Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Act 2019 (Vic)

Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Act 2019

No. 41 of 2019

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendment of the Rail Safety National Law Application Act 2013

Division 1—General

4Definitions—Principal Act

5Section 4 repealed

6Application of Rail Safety National Law

7Interpretation of certain expressions

8Section 9 repealed

9Exclusion of legislation of this jurisdiction

10Part 3 repealed

11Division 1 of Part 4 repealed

12New Division 1A of Part 4 inserted

13Divisions 3 and 4 of Part 4 repealed

14Division 7 of Part 4 substituted

15Division 5 of Part 7 repealed

16Section 157 repealed

Division 2—Alcohol and drug controls for rail safety workers

17New Part 4A inserted

18Regulations

Division 3—Savings and transitionals

19New Part 8 inserted

Part 3—Amendment of the Transport (Safety Schemes Compliance and Enforcement) Act 2014

20Purpose

21Definitions

22Entry into bus premises, marine premises or bus or boarding vessel

23Notification of entry

24General powers on entry or boarding

25Directions powers as to operation and movement of vehicles

26Magistrates' Court may extend period of detention of vessel

27Persons assisting transport safety officers

28Use of electronic equipment

29Use of equipment to examine or process things

30Securing a site or restricting access to bus or vessel

31Directions for the protection of evidence

32Search warrants

33Seizure of things not mentioned in the warrant

34Announcement before entry or boarding on warrant

35Copy of warrant to be given to person with control or management of place, bus or vessel

36Power to require production of documents, devices or other things and answers to questions

37Sections 23 and 25 amended

38Securing seized things

39Receipt for seized things

40Forfeiture of seized things

41Return of seized things

42Sections 36 and 37 amended

43Compensation

44Sections 39, 40 and 41 amended

45Direction to provide certain information

46Residential premises

47Use of force

48Manner in which transport safety officers must exercise powers

49Service of improvement notices

50Section 51 repealed

51Contents of improvement notices

52Sections 54 and 57 amended

53Service of prohibition notice

54Sections 61 and 67 amended

55When Safety Director may carry out action

56Power of Safety Director to take other remedial action

57Service of non-disturbance notice

58Contents of non-disturbance notice

59Serving notices

60Injunctions for non-compliance with notices

61Enforceable voluntary undertaking

62Sections 84, 85 and 86 amended

63Contravention of transport safety undertaking

64Withdrawal or variation of transport safety undertaking

65Proceedings for alleged contravention

66Additional enforcement measures relating to bus safety

67Response to certain safety reports

68Sections 91 and 92 repealed

69Division 2 of Part 4 repealed

70Reviewable decisions

71Offence to give false or misleading information

72Criminal liability of officers of bodies corporate—failure to exercise due diligence

73Who may commence proceedings for offences against this Act or a transport safety law

74Limited period for prosecution of transport safety law indictable offences

75Evidentiary certificates—this Act or transport safety laws

76Definitions—Court based sanctions

77Commercial benefits order

78Supervisory intervention order

79Exclusion orders

80Adverse publicity order

81Release on the giving of a safety undertaking

82Sections 116, 119, 120, 121 and 122 amended

83Attendance of transport safety officer at inquiries

84Sections 124 and 127 amended

85Recovery of costs

86Section 130 repealed

87Service of documents

88Regulations

Part 4—Amendments of other Acts

Division 1—Amendment of the Transport Integration Act 2010

89Definitions

90Sections 79L and 79M repealed

91Object of Director, Transport Safety

92Functions of Director, Transport Safety

93Power to investigate

94New section 174A inserted

95Information disclosure by Director, Transport Safety

96Delegation by the Director, Transport Safety

97New section 178B inserted

98New section 181A inserted

99Appointment

100When a transport safety appointee ceases to hold office

101New section 187A inserted

102Removal from office

103Ministerial direction to investigate transport safety matter

104Section 194 repealed and consequential cross‑reference amended

105Power to give advice on compliance

106Definitions—Conflict between decisions of Director, Transport Safety and road authority

Division 2—Amendment of the Transport (Compliance and Miscellaneous) Act 1983

107Definitions

108Financial assistance to train drivers following fatal incidents

109Application of definitions to Part V

110Specific investigation powers—public transport safety matters or marine safety matters

111Definitions

112Interpretation

113Definitions

114Section 230J repealed

115Service of documents on natural persons

116Service of documents on corporations

Division 3—Amendment of other Acts

117Consequential amendments to other Acts

Part 5—Repeal of the Rail Safety (Local Operations) Act 2006 and this Act

118Repeal of the Rail Safety (Local Operations) Act 2006

119Repeal of this Act

Schedule 1—Consequential amendments to other Acts

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Endnotes

1      General information

Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Act 2019

No. 41 of 2019

[Assented to 6 November 2019]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Rail Safety National Law Application Act 2013—

(i)to provide for the safety of all rail infrastructure and rolling stock operations carried out in Victoria and for all rail safety work carried out in Victoria to be regulated under the Rail Safety National Law (Victoria); and

(ii)to provide for the Office of the National Rail Safety Regulator to be the sole rail safety regulator for the Victorian rail transport industry; and

(b)to repeal the Rail Safety (Local Operations) Act 2006 and as a consequence re-enact the provisions for the alcohol and drug testing of rail safety workers in the Rail Safety National Law Application Act 2013.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2020, it comes into operation on that day.

3Principal Act

In this Act, the Rail Safety National Law Application Act 2013 is called the Principal Act.

Part 2—Amendment of the Rail Safety National Law Application Act 2013

Division 1—General

4Definitions—Principal Act

In section 3(1) of the Principal Act—

(a)insert the following definitions—

"public sector body has the same meaning as in the Public Administration Act 2004;

public sector employee has the same meaning as in the Public Administration Act 2004;";

(b)in the definition of Department omit ", Planning and Local Infrastructure";

(c)in the definition of Safety Director, for "2010;" substitute "2010.";

(d)the definitions of excluded local railway, railway crossing, service level agreement and transport safety officer are repealed.

5Section 4 repealed

Section 4 of the Principal Act is repealed.

6Application of Rail Safety National Law

In section 6(a) of the Principal Act, for "3, 4 and 5" substitute "4, 4A and 5".

7Interpretation of certain expressions

(1)In section 7(1) of the Principal Act, the definitions of public sector body, public sector employee and railway are repealed.

(2)After section 7(2) of the Principal Act insert—

"(3)For the purposes of this Act and the Rail Safety National Law (Victoria) and any other Act or law, the Office of the National Rail Safety Regulator is not an agency or instrumentality of the Crown in right of Victoria.".

8Section 9 repealed

Section 9 of the Principal Act is repealed.

9Exclusion of legislation of this jurisdiction

In section 11(1) of the Principal Act—

(a)paragraph (d) is repealed;

(b)in paragraph (h), for "section 12)." substitute "section 12);";

(c)after paragraph (h) insert—

"(i)the Fines Reform Act 2014;

(j)the Infringements Act 2006;

(k)the Privacy and Data Protection Act 2014.".

10Part 3 repealed

Part 3 of the Principal Act is repealed.

11Division 1 of Part 4 repealed

Division 1 of Part 4 of the Principal Act is repealed.

12New Division 1A of Part 4 inserted

Before Division 2 of Part 4 of the Principal Act insert—

'Division 1A—Additional rail safety duties

40ARail safety duties of persons providing railway operations by means of contracted personnel

Despite anything to the contrary in the Rail Safety National Law (Victoria), that Law applies as a law of this jurisdiction as if after section 53 of that Law there were inserted—

"53A  Duties of persons providing railway operations by means of contracted personnel

(1)A person (a labour-hire entity) who under an agreement or arrangement supplies to a rail infrastructure manager the services of an individual that labour-hire entity employs or engages to carry out railway operations for that manager must, so far as is reasonably practicable, ensure that that individual is competent to carry out the railway operations.

(2)A person (a labour-hire entity) who under an agreement or arrangement supplies to a rolling stock operator the services of an individual that labour-hire entity employs or engages to carry out railway operations for that operator must, so far as is reasonably practicable, ensure that that individual is competent to carry out railway operations.

(3)In this section—

supply includes provide, grant or confer, whether as principal or agent.".'.

13Divisions 3 and 4 of Part 4 repealed

Divisions 3 and 4 of Part 4 of the Principal Act are repealed.

14Division 7 of Part 4 substituted

For Division 7 of Part 4 of the Principal Act substitute—

"Division 7—Other matters

48Authorisation of information disclosure in relation to notifiable occurrences

For the purposes of section 244(3)(e) of the Rail Safety National Law (Victoria), ONRSR, a member of ONRSR or a person authorised by ONRSR is authorised to disclose information in relation to notifiable occurrences to the following persons—

(a)the Chief Investigator, Transport Safety;

(b)the Secretary to the Department.".

15Division 5 of Part 7 repealed

Division 5 of Part 7 of the Principal Act is repealed.

16Section 157 repealed

Section 157 of the Principal Act is repealed.

Division 2—Alcohol and drug controls for rail safety workers

17New Part 4A inserted

After Part 4 of the Principal Act insert—

'Part 4A—Alcohol and drug controls for rail safety workers

Division 1—Preliminary matters

48ADefinitions

In this Part—

approved health professional means—

(a)a person registered under the Health Practitioner Regulation National Law—

(i)to practise in the nursing and midwifery profession as a nurse (other than as a midwife or as a student); and

(ii)in the registered nurses division of that profession;

(b)a person approved under section 48B to take a blood sample for the purposes of the Rail Safety National Law (Victoria) and this Part;

assessment of drug impairment means an assessment under sections 48O and 48P;

breath analysing instrument means a breath analysing instrument within the meaning of the Road Safety Act 1986;

breath analysis means an analysis of breath by a breath analysing instrument;

Chief Commissioner of Police means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;

corresponding law means a law of another State or a Territory that creates an offence substantially similar to an offence created by section 128(1) of the Rail Safety National Law (Victoria) or section 48H(1);

drug screening test means a test by means of a device prescribed for the purpose of conducting drug screening tests;

oral fluid analysis means an analysis of oral fluid by means of a device prescribed for the purpose of conducting oral fluid analyses;

prescribed concentration of alcohol has the same meaning as in section 128(5) of the Rail Safety National Law (Victoria);

prescribed drug has the same meaning as in section 128(5) of the Rail Safety National Law (Victoria);

properly qualified analyst has the same meaning as in section 57B of the Road Safety Act 1986;

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

Victorian Institute of Forensic Medicine Director means the Director within the meaning of the Victorian Institute of Forensic Medicine Act 1985.

48BApproval of person to take blood samples for the purposes of the Law and this Part

The Victorian Institute of Forensic Medicine Director may, in writing, approve a person to take blood samples for the purposes of the Rail Safety National Law (Victoria) and this Part if the Director is of the opinion that the person has the appropriate qualifications, training and experience to take such samples.

48CAssessment of drug impairment modification

Despite anything to the contrary in the Rail Safety National Law (Victoria), section 126(1) of that Law applies as a law of this jurisdiction as if—

(a)in paragraph (e) of that subsection, for "occurrence," there were substituted "occurrence; or";

(b)after paragraph (e) of that subsection there were inserted—

"(f)is required to undergo an assessment of drug impairment,".

48DPresumptions in relation to presence of concentrations of alcohol and other drugs

(1)For the purposes of Division 9 of Part 3 of the Rail Safety National Law (Victoria) and this Part, if it is established that at any time within 3 hours after an alleged offence against section 128(1)(a) or (c) of the Rail Safety National Law (Victoria) or section 48H(1)(a), a certain concentration of alcohol was present in the blood or breath of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the worker's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed.

(2)For the purposes of Division 9 of Part 3 of the Rail Safety National Law (Victoria) and this Part, if it is established that at any time within 3 hours after an alleged offence against section 128(1)(b) of the Rail Safety National Law (Victoria), a certain drug was present in the oral fluid or blood of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the worker's oral fluid or blood at the time at which the offence is alleged to have been committed.

(3)For the purposes of Division 9 of Part 3 of the Rail Safety National Law (Victoria) and this Part, if it is established that at any time within 3 hours after an alleged offence against section 128(1)(c) of the Rail Safety National Law (Victoria) or section 48H(1)(b), a certain drug was present in the body of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that the drug was present in the worker's body at the time at which the offence is alleged to have been committed.

(4)For the purposes of an alleged offence against section 48H(1)(i) or (j) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the rail safety worker charged or found by an analyst to be present in the sample of blood taken from the worker charged (as the case requires) was not due solely to the consumption of alcohol after having carried out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by the worker which is corroborated by the material evidence of another person.

(5)For the purposes of an alleged offence against section 128(1)(b) or (c) of the Rail Safety National Law (Victoria) or section 48H(1)(b) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid taken from the rail safety worker charged was not due solely to the consumption or use of that drug after carrying out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by the worker which is corroborated by the material evidence of another person.

48EWhen a rail safety worker is not to be taken to be impaired

For the purposes of sections 48O to 48X, a rail safety worker is not to be taken to be impaired unless the worker's behaviour or appearance is such as to give rise to a reasonable suspicion that the worker is unable to carry out rail safety work properly.

48FWhen a rail safety worker is to be regarded as being about to carry out rail safety work

For the purposes of Division 9 of Part 3 of the Rail Safety National Law (Victoria) and this Part, a rail safety worker is to be regarded as being about to carry out rail safety work if the worker has arrived at the worker's place of work but has not yet begun work.

48GFindings of guilt and convictions and subsequent offences

If a rail safety worker who is found guilty or convicted of an offence against any one of the paragraphs of section 128(1) of the Rail Safety National Law (Victoria) or the paragraphs of section 48H(1), or against those sections, has at any time been found guilty or convicted of—

(a)an offence against the same or any other of those paragraphs or against either of those sections; or

(b)an offence against any corresponding law—

the finding of guilt, or conviction of, the offence against that paragraph or section is to be taken to be a conviction for a subsequent offence.

Division 2—Offences and related evidentiary matters

48HAdditional offences involving alcohol and drugs

(1)A rail safety worker is guilty of an offence if the worker—

(a)carries out rail safety work while more than the prescribed concentration of alcohol is present in the worker's breath; or

(b)carries out rail safety work while impaired by a drug; or

(c)refuses or fails to comply with a requirement under section 48M(10); or

(d)refuses to undergo an assessment of drug impairment in accordance with sections 48O and 48P when required under those sections to do so or refuses to comply with a direction under section 48O(4); or

(e)refuses to immediately comply with a requirement under section 48Q(2) or a direction under section 48Q(4) or fails to comply with the obligation in section 48Q(5); or

(f)refuses to provide a sample of oral fluid in accordance with section 48R when required under that section to do so or refuses to immediately comply with any other requirement made under that section; or

(g)refuses to comply with a requirement made under section 48X(2) or (3); or

(h)refuses to comply with a requirement made under section 48V(2) or (3); or

(i)within 3 hours after having carried out rail safety work furnishes a sample of breath for analysis by a breath analysing instrument under a requirement under section 48M and—

(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in the worker's breath; and

(ii)the concentration of alcohol indicated by the analysis to be present in the worker's breath was not due solely to the consumption of alcohol after having carried out the rail safety work; or

(j)has had a sample of blood taken from the worker in accordance with section 48ZA within 3 hours after having carried out rail safety work and—

(i)the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 48ZB and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample; and

(ii)the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after having carried out the rail safety work.

(2)A rail safety worker who is guilty of an offence under subsection (1) is liable to a fine not exceeding $10 000.

(3)It is a defence to a charge under subsection (1)(i) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.

(4)It is a defence to a charge under subsection (1)(j) for the person charged to prove that the result of the analysis was not a correct result.

48IAdditional circumstances when rail safety workers may be convicted or found guilty

A rail safety worker may be convicted or found guilty of an offence under section 126(3) or 127(3) of the Rail Safety National Law (Victoria) or section 48H(1)(d) even if—

(a)in the case of an offence under section 126(3) of the Rail Safety National Law (Victoria) constituted by a failure to submit to a preliminary breath test or breath analysis—

(i)a breath analysing instrument was not available at the place where the requirement was made at the time it was made; or

(ii)a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made;

(b)in the case of an offence under section 127(3) of the Rail Safety National Law (Victoria) constituted by a failure to submit to a drug screening test, oral fluid analysis, blood test or urine test (or any combination of these)—

(i)the authorised person requiring a sample of blood or urine had not nominated a registered medical practitioner or approved health professional to take the sample; or

(ii)if the worker was required under section 48R(3) to provide a sample of oral fluid for analysis by a properly qualified analyst, the authorised person requiring a sample of oral fluid had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis;

(c)in the case of an offence under section 48H(1)(d)—

(i)a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; or

(ii)a person authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made;

(d)in the case of an offence under section 127(3) of the Rail Safety National Law (Victoria)—

(i)a requirement to submit to a drug screening test, oral fluid analysis, blood test or urine test (or any combination of these) was not made at a place where such a test or analysis could have been carried out; or

(ii)a person authorised to carry out the drug screening test, oral fluid analysis, blood test or urine test was not present at the place where the requirement was made at the time it was made.

48JEvidence as to effect of the consumption of alcohol or consumption or use of a drug

(1)In any proceeding for an offence under section 48H(1)(i) or (j) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 48D(4) but is otherwise inadmissible.

(2)In any proceeding for an offence against section 128(1)(b) or (c) of the Rail Safety National Law (Victoria) or section 48H(1)(b) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose of rebutting the presumption created by section 48D(5) but is otherwise inadmissible.

48KExistence of certain facts proof that rail safety worker was drug impaired while carrying out rail safety work

In any proceeding for an offence under section 48H(1)(b), proof that—

(a)the rail safety worker was carrying out rail safety work; and

(b)one or more drugs were present in the rail safety worker's body at the time at which the worker carried out rail safety work; and

(c)the behaviour of the rail safety worker on an assessment of drug impairment carried out on the worker was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and

(d)the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to carry out rail safety work properly—

is, in the absence of evidence to the contrary, proof that the rail safety worker carried out rail safety work while impaired by a drug.

Division 3—Testing and analysis

48LAdditional matters for preliminary breath tests

(1)This section applies if a rail safety worker is required by an authorised person to submit to testing by means of a preliminary breath test under section 126 of the Rail Safety National Law (Victoria).

(2)The rail safety worker must undergo a preliminary breath test by exhaling continuously into a prescribed device to the satisfaction of the authorised person.

(3)However, the rail safety worker is not obliged to submit to testing by means of a preliminary breath test under section 126 of the Rail Safety National Law (Victoria) if more than 3 hours have passed since the worker last carried out rail safety work.

48MAdditional matters for breath analyses

(1)This section applies if a rail safety worker is required by an authorised person to submit to testing by means of a breath analysis under section 126 of the Rail Safety National Law (Victoria).

(2)For the purposes of section 126 of the Rail Safety National Law (Victoria), a requirement of the authorised person under that section may be that the rail safety worker submit to testing by doing one or both of the following—

(a)furnishing a sample of breath for analysis by a breath analysing instrument;

(b)furnishing one or more further samples if it appears to the authorised person that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air—

(i)because the amount of sample furnished was insufficient; or

(ii)because of a power failure or malfunctioning of the instrument; or

(iii)for any other reason whatsoever.

(3)In addition, for the purposes of section 126(1)(a) to (e) of the Rail Safety National Law (Victoria), the authorised person may require the rail safety worker to—

(a)accompany the authorised person to a police station or other place where the sample of breath may be furnished; and

(b)remain there until the worker has furnished the sample of breath and been given the certificate referred to in subsection (8) or until 3 hours after the carrying out of the rail safety work, whichever is the sooner.

(4)In addition, for the purposes of section 126(1)(f) of the Rail Safety National Law (Victoria), the authorised person may require the rail safety worker to remain at the place at which the worker is required to remain for the purposes of the drug assessment until—

(a)the worker has furnished the sample of breath and been given the certificate referred to in subsection (8) and the drug assessment has been carried out; or

(b)3 hours after the carrying out of rail safety work—

whichever is the sooner.

Note

Section 126(1)(f) forms part of the Rail Safety National Law (Victoria)—see section 48C.

(5)If the rail safety worker is required to furnish a sample of breath for analysis, the worker must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.

(6)However, a rail safety worker is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the worker last carried out rail safety work.

(7)A breath analysing instrument referred to in this section must be operated by a person authorised to do so by the Chief Commissioner of Police.

(8)As soon as practicable after a sample of a rail safety worker's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the worker whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the worker's breath.

(9)A rail safety worker must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if the worker satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against the worker.

(10)The authorised person who required a sample of breath under section 126(1) of the Rail Safety National Law (Victoria) from a rail safety worker may require the worker to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from the worker a sample of blood for analysis if it appears to the person that—

(a)the worker is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or

(b)the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by the worker for any reason whatsoever—

and for that purpose may further require that worker to accompany an authorised person to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

(11)A rail safety worker who allows the taking of a sample of the worker's blood in accordance with subsection (10) must not be convicted or found guilty of refusing to furnish under section 126(1) of the Rail Safety National Law (Victoria) a sample of breath for analysis.

(12)A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (10).

Penalty:$10 000.

(13)No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (10).

48NEvidentiary matters relating to breath analysis

(1)Evidence derived from a sample of breath furnished following a requirement made under section 126(1) of the Rail Safety National Law (Victoria) is not rendered inadmissible by a failure to comply with a request under section 48Y if reasonable efforts were made to comply with the request.

(2)If the question of whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a rail safety worker is relevant on a hearing for an offence against section 128(1) of the Rail Safety National Law (Victoria) or section 48H(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this subsection, a document—

(a)purporting to be a print-out produced by that instrument in respect of that sample; and

(b)purporting to be signed by the person who operated the instrument—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(3)A document referred to in subsection (2) does not cease to be admissible in evidence or, in the absence of evidence to the contrary, to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety National Law (Victoria) or the Rail Safety National Law Application Act 2013 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety National Law (Victoria) or the Rail Safety National Law Application Act 2013 (as the case requires).

48OAssessment of drug impairment

(1)Subject to this section, a police officer may at any time require a rail safety worker who—

(a)is about to carry out rail safety work; or

(b)is carrying out rail safety work; or

(c)is attempting to carry out rail safety work; or

(d)is still on railway premises after carrying out rail safety work; or

(e)without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence—

to undergo an assessment of drug impairment.

(2)Subject to this section, a police officer may require—

(a)a rail safety worker whom the officer believes on reasonable grounds has within the last 3 preceding hours carried out rail safety work on a railway when a notifiable occurrence or prescribed notifiable occurrence occurred involving the rail safety worker; or

(b)a rail safety worker required under section 126(1) of the Rail Safety National Law (Victoria) to submit to a preliminary breath test; or

(c)a rail safety worker required under section 126(1) of the Rail Safety National Law (Victoria) to submit to a breath analysis—

to undergo an assessment of drug impairment.

(3)A police officer may only require a rail safety worker to undergo an assessment of drug impairment under subsection (1) or (2) if the officer is of the opinion that the rail safety worker's behaviour or appearance indicates that the worker may be impaired for a reason other than alcohol alone.

(4)A police officer may direct a rail safety worker required under subsection (1) or (2) to undergo an assessment of drug impairment to accompany the officer to a place where the assessment is to be carried out and to remain there until the assessment has been carried out or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

(5)A rail safety worker is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the worker last carried out rail safety work.

48PProcedure for assessments of drug impairment

(1)An assessment of drug impairment must be carried out by a police officer authorised to do so by the Chief Commissioner of Police.

(2)An assessment of drug impairment must be carried out in accordance with the procedure specified in a notice published under section 55A(5) of the Road Safety Act 1986.

(3)The carrying out of an assessment of drug impairment on a rail safety worker must be video-recorded if the worker was involved in a notifiable occurrence or prescribed notifiable occurrence unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances.

(4)If the rail safety worker on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 48H(1)(b), and the carrying out of the assessment of drug impairment is video-recorded, a copy of the video-recording must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

(5)Subject to subsection (6), the video-recording of the carrying out of an assessment of drug impairment on a rail safety worker is only admissible in a proceeding against that worker for an offence against Division 9 of Part 3 of the Rail Safety National Law (Victoria) or this Part for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under section 55A(5) of the Road Safety Act 1986.

(6)Evidence obtained as a result of an assessment of drug impairment carried out on a rail safety worker is inadmissible as part of the prosecution case in proceedings against that worker for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 48Z.

(7)In any proceeding under Division 9 of Part 3 of the Rail Safety National Law (Victoria) or this Part—

(a)the statement of a police officer that on a particular date the officer was authorised by the Chief Commissioner of Police under subsection (1) to carry out an assessment of drug impairment; or

(b)a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised by the Chief Commissioner of Police under subsection (1) to carry out an assessment of drug impairment—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that police officer.

48QDrug screening tests

(1)This section applies if an authorised person requires a rail safety worker to submit to a drug screening test under section 127(1) of the Rail Safety National Law (Victoria).

(2)The authorised person may, for the purposes of carrying out a drug screening test, require the rail safety worker to place a prescribed device, or the collection unit of a prescribed device, into the worker's mouth and carry out the physical actions that are necessary to ensure that, in the opinion of the authorised person, a sufficient sample of oral fluid has been captured by the device or unit.

(3)A device prescribed for the purposes of carrying out drug screening tests may be comprised of a collection unit and a testing unit and one or more other parts.

(4)The authorised person who carries out a drug screening test may give any reasonable direction as to the physical actions that are necessary for the test to be carried out.

(5)The rail safety worker must remain at the place at which the drug screening test is being carried out until the sample of oral fluid collected in accordance with subsection (2) has been tested by a prescribed device.

(6)The rail safety worker is not obliged to undergo a drug screening test under this section if more than 3 hours have passed since the worker—

(a)last carried out or attempted to carry out rail safety work; or

(b)was involved in a prescribed notifiable occurrence.

48ROral fluid analysis

(1)This section applies if a rail safety worker is—

(a)required—

(i)to undergo an assessment of drug impairment under section 48O; or

(ii)to submit to a drug screening test under section 127(1) of the Rail Safety National Law (Victoria); and

(b)in the opinion of the authorised person who carries out that assessment or test—

(i)the assessment or test indicates that the worker's oral fluid contains a prescribed drug; or

(ii)the worker has refused or failed to carry out the assessment or test in the manner described in section 48P or 48Q(2) (as the case requires).

(2)An authorised person may require the rail safety worker to provide a sample of oral fluid for testing by a prescribed device.

(3)If an authorised person considers it necessary, the person may require the rail safety worker to provide a sample of oral fluid for analysis by a properly qualified analyst.

(4)If the authorised person considers it necessary for the purposes of subsection (2) or (3), the person may require the rail safety worker—

(a)to accompany any authorised person to a place or vehicle where a sample is to be provided; and

(b)to remain there until the earlier of the following—

(i)the worker has provided the sample and any further sample required to be provided under subsection (5) and the sample has been tested by a prescribed device;

(ii)3 hours after the worker last carried out or attempted to carry out the rail safety work or was involved in a prescribed notifiable occurrence.

(5)The authorised person who required a sample of oral fluid to be provided under subsection (2) may require the rail safety worker who provided it to provide one or more further samples if it appears to the person that the prescribed device is incapable of testing for the presence of a prescribed drug in the sample or samples because—

(a)the amount of sample provided was insufficient; or

(b)of a power failure or malfunctioning of the device.

(6)If the authorised person requires a sample of oral fluid to be provided under subsection (3), the person may require the rail safety worker who provided it to provide one or more further samples if it appears to the person that the amount of sample provided was insufficient for the purposes of testing for the presence of a prescribed drug.

(7)An authorised person who is a police officer may only carry out the procedure for the provision of a sample of oral fluid under this section if the police officer is authorised in writing by the Chief Commissioner of Police for the purposes of this section.

(8)The Chief Commissioner of Police may authorise a police officer for the purposes of this section if satisfied that the officer has the appropriate training to carry out the prescribed procedure for the provision of a sample.

(9)A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts.

48SProvision of oral fluid samples for oral fluid analysis

(1)A rail safety worker required to provide a sample of oral fluid under section 48R must do so by placing the prescribed device, or the collection unit of the device, into the worker's mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the authorised person to whom the sample is being provided, a sufficient sample of oral fluid has been captured by the device or unit.

(2)An authorised person who requires a rail safety worker to provide a sample of oral fluid under section 48R may give any reasonable direction as to the physical actions that are necessary for the sample to be provided.

(3)A rail safety worker is not obliged to provide a sample of oral fluid under section 48R if more than 3 hours have passed since the worker—

(a)last carried out or attempted to carry out rail safety work; or

(b)was involved in a prescribed notifiable occurrence.

(4)The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.

(5)A rail safety worker must not be convicted or found guilty of refusing to provide under section 48R a sample of oral fluid if the worker satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against the worker.

(6)A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts.

48TPart of oral fluid sample to be delivered to rail safety worker if drugs detected

If a test of a sample of oral fluid provided under section 48R by a rail safety worker indicates, in the opinion of the authorised person who carried out the procedure in the course of which the sample was provided, that the oral fluid contains a prescribed drug, the person may—

(a)if the person who carried out the procedure was not the authorised person who required the sample to be provided, deliver a part of the sample to the person who required the sample to be provided; and

(b)deliver another part of the sample to the worker.

48URail safety worker required to provide oral fluid sample may request sample of blood to be taken

(1)This section applies if a rail safety worker is required under section 48R to provide a sample of oral fluid.

(2)The rail safety worker may request the authorised person who required the sample to arrange for the taking in the presence of an authorised person of a sample of the worker's blood for analysis at the worker's own expense by a registered medical practitioner or an approved health professional nominated by the person.

(3)Nothing in this section relieves a rail safety worker from any penalty under section 48H(1)(f) for refusing to provide a sample of oral fluid.

48VAuthorised person may require blood sample if oral fluid sample insufficient

(1)This section applies if an authorised person requires a rail safety worker to provide a sample of oral fluid under section 48R for analysis and in the opinion of the person—

(a)the worker is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability; or

(b)the prescribed device is incapable of testing for the presence in the sample of a prescribed drug for any reason whatsoever.

(2)The authorised person may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the person who required the sample to take from the worker a sample of blood for analysis.

(3)For the purposes of subsection (2), an authorised person may require the rail safety worker—

(a)to accompany any authorised person to a place where the sample of the worker's blood is to be taken; and

(b)to remain there until the earlier of the following—

(i)the sample is taken;

(ii)3 hours after the worker last carried out or attempted to carry out rail safety work or was involved in a prescribed notifiable occurrence.

(4)A rail safety worker who allows the taking of a sample of the worker's blood in accordance with this section must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with section 48R.

(5)A rail safety worker must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other rail safety worker in accordance with this section.

Penalty:$10 000.

(6)No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood that the practitioner or approved health professional believed on reasonable grounds was required to be taken from any rail safety worker under this section.

48WEvidentiary matters relating to oral fluid analysis

(1)Evidence derived from a sample of oral fluid provided following a requirement made under section 48R or 48V is not rendered inadmissible by a failure to comply with a request under section 48U if reasonable efforts were made to comply with the request.

(2)In any proceeding under Division 9 of Part 3 of the Rail Safety National Law (Victoria) or this Part, the following are admissible in evidence and, in the absence of evidence to the contrary, are proof of the authority of the police officer—

(a)the statement of a police officer that on a particular date the officer was authorised for the purposes of section 48R(8);

(b)a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised for the purposes of section 48R(8).

48XBlood and urine tests

(1)This section applies if a rail safety worker—

(a)is required by an authorised person to submit to a blood test or urine test under section 127(1) of the Rail Safety National Law (Victoria); or

(b)undergoes an assessment of drug impairment when required under section 48O to do so and the assessment, in the opinion of the police officer carrying it out, indicates that the rail safety worker may be impaired by a drug or drugs.

(2)An authorised person may require the rail safety worker to—

(a)allow a registered medical practitioner or an approved health professional nominated by the person to take from the worker a sample of that worker's blood for analysis;

(b)furnish to a registered medical practitioner, an approved health professional or a person appointed under section 124 of the Rail Safety National Law (Victoria) nominated by the authorised person a sample of the worker's urine for analysis.

(3)For the purpose of subsection (2), an authorised person may require the rail safety worker—

(a)to accompany any authorised person to a place where the sample is to be taken or furnished; and

(b)to remain there until the earlier of the following—

(i)the sample is taken or furnished;

(ii)3 hours after the worker last carried out or attempted to carry out rail safety work or was involved in a prescribed notifiable occurrence.

(4)An authorised person must not require a rail safety worker to allow a sample of the worker's blood to be taken for analysis under subsection (2) if that worker has already had a sample of blood taken under section 48Y after carrying out rail safety work.

(5)A rail safety worker must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of the urine, of any other person in accordance with this section.

Penalty:$10 000.

(6)No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or furnished by, a rail safety worker under this section.

(7)If the rail safety worker on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 48H(1)(b), a copy of a written report on that assessment prepared by the police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge‑sheet charging the offence.

48YRail safety worker may request sample of blood to be taken for analysis

(1)This section applies if—

(a)a rail safety worker is required under section 126(1) of the Rail Safety National Law (Victoria) to submit to testing by means of a breath analysis; and

(b)the rail safety worker does so by furnishing a sample of breath for analysis in accordance with section 48M.

(2)The rail safety worker may, immediately after being given the certificate referred to in section 48M(8), request the authorised person who required the sample to arrange for the taking in the presence of an authorised person of a sample of the worker's blood for analysis at the worker's own expense by a registered medical practitioner or an approved health professional nominated by the person.

(3)Nothing in subsection (2) relieves a rail safety worker from any penalty under section 126(3) of the Rail Safety National Law (Victoria).

48ZDestruction of identifying information

(1)In this section, relevant offence means—

(a)an offence under section 127(3) of the Rail Safety National Law (Victoria) or section 48H(1)(b) or (g); or

(b)any other offence arising out of the same circumstances; or

(c)any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.

(2)If a rail safety worker undergoes an assessment of drug impairment that has been carried out on the rail safety worker under sections 48O and 48P and—

(a)the rail safety worker has not been charged with a relevant offence at the end of the period of 12 months after the undergoing of the assessment of drug impairment; or

(b)the rail safety worker has been so charged but the charge is not proceeded with, the prosecution for the offence is discontinued or the rail safety worker is not found guilty of the offence, whether on appeal or otherwise, before the end of that period—

the Chief Commissioner of Police must, subject to subsection (4), destroy, or cause to be destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.

(3)A video-recording and any related material and information referred to in subsection (2) must be destroyed—

(a)in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or

(b)in a case to which subsection (2)(b) applies—

(i)within one month after the conclusion of the proceeding and the end of any appeal period; or

(ii)if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within one month after dismissal under that section.

(4)A police officer may, before the end of a period referred to in subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in subsection (3) is a reference to that period as so extended.

(5)If the Magistrates' Court makes an order under subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the rail safety worker on whom the assessment of drug impairment was carried out.

(6)If a video-recording or related material and information is required to be destroyed in accordance with this section, the Chief Commissioner of Police must, if the rail safety worker on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that worker in writing whether the destruction has occurred.

(7)A person who knowingly—

(a)fails to destroy; or

(b)uses, or causes or permits to be used—

a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

(8)A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.

48ZABlood samples to be taken in certain cases

(1)In this section—

doctor means a registered medical practitioner and includes a police surgeon.

(2)If a rail safety worker enters or is brought to a place for examination or treatment in consequence of a notifiable occurrence (whether within Victoria or not), the worker must allow a doctor or approved health professional to take from the worker at that place a sample of the worker's blood for analysis.

Penalty:$10 000.

(3)Subsection (2) does not apply if—

(a)in the opinion of the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker the taking of a blood sample from the worker would be prejudicial to the worker's proper care and treatment; or

(b)the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker believed on reasonable grounds that the worker was not a rail safety worker.

(4)A rail safety worker to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of the worker's blood by a doctor or approved health professional at a place which the worker enters or to which the worker is brought for examination or treatment.

(5)If a sample of a rail safety worker's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceeding except—

(a)for the purposes of section 48ZB; or

(b)for the purposes of the Transport Accident Act 1986—

but may be given—

(c)to the Transport Accident Commission under the Transport Accident Act 1986 and, for the purposes of applications relating to that Act, to VCAT; and

(d)to the Department for the purposes of accident research.

(6)A rail safety worker must not hinder or obstruct a doctor or approved health professional attempting to take a sample of the blood of any other person in accordance with this section.

Penalty:$10 000.

(7)No action lies against a doctor or approved health professional in respect of anything properly and necessarily done by the doctor or approved health professional in the course of taking any sample of blood which the doctor or approved health professional believes on reasonable grounds was required or allowed to be taken from a rail safety worker under this section.

Division 4—Evidentiary provisions

48ZBEvidentiary provisions—blood tests

(1)In this section—

approved analyst means a person who by virtue of subsection (2) is to be taken to be a properly qualified analyst for the purposes of this section;

approved expert means a person who by virtue of subsection (3) is to be taken to be a properly qualified expert for the purposes of this section;

approved laboratory means an approved laboratory within the meaning of section 57 of the Road Safety Act 1986;

properly qualified analyst means—

(a)an approved analyst; or

(b)a person who carries out an analysis in an approved laboratory; or

(c)a person who is considered by the court to have scientific qualifications, training and experience that qualifies the person to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (6) or (7), as the case requires;

properly qualified expert means—

(a)an approved expert; or

(b)a person who is considered by the court to have scientific qualifications, training and experience that qualifies the person to express an opinion as to the facts and matters contained in a certificate under subsection (8).

(2)A person who is an approved analyst within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified analyst for the purposes of this section.

(3)A person who is an approved expert within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of this section.

(4)If—

(a)the question whether a rail safety worker was or was not at any time under the influence of alcohol or any other drug; or

(b)the presence of alcohol or any other drug, or the concentration of alcohol in the blood of a rail safety worker at any time; or

(c)a finding on the analysis of a blood sample of a rail safety worker—

is relevant on a hearing for an offence against section 128 of the Rail Safety National Law (Victoria) or section 48H, or in any inquest or investigation held by a coroner then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, within 3 hours after the rail safety worker carried out rail safety work, of a sample of blood from the worker by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within 12 months after it was taken, of the presence of alcohol and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person's ability to carry out rail safety work properly).

(5)A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(6)A certificate, containing the prescribed particulars, as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood—

(a)purporting to be signed by an approved analyst; and

(b)stating that the sample of blood was analysed in an approved laboratory—

is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(7)A certificate, containing the prescribed particulars, as to the presence in any sample of blood of a substance that is, or is capable of being, a prescribed drug for the purposes of this Part—

(a)purporting to be signed by an approved analyst; and

(b)stating that the sample of blood was analysed in an approved laboratory—

is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(8)A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any proceedings referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(9)A certificate given under this section must not be tendered in evidence in a proceeding referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

(10)A copy of a certificate given under this section may be served on the accused by—

(a)delivering it to the accused personally; or

(b)leaving it for the accused at the accused's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

(11)An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence in a proceeding referred to in subsection (4) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

(12)An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

(13)The court must not grant leave under subsection (12) unless it is satisfied—

(a)that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

(b)that—

(i)there is a reasonable possibility that the blood referred to in a certificate given by an analyst under subsection (6) or (7) was not that of the accused; or

(ii)there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or

(iii)there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the blood not been contaminated in that way; or

(iv)for some other reason the giving of evidence by the person who gave the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken would materially assist the court to ascertain relevant facts.

(14)An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under subsection (12).

(15)If a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the rail safety worker to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the worker was in fact incapable by reason of the worker's mental condition from effectively giving consent to the examination or collection.

(16)Except as provided in sections 48X and 48ZA, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the rail safety worker from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.

(17)The mere failure or refusal of a rail safety worker to express consent must not be used in evidence against the worker or referred to in any way against the worker's interests in any proceeding.

(18)A certificate purporting to be signed by a person—

(a)who took a blood sample; or

(b)who analysed a blood sample—

in accordance with the provisions of an Act of another State or a Territory that substantially correspond to section 48ZA of this Act and in accordance with any regulations made under the corresponding Act is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(19)Subsections (9), (10), (11) and (12) apply in respect of a certificate referred to in subsection (18) as if the certificate was given under this section.

48ZCEvidentiary provisions—oral fluid samples

(1)In this section—

approved analyst means a person who by virtue of subsection (2) is to be taken to be a properly qualified analyst for the purposes of this section;

approved expert means a person who by virtue of subsection (3) is to be taken to be a properly qualified expert for the purposes of this section;

approved laboratory means an approved laboratory within the meaning of section 57B of the Road Safety Act 1986;

properly qualified analyst means—

(a)an approved analyst; or

(b)a person who carries out an analysis in an approved laboratory; or

(c)a person who is considered by the court to have scientific qualifications, training and experience that qualifies the person to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (6);

properly qualified expert means—

(a)an approved expert; or

(b)a person who is considered by the court to have scientific qualifications, training and experience that qualifies the person to express an opinion as to the facts and matters contained in a certificate under subsection (7).

(2)A person who is an approved analyst within the meaning of section 57B of the Road Safety Act 1986 is to be taken to be a properly qualified analyst for the purposes of this section.

(3)A person who is an approved expert within the meaning of section 57A of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of this section.

(4)If a question as to the presence of a drug in the body of a rail safety worker at any time is relevant in a hearing for an offence against section 128 of the Rail Safety National Law (Victoria) or section 48H then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

(a)of the furnishing by that rail safety worker, within 3 hours after that rail safety worker carried out rail safety work, of a sample of oral fluid;

(b)of the analysis of that sample of oral fluid by a properly qualified analyst within 12 months after it was taken;

(c)of the presence of a drug in that sample of oral fluid at the time of analysis;

(d)by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly).

(5)A certificate containing the prescribed particulars purporting to be signed by the person who carried out the procedure in the course of which the sample was provided is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(6)A certificate, containing the prescribed particulars, as to the presence in any sample of oral fluid of a substance that is, or is capable of being, a prescribed drug for the purposes of Division 9 of Part 3 of the Rail Safety National Law (Victoria) and this Part—

(a)purporting to be signed by an approved analyst; and

(b)stating that the sample of oral fluid was analysed in an approved laboratory—

is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(7)A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

(8)A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been personally served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

(9)An affidavit or statutory declaration by the person who has personally served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (4) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

(10)An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

(11)The court must not grant leave under subsection (10) unless it is satisfied—

(a)that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

(b)that—

(i)there is a reasonable possibility that the oral fluid referred to in a certificate given by an analyst under subsection (6) was not that of the accused; or

(ii)there is a reasonable possibility that the oral fluid referred to in a certificate given under subsection (5) had become contaminated in such a way that a drug found on analysis would not have been found had the oral fluid not been contaminated in that way; or

(iii)for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.

(12)An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend the court on the hearing of an application for leave under subsection (10).

48ZDEvidentiary provisions—breath tests

(1)If—

(a)the question whether a rail safety worker was or was not at any time under the influence of alcohol; or

(b)the presence, or the concentration, of alcohol in the breath of a rail safety worker at any time; or

(c)a result of a breath analysis of a rail safety worker—

is relevant on a hearing for an offence against section 128 of the Rail Safety National Law (Victoria) or section 48H then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 48M and the concentration of alcohol so indicated is, subject to compliance with section 48M(6), evidence of the concentration of alcohol present in the breath of that person at the time that person's breath is analysed by the instrument.

(2)A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in a proceeding referred to in subsection (1) and, subject to subsection (8), is conclusive proof of—

(a)the facts and matters contained in it; and

(b)the fact that the instrument used was a breath analysing instrument; and

(c)the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 48M; and

(d)the fact that all relevant regulations relating to the operation of the instrument were complied with; and

(e)the fact that the instrument was in proper working order and properly operated; and

(f)the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the breath analysing instrument and given to the accused person as soon as practicable after the sample of breath was analysed—

unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that the accused person requires the person giving the certificate to be called as a witness or that the accused person intends to adduce evidence in rebuttal of any such fact or matter.

(3)A certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety National Law (Victoria) or the Rail Safety National Law Application Act 2013 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety National Law (Victoria) or the Rail Safety National Law Application Act 2013 (as the case requires).

(4)A notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.

(5)The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).

(6)If an accused person gives notice to the informant in accordance with subsection (2) that the accused person requires the person giving a certificate to be called as a witness and the court is satisfied that that person—

(a)is dead; or

(b)is unfit by reason of the person's bodily or mental condition to testify as a witness; or

(2)In section 107(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)for "transport safety or infrastructure law" (where first occurring) substitute "transport safety law";

(b)in paragraph (a), for "transport safety or infrastructure law" (where twice occurring) substitute "transport safety law";

(c)in paragraph (a)(iii) omit ", a rail registration";

(d)in paragraph (d)(i) omit ", accredited rail transport operator";

(e)in paragraphs (e) and (f) omit ", a rail registration";

(f)paragraph (h) is repealed;

(g)in paragraph (l), for "transport safety or infrastructure law" substitute "transport safety law";

(h)for paragraph (r) substitute—

"(r)that a stated amount is payable under the Bus Safety Act 2009 or the Marine Safety Act 2010 by a stated person and has not been paid.".

(3)For section 107(2) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 substitute—

"(2)In this section—

accreditation means an accreditation within the meaning of the Bus Safety Act 2009;

bus registration means a registration within the meaning of the Bus Safety Act 2009;

exemption means an exemption under Division 7A of Part 4 of the Bus Safety Act 2009.".

76Definitions—Court based sanctions

In section 108 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)the definitions of Australian rail safety law, relevant law and relevant marine law are repealed;

(b)insert the following definitions—

"bus law means a provision of the Bus Safety Act 2009 or any regulations made under that Act;

marine law means—

(a)a provision of the Marine Safety Act 2010 or any regulations made under that Act; or

(b)a provision of the Marine (Drug, Alcohol and Pollution Control) Act 1988 or any regulations made under that Act.".

77Commercial benefits order

In section 109(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "relevant law" substitute "bus law".

78Supervisory intervention order

In section 110 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)in subsections (1) and (2)(a), (d)(i) and (ii), for "relevant law" (where twice occurring) substitute "bus law";

(b)in subsection (5), for "relevant law, having" substitute "bus law, having";

(c)in subsection (5)(a) and (b), for "Act, a relevant law or an Australian rail safety law" substitute "Act or a bus law";

(d)subsection (5)(c)(i) is repealed;

(e)in subsection (6)(a), for "corresponding interstate law" substitute "corresponding interstate bus law";

(f)in subsection (10)—

(i)in the definition of compliance report, in paragraphs (a)(i) and (b)(i), for "relevant law" (where twice occurring) substitute "bus law";

(ii)the definition of corresponding interstate law is repealed;

(iii)insert the following definition—

"corresponding interstate bus law means a law of the Commonwealth, another State or a Territory that corresponds or substantially corresponds to a bus law.".

79Exclusion orders

(1)In section 111(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "relevant law" (where twice occurring) substitute "bus law".

(2)In section 111(2) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)for "relevant law" substitute "bus law";

(b)paragraphs (a) and (c)(i) are repealed;

(c)in paragraph (c)(ii), for "jurisdiction; or" substitute "jurisdiction.";

(d)paragraph (d) is repealed.

(3)In section 111(3) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)in paragraphs (a) and (b), for "relevant law or an Australian rail safety law" substitute "bus law";

(b)in paragraph (c) omit "railway operations or".

80Adverse publicity order

In section 112(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "relevant law or relevant marine law" substitute "bus law or marine law".

81Release on the giving of a safety undertaking

In section 113(1) and (2)(b) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "relevant law" substitute "bus law".

82Sections 116, 119, 120, 121 and 122 amended

In sections 116(1), (3)(a), (b) and (c), 119(1)(a) and (b), (2)(a)(ii) and (b), (3), 120(1)(b), (2)(a), (b), (c) and (d), 121(1) and 122 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "transport safety or infrastructure law" substitute "transport safety law".

83Attendance of transport safety officer at inquiries

In section 123 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)in paragraph (a), for "work, marine safety work or rail safety work" substitute "work or marine safety work";

(b)in paragraph (b)—

(i)for "public transport" substitute "bus";

(ii)omit "rolling stock,".

84Sections 124 and 127 amended

In sections 124 and 127 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "transport safety or infrastructure law" substitute "transport safety law".

85Recovery of costs

Section 128(1) and (3)(a) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 are repealed.

86Section 130 repealed

Section 130 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 is repealed.

87Service of documents

In section 131(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "transport safety or infrastructure law" (where twice occurring) substitute "transport safety law".

88Regulations

In section 132(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014—

(a)paragraphs (c) and (d) are repealed;

(b)in paragraph (e) omit "or safety work infringement".

Part 4—Amendments of other Acts

Division 1—Amendment of the Transport Integration Act 2010

89Definitions

In section 3 of the Transport Integration Act 2010—

(a)insert the following definitions—

"bus safety matter means—

(a)an incident involving a bus or any infrastructure used in bus operations that resulted in, or that had the potential to result in, the death of, or injury to, any person, or in damage to any property or equipment, and includes, for example—

(i)any collision involving a bus;

(ii)any incident resulting from the operation of a bus;

(iii)any failure of any bus or part of a bus or of any equipment on a bus or of anything used in bus operations;

(iv)any failure or breach of any practice or procedure involving a bus;

(v)any fire, explosion or other similar occurrence involving a bus;

(vi)any incident in which there is evidence of systematic safety deficiencies;

(b)any other incident or any state of affairs involving, or in relation to buses or any infrastructure used in bus operations that is specified by the regulations for the purposes of this definition;

transport safety law has the same meaning as in section 3 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014;";

(b)in the definition of mandatory transport safety decision, paragraph (b) is repealed;

(c)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(d)in the definition of transport legislation, paragraph (m) is repealed;

(e)the definitions of mandatory rail safety decision, rail safety officer, rail safety recommendation, rail safety worker, relevant rail safety project, relevant transport safety law and transport safety are repealed.

90Sections 79L and 79M repealed

Sections 79L and 79M of the Transport Integration Act 2010 are repealed.

91Object of Director, Transport Safety

In section 172 of the Transport Integration Act 2010—

(a)in subsection (1)—

(i)omit "independently";

(ii)for "transport safety" substitute "bus safety and marine safety";

(b)in subsection (2)(b), for "2009;" substitute "2009.";

(c)subsection (2)(c) is repealed.

92Functions of Director, Transport Safety

(1)In section 173(1) of the Transport Integration Act 2010—

(a)for paragraph (a)(i) and (ii) substitute—

"(i)  the Marine Safety Act 2010, the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Bus Safety Act 2009, the Transport (Compliance and Miscellaneous) Act 1983, the Transport (Safety Schemes Compliance and Enforcement) Act 2014, this Act or any other Act;

(ii)regulations made under the Marine Safety Act 2010, the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Bus Safety Act 2009, the Transport (Compliance and Miscellaneous) Act 1983, the Transport (Safety Schemes Compliance and Enforcement) Act 2014, this Act or any other Act;";

(b)in paragraph (b)—

(i)subparagraph (ii) is repealed;

(ii)in subparagraph (iii) omit "under the Rail Safety (Local Operations) Act 2006 or";

(iii)in subparagraph (iv) omit "or Part 8 of the Rail Safety (Local Operations) Act 2006";

(c)in paragraph (c), for "transport safety" substitute "bus safety and marine safety";

(d)in paragraph (d), for "transport safety matters" substitute "bus safety matters and marine safety matters";

(e)in paragraph (e)—

(i)in subparagraph (i) omit "or Part 8 of the Rail Safety (Local Operations) Act 2006";

(ii)for "rail transport operators and any other person" substitute "any person";

(iii)for "relevant transport safety law" substitute "transport safety law";

(f)in paragraph (f), for "transport safety matters" substitute "bus safety matters and marine safety matters";

(g)in paragraph (g)(i), (ii) and (iv), for "transport safety" substitute "bus safety and marine safety";

(h)in paragraph (i), for "transport safety matters" substitute "bus safety matters and marine safety matters";

(i)for paragraph (j) substitute—

"(j)promote awareness in the bus and marine industry and among the public about bus and marine safety initiatives;";

(j)in paragraph (k), for "transport safety" substitute "bus safety and marine safety".

(2)In section 173(2)(a) and (b) of the Transport Integration Act 2010, for "transport safety" substitute "bus safety and marine safety".

93Power to investigate

In section 174 of the Transport Integration Act 2010, for "transport safety matter" substitute "bus safety matter or marine safety matter".

94New section 174A inserted

After section 174 of the Transport Integration Act 2010 insert—

"174A   Directions

(1)The Director, Transport Safety—

(a)is subject to the general direction and control of the Minister; and

(b)must comply with any specific direction given by the Minister.

(2)Any specific direction given under subsection (1)(b) may be published in the Government Gazette.".

95Information disclosure by Director, Transport Safety

In section 177 of the Transport Integration Act2010—

(a)in subsections (1) and (2) omit "rail,";

(b)in subsection (2)(a), for "transport safety matter" substitute "bus safety matter or marine safety matter";

(c)subsection (2)(b) is repealed.

96Delegation by the Director, Transport Safety

In section 178(1) of the Transport Integration Act 2010 omit "the Rail Safety (Local Operations) Act 2006,".

97New section 178B inserted

Before section 179 of the Transport Integration Act 2010 insert—

"178B   Definition

In this Division—

transport safety means safety for the operation of rail, bus and marine transport.".

98New section 181A inserted

After section 181 of the Transport Integration Act 2010 insert—

"181A   Independence of Chief Investigator, Transport Safety

Subject to sections 191 and 193(2), the Chief Investigator, Transport Safety, when performing or exercising their functions or powers, is independent and is not subject to the direction and control of the Minister.".

99Appointment

For section 184(4)(d) of the Transport Integration Act 2010 substitute—

"(d)experience in the marine or road transport (freight and passenger) sectors;

(da)in the case of the Chief Investigator, Transport Safety, experience in the rail transport (freight and passenger) sector;".

100When a transport safety appointee ceases to hold office

In section 186(c) of the Transport Integration Act 2010, for "ceases to hold" substitute "is removed from".

101New section 187A inserted

After section 187 of the Transport Integration Act 2010 insert—

"187A   Suspension

(1)The Minister may immediately suspend a person from office as a transport safety appointee if the Minister is of the opinion that the person—

(a)is incapable of performing their functions or duties; or

(b)has refused or neglected to perform their functions or duties; or

(c)has engaged in misconduct; or

(d)is otherwise unfit to continue to be a transport safety appointee.

(2)A suspension under subsection (1) is for a period not exceeding 3 months.

(3)If a person is suspended from office under this section, the person remains entitled to their remuneration and allowances as a transport safety appointee during the period of suspension.".

102Removal from office

(1)In the heading to section 188 of the Transport Integration Act 2010, for "Suspension and removal" substitute "Removal".

(2)In section 188(1) of the Transport Integration Act 2010, for "suspend" substitute "remove".

(3)In section 188(2)(b) of the Transport Integration Act 2010, after "his or" insert "her".

(4)Section 188(4), (5), (6) and (7) of the Transport Integration Act 2010 are repealed.

103Ministerial direction to investigate transport safety matter

(1)In the heading to section 191 of the Transport Integration Act 2010, for "public transport safety matter or marine safety matter" substitute "transport safety matter".

(2)For section 191(1) of the Transport Integration Act 2010 substitute—

"(1)The Minister may direct—

(a)the Director, Transport Safety to investigate a bus safety matter or marine safety matter; or

(b)the Chief Investigator, Transport Safety to investigate a transport safety matter.".

(3)For section 191(2)(a) to (d) of the Transport Integration Act 2010 substitute—

"(a)that directs the transport safety appointee as to how to conduct an investigation; or

(b)that directs the transport safety appointee as to which persons the transport safety appointee may request or direct to assist the transport safety appointee in an investigation; or

(c)about the outcome of an investigation; or

(d)that directs the transport safety appointee to stop an investigation.".

104Section 194 repealed and consequential cross‑reference amended

(1)Section 194 of the Transport Integration Act 2010 is repealed.

(2)In section 197D(2) of the Tranport Integration Act 2010, for "section 194" substitute "section 181A".

105Power to give advice on compliance

In section 197(1) of the Transport Integration Act 2010, for "relevant transport safety law" substitute "transport safety law".

106Definitions—Conflict between decisions of Director, Transport Safety and road authority

In section 197A of the Transport Integration Act 2010, in the definition of decision, paragraph (a) is repealed.

Division 2—Amendment of the Transport (Compliance and Miscellaneous) Act 1983

107Definitions

(1)In section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983—

(a)the definitions of accredited rail transport operator, mandatory rail safety decision and rail infrastructure manager are repealed;

(b)for the definition of rolling stock operator substitute—

"rolling stock operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

(2)In section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983, the definition of rolling stock operator is repealed.

108Financial assistance to train drivers following fatal incidents

In section 12(3) of the Transport (Compliance and Miscellaneous) Act 1983, for "Part 6 of the Rail Safety (Local Operations) Act 2006 or Division 4 of Part 4" substitute "Part 4A".

109Application of definitions to Part V

In section 82C(1) of the Transport (Compliance and Miscellaneous) Act 1983, for "section 3 of the Rail Safety (Local Operations) Act 2006" substitute "section 4(1) of the Rail Safety National Law (Victoria)".

110Specific investigation powers—public transport safety matters or marine safety matters

In section 84 of the Transport (Compliance and Miscellaneous) Act 1983—

(a)after "Transport (Safety Schemes Compliance and Enforcement) Act 2014" insert "as in force immediately before the commencement of Part 3 of the Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Act 2019";

(b)after paragraph (a)(iii) insert—

"(iv)to the Safety Director were a reference to the Chief Investigator, Transport Safety; and".

111Definitions

In section 86(1) of the Transport (Compliance and Miscellaneous) Act 1983, in the definition of category 3 offence, paragraph (aa)(i) is repealed.

112Interpretation

Section 163(1)(ca)(i) of the Transport (Compliance and Miscellaneous) Act 1983 is repealed.

113Definitions

In section 208 of the Transport (Compliance and Miscellaneous) Act 1983—

(a)in the definition of rail safety worker omit "the Rail Safety (Local Operations) Act 2006 or";

(b)the definition of safety work infringement is repealed;

(c)in the definition of transport infringement omit "safety work infringement or".

114Section 230J repealed

Section 230J of the Transport (Compliance and Miscellaneous) Act 1983 is repealed.

115Service of documents on natural persons

In section 250 of the Transport (Compliance and Miscellaneous) Act 1983 omit "or the Rail Safety (Local Operations) Act 2006".

116Service of documents on corporations

In section 251 of the Transport (Compliance and Miscellaneous) Act 1983 omit "or the Rail Safety (Local Operations) Act 2006".

Division 3—Amendment of other Acts

117Consequential amendments to other Acts

On the commencement of an item in Schedule 1, the Act specified in the heading to that item is amended as set out in that item.

Part 5—Repeal of the Rail Safety (Local Operations) Act 2006 and this Act

118Repeal of the Rail Safety (Local Operations) Act 2006

The Rail Safety (Local Operations) Act 2006 is repealed.

119Repeal of this Act

This Act is repealed on 1 July 2021.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

Schedule 1—Consequential amendments to other Acts

Section 117

1Commercial Passenger Vehicle Industry Act 2017

1.1Section 68(d)(i) is repealed.

1.2In Schedule 1, item 33(a) is repealed.

2Criminal Procedure Act 2009

2.1In section 3, in the note at the foot of the definition of infringement conviction—

(a)in the second dot point, for "1988; or" substitute "1988.";

(b)the third dot point is repealed.

2.2In Schedule 2, item 25 is repealed.

3Electricity Industry Act 2000

3.1In section 85—

(a)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of rail transport operator substitute—

"rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(c)for the definition of railway operations substitute—

"railway operations has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(d)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

3.2After section 93A(3) insert—

"(4)Nothing in subsection (1) or (2) is to be construed as—

(a)conferring a right of action in a civil proceeding in respect of a contravention of those subsections; or

(b)conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding.".

4Electricity Safety Act 1998

4.1In section 3, for the definition of railway substitute—

"railway has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

5Fines Reform Act 2014

5.1In section 3, in the definition of FVS eligible offence, paragraph (c) is repealed.

5.2In section 25(1)(a) and (b) omit ", section 95 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014".

5.3Section 31(1)(b) and (2)(c) are repealed.

6Gas Industry Act 2001

6.1In section 147A—

(a)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of rail transport operator substitute—

"rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(c)for the definition of railway operations substitute—

"railway operations has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(d)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria).".

6.2After section 149A(3) insert—

"(4)Nothing in subsection (1) or (2) is to be construed as—

(a)conferring a right of action in a civil proceeding in respect of a contravention of those subsections; or

(b)conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding.".

7Infringements Act 2006

7.1Section 16(2)(b) is repealed.

7.2Section 17(2)(b) is repealed.

7.3Section 18(6)(b) is repealed.

7.4Section 21(1)(b) and (2)(c) are repealed.

7.5Section 28(b) is repealed.

7.6Section 31(b) is repealed.

8Major Transport Projects Facilitation Act 2009

8.1In section 3, for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

8.2In section 3, for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

9Melbourne City Link Act 1995

9.1In section 21(1), in the definition of Utility, in paragraph (d) omit "the Rail Safety (Local Operations) Act 2006 or".

9.2Section 39(2)(b) is repealed.

10Rail Management Act 1996

10.1In section 38A—

(a)in the definition of access provider, paragraphs (a) and (c) are repealed;

(b)for the definition of access seeker substitute—

"access seeker means an accredited person within the meaning of the Rail Safety National Law (Victoria) who wants to be provided a declared rail transport service by an access provider;";

(c)for the definition of rail transport operator substitute—

"rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(d)for the definition of user substitute—

"user means an accredited person within the meaning of the Rail Safety National Law (Victoria) who is provided a declared rail transport service by an access provider.".

11Road Management Act 2004

11.1In section 3(1), in the definition of road management function, in paragraph (a)(v) omit "Division 2 of Part 4 of the Rail Safety (Local Operations) Act 2006 and".

11.2In section 48A—

(a)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of rail transport operator substitute—

"rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(c)for the definition of railway operations substitute—

"railway operations has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(d)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

11.3In the note at the foot of section 48B omit "Division 2 of Part 4 of the Rail Safety (Local Operations) Act 2006 and".

11.4At the end of section 48B insert—

"(2)Nothing in subsection (1) is to be construed as—

(a)conferring a right of action in a civil proceeding in respect of a contravention of that subsection; or

(b)conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding.".

11.5At the end of section 48D insert—

"(2)Nothing in subsection (1) is to be construed as—

(a)conferring a right of action in a civil proceeding in respect of a contravention of that subsection; or

(b)conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding.".

11.6In the note at the foot of section 48DB omit "Division 2 of Part 4 of the Rail Safety (Local Operations) Act 2006 and".

11.7In note 2 at the foot of section 48EA(3) omit "the Rail Safety (Local Operations) Act 2006 and".

11.8In note 2 at the foot of section 48EB(3) omit "the Rail Safety (Local Operations) Act 2006 and".

11.9In note 2 at the foot of section 48EC(3) omit "the Rail Safety (Local Operations) Act 2006 and".

11.10In note 2 at the foot of section 48F(3) omit "the Rail Safety (Local Operations) Act 2006 and".

11.11In Schedule 7, in note 2 at the foot of clause 8 omit "the Rail Safety (Local Operations) Act 2006 and".

12Tourist and Heritage Railways Act 2010

12.1In section 3—

(a)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)in the definition of tourist and heritage railway operator, in paragraph (a)(iii)—

(i)omit "a rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006,";

(ii)omit "accredited rail transport operator or".

13Water Act 1989

13.1After section 137A(3) insert—

"(3A)Nothing in subsection (1) or (2) is to be construed as—

(a)conferring a right of action in a civil proceeding in respect of a contravention of those subsections; or

(b)conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding.".

13.2In section 137A(4)—

(a)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);".

13.3In section 137B(2)—

(a)for the definition of rail infrastructure substitute—

"rail infrastructure has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of rolling stock substitute—

"rolling stock has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria).".

13.4In section 137C(2)—

(a)for the definition of rail transport operator substitute—

"rail transport operator has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria);";

(b)for the definition of railway operations substitute—

"railway operations has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria).".

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 14 August 2019

Legislative Council: 15 October 2019

The long title for the Bill for this Act was "A Bill for an Act to amend the Rail Safety National Law Application Act 2013, the Transport (Safety Schemes Compliance and Enforcement) Act 2014, the Transport Integration Act 2010 and the Transport (Compliance and Miscellaneous) Act 1983, to repeal the Rail Safety (Local Operations) Act 2006 and to make consequential amendments to other Acts and for other purposes."