, the documents to be made or taken.(2) While an authorised officer retains possession of a document, the authorised officer must permit a person who would be entitled to inspect the document were it not in the possession of the authorised officer to inspect the document at any reasonable time and make a copy of, or take extracts from, the document.(3) If an authorised officer takes possession of or secures against interference any relevant document on which a person has a lien, the authorised officer’s actions do not prejudice the lien.
82 Notice of entry
Before an authorised officer enters railway premises under this Act, the authorised officer must give the owner or occupier of the railway premises reasonable notice of the intention to enter the railway premises unless:(a) the giving of notice would defeat the purpose for which it is intended to enter the premises, or(b) entry to the premises is made with the consent of the owner or occupier of the premises, or(c) entry is required in an emergency.
83 Use of force
A power conferred by this Act to enter any railway premises, or to do anything in or on any railway premises, may not be exercised unless the authorised 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 entry is effected.
84 Care to be taken
In the exercise of a function under this Division, an authorised officer must do as little damage as possible.
85 Recovery of cost of entry and inspection
The ITSRR may recover from an accredited person the reasonable costs of the entry and inspection of railway premises in respect of which the person is accredited (other than the costs of a routine safety inspection under Part 3).s 85: Am 2003 No 65, Sch 4 [92].
86 Compensation
The ITSRR must pay compensation for any damage caused by any authorised officer in the exercise of a power to enter railway premises under this Division, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act or law.s 86: Am 2003 No 65, Sch 4 [93].
87 Authority to enter railway premises
(1) A power conferred by this Division to enter railway premises, or to make an inspection or take other action on railway premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority, if required to do so by the owner or occupier of the premises.(2) The authority must be a written authority that is issued by the ITSRR and that:(a) states that it is issued under this Act, and(b) states the name of the person to whom it is issued, and(c) describes the nature of the powers conferred and the source of the powers, and(d) states the date (if any) on which it expires, and(e) describes the railway premises to which the power extends, and(f) bears the signature of the ITSRR or an approved person.(3) This section does not apply to a power conferred by a search warrant.s 87: Am 2003 No 65, Sch 4 [94].
88 Premises used for residential purposes
The powers of entry and inspection conferred by this Division are not exercisable in relation to any premises or part of premises that are being used for residential purposes except:(a) with the permission of the occupier of the premises or part of the premises, or(b) under the authority conferred by a search warrant.
89 Protection from incrimination
(1) A person is not excused from any of the following requirements made under this Act on the ground that the statement might tend to incriminate him or her:(a) a requirement to answer a question or produce a thing,(b) a requirement to make a statement.(2) However, the answer to the question, production of the thing, any information obtained as a direct result of the answer or production, or the statement, is not admissible in evidence against the person in criminal proceedings:(a) if the person claims before giving the answer, producing the thing or making the statement that it might tend to incriminate the person, or(b) unless the person’s entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person’s attention before the statement was made.(3) Except as provided by subsection (2), an answer to a question, production of a thing, any information obtained as a direct result of any such answer or production, or a statement made by a person, in compliance with a requirement under this Act, may be used in evidence in any criminal or civil proceedings against the person.
90 Search warrants
(1) An authorised officer may apply to an authorised justice for a search warrant if the authorised officer has reasonable grounds for believing that the provisions of this Act, the regulations or the terms of an accreditation or certification have been or are being contravened in or on any railway premises.(2) An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant:(a) to enter the railway premises, and(b) to search the railway premises for evidence of a contravention of this Act, the regulations or the terms of an accreditation.(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.(4) Without limiting the generality of section 18 of the Search Warrants Act 1985, a police officer:(a) may accompany an authorised officer executing a search warrant issued under this section, and(b) may take all reasonable steps to assist the authorised officer in the exercise of the person’s functions under this section.(5) In this section, has the same meaning as it has in the Search Warrants Act 1985.
Division 2 Offences and proceedings
91 Offences involving accreditation, certification and authorisation
(1) A person who:(a) by any false statement or misrepresentation, obtains or attempts to obtain any accreditation, certification or authorisation under this Act, or(b) forges or fraudulently alters or uses or purports to use any accreditation, certification or authorisation, oris guilty of an offence.(c) fraudulently allows any such accreditation, certification or authorisation to be used by any other person,(2) A person who:(a) contravenes a condition or restriction attached to an accreditation, or(b) knowingly permits another person to contravene a condition or restriction attached to an accreditation, oris guilty of an offence.(c) knowingly carries out, or permits the carrying out of, a railway operation that is not authorised by an accreditation or in a manner that is not authorised by an accreditation,(3) In this section:means an authorisation under section 36.Maximum penalty:(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or(d) in the case of an individual (not being a previous offender)—500 penalty units.
92 Failure to maintain safety systems, devices or appliances
(1) An accredited person who fails to install and maintain, or maintain, a system, device or appliance on a railway or rolling stock in accordance with the terms of the person’s accreditation is guilty of an offence.(2) An accredited person who fails to carry out a railway operation in accordance with any terms of the person’s accreditation related to the person’s safety management systems is guilty of an offence.(3) It is a defence to an offence under this section if the defendant proves that the failure concerned did not, and was not likely to, affect the safe carrying out of railway operations.(4) (Repealed)Maximum penalty:(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or(c) in the case of an individual (being a previous offender)—750 penalty units or 2 years imprisonment, or both, or(d) in the case of an individual (not being a previous offender)—500 penalty units.s 92: Am 2003 No 65, Sch 4 [95].
93 Tampering with railway equipment
(1) A person who tampers with or disables:(a) the safety equipment (including track and communication systems) of a railway or of a unit or units of rolling stock, oris guilty of an offence.(b) the interlocking system of a railway,(2) In this section:interlocking system means any lever or collection of levers, or electrical, electronic or mechanical device or devices, that operate or control points and signals, or signals, and that are interlocked to prevent conflicting movements of trains.Maximum penalty: 1,000 penalty units or 3 years imprisonment, or both.
94 Private sidings
A person must not move a train to or from a private siding unless the person is an accredited person who is accredited to do so.Maximum penalty:(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or(c) in the case of an individual (being a previous offender)—750 penalty units or 2 years imprisonment, or both, or(d) in the case of an individual (not being a previous offender)—500 penalty units.
95 Railway offences
The regulations may make provision for or with respect to the following:(a) the regulation or prohibition of persons travelling or attempting to travel on a train without paying a fare or without paying the correct fare,(b) the regulation or prohibition of persons who travel or attempt to travel on a train for which they do not have the correct, or a valid, ticket or pass,(c) the regulation or prohibition of persons who fail to pay a fare on demand,(d) the regulation or prohibition of eating, drinking or smoking in trains or in other public areas of a railway,(e) the conduct of passengers and drivers on trains or in other parts of a railway,(f) the powers and duties of drivers of trains and of authorised officers,(g) the authority of drivers of trains, and of authorised officers, to eject persons guilty of any contravention of a regulation,(h) the taking up or setting down of passengers or other matters incidental to the transport of passengers,(i) the carriage of passengers’ luggage or other goods, and animals, on trains,(j) the regulation or prohibition of the carriage of passengers standing in or on any part of the train,(k) the custody and return of property left in trains or in other parts of a railway, the payment of compensation for any such property and the disposal or sale of any such property not claimed and the time of any such disposal or sale,(l) the exhibition in or on any train or other part of a railway of such notices in the public interest as the ITSRR considers necessary,(m) the erection and display of signs and notices for the guidance of drivers of trains and the public,(n) the sale of tickets and the conditions under which tickets must be sold,(o) generally as to the regulation and control of trains, of their drivers and passengers, and of other parts of a railway.s 95: Am 2003 No 65, Sch 4 [96].
96 Offenders to state name and address
(1) A person reasonably suspected by a police officer or an authorised officer to be committing or to have committed an offence against this Act or the regulations may be required to state his or her full name and residential address.(2) A person who, without reasonable excuse:(a) fails or refuses to comply with the requirements of a police officer or authorised officer made under subsection (1), oris guilty of an offence.(b) in purported compliance with such a requirement, states a name that is not his or her name or an address that is not his or her residential address,Maximum penalty: 15 penalty units.(3) The police officer or authorised officer may request the person to provide reasonable proof of the person’s identity.(4) A person is not guilty of an offence under this section unless it is established that the police officer or authorised officer:(a) warned the person that a failure or refusal to comply with the requirement is an offence, and(b) identified himself or herself as a police officer or as an authorised officer.(5) In this section, includes, in the case of a railway specified in an accreditation under this Act, a person nominated by a person accredited in respect of that railway and appointed by the ITSRR to be an authorised officer for the purposes of this section.(6) The authority of a person appointed under subsection (5):(a) is limited to the railway specified in the accreditation of the person who nominates the person to the ITSRR for appointment, and(b) may be limited by the instrument of appointment to matters specified in the instrument.(7) The ITSRR must provide a person authorised under subsection (5) with a certificate of appointment as an authorised officer and the officer must, if requested to do so, produce the certificate to any person requested by the officer to comply with this section.(8) Information obtained under this section by a person appointed under subsection (5) must be forwarded to the ITSRR for consideration and, if appropriate, the taking of action in accordance with this Division.s 96: Am 2003 No 65, Sch 4 [97].
97 Obstruction
A person must not:(a) hinder or obstruct an authorised officer in a manner that interferes with the performance by the officer of his or her functions under this Act or the regulations, or(b) being the occupier or person in charge of railway premises or any other place or land entered by the authorised officer under a power conferred by this Act, fail to provide the officer with all reasonable facilities and assistance for the effective exercise of the officer’s powers under this Act, or(c) fail, without reasonable excuse, to answer questions or give information when required to do so by an authorised officer in the exercise of his or her functions as an authorised officer, or(d) fail to produce for inspection any documents when required to do so by an authorised officer in the exercise of his or her functions as an authorised officer.Maximum penalty:(a) in the case of a corporation—1,000 penalty units and, in the case of a continuing offence, a further penalty of 500 penalty units for each day the offence continues, or(b) in the case of an individual—500 penalty units and, in the case of a continuing offence, a further penalty of 250 penalty units for each day the offence continues.
98 (Repealed)
s 98: Am 2003 No 65, Sch 4 [98]. Rep 2005 No 55, Sch 2 [45].
99 Offence of impersonating an authorised officer
A person must not impersonate, or falsely represent that the person is, an authorised officer.Maximum penalty: 100 penalty units.
100 Offences by directors or managers of corporations
(1) If a person knowingly contravenes, whether by act or omission, any provision of this Act or the regulations:(a) while acting in the capacity of a director, a person concerned in the management, or an employee or an agent, of a corporation, orthe corporation is taken to have contravened the same provision.(b) at the direction or with the consent or agreement (whether express or implied) of such a director, person, employee or agent,(2) A corporation may be proceeded against and convicted under a provision pursuant to subsection (1), whether or not the director, person, employee or agent has been proceeded against or convicted under that provision.(3) Nothing in this section affects any liability imposed on a person for an offence committed by the person against this Act or the regulations.
101 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:(a) the corporation contravened the provision without the actual, imputed or constructive knowledge of the person, or(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.
102 Double jeopardy
If an act or omission constitutes an offence under this Act or the regulations and:(a) under the Occupational Health and Safety Act 2000 or the regulations made under that Act, or(b) under associated occupational health and safety legislation within the meaning of that Act, orthe offender is not to be punished twice in respect of the offence.(c) under the Road and Rail Transport (Dangerous Goods) Act 1997 or the regulations made under that Act,
103 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be disposed of in a summary manner before:(a) a Local Court, or(b) the Supreme Court in its summary jurisdiction.(2) The maximum pecuniary penalty that may be imposed by a Local Court in proceedings for an offence against this Act or the regulations is 500 penalty units.(3) Proceedings for an offence against this Act or the regulations may be taken within 2 years after the offence was committed despite anything in any other Act.(4) In any proceedings for an offence under this Act, the onus of proving that a person had a reasonable excuse is on the defendant.
104 Authority to take proceedings
(1) Subject to this section, any legal proceedings for an offence against, or to recover any charge, fee or money due under, this Act or the regulations may be taken only by the ITSRR or by a person authorised by the ITSRR for the purpose, either generally or in any particular case.(2) Proceedings for an offence against this Act are not to be instituted in the Supreme Court in its summary jurisdiction without the written consent of the ITSRR or of any other officer of the ITSRR authorised by the ITSRR for the purposes of this section.(3) Proceedings against the Crown or a statutory body representing the Crown for an offence against this Act or the regulations are not to be instituted without the written consent of the Minister.(4) In any proceedings referred to in this section, the production of an authority or consent purporting to be signed by the ITSRR or the Minister is to be evidence of the authority or consent without proof of the signature of the ITSRR or the Minister.(5) The ITSRR may, for the purposes of subsection (1), authorise any person who is a member of a specified class of persons to take the actions referred to in that subsection.s 104: Am 2003 No 65, Sch 4 [99] [100].
105 Penalty notices for certain offences
(1) An authorised officer may serve a penalty notice on a person who appears to the officer to have committed a penalty notice offence.(2) The amount of the penalty to be specified in a penalty notice is the amount prescribed by the regulations for the alleged offence concerned, being an amount not exceeding the maximum amount of penalty that could be imposed for the offence by a court.(3) A penalty notice may be served personally or by post.(4) If the amount of the penalty prescribed by the regulations for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(5) Payment of a penalty under this section is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(6) This section does not limit the operation of any other provision of this or any other Act or any statutory rule.(7) In this section:penalty notice means a notice to the effect that, if the person served with the notice does not wish to have an alleged offence dealt with by a court, the person may pay, in accordance with the notice, the penalty specified in the notice.penalty notice offence means an offence against this Act or the regulations declared by the regulations to be a penalty notice offence.
106 Recovery of amounts due
Any fees, charges or other money payable under this Act or the regulations may be recovered by the ITSRR as a debt in any court of competent jurisdiction.s 106: Am 2003 No 65, Sch 4 [101].
107 Records and evidence from records
(1) The ITSRR must keep records of the grant, refusal, variation, suspension and cancellation of accreditations under this Act.(2) A certificate purporting to be signed by the ITSRR and certifying that:(a) on a date specified in the certificate, orthe particulars set out in the certificate as to any matter required to be recorded under this section did or did not appear on or from the records is, for the purposes of any legal proceedings, prima facie evidence of what it certifies.(b) during any period so specified,(3) Such a certificate is admissible in any proceedings:(a) without proof of the signature of the ITSRR, and(b) without production of any record or document on which the certificate is founded.s 107: Am 2003 No 65, Sch 4 [102].
Part 5 General
Division 1 Administration
108 Functions of ITSRR
The functions of the ITSRR under this Act include the following:(a) accreditation of operators of railways under Part 2 and the variation, suspension and cancellation or cancellation of accreditation granted under that Part,(b) development of safety performance systems for the safe carrying on of railway operations,(c) development of safety performance systems for the personal security of members of the public and railway employees using railways or in or on railway premises,(d) monitoring the effectiveness of safety performance systems and revising, replacing or repealing those systems and developing new systems, as necessary,(e) arranging for the conduct of inspections to monitor compliance of operators and railway employees with the requirements of this Act, the regulations and accreditations,(f) issuing directions for the purposes of Part 3,(g) considering and acting on reports of notifiable occurrences under Part 3,(h) arranging for the investigation of possible breaches of this Act and the regulations,(i) (Repealed)(j) arranging for the provision of advice to intending applicants for accreditation on such matters as safety performance systems and the criteria for the grant of accreditations and certifications and concerning railway safety generally,(k) making recommendations to the Minister concerning railway safety generally,(l) issuing guidelines as required or permitted by or under this Act.s 108: Am 2003 No 65, Sch 4 [103]; 2005 No 55, Sch 2 [46].
108A (Repealed)
s 108A: Ins 2003 No 65, Sch 4 [104]. Rep 2005 No 55, Sch 2 [47].
109 Exchange of information
(1) The ITSRR may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the ITSRR and the agency.(2) The information to which an information sharing arrangement may relate is limited to the following:(a) information concerning possible breaches of this Act or the regulations,(b) information concerning the safe carrying out of railway operations,(c) any other information that may be prescribed by the regulations.(3) Under an information sharing arrangement, the ITSRR and the relevant agency are, despite any other Act or other law of the State, authorised:(a) to request and receive information held by the other party to the arrangement, andbut only to the extent that the information is reasonably necessary to assist in the exercise of functions of the ITSRR under this Act (or any other Act administered by the Minister for Transport, whether solely or jointly with another Minister) or the functions of the relevant agency concerned.(b) to disclose information to the other party,(4) This section does not limit the operation of any Act under which the ITSRR or a relevant agency is authorised or required to disclose information to another person or body.(5) This section does not permit the disclosure of information in contravention of section 65A.(6) In this section:relevant agency means:(a) the WorkCover Authority constituted by the Workplace Injury Management and Workers Compensation Act 1998, or(b) the Chief Investigator, or(c) any other person or body prescribed by the regulations.s 109: Rep 2003 No 65, Sch 4 [105]. Ins 2005 No 55, Sch 2 [48].
110 (Repealed)
s 110: Rep 2003 No 65, Sch 4 [106].
111 Appointment of authorised officers
(1) The ITSRR may appoint a member of staff of the ITSRR, or a person of a class prescribed by the regulations, to be an authorised officer for the purposes of this Act.(2) An authorised officer appointed by the ITSRR may exercise the functions of an authorised officer under this Act.(3) The authority of an authorised officer may be limited by the relevant instrument of appointment to the functions specified in the instrument of appointment.(4) In addition to any other persons who may be appointed as authorised officers under this Act, the ITSRR may, for the purpose of the investigation or exercise of powers related to a specified railway accident or railway incident, appoint as an authorised officer a person exercising powers, or holding office under, a Commonwealth Act.s 111: Am 2003 No 65, Sch 4 [107]. Subst 2005 No 55, Sch 2 [49].
112 Delegation by Minister
(1) The Minister may delegate any function under this Act (except this power of delegation) to any officer of the ITSRR.(2) (Repealed)(3) A reference in this section to a function under this Act includes a reference to a function under a condition of an accreditation or certification.s 112: Am 2003 No 65, Sch 4 [108] [109].
113 Exclusion of personal liability
No matter or thing done, or omitted to be done, by the Minister, the ITSRR, Chief Investigator, a member of, or an assessor for, a Board of Inquiry, an officer of the ITSRR, an authorised officer or a person acting under the direction of the Minister, the ITSRR, the Chief Investigator, the member or any such officer subjects the Minister, the ITSRR, the Chief Investigator, the member or any such officer or person personally to any action, liability, claim or demand if the matter or thing was done, or omitted to be done, in good faith for the purposes of this or any other Act.s 113: Am 2003 No 65, Sch 4 [110] [111]; 2005 No 55, Sch 2 [50] [51].
114 Exclusion of liability of the State
No act or omission of the Minister, the ITSRR, Chief Investigator, a member of, or an assessor for, a Board of Inquiry or an officer of the ITSRR in the course of exercising functions under this Act gives rise to any civil liability (including, for example, liability in negligence or for breach of statutory duty) against the State or any authority of the State.s 114: Am 2003 No 65, Sch 4 [112]; 2005 No 55, Sch 2 [52].
Division 2 Miscellaneous
115 Savings of other Acts etc
This Act does not affect the operation of the following:(a) the Road and Rail Transport (Dangerous Goods) Act 1997 or regulations made under that Act,(b) the Occupational Health and Safety Act 2000, associated occupational health and safety legislation within the meaning of that Act or regulations made under that Act or legislation,(c) the functions of the WorkCover Authority under the Occupational Health and Safety Act 2000 or associated occupational health and safety legislation within the meaning of that Act.
116 Service of documents
(1) A document that is authorised or required under this Act to be given to or served on any person may be served:(a) personally or by post, or(b) by leaving it with a person apparently of or above the age of 16 years at, or by posting it to, the person’s place of business or, in the case of a corporation, the registered office of the corporation.(2) If a person on whom a document is authorised or required under this Act to be served is absent from the State or cannot, after diligent inquiry, be found, and that person’s place of residence or business cannot, after diligent inquiry, be ascertained, the document may be served by affixing it on some conspicuous part of the land on which the railway of which the person is the operator is located.(3) If, under this Act, a document is authorised or required to be served on the holder of an accreditation and there is more than one holder, service on any one holder of the document, together with copies of the document addressed to the other holders, is taken to be service on all of the holders.(4) If a person has more than one place of business, service may be effected under this section at any of those places.(5) Nothing in this section prevents service of a document from being effected by facsimile transmission or other electronic means, or by the use of the facilities of a document exchange, but the burden of establishing that service has been so effected is on the person asserting that fact.
116A Guidelines
(1) The ITSRR may issue guidelines for or with respect to any matter for which guidelines may be issued under this Act. The ITSRR may from time to time amend or replace the guidelines.(2) Guidelines issued by the ITSRR may apply, adopt or incorporate any publication as in force for the time being.(3) A guideline issued under this Act, or an amendment to or revocation of any such guideline, is to be published in the Gazette.(4) A guideline, or an amendment to, or revocation of, a guideline takes effect on the date of publication or any later date specified in the guideline.Editorial note—For guidelines under this Act, see Gazettes No 134 of 29.8.2003, pp 9077, 9088, 9094; No 198 of 24.12.2003, pp 11703 (see also Gazettes No 8 of 9.1.2004, p 146 and No 145 of 24.11.2006, p 9982), 11719, 11728; No 88 of 30.6.2006, p 5165; No 98 of 4.8.2006, p 6138; No 183 of 15.12.2006, p 11058; No 189 of 22.12.2006, p 11891 and No 33 of 23.2.2007, p 1116.s 116A: Ins 2005 No 55, Sch 2 [53].
117 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to the following:(a) the safe operation and maintenance of historic or preserved rolling stock,(b) the safe construction, operation and maintenance of sidings (including private sidings),(c) the functions, training, health and fitness of railway employees,(d) the regulation of the conduct of passengers and other persons on railways,(e) the exclusion of persons, animals or freight from railways,(f) tampering with, or damaging, railways,(g) the unauthorised use of railways and rolling stock,(h) trespass on railways,(i) the opening and closing of railway gates,(j) the regulation of vehicles, animals and pedestrians crossing railway tracks,(k) the regulation of level-crossings,(l) the loading and unloading of freight on railways,(m) the publication of statistics relating to rail safety,(n) standards (including age restrictions and physical requirements) for the employment of railway employees and for the issue of certificates of competency,(n1) certificates of competency, including cancellation and suspension of certificates and monitoring of procedures relating to certificates of competency,(o) the management of fatigue, including safe hours of work and periods between work for railway employees,(p) rules relating to railway network operations and operations of specified operators and the making of any such rules,(q) standards for railway operations, including standards for rolling stock, network control systems and any other infrastructure of a railway,(r) requirements for registers of information to be kept by operators of railways under this Act including, but not limited to, the information that is to be held on the register and access to the register,(s) passenger safety and security,(t) train safety recordings,(u) conditions of, or restrictions on, accreditation.(3) Without limiting subsection (2), regulations made under that subsection may provide for the issue of guidelines by the ITSRR with respect to the matters referred to in that subsection.(4) The regulations may exempt, or provide for the exemption of, either absolutely or subject to conditions, any person, railway, part of a railway or operation from all or any of the provisions of this Act.(5) In the event of an inconsistency between a by-law or regulation made, or taken to be made, under the Transport Administration Act 1988 and a regulation made under this Act, the regulation made under this Act prevails to the extent of the inconsistency.(6) A regulation made under this Act does not limit the operation of a by-law or regulation made, or taken to be made, under the Transport Administration Act 1988 so far as it can operate concurrently with a regulation made under this Act.(7) The regulations may create offences punishable by a penalty not exceeding 250 penalty units.s 117: Am 2003 No 65, Sch 4 [113]–[115]; 2005 No 55, Sch 2 [54]–[56].
118 Repeal
The Rail Safety Act 1993 is repealed.
119 Savings and transitional provisions
Schedule 5 has effect.
120 (Repealed)
s 120: Rep 2003 No 82, Sch 3.
121 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1 Railway employees—alcohol or other drugs
(Section 42 (5))
1 Application of Schedule
This Schedule applies to the testing of railway employees for the presence of alcohol or drugs.
2 Regulations relating to alcohol and drug testing
(1) The regulations may make provision for or with respect to the following:(a) the authorisation of persons (including authorised officers):(i) to administer breath tests, breath analyses or other tests for the purpose of detecting the presence of alcohol or drugs, and(ii) to operate equipment for that purpose,(b) the circumstances when tests for detecting the presence of alcohol or drugs may be conducted, including (but not limited to) random testing and testing of employees when about to carry out, or while on duty for the purpose of carrying out, railway safety work,(c) the conduct of testing, which may include the taking of blood or urine samples or other body tissues or fluids,(d) the taking of samples of blood or urine or other body fluids or tissues,(e) the devices used in carrying out breath tests, breath analyses and other tests, including the calibration, inspection and testing of those devices,(f) the accreditation of persons conducting analyses for the presence of drugs,(g) the procedure for the handling and analysis of samples of blood or urine or other body tissues or fluids,(h) offences relating to the carrying out of railway safety work while under the influence of alcohol or any other drug,(i) offences relating to the carrying out of railway safety work while the prescribed concentration of alcohol is present in the employee’s blood,(j) offences relating to the carrying out of railway safety work while a drug (other than alcohol), or a prescribed concentration or amount of any such drug, is present in the employee’s blood or urine or other body tissues or fluids,(k) offences relating to refusal or failure to undergo tests or otherwise comply with test procedures or interference with test results,(l) offences relating to refusal or failure to administer tests or take samples or to do so in accordance with required procedures,(m) evidence in proceedings as to matters relating to drug and alcohol testing,(n) without limiting paragraph (m), the use of certificates as to concentration of alcohol or presence of drugs as evidence of the matters stated in the certificate in proceedings for offences,(o) confidentiality of test results,(p) protection against liability for persons administering tests or taking samples of blood or urine or other body tissues or fluids,(q) disciplinary action that may be taken consequent on a breach of regulations made under this clause.(2) An offence under a regulation made under this clause relating to the carrying out of railway safety work by a railway employee while under the influence of alcohol or any other drug or while the prescribed concentration of alcohol or prescribed concentration or amount of another drug is present in the employee’s blood or urine, a refusal or failure by a railway employee to undergo tests or otherwise comply with test procedures or to interference by a railway employee with test results, may, in addition to the penalty provided for by section 117 for offences under the regulations, be punishable by a period of imprisonment not exceeding 9 months.
sch 1: Am 2003 No 65, Sch 4 [116]; 2005 No 55, Sch 2 [57].
Schedule 2 Fatigue management
(Section 43 (3))
1 Working hours for railway employees driving freight trains
The following conditions of work apply to railway employees who drive freight trains:(a) In the case of a 2 person operation, the maximum shift length to be worked is 12 hours.(b) In the case of a one person operation, the maximum shift length to be worked is 9 hours.(c) In the case of a one person operation, there is to be a minimum break of not less than 30 minutes taken at some time between the third and fifth hour of each shift.(d) There is to be a break of at least 11 continuous hours between each shift worked by a railway employee where the employee ends a shift at the home depot.(e) There is to be a break of at least 7 continuous hours between each shift worked by a railway employee where the employee ends a shift away from the home depot and the break is taken away from the home depot.(f) A maximum number of 12 shifts is to be worked in any 14-day period.
2 Working hours for railway employees driving single manning passenger trains
(1) The following conditions of work apply to railway employees who drive passenger trains in a one person operation:(a) The maximum shift length to be worked is 10 hours for the driver of an interurban or long distance passenger train or 9 hours for the driver of a suburban train.(b) There is to be a break of at least 11 continuous hours between each shift worked by a railway employee where the employee ends a shift at the home depot.(c) There is to be a break of at least 7 continuous hours between each shift worked by a railway employee where the employee ends a shift away from the home depot and the break is taken away from the home depot.(d) A maximum number of 12 shifts is to be worked in any 14-day period.(2) The conditions of work set out in clause 1 (a) and (d)–(f) apply to railway employees who drive passenger trains in a 2 person operation.
3 Emergencies and accidents
The requirements of this Schedule do not apply in the event of:(a) an accident or emergency, orif the driver or drivers concerned indicate their fitness to work the extended hours.(b) any urgent circumstances approved by the ITSRR,
4 Relationship with State industrial instruments
Except as provided by the regulations, this Schedule prevails over any inconsistent State industrial instrument (whether made before or after the commencement of this clause) to the extent that this Schedule provides for shorter hours of work or additional or longer breaks from work than are provided for by the State industrial instrument.
5 Regulations
The regulations may amend this Schedule (other than this clause) for or with respect to the following matters:(a) modifying conditions of work set out in this Schedule,(b) prescribing other conditions of work for railway employees for the purposes of fatigue management or regulating safe hours of work and periods between work.
sch 2: Am 2003 No 65, Sch 4 [117] [118].
Schedules 3, 4 (Repealed)
sch 3: Rep 2005 No 55, Sch 2 [58].
sch 4: Subst 2003 No 65, Sch 4 [119]. Rep 2005 No 55, Sch 2 [59].
Schedule 5 Savings and transitional provisions
(Section 119)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this ActTransport Legislation Amendment (Safety and Reliability) Act 2003 (but only to the extent that it amends this Act)Transport Legislation Amendment (Waterfall Rail Inquiry Recommendations) Act 2005 (but only to the extent that it amends this Act)(2) Any such provision may, if the regulations so provide, take effect as from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on the enactment of this Act
2 Definitions
In this Schedule:continuing operator means a person taken to be an accredited person under clause 3.the commencement day means the day on which Part 2 of this Act commences.the former Act means the Rail Safety Act 1993.
3 Certain owners taken to be accredited
(1) A person who, immediately before the commencement day, was an accredited person under the former Act is taken to be an accredited person for the purposes of this Act and the provisions of this Act and the regulations apply accordingly.(2) The accreditation of the continuing operator continues in force, subject to the same terms as in force immediately before that commencement, until it is varied or suspended or cancelled under this Act.(3) Except as provided by this Schedule, or by a condition imposed on the accreditation of the continuing operator by the Director-General, the operator is not required to comply with any provision of this Act relating to applications for accreditation under this Act.(4) For the purposes of section 11, the continuing operator must give to the Director-General an annual safety report under section 11 not later than 12 months after the commencement of this clause and on each anniversary of that commencement while the operator remains an accredited person.(5) The Director-General may, not later than 6 months after the commencement day, require a continuing operator to submit or provide to the Director-General any system, information, plan or other particulars that the person would be required to submit or provide if the person were seeking accreditation for the first time.(6) It is a condition of a continuing operator’s accreditation that the operator comply with a requirement made by the Director-General under this clause.(7) For the purposes of this Act, the date of the anniversary of a continuing operator’s accreditation is taken to be the anniversary of the operator’s accreditation under the former Act.
4 Authorised officers—alcohol or other drugs
(1) On the commencement of this subclause, a person who was an authorised officer under the former Act immediately before that commencement is taken to be an authorised officer for the same purposes under this Act for a period of 12 months after that commencement.(2) On the commencement of regulations made under Schedule 1, a person authorised for the purposes of Schedule 2 of, or who was an authorised officer under, the former Act immediately before that day is taken to be authorised for the purposes of those regulations for a period of 12 months after the commencement day.
5 Private sidings
Section 26 of the former Act continues to apply in respect of a person who owns a private siding until 6 months after the commencement day or until the person complies with the requirements of section 23 of this Act, whichever occurs first.
6 (Repealed)
7 Applications to Administrative Decisions Tribunal
Nothing in this Act affects an application for a review made to the Administrative Decisions Tribunal under the former Act before the commencement of this clause.
8 Drug and alcohol programs
A continuing operator is not required to comply with section 42, in so far as it requires the preparation and implementation of a drug and alcohol program, until 6 months after the commencement of that section.
9 Drug and alcohol testing
(1) Schedule 2 to the Rail Safety Act 1993 continues to have effect pending the commencement of regulations made under Schedule 1.(2) Subclause (1) is subject to any regulations made under this Schedule.
10 Fatigue management
A continuing operator is not required to comply with section 43 (1) and (2) until 6 months after the commencement of those subsections.
11 Annual fees
The repeal of the former Act does not affect the liability of an accredited person in respect of a fee fixed under Division 6 of Part 2 of the former Act.
12 Inquiries
The repeal of the former Act does not affect the obligation of an accredited person or any other person to inquire into, and report on, any railway accident or incident that occurred before the commencement of this clause and the provisions of the former Act continue to apply accordingly.
13 Regulations
(1) A regulation made for the purposes of section 79B of the former Act, and in force immediately before the repeal of that section by this Act, continues in force and is taken to have been made under this Act, pending the commencement of regulations made under section 95.(2) Subclause (1) is subject to any regulations made under this Schedule.(3) For the purposes of section 6 of the Subordinate Legislation Act 1989, that section applies in respect of any principal regulation made under this Act within 6 months of the commencement of this clause as if the responsible Minister within the meaning of that Act had issued a certificate under section (6) (1) (b) of that Act.Note—The effect of subclause (3) is to postpone the requirement for a regulatory impact statement for a period of 4 months after the regulation is made (see section 6 (2) of the Subordinate Legislation Act 1989).
Part 3 Provisions consequent on enactment of Transport Legislation Amendment (Safety and Reliability) Act 2003
14 Definitions
In this Part:the amending Act means the Transport Legislation Amendment (Safety and Reliability) Act 2003.
15 Previous acts, matters and things done by Director-General
(1) Any act, matter or thing done by or in respect of the Director-General before the commencement of this clause in accordance with a provision of this Act or the regulations continues to have effect after that commencement as if the act, matter or thing were done by or in respect of the ITSRR.(2) The ITSRR may vary or revoke (if otherwise permitted under this Act or the regulations) any act, matter or thing that continues to have effect under this clause.
16 Applications to Administrative Decisions Tribunal
Nothing in the amending Act affects an application for a review made to the Administrative Decisions Tribunal under this Act before the commencement of this clause.
17 Inquiries and investigations
(1) An inquiry or investigation commenced under this Act by the Director-General before the commencement of this clause is to be completed by the ITSRR.(2) It is the duty of the Director-General to provide the ITSRR with any information and assistance requested by the ITSRR for the purposes of subclause (1).(3) The ITSRR or the Chairperson of the Board may exercise a function under this Act relating to a rail accident or incident that occurred before, on or after the commencement of this clause.
18 Accreditations
An application made to the Director-General for accreditation under this Act before the commencement of this clause, and not determined before that commencement, is taken to have been made to the ITSRR and is to be determined by the ITSRR.
19 Safety management systems
For the purposes of section 11, as amended by the amending Act, a safety management plan provided to the Director-General before the commencement of this clause, and complying with that section, is taken to be a safety management system.
20 Validation
(1) Clauses 5 and 6 of the Rail Safety (Drug and Alcohol Testing) Regulation 2003 are taken to be, and to always have been, valid.(2) Subclause (1) does not extend to the imposition of a sentence of imprisonment on a person under those clauses before the date of assent to the amending Act.
Part 4 Provisions consequent on enactment of Transport Legislation Amendment (Waterfall Rail Inquiry Recommendations) Act 2005
21 Definition
In this Part:the amending Act means the Transport Legislation Amendment (Waterfall Rail Inquiry Recommendations) Act 2005.
22 Exemptions from accreditation
Section 21 (6), as inserted by the amending Act, applies to an exemption granted before, on or after the commencement of that subsection.
23 Health and fitness of railway employees
Guidelines issued under clause 50 of the Rail Safety (General) Regulation 2003 and in force on the commencement of section 41 (2), as inserted by the amending Act, are taken to have been issued under section 41.
24 Investigation of rail accidents or incidents
(1) Section 67, as substituted by the amending Act, applies to an accident or incident that occurred before, on or after the commencement of that section.(2) Section 67B, as inserted by the amending Act, applies to an accident or incident or other event, occurrence, practice or matter that occurred before, on or after the commencement of that section.
25 Existing inquiries
(1) Any inquiry being carried out by the ITSRR or the Chairperson of the Independent Transport Safety and Reliability Advisory Board under section 67 immediately before the substitution of that section by the amending Act is to be completed by the Chief Investigator as an investigation under section 67 as substituted by the amending Act.(2) For any inquiry to which subclause (1) applies, the ITSRR or the Chairperson of the Independent Transport Safety and Reliability Advisory Board is to provide all relevant information and documents to the Chief Investigator to permit the Chief Investigator to complete the investigation.
26 Authorised officers
(1) A person who was an authorised officer immediately before section 111 was substituted by the amending Act is taken to have been:(a) appointed as an authorised officer by the ITSRR under that section as substituted and subject to the limitations specified in the person’s instrument of appointment, and(b) authorised under clause 2 (1) (a) of Schedule 1, as amended by the amending Act.(2) This clause does not prevent the variation or revocation of any limitations specified in the person’s instrument of appointment.
27 Exclusion of liability
Sections 113 and 114 continue to apply to the Chairperson and other members of the Independent Transport Safety and Reliability Advisory Board in relation to any act or omission occurring before those sections were amended by the amending Act.
28 Private sidings
Section 117 (2) (b), as amended by the amending Act, applies to a regulation made before, on or after the amendment of that paragraph by the amending Act.
sch 5: Am 2003 No 65, Sch 4 [120] [121]; 2004 No 55, Sch 3; 2005 No 55, Sch 2 [60] [61].
Schedules 6, 7 (Repealed)
sch 6: Rep 2003 No 82, Sch 3.
sch 7: Rep 2003 No 82, Sch 3.