National Transport Commission (Model Legislation Rail Safety Bill) Regulations 2006 (Cth)
National Transport Commission (Model Legislation—Rail Safety Bill) Regulations 2006
Select Legislative Instrument No. 358, 2006
made under the
National Transport Commission Act 2003
Compilation No. 1
Compilation date: 5 March 2016
Includes amendments up to: F2016L00170
Registered: 5 July 2016
About this compilation
This compilation
This is a compilation of the National Transport Commission (Model Legislation—Rail Safety Bill) Regulations 2006 that shows the text of the law as amended and in force on 5 March 2016 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
1............ Name of Regulations.................................................................................................... 1
2............ Commencement............................................................................................................ 1
3............ Model legislation—Rail Safety Bill............................................................................. 1
Schedule 1—Text of the draft Rail Safety Bill 2006 2
Endnotes102
Endnote 1—About the endnotes 102
Endnote 2—Abbreviation key 103
Endnote 3—Legislation history 104
Endnote 4—Amendment history 105
1Name of Regulations
These Regulations are the National Transport Commission (Model Legislation—Rail Safety Bill) Regulations 2006.
2Commencement
These Regulations commence on the day after they are registered.
3Model legislation—Rail Safety Bill
For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out model legislation, in the form of a Bill for an Act, about rail safety.
Note 1:The model legislation set out in Schedule 1 does not have the force of law (see paragraph 7(2)(a) of the NTC Act).
Note 2:These Regulations must be made in accordance with the Agreement (see subparagraph 3(b)(i) of the NTC Act).
Note 3:These Regulations are not subject to disallowance—see regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.
Note 4:These Regulations are not subject to sunsetting—see regulations made for the purposes of paragraph 54(2)(b) of the Legislation Act 2003.
Note 5:The text set out in Schedule 1 is that of a draft Bill prepared for the National Transport Commission and approved by the Australian Transport Council on 2 June 2006, but never actually enacted.
Schedule 1—Text of the draft Rail Safety Bill 2006
(regulation 3)
Contents
Page
Introductory note from the National Transport Commission 8
Part 1—Preliminary 8
1............ Purpose......................................................................................................................... 8
2............ Commencement............................................................................................................ 8
3............ Objects of Act............................................................................................................... 8
4............ Definitions.................................................................................................................... 9
5............ Declaration of substance to be a drug......................................................................... 14
6............ Railways to which this Act does not apply................................................................. 14
7............ The concept of ensuring safety................................................................................... 14
8............ Rail safety work.......................................................................................................... 15
9............ Examples [local variations]........................................................................................ 16
10.......... Notes [local variations].............................................................................................. 16
11.......... Crown to be bound...................................................................................................... 16
Part 2—Occupational Health and Safety legislation 17
12.......... Act adds to protection provided by OHS legislation.................................................. 17
13.......... OHS legislation prevails............................................................................................. 17
14.......... Compliance with this Act is no defence to prosecution under OHS legislation......... 17
15.......... Relationship between duties under this Act and OHS legislation.............................. 17
16.......... No double jeopardy..................................................................................................... 18
Part 3—Administration 19
Division 1—The Rail Safety Regulator 19
17.......... The Rail Safety Regulator.......................................................................................... 19
18.......... Functions..................................................................................................................... 19
19.......... Information to be included in annual reports.............................................................. 19
20.......... Delegation................................................................................................................... 20
21.......... Rail Safety Regulator may exercise functions of rail safety officers......................... 20
Division 2—Rail Safety Officers 21
22.......... Appointment............................................................................................................... 21
23.......... Reciprocal powers of rail safety officers.................................................................... 21
24.......... Identification cards for rail safety officers.................................................................. 22
25.......... Rail safety officer must not exercise functions without identification card............... 22
26.......... Display and production of identification card............................................................ 22
27.......... Return of identification cards..................................................................................... 23
Part 4—Rail Safety 24
Division 1—General safety duties 24
28.......... Safety duties of rail transport operators...................................................................... 24
29.......... Duties of designers, manufacturers, suppliers etc...................................................... 25
Division 2—Accreditation 27
30.......... Purpose of accreditation............................................................................................. 27
31.......... Accreditation required for railway operations............................................................ 27
32.......... Purpose for which accreditation may be granted........................................................ 27
33.......... Application for accreditation...................................................................................... 28
34.......... What applicant for accreditation must demonstrate................................................... 28
35.......... Rail Safety Regulator may direct applicants to co‑ordinate and co‑operate in applications 29
36.......... Co‑ordination between Rail Safety Regulators.......................................................... 29
37.......... Determination of application...................................................................................... 30
38.......... Prescribed conditions and restrictions........................................................................ 31
39.......... Penalty for breach of condition or restriction............................................................. 31
40.......... Annual fees................................................................................................................. 31
41.......... Late payment fees....................................................................................................... 31
42.......... Waiver of fees............................................................................................................. 31
43.......... Surrender of accreditation........................................................................................... 32
44.......... Revocation or suspension of accreditation................................................................. 32
45.......... Immediate suspension of accreditation....................................................................... 33
46.......... Keeping and making available documents for public inspection............................... 33
47.......... Application for variation of accreditation................................................................... 34
48.......... Where application relates to co‑operative railway operations or operations in another jurisdiction.................................................................................................................. 34
49.......... Determination of application for variation................................................................. 34
50.......... Prescribed conditions and restrictions........................................................................ 35
51.......... Rail Safety Regulator may direct amendment of a safety management system......... 35
52.......... Variation of conditions and restrictions...................................................................... 36
53.......... Rail Safety Regulator may make changes to conditions or restrictions..................... 36
54.......... Accreditation cannot be transferred or assigned......................................................... 36
55.......... Sale or transfer of railway operations by accredited person....................................... 37
Division 3—Private sidings 38
56.......... Exemption from accreditation.................................................................................... 38
Division 4—Safety management 39
57.......... Safety management system......................................................................................... 39
58.......... Compliance with safety management system............................................................. 40
59.......... Review of safety management system........................................................................ 40
60.......... Safety performance reports......................................................................................... 41
61.......... Interface co‑ordination................................................................................................ 41
62.......... Security management plan.......................................................................................... 42
63.......... Emergency plan.......................................................................................................... 42
64.......... Health and fitness management program................................................................... 43
65.......... Alcohol and drug management program.................................................................... 43
66.......... Testing for presence of alcohol or drugs.................................................................... 43
67.......... Fatigue management program.................................................................................... 43
68.......... Assessment of competence......................................................................................... 43
69.......... Identification for rail safety workers.......................................................................... 44
70.......... Duties of rail safety workers....................................................................................... 44
71.......... Contractors to comply with safety management system............................................ 45
Division 5—Information about rail safety etc 46
72.......... Rail transport operators to provide information......................................................... 46
Division 6—Investigating and reporting by rail transport operators 47
73.......... Notification of notifiable occurrences........................................................................ 47
74.......... Investigation of notifiable occurrences....................................................................... 47
Division 7—Audit and inspections by Rail Safety Regulator 49
75.......... Inspection of railway operations of rail transport operators....................................... 49
Part 5—Enforcement 50
Division 1—Entry to places by rail safety officers 50
76.......... Power to enter places.................................................................................................. 50
77.......... Limitation on entry powers—places used for residential purposes............................ 50
78.......... Notice of entry............................................................................................................ 51
Division 2—General enforcement powers 52
79.......... General powers after entering a place........................................................................ 52
80.......... Use of assistants and equipment................................................................................. 53
81.......... Use of electronic equipment....................................................................................... 53
82.......... Use of equipment to examine or process things......................................................... 53
83.......... Securing a site............................................................................................................. 53
Division 3—Search warrants 55
84.......... Search warrant............................................................................................................ 55
85.......... Seizure of things not mentioned in the warrant.......................................................... 56
Division 4—Powers to support seizure 57
86.......... Directions relating to seizure...................................................................................... 57
87.......... Rail safety officer may direct a thing’s return............................................................ 57
88.......... Receipt for seized things............................................................................................. 58
89.......... Access to seized thing................................................................................................. 58
90.......... Embargo notices......................................................................................................... 58
Division 5—Forfeiture 60
91.......... Return of seized things............................................................................................... 60
92.......... Forfeiture.................................................................................................................... 60
93.......... Forfeiture on conviction............................................................................................. 61
94.......... Dealing with forfeited sample or thing....................................................................... 61
Division 6—Directions 62
95.......... Rail safety officers may direct certain persons to give assistance.............................. 62
96.......... Power to direct name and address be given................................................................ 62
97.......... Failure to give name or address.................................................................................. 63
98.......... Power to direct production of documents................................................................... 63
99.......... Failure to produce document...................................................................................... 63
Division 7—Improvement notices 64
100........ Improvement notices.................................................................................................. 64
101........ Contravention of improvement notice........................................................................ 65
102........ Withdrawal or amendment of improvement notices.................................................. 65
103........ Proceedings for offences not affected by improvement notices................................. 66
104........ Rail Safety Regulator to arrange for rail safety work required by improvement notice to be carried out................................................................................................................... 66
Division 8—Prohibition notices 67
105........ Prohibition notice........................................................................................................ 67
106........ Contravention of prohibition notice............................................................................ 68
107........ Oral direction before prohibition notice served.......................................................... 68
108........ Withdrawal or amendment of prohibition notice........................................................ 68
109........ Proceedings for offences not affected by prohibition notices.................................... 69
Division 9—Miscellaneous 70
110........ Directions may be given under more than one provision........................................... 70
111........ Temporary closing of railway crossings, bridges etc................................................. 70
112........ Restoring rail infrastructure and rolling stock etc to original condition after action taken 70
113........ Use of force................................................................................................................. 71
114........ Power to use force against persons to be exercised only by police officers............... 71
115........ Protection from incrimination..................................................................................... 71
Part 6—Review of decisions 72
116........ Application of Ombudsman legislation to Rail Safety Regulator and rail safety officers [local variations]................................................................................................................... 72
117........ Reviewable decisions.................................................................................................. 72
118........ Review by the Rail Safety Regulator.......................................................................... 73
119........ Review by the tribunal [or court – local variations].................................................. 74
Part 7—General liability and evidentiary provisions 76
Division 1—General 76
120........ Proceedings for offences............................................................................................. 76
121........ Period within which proceedings for offences may be commenced.......................... 76
122........ Authority to take proceedings [non‑core provision]................................................... 76
123........ Vicarious responsibility [non‑core provision]............................................................ 77
124........ Records and evidence from records............................................................................ 78
125........ Certificate evidence.................................................................................................... 78
126........ Proof of appointments and signatures unnecessary.................................................... 78
127........ Multiple offences [non‑core provision]...................................................................... 79
128........ Offences by bodies corporate, partnerships, associations and employees [non‑core provision].................................................................................................................................... 79
Division 2—Discrimination against employees 81
129........ Dismissal or other victimisation of employee............................................................ 81
130........ Defendant bears onus of proof.................................................................................... 82
131........ Order for damages or reinstatement........................................................................... 82
Division 3—False or misleading information 83
132........ False or misleading information provided to Rail Safety Regulator or officials........ 83
Division 4—Other offences 84
133........ Obstructing or hindering rail safety officers............................................................... 84
134........ Offence to impersonate rail safety officer [non‑core provision]................................ 84
135........ Not to interfere with train, tram etc............................................................................ 84
136........ Applying brake or emergency device......................................................................... 85
137........ Stopping a train or tram.............................................................................................. 85
Division 5—Infringement notices 86
138........ Infringement notices................................................................................................... 86
139........ Infringement penalty................................................................................................... 86
Division 6—Enforceable voluntary undertakings 87
140........ Rail Safety Regulator may accept undertakings......................................................... 87
141........ Enforcement of undertakings...................................................................................... 87
Division 7—Court‑based sanctions 88
142........ Fines............................................................................................................................ 88
143........ Daily penalty for continuing offences [non‑core provision]...................................... 88
144........ Commercial benefits order [non‑core provision]....................................................... 88
145........ Supervisory intervention order [non‑core provision]................................................. 89
146........ Contravention of supervisory intervention order [non‑core provision]...................... 91
147........ Exclusion orders [non‑core provision]....................................................................... 91
148........ Contravention of exclusion order [non‑core provision]............................................. 92
Part 8—General 93
Division 1—Confidentiality 93
149........ Confidentiality............................................................................................................ 93
Division 2—Civil liability 94
150........ Civil liability not affected by Division 1 or 4 of Part 4.............................................. 94
151........ Indemnity of persons authorised by Rail Safety Regulator and rail safety officers... 94
152........ Immunity for reporting unfit rail safety worker......................................................... 95
Division 3—Compliance codes and guidelines 96
153........ Approval of compliance codes and guidelines........................................................... 96
154........ Effect of compliance code.......................................................................................... 96
155........ Effect of complying with a compliance code............................................................. 96
156........ Disallowance of compliance codes or guidelines....................................................... 97
Division 4—Miscellaneous 98
157........ Recovery of certain costs............................................................................................ 98
158........ Recovery of amounts due........................................................................................... 98
159........ Compliance with conditions of accreditation............................................................. 98
160........ Prescribed persons...................................................................................................... 98
161........ Contracting out prohibited.......................................................................................... 98
162........ Regulations................................................................................................................. 99
Part 9—Transitional 100
163........ Transitional............................................................................................................... 100
Part 10—Consequential amendments 101
Introductory note from the National Transport Commission
This Bill is intended to provide model rail safety legislative provisions for nationally consistent implementation in each State and Territory.
The Bill is in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available—for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.
The model provisions may be varied where necessary to conform to local legal policy requirements and legislative drafting practice. Also, some of the model provisions have been classified as ‘non‑core’. These are considered valuable and desirable provisions for inclusion in best practice national rail safety legislation but their implementation in all jurisdictions is not regarded as essential for nationally consistent rail safety outcomes.
Maximum penalty levels for rail safety offences have not been specified in the model Bill due to the need for penalty levels to be consistent with each State’s and Territory’s monetary penalty policy.
A Bill for an Act to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws and for other purposes
Part 1—Preliminary
1Purpose
The purpose of this Act is to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws.
Note:This section will provide for the short title or long title as appropriate for each jurisdiction.
2Commencement
This Act commences on a day or days to be fixed by proclamation.
Note:Commencement of the Act will be as determined by the jurisdiction.
3Objects of Act
Having regard to the importance of rail safety and regulatory efficiency, the objects of this Act are—
(a)to provide for improvement of the safe carrying out of railway operations;
(b)to provide for the management of risks associated with railway operations;
(c)to make special provision for the control of particular risks arising from railway operations;
(d)to promote public confidence in the safety of transport of persons or freight by rail.
4Definitions
In this Act:
accredited person means a rail transport operator who is accredited under this Act but does not include person whose accreditation under this Act—
(a)has been surrendered or revoked or has otherwise ceased to have effect under this Act; or
(b)is suspended under this Act;
Australian rail safety law means a rail safety law or a corresponding rail safety law;
Australian Rail Safety Regulator means the Rail Safety Regulator or a corresponding Rail Safety Regulator;
Chief Commissioner of Police has the same meaning as in the Police Regulation Act 1958 [local variations];
commercial benefits order means an order under section 144;
compliance code means a compliance code approved by the Minister under Division 3 of Part 8;
corresponding law means—
(a)the law of another jurisdiction corresponding, or substantially corresponding, to this Act; or
(b)a law of another jurisdiction that is declared under the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act;
corresponding rail safety law means a rail safety law as defined in a corresponding law;
corresponding Rail Safety Regulator means—
(a)the Rail Safety Regulator within the meaning of a corresponding rail safety law (except in the case of a jurisdiction for which a person is prescribed under paragraph (b)); or
(b)a person prescribed by the regulations as the corresponding Rail Safety Regulator for another jurisdiction for the purposes of this Act;
drug means—
(a)a substance that is a drug for the purposes of this Act by virtue of a declaration under section 5; and
(b)any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;
embargo notice means a notice under section 90;
employee means a person employed under a contract of employment or contract of training;
employer means a person who employs one or more other persons under contracts of employment or contracts of training;
exercise includes perform;
function includes power, authority or duty;
Government Gazette [local variations];
guidelines means guidelines approved by the Minister under Division 3 of Part 8;
improvement notice means a notice under section 100;
infringement notice means a notice under Division 5 of Part 7;
jurisdiction means a State or Territory;
notifiable occurrence means an accident or incident associated with railway operations—
(a)that has, or could have, caused:
(i)significant property damage; or
(ii)serious injury; or
(iii)death; or
(b)that is, or is of a class that is, prescribed by the regulations to be a notifiable occurrence or class of notifiable occurrence;
but does not include an accident or incident, or class of accident or incident, that is prescribed by the regulations not to be a notifiable occurrence;
occupational health and safety legislation means the Occupational Health and Safety Act and regulations under that Act [local variations];
police officer means an officer or member of the police force of Victoria [local variations];
private siding means a siding that is managed, owned or controlled by a person, other than a person who manages the rail infrastructure with which the siding connects or to which it has access, but does not include—
(a)a marshalling yard;
(b)a crossing loop;
(c)a passenger terminal;
(d)a freight terminal;
(e)a siding, or a siding of a class, prescribed by the regulations not to be a private siding;
prohibition notice means a notice under section 105;
public place means—
(a)a place that—
(i)the public is entitled to use; or
(ii)is open to members of the public; or
(iii)is used by the public—
whether or not on payment of money; or
(b)a place that the occupier allows members of the public to enter, whether or not on payment of money;
rail infrastructure means the facilities that are necessary to enable a railway to operate safely and includes, but is not limited to—
(a)railway tracks and associated track structures;
(b)service roads, signalling systems, communications systems, rolling stock control systems and data management systems;
(c)notices and signs;
(d)electrical power supply and electric traction systems;
(e)associated buildings, workshops, depots and yards;
(f)plant, machinery and equipment:
but does not include:
(g)rolling stock; or
(h)any facility, or facility of a class, that is prescribed by the regulations not to be rail infrastructure;
rail infrastructure manager, in relation to rail infrastructure of a railway, means the person who has effective management and control of the rail infrastructure, whether or not the person—
(a)owns the rail infrastructure; or
(b)has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it;
rail safety law means this Act and the regulations or a provision of this Act or the regulations;
rail safety officer means a person appointed by the Rail Safety Regulator as a rail safety officer under Division 2 of Part 3;
Rail Safety Regulator means [local variations];
rail safety work—see section 8;
rail safety worker means a natural person who has carried out, is carrying out or is about to carry out, rail safety work;
rail transport operator means—
(a)a rail infrastructure manager; or
(b)a rolling stock operator; or
(c)a person who is both a rail infrastructure manager and a rolling stock operator;
railway means a guided system, or proposed guided system, designed for the movement of rolling stock having the capability of transporting passengers or freight, or both, on a railway track with a gauge of 600mm or more, together with its rail infrastructure and rolling stock and includes—
(a)a heavy railway;
(b)a light railway;
(c)a monorail;
(d)an inclined railway;
(e)a tramway;
(f)a railway within a marshalling yard or a passenger or freight terminal;
(g)a private siding;
(h)a guided system, or guided system of a class, prescribed by the regulations to be a railway;
Note:See section 6 for railways to which this Act does not apply.
railway operations means—
(a)the construction of a railway, railway tracks and associated track structures or rolling stock;
(b)the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure;
(c)the commissioning, maintenance, repair, modification or decommissioning of rolling stock;
(d)the operation or movement, or causing the operation or movement by any means, of rolling stock on a railway (including for the purposes of construction or restoration of rail infrastructure);
(e)the movement, or causing the movement, of rolling stock for the purposes of operating a railway service;
railway premises means—
(a)land (including any premises on land) on or in which is situated rail infrastructure;
(b)land (including any premises on land) on or in which is situated any over‑track or under‑track structure or part of an over track or under track structure;
(c)freight centres or depots used in connection with the carrying out of railway operations;
(d)workshops or maintenance depots used in connection with the carrying out of railway operations;
(e)premises including an office, building or housing used in connection with the carrying out of railway operations;
(f)rolling stock or other vehicles associated with railway operations;
railway tracks and associated track structures means—
(a)railway tracks and associated track structures and works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works);
(b)over‑track structures and under‑track structures (including tunnels under tracks);
regulations means regulations under this Act;
relevant concentration of alcohol means the concentration of alcohol present in the breath or blood of a person that is prescribed by the regulations, being zero or a positive amount;
road vehicle [local variations];
rolling stock means a vehicle that operates on or uses a railway and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, self propelled infrastructure maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a vehicle designed to operate both on and off a railway when the vehicle is not operating on a railway;
rolling stock operator means a person who has effective management and control of the operation or movement of rolling stock on rail infrastructure for a particular railway but does not include a person by reason only that the person drives the rolling stock or controls the network or the network signals;
safety means the safety of people, including rail safety workers, passengers, other users of railways and the general public;
safety management plan means a document describing a safety management system;
safety management system—see section 57;
security management plan—see section 62;
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;
substance means substance in any form (whether gaseous, liquid, solid or other) and includes material, preparation, extract and admixture;
supervisory intervention order means an order under section 145;
supply includes—
(a)in relation to goods—supply or resupply by way of sale, exchange, lease, hire or hire purchase, whether as principal or agent;
(b)in relation to services—provide, grant or confer, whether as principal or agent;
this jurisdiction means [local variations];
train means—
(a)two or more units of rolling stock coupled together, at least one of which is a locomotive or other self‑propelled unit; or
(b)a unit of rolling stock that is a locomotive or other self propelled unit;
Tribunal means [local variations].
5Declaration of substance to be a drug
The Minister, by Order published in the Government Gazette, may declare any substance to be a drug for the purposes of this Act.
Note:Local variations
6Railways to which this Act does not apply
This Act does not apply to—
(a)a railway in a mine that is underground, or chiefly underground, and that is used in connection with the performance of mining operations;
(b)a slipway;
(c)a railway used only to guide a crane;
(d)an aerial cable operated system;
(e)a railway that is operated solely within an amusement or theme park, is required to be registered as an amusement device under occupational health and safety legislation and does not operate on or across a road within the meaning of the Road Safety Act 1986 [local variations];
(f)a railway, or class of railway, that the regulations prescribe to be a railway to which this Act does not apply [local variations].
7The concept of ensuring safety
(1)To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety requires the person—
(a)to eliminate risks to safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Act and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety—
(a)the likelihood of the risk concerned eventuating;
(b)the degree of harm that would result if the risk eventuated;
(c)what the person concerned knows or ought reasonably to know, about the risk and any ways of eliminating or reducing the risk;
(d)the availability and suitability of ways to eliminate or reduce the risk;
(e)the cost of eliminating or reducing the risk.
8Rail safety work
(1)Subject to sub‑section (2), any of the following classes of work is rail safety work for the purposes of this Act—
(a)driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock;
(b)signalling (and signalling operations), receiving or relaying communications or any other activity which is capable of controlling or affecting the movement of rolling stock;
(c)coupling or uncoupling rolling stock;
(d)maintaining, repairing, modifying, monitoring, inspecting or testing—
(i)rolling stock, including checking that the rolling stock is working properly before being used; or
(ii)rail infrastructure; or
(e)installation of components in relation to rolling stock;
(f)work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used;
(g)installation or maintenance of—
(i)a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure; or
(ii)the means of supplying electricity directly to rail infrastructure or to any rolling stock using rail infrastructure or to a telecommunications system;
(h)work involving certification as to the safety of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock;
(i)work involving the decommissioning of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock;
(j)work involving the development, management or monitoring of safe working systems for railways;
(k)work involving the management or monitoring of passenger safety on, in or at any railway;
(l)any other work that is prescribed by the regulations to be rail safety work.
(2)The following are not rail safety work for the purposes of this Act—
(a)any work that involves the driving of a road vehicle or rolling stock on a road or road related area within the meaning of the Road Safety Act 1986 [local variations];
(b)any work prescribed by the regulations not to be rail safety work.
9Examples [local variations]
(1)An example (however expressed) in this Act is part of this Act.
(2)If this Act includes an example (however expressed) of the operation of a provision of this Act—
(a)the example is not exhaustive; and
(b)the example does not limit, but may extend, the meaning of the provision.
10Notes [local variations]
A note in this Act is explanatory and is not part of this Act.
11Crown to be bound
This Act binds the Crown, not only in right of this jurisdiction but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Note:The extent (if any) to which, and manner in which (if appropriate) criminal proceedings may be brought against the Crown will depend on local policy (see Part 7).
Part 2—Occupational Health and Safety legislation
Note:The Occupational Health and Safety Act [local variations] is the main Act that deals with the health, safety and welfare of people at work, including people at work in railway operations. This Division explains how this Act fits with the OHS legislation and creates additional protections, rights and obligations necessary because of the special risks associated with railway operations. This Act should be read as if it were part of the OHS legislation. This Part makes it clear that this Act provides for an increase in the standard of protection of people at work in railway operations, in addition to the protection that the OHS legislation provides.
12Act adds to protection provided by OHS legislation
If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Act and the regulations made under this Act.
13OHS legislation prevails
If a provision of this Act or the regulations made under this Act is inconsistent with a provision of the occupational health and safety legislation, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency.
Note 1:For example, if a provision of this Act deals with a certain matter and a provision of the Occupational Health and Safety Act deals with the same matter and it is impossible to comply with both provisions, then the person must comply with the Occupational Health and Safety Act and not with this Act. If provisions of both Acts deal with the same matter but it is possible to comply with both provisions, then a person must comply with both Acts.
Note 2:Local variations as to priority of improvement notices and prohibition notices.
14Compliance with this Act is no defence to prosecution under OHS legislation.
Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation.
Note:For example, a person may be guilty of an offence under the Occupational Health and Safety legislation in respect of any act or omission that is expressly required or permitted to be done or omitted by or under this Act or the regulations made under this Act.
15Relationship between duties under this Act and OHS legislation
Evidence of a relevant contravention of this Act or the regulations made under this Act is admissible in any proceedings for an offence against the occupational health and safety legislation.
16No double jeopardy
Where an act or omission constitutes an offence—
(a)under this Act or the regulations made under this Act; and
(b)under the occupational health and safety legislation—
the offender is not liable to be punished twice in respect of the offence.
Note:This provision is included to make it clear that the double jeopardy provision in the Interpretation of Legislation Act 1984 [local variations] applies.
Part 3—Administration
Division 1—The Rail Safety Regulator
17The Rail Safety Regulator
Note:Local variations to establish the Rail Safety Regulator or define another person/body as the Rail Safety Regulator.
18Functions
(1)In addition to any other functions conferred on the Rail Safety Regulator by this Act or the regulations, the Rail Safety Regulator has the following functions—
(a)to administer, audit and review the accreditation regime under this Act;
(b)to work with rail transport operators, rail safety workers, others involved in railway operations and corresponding Rail Safety Regulators to improve rail safety in this jurisdiction and nationally;
(c)to provide information to corresponding Rail Safety Regulators, including information about causal factors of rail incidents, accreditation processes, investigation methods and risk assessment methodologies;
(d)to collect and publish information relating to rail safety;
(e)to provide, or facilitate the provision of, advice, education and training in relation to rail safety;
(f)to monitor, investigate and enforce compliance with this Act.
(2)The functions of the Rail Safety Regulator under this Act are in addition to any function that the Rail Safety Regulator has under any other Act or law.
19Information to be included in annual reports
(1)The Rail Safety Regulator must in each annual report relating to a financial year include—
(a)information on the development of rail safety including an aggregation of statistics of a prescribed class reported to the Rail Safety Regulator under this Act or the regulations in respect of that year; and
(b)information on any improvements and important changes in relation to the regulation of rail safety.
(2)Sub‑section (1) is in addition to any other requirement under any other Act or law to make a report or publish information.
Note:The form of this section will differ according to the way in which each jurisdiction deals with annual reporting.
20Delegation
(1)The Rail Safety Regulator may, by instrument in writing, delegate any of the Rail Safety Regulator’s functions under this Act (other than this power of delegation) or under the regulations to a rail safety officer or to any other person.
(2)A rail safety officer or other person may, by instrument, delegate to any other person any function delegated to him or her under sub‑section (1).
Note:Local variations to provide detail of the delegation power.
21Rail Safety Regulator may exercise functions of rail safety officers
(1)The Rail Safety Regulator may exercise any function conferred on a rail safety officer by or under this Act or the regulations.
(2)Accordingly, in this Act (except this Part) a reference to a rail safety officer includes a reference to the Rail Safety Regulator.
Division 2—Rail Safety Officers
22Appointment
(1)The Rail Safety Regulator, by instrument in writing, may appoint a person, or person of a prescribed class, to be a rail safety officer for a term, and subject to the conditions, specified in the instrument.
Note 1:A person appointed under sub‑section (1) need not be an employee of the Rail Safety Regulator or of a government agency.
Note 2:A person appointed under sub‑section (1) may be a police officer of this jurisdiction or a rail safety officer under a corresponding rail safety law.
(2)The Rail Safety Regulator must not appoint a person under sub‑section (1) unless the Rail Safety Regulator is satisfied the person holds appropriate qualifications, or has appropriate experience, to perform the functions of a rail safety officer under this Act.
(3)Without limiting the conditions to which the appointment of a rail safety officer may be subject, a condition may specify one or more of the following—
(a)functions under this Act or the regulations that may not be exercised by the rail safety officer;
(b)the only functions under this Act or the regulations that may be exercised by the rail safety officer;
(c)the circumstances or manner in which a function under this Act or the regulations may be performed by the rail safety officer.
23Reciprocal powers of rail safety officers
(1)This section has effect in relation to another jurisdiction while there is in force a corresponding rail safety law that contains provisions corresponding to this section.
(2)The Minister may enter into an agreement with a Minister of another jurisdiction for the purposes of this section, including an agreement to amend or revoke any such agreement.
(3)To the extent envisaged by such an agreement—
(a)rail safety officers of this jurisdiction may, in this jurisdiction or the other jurisdiction, exercise functions conferred on rail safety officers of the other jurisdiction by or under the corresponding rail safety law of that other jurisdiction; and
(b)rail safety officers of that other jurisdiction may, in this jurisdiction or that other jurisdiction, exercise functions conferred on rail safety officers by or under this Act.
(4)Anything done or omitted to be done by a rail safety officer of this jurisdiction under sub‑section (3) is taken to have been done under this Act as well as under the corresponding rail safety law.
(5)The regulations may make provision for or with respect to the exercise of functions under this section.
(6)Nothing in this section affects the appointment under section 22 of persons as rail safety officers for the purposes of this Act.
Note:Ancillary provision may be needed to give effect to the intention of this section.
24Identification cards for rail safety officers
The Rail Safety Regulator must—
(a)issue a rail safety officer with an identification card; or
(b)designate a card issued to a rail safety officer by a corresponding Rail Safety Regulator or by a person, body or authority (whether or not of this jurisdiction) as an identification card for the purposes of this Act.
25Rail safety officer must not exercise functions without identification card
A rail safety officer must not exercise a function conferred by or under this Act unless an identification card has been issued to, or designated for, the officer by the Rail Safety Regulator.
26Display and production of identification card
(1)This section applies to a rail safety officer who is exercising, or about to exercise, a function under this Act.
(2)A rail safety officer must—
(a)display his or her identification card if the officer is not wearing an approved uniform or badge; or
(b)produce his or her identification card if requested to do so by a person in relation to whom the officer is exercising, or about to exercise, the function.
(3)If it is not practical for a rail safety officer to produce his or her identification card on being requested to do so, the rail safety officer must produce his or her identification card as soon as practicable after the request is made.
(4)In this section—
approved, in relation to a uniform or badge worn by a rail safety officer, means a uniform or badge approved by the Rail Safety Regulator.
27Return of identification cards
A person who has ceased to be a rail safety officer must not, without reasonable excuse, refuse or fail to return to the Rail Safety Regulator, within such period as is specified by the Rail Safety Regulator in a request for return of the card, any identification card issued to the person by the Rail Safety Regulator.
Penalty:
Part 4—Rail Safety
Note:Local variations for consistency with OHS legislation
Division 1—General safety duties
28Safety duties of rail transport operators
(1)A rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator’s railway operations.
Penalty:In the case of a natural person
Penalty:In the case of a body corporate
(2)Without limiting sub‑section (1), a rail transport operator contravenes that sub‑section if the operator fails to do any of the following—
(a)develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the operator’s railway operations;
(b)ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the operator’s railway operations—
(i)is of sufficient good health and fitness to carry out that work safely; and
(ii)is competent to undertake that work;
(c)ensure, so far as is reasonably practicable, that rail safety workers do not carry out rail safety work in relation to the operator’s railway operations, and are not on duty, while more than the relevant concentration of alcohol is present in their blood or breath or while impaired by a drug;
(d)ensure, so far as is reasonably practicable, that rail safety workers who perform rail safety work in relation to the operator’s railway operations comply with the operator’s fatigue management program in force under section 67;
(e)provide, so far as is reasonably practicable, adequate facilities for the safety of persons at any railway premises under the control or management of the operator;
(f)provide, so far as is reasonably practicable—
(i)such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator’s railway operations in a way that is safe; and
(ii)such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety.
(3)Without limiting sub‑section (1), a rail infrastructure manager contravenes that sub‑section if the manager fails to do any of the following—
(a)ensure, so far as is reasonably practicable, that any use, installation, modification, design, construction, commissioning, maintenance or decommissioning of the manager’s rail infrastructure is done or carried out in a way that ensures, so far as is reasonably practicable, the safety of railway operations;
(b)establish, so far as is reasonably practicable, such systems and procedures for the scheduling, control and monitoring of railway operations that ensure, so far as is reasonably practicable, the safety of the manager’s railway operations.
(4)Without limiting sub‑section (1), a rolling stock operator contravenes that sub‑section if the rolling stock operator fails to do any of the following—
(a)provide or maintain rolling stock that, so far as is reasonably practicable, is safe;
(b)ensure, so far as is reasonably practicable, that any maintenance, commissioning, modification, construction, repair or cleaning of rolling stock is carried out in a way that, so far as is reasonably practicable, ensures safety;
(c)comply, so far as is reasonably practicable, with such rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager’s rail infrastructure by the rolling stock operator;
(d)so far as is reasonably practicable, establish and maintain equipment, procedures and systems to minimise risks to the safety of the operator’s railway operations;
(e)make arrangements for ensuring, so far as is reasonably practicable, safety in connection with the use, operation and maintenance of the operator’s rolling stock.
(5)For the purposes of this section, the duties of a rail transport operator under this section extend to a contractor engaged by the operator, and any employees of the contractor, in relation to matters over which the operator has control or would have control if not for any agreement purporting to limit or remove that control.
Note:Local variations for consistency with OHS legislation.
(6)An offence against sub‑section (1) is an indictable offence.
29Duties of designers, manufacturers, suppliers etc
(1)A person who—
(a)designs, commissions, manufactures, supplies, installs or erects any thing; and
(b)knows, or ought reasonably to know, that the thing is to be used as or in connection with rail infrastructure or rolling stock—
must—
(c)ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected; and
(d)carry out, or arrange the carrying out, of such testing and examination of the thing as may be necessary for compliance with this section; and
(e)take such action as is necessary to ensure, so far as is reasonably practicable, that there will be available in connection with the use of the thing adequate information about—
(i)the use for which the thing was designed, commissioned, manufactured, supplied, installed or erected; and
(ii)the results of any testing or examination referred to in paragraph (d); and
(iii)any conditions necessary to ensure, so far as is reasonably practicable, the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected.
Penalty:In the case of a natural person—
Penalty:In the case of a body corporate—
(2)A person who decommissions any rail infrastructure or rolling stock must—
(a)ensure, so far as is reasonably practicable, that the decommissioning is carried out safely; and
(b)carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section.
Penalty:In the case of a natural person
Penalty:In the case of a body corporate
(3)An offence against sub‑section (1) or (2) is an indictable offence.
(4)For the purposes of sub‑section (1), if the person who supplies the thing—
(a)carries on the business of financing the acquisition of the thing by customers; and
(b)has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and
(c)has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer—
the reference in sub‑section (1) to the person who supplies that thing is instead taken to be a reference to the third person.
Division 2—Accreditation
30Purpose of accreditation
The purpose of accreditation of a rail transport operator in relation to railway operations is to attest that the rail transport operator has demonstrated to the Rail Safety Regulator the competence and capacity to manage risks to safety associated with those railway operations.
31Accreditation required for railway operations
A person must not carry out or cause or permit to be carried out, any railway operations (other than rail safety work) unless the person—
(a)is a rail transport operator who—
(i)is accredited under this Part in relation to those operations; or
(ii)is exempt under this Act from compliance with this section in relation to those operations; or
(b)is carrying out those operations, or causing or permitting those operations to be carried out, for or on behalf of—
(i)a rail transport operator who is accredited under this Part in relation to those operations; or
(ii)a rail transport operator who is exempt under this Act from compliance with this section in relation to those operations; or
(c)is exempt under this Act from compliance with this section in relation to those operations.
Penalty:In the case of a natural person
Penalty:In the case of a body corporate
Note:If a body corporate and related bodies corporate are involved, an exemption may be given so that only one of the bodies need be accredited (related body corporate meaning related by virtue of section 50 of the Corporations Act 2001).
32Purpose for which accreditation may be granted
(1)An accreditation may be granted to a rail transport operator for any one or more of the following purposes—
(a)for the carrying out of railway operations for the part or parts of a railway designated in the notice of accreditation, or for a part or parts having the scope or characteristics so designated;
(b)for any service or aspect, or part of a service or aspect, of railway operations designated in the notice of accreditation;
(c)for specified railway operations to permit any one or more of the following—
(i)site preparation;
(ii)construction of rail infrastructure;
(iii)restoration or repair work;
(iv)testing of railway track or other infrastructure;
(v)other activities relating to railway operations considered appropriate by the Rail Safety Regulator and designated in the notice of accreditation.
(2)If the applicant so requests, accreditation may be granted for a specified period only.
33Application for accreditation
(1)A rail transport operator may apply to the Rail Safety Regulator for accreditation in respect of specified railway operations carried out, or proposed to be carried out, by, or on behalf of, that operator.
(2)An application must be made in the manner and form approved by the Rail Safety Regulator and—
(a)must specify the scope and nature of the railway operations in respect of which accreditation is sought; and
(b)must include a safety management plan relating to those railway operations; and
(c)must include copies of all interface co‑ordination plans in accordance with section 61 relating to those railway operations; and
(d)must specify whether or not the applicant is accredited, or has applied for accreditation, under a corresponding law; and
(e)must contain the prescribed information; and
(f)must be accompanied by the prescribed application fee [local variations].
(3)The Rail Safety Regulator may require a rail transport operator who has applied for accreditation—
(a)to supply further information requested by the Rail Safety Regulator;
(b)to verify by statutory declaration any information supplied to the Rail Safety Regulator.
34What applicant for accreditation must demonstrate
The Rail Safety Regulator must not grant accreditation to an applicant unless satisfied, having regard to the guidelines applicable to this section, that the applicant has demonstrated—
(a)that the applicant is a rail infrastructure manager or rolling stock operator in relation to the railway operations for which accreditation is sought; and
(b)that the applicant has the competence and capacity to manage risks to safety associated with the railway operations for which accreditation is sought; and
(c)that the applicant—
(i)has the competence and capacity to implement the proposed safety management system; and
(ii)has the financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the railway operations; and
(d)that the applicant has met the consultation requirements of this Act in relation to the applicant’s safety management system; and
(e)that the applicant has complied with the requirements prescribed by the regulations (if any) for the purposes of this section.
35 Rail Safety Regulator may direct applicants to co‑ordinate and co‑operate in applications
(1)If the Rail Safety Regulator—
(a)receives applications from 2 or more rail transport operators for accreditation; and
(b)believes that co‑ordinated preparation of the applications is necessary to ensure that the railway operations of the applicants are carried out safely—
the Rail Safety Regulator may give a direction in writing to the rail transport operators to co‑ordinate their applications.
(2)A direction under this section may require each rail transport operator that is the subject of the direction to provide to each other rail transport operator that is the subject of the direction information concerning any circumstances in relation to the carrying out of railway operations by the first‑mentioned rail transport operator that could constitute a risk to safety in relation to the carrying out of rail operations by another rail transport operator that is the subject of the direction.
(3)A rail transport operator that is given a direction under sub‑section (1) must comply with the direction.
Penalty:In the case of a natural person
Penalty:In the case of a body corporate
(4)A rail transport operator that has co‑ordinated the preparation of an application in accordance with this section must include in the application reference to information given by the rail transport operator to each other rail transport operator, and information given to the rail transport operator by each other rail transport operator, in accordance with a direction under this section.
Penalty:In the case of a natural person
Penalty:In the case of a body corporate
36Co‑ordination between Rail Safety Regulators
(1)This section applies if the Rail Safety Regulator receives an application for accreditation, or for variation of accreditation or the conditions or restrictions of accreditation, that indicates that the applicant is accredited, or is seeking accreditation, under a corresponding law of one or more other jurisdictions (whether or not contiguous with this jurisdiction).
(2)The Rail Safety Regulator must, as soon as possible and before deciding whether or not to grant the application, consult with the relevant corresponding Rail Safety Regulator, or Regulators, in relation to the application with a view to the outcome of the application being consistent with the outcome of applications made in the other jurisdiction or jurisdictions.
(3)The Rail Safety Regulator, in complying with sub‑section (2), must take into account any guidelines applicable to this section.
(4)If the Rail Safety Regulator does not, in relation to an application, act consistently with the provisions of the guidelines, the Rail Safety Regulator must give the applicant reasons for not so acting.
37Determination of application
144Commercial benefits order [non‑core provision]
(1)The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, make an order under this section.
(2)The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that—
(a)was received or receivable, by the person or by an associate of the person, from the commission of the offence; and
(b)in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with the commission of the offence, would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed.
(3)In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account—
(a)benefits of any kind, whether monetary or otherwise; and
(b)monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and
(c)any other matters that it considers relevant, including (for example)—
(i)the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and
(ii)the distance over which any such goods were or were to be carried.
(4)However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.
(5)Nothing in this section prevents the court from ordering payment of an amount that is—
(a)less than 3 times the estimated gross commercial benefit; or
(b)less than the estimated gross commercial benefit.
(6)For the purposes of this section, a person is an associate of another if—
(a)one is a spouse, parent, brother, sister or child of the other; or
(b)they are members of the same household; or
(c)they are partners; or
(d)they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or
(e)one is a body corporate and the other is a director or member of the governing body of the body corporate; or
(f)one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or
(g)they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or
(h)a chain of relationships can be traced between them under any one or more of the above paragraphs.
(7)For the purposes of sub‑section (6), a beneficiary of a trust includes an object of a trust.
145Supervisory intervention order [non‑core provision]
(1)The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.
(2)The court may make a supervisory intervention order requiring the person (at the person’s own expense and for a specified period not exceeding one year) to do all or any of the following—
(a)to do specified things that the court considers will improve the person’s compliance with rail safety laws or specified aspects of rail safety laws, including (for example) the following—
(i)appointing or removing staff to or from particular activities or positions;
(ii)training and supervising staff;
(iii)obtaining expert advice as to maintaining appropriate compliance;
(iv)installing monitoring, compliance, managerial or operational equipment;
(v)implementing monitoring, compliance, managerial or operational practices, systems or procedures;
(b)to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Rail Safety Regulator or a person nominated by the Rail Safety Regulator;
(c)to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order;
(d)to appoint a person to have responsibilities—
(i)to assist the person in improving compliance with rail safety laws or specified aspects of rail safety laws; and
(ii)to monitor the person’s performance in complying with rail safety laws or specified aspects of rail safety laws and in complying with the requirements of the order; and
(iii)to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order.
(3)The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and frequency with which, compliance reports are to be prepared and furnished.
(4)The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form and manner in which, and frequency with which, they are to be made public.
(5)The court may only make a supervisory order if it is satisfied that the order is capable of improving the person’s ability or willingness to comply with the rail safety laws, having regard to—
(a)the offences against Australian rail safety laws of which the person has been previously found guilty; and
(b)the offences against Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn infringement notices; and
(c)any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.
(6)The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order.
(7)A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of—
(a)the Rail Safety Regulator; or
(b)the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
(8)In this section,
compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to—
(a)the performance of the person in complying with
(i)the rail safety laws or aspects of rail safety laws specified in the order; and
(ii)the requirements of the order; and
(b)without limiting the above—
(i)things done by the person to ensure that any failure by the person to comply with the rail safety laws or the specified aspects of the rail safety laws does not continue; and
(ii)the results of those things having been done.
146Contravention of supervisory intervention order [non‑core provision]
A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement.
Penalty:
147Exclusion orders [non‑core provision]
(1)The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section.
(2)For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against Australian rail safety laws, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from—
(a)managing rail infrastructure, or operating rolling stock, or managing or operating a particular type of rail infrastructure or rolling stock; or
(b)being a director, secretary or officer concerned in the management of a body corporate involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction; or
(c)being involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction except by driving a train or rolling stock.
(3)The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to—
(a)the offences against the Australian rail safety laws of which the person has previously been found guilty; and
(b)the offences against the Australian rail safety laws of which the person has been proceeded against by way of unwithdrawn infringement notices; and
(c)any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations.
(4)A court that has power to make an exclusion order may revoke or amend an exclusion order on the application of—
(a)the Rail Safety Regulator; or
(b)the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
148Contravention of exclusion order [non‑core provision]
A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.
Penalty:In the case of a natural person:
Penalty:In the case of a body corporate:
Part 8—General
Division 1—Confidentiality
149Confidentiality
(1)This section applies to a person engaged or previously engaged in the administration of this Act and (without limiting the foregoing) to—
(a)a rail safety officer or a person assisting a rail safety officer;
(b)a person authorised by the Rail Safety Regulator or rail safety officer under a provision of this Act to do the act or thing provided for in that provision;
(c)a person who is or was a delegate of the Rail Safety Regulator;
(d)a person who is or was employed by, or engaged to provide services to or on behalf of, the Rail Safety Regulator;
(e)a person who is or was employed by, or engaged to provide services to, a person or body engaged to provide services to the Rail Safety Regulator.
(2)A person to whom this section applies must not disclose or communicate information obtained (whether by that person or otherwise) in the administration of this Act except—
(a)as required or authorised by or under this or any other Act; or
(b)with the consent of the person from whom the information was obtained or to whom the information relates; or
(c)in connection with the administration of rail safety laws and corresponding rail safety laws; or
(d)for law enforcement purposes, rail safety inquiries or public safety; or
(e)to a court or in connection with any legal proceedings; or
(f)in accordance with the regulations.
Penalty:
(3)Nothing in this section prevents information being used to enable an Australian Rail Safety Regulator to accumulate aggregate data and to enable the Australian Rail Safety Regulator to authorise use of the aggregate data for the purposes of research or education.
Division 2—Civil liability
-
Civil liability not affected by Division 1 or 4 of Part 4
(1)Nothing in Division 1 or 4 of Part 4 is to be construed—
(a)as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provisions of that Division; or
(b)as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.
(2)Sub‑section (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable.
151Indemnity of persons authorised by Rail Safety Regulator and rail safety officers
(1)An authorised person does not incur civil liability for an act or omission done honestly and in good faith in the course of exercising his or her powers under this Act.
(2)A liability that would, apart from sub‑section (1), attach to an authorised person attaches instead to—
(a)the Rail Safety Regulator or rail safety officer that authorised the authorised person, if the authorised person was at the relevant time subject to the control and direction of the Rail Safety Regulator or rail safety officer (as the case requires) in connection with the exercise of the power concerned; or
(b)a corresponding Rail Safety Regulator, if the authorised person was at the relevant time subject to the control and direction of the corresponding Rail Safety Regulator in connection with the exercise of the power concerned; or
(c)the authorised person’s employer, if the authorised person was at the relevant time—
(i)not subject to the control and direction of the Rail Safety Regulator or a corresponding Rail Safety Regulator (as the case requires) in connection with the exercise of the power concerned; and
(ii)acting in the capacity of an employee of that employer; or
(d)in any other case—the Crown in right of this jurisdiction.
(3)If—
(a)a prescribed corresponding law of another jurisdiction provides that a liability that would, apart from a provision of that law, attach to an authorised person (within the meaning of section [ ] of that corresponding law) attaches instead to the Rail Safety Regulator; and
(b)the authorised person was at the relevant time subject to the control and direction of the Rail Safety Regulator in connection with the exercise of the power concerned—
the liability accordingly attaches to the Rail Safety Regulator by force of this section.
Note:Sub‑section (3) is intended to complement and give effect to a provision of a corresponding law that transfers liability to the Rail Safety Regulator of this jurisdiction, but only where the corresponding law is prescribed by the regulations.
(4)In this section—
authorised person means any person authorised by the Rail Safety Regulator or rail safety officer under a provision of this Act to do the act or thing provided for in that provision.
Note:Local variations according to policy on indemnities and immunities.
152Immunity for reporting unfit rail safety worker
(1)No action may be taken against a person to whom this section applies who, in good faith, reports to—
(a)the Rail Safety Regulator; or
(b)a rail transport operator; or
(c)any other person to whom this section applies who is employed or engaged by the Rail Safety Regulator or a rail transport operator—
any information which discloses that a person is unfit to carry out rail safety work or certain types of rail safety work or that it may be dangerous to allow that person to carry out rail safety work or certain types of rail safety work.
(2)No action may be taken against a person to whom this section applies who, in good faith, reports—
(a)the results of a test or examination carried out under this Act or the regulations; or
(b)an opinion formed by that person as a result of conducting such a test or examination—
to a person referred to in sub‑section (1)(a), (b) or (c).
(3)In this section—
person to whom this section applies means—
(a)a registered medical practitioner within the meaning of the Medical Practice Act 1994;
(b)a registered optometrist within the meaning of the Optometrists Registration Act 1996;
(c)a registered physiotherapist within the meaning of the Physiotherapists Registration Act 1998.
Division 3—Compliance codes and guidelines
153Approval of compliance codes and guidelines
(1)For the purpose of providing practical guidance to persons who have duties or obligations under this Act or the regulations, the Minister may make an order—
(a)approving a compliance code; or
(b)approving guidelines.
(2)The Minister may make an order approving the variation of a compliance code or guidelines or revoking the approval of a compliance code or guidelines.
(3)An order approving a compliance code or guidelines, or a variation or revocation order, takes effect when notice of it is published in the Government Gazette or on such later date as is specified in the order.
(4)As soon as practicable after making an order approving a compliance code or guidelines, or a variation or revocation order, the Minister must ensure that notice of the making of the order is published in the Government Gazette.
(5)The Minister must ensure that a copy of—
(a)each compliance code that is currently approved; and
(b)guidelines that are currently approved—
is or are available for inspection by members of the public without charge at the office of the Rail Safety Regulator during normal business hours.
154Effect of compliance code
A failure to comply with a compliance code or guidelines does not give rise to any civil or criminal liability.
Note:A person who complies with a compliance code may, however, be taken to have complied with this Act (see section 155).
155Effect of complying with a compliance code
If—
(a)a compliance code makes provision for or with respect to a duty or obligation imposed by this Act or the regulations; and
(b)a person complies with the compliance code to the extent that it makes that provision—
the person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.
156Disallowance of compliance codes or guidelines
(1)The Minister’s power to make an order approving a compliance code or guidelines, or a variation order, under this Division is subject to the order being disallowed by the Parliament.
(2)Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply for the purposes of sub‑section (1) as if—
(a)an order were a statutory rule (within the meaning of that Act); and
(b)notice of the making of the statutory rule had been published in the Government Gazette when notice of the order or variation order (as the case may be) was published in the Government Gazette.
Note:Local variations.
Division 4—Miscellaneous
157Recovery of certain costs
The Rail Safety Regulator may recover as a debt from a rail transport operator the reasonable costs of the entry and inspection of railway infrastructure, rolling stock or railway premises in respect of which the person is accredited, other than the costs of an inspection of an accredited person under section 75.
158Recovery of amounts due
Every fee, charge or other amount of money payable under this Act or the regulations may be recovered by the Rail Safety Regulator as a debt due to the jurisdiction in a court of competent jurisdiction.
Note:Fees, charges or other amounts of money generally form part of a jurisdiction’s consolidated revenue.
159Compliance with conditions of accreditation
If—
(a)a condition or restriction to which the accreditation of a person is subject makes provision for or with respect to a duty or obligation imposed by this Act or the regulations; and
(b)the accredited person complies with the condition or restriction to the extent that it makes that provision—
the accredited person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.
160Prescribed persons
A person prescribed by the regulations for the purposes of this section must give notice in the prescribed form and within a prescribed period to a rail transport operator of the commencement, or discontinuation, or completion of prescribed operations or activities that may adversely affect the safety of any rail infrastructure or rolling stock of a rail transport operator.
Penalty:
161Contracting out prohibited
A term of any contract or agreement that purports to exclude, limit or modify the operation of this Act or of any provision of this Act is void to the extent that it would otherwise have effect.
162Regulations
(1)The Governor in Council [local variations] may make regulations for or with respect to—
(a)trespassing on railway tracks, tramway tracks or railway premises;
(b)fees for the purposes of this Act and the refund or waiver of such fees;
(c)any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
(2)Regulations made under this Act—
(a)may be of general or of specially limited application; and
(b)may differ according to differences in time, place or circumstance; and
(c)may require a matter affected by the regulations to be—
(i)in accordance with a specified standard or specified requirement; or
(ii)approved by or to the satisfaction of a specified person or a specified class of person; or
(iii)as specified in both sub‑paragraphs (i) and (ii); and
(d)may apply, adopt or incorporate any matter contained in any document whether—
(i)wholly or partially or as amended by the regulations; or
(ii)as in force at a particular time or as in force from time to time; and
(e)may confer a discretionary authority or impose a duty on a specified person or a specified class of person; and
(f)may provide in a specified case or class of case for the exemption of people or things or a class of people or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and
(g)may impose a penalty not exceeding [ ] for a contravention of the regulations; and
(h)may provide that an application may be made to the Tribunal for the review of a decision made under the regulations.
(3)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.
Note:Local jurisdiction will need to determine how to deal with exemptions according to local practice.
Part 9—Transitional
163Transitional
Note:As required for each jurisdiction.
Part 10—Consequential amendments
Note 1: Local variations will apply.
Note 2: In order to make the provisions for interface co‑ordination plans (Part 4) fully effective, requirements to the effect of Notes 3 and 4 below will need to be imposed on road or other authorities
Note 3: Obligations to be enacted relating to road and land use and planning
Requirement that a person who proposes to undertake any road or land use management planning that is reasonably likely to affect any railway premises, rail infrastructure or rolling stock, must take reasonable steps to consult any relevant rail transport operator.
Requirement that a person who proposes to make any changes affecting the location of a road or the use of land or any infrastructure managed or owned by the person, or any of the person’s operations that are reasonably likely to affect any railway operations, railway premises or rolling stock must first take reasonable steps—
(a) to give notice to any relevant rail transport operator of any proposed changes that are reasonably likely to have an adverse affect any rail infrastructure or rolling stock of the rail transport operator; and
(b) to take into account any views expressed by a rail transport operator as to the management of the safety interface with the rail infrastructure or rolling stock.
Note 4: Obligations to be enacted requiring road authorities and others to co‑operate with rail transport operators in relation to safety co‑ordination
Requirement that all road authorities be under obligations similar to those to which rail transport operators are subject in relation to interface co‑ordination with rail transport operators for the management of risks to safety in relation to level crossings, road under rail and road over rail crossings.
Schedule 1—Infringement penalties
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
| ad = added or inserted | o = order(s) |
| am = amended | Ord = Ordinance |
| amdt = amendment | orig = original |
| c = clause(s) | par = paragraph(s)/subparagraph(s) |
| C[x] = Compilation No. x | /sub‑subparagraph(s) |
| Ch = Chapter(s) | pres = present |
| def = definition(s) | prev = previous |
| Dict = Dictionary | (prev…) = previously |
| disallowed = disallowed by Parliament | Pt = Part(s) |
| Div = Division(s) | r = regulation(s)/rule(s) |
| ed = editorial change | reloc = relocated |
| exp = expires/expired or ceases/ceased to have | renum = renumbered |
| effect | rep = repealed |
| F = Federal Register of Legislation | rs = repealed and substituted |
| gaz = gazette | s = section(s)/subsection(s) |
| LA = Legislation Act 2003 | Sch = Schedule(s) |
| LIA = Legislative Instruments Act 2003 | Sdiv = Subdivision(s) |
| (md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
| effect | SR = Statutory Rules |
| (md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
| cannot be given effect | SubPt = Subpart(s) |
| mod = modified/modification | underlining = whole or part not |
| No. = Number(s) | commenced or to be commenced |
Endnote 3—Legislation history
| Name | Registration | Commencement | Application, saving and transitional provisions |
| National Transport Commission (Model Legislation—Rail Safety Bill) Regulations 2006 (SLI No. 358, 2006) | 19 Dec 2006 (F2006L04074) | 20 Dec 2006 (r 2) | |
| Acts and Instruments (Framework Reform) (Consequential Amendments) Regulation 2016 | 29 Feb 2016 (F2016L00170) | Sch 1 (item 43): 5 Mar 2016 (s 2(1) item 1) | — |
Endnote 4—Amendment history
| Provision affected | How affected |
| r 3............................................. | am F2016L00170 |
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