Emerald Tourist Railway Act 1977 (Vic)
Version No. 027
Emerald Tourist Railway Act 1977
No. 9020 of 1977
Version incorporating amendments as at
1 March 2019
table of provisions
Section Page
1Short title and commencement
Part I—Establishment of Emerald Tourist Railway Board
2Establishment of Emerald Tourist Railway Board
3Responsibilities and functions of Board
4Matters to be provided for by Order in Council
5Additional Orders in Council
6Membership of Board
7Incorporation
8Property of Railways Board in tourist railway to pass to Board
9Crown land may be used for purposes of railway
10First meeting of Board
Part II—Procedure of Board
11Term of office
12Casual vacancies
13Chairman
14Quorum
15Decisions
16Travelling allowances etc. of members
17Judicial notice
18Disqualification from office
19Conflict of interest
20Procedure
Part III—Officers
21Manager
22Offices
Part IV—Financial
23General Fund
26Borrowing by Board
27Board may make loans
28Loans by Minister
29Application by Board for loan by Minister
Part V—Miscellaneous
30Procedure upon default in repayment of loan
31Relinquishment of possession by Minister
32Appointment of inspector by Governor in Council
33Conditions of appointment of inspector
34Powers of inspector
35Inspector may take possession of books
36Examination of officers
37Notes of examination
38Report of inspector
39Contracts of Board
40Certificate of chairman to be evidence of ownership by Board
41Grants of leases, licences and easements
41AGrants of leases for up to 50 years
41BPower to enter and use land
42Board to report accidents to Minister
43Actions against Board
44Execution against Board
45Railway etc. not to be sold under execution
46Board to make returns to Minister of accidents
47Board may adopt by-laws made under Transport Act 1983
48Provisions of Fences Act 1968 not to apply
48ASupreme Court—limitation of jurisdiction
49By-laws
Schedules
Schedule One
Schedule Two
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Endnotes
1 General information
2 Table of Amendments
3 Amendments Not in Operation
4 Explanatory details
Version No. 027
Emerald Tourist Railway Act 1977
No. 9020 of 1977
Version incorporating amendments as at
1 March 2019
An Act to make Provision for the Establishment of a Board to be known as the Emerald Tourist Railway Board for the Preservation and Operation as a Tourist Attraction of the Historical Narrow-gauge Steam Railway in the Dandenong Ranges and for Purposes connected therewith.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1Short title and commencement
(1)This Act may be cited as the Emerald Tourist Railway Act 1977.
(2)This Act shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
* * * * *
Part I—Establishment of Emerald Tourist Railway Board
2Establishment of Emerald Tourist Railway Board
(1)At the request of the Puffing Billy Preservation Society and the Victorian Railways Board and on the recommendation of the Minister the Governor in Council may by Order provide for the constitution and establishment under this Act of an Emerald Tourist Railway Board and may in and by that Order authorize the Board, subject to this Act but notwithstanding anything to the contrary in any other Act or law to acquire the undertaking and the land, rolling stock, and other assets of the Victorian Railways Board which constitute the narrow-gauge steam railway commencing at Belgrave at the commencement of this Act and known as Puffing Billy and, if so arranged, to discharge any outstanding liabilities in respect thereof.
(2)In any submission to the Governor in Council that the Board established under this Act shall take over the ownership, management, and control of the said narrow-gauge steam railway whilst there are liabilities outstanding in respect thereof the Minister shall cause to be included in his submission to the Governor in Council particulars of those liabilities.
3Responsibilities and functions of Board
(1)The Emerald Tourist Railway Board established under this Act—
(a)is responsible for the preservation, development, promotion, operation and maintenance of the historical narrow-gauge steam railway referred to in section 2(1); and
(b)may carry out other related operations which are consistent with the operations of that railway as a major tourist attraction, including, but not limited to—
(i)the provision of maintenance and consultancy services to other railway operations; and
(ii)the development, construction and management of tourist facilities.
(1A)For the purposes of subsection (1)(b) and section 41 tourist facilities includes—
(a)tourist accommodation;
(b)interpretation centres and convention centres;
(c)cafes, restaurants and licensed premises within the meaning of the Liquor Control Reform Act 1998;
(d)shops;
(e)carparks;
(f)other related facilities.
(2)The Emerald Tourist Railway Board shall not for any purpose be taken or deemed to be a common carrier.
4Matters to be provided for by Order in Council
The Order in Council providing for the establishment of the Board shall subject to this Act—
(a)if the Board is the successor of some other body or bodies corporate or unincorporate—specify that fact and the name of the body or bodies the Board succeeds and general particulars of the undertaking which is intended to pass to the Board upon the incorporation of the Board;
(b)state the total amount of money which may be granted or lent pursuant to the provisions of this Act by the Minister to the Board for the purposes of this Act and also the amount which the Board may borrow by way of overdraft or loan;
(c)provide for the winding up of the Board in circumstances in which a company may be wound up under the Companies Act 1961;
(d)contain such other provisions as the Governor in Council thinks fit in the circumstances; and
(e)be published in the Government Gazette.
5Additional Orders in Council
On the petition of the Board the Governor in Council may make any additional Order in Council and in any such Order—
(a)may vary the original Order to provide for any matter which might have been provided for in the original Order; and
(b)may alter the name of the Board.
6Membership of Board
(1)The Emerald Tourist Railway Board shall consist of not less than five nor more than ten persons appointed by the Governor in Council to be members of the Board of whom—
(a)four shall be nominated by the Puffing Billy Preservation Society;
(b)one shall be nominated by the Minister administering the Transport Integration Act 2010;
(c)one shall be experienced in the promotion and management of tourism;
(d)one shall be experienced in banking or finance;
(e)two shall be persons the Governor in Council thinks specially qualified to achieve the aims of the Board.
(1A)Not more than 2 members of the Board appointed under subsection (1) may be managers or other officers or employees of the Board.
(2)The members of the Board shall not in any way be personally liable to the Board or to any person for anything done by them in the course of carrying out their duties under this Act in accordance with the provisions of this Act and the by-laws.
7Incorporation
The members of the Board shall be a body corporate by the name of Emerald Tourist Railway Board and by that name shall have perpetual succession and a common seal and shall be capable in law of suing and being sued and shall, subject to this Act, have power to take, purchase, sell, lease, take on lease, and hold lands, goods, chattels, and other property and to enter into any contract, agreement or arrangement for any of the purposes of this Act.
8Property of Railways Board in tourist railway to pass to Board
(1)[1]Upon the incorporation of the Board under this Act and without any further or other authority than the provisions of this section but subject to the provisions of subsection (2)—
(a)the provisions of the Fern Tree Gully and Gembrook Railway (Reconstruction) Act 1948 and of section 2 of the Railways Dismantling Act 1963 shall cease to have effect so far as those provisions relate to the said historical narrow-gauge steam railway;
(b)all the right title and interest of the Victorian Railways Board in the property referred to in this paragraph shall pass to and be vested in the Board, namely—
(i)the lands of the Victorian Railways Board described in the folios of the Register referred to in Schedule One being lands vested in the said Board for the purposes of the Fern Tree Gully and Gembrook Railway and lying between the southern boundary of the land described in folio of the Register Volume 2841 Folio 169 and the southern boundary of the land described in folio of the Register Volume 2763 Folio 405;
(ii)the permanent way, rolling stock, signals, and other fittings, fixtures, and appurtenances of the said railway; and
(iii)all plans, drawings, records, equipment, materials and parts relating to the said railway; and
(c)all the right title and interest of the Victorian Railways Board in the lands described in the folios of the Register referred to in Schedule Two is divested out of the Victorian Railways Board and surrendered to Her Majesty and shall become and be unalienated land of the Crown deemed to be permanently reserved under section 14 of the Land Act 1958 for public recreation.
(2)The Board shall not sell or otherwise dispose of any of the lands described in the folios of the Register referred to in Schedule One for an estate in fee simple without the consent in writing of the Minister administering the National Rail Corporation (Victoria) Act 1991.
(3)Upon the incorporation of the Board under this Act the liabilities (if any) of the Victorian Railways Board in respect of any of the property referred to in subsection (1)(b) shall pass to the Board.
(4)The Board shall cause to be prepared and furnished to the Minister within twelve months after the incorporation of the Board an inventory certified by an officer of the Victorian Railways Board and an officer of the Board of the property which has vested in the Board pursuant to the provisions of subsection (1)(b)(ii).
9Crown land may be used for purposes of railway
(1)Any unalienated land of the Crown which was used for the purposes of the said railway or in connexion with the railway immediately before the commencement of this Act or is required by the Emerald Tourist Railway Board for the purposes of this Act may, with the concurrence of the Minister for the time being administering the Conservation, Forests and Lands Act 1987, be so used by the Board for the purposes of this Act.
(2)Upon the publication in the Government Gazette of a description of any such unalienated land of the Crown the land shall become vested in the Board as if it were reserved under the Land Act 1958 for the purposes of this Act but shall be and remain lands of the Crown.
10First meeting of Board
(1)The members of the Board shall hold their first meeting at such time and place as the Governor in Council appoints in that behalf and shall proceed to put this Act into execution.
(2)On the day appointed under subsection (1) the Board shall be and be deemed to be duly and legally constituted in pursuance of the provisions of this Act.
Part II—Procedure of Board
11Term of office
Subject to this Act the members of the Board are entitled to hold office for a period of three years from the date of their appointment and are eligible for re-appointment.
12Casual vacancies
(1)In the event of a vacancy occurring in the office of member of the Board the Governor in Council may appoint some eligible person to be a member and, if the person whose office is vacant was nominated by some person or body, may make the appointment on the like nomination.
(2)Any person appointed to fill a casual vacancy in the office of member shall be entitled to hold office for the remainder of the term of office of the person in whose stead he is appointed and shall be eligible for re-appointment.
13Chairman
(1)At the first meeting of the Board in each year the members of the Board shall appoint one of the members to be chairman of the Board and one of the members to be the deputy chairman of the Board.
(2)The chairman shall preside at all meetings of the Board at which he is present and in his absence the deputy chairman shall preside and in the absence of both the chairman and the deputy chairman, a member elected by the members present to be chairman of the meeting shall preside.
14Quorum
(1)A quorum of the Board consists of a majority of the total number of members for the time being holding office.
(2)Subject to the presence of a quorum the Board may act notwithstanding any vacancy in its membership.
15Decisions
(1)The decision on any question of a majority of the members present at a meeting of the Board shall, subject to the presence of a quorum, be the decision of the Board on that question.
(2)In the event of an equality of votes on any question the chairman of the meeting shall have a second or casting vote.
16Travelling allowances etc. of members
The chairman and every other member of the Board is entitled to receive from the Board such travelling and other allowances as are from time to time fixed by the Board.
17Judicial notice
(1)All courts, judges, and persons acting judicially shall take judicial notice of the incorporation of the Board and of the common seal of the Board affixed to any deed, instrument, or writing and shall presume that any such seal was properly affixed.
(2)Every such deed, instrument, or writing when sealed and whether required to be sealed or not shall be admissible in evidence for and against the Board on the production thereof without any other or further proof of the making thereof or of the due incorporation of the Board.
18Disqualification from office
The office of member of the Board becomes vacant if the member—
(a)is absent without leave from four consecutive meetings of the Board;
(b)by writing under his hand addressed to the Governor in Council resigns his office as member;
(c)is an undischarged bankrupt or person whose property is subject to an order or arrangement under the laws relating to bankruptcy;
(d)is attainted of treason or convicted of an indictable offence or is a person of unsound mind.
* * * * *
19Conflict of interest
(1)Any member of the Board who—
(a)for profit or reward is concerned in any contract or participates in any manner in any work to be done under the authority of this Act; or
(b)derives or is entitled to any benefit either directly or indirectly from any such contract or work—
shall disclose to the Board the nature of his interest in that contract or work and shall not be present at any meeting of the Board whilst that contract or work is being discussed or vote on any question with respect to that contract or work.
(2)No person being a shareholder or member of a company consisting of more than twenty persons shall be disqualified from acting as a member of the Board by reason of any contract entered into between such company and the Board but no such shareholder or member shall act as a member of the Board in any matter relating to a contract entered into between the Board and the company.
20Procedure
(1)Subject to this Act the Board may regulate its own procedure.
(2)The Board may employ such consultants and technical advisers as the Board considers necessary from time to time for enabling the Board to carry out its functions under this Act.
(3)The Board may make rules governing the proceedings of the Board, the management of the affairs of the Board, and the duties of its officers and employés.
Part III—Officers
21Manager
(1)The Board shall appoint some competent person or persons to manage the business of the Board.
(2)Any manager of the Board shall hold office on such terms and conditions as are determined by the Board prior to his appointment and shall be entitled to receive such salary and travelling and other allowances as are from time to time determined by the Board.
(3)Subject to the direction and control of the Board a manager of the Board—
(a)shall carry out or cause to be carried out the decisions of the Board and general policies determined by the Board;
(b)shall attend meetings of the Board;
(c)shall be responsible for staff and the maintenance of proper records and accounts; and
(d)shall promote the objects of the Board to the best of his ability.
(4)A person appointed to be the manager of the Board shall not engage in any other employment without the approval in writing of the Board and shall not dismiss from office or employment without the approval in writing of the Board any officer or employé who was employed or engaged in the undertaking immediately before the establishment of the Board.
(5)For the purposes of Part VIII of the Labour and Industry Act 1958 any period of employment or service in the undertaking prior to the establishment of the Board shall be deemed to be employment or service with the Board.
(6)Any officer of the Board who at the date of his appointment was an officer within the meaning of the State Superannuation Act 1988 shall subject to the State Superannuation Act 1988 continue to be an officer within the meaning of that Act.
22Offices
(1)The Board—
(a)shall provide and maintain a fit and convenient office for holding meetings of the Board and transacting the business of the Board and for the use of its manager and other officers and employés; and
(b)shall cause the manager or some other person authorized in that behalf by the Board to attend at the office of the Board during the days and hours notified to the public as the days and hours during which the office will be open.
(2)The Board shall cause particulars of the location of the office of the Board and the days upon which and the hours during which the office is open to the public to be prominently displayed on all stations of the Emerald Tourist Railway.
Part IV—Financial
23General Fund
All moneys received by the Board (including loan moneys) shall be paid into and form a fund to be called the "General Fund" and may be applied by the Board in carrying this Act into execution.
* * * * *
26Borrowing by Board
(1)Subject to this Act the Board may borrow by way of loan, advance, or overdraft such moneys as it thinks necessary from time to time for carrying out its objects.
(2)Before the Board adopts any project or scheme or programme of works involving in whole or in part the expenditure of moneys borrowed or proposed to be borrowed by the Board under this Act the Board shall obtain the approval of the Minister and for that purpose shall submit or cause to be submitted to the Minister a statement of the purpose of the expenditure, including particulars of any proposed works or services, and a detailed statement of the manner in which the Board proposes to repay the moneys to be borrowed under the project, scheme, or programme.
27Board may make loans
(1)For carrying out its objects the Board may make loans to any person seeking to assist in establishing or developing the undertaking of the Board on such terms and conditions as the Board thinks fit.
(2)The Board shall not make a loan to a member, officer, or employé of the Board or enter into a guarantee with respect to any member, officer, or employé of the Board.
28Loans by Minister
(1)Subject to this Act the Minister may upon such terms and conditions as are agreed upon between the Minister and the Board or, in the absence of any agreement, upon such terms and conditions as the Minister thinks fit make any grant or loan to the Board out of moneys for the purpose and may make advances from time to time on account of any such grant or loan.
(2)All loans made by the Minister to the Board and all advances thereunder shall together with interest be charged upon the property and revenues of the Board.
29Application by Board for loan by Minister
An application by the Board for a grant or loan by the Minister shall not be considered until there has been prepared and laid before the Minister the following documents verified by the signature of some competent architect, engineer, or like person approved by the Minister:
(a)A detailed statement showing—
(i)the cost of all works or undertakings paid for out of any grant or loan previously granted by the Minister to the Board;
(ii)the purposes served by such works;
(iii)the cost of maintenance and management of such works; and
(iv)the annual net revenue derived from such works;
(b)A description of the works proposed to be executed by the Board and an estimate of the cost of their construction;
(c)An estimate of the additional revenue or other benefit to be derived therefrom; and
(d)A report as to whether the proposed works are considered to be feasible and satisfactory.
Part V—Miscellaneous
30Procedure upon default in repayment of loan
(1)In case default is made by the Board in the repayment of moneys lent by the Minister—
(a)the Secretary to the Department of Treasury and Finance shall give notice of the default to the Minister; and
(b)thereupon, without prejudice to any other remedies, the Minister may after the expiration of three months from the date at which the last of such payments became due give one month's notice in writing of the default to the Board.
(2)After the expiration of the period of notice referred to in subsection (1) unless payment of the amount due is made in the meantime the Minister may enter upon and take possession of and manage and maintain the undertaking of the Board and all the property and revenues of the Board and without further or other authority than this section may do all things which may be done by the Board in all respects as though the Minister were the Board and any reference in any Act to the Board includes the Minister during such time as he retains such possession.
(3)The Minister—
(a)may appoint some person on his behalf to enter and take possession of the undertaking of the Board and the property and revenues of the Board and the person so appointed shall, subject to the Minister, manage and maintain the undertaking and the property and revenues of the Board and in relation thereto may exercise all the powers, rights, and duties of the Minister as provided under this section; and
(b)may at any time remove any person appointed under paragraph (a) and appoint some other person in his place.
31Relinquishment of possession by Minister
(1)Possession of the undertaking of the Board and of any property and revenues taken by the Minister under section 30 may be relinquished at such time and in such manner and upon such terms and conditions as the Minister thinks fit.
(2)The Minister may on the relinquishment of possession reserve any of the said property and revenues and any powers rights and duties of the Board with a view to the payment of any moneys remaining or accruing due to the Treasurer of Victoria from or on account of the Board.
(3)Upon relinquishment all property, revenues, powers, rights, and duties which became vested in the Minister shall so far as they are not reserved revert to and become vested in the Board.
(4)A relinquishment under this section shall be without prejudice to the power of again taking possession of the undertaking of the Board or any property, revenues, powers, rights, and duties as provided in this section and without prejudice to any security for the repayment of any loan or advance by the Minister.
32Appointment of inspector by Governor in Council
Where it appears to the Governor in Council that—
(a)it is desirable for the protection of the public;
(b)it is in the public interest because fraud or misfeasance or other misconduct by a person who is or has been concerned with the affairs of the Board is alleged; or
(c)in any case it is in the public interest—
to appoint an inspector to investigate affairs of the Board he may by instrument in writing appoint an inspector.
33Conditions of appointment of inspector
(1)The Governor in Council in the instrument appointing an inspector shall specify full particulars of the appointment including—
(a)the matters into which the investigation is to be made being all the affairs or particular affairs of the Board;
(b)the period in respect of which the investigation is to be made; and
(c)the terms and conditions of the appointment of the inspector including terms and conditions relating to remuneration.
(2)The Governor in Council may by notice in writing given to any inspector terminate his appointment at any time.
(3)Notice of the appointment and notice of the termination of the appointment of an inspector shall be published in the Government Gazette.
34Powers of inspector
(1)In the course of an investigation under this Part an inspector may require an officer of the Board by notice in writing in accordance with the prescribed form given in the prescribed manner—
(a)to produce to the inspector such books of the Board and other books relating to affairs of the Board as are in the custody or under the control of the officer;
(b)to give to the inspector all reasonable assistance in connexion with the investigation; and
(c)to appear before the inspector for examination on oath or affirmation.
(2)An inspector may administer an oath or affirmation referred to in paragraph (c) in subsection (1).
(3)An inspector shall not exercise his powers under subsection (1) in respect of an officer of the Board unless he has furnished to the officer a certificate stating that he is investigating affairs of the Board under this Part and that the officer is an officer of the Board.
35Inspector may take possession of books
Where books are produced to an inspector under this Part the inspector may take possession of the books for such period as he considers necessary for the purposes of the investigation and during that period he shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the inspector to inspect at all reasonable times such of those books as that person would be so entitled to inspect.
36Examination of officers
(1)Where affairs of the Board are being investigated under this Part an officer of the Board shall not—
(a)refuse or fail to comply with a requirement of an inspector under section 34 to the extent to which he is able to comply with it;
(b)in purported compliance with such a requirement knowingly furnish information that is false or misleading in a material particular; or
(c)when appearing before an inspector for examination in pursuance of such a requirement—
(i)knowingly make a statement that is false or misleading in a material particular; or
(ii)refuse or fail to be sworn or affirmed.
Penalty:10 penalty units.
(2)An Australian legal practitioner acting for the officer—
(a)may attend the examination; and
(b)may, to the extent that the inspector permits—
(i)address the inspector; and
(ii)examine the officer—
in relation to matters in respect of which the inspector has questioned the officer.
(3)The officer is not excused from answering a question put to him by the inspector on the ground that the answer might tend to incriminate him but, where the officer claims before answering the question, that the answer might tend to incriminate him, neither the question nor the answer is admissible in evidence against him in criminal proceedings other than proceedings under subsection (1) or in relation to a charge of perjury in respect of the answer.
(4)A person who complies with a requirement of an inspector under section 34 shall not incur any liability to any person by reason only of that compliance and for the purposes of this subsection a certificate under section 34(3) is conclusive evidence of the facts required to be stated in that certificate.
(5)A person required to attend for examination under this Part is entitled to receive such allowances and expenses as are prescribed.
37Notes of examination
(1)An inspector may cause notes of an examination made by him under this Part to be recorded in writing and be read to or by the person examined and may require that person to sign the notes and, subject to this section, notes signed by that person may be used in evidence in any legal proceedings against that person.
(2)A copy of the notes signed by a person shall be furnished without charge to that person upon request made by him in writing.
(3)Notes made under this section that relate to a question the answer to which a person has claimed might tend to incriminate him shall not be used as evidence in criminal proceedings other than proceedings under subsection (1) of section 36 or in relation to a charge of perjury in respect of the answer.
(4)Nothing in this section affects or limits the admissibility of other written evidence or of oral evidence.
(5)Where a report is made under section 38 any notes recorded under this section relating to that report shall be furnished with the report.
38Report of inspector
(1)An inspector—
(a)may make one or more reports in writing to the Minister during an investigation of affairs of the Board and if so directed in writing by the Governor in Council shall make such reports as are specified in the direction; and
(b)shall, on the completion or termination of the investigation, report in writing to the Governor in Council and to the Minister on the result of the investigation.
(2)A report shall include a statement of the opinion of the inspector in relation to the affairs of the Board and the facts on which that opinion is based.
(3)An inspector shall not include in a report any recommendation relating to the institution of criminal proceedings or any statement to the effect that in his opinion a specified person has committed a criminal offence but, where an inspector is of the opinion that criminal proceedings ought to be instituted or that a person has committed a criminal offence, he shall state that opinion in writing given to the Minister.
(4)Subject to subsection (5) a copy of a report made to the Minister under this section shall be given to the Board.
(5)Subject to subsection (6) the Minister shall not give a copy of a report under this Part to the Board if he believes that legal proceedings which have been or which in his opinion might be instituted might be prejudiced by the report.
(6)The court before which legal proceedings are brought against the Board or other person for or in respect of matters dealt with in a report under this Part may order that a copy of the report be given to the Board or person.
(7)The Governor in Council may, if he is of opinion that it is in the public interest so to do, cause the whole or any part of a report to be printed and published.
(8)A copy of a report of an inspector purporting to be certified as such a report by the Minister is admissible in legal proceedings as evidence of the inspector's report.
(9)Nothing in this section operates to diminish the protection afforded to witnesses by the Evidence (Miscellaneous Provisions) Act 1958 or the Evidence Act 2008.
39Contracts of Board
(1)The Board by its corporate name may enter into contracts with any persons for the execution of any work authorized by or under this Act to be done by the Board or which the Board thinks proper to do or to direct to be done under or by virtue of the powers conferred upon it by this Act or for any other matters and things whatsoever necessary for enabling the Board to carry the purposes of this Act into full and complete effect in such manner and upon such terms and for such sum of money and subject to such conditions, limitations, and restrictions as the Board thinks fit.
(2)Every such contract shall be in writing and shall specify the works to be done, the materials to be furnished, the prices to be paid, the times within which the works are to be completed or materials furnished, and the penalties to be suffered in case of non-performance thereof.
(3)Any such contract may also specify the person to whose satisfaction the work is to be completed or materials furnished and the mode of determining any dispute which arises concerning or in consequence of the contract.
(4)A contract made by the Board the consideration for which exceeds $200 000 is of no force or effect unless approved by the Minister.
40Certificate of chairman to be evidence of ownership by Board
A certificate purporting to be signed by the chairman of the Board for the time being to the effect that any lands, stations, or buildings described in the certificate are vested in the Board or are or were at any specified time used for the purposes of the Emerald Tourist Railway within the meaning of section 9 shall be prima facie evidence that such lands, stations, or buildings are so vested and shall be received in evidence in any proceedings in any court.
41Grants of leases, licences and easements
(1)The Board may in respect of any land vested in the Board under this Act grant—
(a)a lease—
(i)of any tourist facilities, shed, office, house or other building or part of a building;
(ii)of any site for the erection of any tourist facilities, shed, office, house or other building or part of a building;
(iii)for storage purposes;
(iv)for other purposes including, but not limited to, the development, construction and management of any tourist facilities, shed, office, house or other building or part of a building;
(b)a licence for any purpose but particularly with respect to—
(i)the right of entry to any station by vehicle;
(ii)the right to exhibit advertisements; or
(iii)the use of any facilities or equipment; and
(c)an easement over any land vested in the Board other than an easement on or across a railway line or any land which is unalienated Crown land—
on such terms and conditions as the Board thinks fit.
(2)Any lease licence or other authority granted or issued by the Victorian Railways Board or the Victorian Railways Commissioners before the commencement of this Act with respect to any land or other property affected by the provisions of this Act shall continue in force for the remainder of the period for which it is granted or issued in all respects as if it were granted or issued by the Board under this Act where the land or property is vested in the Board under this Act or pursuant to the provisions of the Land Act 1958 where the land or property becomes unalienated Crown land pursuant to the provisions of this Act.
(3)Without any further or other authority than the provisions of this subsection the Board may use or permit to be used as determined by the Board for public recreation amusement entertainment or instruction any land under the management or control of the Board for the purposes of this Act.
41AGrants of leases for up to 50 years
(1)This section and section 41B have effect despite anything to the contrary in the Land Act 1958 or the Crown Land (Reserves) Act 1978.
(2)The Board must not grant a lease under section 41(1)(a) for a period exceeding 21 years unless the Minister, in writing to the Board, has approved the granting of the lease.
(3)A lease granted under section 41(1)(a) for a period exceeding 21 years must not be for a period exceeding 50 years.
(4)A lease granted under section 41(1)(a) for a period exceeding 21 years—
(a)may contain provision for the period of the lease to be extended one or more times, but the aggregate of the initial period and any extensions must not exceed 50 years; and
(b)may contain provision for a lessee to remain in occupation of the land under the same terms and conditions as existed under the lease, at the discretion of the lessor, for a period of not more than 3 months from the expiry of the lease; and
(c)is subject to any covenants, exceptions, reservations and conditions that are determined by the Board and approved in writing by the Minister.
41BPower to enter and use land
(1)If a lease of land is granted under section 41(1)(a) the lessee, its servants or agents may, in accordance with that lease, enter and use the land for the purposes of—
(a)carrying out the construction of the facilities or buildings referred to in section 41(1)(a) on the land; and
(b)carrying out the construction of structures ancillary but related to those facilities or buildings on the land; and
(c)altering, repairing, maintaining and removing those facilities, buildings or structures; and
(d)developing or managing the facilities, buildings or structures.
(2)Subsection (1) does not apply unless written consent to the entry or use has been obtained from the Board.
42Board to report accidents to Minister
If an accident occurs in the course of operation of the Emerald Tourist Railway which results in loss of life or serious injury to any person or serious damage to property or to the environment, the Board must—
(a)advise the Minister of the accident as soon as practicable; and
(b)appoint any persons that the Board thinks fit to hold an inquiry into the matter; and
(c)as soon as practicable after the inquiry, send to the Minister full information of the accident and the report of the persons who held the inquiry.
43Actions against Board
All actions for losses caused by sparks from railway engines operated by the Board shall be referred to arbitration.
44Execution against Board
No writ of execution shall be issued against the Board until the expiration of fourteen days next after the final judgment has been completely signed.
45Railway etc. not to be sold under execution
No part of the railway or real property vested in the Board shall be liable to be sold under any writ of execution or other process of any court.
46Board to make returns to Minister of accidents
The Board shall in such form and manner as the Minister requires for his information with a view to the public safety make periodical and other returns of accidents occurring in the course of the public traffic upon the Emerald Tourist Railway whether attended with personal injury or not.
47Board may adopt by-laws made under Transport Act 1983
(1)The Board may adopt with such alterations of form only as may be necessary any of the Regulations from time to time made concerning railways under the provisions of the Transport (Compliance and Miscellaneous) Act 1983 or any corresponding previous enactment and at the time of the Board's adoption thereof still in force.
(2)At the expiration of one month after notice of such adoption is published in the Government Gazette such Regulations shall have the same effect as if made under this Act and shall continue to have such effect until cancelled by notice published in the Government Gazette.
(3)The Board shall have the same remedies for breach of the said Regulations as the Board has for breaches of by-laws made under this Act.
48Provisions of Fences Act 1968 not to apply
(1)The provisions of the Fences Act 1968 shall not apply to or with respect to any lands vested in the Board by this Act or used for the purposes of the Emerald Tourist Railway and the Board shall not be liable under the Fences Act 1968 to make any contribution towards fencing works and any subsidiary works in respect of a dividing fence between the land of any owner and any land vested in the Board for the purposes of this Act.
(2)Despite any Act or rule of law to the contrary, the Board is not liable for any damage which may be caused by reason of the Emerald Tourist Railway not being fenced in or fenced off.
48ASupreme Court—limitation of jurisdiction
It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining actions relating to damage caused by reason of the Emerald Tourist Railway not being fenced in or fenced off.
49By-laws
(1)The Board may make by-laws for governing the affairs of the Board and in particular, without in any way limiting or derogating from the generality of the foregoing provisions of this section, for or with respect to—
(a)meetings of the Board and the management and conduct of business thereat;
(b)the control, supervision, and guidance of all officers of and the control of all property vested in or belonging to the Board and the time and mode of accounting by officers for all moneys coming into their hands;
(c)the conduct, maintenance, management, and control of the Emerald Tourist Railway (including the trains thereon) and the carrying out of any necessary works;
(d)the mode of making contracts for the purposes of this Act and supervising the execution thereof;
(e)the management and improvement of the lands vested in the Board under this Act;
(f)the making, levying, and collecting of charges and fares and for services performed by the Board;
(g)forms for the purposes of this Act;
(h)any matters authorized or required by this Act to be prescribed;
(i)the conduct of members of the public on trains and premises managed and controlled by the Board and the removal of persons contravening or failing to comply with such by-laws;
(j)imposing penalties of not more than 2 penalty units for any contravention of or failure to comply with the by-laws and authorizing the prosecution of offenders; and
(k)generally carrying out the objects of this Act.
(1A)The Board must obtain the approval of the Minister before making any by-law under subsection (1)(i) or (j).
(2)Notice of the making of any by-laws under this section and of the place where a copy of the by-laws may be inspected shall be published as soon as practicable and exhibited in all offices, stations, and other buildings of the Board to which the public have access.
(3)Copies of all by-laws made by the Board under this section shall be sent to the Minister within one month after they are made.
(4)The Minister shall cause a copy of all such by‑laws to be laid before each House of Parliament within fourteen days after receiving copies thereof if Parliament is then sitting and, if Parliament is not then sitting, within fourteen days after the next meeting of Parliament and any such by-laws shall be disallowed if each House of the Parliament passes a resolution accordingly.
(5)Notice of a resolution to disallow a by-law must be given in the House in question on or before the twelfth day upon which that House sits after the by-law is laid before that House and the resolution must be passed on or before the twelfth day upon which that House sits after notice of the resolution has been given in that House but the power of either House to pass a resolution disallowing the by-law shall not be affected by the prorogation or dissolution of the Parliament or of either House of the Parliament and for the purpose of this section the calculation of days upon which a House has sat shall be made as if there had been no such prorogation or dissolution.
(6)Notice of a resolution to disallow a by-law may be expressed to apply to the whole or to any part of the by-law and a resolution to disallow the whole or any part of a by-law shall have effect according to its tenor.
(7)Where a by-law is disallowed by Parliament the disallowance shall have the like effect to the repeal of an enactment.
Schedules
Schedule One
––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Folio of the Register 2841 Folio 169
Folio of the Register 2790 Folio 896
Folio of the Register 2779 Folio 684
Folio of the Register 5918 Folio 471
Folio of the Register 5957 Folio 391
Folio of the Register 2847 Folio 357
Folio of the Register 2776 Folio 089
Folio of the Register 2788 Folio 510
Folio of the Register 2816 Folio 118
Folio of the Register 2827 Folio 212
Folio of the Register 2766 Folio 123
Folio of the Register 3168 Folio 409
Folio of the Register 2765 Folio 994
Folio of the Register 2789 Folio 626
Folio of the Register 3168 Folio 410
Folio of the Register 2827 Folio 213
Folio of the Register 3168 Folio 411
Folio of the Register 2799 Folio 749
Folio of the Register 3960 Folio 958
Folio of the Register 2798 Folio 496
Folio of the Register 3051 Folio 106
Folio of the Register 2794 Folio 799
Folio of the Register 2765 Folio 803
Folio of the Register 2765 Folio 896
Folio of the Register 2783 Folio 475
Folio of the Register 2758 Folio 451
Folio of the Register 2909 Folio 747
Folio of the Register 2824 Folio 630
Folio of the Register 2804 Folio 604
Folio of the Register 5583 Folio 549
Folio of the Register 2788 Folio 491
Folio of the Register 2794 Folio 699
Folio of the Register 2763 Folio 405
Lease No. 10030 in the Register
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Schedule Two
––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Folio of the Register 2906 Folio 065
Folio of the Register 2783 Folio 571
Folio of the Register 2796 Folio 170
Folio of the Register 2954 Folio 648
Folio of the Register 3101 Folio 046
Folio of the Register 3014 Folio 749
Folio of the Register 2783 Folio 505
Folio of the Register 3156 Folio 136
Folio of the Register 3153 Folio 565
Folio of the Register 2920 Folio 979
Folio of the Register 2819 Folio 688
Folio of the Register 2804 Folio 664
Folio of the Register 2789 Folio 773
Folio of the Register 2808 Folio 415
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Endnotes
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Emerald Tourist Railway Act 1977 was assented to on 17 May 1977 and came into operation on 1 October 1977: Government Gazette 31 August 1977 page 2774.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Emerald Tourist Railway Act 1977 by Acts and subordinate instruments.
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Land (Miscellaneous Matters) Act 1986, No. 36/1986
Assent Date: 20.5.86 Commencement Date: 20.5.86 CurrentState: All of Act in operation
Conservation, Forests and Lands Act 1987, No. 41/1987
Assent Date: 19.5.87 Commencement Date: S. 103(Sch. 4 item 16.1) on 1.7.87: Government Gazette 24.6.87 p. 1694 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Transfer of Land (Computer Register) Act 1989, No. 18/1989
Assent Date: 16.5.89 Commencement Date: 3.2.92: Government Gazette 18.12.91 p. 3488 CurrentState: All of Act in operation
Financial Management (Consequential Amendments) Act 1994, No. 31/1994
Assent Date: 31.5.94 Commencement Date: S. 3(Sch. 1 item 23) on 7.7.94: Government Gazette 7.7.94 p. 1878—see Interpretation of Legislation Act 1984; s. 4(Sch. 2 item 27) on 1.1.95: Government Gazette 28.7.94 p. 2055 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Emerald Tourist Railway (Amendment) Act 1994, No. 70/1994
Assent Date: 25.10.94 Commencement Date: 25.10.94 CurrentState: All of Act in operation
Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998
Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Statute Law Revision Act 2000, No. 74/2000
Assent Date: 21.11.00 Commencement Date: S. 3(Sch. 1 item 39) on 22.11.00: s. 2(1) CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Emerald Tourist Railway (Amendment) Act 2003, No. 92/2003
Assent Date: 25.11.03 Commencement Date: 26.11.03: s. 2 CurrentState: All of Act in operation
Legal Profession (Consequential Amendments) Act 2005, No. 18/2005
Assent Date: 24.5.05 Commencement Date: S. 18(Sch. 1 item 36) on 12.12.05: Government Gazette 1.12.05 p. 2781 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009
Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 20) on 1.1.10: s. 2(2) CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)
Assent Date: 2.3.10 Commencement Date: S. 203(1)(Sch. 6 item 17) on 1.7.10: Special Gazette (No. 256) 30.6.10 p. 1 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Legal Profession Uniform Law Application Act 2014, No. 17/2014
Assent Date: 25.3.14 Commencement Date: S. 160(Sch. 2 item 36) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Fences Amendment Act 2014, No. 30/2014
Assent Date: 15.4.14 Commencement Date: S. 13 on 22.9.14: Special Gazette (No. 317) 16.9.14 p. 1 CurrentState: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
Oaths and Affirmations Act 2018, No. 6/2018
Assent Date: 27.2.18 Commencement Date: S. 68(Sch. 2 item 48) on 1.3.19: s. 2(2) Current State: This information relates only to the provision/s amending the Emerald Tourist Railway Act 1977
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3 Amendments Not in Operation
There are no amendments which were Not in Operation at the date of this publication.
4 Explanatory details
[1] S. 8(1): Section 5(2) and Part 2 of Schedule 2 of the Land (Miscellaneous Matters) Act 1986, No. 36/1986 (repealed) read as follows:
5Revocation of permanent reservations
(2)Section 8(1) of and Schedule Two to the Emerald Tourist Railway Act 1977 insofar as they relate to the land delineated and shown hatched on the plan in Part II of Schedule Two and any provision of any other Act insofar as it reserves or affects that land are repealed.
Schedule 2
PART II
Land, being part of the land referred to in Item One of Part I of this Schedule, in respect of which the Reservation referred to in that Item is repealed by this Act.
704 square metres, Parish of Gembrook.
0
0
0