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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Rail Safety Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions and interpretation 2
4. Declaration of substances to be a drug 13
5. Meaning of "control" 14
6. Railways to which this Act does not apply 14
7. Rail safety work 15
8. Approval of person to take blood samples for the purposes of
Part 6 17
9. Declaration of an alcohol and drug control law of another State
or Territory to be corresponding law 17
10. References to contraventions of Acts to be read as including
references to contraventions of regulations 17
11. Objects and principles of rail safety 18
12. Crown to be bound 18
PART 2--PRINCIPLES OF RAIL SAFETY 19
13. Principle of shared responsibility 19
14. Principle of accountability for managing safety risks 19
15. Principle of integrated risk management 19
16. Principle of enforcement 20
17. Principle of transparency and consistency 20
18. Principle of participation, consultation and involvement of all
affected persons 20
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PART 3--RAIL SAFETY DUTIES AND OTHER SAFETY
REQUIREMENTS 21
Division 1--The Concept of Ensuring Safety 21
19. The concept of ensuring safety 21
Division 2--Safety Duties of Rail Infrastructure Managers and
Rolling Stock Operators 22
20. Duty of rail infrastructure managers to ensure safety of rail
infrastructure operations 22
21. Duty of rolling stock operators to ensure safety of rolling stock
operations 23
Division 3--Safety Duties of Other Persons 24
22. Rail contractor duties 24
23. Duties of rail safety workers 27
Division 4--Safety Management Systems 28
24. What is a safety management system? 28
25. Form and contents of safety management systems 29
26. Rail operator must consult before establishing safety
management system 29
27. Rail operator to have in place a safety management system 30
28. Rail operator must comply with a safety management system 30
Division 5--Safety Audits and Audits of Medical Records of Rail
Safety Workers 31
29. Safety audits 31
30. Audit of medical records of rail safety workers 31
Division 6--Other Matters 32
31. Single charge for multiple contraventions of certain duties 32
32. Civil liability not affected by Division 2 or 3 33
PART 4--PROTECTION AND CONTROL OF RAIL
OPERATIONS 34
33. Safety Director may require utility works or rail operations to
stop 34
34. Safety Director may direct utility works or rail operations to be
altered, demolished or taken away 35
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PART 5--ACCREDITATION OF RAIL INFRASTRUCTURE
AND ROLLING STOCK OPERATIONS 37
Division 1--Preliminary Matters 37
35. Purpose of accreditation 37
Division 2--Accreditation 37
36. Offence for certain rail infrastructure managers not to be
accredited 37
37. Rolling stock operators must not operate rolling stock unless
accredited 38
38. Application for accreditation 38
39. Criteria on which accreditation applications by rail
infrastructure managers are to be assessed 40
40. Criteria on which accreditation applications by rolling stock
operators are to be assessed 41
41. Accreditation following direction 42
42. Safety Director may give directions in relation to rolling stock
operator applicants 42
43. Safety Director may direct applicants to coordinate and
cooperate in their accreditation applications 44
44. Time within which Safety Director must make decision
whether to accredit 45
45. Notification and reasons to be given if accreditation refused 46
46. Restrictions and conditions concerning accreditation 46
47. How long accreditation lasts 48
48. Offence to fail to comply with conditions etc. 48
Division 3--Risk Management Requirements for Accreditation 49
49. Application of Division 49
50. Identification of incidents and hazards, and risk assessment 49
51. Measures to control likelihood, magnitude and severity of
consequences of incidents 51
52. Emergency planning 51
Division 4--Variation and Surrender of Accreditation 52
53. Accredited rail operator may apply for variation or revocation
of conditions and restrictions 52
54. Application for variation of accreditation is required in certain
cases 54
55. Safety Director may vary, revoke or impose new conditions or
restrictions of an accreditation on own initiative 56
56. Surrender of accreditation 57
57. False or misleading information 58
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Division 5--Disciplinary Action 59
58. Power of immediate suspension 59
59. Disciplinary action against an accredited rail operator 60
60. Procedure and powers concerning disciplinary inquiries 62
61. Effect of suspension 62
Division 6--Miscellaneous 63
62. Accreditation cannot be transferred 63
63. Accreditation exemptions for private siding rail operations 63
64. Revocation of accreditation exemptions for private siding rail
operations 66
65. Accredited rail operators must demonstrate ongoing
compliance with risk management requirements 67
66. Exemption from ongoing compliance with risk management
requirements 67
67. Accredited rail operator must investigate railway accidents and
incidents 70
68. Accredited rail operator must put into effect emergency plan
without delay 70
69. Accredited rail operator must notify emergency services and
others of a major incident 70
PART 6--ALCOHOL AND OTHER DRUG CONTROLS FOR
RAIL SAFETY WORKERS 72
Division 1--Preliminary Matters 72
70. Definitions 72
71. Presumptions in relation to presence of concentrations of
alcohol and other drugs 72
72. When a rail safety worker is not to be taken to be impaired 73
73. When a rail safety worker is to be regarded as being about to
carry out rail safety work 74
74. Findings of guilt and convictions and subsequent offences 74
75. Entry into residential premises not allowed without a warrant 74
Division 2--Offences, Testing and Analysis 75
76. Offences involving alcohol 75
77. Preliminary breath tests 80
78. Breath analysis 82
79. Drug assessment 87
80. Blood and urine samples 91
81. Destruction of identifying information 93
82. Blood samples to be taken in certain cases 96
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Division 3--Evidentiary Provisions 98
83. Evidentiary provisions--blood tests 98
84. Evidentiary provisions--urine tests 104
85. Evidentiary provisions--breath tests 109
Division 4--Other Matters 113
86. Approvals 113
PART 7--REVIEW OF DECISIONS 114
87. Reviewable decisions 114
88. Internal review 118
89. Review by the Tribunal 120
90. Special right of review concerning interstate applicants 121
PART 8--CODES OF PRACTICE 123
91. Codes of practice 123
92. Revisions to approved codes of practice 123
93. Revocation of approvals of codes of practice 124
94. Availability of approved codes of practice 124
95. Minister must consult before approving code of practice or
revision to code of practice 124
96. Effect of approved code of practice 125
PART 9--GENERAL 126
Division 1--Offences by Bodies Corporate 126
97. Imputing conduct to bodies corporate 126
98. Liability of officers of bodies corporate 126
Division 2--Offences by Partnerships and Unincorporated Bodies
or Associations 128
99. Liability of officers of partnerships and unincorporated bodies
or associations 128
Division 3--Proceedings against the Crown 129
100. Responsible agency for the Crown 129
Division 4--Other Matters 130
101. Interaction with the Occupational Health and Safety
Act 2004 130
102. Effect of compliance with regulations or approved codes of
practice 131
103. Fees for service 132
104. Tabling and disallowance of certain Orders, notices and
approved codes of practice 132
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Division 5--Regulations 133
105. Accreditation 133
106. Safety duties and risk management requirements and
minimisation 133
107. Safety management systems 134
108. Rail safety work 134
109. Alcohol and other drug controls 135
110. General regulation making powers 137
PART 10--AMENDMENT OF TRANSPORT ACT 1983 140
111. Definitions 140
112. New Subdivision 1 heading inserted into Division 1 of Part II 142
113. Objects and functions of the Department 143
114. New Subdivision 2 heading inserted into Division 1 of Part II 143
115. Functions and powers of Director 143
116. New sections 9AA to 9AC inserted 143
9AA. Contingency planning for exercise of certain powers 143
9AB. Director to conduct cost-benefit analysis of relevant
rail safety projects 144
9AC. Guidelines for cost-benefit analysis and consultation 145
117. New Subdivision 3 of Division 1 of Part II inserted 145
Subdivision 3--Director, Public Transport Safety 145
9K. Director, Public Transport Safety 145
9L. Appointment and terms and conditions 146
9M. When the Safety Director ceases to hold office 146
9N. Resignation 147
9O. Suspension and removal from office for
misconduct etc. 147
9P. Acting appointment 149
9Q. Validity of acts and decisions 150
9R. Safety Director not subject to Ministerial direction or
control 150
9S. Immunity 150
9T. Functions of Safety Director 151
9U. Powers of Safety Director 153
9V. Safety Director to have regard to certain objectives 155
9W. Ministerial direction to investigate public transport
safety matters 155
9X. Staff 156
9Y. Delegation 156
9Z. Information disclosure by Safety Director 157
9ZA. Safety Director to conduct cost-benefit analysis of
and consult about mandatory rail safety decisions 157
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9ZB. Guidelines 158
9ZC. Memoranda of understanding 159
9ZD. Power to give advice on compliance 160
118. New Subdivision 4 heading inserted into Division 1 of Part II 160
119. Repeal 160
120. Amendment of heading to Part VII 161
121. Definition 161
122. New Division 4AAA of Part VII inserted 161
Division 4AAA--Transport Safety Offences 161
Subdivision 1--Interpretation 161
221U. Definitions 161
221V. Exclusion of mistake of fact defence 166
221W. Statement that mistake of fact defence does not
apply not to affect other offences 166
Subdivision 2--Offences 167
221X. Overdimensional vehicles crossing tracks 167
221Y. Operators of overdimensional vehicles crossing
tracks without permission also guilty of offence 170
221Z. Reasonable steps defence--reliance on container
weight declaration 171
221ZA. Specification of vehicle limits and fees for
overdimensional vehicles crossing tracks 172
221ZB. Animals on railway tracks 172
221ZC. Placing things on tracks 173
221ZD. Mounting a place not intended for travel etc. 173
221ZE. Travelling in a place not intended for travel etc. 174
221ZF. Applying brake or emergency device 175
221ZG. Stopping a rail vehicle or road vehicle 175
221ZH. Operating equipment 175
221ZI. Permitting drainage 176
123. Repeal of certain offences 176
124. New section 223 substituted 176
223. Offence to trespass on land or premises of Roads
Corporation or Rail Track 176
125. New Division 4B of Part VII inserted 177
Division 4B--Enforcement of Relevant Transport Safety
Laws 177
Subdivision 1--Interpretation 177
228S. Definitions 177
228SA. Crown to be bound 180
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Subdivision 2--Transport Safety Officers 180
228T. Appointment 180
228U. Identity cards 181
228V. Return of identity cards 181
228W. Production of identity card 181
228X. Transport safety officers subject to Safety Director's
direction 182
228Y. Investigation by Ombudsman of actions etc. of
transport safety officers 183
Subdivision 3--Powers of Entry 183
228Z. Power of entry 183
228ZA. Procedure for entry with consent 184
Subdivision 4--Inspection, Inquiry, Search and Seizure
Powers 185
228ZB. General inspection, inquiry and search powers 185
228ZC. Securing a site 187
228ZD. Offence to enter secured site 187
228ZE. Seizure power 188
228ZF. Use of equipment to examine or process things 188
Subdivision 5--Search Warrants 189
228ZG. Search warrant 189
228ZH. Seizure of things not mentioned in the warrant 191
228ZI. Announcement before entry 191
228ZJ. Copy of warrant to be given to occupier 192
Subdivision 6--Directions 192
228ZK. Power to require production of documents and
related items 192
228ZL. Direction to provide reasonable assistance 193
228ZM. Direction to provide certain information 194
228ZN. Direction to state name and address 195
228ZO. Directions for the protection of evidence 196
Subdivision 7--Seized Things and Samples Taken 197
228ZP. Securing seized things 197
228ZQ. Offence to tamper with seized thing 197
228ZR. Powers to support seizure 198
228ZS. Transport safety officer may direct a thing's return 199
228ZT. Receipt for seized things 200
228ZU. Copies of certain seized things to be given 200
228ZV. Return of seized things 201
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228ZW. Magistrates' Court may extend period 202
228ZX. Magistrates' Court may order forfeiture of thing in
certain cases 202
Subdivision 8--Miscellaneous Provisions Relating to
Enforcement Powers 203
228ZY. Manner in which transport safety officers may give
directions under this Division 203
228ZZ. Use of force 204
228ZZA. Use or seizure of electronic equipment 204
228ZZB. Compensation for damage caused during exercise
of powers under this Division 206
Subdivision 9--Improvement Notices 207
228ZZC. Improvement notices 207
228ZZD. Improvement notices--closures of level crossings,
bridges or other structures 209
228ZZE. Contravention of improvement notice 210
228ZZF. Amendment of improvement notices 210
228ZZG. Cancellation of improvement notices 211
228ZZH. Clearance certificates for improvement notices 211
228ZZI. Proceedings for offences not affected by
improvement notices 212
Subdivision 10--Prohibition Notices 212
228ZZJ. Prohibition notice 212
228ZZK. Contravention of prohibition notice 215
228ZZL. Amendment of prohibition notice 215
228ZZM. Withdrawal of prohibition notices 216
228ZZN. Certificates that matters that give rise to immediate
risks to safety remedied 216
228ZZO. Proceedings for offences not affected by prohibition
notices 217
Subdivision 11--Other Matters 217
228ZZP. Self-incrimination not an excuse 217
Subdivision 12--Review of Decisions Relating to
Improvement and Prohibition Notices 218
228ZZQ. Reviewable decisions 218
228ZZR. Internal review 220
228ZZS. Review by the Tribunal 221
126. New section 229A and 229B inserted 222
229A. Who may only bring proceedings for offences against
relevant transport safety laws 222
229B. Limitation period for prosecutions for indictable
offences against relevant transport safety laws 223
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127. New section 230A and Divisions 6 and 7 of Part VII inserted 223
230A. Evidentiary certificates--relevant transport safety
laws 223
Division 6--Sentencing Orders in relation to Relevant
Transport Safety Laws 226
230B. Commercial benefits penalty order 226
230C. Supervisory intervention order 228
230D. Contravention of supervisory intervention order 232
230E. Release on the giving of a safety undertaking 232
230F. Variation or breach of orders under section 230E 234
Division 7--Other Matters 235
Subdivision 1--Interpretation 235
230G. Definitions 235
Subdivision 2--Liability 236
230H. Civil liability not affected by a relevant rail safety
duty law 236
230I. Interaction with the Occupational Health and Safety
Act 2004 236
230J. Offences by bodies corporate, officers of bodies
corporate, partnerships etc. 237
128. Service 237
129. Statute law revision 238
PART 11--OTHER AMENDMENTS TO ACTS, SAVINGS AND
TRANSITIONALS 239
Division 1--Amendment of Public Transport Competition
Act 1995 239
130. Application for accreditation 239
131. Matters to be considered 239
132. Giving or refusal of accreditation 239
133. Conditions of accreditation 240
134. Change of conditions etc. 240
135. Duration of accreditation 240
136. Requirement to notify of charges etc. 240
137. Periodical returns 240
138. Application for renewal of accreditation 240
139. Renewal of accreditation 241
140. Nature of accreditation 241
141. Safety Director not liable for giving accreditation 241
142. Supervision of accredited persons 241
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143. Procedure and powers 241
144. Immediate power of suspension 242
145. Review by Victorian Civil and Administrative Tribunal 242
146. Codes of practice 242
147. Fees 242
148. Delegation 243
149. No compensation payable 243
Division 2--Amendment of Rail Corporations Act 1996 244
150. New definition inserted 244
151. Objective of Rail Track 244
152. Functions and powers of Rail Track 244
153. New section 12 inserted 244
12. Contingency planning for exercise of certain powers 244
154. Definition of "access provider" amended and new definitions
inserted 245
155. Decisions not to interfere with certain directions of the Safety
Director 246
156. Statute law revision 246
Division 3--Other Amendments 246
157. Electricity Industry Act 2000 amendment--New section 85
substituted and new sections 93A to 93C inserted 246
85. Definitions 246
93A. Safety duties in relation to works on or in immediate
vicinity of rail infrastructure or rolling stock 247
93B. Notification of owners or occupiers of land on which
there is rail infrastructure or rolling stock 248
93C. Notification of electricity corporations before rail
operations carried out 248
158. Gas Industry Act 2001 amendment--New sections 147A
and 149A to 149C inserted 249
147A. Definitions 249
149A. Safety duties in relation to works on or in immediate
vicinity of rail infrastructure or rolling stock 249
149B. Notification of owners or occupiers of land on which
there is rail infrastructure or rolling stock 250
149C. Notification of gas distribution and transmission
companies before rail operations carried out 251
159. Magistrates' Court Act 1989 amendment--Certain indictable
offences triable summarily etc. 251
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160. Road Management Act 2004 amendment--New Division 4A
of Part 4 of that Act inserted 253
Division 4A--Safety Duties in relation to Works on or
near Rail Infrastructure 253
48A. Definitions 253
48B. State road authority duty in relation to works on or
in immediate vicinity of rail infrastructure or rolling
stock 254
48C. Infrastructure manager or works manager duties in
relation to works on or in immediate vicinity of rail
infrastructure or rolling stock 254
48D. Works contractor duty in relation to works on or in
immediate vicinity of rail infrastructure or rolling
stock 255
48E. Notification of owners or occupiers of land on which
there is rail infrastructure or rolling stock 255
48F. Notification of road authorities before rail operations
carried out 256
48G. Certain offences in this Division are indictable
offences 256
161. Water Act 1989 amendment--New sections 137A to 137C
inserted 256
137A. Safety duties in relation to works on or in immediate
vicinity of rail infrastructure or rolling stock 256
137B. Notification of owners or occupiers of land on which
there is rail infrastructure or rolling stock 257
137C. Notification of Authorities before rail operations
carried out 258
162. Water Industry Act 1994 amendment--New sections 62A
to 62C inserted 258
62A. Safety duties in relation to works on or in immediate
vicinity of rail infrastructure or rolling stock 258
62B. Notification of owners or occupiers of land on which
there is rail infrastructure or rolling stock 260
62C. Notification of licensees before rail operations carried
out 260
Division 4--Savings and Transitionals 261
163. Definitions 261
164. General transitional provision 263
165. Savings and transitional regulations 263
166. Declaration in relation to tourist and heritage railways 263
167. Orders and approvals relating to alcohol and other drug
controls under the Transport Act 1983 264
168. Existing accreditations for accredited commercial rail
operators 264
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169. Existing accreditations for accredited tourist and heritage rail
operators 265
170. Compliance with safety management system requirements not
required until old accreditations expire 265
ENDNOTES 266
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PARLIAMENT OF VICTORIA
Initiated in Assembly 4 October 2005
As amended by Assembly 1 March 2006
A BILL
to provide for safe rail operations in Victoria, to amend the Transport
Act 1983, the Public Transport Competition Act 1995, the Rail
Corporations Act 1996, the Electricity Industry Act 2000, the Gas
Industry Act 2001, the Magistrates' Court Act 1989, the Road
Management Act 2004, the Water Act 1989, the Water Industry
Act 1994 and for other purposes.
Rail Safety Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to provide for safe
rail operations in Victoria.
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Rail Safety Act 2005
Act No.
Part 1--Preliminary
s. 2
2. Commencement
(1) Subject to sub-section (4), this Act (except
sections 129 and 156) comes into operation on a
day or days to be proclaimed.
(2) Sections 129 and 156(2) come into operation on
5
the day after the day this Act receives the Royal
Assent.
(3) Section 156(1) comes into operation on the day
section 5 of the Transport Legislation (Further
Amendment) Act 2005 comes into operation.
10
(4) If a provision of this Act does not come into
operation before 1 January 2007, it comes into
operation on that day.
3. Definitions and interpretation
(1) In this Act--
15
"accreditation" means an accreditation under
Part 5;
"accredited rail operations" means--
(a) rail infrastructure operations carried out
by a rail infrastructure manager in
20
respect of which the rail infrastructure
manager is accredited under Part 5; or
(b) rolling stock operations carried out by a
rolling stock operator in respect of
which the rolling stock operator is
25
accredited under Part 5;
"accredited rail operator" means a rail
infrastructure manager or rolling stock
operator who is accredited under Part 5;
"ambulance service" has the same meaning as in
30
the Ambulance Services Act 1986;
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Act No.
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s. 3
"approved code of practice" means a code of
practice approved under Part 8 and includes
an approved code of practice revised in
accordance with that Part;
"approved health professional" means--
5
(a) a registered nurse, within the meaning
of the Nurses Act 1993, registered in
division 1 of the register kept under that
Act;
(b) a person approved under section 8 to
10
take a blood sample for the purposes of
this Act;
"binding access arrangement" has the same
meaning as in section 38A of the Rail
Corporations Act 1996;
15
"breath analysing instrument" means a breath
analysing instrument within the meaning of
the Road Safety Act 1986;
"business day" means a day other than a
Saturday, a Sunday or a public holiday
20
appointed under the Public Holidays Act
1993;
"Chief Investigator" means the Chief
Investigator, Transport and Marine Safety
Investigations appointed under section 83 of
25
the Transport Act 1983;
"competence", in relation to a rail safety worker,
means sufficient education, training,
experience, acquired knowledge, and skills
to enable the rail safety worker to perform a
30
specified task correctly;
"control", in relation to a rail infrastructure--see
section 5;
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Act No.
Part 1--Preliminary
s. 3
"corresponding law" means, for the purposes of
Part 6, a law of another State or a Territory
of the Commonwealth declared under
section 9 to be a corresponding law;
"Country Fire Authority" means the Country
5
Fire Authority appointed under the Country
Fire Authority Act 1958;
"Department" means the Department of
Infrastructure;
"dispute resolution decision" has the same
10
meaning as in section 38A of the Rail
Corporations Act 1996;
"drug" means a substance that is a drug for the
purposes of this Act by virtue of a
declaration under section 4 or any other
15
substance (other than alcohol) which, when
consumed or used by a person, deprives that
person (temporarily or permanently) of any
of his or her normal mental or physical
faculties;
20
"emergency plan"--see section 52;
"emergency service" means--
(a) the Chief Commissioner of Police;
(b) an ambulance service;
(c) the Country Fire Authority;
25
(d) the Metropolitan Fire and Emergency
Services Board;
"Energy Safe Victoria" means Energy Safe
Victoria established under section 4 of the
Energy Safe Victoria Act 2005;
30
"hazard" means a source of potential harm;
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Act No.
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s. 3
"health and safety representative" has the same
meaning as in the Occupational and Health
and Safety Act 2004;
"interface co-ordination plan" means a plan
agreed between two or more parties, at least
5
one of whom is a rail operator, that specifies
the responsibilities of each party for the
management of any risks associated with the
carrying out of the rail operator's rail
operations that may be caused or contributed
10
to by--
(a) the activities or operations of any other
party to the agreement; or
(b) by the ownership, occupation or
management of any premises by any
15
other party to the agreement;
"major incident" means an incident or natural
event that poses a serious and immediate risk
to safety and includes a derailment of rolling
stock, a collision, a fire or explosion;
20
"Metropolitan Fire and Emergency Services
Board" means the Metropolitan Fire and
Emergency Services Board established under
the Metropolitan Fire Brigades Act 1958;
"officer" of a body corporate, unincorporated
25
body or association or partnership has the
meaning given by section 9 of the
Corporations Act;
"person" includes a body corporate,
unincorporated body or association and a
30
partnership;
"premises" includes any structure, building or
place (whether built on or not), and any part
of such structure, building or place;
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s. 3
"prescribed concentration of alcohol" means
any concentration of alcohol present in the
breath or blood of a person;
"private siding" means a siding that is managed
by a person other than a person who controls
5
the rail infrastructure that the siding connects
with, or has access to, but does not include--
(a) a marshalling yard;
(b) a siding used mainly to enable rolling
stock to pass other rolling stock that is
10
on the same track;
(c) a passenger terminal;
(d) a siding of a kind that the regulations
state is not a private siding;
"public transport safety matter" has the
15
meaning set out in section 82A of the
Transport Act 1983;
"rail contractor" means a person who--
(a) whether or not under an agreement with
a rail infrastructure manager or rolling
20
stock operator designs, commissions,
constructs, manufactures, supplies,
installs, erects, maintains, repairs,
modifies or decommissions any thing
that may be used as rail infrastructure
25
or rolling stock; or
(b) is engaged directly or indirectly by a
rail infrastructure manager or rolling
stock operator to supply rail
infrastructure operations or rolling
30
stock operations to that rail
infrastructure manager or rolling stock
operator, and includes a sub-contractor;
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s. 3
"rail infrastructure" means the facilities that are
necessary to operate a railway safely and
includes, but is not limited to, railway track,
associated track structures and works (such
as cuttings, tunnels, bridges, stations,
5
platforms, tram stops, excavations, land fill,
track support earthworks and drainage
works), over-track structures, under-track
structures, service roads, signalling systems,
rolling stock control systems,
10
communications systems, notices and signs,
overhead electrical power supply systems,
and associated buildings, workshops, depots,
yards, plant, machinery and equipment, but
does not include rolling stock;
15
"rail infrastructure manager" means a person
who controls rail infrastructure;
"rail infrastructure operations" means
designing, commissioning, constructing,
manufacturing, erecting, installing,
20
operating, maintaining, repairing, modifying,
decommissioning or managing rail
infrastructure;
"rail operations" means rail infrastructure
operations or rolling stock operations;
25
"rail operator" means a rail infrastructure
manager or rolling stock operator;
"rail safety work"--see section 7;
"rail safety worker" means a person who has
carried out, is carrying out or is about to
30
carry out, rail safety work and includes--
(a) a person who is employed or engaged
by a rail operator to carry out rail safety
work;
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(b) a person engaged by a person (other
than by a rail operator) to carry out rail
safety work;
(c) a trainee;
(d) a volunteer;
5
"railway" means a guided system designed for
the movement of rolling stock that has the
capability of transporting passengers or
freight or both on a railway track with a
railway track gauge of 600 millimetres or
10
more, together with its rail infrastructure,
and includes--
(a) a heavy railway;
(b) a light railway;
(c) a monorail railway;
15
(d) an inclined railway;
(e) a tramway;
(f) a railway within a marshalling yard or
passenger or freight terminal;
(g) a private siding;
20
(h) a railway that is prescribed by the
regulations to be a railway;
Note: Section 6 sets out the railways to which this
Act does not apply.
"railway premises" means--
25
(a) land (including any premises on the
land) on or in which is situated any
item or part of an item of rail
infrastructure; or
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(b) land (including any premises on the
land) on or in which is situated any
over-track structure or part of an over-
track structure, or on or in which is
situated any under-track structure or
5
part of an under-track structure; or
(c) land (including any premises on land)
on or in which documents or records
required for, or relating to, the
accreditation of an accredited rail
10
operator are kept; or
(d) freight centres or depots; or
(e) maintenance depots; or
(f) premises including an office, building
or housing used in connection with the
15
carrying out of rail operations; or
(g) rolling stock or other vehicles
associated with the railway; or
(h) workshops; or
(i) any railway track, works or other thing
20
that is part of anything mentioned in
paragraphs (e) to (h)--
but does not include any residential
premises;
"registered employee organisation" means an
25
organisation, of which some or all of the
members are employees, that is registered, or
taken to be registered, under Schedule 1B to
the Workplace Relations Act 1996 of the
Commonwealth;
30
"registered medical practitioner" means a
registered medical practitioner within the
meaning of the Medical Practice Act 1994;
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"residential premises" means premises, or a part
of premises, that is used for predominantly
residential purposes;
"rolling stock" means a vehicle or a part of a
vehicle that operates on or uses a railway
5
track, and includes a locomotive, carriage,
rail car, rail motor, light rail vehicle, train,
tram, light inspection vehicle, road/rail
vehicle, trolley, wagon or monorail vehicle
but does not include a vehicle or a part of a
10
vehicle designed to operate both on and off a
railway track when the vehicle is not
operating on a railway track;
"rolling stock operations" means--
(a) operating rolling stock; or
15
(b) designing, commissioning,
constructing, manufacturing,
maintaining, repairing or modifying
rolling stock;
"rolling stock operator" means a person who is
20
entitled to operate rolling stock on a railway
because the person is--
(a) also the rail infrastructure manager who
controls the railway on which the
rolling stock is operated; or
25
(b) a party to an agreement that allows
them to operate rolling stock on that
railway; or
(c) allowed to operate rolling stock on that
railway under a binding access
30
arrangement or dispute resolution
decision;
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"safety audit" means an inspection of the
following to ensure that an accredited rail
operator is complying with the requirements
of Parts 3 and 5--
(a) the rail infrastructure or rolling stock
5
used in carrying out accredited rail
operations; and
(b) accredited rail operations; and
(c) the performance of the employees of
the accredited rail operator who are
10
employed in relation to the rail
infrastructure or rolling stock;
"Safety Director" means the Director, Public
Transport Safety appointed under section 9L
of the Transport Act 1983;
15
"safety management system"--see Division 4 of
Part 3;
"Secretary" means the Secretary to the
Department;
"substance" means substance in any form
20
(whether gaseous, liquid, solid or other) and
includes material, preparation, extract and
admixture;
"supply" includes--
(a) in relation to goods--supply and
25
resupply by way of sale, exchange,
lease, hire or hire purchase, whether as
principal or agent;
(b) in relation to services--provide, grant
or confer, whether as principal or agent;
30
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"transport safety officer" has the same meaning
as in the Transport Act 1983;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
5
Tribunal Act 1998;
"utility" means--
(a) an entity (whether publicly or privately
owned) which provides, or intends to
provide, water, sewerage, drainage,
10
gas, electricity, telephone,
telecommunication or other like
services under the authority of an Act
of Victoria or the Commonwealth;
(b) a road authority within the meaning of
15
the Road Management Act 2004;
"Victorian Institute of Forensic Medicine
Director" means the Director within the
meaning of the Coroners Act 1985;
"volunteer" means a person who is acting on a
20
voluntary basis (irrespective of whether the
person receives out-of-pocket expenses).
(2) For the purposes of this Act, a rail infrastructure
manager is deemed to carry out rail infrastructure
operations supplied to the rail infrastructure
25
manager by--
(a) a rail contractor engaged directly or
indirectly by the rail infrastructure manager
to supply those operations to the rail
infrastructure manager; or
30
(b) a sub-contractor of the rail contractor
referred to in paragraph (a).
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(3) For the purposes of this Act, a rolling stock
operator is deemed to carry out rolling stock
operations supplied to the rolling stock operator
by--
(a) a rail contractor engaged directly or
5
indirectly by the rolling stock operator to
supply those operations to the rolling stock
operator; or
(b) a sub-contractor of the rail contractor
referred to in paragraph (a).
10
(4) For the purposes of this Act--
(a) an accredited rail operator is deemed to carry
out rail infrastructure operations or rolling
stock operations supplied to the accredited
rail operator by--
15
(i) a rail contractor engaged directly or
indirectly by the accredited rail
operator to supply those operations to
the accredited rail operator; or
(ii) a sub-contractor of the rail contractor
20
referred to in sub-paragraph (i); and
(b) rail infrastructure operations or rolling stock
operations referred to in paragraph (a) are
deemed to be accredited rail operations.
4. Declaration of substances to be a drug
25
The Minister, by Order published in the
Government Gazette, may declare any substance
to be a drug for the purposes of Part 6.
Note: An Order under this section is disallowable by either
30 House of Parliament: see section 104.
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5. Meaning of "control"
A person controls rail infrastructure if the
person--
(a) owns the rail infrastructure and uses that
infrastructure to--
5
(i) operate rolling stock on a railway
forming part of that infrastructure; or
(ii) allow another person to operate rolling
stock on a railway forming part of that
infrastructure; or
10
(b) is entitled, under a right conferred by an Act
or an agreement, to use rail infrastructure
to--
(i) operate rolling stock on a railway
forming part of that infrastructure; or
15
(ii) allow another person to operate rolling
stock on a railway forming part of that
infrastructure; or
(c) is required under a binding access
arrangement or dispute resolution decision to
20
allow another person to operate rolling stock
on a railway forming part of rail
infrastructure that the person--
(i) owns; or
(ii) uses under a right conferred by an Act
25
or an agreement.
6. Railways to which this Act does not apply
This Act does not apply to--
(a) a railway in a mine that is underground, or
chiefly underground, and that is used in
30
connection with the performance of mining
operations; or
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(b) a railway that is operated solely within an
amusement or theme park; or
(c) a slipway; or
(d) a railway used only to guide a crane; or
(e) an aerial cable operated system; or
5
(f) a railway that the regulations state is a
railway to which this Act does not apply.
7. Rail safety work
For the purposes of this Act, rail safety work
means--
10
(a) driving, despatching, or any other activity
which is capable of controlling or affecting
the movement of rolling stock;
(b) signalling, and signalling operations,
receiving and relaying of communications or
15
any other activity which is capable of
controlling or affecting the movement of
rolling stock;
(c) coupling or uncoupling rolling stock;
(d) designing, constructing, repairing,
20
modifying, maintaining, monitoring,
inspecting or testing of--
(i) rolling stock, including checking that
the rolling stock is working properly
before being used or operated; or
25
(ii) civil or electric traction infrastructure;
or
(iii) signalling or telecommunications
equipment;
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(e) installing components in relation to rolling
stock;
(f) any work on or about rail infrastructure
relating to the design, construction, repair,
modification, maintenance, monitoring,
5
inspecting or testing of rail infrastructure or
associated works or equipment, including
checking that the rail infrastructure is
working properly before being used or
operated;
10
(g) installing or maintaining any part of rail
infrastructure or of the telecommunications
system relating to it or used in connection
with it, or of the means of supplying
electricity directly to a railway or to any
15
rolling stock using the rail infrastructure or
to the telecommunications system;
(h) receiving and relaying of communications;
(i) any work involving certification as to the
safety of rail infrastructure or rolling stock or
20
any part or component of rail infrastructure
or rolling stock;
(j) any work involving the decommissioning or
disposal of rail infrastructure or rolling stock
or any part or component of rail
25
infrastructure or rolling stock;
(k) any work involving the development,
management or monitoring of safe working
systems for railways;
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(l) any work in relation to ensuring the safety
of--
(i) rail safety workers on a railway;
(ii) any persons working on or near a
railway, whether or not the person
5
working on or near the railway track is
carrying out rail safety work;
(m) any other work that is prescribed by the
regulations as rail safety work--
but does not include any work referred to in
10
paragraphs (a) to (l) that is prescribed by the
regulations not to be rail safety work.
8. Approval of person to take blood samples for the
purposes of Part 6
The Victorian Institute of Forensic Medicine
15
Director may, in writing, approve a person to take
blood samples for the purposes of Part 6 if he or
she is of the opinion that the person has the
appropriate qualifications, training and experience
to take such samples.
20
9. Declaration of an alcohol and drug control law of
another State or Territory to be corresponding law
The Minister, by Order published in the
Government Gazette, may declare a law of
another State or a Territory of the Commonwealth
25
that creates an offence substantially similar to an
offence created by section 76(1) to be a
corresponding law.
10. References to contraventions of Acts to be read as
including references to contraventions of regulations
30
A reference in this Act to the commission of an
offence against, or a contravention of, this Act
includes a reference to the commission of an
offence against, or a contravention of, regulations
made under this Act.
35
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11. Objects and principles of rail safety
(1) The objects of this Act are to promote--
(a) the safety of rail operations;
(b) the effective management of safety risks in
rail operations;
5
(c) continuous improvement in rail safety
management;
(d) public confidence in the safety of rail
transport;
(e) the involvement of relevant stakeholders in
10
rail safety.
(2) The Parliament does not intend by Part 2 to create
in any person any legal right or give rise to any
civil cause of action.
12. Crown to be bound
15
(1) This Act binds the Crown, not only in right of
Victoria but also, so far as the legislative power of
the Parliament permits, the Crown in all its other
capacities.
(2) To avoid doubt, the Crown is a body corporate for
20
the purposes of this Act or the regulations.
__________________
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PART 2--PRINCIPLES OF RAIL SAFETY
13. Principle of shared responsibility
Rail safety is the shared responsibility of--
(a) rail operators; and
(b) rail safety workers; and
5
(c) other persons who--
(i) design, commission, construct,
manufacture, supply, install, erect,
maintain, repair, modify or
decommission rail infrastructure or
10
rolling stock; and
(ii) supply rail infrastructure operations or
rolling stock operations to rail
operators; and
(d) the Safety Director; and
15
(e) the public.
14. Principle of accountability for managing safety risks
Managing risks associated with the carrying out of
rail infrastructure operations or rolling stock
operations is the responsibility of the person best
20
able to control that risk.
15. Principle of integrated risk management
If approaches to managing risks associated with
any particular railway have potential impacts on
any other railway or a railway network of which
25
the railway is a part, the best practicable rail
safety outcome should be sought.
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16. Principle of enforcement
Enforcement of this Act and regulations made
under this Act should be undertaken for the
purpose of--
(a) protecting public safety;
5
(b) promoting improvement in rail safety;
(c) removing incentive for any unfair
commercial advantage that might be derived
from contravening the rail safety
requirements under this Act or the
10
regulations; and
(d) influencing the attitude and behaviour of
persons whose actions may have adverse
impacts on rail safety.
17. Principle of transparency and consistency
15
Rail regulatory decision making processes should
be timely, transparent and nationally consistent.
18. Principle of participation, consultation and
involvement of all affected persons
The persons and classes of persons referred to in
20
section 13 should--
(a) participate in or be able to participate in; and
(b) be consulted on; and
(c) be involved in--
the formulation and implementation of measures
25
to manage risks to safety associated with rail
operations.
__________________
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PART 3--RAIL SAFETY DUTIES AND OTHER SAFETY
REQUIREMENTS
Division 1--The Concept of Ensuring Safety
19. The concept of ensuring safety
(1) To avoid doubt, a duty imposed on a person under
5
this Act or the regulations to ensure, so far as is
reasonably practicable, safety requires the person
to--
(a) eliminate risks to safety so far as is
reasonably practicable; and
10
(b) if it is not reasonably practicable to eliminate
risks to safety, to reduce those risks so far as
is reasonably practicable.
(2) To avoid doubt, for the purposes of Divisions 2
and 3 or regulations made for the purposes of
15
those Divisions, regard must be had to the
following matters in determining what is (or was
at a particular time) reasonably practicable in
relation to ensuring safety--
(a) the likelihood of the hazard or risk concerned
20
eventuating;
(b) the degree of harm that would result if the
hazard or risk eventuated;
(c) what the person concerned knows, or ought
reasonably to know, about the hazard or risk
25
and any ways of eliminating or reducing the
hazard or risk;
(d) the availability and suitability of ways to
eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard
30
or risk.
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Division 2--Safety Duties of Rail Infrastructure Managers
and Rolling Stock Operators
20. Duty of rail infrastructure managers to ensure
safety of rail infrastructure operations
(1) A rail infrastructure manager must, so far as is
5
reasonably practicable, ensure the safety of rail
infrastructure operations carried out by the rail
infrastructure manager.
Penalty: In the case of a natural person,
1800 penalty units;
10
In the case of a body corporate,
9000 penalty units.
(2) Without limiting sub-section (1), a rail
infrastructure manager contravenes that sub-
section if the rail infrastructure manager fails to
15
do any of the following--
(a) provide or maintain rail infrastructure that is,
so far as is reasonably practicable, safe;
(b) provide or maintain systems of rail safety
work that are, so far as is reasonably
20
practicable, safe;
(c) provide, so far as is reasonably practicable,
such--
(i) information, instruction, training or
supervision to rail safety workers as is
25
necessary to enable those workers to
perform their rail safety work in a way
that is safe; and
(ii) information to persons on railway
premises (other than rail safety
30
workers) as is necessary to enable those
persons to ensure their safety.
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(3) An offence against sub-section (1) is an indictable
offence.
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
5 Magistrates' Court Act 1989).
21. Duty of rolling stock operators to ensure safety of
rolling stock operations
(1) A rolling stock operator must, so far as is
reasonably practicable, ensure the safety of rolling
stock operations carried out by the rolling stock
10
operator.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
15
(2) Without limiting sub-section (1), a rolling stock
operator contravenes that sub-section if the rolling
stock operator fails to do any of the following--
(a) provide or maintain rolling stock that is, so
far as is reasonably practicable, safe;
20
(b) provide or maintain systems of rail safety
work that are, so far as is reasonably
practicable, safe;
(c) provide, so far as is reasonably practicable,
such--
25
(i) information, instruction, training or
supervision to rail safety workers as is
necessary to enable those workers to
perform their rail safety work in a way
that is safe; and
30
(ii) information to persons on railway
premises (other than rail safety
workers) as is necessary to enable those
persons to ensure their safety.
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(3) An offence against sub-section (1) is an indictable
offence.
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
5 Magistrates' Court Act 1989).
Division 3--Safety Duties of Other Persons
22. Rail contractor duties
(1) A rail contractor who--
(a) designs, commissions, constructs,
manufactures, supplies, installs, erects,
10
maintains, repairs, modifies or
decommissions any thing; and
(b) knows, or ought reasonably to know, that the
thing is to be or was used as rail
infrastructure or rolling stock--
15
must--
(c) ensure, so far as is reasonably practicable--
(i) that the thing is safe if it is used for a
purpose for which it was designed,
commissioned, constructed,
20
manufactured, supplied, installed,
erected, maintained, repaired or
modified; or
(ii) that the thing is decommissioned
safely; and
25
(d) carry out, or arrange the carrying out, of such
testing and examination as may be necessary
for compliance with this section; and
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(e) in the case of a thing to which
paragraph (c)(i) applies, take such action as
is necessary to ensure that there will be
available in connection with the use of the
thing adequate information about--
5
(i) the use for which the thing was
designed, commissioned, constructed,
manufactured, supplied, installed,
erected, maintained, repaired or
modified; and
10
(ii) the results of any testing or examination
referred to in paragraph (d); and
(iii) any conditions necessary to ensure the
thing is safe if it is used for a purpose
for which it was designed,
15
commissioned, constructed,
manufactured, supplied, installed,
erected, maintained, repaired or
modified.
Penalty: In the case of a natural person,
20
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
(2) A rail contractor who supplies rail infrastructure
operations or rolling stock operations to a rail
25
operator must, so far as is reasonably practicable,
ensure the safety of those operations.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
30
9000 penalty units.
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(3) Without limiting sub-section (2), a rail contractor
contravenes that sub-section if the rail contractor
fails to do any of the following--
(a) in the case of a rail contractor that manages
or operates rail infrastructure, provide or
5
maintain rail infrastructure that is, so far as is
reasonably practicable, safe;
(b) in the case of a rail contractor that operates
rolling stock, provide or maintain rolling
stock that is, so far as is reasonably
10
practicable, safe;
(c) provide or maintain systems of rail safety
work that are, so far as is reasonably
practicable, safe;
(d) supply rail infrastructure operations or
15
rolling stock operations in accordance with
the safety management system of the rail
operator that has engaged the rail contractor
to supply rail infrastructure operations or
rolling stock operations to them;
20
(e) provide, so far as is reasonably practicable,
such--
(i) information, instruction, training or
supervision to rail safety workers as is
necessary to enable those workers to
25
perform their rail safety work in a way
that is safe; and
(ii) information to persons on railway
premises (other than rail safety
workers) as is necessary to enable those
30
persons to ensure their safety.
(4) An offence against sub-section (1) or (2) is an
indictable offence.
Note: However, the offence may be heard and determined
35 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
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(5) For the purposes of sub-section (1), if the person
who supplies the thing--
(a) carries on the business of financing the
acquisition of the thing by customers; and
(b) has, in the course of that business, acquired
5
an interest in the thing solely for the purpose
of financing its acquisition by a customer
from a third person or its provision to a
customer by a third person; and
(c) has not taken possession of the thing or has
10
taken possession of it solely for the purpose
of passing possession to that customer--
the reference in sub-section (1) to the person who
supplies that thing is instead taken to be a
reference to the third person.
15
23. Duties of rail safety workers
(1) A rail safety worker, when carrying out rail safety
work must--
(a) take reasonable care for his or her own
safety; and
20
(b) take reasonable care for the safety of persons
who may be affected by the rail safety
worker's acts or omissions; and
(c) co-operate with the rail operator or rail
contractor employing or engaging them with
25
respect to any action taken by the rail
operator to comply with a requirement
imposed by or under this Act or the
regulations.
Penalty: 1800 penalty units.
30
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(2) A rail safety worker, when carrying out rail safety
work, must not intentionally or recklessly interfere
with or misuse anything provided to them by the
rail operator or rail contractor employing or
engaging them--
5
(a) in the interests of safety; or
(b) under this Act or the regulations.
Penalty: 1800 penalty units.
(3) A rail safety worker, when carrying out rail safety
work, must not wilfully or recklessly place the
10
safety of another person on or in the immediate
vicinity of rail infrastructure at risk.
Penalty: 1800 penalty units.
(4) For the purposes of sub-section (1)(a), (b) or (c),
in determining whether a rail safety worker failed
15
to take reasonable care, regard must be had to
what the rail safety worker knew about the
relevant circumstances.
(5) An offence against sub-section (1), (2) or (3) is an
indictable offence.
20
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
Division 4--Safety Management Systems
24. What is a safety management system?
25
A safety management system is the system and
arrangements established and maintained by a rail
operator in accordance with this Act and
regulations made under this Act to ensure the safe
management of the rail operations the rail operator
30
carries out.
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25. Form and contents of safety management systems
A safety management system must--
(a) be documented; and
(b) provide a comprehensive and integrated
management system for all aspects of control
5
measures adopted, including the measures
adopted in accordance with section 51; and
(c) be so set out and expressed that its contents
are readily accessible and comprehensible to
persons who use it; and
10
(d) be prepared in accordance with the
regulations; and
(e) contain the matters and information required
by the regulations; and
(f) be kept and maintained in accordance with
15
the regulations.
26. Rail operator must consult before establishing safety
management system
A rail operator, before establishing a safety
management system in relation to rail operations
20
the rail operator carries out, must consult with--
(a) persons who work on or at railway premises
or with rolling stock and any registered
employee organisation representing them;
and
25
(b) every person employed by the rail operator
who is a health and safety representative; and
(c) any person with whom they have entered
into an interface co-ordination plan.
Penalty: In the case of a natural person,
30
180 penalty units;
In the case of a body corporate,
900 penalty units.
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27. Rail operator to have in place a safety management
system
(1) A rail operator must at all times have in place a
safety management system in respect of the rail
operations that the rail operator carries out that
5
complies with the requirements of this Act and the
regulations.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
10
9000 penalty units.
(2) An offence against sub-section (1) is an indictable
offence.
Note: However, the offence may be heard and determined
15 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
28. Rail operator must comply with a safety
management system
(1) A rail operator must comply with the safety
management system the rail operator has in place
20
in respect of the rail operations that the rail
operator carries out.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
25
9000 penalty units.
(2) An offence against sub-section (1) is an indictable
offence.
Note: However, the offence may be heard and determined
30 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
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Division 5--Safety Audits and Audits of Medical Records of
Rail Safety Workers
29. Safety audits
The Safety Director must conduct, or cause to be
conducted, a safety audit of the accredited rail
5
operations of an accredited rail operator at least
once every 12 months, and may conduct such an
audit more frequently if she or he considers it
appropriate to do so.
30. Audit of medical records of rail safety workers
10
(1) The Safety Director or a transport safety officer
may from time to time, and in accordance with the
regulations (if any), conduct an audit of any
medical records of people employed or engaged to
perform rail safety work that are held by the
15
accredited rail operator or by a rail contractor of
the accredited rail operator.
(2) An audit under this section consists of an
inspection of the medical records to establish
whether the accredited rail operator or rail
20
contractor has in place appropriate medical
examination procedures and health monitoring
systems to ensure that people employed or
engaged by the accredited rail operator or rail
contractor to perform rail safety work are
25
medically fit for the work they are required to
perform.
(3) For the purposes of an audit under this section, an
accredited rail operator or rail contractor must
give the Safety Director or a transport safety
30
officer access to the medical record of any person
employed or engaged to perform rail safety work
that is held by the accredited rail operator or rail
contractor.
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(4) The regulations may establish procedures for the
conduct of audits under this section, including
procedures to ensure the confidentiality of
medical records.
Division 6--Other Matters
5
31. Single charge for multiple contraventions of certain
duties
(1) This section applies to--
(a) a contravention of a provision of Division 2
or 3 by a person; and
10
(b) a contravention of such a provision for which
an officer of a body corporate, partnership or
unincorporated body or association
(including a body corporate, partnership or
unincorporated body or association
15
representing the Crown) is liable.
Note: For liability of officers, see Divisions 1 and 2 of
Part 9.
(2) Subject to any contrary court order, two or more
contraventions may be charged as a single offence
20
if they arise out of the same factual circumstances.
(3) This section does not authorise contraventions of
two or more provisions of Division 2 or 3 to be
charged as a single offence.
(4) If two or more contraventions are charged as a
25
single offence, a single penalty only may be
imposed in respect of the contraventions.
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32. Civil liability not affected by Division 2 or 3
Nothing in Division 2 or 3 is to be construed as--
(a) conferring a right of action in civil
proceedings in respect of a contravention of
a provision of those Divisions; or
5
(b) conferring a defence to an action in civil
proceedings or otherwise affecting a right of
action in civil proceedings; or
(c) affecting the extent (if any) to which a right
of action arises, or civil proceedings may be
10
taken, with respect to breaches of duties or
obligations imposed by the regulations.
__________________
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Act No.
Part 4--Protection and Control of Rail Operations
s. 33
PART 4--PROTECTION AND CONTROL OF RAIL
OPERATIONS
33. Safety Director may require utility works or rail
operations to stop
(1) If--
5
(a) a utility is carrying out, or proposes to carry
out, works on or in the immediate vicinity of
rail infrastructure; and
(b) the Safety Director reasonably believes the
works threaten, or are likely to threaten, the
10
safety of rail operations--
the Safety Director may, subject to sub-
section (3), give the utility a written direction to
stop, alter or not to start the works.
(2) If--
15
(a) a rail operator is carrying out, or proposes to
carry out, rail operations on land on which
there are works of a utility or within the
immediate vicinity of the works of a utility;
and
20
(b) the Safety Director reasonably believes the
rail operations threaten, or are likely to
threaten, the works or the safe provision by
the utility of (as the case requires) gas,
electricity or other like services--
25
the Safety Director may give the rail operator a
written direction to stop, alter or not to start the
rail operations.
(3) If the utility referred to in sub-section (1) or (2) is
a utility that provides, or intends to provide, gas,
30
electricity or other like services, the Safety
Director must consult with Energy Safe Victoria
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before giving a direction under either of those
sub-sections.
(4) A utility must not fail, or refuse, to comply with a
direction under sub-section (1), unless the utility
has a reasonable excuse.
5
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
(5) A rail operator must not fail, or refuse, to comply
10
with a direction under sub-section (2), unless the
rail operator has a reasonable excuse.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
15
9000 penalty units.
(6) An offence against sub-section (4) or (5) is an
indictable offence.
Note: However, the offence may be heard and determined
20 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
34. Safety Director may direct utility works or rail
operations to be altered, demolished or taken away
(1) Subject to sub-section (4), if works are carried out
contrary to a direction under section 33(1), the
25
Safety Director may, by written notice, direct the
utility to alter, demolish or take away the works
within a specified period of time.
(2) If rail operations are carried out contrary to a
direction under section 33(3), the Safety Director
30
may, by written notice, direct the rail operator
who carried out the rail operations to--
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(a) alter, demolish or take away any rail
infrastructure within a specified period of
time; or
(b) alter any rolling stock operations within a
specified period of time.
5
(3) The period of time specified in a direction under
sub-section (1) or (2) must be a reasonable period
of time.
(4) Before giving a direction under sub-section (1) to
a utility that provides, or intends to provide, gas,
10
electricity or other like services, the Safety
Director must consult with Energy Safe Victoria.
(5) A person given a direction under sub-section (1)
or (2) must not fail or refuse to comply with a
direction under (as the case requires) sub-
15
section (1) or (2), unless the person has a
reasonable excuse.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
20
9000 penalty units.
(6) An offence against sub-section (5) is an indictable
offence.
Note: However, the offence may be heard and determined
25 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
__________________
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s. 35
PART 5--ACCREDITATION OF RAIL INFRASTRUCTURE
AND ROLLING STOCK OPERATIONS
Division 1--Preliminary Matters
35. Purpose of accreditation
The purpose of accreditation under this Part is to
5
attest that a rail operator has demonstrated to the
satisfaction of the Safety Director that the rail
operator has the competence and capacity to
manage the risks to safety associated with the rail
operations for which accreditation was sought.
10
Division 2--Accreditation
36. Offence for certain rail infrastructure managers not
to be accredited
A rail infrastructure manager must not operate, or
allow to be operated, rolling stock on rail
15
infrastructure the rail infrastructure manager
controls unless the rail infrastructure manager--
(a) is accredited under this Part; or
(b) holds an exemption granted under
section 63; or
20
(c) is exempted by the regulations from the
requirement to be accredited under this Part.
Penalty: In the case of a natural person,
1000 penalty units or imprisonment for
12 months or both;
25
In the case of a body corporate,
2500 penalty units.
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37. Rolling stock operators must not operate rolling
stock unless accredited
A rolling stock operator must not operate rolling
stock on rail infrastructure unless the rolling stock
operator--
5
(a) is accredited under this Part; or
(b) holds an exemption granted under
section 63; or
(c) is exempted by the regulations from the
requirement to be accredited under this Part.
10
Penalty: In the case of a natural person,
1000 penalty units or imprisonment for
12 months or both;
In the case of a body corporate,
2500 penalty units.
15
38. Application for accreditation
(1) A rail infrastructure manager may apply to the
Safety Director for accreditation in respect of the
rail infrastructure operations the rail infrastructure
manager carries out or intends to carry out.
20
(2) A rolling stock operator may apply to the Safety
Director for accreditation in respect of the rolling
stock operations the rolling stock operator carries
out or intends to carry out.
(3) An application must be--
25
(a) made in the manner and form determined by
the Safety Director; and
(b) accompanied by--
(i) the application fee set out in the
regulations; and
30
(ii) any other things that are required by the
regulations.
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(4) The Safety Director may require an applicant to--
(a) supply further information specified by the
Safety Director;
(b) verify, by statutory declaration, information
supplied for the purposes of the application.
5
(5) The application, and any further information
supplied by the applicant under sub-section (4),
must be signed in accordance with sub-section (6)
and declared by each signatory to be true and
correct.
10
(6) The application must be signed--
(a) if the applicant is a body corporate--
(i) being a company within the meaning of
the Corporations Act, in accordance
with section 127 of that Act;
15
(ii) in any other case, by each director, or
each member of the committee of
management, of the body corporate;
(b) if the applicant is an unincorporated
association or body, by each member of the
20
committee of management of the association
or body;
(c) if the applicant is a partnership, by each
partner;
(d) if the applicant is an individual, by the
25
individual.
(7) In addition, each signatory referred to in sub-
section (6) must declare that he or she is not a
person who, under Part 2D.6 of the Corporations
Act, is disqualified from managing corporations.
30
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39. Criteria on which accreditation applications by rail
infrastructure managers are to be assessed
The Safety Director must accredit a rail
infrastructure manager in respect of the rail
infrastructure operations the rail infrastructure
5
manager carries out if the Safety Director is
satisfied that--
(a) the rail infrastructure manager--
(i) is accredited in another State or a
Territory of the Commonwealth to
10
carry out rail infrastructure operations
of a similar kind in that State or
Territory; or
(ii) has the competence and capacity to
carry out those operations safely; and
15
(b) the rail infrastructure manager has--
(i) taken all reasonable steps to comply
with Division 3; and
(ii) demonstrated to the Safety Director
that--
20
(A) the rail infrastructure manager's
safety management system
complies with Division 4 of
Part 3; and
(B) the rail infrastructure manager has
25
complied with section 26; and
(iii) the financial capacity, or has public risk
insurance arrangements, to meet
reasonable potential accident liabilities
arising from the carrying out of rail
30
infrastructure operations.
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40. Criteria on which accreditation applications by
rolling stock operators are to be assessed
The Safety Director must accredit a rolling stock
operator in respect of the rolling stock operations
the rolling stock operator carries out if the Safety
5
Director is satisfied that--
(a) the rolling stock operator--
(i) is accredited in another State or a
Territory of the Commonwealth to
carry out rolling stock operations of a
10
similar kind in that State or Territory;
or
(ii) has the competence and capacity to
carry out those operations safely; and
(b) the rolling stock operator has demonstrated
15
to the Safety Director that--
(i) the rolling stock operator has taken all
reasonable steps to comply with
Division 3; and
(ii) the rolling stock operator's safety
20
management system complies with
Division 4 of Part 3; and
(iii) the rolling stock operator has complied
with section 26; and
(c) the rolling stock operator has the financial
25
capacity, or has public risk insurance
arrangements, to meet reasonable potential
accident liabilities arising from the carrying
out of rolling stock operations; and
(d) unless the rolling stock operator is also the
30
rail infrastructure manager who controls the
railway on which the rolling stock will be
operated--the rolling stock operator has an
agreement with the rail infrastructure
manager who controls the railway on which
35
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the rolling stock operator wishes to operate
particular rolling stock, and the agreement
includes appropriate arrangements for the
safe operation of the rolling stock.
41. Accreditation following direction
5
Despite section 40(d), the Safety Director may
accredit a rolling stock operator in respect of the
rolling stock operations the rolling stock operator
carries out even though the rolling stock operator
does not have the agreement referred to in
10
section 40(d) if the Safety Director has directed
the rolling stock operator under section 42 to give
effect to any arrangements specified by the Safety
Director.
42. Safety Director may give directions in relation to
15
rolling stock operator applicants
(1) This section applies if--
(a) the Safety Director is satisfied that a rolling
stock operator who has applied for
accreditation of the rolling stock operations
20
that they carry out, or intends to carry out,
has made a reasonable attempt to obtain the
agreement required by section 40(d) from the
rail infrastructure manager who controls the
railway on which the person proposes to
25
operate rolling stock; and
(b) the Safety Director is satisfied that the rail
infrastructure manager is unreasonably
refusing to enter such an agreement, or is
otherwise unreasonably delaying the
30
negotiation of such an agreement.
(2) The Safety Director may issue a written notice to
the rolling stock operator and the rail
infrastructure manager.
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(3) A notice under sub-section (2)--
(a) must warn the parties of the Safety Director's
powers under this section; and
(b) must warn the parties that the Safety Director
may issue a direction under sub-section (4) at
5
any time after a specified date; and
(c) must contain a copy of this section and
section 41; and
(d) may contain suggested terms concerning the
safe operation of the rolling stock.
10
(4) If a notice is given specifying a date under sub-
section (3)(b) and no agreement has been entered
into by or on that date, the Safety Director--
(a) may determine the arrangements that are to
apply to enable the safe operation of the
15
rolling stock; and
(b) may direct either or both parties to give
effect to the arrangements; and
(c) may specify by when a direction must be
complied with.
20
(5) A direction under sub-section (4)--
(a) must be in writing; and
(b) must set out any arrangements determined by
the Safety Director under that sub-section;
and
25
(c) must be accompanied by a copy of this
section and section 41.
(6) A person who is given a direction under sub-
section (4) must comply with the direction.
Penalty: 100 penalty units.
30
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(7) If a person is guilty of an offence against
sub-section (6), the person is guilty of a further
offence in respect of each day after the day on
which the initial offence was committed during
which the person fails to comply with the
5
direction, and is liable to a penalty of up to
100 penalty units for each such further offence.
(8) This section applies regardless of when the
relevant application for accreditation was made.
43. Safety Director may direct applicants to coordinate
10
and cooperate in their accreditation applications
(1) If the Safety Director--
(a) receives applications from 2 or more rail
operators for the accreditation of rail
operations; and
15
(b) believes that the co-ordinated preparation of
their applications is necessary to ensure that
the rail operations of the applicants are
carried out safely--
the Safety Director may give a direction to the rail
20
operators to co-ordinate their applications.
(2) A direction under sub-section (1) must be in
writing.
(3) A direction under this section may require each
rail operator that is the subject of the direction to
25
provide to another rail operator, also subject to the
direction, information concerning any
circumstances in relation to the carrying out of rail
operations by them that could constitute a hazard
in relation to the carrying out of rail operations by
30
the other rail operator.
(4) A person who is given a direction under sub-
section (1) must comply with the direction.
Penalty: 100 penalty units.
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(5) A rail operator that has co-ordinated the
preparation of their application in accordance with
this section must include in the application
reference to information given by the operator, or
given to, another rail operator in accordance with
5
a direction under this section.
Penalty: 100 penalty units.
44. Time within which Safety Director must make
decision whether to accredit
(1) Subject to this section, the Safety Director must
10
decide whether to accredit an applicant within
6 months of receiving an application from the
applicant.
(2) The Safety Director may, before the expiry of the
period specified in sub-section (1), decide to
15
extend the period within which he or she may
decide whether to accredit an applicant.
(3) If the Safety Director decides to extend the period
within which he or she may decide whether to
accredit an applicant, the Safety Director must
20
notify--
(a) the applicant of that decision and the new
period within which the Safety Director
intends to make his or her decision whether
to accredit the applicant; and
25
(b) the Secretary of that decision.
(4) A notification under sub-section (3) must be in
writing.
(5) The Secretary must include in the Department's
report of operations details of every decision made
30
by the Safety Director under sub-section (2) in the
year to which the relevant report of operations
relates.
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45. Notification and reasons to be given if accreditation
refused
(1) If the Safety Director refuses to accredit an
applicant, the Safety Director must--
(a) notify the applicant--
5
(i) of that refusal; and
(ii) that they have a right to seek review of
the Safety Director's decision under
Part 7; and
(b) give the applicant a statement of reasons for
10
the refusal to accredit the applicant.
(2) A notification under sub-section (1)(a) and a
statement of reasons under sub-section (1)(b) must
be--
(a) in writing; and
15
(b) given to the applicant as soon as practicable
after the Safety Director makes his or her
decision to refuse to accredit the applicant.
46. Restrictions and conditions concerning accreditation
(1) In accrediting a rail infrastructure manager or
20
rolling stock operator, the Safety Director may
limit the accreditation in any way the Safety
Director thinks appropriate.
(2) Without limiting sub-section (1), the Safety
Director may--
25
(a) impose conditions on the accreditation; or
(b) restrict the scope of the accreditation so that
it only applies--
(i) in the case of an accreditation of a rail
infrastructure manager, in respect of
30
part of a railway or of a particular type
of service;
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(ii) in the case of an accreditation of a
rolling stock operator, in respect of part
of a particular type of service or rolling
stock.
(3) An accreditation is also subject to any condition
5
set out in the regulations that applies to the
accreditation.
(4) In addition, an accredited rail operator who is
accredited in another State or a Territory of the
Commonwealth to do anything that is similar to
10
what the operator is accredited to do in Victoria is
subject to the condition that he, she or it must
advise the Safety Director in writing immediately
if the operator's accreditation in the other State or
the Territory expires or is cancelled, suspended,
15
varied, surrendered, withdrawn or revoked.
(5) In addition, it is a condition of accreditation that
an accredited rail operator must take reasonable
steps to ensure that a rail safety worker who
carries out, or is about to carry out, rail safety
20
work for that operator--
(a) does not have more than the prescribed
concentration of alcohol in his or her blood
or breath; or
(b) is not impaired by a drug.
25
(6) If an accredited rail operator who has been
accredited subject to a restriction carries out any
action that is inconsistent with the restriction, the
accredited rail operator is not accredited to carry
out that action for the purposes of section 36
30
or 37.
(7) A condition requiring compliance with any
provision of a code of practice (whether approved
under section 91 or not) is of no effect.
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47. How long accreditation lasts
(1) An accreditation remains in force until--
(a) it is cancelled or surrendered; or
(b) the expiry of any period of time specified by
the Safety Director under
5
section 59(3)(b)(iii) (for disciplinary
reasons).
(2) The Safety Director may give a temporary
accreditation for a period of less than 12 months.
48. Offence to fail to comply with conditions etc.
10
(1) An accredited rail operator must comply with any
condition or restriction imposed on the
accreditation that the operator has been given
notice of.
Penalty: In the case of a natural person,
15
1800 penalty units or imprisonment for
12 months or both;
In the case of a body corporate,
9000 penalty units.
(2) An accredited rail operator must comply with the
20
condition of accreditation set out in section 46(5).
Penalty: 2000 penalty units.
(3) In any proceedings for an offence under sub-
section (2) against an accredited rail operator, the
fact that a rail safety worker has been found guilty
25
of an offence against section 76(1)(a) or (b) while
carrying out rail safety work for that operator is
admissible in evidence.
(4) An offence against sub-section (1) is an indictable
offence.
30
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
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Division 3--Risk Management Requirements for
Accreditation
49. Application of Division
(1) This Division applies to every rail infrastructure
manager and rolling stock operator who applies
5
under Division 2 to be accredited under this Part
in respect of (as the case requires) the rail
infrastructure operations or rolling stock
operations they carry out or intend to carry out.
(2) The rail infrastructure manager or rolling stock
10
operator must, as part of their application, include
information, in writing, that evidences that they
have taken all reasonable steps to comply with the
requirements of this Division.
50. Identification of incidents and hazards, and risk
15
assessment
(1) A rail infrastructure manager must--
(a) identify all incidents which could occur on or
at rail infrastructure or while carrying out rail
infrastructure operations; and
20
(b) identify all hazards that could cause, or
contribute to causing, those incidents.
(2) A rolling stock operator must--
(a) identify all incidents which could occur
while carrying out rolling stock operations;
25
and
(b) identify all hazards that could cause, or
contribute to causing, those incidents.
(3) A rail infrastructure manager or rolling stock
operator must document all aspects of any
30
identification required by (as the case requires)
sub-section (1) or (2), including the methods and
criteria used for identifying the incidents and
hazards.
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(4) A rail operator must conduct a comprehensive and
systematic assessment in relation to all possible
incidents and all hazards identified in accordance
with (as the case requires) sub-section (1) or (2).
(5) An assessment must involve an examination and
5
analysis of the hazards and incidents identified
in accordance with (as the case requires) sub-
section (1) or (2) that provide the rail operator
with a detailed understanding of all aspects of risk
to safety associated with the incidents,
10
including--
(a) the nature of each hazard and incident; and
(b) the likelihood of each hazard causing an
incident; and
(c) in the event of an incident occurring--
15
(i) its magnitude; and
(ii) the severity of its consequences of the
incident; and
(d) the range of control measures considered.
(6) In conducting an assessment, the rail operator
20
must--
(a) consider hazards cumulatively as well as
individually; and
(b) use assessment methodologies (whether
quantitative or qualitative, or both) that are
25
appropriate to the hazards being considered.
(7) The rail operator must document all aspects of the
assessment, and the documentation must--
(a) describe the methodology used in the
examination and analysis; and
30
(b) state all the matters specified in sub-
section (5)(a) to (d); and
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(c) contain judgments as to the matters specified
in sub-section (5)(a) and (b), and reasons for
those judgments; and
(d) contain, in relation to the range of control
measures considered--
5
(i) statements as to their viability and
effectiveness; and
(ii) reasons for selecting certain control
measures and rejecting others.
(8) In this section--
10
"incident" includes major incident.
51. Measures to control likelihood, magnitude and
severity of consequences of incidents
A rail operator must adopt measures that eliminate
or, if it is not practicable to eliminate, that reduce,
15
so far as is reasonably practicable--
(a) the likelihood of an incident referred to in
section 50 occurring; or
(b) in the event of an incident referred to in
section 50 occurring--
20
(i) the magnitude of the incident; and
(ii) the severity of the consequences of the
incident.
52. Emergency planning
(1) A rail infrastructure manager must prepare an
25
emergency plan for--
(a) the rail infrastructure the rail infrastructure
manager controls; and
(b) the rail infrastructure operations the rail
infrastructure manager carries out.
30
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(2) A rolling stock operator must prepare an
emergency plan for the rolling stock operations
the rolling stock operator carries out.
(3) The emergency plan so prepared by a rail
infrastructure manager or rolling stock operator
5
must be included among the measures adopted
under section 51.
(4) The emergency plan must--
(a) address and include the matters that are
prescribed; and
10
(b) be prepared in--
(i) conjunction with emergency services
and any other person who is prescribed;
and
(ii) accordance with the regulations; and
15
(c) be kept and maintained in accordance with
the regulations; and
(d) be provided to the emergency services and
any other person who is prescribed; and
(e) be tested in accordance with the regulations.
20
Division 4--Variation and Surrender of Accreditation
53. Accredited rail operator may apply for variation or
revocation of conditions and restrictions
(1) An accredited rail operator may apply to the
Safety Director to--
25
(a) vary a condition or restriction of an
accreditation; or
(b) revoke a condition or restriction of an
accreditation.
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(2) An application must--
(a) be in writing; and
(b) set out the reasons for the variation or
revocation of the condition or restriction.
(3) The Safety Director must consider an application
5
he or she receives under this section.
(4) The Safety Director may, as the case requires--
(a) grant or refuse to grant the variation; or
(b) agree or refuse to agree to the revocation.
(5) If the Safety Director refuses to grant a variation
10
or refuses to agree to a revocation, the Safety
Director must--
(a) notify the accredited rail operator--
(i) of that refusal; and
(ii) that they have a right to seek review of
15
the Safety Director's decision under
Part 7; and
(b) give the accredited rail operator a statement
of reasons for the refusal.
(6) A notification under sub-section (5)(a) and a
20
statement of reasons under sub-section (5)(b) must
be--
(a) in writing; and
(b) given to the accredited rail operator as soon
as practicable after the Safety Director
25
makes his or her decision to refuse to grant
the variation or to agree to the revocation
(as the case requires).
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54. Application for variation of accreditation is
required in certain cases
(1) An accredited rail operator must apply to the
Safety Director for a variation of the accreditation
if the accredited rail operator proposes to make a
5
change to, or to the manner of carrying out,
accredited rail operations, being a change that
might reasonably be expected to--
(a) change the nature, character and scope of the
accredited rail operations with the result that
10
the operations are not within the competence,
capacity and systems for which the
accredited rail operator is accredited; or
(b) require a significant variation to a risk
assessment conducted under section 50 if a
15
risk assessment were required to be
conducted at the time of the change.
(2) An accredited rail operator must not make any
change to, or to the manner of carrying out,
accredited rail operations if--
20
(a) the change requires the accredited rail
operator to apply for variation to the
conditions or restrictions of the accreditation
to which the accredited rail operator is
subject; and
25
(b) the variation has not been granted.
Penalty: In the case of a natural person,
1000 penalty units or imprisonment for
12 months or both;
In the case of a body corporate,
30
2500 penalty units.
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(3) An application under this section must be--
(a) in writing; and
(b) describe, as the case requires--
(i) the nature, character and scope of the
change in rail operations which will
5
result in the rail operations not being
within the competence, capacity and
systems for which the accredited rail
operator is accredited; or
(ii) all possible major incidents and all
10
hazards that were not identified in any
previous risk assessment conducted
under section 50.
(4) The Safety Director must consider an application
he or she receives under this section.
15
(5) The Safety Director may grant or refuse to grant
the variation.
(6) If the Safety Director refuses to grant a variation,
the Safety Director must--
(a) notify the accredited rail operator--
20
(i) of that refusal; and
(ii) that they have a right to seek review of
the Safety Director's decision under
Part 7; and
(b) give the accredited rail operator a statement
25
of reasons for the refusal.
(7) A notification under sub-section (6)(a) and a
statement of reasons under sub-section (6)(b) must
be--
(a) in writing; and
30
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(b) given to the accredited rail operator as soon
as practicable after the Safety Director
makes his or her decision to refuse to grant
the variation.
(8) The Safety Director may issue guidelines relating
5
to the identification of changes that require
applications for variation of an accreditation.
55. Safety Director may vary, revoke or impose new
conditions or restrictions of an accreditation on own
initiative
10
(1) The Safety Director may at any time on his or her
own initiative--
(a) vary or revoke a condition or restriction of
an accreditation; or
(b) impose a new condition or restriction.
15
(2) Before taking action under this section, the Safety
Director must--
(a) give the accredited rail operator written
notice of the action that the Safety Director
proposes to take; and
20
(b) allow the accredited rail operator to make
written representations about the intended
action within 10 business days (or any other
period that the Safety Director and the
accredited rail operator agree upon).
25
(3) Sub-section (2) does not apply if the Safety
Director considers it necessary to take immediate
action in the interests of public safety.
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(4) The Safety Director must--
(a) give the accredited rail operator--
(i) details of any action taken under sub-
section (1); and
(ii) details of any change to the conditions
5
or restrictions of the accreditation that
occur as a result of any amendment to
the regulations; and
(iii) a statement of reasons for any action
taken under sub-section (1); and
10
(b) notify the accredited rail operator that the
operator has a right to seek review of the
Safety Director's decision under Part 7.
(5) The Safety Director must give the details, the
statement of reasons and notice under sub-
15
section (4) in writing.
56. Surrender of accreditation
(1) An accredited rail operator may request the Safety
Director to consent to the surrender of the
accredited rail operator's accreditation.
20
(2) A request must be in writing.
(3) On receipt of a request, the Safety Director may
consent to the surrender of the accreditation.
(4) If the Safety Director refuses to consent to the
surrender of an accreditation, the Safety Director
25
must--
(a) notify the accredited rail operator--
(i) of that refusal; and
(ii) that they have a right to seek review of
the Safety Director's decision under
30
Part 7; and
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(b) give the rail operator a statement of reasons
for the refusal.
(5) A notification under sub-section (4)(a) and a
statement of reasons under sub-section (4)(b) must
be--
5
(a) in writing; and
(b) given to the rail operator as soon as
practicable after the Safety Director makes
his or her decision to refuse consent to the
surrender of the accreditation.
10
57. False or misleading information
(1) A person must not in, or in relation to an
application for--
(a) an accreditation; or
(b) a variation of accreditation; or
15
(c) a variation of a condition or restriction of an
accreditation--
give information that is false or misleading in a
material detail.
Penalty: In the case of a natural person,
20
60 penalty units or 6 months
imprisonment or both;
In the case of a body corporate,
300 penalty units.
(2) In a proceeding for an offence against sub-
25
section (1), it is a defence to the charge for the
accused to prove that at the time at which the
offence is alleged to have been committed, the
accused believed on reasonable grounds--
(a) in the case of false information--that the
30
information was true; or
(b) in the case of misleading information--that
the information was not misleading.
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Division 5--Disciplinary Action
58. Power of immediate suspension
(1) The Safety Director may, subject to and in
accordance with the regulations (if any),
immediately suspend an accreditation if the Safety
5
Director considers it necessary to do so--
(a) in the interests of public safety; or
(b) to protect the safety of rail safety workers.
(2) The Safety Director may immediately suspend an
accreditation under this section without holding an
10
inquiry under section 59.
(3) A suspension under this section may be for a
specified period or until a specified event or until
a further determination is made by the Safety
Director.
15
(4) An accredited rail operator whose accreditation
has been suspended under this section may, by
notice served on the Safety Director, require the
Safety Director to hold an inquiry under
section 59.
20
(5) The Safety Director must commence an inquiry
under section 59 within 7 days after the service on
him or her of a notice under sub-section (4).
(6) If an inquiry is held under section 59, a
suspension under this section, if then still in
25
effect, ceases to have effect on the completion of
that inquiry.
(7) Nothing in this section limits any power of the
Safety Director under section 59.
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59. Disciplinary action against an accredited rail
operator
(1) The Safety Director may hold an inquiry for the
purpose of determining whether proper cause
exists for taking disciplinary action against a
5
relevant person.
(2) There is proper cause for taking disciplinary
action against a relevant person if the relevant
person--
(a) has contravened this Act or Division 4B of
10
Part VII of the Transport Act 1983
(regardless of whether or not the person has
been prosecuted in relation to that
contravention); or
(b) has not complied with Division 4 of Part 3;
15
or
(c) does not have the financial capacity, or
public risk insurance arrangements, to meet
reasonable potential accident liabilities
arising from the carrying out of rail
20
infrastructure operations or rolling stock
operations (as the case requires); or
(d) has not demonstrated to the Safety Director
that the person is able to carry out rail
infrastructure operations or rolling stock
25
operations (as the case requires) safely; or
(e) obtained the accreditation improperly; or
(f) has not paid any fee required by the
regulations.
(3) If, following an inquiry, the Safety Director is
30
satisfied that proper cause for taking disciplinary
action against the relevant person exists, the
Safety Director may do one or more of the
following--
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(a) reprimand the relevant person;
(b) if the relevant person is an accredited rail
operator--
(i) warn the person that should further
proper cause for taking disciplinary
5
action be found to exist, the person may
be disqualified from holding an
accreditation;
(ii) impose one or more new conditions or
restrictions of the accreditation;
10
(iii) impose an expiry date on the
accreditation;
(iv) suspend the accreditation for a
specified period or until a specified
event or until a further determination is
15
made by the Safety Director;
(v) cancel the accreditation immediately or
with effect from a specified later date;
(c) disqualify the relevant person from holding
an accreditation--
20
(i) until a specified event; or
(ii) until a further determination is made by
the Safety Director.
(4) In this section--
"relevant person" means an accredited rail
25
operator or a person who was an accredited
rail operator.
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60. Procedure and powers concerning disciplinary
inquiries
(1) In exercising his or her powers under section 59,
the Safety Director--
(a) must act fairly and according to equity and
5
good conscience without regard to
technicalities or legal forms; and
(b) is not required to conduct himself or herself
in a formal manner; and
(c) is not bound by rules or practice as to
10
evidence but may inform himself or herself
in relation to any matter in any manner that
he or she thinks fit.
(2) For the purpose of, and in connection with, any
inquiry under section 59, the Safety Director has
15
the powers conferred by sections 14, 15, 16, 20,
20A and 21A of the Evidence Act 1958 on a
board appointed by the Governor in Council and
those sections apply as if the Safety Director was
the sole member of the board.
20
(3) The procedure of the Safety Director on or in
connection with an inquiry under section 59 is in
his or her discretion.
61. Effect of suspension
A person whose accreditation is suspended is not
25
accredited during the period of suspension.
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Division 6--Miscellaneous
62. Accreditation cannot be transferred
(1) An accreditation--
(a) is personal to the person who holds it;
(b) is not capable of being transferred or
5
assigned to any other person or otherwise
dealt with by the person who holds it;
(c) does not vest by operation of law in any
other person.
(2) A purported transfer, assignment or lease of an
10
accreditation and any other purported dealing with
an accreditation by the person who holds it is of
no effect.
(3) This section has effect despite anything in any Act
or rule of law to the contrary.
15
63. Accreditation exemptions for private siding rail
operations
(1) The following persons may apply to the Safety
Director for an exemption from the requirement to
be accredited under this Part--
20
(a) a rail infrastructure manager who carries out
rail infrastructure operations using or in
relation to a private siding;
(b) a rolling stock operator who carries out
rolling stock operations in a private siding.
25
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(2) An application under this section must be--
(a) in writing; and
(b) accompanied by--
(i) an interface co-ordination plan that
complies with the prescribed
5
requirements and identifies the persons
responsible for the construction,
operation and maintenance of the
private siding; and
(ii) such other information as the Safety
10
Director reasonably requires to enable
the application to be considered; and
(iii) the prescribed fee.
(3) On receipt of an application under this section, the
Safety Director may grant or refuse to grant an
15
exemption.
(4) In deciding whether to exempt a rail infrastructure
manager or rolling stock operator under sub-
section (3), the Safety Director must have regard
to--
20
(a) the scale and complexity of the private
siding; and
(b) the extent of the railway track layout and
other rail infrastructure of the private siding;
and
25
(c) the risks to safety associated with the
operation and use of the private siding; and
(d) the interface co-ordination plan
accompanying the application; and
(e) any other matters that the Safety Director
30
considers relevant.
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(5) An exemption granted under this section is subject
to the terms, conditions and limitations specified
in the exemption that are--
(a) imposed by the Safety Director; or
(b) prescribed by the regulations.
5
(6) A person granted an exemption under this section
must comply with the terms, conditions and
limitations that are specified in the exemption.
Penalty: In the case of a natural person,
1000 penalty units or imprisonment for
10
12 months or both;
In the case of a body corporate,
2500 penalty units.
(7) If the Safety Director refuses to grant an
exemption, the Safety Director must--
15
(a) notify the applicant--
(i) of that refusal; and
(ii) that they have a right to seek review of
the Safety Director's decision under
Part 7; and
20
(b) give the applicant a statement of reasons for
the refusal.
(8) A notification under sub-section (7)(a) and a
statement of reasons under sub-section (7)(b) must
be--
25
(a) in writing; and
(b) given to the applicant as soon as practicable
after the Safety Director makes his or her
decision to refuse to grant the exemption.
(9) The Safety Director may issue guidelines as to
30
how the Safety Director will have regard to the
criteria set out in sub-section (4).
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64. Revocation of accreditation exemptions for private
siding rail operations
(1) If the Safety Director considers that a private
siding--
(a) used by an exempted rail infrastructure
5
manager for the carrying out of rail
infrastructure operations; or
(b) in relation to which an exempted rail
infrastructure manager carries out rail
infrastructure operations; or
10
(c) in which an exempted rolling stock operator
carries out rolling stock operations--
no longer meets the criteria set out in section
63(4), the Safety Director may, by notice, revoke
(as the case requires) the exempted rail
15
infrastructure manager's or exempted rolling stock
operator's exemption.
(2) A notice must be--
(a) in writing; and
(b) given to the exempted rail infrastructure
20
manager or exempted rolling stock operator
as soon as practicable after the Safety
Director makes his or her decision to revoke
the exemption.
(3) A revocation takes effect on the date stated in the
25
notice.
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(4) In this section--
"exempted rail infrastructure manager" means
a rail infrastructure manager who holds an
exemption granted under section 63;
"exempted rolling stock operator" means a
5
rolling stock operator who holds an
exemption granted under section 63;
"exemption" means an exemption granted under
section 63.
65. Accredited rail operators must demonstrate ongoing
10
compliance with risk management requirements
(1) An accredited rail operator must, within the
relevant period, demonstrate to the Safety Director
that the accredited rail operator has taken all
reasonable steps to comply with the requirements
15
in sections 50 to 52.
(2) In this section--
"relevant period" means--
(a) 5 years after the date on which the
accredited rail operator was accredited
20
in respect of the rail operations the
operator carries out or any other period
that is prescribed for the purposes of
this paragraph; and
(b) every 5 years or any other period that is
25
prescribed thereafter.
66. Exemption from ongoing compliance with risk
management requirements
(1) In this section--
"accredited tourist and heritage railway
30
operator" means an accredited rail operator
declared under sub-section (10) to be an
accredited tourist and heritage railway
operator for the purposes of this section.
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(2) An accredited tourist and heritage railway
operator may apply to the Safety Director for an
exemption from the requirement to comply with
section 65.
(3) An application under this section must be--
5
(a) in writing; and
(b) accompanied by--
(i) such other information as the Safety
Director reasonably requires to enable
the application to be considered; and
10
(ii) the prescribed fee.
(4) On receipt of an application under this section, the
Safety Director may grant or refuse to grant an
exemption.
(5) In deciding whether to grant an exemption, the
15
Safety Director must have regard to--
(a) the scale and complexity of the accredited
rail operations carried out by the accredited
tourist and heritage railway operator; and
(b) the extent of the railway track layout and
20
other rail infrastructure used for the carrying
out by the accredited tourist and heritage
railway operator of accredited rail
operations; and
(c) the risks to safety associated with the
25
carrying out by the accredited tourist and
heritage railway operator of accredited rail
operations; and
(d) any other matters that the Safety Director
considers relevant.
30
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(6) An exemption granted under this section is subject
to the terms, conditions and limitations specified
in the exemption that are--
(a) imposed by the Safety Director; or
(b) prescribed by the regulations.
5
(7) If the Safety Director refuses to grant an
exemption, the Safety Director must--
(a) notify the applicant--
(i) of that refusal; and
(ii) that they have a right to seek review of
10
the Safety Director's decision under
Part 7; and
(b) give the applicant a statement of reasons for
the refusal.
(8) A notification under sub-section (7)(a) and a
15
statement of reasons under sub-section (7)(b) must
be--
(a) in writing; and
(b) given to the applicant as soon as practicable
after the Safety Director makes his or her
20
decision to refuse to grant the exemption.
(9) The Safety Director may issue guidelines as to
how the Safety Director will have regard to the
criteria set out in sub-section (5).
(10) The Minister, by notice published in the
25
Government Gazette, may declare an accredited
rail operator to be an accredited tourist and
heritage railway operator if the Minister considers
that the operator is carrying out accredited rail
operations for the purpose of operating a tourist
30
and heritage railway.
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67. Accredited rail operator must investigate railway
accidents and incidents
(1) An accredited rail operator must investigate and
prepare a report into any railway accident or
incident that may affect accredited rail operations
5
the operator carries out.
(2) A report under sub-section (1) must be prepared in
accordance with the regulations.
68. Accredited rail operator must put into effect
emergency plan without delay
10
(1) An accredited rail operator who has prepared an
emergency plan must put the emergency plan into
effect without delay if--
(a) a major incident occurs; or
(b) an incident occurs which could reasonably
15
be expected to lead to a major incident.
Penalty: In the case of a natural person,
1800 penalty units or imprisonment for
12 months or both;
In the case of a body corporate,
20
9000 penalty units.
(2) An offence against sub-section (1) is an indictable
offence.
Note: However, the offence may be heard and determined
25 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
69. Accredited rail operator must notify emergency
services and others of a major incident
(1) An accredited rail operator must, immediately
after becoming aware of the occurrence of a major
30
incident, notify--
(a) the emergency services with whom the
accredited rail operator prepared the
emergency plan in conjunction with; and
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(b) the Safety Director; and
(c) the Chief Investigator--
of the occurrence of the major incident.
Penalty: In the case of a natural person,
1800 penalty units or imprisonment for
5
12 months or both;
In the case of a body corporate,
9000 penalty units.
(2) An offence against sub-section (1) is an indictable
offence.
10
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
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PART 6--ALCOHOL AND OTHER DRUG CONTROLS FOR
RAIL SAFETY WORKERS
Division 1--Preliminary Matters
70. Definitions
In this Part--
5
"accident" means an occurrence on a railway that
involves the death or injury of a person or
damage to property arising out of the
operation of rolling stock;
"irregular incident" means an occurrence on a
10
railway that is not an accident but involves a
breach of the operating rules or procedures
of the railway.
71. Presumptions in relation to presence of
concentrations of alcohol and other drugs
15
(1) For the purposes of this Part if it is established
that at any time within 3 hours after an alleged
offence against section 76(1)(a), a certain
concentration of alcohol was present in the blood
or breath of the rail safety worker charged with
20
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.
25
(2) For the purposes of this Part if it is established
that at any time within 3 hours after an alleged
offence against section 76(1)(b), a certain drug
was present in the body of the rail safety worker
charged with the offence it must be presumed,
30
until the contrary is proved, that that drug was
present in the worker's body at the time at which
the offence is alleged to have been committed.
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(3) For the purposes of an alleged offence against
section 76(1)(g) or (h) 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
5
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
10
probabilities by sworn evidence given by him or
her which is corroborated by the material evidence
of another person.
(4) For the purposes of an alleged offence against
section 76(1)(b) it must be presumed that a drug
15
found by an analyst to be present in the sample of
blood or urine 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
20
charged on the balance of probabilities by sworn
evidence given by him or her which is
corroborated by the material evidence of another
person.
72. When a rail safety worker is not to be taken to be
25
impaired
For the purposes of sections 79 and 80, a rail
safety worker is not to be taken to be impaired
unless his or her behaviour or appearance is such
as to give rise to a reasonable suspicion that he or
30
she is unable to carry out rail safety work
properly.
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73. When a rail safety worker is to be regarded as being
about to carry out rail safety work
For the purposes of 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 his or her
5
place of work but has not yet begun work.
74. Findings 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
10
paragraphs of section 76(1) or against that section
has at any time been found guilty or convicted
of--
(a) an offence against the same or any other of
those paragraphs or against that section; or
15
(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.
75. Entry into residential premises not allowed without
20
a warrant
For the avoidance of doubt it is declared that
nothing in this Part, or Division 4B of Part VII of
the Transport Act 1983, requires a person who is
in residential premises to allow a transport safety
25
officer or a member of the police force to enter
that premises without a warrant.
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Division 2--Offences, Testing and Analysis
76. Offences involving alcohol
(1) A rail safety worker is guilty of an offence if he or
she--
(a) carries out rail safety work while more than
5
the prescribed concentration of alcohol is
present in his or her blood or breath; or
(b) carries out rail safety work while impaired
by a drug; or
(c) refuses to undergo a preliminary breath test
10
in accordance with section 77 when required
under that section to do so; or
(d) refuses to undergo an assessment of drug
impairment in accordance with section 79
when required under that section to do so or
15
refuses to comply with any other
requirement made under section 79(1); or
(e) refuses to comply with a requirement made
under section 78(1), (2) or (9); or
(f) refuses to comply with a requirement made
20
under section 80(1); or
(g) within 3 hours after having carried out rail
safety work furnishes a sample of breath for
analysis by a breath analysing instrument
under section 78 and--
25
(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 his or her breath; and
30
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(ii) the concentration of alcohol indicated
by the analysis to be present in his or
her breath was not due solely to the
consumption of alcohol after having
carried out the rail safety work; or
5
(h) has had a sample of blood taken from him or
her in accordance with section 78 or 82
within 3 hours after having carried out rail
safety work and--
(i) the sample has been analysed within
10
12 months after it was taken by a
properly qualified analyst within the
meaning of section 83 and the analyst
has found that at the time of analysis
more than the prescribed concentration
15
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
20
of alcohol after having carried out the
rail safety work.
(2) A rail safety worker may be convicted or found
guilty of an offence under sub-section (1)(c), (d),
(e) or (f) even if--
25
(a) in the case of an offence under paragraph (c),
a prescribed device was not presented to the
worker at the time of the making of the
requirement; and
(b) in the case of an offence under
30
paragraph (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; and
35
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(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; and
5
(c) in the case of an offence under
paragraph (e)--
(i) a breath analysing instrument was not
available at the place where the
requirement was made at the time it
10
was made; and
(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; and
15
(iii) the person requiring a sample of blood
had not nominated a registered medical
practitioner or approved health
professional to take the sample; and
(iv) a registered medical practitioner or
20
approved health professional was not
present at the place where the
requirement was made at the time it
was made; and
(d) in the case of an offence under
25
paragraph (f)--
(i) the person requiring a sample of blood
had not nominated a registered medical
practitioner or approved health
professional to take the sample; and
30
(ii) the person requiring a sample of urine
had not nominated a registered medical
practitioner or approved health
professional to whom the sample was to
be furnished for analysis; and
35
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(iii) a registered medical practitioner or
approved health professional was not
present at the place where the
requirement was made at the time it
was made.
5
(3) To avoid doubt, in proceedings for an offence
under sub-section (1)(e) a state of affairs or
circumstance referred to in sub-section (2)(c)(i)
or (ii) is not a reason of a substantial character for
a refusal for the purposes of section 78(8).
10
(4) A rail safety worker who is guilty of an offence
under sub-section (1) is liable--
(a) in the case of a first offence, to a fine not
exceeding 12 penalty units; and
(b) in the case of a subsequent offence, to a fine
15
not exceeding 25 penalty units or to
imprisonment for a term of not more than
3 months.
(5) In proceedings for an offence under sub-section
(1)(b), proof that--
20
(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 he
or she carried out rail safety work; and
25
(c) the behaviour of the rail safety worker on an
assessment of drug impairment carried out
under section 79 was consistent with the
behaviour usually associated with a person
who has consumed or used that drug or those
30
drugs; and
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(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--
5
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.
(6) It is a defence to a charge under sub-section (1)(g)
for the person charged to prove that the breath
10
analysing instrument used was not on that
occasion in proper working order or properly
operated.
(7) It is a defence to a charge under sub-section (1)(h)
for the person charged to prove that the result of
15
the analysis was not a correct result.
(8) In any proceedings for an offence under sub-
section (1)(g) or (h) evidence as to the effect of
the consumption of alcohol on the defendant is
admissible for the purpose of rebutting the
20
presumption created by section 71(3) but is
otherwise inadmissible.
(9) On convicting a rail safety worker, or finding a
rail safety worker guilty, of an offence under sub-
section (1) the court must cause to be entered in
25
the records of the court--
(a) in the case of an offence under sub-section
(1)(a), the level of concentration of alcohol
found to be present in that person's blood or
breath; and
30
(b) in the case of an offence under sub-section
(1)(g), the level of concentration of alcohol
found to be recorded or shown by the breath
analysing instrument; and
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(c) in the case of an offence under sub-section
(1)(h), the level of concentration of alcohol
found to be present in the sample of blood.
77. Preliminary breath tests
(1) A transport safety officer may at any time require
5
a rail safety worker whom he or she believes on
reasonable grounds is about to carry out rail safety
work to undergo a preliminary breath test by a
prescribed device before carrying out that work.
(2) A transport safety officer or, subject to sub-
10
section (3), a member of the police force may
require--
(a) a rail safety worker whom he or she believes
on reasonable grounds--
(i) is carrying out rail safety work; and
15
(ii) has alcohol present in his or her breath;
or
(b) a rail safety worker whom he or she believes
on reasonable grounds has within the last
3 preceding hours carried out rail safety
20
work on a railway when an accident or
irregular incident occurred involving the rail
safety worker--
to undergo a preliminary breath test by a
prescribed device.
25
(3) A member of the police force only has power to
require a rail safety worker to undergo a
preliminary breath test under sub-section (2)(b) in
the case of an irregular incident if--
(a) he or she has contacted a person nominated
30
for the purposes of this provision by the
person or body responsible for the operation
of the railway; and
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(b) the person contacted has confirmed that an
irregular incident did occur and has agreed
that it is appropriate to conduct a preliminary
breath test; and
(c) that person is unable or likely to be unable,
5
after making all reasonable efforts, to
arrange for a preliminary breath test to be
conducted on the rail safety worker by a
transport safety officer within the 3 hours
period.
10
(4) A rail safety worker required to undergo a
preliminary breath test must do so by exhaling
continuously into the device to the satisfaction of
the transport safety officer or member of the
police force.
15
(5) A rail safety worker is not obliged to undergo a
preliminary breath test if more than 3 hours have
passed since the rail safety worker last carried out
rail safety work.
(6) A rail safety worker who, in the course of a period
20
of duty is unexpectedly required to carry out rail
safety work, may request a transport safety officer
to conduct on him or her a preliminary breath test
by a prescribed device.
(7) A transport safety officer must comply with a
25
request made under sub-section (6).
Penalty: 12 penalty units.
(8) The result of a preliminary breath test conducted
under this section is not admissible against the rail
safety worker tested in a proceeding for an
30
offence against section 76(1).
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(9) However, the result of a preliminary breath test
that was conducted under this section is
admissible against the rail safety worker tested in
a disciplinary proceeding unless the test was
conducted at the request of the rail safety worker
5
under sub-section (6).
(10) A member of the police force who conducts a
preliminary breath test under this section must
ensure that the operation of the railway is
disrupted no more than is reasonably necessary as
10
a result of the testing.
78. Breath analysis
(1) If a rail safety worker undergoes a preliminary
breath test when required by a transport safety
officer or a member of the police force under
15
section 77 to do so and--
(a) the test in the opinion of the transport safety
officer or member of the police force in
whose presence it is made indicates that the
rail safety worker's breath contains alcohol;
20
or
(b) the rail safety worker, in the opinion of
the transport safety officer or member of
the police force, refuses or fails to carry
out the test in the manner specified in
25
section 77(4)--
any transport safety officer or, if the requirement
for the preliminary breath test was made by a
member of the police force, any member of the
police force may require the rail safety worker to
30
furnish a sample of breath for analysis by a breath
analysing instrument and for that purpose may
further require the rail safety worker to
accompany a transport safety officer or member of
the police force to a police station or other place
35
where the sample of breath is to be furnished and
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to remain there until the rail safety worker has
furnished the sample of breath and been given the
certificate referred to in sub-section (5) or until
3 hours after the carrying out of the rail safety
work, whichever is sooner.
5
(2) A transport safety officer or member of the police
force may require any rail safety worker who is
required to undergo a drug assessment under
section 79 to furnish a sample of breath for
analysis by a breath analysing instrument and
10
may, for that purpose, require the rail safety
worker to remain at the place at which the rail
safety worker is required to remain for the
purposes of the drug assessment until--
(a) the person has furnished the sample of breath
15
and been given the certificate referred to in
sub-section (5) and the drug assessment has
been carried out; or
(b) 3 hours after the carrying out of rail safety
work--
20
whichever is the sooner.
(3) The person who required a sample of breath under
sub-section (1) or (2) may require the rail safety
worker who furnished it to furnish one or more
further samples if it appears to him or her that the
25
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
because the amount of sample furnished was
30
insufficient or because of a power failure or
malfunctioning of the instrument or for any other
reason whatsoever.
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(4) A breath analysing instrument must be operated
by a person authorised to do so by the Chief
Commissioner of Police.
(5) As soon as practicable after a sample of a rail
safety worker's breath is analysed by means of a
5
breath analysing instrument the person operating
the instrument must sign and give to the rail safety
worker whose breath has been analysed a
certificate containing the prescribed particulars
produced by the breath analysing instrument of
10
the concentration of alcohol indicated by the
analysis to be present in his or her breath.
(6) A rail safety worker who furnishes a sample of
breath under this section must do so by exhaling
continuously into the instrument to the satisfaction
15
of the person operating it.
(7) 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 rail safety worker
last carried out rail safety work.
20
(8) 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 he or she
satisfies the court that there was some reason of a
substantial character for the refusal, other than a
25
desire to avoid providing information which might
be used against him or her.
(9) The person who required a sample of breath under
sub-section (1), (2) or (3) from a rail safety
worker may require the rail safety worker to allow
30
a registered medical practitioner or an approved
health professional nominated by the person
requiring the sample to take from him or her a
sample of blood for analysis if it appears to him or
her that--
35
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(a) the rail safety 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
5
of measuring in grams per 210 litres of
exhaled air the concentration of alcohol
present in any sample of breath furnished by
the rail safety worker for any reason
whatsoever--
10
and for that purpose may further require that rail
safety worker to accompany a transport safety
officer or a member of the police force to a place
where the sample is to be taken and to remain
there until the sample has been taken or until
15
3 hours after the carrying out of the rail safety
work, whichever is sooner.
(10) The registered medical practitioner or approved
health professional who takes a sample of blood
under sub-section (9) must deliver a part of the
20
sample to the person who required it to be taken
and another part to the rail safety worker from
whom it was taken.
(11) A rail safety worker who allows the taking of a
sample of his or her blood in accordance with sub-
25
section (9) must not be convicted or found guilty
of refusing to furnish under this section a sample
of breath for analysis.
(12) A person must not hinder or obstruct a registered
medical practitioner or an approved health
30
professional attempting to take a sample of the
blood of any other person in accordance with sub-
section (9).
Penalty: 12 penalty units.
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(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
5
the practitioner or approved health professional
believed on reasonable grounds was allowed to be
taken under sub-section (9).
(14) A rail safety worker who is required under this
section to furnish a sample of breath for analysis
10
may, immediately after being given the certificate
referred to in sub-section (5), request the person
making the requirement to arrange for the taking
in the presence of a member of the police force of
a sample of the rail safety worker's blood for
15
analysis at the rail safety worker's own expense by
a registered medical practitioner or an approved
health professional nominated by the member of
the police force.
(15) A part of a sample of blood taken under sub-
20
section (14) must be delivered to the person who
required the sample of breath under this section.
(16) Nothing in sub-section (14) relieves a rail safety
worker from any penalty under section 76(1)(e)
for refusing to furnish a sample of breath.
25
(17) Evidence derived from a sample of breath
furnished in accordance with a requirement made
under this section is not rendered inadmissible by
a failure to comply with a request under sub-
section (14) if reasonable efforts were made to
30
comply with the request.
(18) If the question 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
35
by a rail safety worker is relevant on a hearing for
an offence against section 76(1) then, without
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affecting the admissibility of any evidence which
might be given apart from the provisions of this
sub-section, a document--
(a) purporting to be a print-out produced by that
instrument in respect of that sample; and
5
(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.
10
(19) A document referred to in sub-section (18) 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
15
1986 and not to the Rail Safety Act 2005 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
20
purposes as a reference to the Rail Safety Act
2005.
79. Drug assessment
(1) A transport safety officer may at any time require
a rail safety worker whom he or she believes on
25
reasonable grounds is about to carry out, or is
carrying out, rail safety work to undergo an
assessment of drug impairment if in the opinion of
the transport safety officer, that rail safety
worker's behaviour or appearance indicates that
30
the rail safety worker may be impaired for a
reason other than alcohol alone.
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(2) A transport safety officer or, subject to sub-
section (3), a member of the police force, may
require--
(a) a rail safety worker whom he or she believes
on reasonable grounds has within the last
5
3 preceding hours carried out rail safety
work on a railway when an accident or
irregular incident occurred involving the rail
safety worker; or
(b) a rail safety worker whom he or she has
10
required under section 77 to undergo a
preliminary breath test; or
(c) a rail safety worker required under section 78
to furnish a sample of breath or from whom a
sample of blood was required to be taken
15
under section 78(9)--
to undergo an assessment of drug impairment if,
in the opinion of the transport safety officer or
member of the police force, that rail safety
worker's behaviour or appearance indicates that he
20
or she may be impaired for a reason other than
alcohol alone and for that purpose may further
require the rail safety worker to accompany a
transport safety officer or member of the police
force (as the case requires) to a place where the
25
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.
(3) A member of the police force only has power to
30
require a rail safety worker to undergo an
assessment of drug impairment under sub-section
(2)(a) in the case of an irregular incident if--
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(a) he or she has contacted a person nominated
for the purposes of this provision by the
person or body responsible for the operation
of the railway; and
(b) the person contacted has confirmed that an
5
irregular incident did occur and has agreed
that it is appropriate to conduct an
assessment of drug impairment.
(4) A rail safety worker is not obliged to undergo an
assessment of drug impairment if more than
10
3 hours have passed since the rail safety worker
last carried out rail safety work.
(5) An assessment of drug impairment must be
carried out by--
(a) a transport safety officer authorised to do so
15
by the Safety Director; or
(b) a member of the police force authorised to
do so by the Chief Commissioner of Police.
(6) An assessment of drug impairment must be
carried out in accordance with the procedure
20
specified in a notice under sub-section (7).
(7) The Safety Director may, by notice published in
the Government Gazette, specify the procedure to
be followed in assessing drug impairment.
(8) The carrying out of an assessment of drug
25
impairment on a rail safety worker must be video-
recorded if the rail safety worker was involved in
an accident or irregular incident unless the
prosecution satisfies the court that a video-
recording has not been made because of
30
exceptional circumstances.
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(9) If the rail safety worker on whom an assessment
of drug impairment was carried out is
subsequently charged with an offence under
section 76(1)(b), and the carrying out of the
assessment of drug impairment is video-recorded,
5
a copy of the video-recording must be served with
the summons or, if a summons is not issued,
within 7 days after the making of the charge.
(10) Subject to sub-section (11), the video-recording of
the carrying out of an assessment of drug
10
impairment on a rail safety worker is only
admissible in a proceeding against that rail safety
worker for an offence against this Act for the
purpose of establishing that the assessment of
drug impairment was carried out in accordance
15
with the procedure specified in a notice under sub-
section (7).
(11) 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
20
case in proceedings against that rail safety 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 81.
25
(12) In any proceeding under this Act--
(a) the statement of a transport safety officer
that on a particular date he or she was
authorised by the Safety Director under sub-
section (5)(a) to carry out an assessment of
30
drug impairment; or
(b) the statement of a member of the police force
that on a particular date he or she was
authorised by the Chief Commissioner of
Police under sub-section (5)(b) to carry out
35
an assessment of drug impairment; or
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(c) a certificate purporting to be signed by the
Safety Director that a transport safety officer
named in it is authorised by the Safety
Director under sub-section (5) to carry out an
assessment of drug impairment; or
5
(d) a certificate purporting to be signed by the
Chief Commissioner of Police that a member
of the police force named in it is authorised
by the Chief Commissioner of Police under
sub-section (5) to carry out an assessment of
10
drug impairment--
is admissible in evidence and, in the absence of
evidence to the contrary, is proof of the authority
of that transport safety officer or member of the
police force (as the case requires).
15
80. Blood and urine samples
(1) If a rail safety worker undergoes an assessment of
drug impairment when required under section 79
to do so and the assessment, in the opinion of the
transport safety officer or member of the police
20
force (as the case requires) carrying it out,
indicates that the rail safety worker may be
impaired by a drug or drugs, the transport safety
officer or member of the police force (as the case
requires) may require the rail safety worker to do
25
either or both of the following--
(a) allow a registered medical practitioner or an
approved health professional nominated by
that transport safety officer or member of the
police force to take from the rail safety
30
worker a sample of that rail safety worker's
blood for analysis;
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(b) furnish to a registered medical practitioner or
an approved health professional nominated
by that transport safety officer or member of
the police force a sample of that rail safety
worker's urine for analysis--
5
and for that purpose may further require the
person to accompany the transport safety officer
or member of the police force to a place where the
sample is to be taken or furnished and to remain
there until the sample has been taken or furnished
10
or until 3 hours after the carrying out of the rail
safety work, whichever is sooner.
(2) A transport safety officer or member of the police
force must not require a rail safety worker to
allow a sample of his or her blood to be taken for
15
analysis under sub-section (1)(a) if that rail safety
worker has already had a sample of blood taken
from him or her under section 78 after carrying
out rail safety work.
(3) The registered medical practitioner or approved
20
health professional who takes a sample of blood
or is furnished with a sample of urine under this
section must deliver a part of the sample to the
transport safety officer or member of the police
force who required it to be taken or furnished and
25
another part to the rail safety worker from whom
it was taken or by whom it was furnished.
(4) A person must not hinder or obstruct a registered
medical practitioner or an approved health
professional attempting to take a sample of the
30
blood, or be furnished with a sample of the urine,
of any other person in accordance with this
section.
Penalty: 12 penalty units.
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(5) 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
5
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 be furnished by, any person under
this section.
10
(6) If the person on whom an assessment of drug
impairment was carried out is subsequently
charged with an offence under section 76(1)(b), a
copy of a written report on that assessment
prepared by the transport safety officer or member
15
of the police force 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 making of the
charge.
20
81. Destruction of identifying information
(1) In this section, "relevant offence" means--
(a) an offence under section 76(1)(b) or (f); or
(b) any other offence arising out of the same
circumstances; or
25
(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 an assessment of drug impairment has been
30
carried out on a rail safety worker under
section 79 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 assessment; or
35
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(b) the rail safety worker has been so charged
but the charge is not proceeded with or the
rail safety worker is not found guilty of the
offence, whether on appeal or otherwise,
before the end of that period--
5
the Safety Director or Chief Commissioner of
Police (as the case requires) must, subject to sub-
section (4), destroy, or cause to be destroyed, at
the time specified in sub-section (3) any video-
recording made of the assessment and any related
10
material and information.
(3) A video-recording and any related material and
information referred to in sub-section (2) must be
destroyed--
(a) in a case to which sub-section (2)(a) applies,
15
immediately after that period of 12 months;
or
(b) in a case to which sub-section (2)(b)
applies--
(i) within 1 month after the conclusion of
20
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 1 month after dismissal
25
under that section.
(4) A transport safety officer or member of the
police force (as the case requires) may, before the
end of a period referred to in sub-section (3)(b),
apply without notice to the Magistrates' Court for
30
an order extending that period and, if the Court
makes such an order, the reference to the period in
sub-section (3) is a reference to that period as so
extended.
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(5) If the Magistrates' Court makes an order under
sub-section (4), it must give reasons for its
decision and cause a copy of the order to be
served on the person on whom the assessment of
drug impairment was carried out.
5
(6) If a video-recording or related material and
information is required to be destroyed in
accordance with this section, the Safety Director
or Chief Commissioner of Police (as the case
requires) must, if the rail safety worker on whom
10
the assessment was carried out so requests, within
14 days after receiving the request, notify that rail
safety worker in writing whether the destruction
has occurred.
(7) A person who knowingly--
15
(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
20
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
25
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
30
120 penalty units or to imprisonment for a term of
not more than 12 months.
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82. Blood 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
5
place for examination or treatment in consequence
of an accident (whether within Victoria or not),
the rail safety worker must allow a doctor to take
from the rail safety worker at that place a sample
of his or her blood for analysis.
10
Penalty: For a first offence, 12 penalty units;
For a subsequent offence, 25 penalty
units or imprisonment for 3 months.
(3) Sub-section (2) does not apply if--
(a) in the opinion of the doctor first responsible
15
for the examination or treatment of the rail
safety worker the taking of a blood sample
from the rail safety worker would be
prejudicial to his or her proper care and
treatment; or
20
(b) a transport safety officer or a member of the
police force has notified the doctor first
responsible for the examination or treatment
of the rail safety worker, in writing, that the
rail safety worker has undergone a
25
preliminary breath test which did not
indicate that the prescribed concentration of
alcohol was exceeded; or
(c) the doctor first responsible for the
examination or treatment of the rail safety
30
worker believed on reasonable grounds that
the rail safety worker was not a rail safety
worker; or
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(d) a member of the police force or a doctor has
notified the doctor first responsible for the
examination or treatment of the rail safety
worker, in writing, that a sample of the rail
safety worker's blood was taken by a doctor
5
before the person entered or was brought to
the place for examination or treatment.
(4) A rail safety worker to whom sub-section (2)
applies and who is unconscious or otherwise
unable to communicate must be taken to allow the
10
taking of a sample of his or her blood by a doctor
at a place which he or she enters or to which he or
she 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
15
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 83; or
(b) for a proceeding for an offence against
20
section 48(2); or
(c) for the purposes of the Transport Accident
Act 1986--
but may be given--
(d) to the Transport Accident Commission and,
25
for the purposes of a review under the
Transport Accident Act 1986, to the
Tribunal; and
(e) to the Department for the purposes of
accident research.
30
(6) A person must not hinder or obstruct a doctor
attempting to take a sample of the blood of any
other person in accordance with this section.
Penalty: 12 penalty units.
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(7) No action lies against a doctor in respect of
anything properly and necessarily done by the
doctor in the course of taking any sample of blood
which the doctor believes on reasonable grounds
was required or allowed to be taken from a rail
5
safety worker under this section.
Division 3--Evidentiary Provisions
83. Evidentiary provisions--blood tests
(1) In this section--
"approved analyst" means a person who by
10
virtue of sub-section (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 sub-section (3) is to be taken to be a
15
properly qualified expert for the purposes of
this section;
"properly qualified analyst" means--
(a) an approved analyst; or
(b) a person who is considered by the court
20
to have scientific qualifications,
training and experience that qualifies
him or her to carry out the analysis and
to express an opinion as to the facts and
matters contained in a certificate under
25
sub-section (6) or (7), as the case
requires;
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"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
5
him or her to express an opinion as to
the facts and matters contained in a
certificate under sub-section (8).
(2) A person who is an approved analyst within the
meaning of section 57 of the Road Safety Act
10
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
15
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
20
(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--
25
is relevant on a hearing for an offence against
section 76(1) or in any proceedings conducted 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
30
given of the taking, within 3 hours after the rail
safety worker carried out rail safety work, of a
sample of blood from the rail safety worker by a
registered medical practitioner or an approved
health professional, of the analysis of that sample
35
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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
5
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
10
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
15
in sub-section (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
purporting to be signed by an approved analyst as
20
to the concentration of alcohol expressed in grams
per 100 millilitres of blood found in any sample of
blood analysed by the analyst is admissible
in evidence in a proceeding referred to in sub-
section (4) and, in the absence of evidence to the
25
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 analyst as
to the presence in any sample of blood analysed
30
by the analyst of a substance that is, or is capable
of being, a drug for the purposes of this Part is
admissible in evidence in any proceedings
referred to in sub-section (4) and, in the absence
of evidence to the contrary, is proof of the facts
35
and matters contained in it.
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(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
5
ability to carry out rail safety work properly) is
admissible in evidence in any proceedings
referred to in sub-section (4) and, in the absence
of evidence to the contrary, is proof of the facts
and matters contained in it.
10
(9) A certificate given under this section must not be
tendered in evidence in a proceeding referred to in
sub-section (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
15
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
20
(b) leaving it for the accused at his or her 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.
25
(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 sub-section (4) and, as to the service
of the copy, is proof, in the absence of evidence to
30
the contrary, of the facts and matters deposed to in
the affidavit or stated in the statutory declaration.
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(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
5
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 sub-
10
section (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
15
court; and
(b) that--
(i) there is a reasonable possibility that the
blood referred to in a certificate given
by an analyst under sub-section (6) was
20
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
25
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
30
(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
35
that a drug found on analysis would not
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have been found had the blood not been
contaminated in that way; or
(iv) there is a reasonable possibility that the
sample was not taken in accordance
with the Code of Practice for Taking
5
Blood Samples from Road Accident
Victims; or
(v) for some other reason the giving of
evidence by the person who gave the
certificate or any other person
10
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.
15
(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
20
was taken, to attend the court on the hearing of an
application for leave under sub-section (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
25
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
30
approved health professional who acts in
accordance with that consent even if it
subsequently appears that the rail safety worker
was in fact incapable by reason of his or her
mental condition from effectively giving consent
35
to the examination or collection.
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(16) Except as provided in sections 78(9), 80 and 82, 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
5
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
10
against the rail safety worker or referred to in any
way against the rail safety worker's interests in
any proceeding.
(18) A certificate purporting to be signed by a
person--
15
(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
corresponds to section 82 of this Act and in
20
accordance with any regulations made under the
corresponding Act is admissible in evidence in a
proceeding referred to in sub-section (4) and, in
the absence of evidence to the contrary, is proof of
the facts and matters contained in it.
25
(19) Sub-sections (7), (10), (11) and (12) apply in
respect of a certificate referred to in sub-
section (18) as if the certificate was given under
this section.
84. Evidentiary provisions--urine tests
30
(1) In this section--
"approved analyst" means a person who by
virtue of sub-section (2) is to be taken to be a
properly qualified analyst for the purposes of
this section;
35
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"approved expert" means a person who by
virtue of sub-section (3) is to be taken to be a
properly qualified expert for the purposes of
this section;
"properly qualified analyst" means--
5
(a) an approved analyst; or
(b) a person who is considered by the court
to have scientific qualifications,
training and experience that qualifies
him or her to carry out the analysis and
10
to express an opinion as to the facts and
matters contained in a certificate under
sub-section (6);
"properly qualified expert" means--
(a) an approved expert; or
15
(b) a person who is considered by the court
to have scientific qualifications,
training and experience that qualifies
him or her to express an opinion as to
the facts and matters contained in a
20
certificate under sub-section (7).
(2) A person who is an approved analyst within the
meaning of section 57A of the Road Safety Act
1986 is to be taken to be a properly qualified
analyst for the purposes of this section.
25
(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
30
body of a rail safety worker at any time is relevant
on a hearing for an offence against section 76(1)
then, without affecting the admissibility of any
evidence which might be given apart from the
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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
5
urine to a registered medical practitioner or
an approved health professional;
(b) of the analysis of that sample of urine by a
properly qualified analyst within 12 months
after it was taken;
10
(c) of the presence of a drug in that sample of
urine 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
15
rail safety worker'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
20
admissible in evidence in any hearing referred to
in sub-section (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
25
purporting to be signed by an approved analyst as
to the presence in any sample of urine analysed by
the analyst of a substance that is, or is capable of
being, a drug for the purposes of this Part is
admissible in evidence in any hearing referred to
30
in sub-section (4) and, in the absence of evidence
to the contrary, is proof of the facts and matters
contained in it.
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(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
5
ability to carry out rail safety work properly) is
admissible in evidence in any hearing referred to
in sub-section (4) and, in the absence of evidence
to the contrary, is proof of the facts and matters
contained in it.
10
(8) A certificate given under this section must not be
tendered in evidence at a hearing referred to in
sub-section (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
15
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
20
hearing referred to in sub-section (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.
25
(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
30
place at which the sample of urine was furnished,
to attend at all subsequent proceedings for cross-
examination and that person must attend
accordingly.
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(11) The court must not grant leave under sub-
section (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
5
opportunity to make a submission to the
court; and
(b) that--
(i) there is a reasonable possibility that the
urine referred to in a certificate given
10
by an analyst under sub-section (6) was
not that of the accused; or
(ii) there is a reasonable possibility that the
urine referred to in a certificate given
by a registered medical practitioner or
15
an approved health professional had
become contaminated in such a way
that a drug found on analysis would not
have been found had the urine not been
contaminated in that way; or
20
(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
25
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 urine
was furnished, to attend the court on the hearing
30
of an application for leave under sub-section (10).
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85. Evidentiary 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
5
(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--
10
is relevant on a hearing for an offence against
section 76(1) 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
15
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 78 and the
concentration of alcohol so indicated is, subject to
20
compliance with section 78(4), evidence of the
concentration of alcohol present in the breath of
that person at the time his or her breath is
analysed by the instrument.
(2) A document purporting to be a certificate
25
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
30
operated the instrument is admissible in evidence
in a proceeding referred to in sub-section (1) and,
subject to sub-section (8), is conclusive proof of--
(a) the facts and matters contained in it; and
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(b) the fact that the instrument used was a breath
analysing instrument within the meaning of
this Act; and
(c) the fact that the person who operated the
instrument was authorised to do so by the
5
Chief Commissioner of Police under
section 78; and
(d) the fact that all relevant regulations relating
to the operation of the instrument were
complied with; and
10
(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
15
and that it was signed by the person who
operated the 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
20
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 he or she
requires the person giving the certificate to be
called as a witness or that he or she intends to
25
adduce evidence in rebuttal of any such fact or
matter.
(3) A certificate referred to in sub-section (2) does not
cease to be admissible in evidence or to be
conclusive proof of the facts and matters referred
30
to in that sub-section only because of the fact that
it refers to the Road Safety Act 1986 and not to
the Rail Safety Act 2005 and the reference to the
Road Safety Act 1986 in that certificate and in
each other certificate produced by the breath
35
analysing instrument in respect of the sample of
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breath must be construed for all purposes as a
reference to the Rail Safety Act 2005.
(4) A notice under sub-section (2) must specify any
fact or matter with which issue is taken and
indicate the nature of any expert evidence which
5
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
10
indicated in a notice under sub-section (2).
(6) If an accused person gives notice to the informant
in accordance with sub-section (2) that he or she
requires the person giving a certificate to be called
as a witness and the court is satisfied that that
15
person--
(a) is dead; or
(b) is unfit by reason of his or her bodily or
mental condition to testify as a witness; or
(c) has ceased to be a member of the police
20
force or is out of Victoria and it is not
reasonably practicable to secure his or her
attendance; or
(d) cannot with reasonable diligence be found--
the court must order that sub-section (2) has effect
25
as if the notice had not been given.
(7) A certificate referred to in sub-section (2) remains
admissible in evidence even if the accused person
gives a notice under that sub-section but, in that
event, the certificate ceases to be conclusive proof
30
of the facts and matters referred to in that sub-
section.
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(8) Nothing in sub-section (2) prevents the informant
adducing evidence to explain any fact or matter
contained in a certificate referred to in sub-
section (2) and, if the informant does so, the
certificate remains admissible in evidence but
5
ceases to be conclusive proof of that fact or matter
only.
(9) In any proceeding under this Act--
(a) the statement of any person that on a
particular date he or she was authorised by
10
the Chief Commissioner of Police under
section 78(4) to operate breath analysing
instruments; or
(b) a certificate purporting to be signed by the
Chief Commissioner of Police that a person
15
named in it is authorised by the Chief
Commissioner of Police under section 78(4)
to operate breath analysing instruments--
is admissible in evidence and, in the absence of
evidence to the contrary, is proof of the authority
20
of that person.
(10) Evidence by a person authorised to operate a
breath analysing instrument under section 78--
(a) that an apparatus used by him or her on any
occasion under that section was a breath
25
analysing instrument;
(b) that the breath analysing instrument was on
that occasion in proper working order and
properly operated by him or her;
(c) that, in relation to the breath analysing
30
instrument, all regulations with respect to
breath analysing instruments were complied
with--
is, in the absence of evidence to the contrary,
proof of those facts.
35
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(11) The statement on oath of a person authorised to
operate a breath analysing instrument under
section 78 when called as a witness that any
apparatus used by him or her on any occasion
under section 78 had written, inscribed or
5
impressed on some portion of it or on a plate
attached to it the expressions "Alcotest 7110" and
"3530791" whether with or without other
expressions or abbreviations of expressions,
commas, full stops, hyphens or other punctuation
10
marks and whether or not all or any of the
numbers are boxed in is, in the absence of
evidence to the contrary, proof that the apparatus
is a breath analysing instrument within the
meaning of this Part.
15
Division 4--Other Matters
86. Approvals
(1) An authority given under or for the purposes of--
(a) section 78 or 79(5)(b) by the Chief
Commissioner of Police; or
20
(b) section 79(5)(a) by the Safety Director--
may be revoked at any time in the manner in
which it was given and on revocation ceases to
have any effect.
(2) If it is provided by or under this Part that the
25
Minister or the Chief Commissioner of Police or
any other person may approve of any type or kind
of apparatus or equipment--
(a) the approval must be given by notice
published in the Government Gazette; and
30
(b) any withdrawal of approval must be made by
notice published in the Government Gazette.
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s. 87
PART 7--REVIEW OF DECISIONS
87. Reviewable decisions
(1) The following table sets out--
(a) decisions made under this Act that are
reviewable in accordance with this Part
5
("reviewable decisions"); and
(b) who is eligible to apply for a review of a
reviewable decision (the "eligible person"
in relation to the reviewable decision).
(2) To avoid doubt, sections 4 and 5 of the Victorian
10
Civil and Administrative Tribunal Act 1998
apply for the purposes of this Act.
Note: Under section 4 of that Act, a person makes a
decision if the person refuses to make a decision
15 or an instrument, imposes a condition or restriction
or does or refuses to do any other act or thing.
Section 5 of that Act sets out when a person's
interests are affected by a decision.
Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
1. Division 2 of Part 5 (1) A rail infrastructure
(refusal to accredit) manager who has
applied to be
accredited in respect of
the rail infrastructure
operations the rail
infrastructure manager
carries out.
(2) A rolling stock
operator who has
applied to be
accredited in respect of
the rolling stock
operations the rolling
stock operator carries
out.
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Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
2. Section 42(2) (issue A rolling stock
of written notice) operator and rail
infrastructure manager
to whom a written
notice has been issued.
3. Section 42(4) A person given a
(direction) direction under
section 42.
4. Section 43 (direction A person given a
to co-ordinate direction under
accreditation section 43.
applications)
5. Section 44 (failure A rail infrastructure
to accredit within manager who has
period of time applied to be
specified in the accredited in respect of
section or the the rail infrastructure
extended period) operations the rail
infrastructure manager
carries out.
A rolling stock
operator who has
applied to be
accredited in respect of
the rolling stock
operations the rolling
stock operator carries
out.
6. Section 46 (decision An accredited rail
to impose conditions operator whose
or restrictions of interests are affected
accreditation) by the decision.
7. Section 53 (refusal An accredited rail
to grant variation of operator whose
condition or interests are affected
restriction of by the decision.
accreditation)
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Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
8. Section 53 (refusal An accredited rail
to agree to operator whose
revocation of interests are affected
condition or by the decision.
restriction of
accreditation)
9. Section 54 (refusal An accredited rail
to grant variation of operator whose
accreditation) interests are affected
by the decision.
10. Section 55 (variation An accredited rail
of condition or operator whose
restriction of interests are affected
accreditation) by the decision.
11. Section 55 An accredited rail
(revocation of operator whose
condition or interests are affected
restriction of by the decision.
accreditation)
12. Section 55 An accredited rail
(imposition of new operator whose
condition or interests are affected
restriction of by the decision.
accreditation)
13. Section 56 (refusal An accredited rail
to consent to operator whose
surrender of interests are affected
accreditation) by the decision.
14. Section 58 An accredited rail
(immediate operator whose
suspension of interests are affected
accreditation) by the decision.
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Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
15. Section 59(3) (1) An accredited rail
(decision as to any operator whose
one or more of the interests are affected
things listed in by the decision.
section 59(3)--for
(2) A person who was
example, suspend or
previously an
immediately cancel
accredited rail operator
an accreditation or
whose interests are
disqualify a person
affected by the
from holding an
decision.
accreditation)
16. Section 63 (refusal (1) A rail infrastructure
to grant exemption) manager who carries
out rail infrastructure
operations using or in
relation to a private
siding.
(2) A rolling stock
operator who carries
out rolling stock
operations in a private
siding.
17. Section 64 (decision (1) An exempted rail
to revoke exemption infrastructure manager
granted under (within the meaning of
section 63) section 64(4)) whose
interests are affected
by the decision.
(2) An exempted rolling
stock operator (within
the meaning of section
64(4)) whose interests
are affected by the
decision.
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Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
18. Section 66 (refusal An accredited tourist
to grant exemption) and heritage railway
operator (within the
meaning of section
66(1)) whose interests
are affected by the
decision.
88. Internal review
(1) An eligible person in relation to a reviewable
decision, other than a decision made by the Safety
Director, may apply to the Safety Director for
review of the decision within--
5
(a) 28 days after the day on which the decision
first came to the eligible person's notice; or
(b) such longer period as the Safety Director
allows.
(2) The application must be in the form approved (in
10
writing) by the Safety Director.
(3) If an application is made to the Safety Director in
accordance with this section, the Safety Director
must make a decision--
(a) to affirm or vary the reviewable decision; or
15
(b) to set aside the reviewable decision and
substitute another decision that the Safety
Director considers appropriate.
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(4) The Safety Director must give a written notice to
the applicant setting out--
(a) the Safety Director's decision under
sub-section (3) and the reasons for the
decision; and
5
(b) the findings on material questions of fact that
led to the decision, referring to the evidence
or other material on which those findings
were based--
and must do so within 28 days after the
10
application is made.
(5) If the Safety Director has not notified an applicant
of a decision in accordance with sub-section (4),
the Safety Director is taken to have made a
decision to affirm the reviewable decision.
15
(6) An application under this section does not affect
the operation of the reviewable decision or
prevent the taking of any action to implement it
unless the Safety Director, on his or her own
initiative or on the application of the applicant for
20
review, stays the operation of the decision
pending the determination of the review.
(7) The Safety Director must make a decision on an
application for a stay within 24 hours after the
making of the application.
25
(8) If the Safety Director has not made a decision in
accordance with sub-section (7), the Safety
Director is taken to have made a decision to grant
a stay.
(9) The Safety Director may attach any conditions to
30
a stay of the operation of a reviewable decision
that he or she considers appropriate.
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89. Review by the Tribunal
(1) A person may apply to the Tribunal for review
of--
(a) a reviewable decision made by the Safety
Director; or
5
(b) a decision made, or taken to have been made,
by the Safety Director under section 88 in
respect of a reviewable decision (including a
decision concerning a stay of the operation
of the reviewable decision)--
10
if the person is an eligible person in relation to the
reviewable decision.
(2) To avoid doubt, sub-section (1) does not apply to
a decision of the Safety Director to hold an
inquiry under section 59.
15
(3) The application must be made--
(a) within 28 days after the day on which the
decision first came to the applicant's notice;
or
(b) if the Safety Director is required by the
20
Victorian Civil and Administrative
Tribunal Act 1998 to give the applicant a
statement of reasons, within 28 days after the
day on which the applicant is given the
statement--
25
whichever period ends last.
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90. Special right of review concerning interstate
applicants
(1) This section only applies if--
(a) a rail operator who applies to the Safety
Director for accreditation and--
5
(i) is not a company that is taken to be
registered in Victoria under the
Corporations Act; or
(ii) does not have his or her principal place
of residence in Victoria, in the case of a
10
natural person; and
(b) the Safety Director refuses to accredit the rail
operator or does not accredit the rail
operator--
(i) within 6 months after the rail operator
15
applies for accreditation; or
(ii) if the Safety Director extends the period
of time within which he or she may
decide to accredit the applicant under
section 44--within that extended
20
period.
(2) The rail operator may, by notice, require the
Safety Director to have the refusal or failure
independently mediated or conciliated or both by
a mediator or conciliator agreed upon by the rail
25
operator and the Safety Director.
(3) The Safety Director must comply with such a
notice as soon as is practicable after receiving it.
(4) The right conferred on a rail operator by this
section is in addition to a right of review conferred
30
by section 88 or 89.
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(5) However, the right conferred on a rail operator
under this section can only be exercised before the
Tribunal gives a final decision in relation to the
matter.
__________________
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s. 91
PART 8--CODES OF PRACTICE
91. Codes of practice
(1) For the purpose of providing practical guidance to
accredited rail operators and any other person who
may be placed under an obligation by or under
5
this Act, the Minister may, subject to section 95,
approve one or more codes of practice.
(2) A code of practice--
(a) may consist of any code, standard, rule,
specification or provision relating to any
10
aspect of rail infrastructure operations or
rolling stock operations; and
(b) may apply, incorporate or refer to any
document formulated or published by any
body or authority as in force at the time the
15
code of practice is approved, or as amended,
formulated or published from time to time.
(3) The approval of a code of practice takes effect on
the day on which notice of the approval is
published in the Government Gazette, or on any
20
later day specified in the notice.
Note: A code of practice approved under this section is
disallowable by either House of Parliament: see
section 104.
92. Revisions to approved codes of practice
25
(1) Subject to section 95, the Minister may--
(a) approve any revision of the whole, or any
part, of an approved code of practice;
(b) revoke the approval of a code of practice.
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(2) The approval of a revision to an approved code of
practice takes effect on the day on which notice of
the approval of the revision is published in the
Government Gazette, or on any later day specified
in the notice.
5
93. Revocation of approvals of codes of practice
The approval of an approved code of practice
ceases to be of effect at the end of the day on
which notice of the revocation of the approval is
published in the Government Gazette, or on any
10
later day specified in the notice.
94. Availability of approved codes of practice
The Minister must cause--
(a) a current copy of every approved code of
practice; and
15
(b) a copy of every document applied,
incorporated or referred to in an approved
code of practice (in the form in which that
document has effect in the approved code of
practice)--
20
to be made available for inspection by members of
the public without charge at the office of the
Safety Director during normal office hours.
95. Minister must consult before approving code of
practice or revision to code of practice
25
Before the Minister approves a code of practice or
any revision of the whole, or any part, of an
approved code of practice under section 91 or 92,
the Minister must consult with any person or body
that may be affected by the approved code of
30
practice, or revision of an approved code of
practice, to be approved.
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96. Effect of approved code of practice
A person is not liable to any civil or criminal
proceedings by reason only that he, she or it has
failed to observe any provision of an approved
code of practice.
5
Note: A person who complies with a compliance code may
however, be taken to have complied with this Act
(see section 102).
__________________
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Part 9--General
s. 97
PART 9--GENERAL
Division 1--Offences by Bodies Corporate
97. Imputing conduct to bodies corporate
For the purposes of this Act and the regulations,
any conduct engaged in or on behalf of a body
5
corporate by an employee, agent or officer
(within the meaning given by section 9 of the
Corporations Act) of the body corporate acting
within the actual or apparent scope of his or her
employment, or within his or her actual or
10
apparent authority, is conduct also engaged in by
the body corporate.
98. Liability of officers of bodies corporate
(1) If a body corporate (including a body corporate
representing the Crown) contravenes a provision
15
of this Act or the regulations and the
contravention is attributable to an officer of the
body corporate failing to take reasonable care, the
officer is guilty of an offence and liable to a fine
not exceeding the maximum fine for an offence
20
constituted by a contravention by a natural person
of the provision contravened by the body
corporate.
(2) An offence against sub-section (1) is summary or
indictable in nature according to whether the
25
offence constituted by the contravention by the
body corporate is summary or indictable.
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(3) In determining whether an officer of a body
corporate is guilty of an offence, regard must be
had to--
(a) what the officer knew about the matter
concerned; and
5
(b) the extent of the officer's ability to make, or
participate in the making of, decisions that
affect the body corporate in relation to the
matter concerned; and
(c) whether the contravention by the body
10
corporate is also attributable to an act or
omission of any other person; and
(d) any other relevant matter.
(4) An officer of a body corporate may be convicted
or found guilty of an offence in accordance with
15
sub-section (1) whether or not the body corporate
has been convicted or found guilty of the offence
committed by it.
(5) An officer of a body corporate (including a body
corporate representing the Crown) who is a
20
volunteer is not liable to be prosecuted under this
section for anything done or not done by him or
her as a volunteer.
Note 1: "Officer" of a body corporate includes a person who
25 makes or participates in the making of decisions that
affect the whole or a substantial part of the body
corporate's business and a person who has the
capacity to affect significantly the body corporate's
financial standing (see section 3).
30 Note 2: For "volunteer", see section 3.
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Division 2--Offences by Partnerships and Unincorporated
Bodies or Associations
99. Liability of officers of partnerships and
unincorporated bodies or associations
(1) Subject to sub-section (2), if--
5
(a) this Act imposes a duty on a person or
provides that a person is guilty of an offence;
and
(b) the person is a partnership or an
unincorporated body or association
10
(including a partnership or an unincorporated
body or association representing the
Crown)--
the reference to the person is taken to be instead a
reference to each officer of the partnership, body
15
or association (as the case may be).
(2) If an offence against this Act is committed by an
officer of a partnership or an unincorporated body
or association because of the effect of
sub-section (1), the officer is only guilty of the
20
offence if the commission of the offence is
attributable to the officer failing to take reasonable
care.
(3) The penalty to which an officer of a partnership or
an unincorporated body or association is liable for
25
an offence committed by him or her because of
the effect of sub-section (1) is a fine not exceeding
the maximum fine that could be imposed by a
court on a natural person found guilty of the same
offence committed at the same time (otherwise
30
than because of the effect of sub-section (1)).
(4) In determining whether an officer of a partnership
or unincorporated body or association is guilty of
an offence, regard must be had to--
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(a) what the officer knew about the matter
concerned; and
(b) the extent of the officer's ability to make, or
participate in the making of, decisions that
affect the partnership, body or association in
5
relation to the matter concerned; and
(c) whether the commission of the offence is
also attributable to an act or omission of any
other person; and
(d) any other relevant matter.
10
(5) An officer of a partnership or unincorporated body
or association who is a volunteer is not liable to be
prosecuted under this section for anything done or
not done by him or her as a volunteer.
15 Note 1: "Officer" of a partnership or unincorporated body or
association includes a person who makes or
participates in the making of decisions that affect the
whole or a substantial part of the business of the
partnership, body or association and a person who
20 has the capacity to affect significantly the financial
standing of the partnership, body or association
(see section 3).
Note 2: For "volunteer", see section 3.
Division 3--Proceedings against the Crown
100. Responsible agency for the Crown
25
(1) If proceedings are brought against the Crown for
an offence against this Act or the regulations the
responsible agency in respect of the offence may
be specified in any document initiating, or relating
to, the proceedings.
30
(2) In this section, the "responsible agency" in
respect of an offence is the agency of the
Crown--
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(a) whose acts or omissions are alleged to
constitute the offence; or
(b) if that agency has ceased to exist, that is the
successor of that agency; or
(c) if that agency has ceased to exist and there is
5
no clear successor, that the court declares to
be the responsible agency.
(3) The responsible agency in respect of an offence is
entitled to act in proceedings against the Crown
for the offence and, subject to any relevant rules
10
of court, the procedural rights and obligations of
the Crown as the accused in the proceedings are
conferred or imposed on the responsible agency.
(4) The person prosecuting the offence may change
the responsible agency during the proceedings
15
with the court's leave.
(5) In this section--
"agency" includes the Director within the
meaning of the Transport Act 1983.
Division 4--Other Matters
20
101. Interaction with the Occupational Health and Safety
Act 2004
(1) If a provision of the Occupational Health and
Safety Act 2004 or the regulations made under
that Act ("OHS provision") applies to an activity
25
in respect of which a duty is imposed under
Division 2 or 3 of Part 3, the OHS provision
continues to apply, and must be observed in
addition to Division 2 or 3 of Part 3 and any
regulations made under this Act made for the
30
purposes of those Divisions.
Note: See also section 51 of the Interpretation of
Legislation Act 1984.
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(2) If a provision of this Act or the regulations made
under this Act is inconsistent with a provision of
the Occupational Health and Safety Act 2004 or
the regulations made under that Act, the
Occupational Health and Safety Act 2004 or the
5
regulations made under it prevail to the extent of
the inconsistency.
(3) Compliance with this Act or the regulations made
under this Act, or with any requirement imposed
under this Act or the regulations, is not in itself a
10
defence in any proceedings for an offence against
the Occupational Health and Safety Act 2004 or
the regulations made under that Act.
(4) Evidence of a relevant contravention of this Act or
the regulations made under this Act is admissible
15
in any proceedings for an offence against the
Occupational Health and Safety Act 2004 or the
regulations made under that Act.
102. Effect of compliance with regulations or approved
codes of practice
20
If--
(a) the regulations or an approved code of
practice make provision for or with respect
to a duty or obligation imposed by this Act
or the regulations; and
25
(b) a person complies with the regulations or the
approved code of practice to the extent that it
makes that provision--
the person is, for the purposes of this Act and the
regulations, taken to have complied with this Act
30
or the regulations in relation to that duty or
obligation.
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103. Fees for service
The Safety Director may charge the prescribed fee
(if any) for any safety audit conducted under
Part 3, or other service supplied, by her or him
under Part 5.
5
104. Tabling and disallowance of certain Orders, notices
and approved codes of practice
(1) In this section--
"disallowable instrument" means--
(a) an Order under section 4;
10
(b) a notice under section 79(7);
(c) an approved code of practice.
(2) On or before the 6th sitting day after a
disallowable instrument is published in the
Government Gazette, the Minister must ensure
15
that a copy of that instrument is laid before each
House of the Parliament.
(3) A failure to comply with sub-section (2) does not
affect the operation or effect of the disallowable
instrument but the Scrutiny of Acts and
20
Regulations Committee of the Parliament may
report the failure to each House of the Parliament.
(4) A disallowable instrument may be disallowed in
whole or in part by either House of Parliament.
(5) Part 5 of the Subordinate Legislation Act 1994
25
applies a disallowable instrument as if--
(a) a reference in that Part to a "statutory rule"
were a reference to a disallowable
instrument; and
(b) a reference in section 23(1)(c) of that Act to
30
"section 15(1)" were a reference to sub-
section (1).
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(6) A reference to a disallowable instrument in this
section includes a reference to any amendment to,
or revision of the whole or any part of, a
disallowable instrument.
Division 5--Regulations
5
105. Accreditation
The Governor in Council may make regulations
for or with respect to--
(a) exempting any person or class of persons
from the requirement to be accredited;
10
(b) annual accreditation fees and additional fees
for the late payment of annual accreditation
fees;
(c) investigations carried out by accredited rail
operators under section 67.
15
106. Safety duties and risk management requirements
and minimisation
The Governor in Council may make regulations
for or with respect to--
(a) the way in which duties or obligations
20
imposed by this Act or the regulations are
performed;
(b) regulating or prohibiting specified rail
operations or a specified class of rail
operations--
25
(i) at railway premises or a specified class
of railway premises; or
(ii) by a specified class of persons on
whom duties or obligations are imposed
by this Act--
30
to eliminate or reduce risks to safety;
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(c) regulating or requiring the taking of any
action to avoid a hazard or incident
(including a major incident) at railway
premises or while rail operations are being
carried out;
5
(d) regulating, requiring or prohibiting the
taking of any action in the event of an
incident (including a major incident) at
railway premises or while rail operations are
being carried out;
10
(e) regulating or requiring the examination,
testing, maintenance or repair of rail
infrastructure or rolling stock.
107. Safety management systems
The Governor in Council may make regulations
15
for or with respect to--
(a) the preparation of safety management
systems;
(b) the matters and information that safety
management systems must contain;
20
(c) how safety management systems are to be
kept and maintained.
108. Rail safety work
The Governor in Council may make regulations
for or with respect to--
25
(a) a scheme for certificates of competence
(or provisional certificates of competence)
for people employed or engaged to carry out
rail safety work, and for the duration,
variation, suspension and cancellation of
30
those certificates;
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(b) prohibiting the carrying out of rail safety
work by a person--
(i) who does not hold an appropriate
certificate of competence; or
(ii) who does not hold specified
5
qualifications, training or experience;
or
(iii) who is not supervised by a person
holding an appropriate certificate of
competence or specified qualifications,
10
training or experience;
(c) requiring accredited rail operators to ensure
that persons employed or engaged by them
who carry out rail safety work are fit to do
so;
15
(d) the testing, assessment and monitoring of
persons employed or engaged to carry out
rail safety work to ensure that those persons
are fit to carry out that work;
(e) application fees and fees for the issuing and
20
holding of certificates of competence.
109. Alcohol and other drug controls
The Governor in Council may make regulations
for or with respect to--
(a) devices for the purposes of section 77
25
including--
(i) the handling, storage, use and
maintenance of those devices;
(ii) the precautions to be taken and the
procedures and methods to be
30
employed in the use of those devices
for ensuring that they give accurate and
reliable results;
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(b) the handling, storage, use and maintenance
of breath analysing instruments used for the
purposes of section 78 and the procedures
and methods to be employed in the use of
those instruments for ensuring that they give
5
accurate and reliable results;
(c) the methods and conditions to be observed
by registered medical practitioners and
approved health professionals in collecting
blood samples or urine samples;
10
(d) the persons responsible for the safe-keeping
of samples of blood taken under section 78,
79, 80 or 82 and the methods of storage to be
used by them;
(e) the delivering of portions of a sample of
15
blood taken under section 78, 79, 80 or 82 to
the rail safety worker from whom it was
taken and to the person who required it to be
taken or a member of the police force;
(f) the methods to be used by analysts in
20
determining the concentration of alcohol in a
blood sample;
(g) the methods to be used by analysts in
determining the presence of a substance in a
blood or urine sample;
25
(h) the procedures to be adopted in transmitting
samples of blood or urine to an analyst for
analysis;
(i) the regulation and control of people
concerned in the taking, safe-keeping,
30
delivering and analysis of blood or urine
samples.
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110. General regulation making powers
(1) The Governor in Council may make regulations
for or with respect to--
(a) requiring records of prescribed activities,
matters or things to be kept by prescribed
5
persons;
(b) requiring notice of prescribed activities,
matters or things to be given to the Safety
Director or a transport safety officer;
(c) fees for the purposes of this Act and the
10
refund or waiver of such fees;
(d) any matter or thing required or permitted by
this Act to be prescribed or necessary to be
prescribed to give effect to this Act.
(2) Regulations made under this Act--
15
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may require a matter affected by the
regulations to be--
20
(i) in accordance with a specified standard
or specified requirement; or
(ii) approved by or to the satisfaction of a
specified person or a specified class of
person; or
25
(iii) as specified in both sub-paragraphs (i)
and (ii); and
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(d) may apply, adopt or incorporate any matter
contained in any document whether--
(i) wholly or partially or as amended by
the regulations; or
(ii) as in force at a particular time or as in
5
force from time to time; and
(e) may confer a discretionary authority or
impose a duty on a specified person or a
specified class of person; and
(f) may provide in a specified case or class of
10
case for the exemption of persons or things
or a class of persons or things from any of
the provisions of the regulations, whether
unconditionally or on specified conditions
and either wholly or to such an extent as is
15
specified; and
(g) may impose a penalty not exceeding
20 penalty units for a contravention of the
regulations; and
(h) may provide that an application may be
20
made to the Tribunal for the review of a
decision made under the regulations.
(3) A power conferred by this Act to make
regulations providing for the imposition of fees
may be exercised by providing for all or any of
25
the following matters--
(a) specific fees;
(b) maximum or minimum fees;
(c) maximum and minimum fees;
(d) the payment of fees either generally or under
30
specified conditions or in specified
circumstances;
(e) the reduction, waiver or refund, in whole or
in part, of the fees.
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(4) If under sub-section (3)(e) regulations provide for
a reduction, waiver or refund, in whole or in part,
of a fee, the reduction, waiver or refund may be
expressed to apply either generally or
specifically--
5
(a) in respect of certain accreditations or classes
of accreditations; or
(b) in respect of certain audits of medical
records under section 30 or classes of such
audits; or
10
(c) in respect of certificates of compliance
referred to in section 108 or classes of such
certificates; or
(d) when an event happens; or
(e) in respect of certain persons or classes of
15
persons; or
(f) in respect of any combination of such
accreditations, audits, certificates, events or
persons--
and may be expressed to apply subject to specified
20
conditions or in the discretion of any specified
person or body.
_________________
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s. 111
See: PART 10--AMENDMENT OF TRANSPORT ACT 1983
Act No.
9921.
111. Definitions
Reprint No. 10
as at
In section 2(1) of the Transport Act 1983 insert
1 July 2004
and
the following definitions--
amending
Act Nos
' "accredited rail operator" has the same
5 54/2002,
69/2003, meaning as in the Rail Safety Act 2005;
94/2003,
101/2003,
"Director, Public Transport Safety" or "Safety
108/2004,
Director" means the person appointed under
110/2004,
19/2005,
section 9L;
25/2005 and
45/2005.
"improvement notice" means a notice served
10 LawToday:
under section 228ZZC;
www.dms.
dpc.vic.
"mandatory rail safety decision" means--
gov.au
(a) a decision of the Safety Director under
the Rail Safety Act 2005 whether to--
(i) accredit or refuse to accredit--
15
(A) the rail infrastructure
operations carried out by a
rail infrastructure manager;
or
(B) the rolling stock operations
20
carried out by a rolling stock
operator; or
(ii) to impose, vary or revoke a
condition or restriction on an
accreditation of an accredited rail
25
operator; or
(iii) to vary an accreditation of an
accredited rail operator; or
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(b) a decision of the Safety Director or a
transport safety officer to--
(i) serve an improvement notice; or
(ii) amend an improvement notice
under section 228ZZF; or
5
(c) a decision of the Safety Director or a
transport safety officer to--
(i) serve a prohibition notice; or
(ii) amend a prohibition notice under
section 228ZZL;
10
"prohibition notice" means a notice served
under section 228ZZJ;
"rail infrastructure manager" has the same
meaning as in the Rail Safety Act 2005;
"rail infrastructure operations" has the same
15
meaning as in the Rail Safety Act 2005;
"rail operations" has the same meaning as in the
Rail Safety Act 2005;
"rail safety recommendation" means a
recommendation by the Safety Director to
20
the Director for the Director to undertake or
fund a relevant rail safety project;
"relevant rail safety project" means any project
undertaken relating to, or connected with, the
provision, or operation, of a passenger
25
service or rail freight service;
"relevant transport safety law" means--
(a) Divisions 4B and 6 of Part VII or any
regulations made under this Act for the
purposes of those Divisions;
30
(b) the Rail Safety Act 2005 or any
regulations made under that Act;
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(c) section 93A, 93B or 93C of the
Electricity Industry Act 2000;
(d) section 149A, 149B or 149C of the Gas
Industry Act 2001;
(e) Division 4A of Part 4 of the Road
5
Management Act 2004;
(f) section 137A, 137B or 137C of the
Water Act 1989;
(g) section 62A, 62B or 62C of the Water
Industry Act 1994;
10
(h) section 23 of the Crimes Act 1958 but
only in relation to conduct engaged in
by a person on or at, or in the
immediate vicinity of, rail
infrastructure or rolling stock that
15
places or may place another person in
danger of serious injury;
"rolling stock operations" has the same meaning
as in the Rail Safety Act 2005;
"rolling stock operator" has the same meaning
20
as in the Rail Safety Act 2005;
"transport safety officer" means a person
appointed under section 228T;'.
112. New Subdivision 1 heading inserted into Division 1
of Part II
25
Before section 4 of the Transport Act 1983
insert--
"Subdivision 1--General".
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113. Objects and functions of the Department
After section 4(2)(c) of the Transport Act 1983
insert--
"(ca) to develop policy for--
(i) public transport safety regulation and
5
related matters; and
(ii) the development of legislation relating
to public transport safety regulation and
related matters;".
114. New Subdivision 2 heading inserted into Division 1
10
of Part II
After section 7A of the Transport Act 1983
insert--
"Subdivision 2--Director of Public
Transport".
15
115. Functions and powers of Director
After section 9(4) of the Transport Act 1983
insert--
"(4A) The Director must perform or exercise his or
her functions referred to in this section in a
20
safe, efficient and commercial manner.".
116. New sections 9AA to 9AC inserted
After section 9 of the Transport Act 1983
insert--
"9AA. Contingency planning for exercise of
25
certain powers
The Director must develop and maintain a
contingency plan for the possible exercise of
a power under section 9(4).
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9AB. Director to conduct cost-benefit analysis
of relevant rail safety projects
(1) This section applies to a relevant rail safety
project--
(a) in relation to which the Safety Director
5
makes a rail safety recommendation;
and
(b) the Director considers may have the
effect of resulting in significant costs or
expenses being incurred by the Crown.
10
(2) The Director, before undertaking or funding
a relevant rail safety project the subject of a
rail safety recommendation, must--
(a) conduct or cause to be conducted a
cost-benefit analysis of the relevant rail
15
safety project; and
(b) consult with--
(i) the Premier, the Treasurer and any
other Minister whose area of
responsibility may be affected by
20
the proposed rail safety project;
and
(ii) any other person specified in
guidelines prepared under
section 9AC.
25
(3) The cost-benefit analysis and consultation
must be conducted--
(a) in accordance with guidelines prepared
under section 9AC; and
(b) before the Director undertakes or funds
30
the relevant rail safety project.
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9AC. Guidelines for cost-benefit analysis and
consultation
(1) The Minister may prepare guidelines for the
purposes of cost-benefit analyses and
consultation conducted under section 9AB.
5
(2) Before preparing guidelines under this
section the Minister must consult with the
Premier and the Treasurer.
(3) Guidelines prepared under this section
may--
10
(a) include guidelines about the
methodology to applied in a cost-
benefit analysis conducted under
section 9AB;
(b) require the Director obtain an
15
independent assessment about the
methodology to be applied in a cost-
benefit analysis that is conducted under
section 9AB;
(c) include guidelines about the procedure
20
for consultation under section 9AB.".
117. New Subdivision 3 of Division 1 of Part II inserted
After section 9J of the Transport Act 1983
insert--
"Subdivision 3--Director, Public Transport
25
Safety
9K. Director, Public Transport Safety
There is to be a Director, Public Transport
Safety.
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9L. Appointment and terms and conditions
(1) The Director, Public Transport Safety is to
be appointed by the Governor in Council,
and may be appointed for a period of up to
5 years.
5
(2) A person appointed as the Director, Public
Transport Safety is to hold office on the
terms and conditions (including
remuneration and allowances) set out in the
instrument by which he or she was
10
appointed.
(3) A person who holds, or has held, the office
of Director, Public Transport Safety may be
re-appointed.
(4) A person who is the Director, Public
15
Transport Safety is not, in respect of his or
her office as the Director, Public Transport
Safety, subject to the Public Administration
Act 2004.
9M. When the Safety Director ceases to hold
20
office
A person ceases to be the Director, Public
Transport Safety--
(a) at the expiry of his or her term of
office; or
25
(b) if he or she resigns in accordance with
section 9N; or
(c) if he or she ceases to hold office under
section 9O; or
(d) if he or she becomes an insolvent under
30
administration within the meaning of
the Corporations Act; or
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(e) if he or she is convicted of an indictable
offence or of an offence which, if
committed in Victoria, would be an
indictable offence; or
(f) if he or she nominates for election as a
5
member of the Parliament of any
jurisdiction.
9N. Resignation
The Director, Public Transport Safety may
resign from office by notice in writing signed
10
by him or her and delivered to the Minister.
9O. Suspension and removal from office for
misconduct etc.
(1) The Governor in Council may suspend a
person from office as the Director, Public
15
Transport Safety on the recommendation of
the Minister.
(2) The Minister may make such a
recommendation if he or she is of the
opinion that the person--
20
(a) is incapable (because of disability or
otherwise) of performing his or her
functions or duties as the Director,
Public Transport Safety; or
(b) has refused or neglected to perform his
25
or functions or duties as the Director,
Public Transport Safety; or
(c) has engaged in misconduct; or
(d) is otherwise unfit to continue to be the
Director, Public Transport Safety.
30
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(3) Before making such a recommendation in
relation to a person, the Minister must--
(a) give the person written notice that the
Minister is considering making such a
recommendation, together with details
5
of the reasons why the recommendation
is being considered; and
(b) consider any submissions made to him
or her by, or on behalf of, the person in
response to the notice.
10
(4) If the Governor in Council suspends a person
as the Director, Public Transport Safety, the
Minister must, on or before the 3rd sitting
day of each House of Parliament after that
suspension, ensure that a statement of the
15
grounds for the making of the
recommendation that the person be
suspended is laid before the House.
(5) A person ceases to hold office as the
Director, Public Transport Safety if each
20
House of Parliament declares by resolution,
passed within 7 sitting days of the House
after the laying before it of the statement,
that he or she should cease to hold office.
(6) The suspension of a person as the Director,
25
Public Transport Safety ceases--
(a) if a resolution that he or she should
cease to hold office is defeated before
either House of Parliament; or
(b) if such a resolution is not passed by
30
each House of Parliament within
7 sitting days of the House after the
laying before it of the statement.
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(7) If a person is suspended from office under
this section, he or she remains entitled to his
or her remuneration and allowances as the
Director, Public Transport Safety during the
period of suspension.
5
9P. Acting appointment
(1) The Governor in Council may appoint a
person to act in the office of Director, Public
Transport Safety--
(a) during a vacancy in that office; or
10
(b) during a period or all periods when the
person holding that office is absent
from duty or is, for any reason, unable
to perform the duties of the office.
(2) An appointment under sub-section (1) is for
15
the period, not exceeding 6 months, that is
specified in the instrument of appointment.
(3) The Governor in Council may at any time
remove the acting Director, Public Transport
Safety from office.
20
(4) While a person is acting in the office of the
Director, Public Transport Safety in
accordance with this section, the person--
(a) has, and may exercise, all the powers
and must perform all the duties of that
25
office under this Act, the Rail Safety
Act 2005, the Public Transport
Competition Act 1995 or any other
Act; and
(b) is entitled to be paid the remuneration
30
and allowances that the Director, Public
Transport Safety would have been
entitled to for performing those duties.
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9Q. Validity of acts and decisions
An act or decision of the Director, Public
Transport Safety or acting Director, Public
Transport Safety is not invalid only
because--
5
(a) of a defect or irregularity in or in
connection with his or her appointment;
or
(b) in the case of an acting Director, Public
Transport Safety, that the occasion for
10
so acting had not arisen or had ceased.
9R. Safety Director not subject to Ministerial
direction or control
Subject to sections 9U(2) and 9W, the
Director, Public Transport Safety, when
15
performing or exercising his or her functions
or powers, is not subject to the direction and
control of the Minister.
9S. Immunity
(1) The Director, Public Transport Safety, or
20
acting Director, Public Transport Safety, is
not personally liable for anything done or
omitted to be done in good faith--
(a) in the exercise of a power or the
discharge of a duty under a relevant
25
transport safety law; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
or the discharge of a duty under a
relevant transport safety law.
30
(2) Any liability resulting from an act or
omission that would, but for sub-section (1),
attach to the Director, Public Transport
Safety or acting Director, Public Transport
Safety attaches instead to the Crown.
35
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9T. Functions of Safety Director
(1) The Director, Public Transport Safety has the
following functions--
(a) any functions conferred on the Director,
Public Transport Safety by--
5
(i) this Act, the Rail Safety Act
2005, the Public Transport
Competition Act 1995 or any
other Act;
(ii) regulations made under this Act,
10
the Rail Safety Act 2005, the
Public Transport Competition
Act 1995 or any other Act;
(b) make recommendations to the Minister
with respect to--
15
(i) the operation, administration and
enforcement of this Subdivision
and Divisions 4B, 6 and 7 of
Part VII and regulations made
under this Act for the purposes of
20
this Subdivision or those
Divisions;
(ii) the operation, administration and
enforcement of the Rail Safety
Act 2005 and regulations made
25
under that Act;
(iii) regulations that the Minister may
make under the Rail Safety Act
2005 or under this Act for the
purposes of this Subdivision or
30
Divisions 4B, 6 and 7 of Part VII;
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(iv) codes of practice that the Minister
proposes to approve under Part 8
of the Rail Safety Act 2005 or
Part 2 of the Public Transport
Competition Act 1995;
5
(c) advise and make recommendations to
the Minister in respect of matters
relating to the safe operation of public
transport in the State;
(d) investigate and report on public
10
transport safety matters;
(e) prepare--
(i) codes of practice (including codes
of practice for approval by the
Minister under Part 8 of the Rail
15
Safety Act 2005 or Part 2 of the
Public Transport Competition
Act 1995); and
(ii) guidelines--
to provide practical guidance to
20
accredited rail operators and any other
person who may be placed under an
obligation or duty by or under a
relevant transport safety law;
(f) promote education and training by--
25
(i) devising, in co-operation with
educational and other bodies,
courses in public transport safety;
and
(ii) approving courses in public
30
transport safety (whether or not
devised in co-operation with
another body); and
(iii) facilitating access to those
courses; and
35
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(iv) initiating or promoting events
such as conferences and forums,
and the publication of
information, relating to public
transport safety;
5
(g) collect information and data relating to
public transport safety matters;
(h) promote awareness in the rail transport
industry (including rail safety workers)
and among the public about rail safety
10
initiatives;
(i) develop policy in relation to the
administration of public transport safety
regulation.
(2) The functions of the Director, Public
15
Transport Safety do not include the function
of developing policy for--
(a) public transport safety regulation and
related matters; and
(b) the development of legislation relating
20
to public transport safety regulation and
related matters.
(3) However, the Director, Public Transport
Safety may advise or comment on the
development of policy referred to in sub-
25
section (2).
9U. Powers of Safety Director
(1) The Director, Public Transport Safety may
do all things that are necessary or convenient
to enable him or her to carry out his or her
30
functions.
(2) Subject to the approval of the Minister, the
Director, Public Transport Safety may on
behalf of the Crown--
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(a) acquire, hold or dispose of real or
personal property;
(b) enter into any agreement, lease or
licence;
(c) participate in the formation of a
5
corporation, trust, partnership or other
body;
(d) subscribe for or otherwise acquire, and
hold and dispose of, shares in or
debentures or other securities of, a
10
corporation;
(e) become a member of a company
limited by guarantee;
(f) subscribe for or otherwise acquire, and
hold and dispose of, units in a trust;
15
(g) acquire, and hold and dispose of, an
interest in a partnership or other body;
(h) enter into partnership or into any
arrangement for sharing of profits,
union of interest, co-operation, joint
20
venture, reciprocal concession or
otherwise, with any person or body
carrying on or engaged in, or about to
carry on or engage in, any business or
transaction whether within or outside
25
Victoria relating to, or connected with,
any function of the Director, Public
Transport Safety;
(i) engage consultants, contractors or
agents.
30
(3) The Director, Public Transport Safety may
perform or exercise his or her functions or
powers within or outside Victoria.
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9V. Safety Director to have regard to certain
objectives
In performing or exercising his or her
functions or powers, the Director, Public
Transport Safety must have regard to--
5
(a) ensuring that the public transport
system achieves the highest safety
standards reasonably practicable; and
(b) ensuring that societal costs are assessed
and considered such that the benefits
10
resulting from performing or exercising
a function or power are proportionate to
those costs; and
(c) the objects of the Rail Safety Act 2005
set out in section 11 of that Act.
15
9W. Ministerial direction to investigate public
transport safety matters
(1) The Minister may direct the Director, Public
Transport Safety to investigate a public
transport safety matter.
20
(2) The Minister must not give a direction under
this section--
(a) that directs the Director, Public
Transport Safety as to how to conduct
an investigation into a public transport
25
safety matter; or
(b) that directs the Director, Public
Transport Safety as to which persons
the Director, Public Transport Safety
may request or direct to assist him or
30
her in investigating a public transport
safety matter; or
(c) about the outcome of any investigation
into a public transport safety matter; or
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(d) that directs the Director, Public
Transport Safety to stop investigating
any public transport safety matter.
(3) A direction under this section--
(a) must be published in the Government
5
Gazette; and
(b) takes effect on it being published in the
Government Gazette.
(4) The Minister must cause to be laid before
each House of Parliament a copy of a
10
direction under this section on or before the
3rd sitting day of the House after the
direction is published in the Government
Gazette.
(5) The Director, Public Transport Safety must
15
comply with a direction given under this
section.
9X. Staff
There may be employed under Part 3 of the
Public Administration Act 2004 any
20
employees that are necessary to enable the
Director, Public Transport Safety to carry out
his or her functions.
9Y. Delegation
The Director, Public Transport Safety may,
25
by instrument, delegate any of his or her
powers under this Act, the Rail Safety Act
2005 or the Public Transport Competition
Act 1995 (other than this power of
delegation) to--
30
(a) a transport safety officer; or
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(b) any employee employed under Part 3 of
the Public Administration Act 2004 to
enable the Director, Public Transport
Safety to carry out his or her functions;
or
5
(c) a consultant, contractor or agent
engaged by him or her.
9Z. Information disclosure by Safety Director
(1) The Safety Director may, if the Safety
Director thinks it necessary for the safe
10
operation of public transport, disclose
information obtained or collected by the
Safety Director in the performance or
exercise of his or her functions or powers
under this or any other Act to any other
15
person.
(2) The Safety Director may, if he or she thinks
it desirable for the promotion of the safe
operation of public transport, publish any
information, including a report arising out
20
of--
(a) an investigation by him or her of a
public transport safety matter; or
(b) an inquiry under section 59 of the Rail
Safety Act 2005.
25
(3) A publication under sub-section (2) must not
identify a person by name.
9ZA. Safety Director to conduct cost-benefit
analysis of and consult about mandatory
rail safety decisions
30
(1) This section applies to a mandatory rail
safety decision that may result in significant
costs or expenses being incurred by a person
whose interests are affected by the decision.
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(2) The Safety Director must--
(a) conduct or cause to be conducted a
cost-benefit analysis of a mandatory
rail safety decision; and
(b) consult with--
5
(i) the Premier, the Treasurer and any
other Minister whose area of
responsibility may be affected by
a mandatory rail safety decision;
and
10
(ii) the person whose interests are
affected by a mandatory rail safety
decision.
(3) The cost-benefit analysis and consultation
must be conducted--
15
(a) in accordance with guidelines prepared
under section 9ZB; and
(b) before a mandatory rail safety decision
is made unless the Safety Director
considers the mandatory rail safety
20
decision must be made immediately to
protect public safety.
(4) If a mandatory rail safety decision is made
immediately to protect public safety, the
cost-benefit analysis and consultation must
25
be conducted as soon as practicable after the
decision is made.
9ZB. Guidelines
(1) The Minister may prepare guidelines for the
purposes of cost-benefit analyses and
30
consultation conducted under section 9ZA.
(2) Before preparing guidelines under this
section the Minister must consult with the
Premier and the Treasurer.
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(3) Guidelines prepared under this section--
(a) may include guidelines about the
methodology to be applied in an
analysis conducted under section 9ZA;
and
5
(b) may require the Safety Director to
obtain an independent assessment about
the methodology to be applied in a
cost-benefit analysis conducted under
section 9ZA; and
10
(c) must include guidelines about the
procedure for consultation under
section 9ZA.
9ZC. Memoranda of understanding
(1) The Safety Director may enter into a
15
memorandum of understanding with the
Chief Investigator, or any other person or
body that is permitted by the regulations,
about the performance or exercise of their
respective functions or powers.
20
(2) A memorandum of understanding--
(a) must include such matters, if any,
required by the regulations; and
(b) may include any other matters that the
parties to the memorandum consider
25
appropriate.
(3) The Safety Director must ensure that a
memorandum of understanding that he or she
enters into is published--
(a) in the Government Gazette; and
30
(b) on the internet.
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9ZD. Power to give advice on compliance
(1) The Safety Director may give advice to a
person who has a duty or obligation under a
relevant transport safety law about
complying with that duty or obligation.
5
(2) The giving of such advice by the Safety
Director does not give rise to--
(a) any liability of, or other claim against,
the Safety Director; or
(b) any right, expectation, duty or
10
obligation that would not otherwise be
conferred or imposed on the person
given the advice; or
(c) any defence that would not otherwise
be available to that person.
15
(3) The Safety Director's power under this
section to give advice may also be exercised
by a transport safety officer or, if the Safety
Director authorises any other person to
exercise the power, that other person.".
20
118. New Subdivision 4 heading inserted into Division 1
of Part II
Before section 10 of the Transport Act 1983
insert--
"Subdivision 4--Provisions relating to
25
Passenger Services".
119. Repeal
Divisions 2 and 3 of Part VI of the Transport Act
1983 are repealed.
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120. Amendment of heading to Part VII
In the heading to Part VII of the Transport Act
1983, after "PENALTIES" insert "AND
OTHER MATTERS".
121. Definition
5
In section 208 of the Transport Act 1983, in the
definition of "safety work infringement"--
(a) for "94(1)(a), (d) or (e)" substitute
"76(1)(a), (g) or (h) of the Rail Safety Act
2005";
10
(b) in paragraph (b), for "93(7)" substitute
"74 of the Rail Safety Act 2005".
122. New Division 4AAA of Part VII inserted
After section 221T of the Transport Act 1983
insert--
15
'Division 4AAA--Transport Safety Offences
Subdivision 1--Interpretation
221U. Definitions
In this Division--
"authorised person" means--
20
(a) a person employed by a passenger
transport company or a bus
company who has duties in
relation to the operation of a road
vehicle or a rail vehicle operated
25
by the passenger transport
company or bus company; or
(b) a member of the police force; or
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(c) an authorised officer; or
(d) a transport safety officer; or
(e) any other person appointed in
writing by a passenger transport
company, a rail freight operator,
5
Rail Track or the Director for the
purposes of this Division;
"bicycle" means a vehicle with one or more
wheels that is built to be propelled by
human power through a belt, chain or
10
gears (whether or not it has an auxiliary
motor), and--
(a) includes a pedicab, penny-
farthing, scooter, tricycle and
unicycle;
15
(b) does not include a wheelchair,
wheeled recreational device,
wheeled toy, or any vehicle with
an auxiliary motor capable of
generating a power output over
20
200 watts (whether or not the
motor is operating);
"commercial passenger vehicle" has the
same meaning as in section 86(1);
"container weight declaration" for a
25
freight container means a declaration
that states, or that purports to state, the
weight of the container and its contents;
"freight container" has the same meaning
as in the Road Safety Act 1986;
30
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"level crossing" means--
(a) an area where a road and railway
tracks cross at substantially the
same level, whether or not there is
a level crossing sign on the road at
5
all or any of the entrances to the
area; or
(b) an area where a road and tramway
tracks cross at substantially the
same level and that has a level
10
crossing sign on the road at each
entrance to the area;
Note: Rule 120 of the Road Rules includes
diagrams of level crossing signs. As to
15 what are the Road Rules, see the Road
Safety (Road Rules) Regulations 1999.
"operator", in relation to a vehicle, means a
person who is responsible for
controlling or directing the operations
of the vehicle in connection with a
20
business for, or involving, the transport
of goods or passengers by road but does
not include a person who merely--
(a) arranges for the registration of the
vehicle; or
25
(b) maintains, or arranges for the
maintenance of, the vehicle;
"private omnibus" means a motor vehicle
that is used for operating a private bus
service within the meaning of the
30
Public Transport Competition Act
1995;
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"rail premises" means any land, building,
premises or structure owned, occupied
or leased by--
(a) a passenger transport company or
the Director in connection with
5
their capacity as providers of
passenger services; or
(b) a rail freight operator in
connection with its capacity as a
provider of a rail freight service;
10
or
(c) Rail Track;
"railway track" means a railway used by a
passenger transport company, rail
freight operator or the Director to
15
operate a railway for the carriage of
passengers or freight;
"rail vehicle" means a vehicle that operates
on or uses a railway track for the
carriage of passengers or freight and
20
includes a train, carriage and wagon;
"road vehicle" means any vehicle propelled
by any form of motive power that is
used or intended for use by a passenger
transport company, bus company or rail
25
freight operator for the carriage of
passengers or freight on any road and
includes--
(a) a tram that operates on or uses a
tramway track;
30
(b) a commercial passenger vehicle
that is not a taxi-cab;
(c) a private omnibus;
"taxi-cab" has the same meaning as in
section 86(1);
35
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"tramway track" means a railway used by
a passenger transport company or the
Director to operate a tramway for the
carriage of passengers;
"vehicle" means a conveyance that is
5
designed to be propelled or drawn by
any means, whether or not capable of
being so propelled or drawn, and
includes--
(a) a motor vehicle;
10
(b) a trailer;
(c) a tram;
(d) a train;
(e) a bicycle;
(f) an air-cushion vehicle;
15
(g) an animal that is being ridden or is
drawing a vehicle;
(h) a combination of motor vehicles
consisting of a motor vehicle
connected to one or more
20
vehicles--
but does not include--
(i) a wheelchair other than a
motorised wheelchair capable of a
speed of 10 kilometres per hour or
25
more; or
(j) a wheeled recreational device; or
(k) a wheeled toy;
"wheeled recreational device" means a
wheeled device, built to transport a
30
person, propelled by human power or
gravity, and ordinarily used for
recreation or play, and--
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(a) includes rollerblades, rollerskates,
a skateboard or similar wheeled
device;
(b) does not include a golf buggy,
pram, stroller or trolley, or a
5
bicycle, wheelchair or wheeled
toy;
"wheeled toy" means a child's pedal car,
scooter or tricycle or a similar toy.
221V. Exclusion of mistake of fact defence
10
(1) This section applies if a provision of this
Division states that a person does not have
the benefit of the mistake of fact defence for
an offence.
(2) It is not a defence to a charge for the offence
15
for the person to prove that, at or before the
time of the conduct constituting the offence,
the person was under a mistaken but honest
and reasonable belief about facts which, had
they existed, would have meant that the
20
conduct would not have constituted an
offence.
221W. Statement that mistake of fact defence
does not apply not to affect other offences
A statement in this Division that a person
25
does not have the benefit of the mistake of
fact defence is solely intended for the
purposes of this Division, and it is not
intended to affect the question of whether
that defence is, or is not, available to a
30
person in relation to any offence outside this
Division.
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Subdivision 2--Offences
221X. Overdimensional vehicles crossing tracks
(1) A person must not, without the written
permission of the Director, drive or attempt
to drive or convey across a railway track--
5
(a) a vehicle with a mass limit that exceeds
a mass limit for that vehicle under the
Road Safety (Vehicles) Regulations
1999; or
(b) a vehicle which, either by itself or in
10
combination with any load carried by it,
exceeds--
(i) the maximum allowable length; or
(ii) the maximum allowable height
(when measured from the highest
15
surface of the track to be crossed);
or
(iii) the maximum allowable width--
specified by notice under section
221ZA; or
20
(c) a vehicle which may obstruct, displace
or interfere with--
(i) the track to be crossed; or
(ii) any overhead power line of a
rolling stock operator in the
25
vicinity of the track.
Penalty: 20 penalty units.
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(2) A person must not, without the written
permission of the Director, drive or attempt
to drive or convey across a tramway track--
(a) a vehicle with a mass limit that exceeds
a mass limit for that vehicle under the
5
Road Safety (Vehicles) Regulations
1999; or
(b) a vehicle which, either by itself or in
combination with any load carried by it,
exceeds--
10
(i) the maximum allowable length; or
(ii) the maximum allowable height
(when measured from the highest
surface of the track to be crossed);
or
15
(iii) the maximum allowable width--
specified by notice under section
221ZA; or
(c) a vehicle which may obstruct, displace
or interfere with the track to be crossed
20
or with any overhead power line or
support wires of a rolling stock operator
in the vicinity of the track.
Penalty: 20 penalty units.
(3) A person charged with an offence under sub-
25
section (1) or (2) does not have the benefit of
the mistake of fact defence.
Note: Section 221V sets out how sub-section (3)
operates.
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(4) If a vehicle that exceeds a mass limit for that
vehicle under the Road Safety (Vehicles)
Regulations 1999 is driven or attempted to
be driven or conveyed--
(a) across a railway track in contravention
5
of sub-section (1); or
(b) across a tramway track in contravention
of sub-section (2)--
the person charged with an offence under
sub-section (1) or (2) has the benefit of the
10
reasonable steps defence so far as it relates to
reliance on the weight stated in a container
weight declaration.
Note: Section 221Z sets out how this defence
15 operates.
(5) The Director may grant permission under
sub-section (1) or (2) and may impose
conditions on that permission.
(6) A person must comply with any conditions
imposed by the Director in granting
20
permission under sub-section (1) or (2).
Penalty: 20 penalty units.
(7) The fee for the granting of permission is the
fee specified by notice under section 221ZA.
(8) If, in the Director's opinion, one or more of
25
the Department's employees or passenger
transport company, rail freight operator or
Rail Track employees or agents must, in the
interests of safety, be present when the
vehicle crosses the railway track or the
30
tramway track the Director may, in addition
to the fee referred to in sub-section (6)
impose the further charge specified by notice
under section 221ZA.
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(9) The Director may--
(a) refund, in whole or in part, any fee or
charge paid, under this section; or
(b) waive, in whole or in part, any fee or
charge payable, under this section.
5
221Y. Operators of overdimensional vehicles
crossing tracks without permission also
guilty of offence
(1) If a vehicle is driven or attempted to be
driven or conveyed--
10
(a) across a railway track in contravention
of section 221X(1); or
(b) across a tramway track in contravention
of section 221X(2); or
(c) not in accordance with a condition
15
imposed by the Director on a
permission under section 221X(1)
or (2)--
the operator of the vehicle is guilty of an
offence and is liable to a penalty not
20
exceeding 20 penalty units.
(2) A person charged with an offence under this
section does not have the benefit of the
mistake of fact defence.
25 Note: Section 221V sets out how sub-section (2)
operates.
(3) If a vehicle that exceeds a mass limit for that
vehicle under the Road Safety (Vehicles)
Regulations 1999 is driven or attempted to
be driven or conveyed--
30
(a) across a railway track in contravention
of section 221X(1); or
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(b) across a tramway track in contravention
of section 221X(2)--
the person charged with an offence under
sub-section (1)(a) or (b) has the benefit of
the reasonable steps defence so far as it
5
relates to reliance on the weight stated in a
container weight declaration.
Note: Section 221Z sets out how this defence
operates.
221Z. Reasonable steps defence--reliance on
10
container weight declaration
(1) This section applies if--
(a) a person is charged with an offence
under section 221X(1) or (2); or
(b) the operator of a vehicle is charged
15
with an offence under section
221Y(1)(a) or (b)--
and the person or operator has (as the case
requires) the benefit, under section 221X(4)
or 221Y(3), of the reasonable steps defence
20
so far as it relates to reliance on the weight
stated in a container weight declaration.
(2) To the extent that the weight of a freight
container and its contents is relevant to the
offence, the person charged may rely on the
25
weight stated in the relevant container
weight declaration, unless it is established
that the person knew, or ought reasonably to
have known, that--
(a) the stated weight was lower than the
30
actual weight; or
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(b) the distributed weight of the container
and its contents, together with--
(i) the mass or location of any other
load; or
(ii) the mass of the vehicle or any part
5
of it--
would result in the breach of a mass
limit under the Road Safety (Vehicles)
Regulations 1999.
221ZA. Specification of vehicle limits and fees for
10
overdimensional vehicles crossing tracks
(1) The Director, by notice published in the
Government Gazette, may specify--
(a) the maximum allowable length, height
or width for a vehicle either by itself or
15
in combination with any load carried by
it for the purposes of section 221X(1)
or (2);
(b) the fee payable for the granting of
permission under section 221X;
20
(c) the further charge payable for the
purposes of section 221X(8).
(2) The further charge specified by notice under
this section for the purposes of section
221X(8) may differ according to differences
25
in time, place or circumstance.
221ZB. Animals on railway tracks
A person must not take or attempt to take an
animal across railway tracks at a pedestrian
or level crossing--
30
(a) when warning signals or devices are
operating at the crossing; or
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(b) when gates at the crossing are closed or
locked; or
(c) when a rail vehicle is entering the
crossing; or
(d) when a rail vehicle can be seen or heard
5
approaching and there would be a
danger of a collision with the animal if
it entered the crossing; or
(e) if the crossing or the path beyond the
crossing is blocked; or
10
(f) when directed not to do so by an
authorised person.
Penalty: 20 penalty units.
221ZC. Placing things on tracks
A person must not place any thing on a
15
railway track or a tramway track unless the
person is driving a vehicle and places the
vehicle on a railway track or tramway track
in the normal course of driving.
Penalty: 20 penalty units.
20
221ZD. Mounting a place not intended for
travel etc.
(1) A person must not, without reasonable
excuse, mount or attempt to mount a part of
a locomotive, rail vehicle or road vehicle not
25
intended for the purpose of travel by
passengers.
Penalty: 15 penalty units.
Example
30 Mounting roof of a rail vehicle or road vehicle,
leading brake van of a rail vehicle, brake van of a rail
vehicle, driver's cabin of a road vehicle, coupling or
communication platform of a rail vehicle.
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(2) A person must not, without reasonable
excuse, walk or climb on any part of rail
premises not intended for use by passengers
or the public.
Penalty: 15 penalty units.
5
221ZE. Travelling in a place not intended for
travel etc.
(1) A person must not, without reasonable
excuse, travel or attempt to travel on a part
of a locomotive, rail vehicle or road vehicle
10
not intended for the purpose of travel.
Penalty: 20 penalty units.
Example
Travelling on the roof of a rail vehicle or road vehicle,
15 leading brake van of a rail vehicle, brake van of a rail
vehicle, driver's cabin of a road vehicle, coupling or
communication platform of a rail vehicle.
(2) A rider of a bicycle or a person in or on a
wheeled recreational device or wheeled toy
must not attach or attempt to attach himself
20
or herself or another person or the bicycle,
wheeled recreational device or wheeled toy
to the exterior of a rail vehicle or road
vehicle for any purpose.
Penalty: 20 penalty units.
25
Example
A bicycle rider attached to a tram to enable the rider
and the bicycle to be pulled along behind the tram.
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221ZF. Applying brake or emergency device
A person must not, without reasonable
excuse--
(a) apply any brake or make use of any
emergency device fitted to a rail vehicle
5
or road vehicle; or
(b) make use of any emergency device on
rail premises.
Penalty: 20 penalty units.
10 Example
Emergency devices include an emergency button on a
station communication board or on an escalator.
221ZG. Stopping a rail vehicle or road vehicle
A person must not, without reasonable
excuse, cause or attempt to cause a rail
15
vehicle or road vehicle in motion to be
stopped.
Penalty: 20 penalty units.
221ZH. Operating equipment
(1) A person must not, without the permission of
20
an authorised person--
(a) move or attempt to move;
(b) interfere or attempt to interfere with;
(c) tamper or attempt to tamper with;
(d) operate or attempt to operate--
25
any equipment, rail vehicle or road vehicle,
owned or operated by a passenger transport
company, bus company or the Director in
connection with the operation of a passenger
service.
30
Penalty: 20 penalty units.
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(2) A person must not, without the permission of
an authorised person--
(a) move or attempt to move;
(b) interfere or attempt to interfere with;
(c) tamper or attempt to tamper with;
5
(d) operate or attempt to operate--
any equipment, rail vehicle, owned or
operated by a rail freight operator in
connection with its rail freight service or by
Rail Track.
10
Penalty: 20 penalty units.
221ZI. Permitting drainage
A person must not cause or permit drainage
or sewage to flow or empty from any
premises occupied by the person onto land or
15
premises the property of Rail Track.
Penalty: 20 penalty units.'.
123. Repeal of certain offences
Section 222 of the Transport Act 1983 is
repealed.
20
124. New section 223 substituted
For section 223 of the Transport Act 1983
substitute--
"223. Offence to trespass on land or premises of
Roads Corporation or Rail Track
25
A person must not wilfully trespass on any
land or premises owed or occupied by the
Roads Corporation or Rail Track.
Penalty: 20 penalty units.".
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125. New Division 4B of Part VII inserted
After section 228R of the Transport Act 1983
insert--
'Division 4B--Enforcement of Relevant
Transport Safety Laws
5
Subdivision 1--Interpretation
228S. Definitions
(1) In this Division--
"approved code of practice" has the same
meaning as in the Rail Safety Act
10
2005;
"compliance and investigative purposes"
includes purposes--
(a) related to ascertaining whether a
relevant transport safety law has
15
been or is being complied with,
including whether an offence has
been committed against a relevant
transport safety law;
(b) related to ascertaining whether an
20
approved compliance code has
been or is being complied with;
(c) related to an investigation into a
public transport safety matter;
(d) related to an audit under
25
Division 5 of Part 3 of the Rail
Safety Act 2005;
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"contractor", in relation to an accredited
rail operator, means a person engaged
directly or indirectly by the accredited
rail operator to supply rail
infrastructure operations or rolling
5
stock operations to that accredited rail
operator, and includes a sub-contractor;
"major incident" has the same meaning as
in the Rail Safety Act 2005;
"premises" includes any structure, building
10
or place (whether built on or not), and
any part of such structure, building or
place;
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
15
"railway" has the same meaning as in the
Rail Safety Act 2005;
"rail operations" means rail infrastructure
operations or rolling stock operations;
"railway premises" has the same meaning
20
as in the Rail Safety Act 2005;
"rail safety worker" has the same meaning
as in the Rail Safety Act 2005;
"relevant person" means--
(a) a rail operator or an accredited rail
25
operator; or
(b) an employee of a rail operator or
accredited rail operator; or
(c) a contractor of an accredited rail
operator; or
30
(d) a rail safety worker; or
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(e) a utility; or
(f) an employee of a utility; or
(g) a works contractor within the
meaning of section 85 of the
Electricity Industry Act 2000,
5
section 48A of the Road
Management Act 2004, section
137A(4) of the Water Act 1989
or section 62A(4) of the Water
Industry Act 1994; or
10
(h) a person authorised in writing by a
gas distribution company or gas
transmission company under
section 148(7) or 149(6) of the
Gas Industry Act 2001;
15
(i) a person whom the Safety
Director or a transport safety
officer believes on reasonable
grounds may able to provide
information, documents or
20
assistance for compliance and
investigative purposes;
"residential premises" means premises, or
a part of premises, that is used for
predominantly residential purposes;
25
"retention period" means a period of
90 days after the seizure of a thing
under Subdivision 4 or a search warrant
executed in accordance with
Subdivision 5;
30
"rolling stock" has the same meaning as in
the Rail Safety Act 2005;
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"utility" means--
(a) an entity (whether publicly or
privately owned) which provides,
or intends to provide, water,
sewerage, drainage, gas,
5
electricity, telephone,
telecommunication or other like
services under the authority of an
Act of Victoria or the
Commonwealth;
10
(b) a road authority within the
meaning of the Road
Management Act 2004.
(2) For the purposes of this Division, a premises
or a part of a premises, that is used for the
15
carrying out of rail operations, is not to be
taken to be residential premises merely
because sleeping or other accommodation is
provided there to rail safety workers.
228SA. Crown to be bound
20
(1) This Division binds the Crown, not only in
right of Victoria but also, so far as the
legislative power of the Parliament permits,
the Crown in all its other capacities.
(2) To avoid doubt, the Crown is a body
25
corporate for the purposes of this Division.
Subdivision 2--Transport Safety Officers
228T. Appointment
The Safety Director, by instrument, may
appoint as a transport safety officer any
30
person (including any person employed in
the Department under Part 3 of the Public
Administration Act 2004) who is suitably
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qualified or trained to exercise the powers of
a transport safety officer under this Division.
228U. Identity cards
(1) The Safety Director must issue an identity
card to a transport safety officer appointed
5
under section 228T.
(2) An identity card must--
(a) contain the name and a photograph of
the transport safety officer to whom it
is issued; and
10
(b) identify the transport safety officer to
whom it is issued as a transport safety
officer under this Division.
228V. Return of identity cards
If a person to whom an identity card has
15
been issued ceases to be a transport safety
officer, the person must return the identity
card to the Safety Director as soon as
practicable.
Penalty: 5 penalty units.
20
228W. Production of identity card
(1) A transport safety officer must produce his
or her identity card for inspection--
(a) before exercising a power under this
Division; or
25
(b) if asked to do so by any person at any
time during the exercise of a power
under this Division.
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(2) However, a transport safety officer need not
produce his or her identity card when asked
to do so if--
(a) the officer reasonably believes that the
production of his or her identity card
5
would--
(i) affect the safety or welfare of any
person; or
(ii) frustrate the effective exercise of a
power under this Division; or
10
(b) the request to produce his or her
identity card is made by a person to
whom the officer has already produced
that identity card on the same day
before exercising a power under this
15
Division.
(3) Any action taken or thing done by a transport
safety officer under this Division is not
invalidated by his or her failure to produce
his or her identity card.
20
228X. Transport safety officers subject to Safety
Director's direction
(1) The Safety Director may give a direction to a
transport safety officer in relation to that
officer's performance or exercise of a
25
function or power under this Division.
(2) A direction under sub-section (1) may be of
general nature or may relate to a specified
matter or class of matter.
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228Y. Investigation by Ombudsman of actions
etc. of transport safety officers
(1) The Ombudsman may enquire into or
investigate--
(a) any action taken by a person who is a
5
relevant transport safety officer who in
the person's capacity as a transport
safety officer; and
(b) any matter relating to such an action.
(2) For the purposes of sub-section (1), the
10
Ombudsman Act 1973 applies as if--
(a) the employer of the person was a public
statutory body within the meaning of
that Act; and
(b) the senior executive officer of the
15
employer (by whatever title he or she is
known) was the principal officer of that
public statutory body.
(3) In this section--
"relevant transport safety officer" means a
20
transport safety officer employed by
any person other than a public statutory
body within the meaning of the
Ombudsman Act 1973.
Subdivision 3--Powers of Entry
25
228Z. Power of entry
A transport safety officer may, for
compliance and investigative purposes--
(a) enter, without consent, any railway
premises at any time during which rail
30
operations or other related activities are
being carried out or are usually carried
out in or on the railway premises; or
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(b) enter any railway premises or
residential premises at any time if--
(i) the occupier of the railway
premises or residential premises
consents to the entry of those
5
premises; or
(ii) the transport safety officer is
authorised to do so under a search
warrant.
228ZA. Procedure for entry with consent
10
(1) This section applies if a transport safety
officer intends to ask an occupier of a
railway premises or residential premises to
consent to that officer entering the railway
premises or residential premises in
15
accordance with section 228Z(b)(i).
(2) Before asking for the consent, the officer
must inform the occupier--
(a) of the purpose of the entry; and
(b) that the occupier is not required to
20
consent.
(3) If the consent is given, the officer may ask
the occupier to sign an acknowledgment of
the consent.
(4) The acknowledgment must state--
25
(a) that the occupier has been informed--
(i) of the purpose of the entry; and
(ii) that the occupier is not required to
consent; and
(b) the purpose of the entry; and
30
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(c) that the occupier gives the officer
consent to enter the place and exercise
powers under this Division; and
(d) the time and date the consent was
given.
5
(5) If the occupier signs the acknowledgment,
the transport safety officer must immediately
give a copy to the occupier.
(6) If, in any proceeding, an acknowledgment of
the consent is not produced to the court, it
10
must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry by a transport safety officer and the
exercise of powers by that officer under this
Division.
15
Subdivision 4--Inspection, Inquiry, Search and
Seizure Powers
228ZB. General inspection, inquiry and search
powers
(1) A transport safety officer who enters railway
20
premises or residential premises under this
Division may, for compliance and
investigative purposes, do any of the
following--
(a) inspect rail infrastructure or a part of
25
rail infrastructure, rolling stock or any
other thing in or on the railway
premises;
(b) inquire into any railway accident or
other incident affecting the--
30
(i) safe operation, construction,
maintenance, repair or alteration
of rail infrastructure in or on the
railway premises; or
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(ii) safe operation, maintenance,
repair or alteration of rolling stock
in or on the railway premises;
(c) take measurements, make surveys and
take levels and, for those purposes, dig
5
trenches, break up the soil and set up
any posts, stakes or markers in or on
the railway premises;
(d) make tests or sketches in connection
with any inspection or inquiry;
10
(e) take samples, photographs or film,
videotape or otherwise record images
or record sound in connection with any
inspection or inquiry;
(f) search for any thing that may be
15
evidence of the commission of an
offence against a relevant transport
safety law or a breach of the conditions
or restrictions of an accreditation of an
accredited rail operator;
20
(g) search for and inspect relevant
documents;
(h) require a person in or on the railway
premises to produce to the officer, any
relevant documents in the person's
25
custody or under the person's control;
(i) make copies of, or take extracts from,
any document kept in or on the railway
premises;
(j) exercise any other power conferred on
30
the officer by this Act.
(2) In doing any thing referred to in sub-
section (1), a transport safety officer may be
assisted by any person.
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(3) A film, photograph, videotape or image
taken under sub-section (1)(e) of rolling
stock, or of any part of rolling stock, is not
inadmissible as evidence by reason only of
the fact that it includes the likeness of one or
5
more of the rolling stock's passengers if the
capturing of that likeness does not appear to
have been the main reason for the taking of
the film, photograph, videotape or image.
228ZC. Securing a site
10
(1) A transport safety officer may take all
reasonable steps to secure the perimeter of
any site at a railway premises entered into
under this Division if he or she believes on
reasonable grounds that it is necessary--
15
(a) for the purpose of ascertaining whether
an offence has been committed against
a relevant transport safety law; or
(b) to preserve evidence relating to the
commission of an offence against a
20
relevant transport safety law.
(2) The perimeter of a site secured under this
section may be for a period that the transport
safety officer considers appropriate or the
Safety Director specifies.
25
228ZD. Offence to enter secured site
A person must not enter a site the perimeter
of which has been secured under section
228ZC unless the person has a reasonable
excuse.
30
Penalty: 60 penalty units.
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228ZE. Seizure power
A transport safety officer who enters railway
premises or residential premises under this
Division may seize any thing at that premises
if that officer reasonably believes that the
5
seizure of the thing is necessary for
compliance and investigative purposes.
228ZF. Use of equipment to examine or process
things
(1) A transport safety officer may bring on to
10
any railway premises or residential premises
any equipment reasonably necessary for the
examination or processing of things found at
the railway premises or residential premises
in order to determine whether they are things
15
that may be seized.
(2) The transport safety officer, or a person
assisting the transport safety officer, may
operate equipment already at the railway
premises or residential premises to carry out
20
the examination or processing of a thing
found at the railway premises or residential
premises in order to determine whether it is a
thing that may be seized, if the transport
safety officer or person assisting believes on
25
reasonable grounds that--
(a) the equipment is suitable for the
examination or processing; and
(b) the examination or processing can be
carried out without damage to the
30
equipment or the thing.
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Subdivision 5--Search Warrants
228ZG. Search warrant
(1) A transport safety officer may apply to a
magistrate for the issue of a search warrant
in relation to particular railway premises or
5
residential premises if the transport safety
officer believes on reasonable grounds that
there is, or may be within the next 72 hours,
in, or on, the railway premises or residential
premises evidence of the commission of an
10
offence against a relevant transport safety
law.
(2) If a magistrate is satisfied that there are
reasonable grounds for suspecting that there
is, or may be within the next 72 hours, in or
15
on railway premises or residential premises a
thing or things of a particular kind that may
be evidence of the commission of an offence
against relevant transport safety law, the
magistrate may issue a search warrant
20
authorising a transport safety officer named
in the warrant and any assistants the
transport safety officer considers
necessary--
(a) to enter the railway premises or
25
residential premises, or the part of
railway premises or residential
premises, named or described in the
warrant; and
(b) to search for and seize any thing named
30
or described in the warrant.
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(3) In addition to any other requirement, a
search warrant issued under this section must
state--
(a) the offence suspected; and
(b) the railway premises or residential
5
premises to be searched; and
(c) a description of the thing for which the
search is to be made; and
(d) any conditions to which the warrant is
subject; and
10
(e) whether entry is authorised to be made
at any time or during stated hours; and
(f) a day, not later than 7 days after the
issue of the warrant, on which the
warrant ceases to have effect.
15
(4) A search warrant must be issued in
accordance with the Magistrates' Court Act
1989 and in the form set out in the
regulations under that Act.
(5) Despite section 78 of the Magistrates'
20
Court Act 1989, a search warrant must not
authorise a transport safety officer to arrest a
person.
(6) Subject to any provision to the contrary in
this Division, the rules to be observed with
25
respect to search warrants mentioned in the
Magistrates' Court Act 1989 extend and
apply to warrants under this section.
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228ZH. Seizure of things not mentioned in the
warrant
A search warrant authorises the transport
safety officer executing the warrant, in
addition to the seizure of any thing of the
5
kind described in the warrant, to seize any
thing which is not of the kind described in
the warrant if--
(a) the transport safety officer believes, on
reasonable grounds, that the thing--
10
(i) is of a kind which could have been
included in a warrant issued under
this Division; or
(ii) will afford evidence about the
commission of an offence against
15
a relevant transport safety law;
and
(b) in the case of seizure, the transport
safety officer believes, on reasonable
grounds, that it is necessary to seize
20
that thing in order to prevent its
concealment, loss or destruction or its
use in the commission of an offence
against a relevant transport safety law.
228ZI. Announcement before entry
25
(1) Before executing a search warrant, the
transport safety officer named in the warrant
or a person assisting the transport safety
officer must announce that he or she is
authorised by the warrant to enter the railway
30
premises or residential premises and give
any person at the railway premises or
residential premises an opportunity to allow
entry to the railway premises or residential
premises.
35
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(2) The transport safety officer or a person
assisting the transport safety officer need not
comply with sub-section (1) if he or she
believes on reasonable grounds that
immediate entry to the railway premises or
5
residential premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the
search warrant is not frustrated.
228ZJ. Copy of warrant to be given to occupier
10
If the occupier or another person who
apparently represents the occupier is present
at any railway premises or residential
premises when a search warrant is being
executed, the transport safety officer must--
15
(a) identify himself or herself to that
person by producing his or her identity
card for inspection by that person; and
(b) give to that person a copy of the
execution copy of the warrant.
20
Subdivision 6--Directions
228ZK. Power to require production of documents
and related items
(1) A transport safety officer may, for
compliance and investigative purposes,
25
direct a relevant person to provide to the
transport safety officer--
(a) any document required to be kept under
a relevant transport safety law; and
(b) any documents, devices or other things
30
in his, her or its possession or control
relating to rail operations.
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(2) The direction must state where and to whom
the documents, devices or other things are to
be produced.
(3) In giving a direction, the transport safety
officer may specify particular documents,
5
devices or other things, or particular classes
of documents, devices or other things.
(4) The transport safety officer may do any or all
of the following--
(a) inspect any documents, devices or other
10
things that are produced;
(b) copy any documents, devices or other
things that are produced;
(c) seize and remove any documents,
devices or other things that are
15
produced that the transport safety
officer believes on reasonable grounds
provide, or may on further inspection
provide, evidence of a contravention of
a relevant transport safety law.
20
(5) A relevant person must not refuse or fail to
comply with a direction under sub-
section (1) unless the relevant person has a
reasonable excuse.
Penalty: 60 penalty units.
25
Note: Section 228ZY sets out the manner in which a
direction may be given under this Division by a
transport safety officer.
228ZL. Direction to provide reasonable assistance
(1) A transport safety officer may direct a
30
relevant person to provide assistance to the
transport safety officer to enable the
transport safety officer effectively to exercise
a power under this Division.
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(2) Without limiting sub-section (1), the
transport safety officer may direct the person
to do any or all of the following--
(a) to find and gain access to electronically
stored information;
5
(b) to find and gain access to any
information relating to rail operations
in a useable form for the purpose of
ascertaining compliance with any
requirements imposed by or under a
10
relevant transport safety law;
(3) A relevant person must not refuse or fail to
comply with a direction under sub-
section (1) unless the person has a reasonable
excuse.
15
Penalty: 60 penalty units.
(4) In proceedings for an offence against sub-
section (3), it is a defence if the person
charged establishes that--
(a) the direction was unreasonable; or
20
(b) without limiting paragraph (a), the
direction or its subject-matter was
outside the scope of the business or
other activities of the person.
25 Note: Section 228ZY sets out the manner in which a
direction may be given under this Division by a
transport safety officer.
228ZM. Direction to provide certain information
(1) A transport safety officer may direct, for
compliance and investigative purposes, a rail
30
operator or a rail safety worker who is
associated with particular rolling stock--
(a) to state the name, home address and
business address of any other person
who is associated with the rolling stock;
35
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(b) to give any information that it is within
the power of the person to give that
may lead to the identification of the
owner or operator of the rolling stock
on any occasion.
5
(2) A person must not refuse or fail to comply
with a direction under sub-section (1).
Penalty: 5 penalty units.
(3) In this section--
"associated with" means the owner or
10
operator of, or in charge or apparently
in charge of.
228ZN. Direction to state name and address
(1) A transport safety officer may, for
compliance and investigative purposes,
15
direct an individual whom the transport
safety officer believes on reasonable grounds
is, or may be, a relevant person to state his or
her name, home address and business
address.
20
(2) A person must comply immediately with a
direction.
Penalty: 5 penalty units.
(3) A person must not, in purported compliance
with a direction, knowingly provide a false
25
name or address.
Penalty: 5 penalty units.
(4) In proceedings against a person for an
offence of failing to state the person's
business address, it is a defence if the person
30
charged establishes that the person did not
have a business address or that the person's
business address was not connected (directly
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or indirectly) with rail operations or works
carried out by, or on behalf of, a utility.
(5) This section does not affect any other law
that requires a person to state the person's
name or address.
5
Note: Section 228ZY sets out the manner in which a
direction may be given under this Division by a
transport safety officer.
228ZO. Directions for the protection of evidence
(1) For the purpose of protecting evidence that
10
might be relevant for compliance or
investigative purposes, a transport safety
officer may direct the person in control of a
specified thing or class of specified things
that the specified thing, or specified class of
15
things, must not be removed or interfered
with except with the permission of the
transport safety officer.
(2) A person must not fail or refuse to comply
with a direction under sub-section (1).
20
Penalty: 60 penalty units.
(3) Sub-section (2) does not apply if the conduct
concerned was necessary--
(a) to ensure the safety of persons, animals
or property; or
25
(b) for the movement of deceased persons
or animals; or
(c) to move rolling stock, or the wreckage
of rolling stock, to a safe place; or
(d) to protect the environment from
30
significant damage or pollution.
(4) A transport safety officer must not
unreasonably withhold his or her permission
under sub-section (1).
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(5) In this section--
"in control", in relation to a thing or a
specified class of things, means having,
or reasonably appearing to a transport
safety officer as having, authority to
5
exercise control over the thing or
specified class of things.
Note: Section 228ZY sets out the manner in which a
direction may be given under this Division by a
10 transport safety officer.
Subdivision 7--Seized Things and Samples
Taken
228ZP. Securing seized things
On seizing a thing under this Division, a
transport safety officer may--
15
(a) move the thing from the railway
premises or residential premises where
it was seized (the "place of seizure");
or
(b) leave the thing at the place of seizure
20
but take steps to restrict access to it; or
(c) in relation to equipment that is seized--
make the equipment inoperable.
228ZQ. Offence to tamper with seized thing
(1) If a transport safety officer restricts access to
25
a seized thing, a person must not tamper, or
attempt to tamper, with the thing, or
something restricting access to the thing,
without a transport safety officer's
permission.
30
Penalty: 60 penalty units.
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(2) If a transport safety officer makes seized
equipment inoperable, a person must not
tamper, or attempt to tamper, with the
equipment, without a transport safety
officer's permission.
5
Penalty: 60 penalty units.
228ZR. Powers to support seizure
(1) To enable a thing to be seized under this
Division, a transport safety officer may
direct the person in control of it--
10
(a) to take it to a specified place within a
specified time; and
(b) if necessary, to remain in control of it at
the specified place for a period
specified in the direction.
15
(2) A further direction may be made under this
section about the thing if it is necessary and
reasonable to make the further direction.
Example
20 A further direction may be that the thing be
transported during stated off-peak hours, be
transported along a particular route, or be transported
in a particular way.
(3) A person given a direction under sub-
section (1) or (2) must not refuse or fail to
25
comply with that direction unless the person
has a reasonable excuse.
Penalty: 60 penalty units.
(4) Without limiting what may be a reasonable
excuse under sub-section (3), it is a
30
reasonable excuse for a person in control of a
thing to not comply with a direction under
sub-section (1) or (2) if in all the
circumstances, the direction was
unreasonable.
35
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(5) The cost of complying with sub-section (1)
or (2) must be borne by the person.
(6) In this section--
"in control", in relation to a thing, means
having, or reasonably appearing to a
5
transport safety officer as having,
authority to exercise control over the
thing.
Note: Section 228ZY sets out the manner in which a
10 direction may be given under this Division by a
transport safety officer.
228ZS. Transport safety officer may direct a
thing's return
(1) If a transport safety officer has directed a
person to take a thing to a specified place
15
within a specified time under section
228ZR(1), the officer may direct the person
to return the thing to the place from which it
was taken.
(2) A person given a direction under sub-section
20
(1) must not refuse or fail to comply with
that direction unless the person has a
reasonable excuse.
Penalty: 60 penalty units.
(3) The cost of complying with a direction under
25
sub-section (1) must be borne by the person.
Note: Section 228ZY sets out the manner in which a
direction may be given under this Division by a
transport safety officer.
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228ZT. Receipt for seized things
(1) If a transport safety officer seizes a thing, or
takes a sample of, or from, a thing at railway
premises or residential premises under this
Division, the officer must give a receipt for
5
the thing to the person in charge of the thing
or the railway premises or residential
premises from which it was taken.
(2) A receipt must--
(a) identify the thing seized or sample
10
taken; and
(b) state the name of the transport safety
officer who seized the thing or took the
sample and the reason why the thing
was seized or the sample was taken.
15
(3) If for any reason it is not practicable for a
transport safety officer to comply with sub-
section (1), the transport safety officer
may--
(a) leave the receipt at the railway premises
20
or residential premises in a conspicuous
position and in a reasonably secure
way; or
(b) send the receipt, by post, to the
occupier of the railway premises or
25
residential premises from where the
thing was seized or the sample was
taken.
228ZU. Copies of certain seized things to be given
(1) If, under this Division, a transport safety
30
officer seizes--
(a) a document; or
(b) a thing that can be readily copied; or
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(c) a storage device containing information
that can be readily copied--
the transport safety officer must give a copy
of the thing or information to the owner or
custodian of the document, thing or device as
5
soon as practicable after the seizure.
(2) Sub-section (1) does not apply--
(a) to any document, thing or device
moved under section 228ZP(a) or
228ZR; or
10
(b) if the transport safety officer is unable
to discover the identity of the owner or
custodian of any document, thing or
device seized.
228ZV. Return of seized things
15
(1) If a transport safety officer seizes a thing
under this Division, the transport safety
officer must take reasonable steps to return
the thing to the person from whom it was
seized if the reason for its seizure no longer
20
exists.
(2) If the thing has not been returned before the
end of the retention period, the transport
safety officer must take reasonable steps to
return it unless--
25
(a) proceedings have commenced within
the retention period and those
proceedings (including any appeal)
have not been completed; or
(b) the Magistrates' Court makes an order
30
under section 228ZW extending the
retention period; or
(c) the thing has been forfeited to the State
under an order under section 228ZX.
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228ZW. Magistrates' Court may extend period
(1) A transport safety officer may apply to the
Magistrates' Court within the retention
period or within a period extended by the
Court under this section for an extension of
5
that period.
(2) The Magistrates' Court may order such an
extension if satisfied that retention of the
thing is necessary--
(a) for the purposes of an investigation into
10
whether an offence has been committed
against a relevant transport safety law;
or
(b) to enable evidence of an offence against
a relevant transport safety law to be
15
obtained for the purposes of a
prosecution; or
(c) because the thing is, or is likely to be,
required for the purposes of--
(i) an investigation into a public
20
transport safety matter; or
(ii) an audit under Division 5 of Part 3
of the Rail Safety Act 2005.
(3) The Court may adjourn an application to
enable notice of the application to be given
25
to any person.
228ZX. Magistrates' Court may order forfeiture
of thing in certain cases
(1) A transport safety officer may apply to the
Magistrates' Court within the retention
30
period or within a period extended by the
Court under section 228ZW for an order that
a thing seized under this Division is forfeited
to the State.
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(2) The Magistrates' Court may order that a
thing seized under this Division is forfeited
to the State if the Court is satisfied--
(a) the transport safety officer that seized
the thing cannot find the thing's owner
5
despite making reasonable enquiries; or
(b) it is necessary for the thing to be
forfeited to the State to prevent the
commission of an offence against a
relevant transport safety law.
10
(3) The Court may adjourn an application to
enable notice of the application to be given
to any person.
Subdivision 8--Miscellaneous Provisions
Relating to Enforcement Powers
15
228ZY. Manner in which transport safety officers
may give directions under this Division
(1) A transport safety officer may give a
direction under this Division orally or in
writing.
20
(2) If giving a direction orally, the transport
safety officer giving the direction--
(a) must state whether it is to be complied
with immediately or within a specified
period; and
25
(b) must warn the person to whom the
direction is given that it is an offence
under this Act to fail to comply with a
direction.
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(3) If giving a direction in writing, the transport
safety officer must ensure that the
direction--
(a) states the period within which it is to be
complied with; and
5
(b) states that it is an offence under this Act
to fail to comply with a direction.
(4) A written direction may be given to, or sent
by post to, the person to whom it is directed.
228ZZ. Use of force
10
A power conferred by this Division to enter
railway premises or residential premises, or
to do anything in, at or on any railway
premises or residential premises, may not be
exercised unless the transport safety officer
15
proposing to exercise the power uses no
more force than is reasonably necessary to
effect the entry or do the thing for which
entry is effected.
228ZZA. Use or seizure of electronic equipment
20
(1) If--
(a) a thing found at any railway premises
or residential premises is or includes a
disk, tape or other device for the
storage of information; and
25
(b) equipment at the railway premises or
residential premises may be used with
the disk, tape or other storage device;
and
(c) a transport safety officer believes on
30
reasonable grounds that the information
stored on the disk, tape or other storage
device is relevant to determine whether
a provision of a relevant transport
safety law or conditions or restrictions
35
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of an accredited rail operator's
accreditation have been breached--
the transport safety officer, or a person
assisting the transport safety officer, may
operate, or may require the occupier or an
5
employee of the occupier to operate, the
equipment to access the information.
(2) If the transport safety officer, or a person
assisting the transport safety officer, finds
that a disk, tape or other storage device at the
10
railway premises or residential premises
contains information of the kind referred to
in sub-section (1)(c), he or she may--
(a) put the information in documentary
form and seize the documents so
15
produced; or
(b) copy the information to another disk,
tape or other storage device and remove
that storage device from the railway
premises or residential premises; or
20
(c) if it is not practicable to put the
information in documentary form nor to
copy the information, seize the disk,
tape or other storage device and the
equipment that enables the information
25
to be accessed.
(3) A transport safety officer, or a person
assisting a transport safety officer, must not
operate or seize equipment for the purpose
mentioned in this section unless the transport
30
safety officer or person assisting believes on
reasonable grounds that the operation or
seizure of the equipment can be carried out
without damage to the equipment.
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228ZZB. Compensation for damage caused during
exercise of powers under this Division
(1) The Safety Director must pay compensation
for any damage caused by a transport safety
officer, or a person assisting a transport
5
safety officer, in exercising (or purporting to
exercise) any power conferred by this
Division.
(2) However, the Safety Director is not liable to
pay compensation to a person for any
10
damage caused during any inspection or
search conducted under Subdivision 4, or
under a search warrant executed in
accordance with Subdivision 5, if--
(a) the thing that was the object of the
15
inspection or search is found and that
thing provides evidence of--
(i) the commission of an offence
against a relevant transport safety
law; or
20
(ii) non-compliance with a relevant
transport safety law or an
approved code of practice; and
(b) the damage caused was no more than
was reasonably necessary in searching
25
for the thing.
(3) In determining the amount of compensation
payable in relation to any damage caused to
electronic equipment, regard is to be had to
whether the occupier of the railway premises
30
or residential premises and the employees
and agents of the occupier, if they were
available at the time, had provided any
warning or guidance as to the operation of
the equipment that was appropriate in the
35
circumstances.
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Subdivision 9--Improvement Notices
228ZZC. Improvement notices
(1) The Safety Director or a transport safety
officer may serve on a relevant person an
improvement notice if the Safety Director or
5
transport safety officer believes on
reasonable grounds that the relevant
person--
(a) is contravening a provision of a
relevant transport safety law; or
10
(b) has contravened a provision of a
relevant transport safety law in
circumstances that make it likely the
contravention will continue or be
repeated; or
15
(c) in the case of a relevant person who is
an accredited rail operator--
(i) is contravening a condition or
restriction of the operator's
accreditation; or
20
(ii) has contravened a condition or
restriction of the operator's
accreditation in circumstances that
make it likely the contravention
will continue or be repeated.
25
(2) The Safety Director or the transport safety
officer may serve on the relevant person an
improvement notice requiring the relevant
person to remedy the contravention or likely
contravention, or the matters or activities
30
occasioning the contravention or likely
contravention, within the period specified in
the notice.
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(3) A transport safety officer must, before
serving an improvement notice under this
section, inform the Safety Director of his or
her intention to do so.
(4) An improvement notice must--
5
(a) state the basis for the Safety Director's
or transport safety officer's belief on
which the service of the notice is based;
and
(b) specify the provision of the relevant
10
transport safety law in respect of which
that belief is held; and
(c) specify a date (with or without a time)
by which the relevant person is required
to remedy the contravention or likely
15
contravention or the matters or
activities causing the contravention or
likely contravention, that the transport
safety officer considers is reasonable;
and
20
(d) include information about obtaining a
review of the decision to serve the
notice; and
(e) set out the penalty for contravening the
notice; and
25
(f) include a statement of the effect of
section 228ZZI (proceedings for
offences not affected by improvement
notices); and
(g) state that it is served under this section.
30
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(5) An improvement notice may include
directions concerning the measures to be
taken to remedy the contravention or likely
contravention, or the matters or activities
causing the contravention or likely
5
contravention, to which the notice relates.
(6) Without limiting sub-section (5), an
improvement notice may include a direction
that if the relevant person has not remedied
the contravention, likely contravention,
10
matters or activities (as the case may be) by
the date and time (if any) specified in the
notice, an activity to which the notice relates
is to cease until the Safety Director or a
transport safety officer has certified in
15
writing that the contravention, likely
contravention, matters or activities have been
remedied.
228ZZD. Improvement notices--closures of level
crossings, bridges or other structures
20
(1) Without limiting section 228ZZC, an
improvement notice may require a relevant
person to close a level crossing, a bridge or
other structure passing over or under a
railway--
25
(a) that the relevant person owns or
controls; or
(b) for which the relevant person is
responsible.
(2) If an improvement notice requires a relevant
30
person to close a level crossing or a bridge or
other structure passing over or under a
railway, the relevant person must publish a
notice of the required closure in a newspaper
circulating--
35
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(a) generally in the State; and
(b) in the area in which the level crossing
or bridge or other structure is located.
(3) In this section "level crossing" has the same
meaning as in section 221U.
5
228ZZE. Contravention of improvement notice
(1) A relevant person on whom an improvement
notice has been served must not refuse or fail
to comply with the notice unless the relevant
person has a reasonable excuse.
10
Penalty: In the case of a natural person,
500 penalty units;
In the case of a body corporate,
2500 penalty units.
(2) An offence against sub-section (1) is an
15
indictable offence.
Note: However, the offence may be heard and
determined summarily (see section 53 of, and
Schedule 4 to, the Magistrates' Court Act
20 1989).
228ZZF. Amendment of improvement notices
(1) An improvement notice served by the Safety
Director may be amended by the Safety
Director.
(2) An improvement notice served by a transport
25
safety officer may be amended by any
transport safety officer or the Safety
Director.
(3) An amendment of an improvement notice is
effected by service on the relevant person
30
affected of a notice stating the terms of the
amendment.
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(4) An amendment of an improvement notice is
ineffective if it purports to deal with a
contravention of a different provision of a
relevant transport safety law from that dealt
with in the improvement notice as first
5
served.
(5) A notice of an amendment of an
improvement notice must--
(a) state the reasons for the amendment;
and
10
(b) include information about obtaining a
review of the decision to amend the
notice; and
(c) state that it is served under this section.
228ZZG. Cancellation of improvement notices
15
(1) An improvement notice served on a relevant
person may only be cancelled by the Safety
Director.
(2) Notice of cancellation of an improvement
notice is required to be served on the
20
relevant person affected.
228ZZH. Clearance certificates for improvement
notices
(1) The Safety Director or a transport safety
officer may issue a clearance certificate to
25
the effect that all or any specified
requirements of an improvement notice have
been complied with.
(2) A requirement of an improvement notice
ceases to be operative on receipt, by the
30
relevant person on whom the notice was
served, of a clearance certificate to the effect
that--
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(a) all requirements of the notice have been
complied with; or
(b) the specific requirement has been
complied with.
228ZZI. Proceedings for offences not affected by
5
improvement notices
The service, amendment or cancellation of
an improvement notice does not affect any
proceedings for an offence against a relevant
transport safety law in connection with any
10
matter in respect of which the improvement
notice was served.
Subdivision 10--Prohibition Notices
228ZZJ. Prohibition notice
(1) This section applies if--
15
(a) an activity is occurring at railway
premises that involves or will involve
an immediate risk to the safety of a
person; or
(b) an activity may occur at railway
20
premises that, if it occurs, will involve
an immediate risk to the safety of a
person; or
(c) an activity may occur at, on, or in the
immediate vicinity of, rail
25
infrastructure or rolling stock that, if it
occurs, will involve an immediate risk
to the safety of rail operations.
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(2) If the Safety Director or a transport safety
officer believes on reasonable grounds that
an activity referred to in sub-section (1) is
occurring or may occur, the Safety Director
or transport safety officer may serve on a
5
person who has or appears to have control
over the activity a prohibition notice
prohibiting the carrying on of the activity, or
the carrying on of the activity in a specified
way, until the Safety Director or transport
10
safety officer has certified in writing that the
matters that give or will give rise to the risk
have been remedied.
(3) A transport safety officer must, before
serving a prohibition notice under this
15
section, inform the Safety Director of his or
her intention to do so.
(4) A prohibition notice must--
(a) state the basis for the Safety Director's
or transport safety officer's belief on
20
which the service of the notice is based;
and
(b) specify the activity which the Safety
Director or transport safety officer
believes involves or will involve the
25
risk and the matters which give or will
give rise to the risk; and
(c) if the Safety Director or transport safety
officer believes that the activity
involves a contravention or likely
30
contravention of a provision of a
relevant transport safety law, specify
that provision and state the basis for
that belief; and
(d) set out the penalty for contravening the
35
notice; and
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(e) include information about obtaining a
review of the decision to serve the
notice; and
(f) include a statement of the effect of
section 228ZZO (proceedings for
5
offences not affected by prohibition
notices); and
(g) state that it is served under this section.
(5) A prohibition notice may include directions
on the measures to be taken to remedy the
10
risk, activities or matters to which the notice
relates, or the contravention or likely
contravention mentioned in sub-
section (4)(c).
(6) A prohibition notice that prohibits the
15
carrying on of an activity in a specified way
may do so by specifying one or more of the
following--
(a) a railway premises, or part of a railway
premises, at which the activity is not to
20
be carried out;
(b) rail infrastructure, part of rail
infrastructure or a place in the
immediate vicinity of rail infrastructure
or rolling stock at which the activity is
25
not to be carried out;
(c) any thing that is not to be used in
connection with the activity;
(d) any procedure that is not to be followed
in connection with the activity.
30
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228ZZK. Contravention of prohibition notice
(1) A person on whom a prohibition notice is
served must not refuse or fail to comply with
the notice unless the person has a reasonable
excuse.
5
Penalty: In the case of a natural person,
500 penalty units;
In the case of a body corporate,
2500 penalty units.
(2) An offence against sub-section (1) is an
10
indictable offence.
Note: However, the offence may be heard and
determined summarily (see section 53 of, and
Schedule 4 to, the Magistrates' Court Act
15 1989).
228ZZL. Amendment of prohibition notice
(1) A prohibition notice served by the Safety
Director may be amended by the Safety
Director.
(2) A prohibition notice served by a transport
20
safety officer may be amended by any
transport safety officer or the Safety
Director.
(3) An amendment of a prohibition notice served
is effected by service on the relevant person
25
affected of a notice stating the terms of the
amendment.
(4) An amendment of a prohibition notice served
is ineffective if it purports to prohibit the
carrying on of an activity that is different
30
from the activity prohibited by the
prohibition notice as first served.
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(5) A notice of an amendment of a prohibition
notice must--
(a) state the reasons for the amendment;
and
(b) include information about obtaining a
5
review of the decision to amend the
notice; and
(c) state that it is served under this section.
228ZZM. Withdrawal of prohibition notices
(1) A prohibition notice served on a relevant
10
person may only be withdrawn by the Safety
Director.
(2) Notice of the withdrawal of a prohibition
notice is required to be served on the
relevant person affected.
15
228ZZN. Certificates that matters that give rise to
immediate risks to safety remedied
(1) The Safety Director or a transport safety
officer may issue a certificate to the effect
that the matters that gave, or will give, rise to
20
an immediate risk to the safety of a person
because of the carrying on of the activity
specified in a prohibition notice have been
remedied.
(2) A prohibition notice ceases to be operative
25
on receipt, by the relevant person on whom
the notice was served, of a certificate to the
effect that--
(a) all requirements of the notice have been
complied with; or
30
(b) the specific requirement has been
complied with.
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228ZZO. Proceedings for offences not affected by
prohibition notices
The service of a prohibition notice does not
affect any proceedings for an offence against
a relevant transport safety law in connection
5
with any matter in respect of which the
prohibition notice was served.
Subdivision 11--Other Matters
228ZZP. Self-incrimination not an excuse
(1) A person is not excused from complying
10
with a direction given under this Division on
the ground that complying with the direction
may--
(a) result in information being provided
that might incriminate the person; or
15
(b) make the person liable to a penalty.
(2) Any information obtained from a natural
person under this Division--
(a) is not admissible in evidence against
the person in criminal proceedings
20
other than in proceedings in respect of
the provision of false information; or
(b) must not be used in any action,
proceeding or process that may make a
person liable to a penalty.
25
(3) Despite sub-section (2)(a), any information
obtained from a person under section
228ZK(1) is admissible in evidence against
the person in criminal proceedings.
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(4) Despite sub-section (2), any information
obtained from a person under this Division
that is contained in any document or item--
(a) that the person is required to keep
under a relevant transport safety law; or
5
(b) that was obtained without the direct
assistance of the person--
is admissible in evidence against the person
in criminal proceedings or may be used in
any action, proceeding or process that may
10
make a person liable to a penalty.
(5) For the purposes of sub-section (4), a person
provides direct assistance in the obtaining of
a document or item if the person is required
to identify, to reveal the location of, or to
15
explain the contents of, the document or
item.
Subdivision 12--Review of Decisions Relating
to Improvement and Prohibition Notices
228ZZQ. Reviewable decisions
20
(1) The following table sets out--
(a) decisions made under Subdivisions 10
and 11 that are reviewable in
accordance with this Subdivision
("reviewable decisions"); and
25
(b) who is eligible to apply for review of a
reviewable decision (the "eligible
person" in relation to the reviewable
decision).
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(2) To avoid doubt, sections 4 and 5 of the
Victorian Civil and Administrative
Tribunal Act 1998 apply for the purposes of
this Act.
5 Note: Under section 4 of that Act, a person makes a
decision if the person refuses to make a
decision or an instrument, imposes a condition
or restriction or does or refuses to do any other
act or thing. Section 5 of that Act sets out
10 when a person's interests are affected by a
decision.
Provision under
which reviewable Eligible person in relation
Item decision is made to reviewable decision
1. Section 228ZZC The person on whom the
(service of improvement notice is
improvement notice) served.
2. Section 228ZZF The person served with the
(amendment of improvement notice that is
improvement notice) being amended.
3. Section 228ZZH The person on whom the
(clearance certificate improvement notice was
to the effect that all served.
or any specified
requirements of
improvement notice
have been complied
with)
4. Section 228ZZJ The person on whom the
(service of prohibition notice is
prohibition notice) served.
5. Section 228ZZL The person served with the
(amendment of prohibition notice that is
prohibition notice) being amended.
6. Section 228ZZN The person on whom the
(certificate that prohibition notice was
matters have been served.
remedied)
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228ZZR. Internal review
(1) An eligible person in relation to a reviewable
decision, other than a decision made by the
Safety Director, may apply to the Safety
Director for review of the decision within--
5
(a) 28 days after the day on which the
decision first came to the eligible
person's notice; or
(b) such longer period as the Safety
Director allows.
10
(2) The application must be in the form
approved (in writing) by the Safety Director.
(3) If an application is made to the Safety
Director in accordance with this section, the
Safety Director must make a decision--
15
(a) to affirm or vary the reviewable
decision; or
(b) to set aside the reviewable decision and
substitute another decision that the
Safety Director considers appropriate.
20
(4) The Safety Director must give a written
notice to the applicant setting out--
(a) the Safety Director's decision under
sub-section (3) and the reasons for the
decision; and
25
(b) the findings on material questions of
fact that led to the decision, referring to
the evidence or other material on which
those findings were based--
and must do so within 28 days after the
30
application is made or, if the reviewable
decision was made under section 228ZZC(5)
or 228ZZJ(1) within 7 days after the
application is made.
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(5) If the Safety Director has not notified an
applicant of a decision in accordance with
sub-section (4), the Safety Director is taken
to have made a decision to affirm the
reviewable decision.
5
(6) An application under this section does not
affect the operation of the reviewable
decision or prevent the taking of any action
to implement it unless the Safety Director,
on his or her own initiative or on the
10
application of the applicant for review, stays
the operation of the decision pending the
determination of the review.
(7) The Safety Director must make a decision on
an application for a stay within 24 hours
15
after the making of the application.
(8) If the Safety Director has not made a
decision in accordance with sub-section (7),
the Safety Director is taken to have made a
decision to grant a stay.
20
(9) The Safety Director may attach any
conditions to a stay of the operation of a
reviewable decision that he or she considers
appropriate.
228ZZS. Review by the Tribunal
25
(1) A person may apply to the Tribunal for
review of--
(a) a reviewable decision made by the
Safety Director; or
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(b) a decision made, or taken to have been
made, by the Safety Director under
section 228ZZR in respect of a
reviewable decision (including a
decision concerning a stay of the
5
operation of the reviewable decision)--
if the person is an eligible person in relation
to the reviewable decision.
(2) The application must be made--
(a) within 28 days after the day on which
10
the decision first came to the applicant's
notice; or
(b) if the Safety Director is required by the
Victorian Civil and Administrative
Tribunal Act 1998 to give the
15
applicant a statement of reasons, within
28 days after the day on which the
applicant is given the statement--
whichever period ends last.'.
126. New section 229A and 229B inserted
20
After section 229 of the Transport Act 1983
insert--
"229A. Who may only bring proceedings for
offences against relevant transport safety
laws
25
(1) Proceedings for an offence against a relevant
transport safety law may be brought only
by--
(a) the Safety Director; or
(b) a transport safety officer with the
30
written authorisation of the Safety
Director (either generally or in a
particular case).
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(2) An authorisation under sub-section (1)(b) is
sufficient authority to continue proceedings
in any case where the court amends the
charge, warrant or summons.
(3) A transport safety officer who brings
5
proceedings may conduct the proceedings
before the court.
(4) Nothing in this section affects the ability of
the Director of Public Prosecutions to bring
proceedings for an indictable offence against
10
a relevant transport safety law.
229B. Limitation period for prosecutions for
indictable offences against relevant
transport safety laws
Proceedings for an indictable offence against
15
a relevant transport safety law may be
brought--
(a) within 3 years after the offence is
committed or the Safety Director
becomes aware the offence was
20
committed; or
(b) at any time with the written
authorisation of the Director of Public
Prosecutions.".
127. New section 230A and Divisions 6 and 7 of Part VII
25
inserted
After section 230 of the Transport Act 1983
insert--
'230A. Evidentiary certificates--relevant
transport safety laws
30
(1) In any proceeding for an offence against a
relevant transport safety law, a certificate
signed, or purporting to be signed, by the
Safety Director or a transport safety officer
stating any of the following matters shall be
35
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admissible in evidence and, in the absence of
evidence to the contrary, shall be proof of the
matters stated--
(a) a stated document is one of the
following things made, given, served or
5
issued under a relevant transport safety
law or regulations made under a
relevant transport safety law--
(i) an appointment or a decision;
(ii) a notice, notification, direction or
10
requirement;
(iii) an accreditation or exemption;
(iv) an improvement notice or an
amendment to an improvement
notice already served;
15
(v) a prohibition notice or an
amendment to a prohibition notice
already served;
(vi) a clearance certificate issued
under section 228ZZH;
20
(vii) a certificate issued under section
228ZZN;
(b) a stated document is a copy of a thing
referred to in paragraph (a);
(c) on a stated day, or during a stated
25
period, a stated person--
(i) was or was not accredited; or
(ii) held or did not hold an exemption;
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(d) on a stated day, or during a stated
period, an accreditation or exemption--
(i) was or was not in force; or
(ii) was or was not subject to a stated
term, condition, limitation or
5
restriction;
(e) on a stated day, or during a stated
period, an accreditation was suspended;
(f) on a stated day an accreditation was
cancelled, varied or surrendered;
10
(g) on a stated day a condition or
restriction on an accreditation was
varied or revoked;
(h) on a stated day an exemption was
revoked;
15
(i) on a stated day or during a stated
period, an appointment as a transport
safety officer was, or was not, in force
for a stated person;
(j) on a stated day a stated person was
20
given a stated notice, notification or
direction under a relevant transport
safety law;
(k) on a stated day a person was served--
(i) an improvement notice or
25
prohibition notice; or
(ii) amendment to an improvement
notice or prohibition notice
already served;
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(l) on a stated day--
(i) an improvement notice was
cancelled; or
(ii) a prohibition notice was
withdrawn;
5
(m) on a stated day a clearance certificate
under section 228ZZH was issued;
(n) on a stated day a certificate under
section 228ZZN was issued;
(o) on a stated day a stated requirement
10
was made of a stated person;
(p) that a stated amount is payable under
the Rail Safety Act 2005 by a stated
person and has not been paid.
(2) In this section--
15
"accreditation" has the same meaning as in
the Rail Safety Act 2005;
"exemption" means an exemption under--
(a) section 63 or 66 of the Rail Safety
Act 2005; or
20
(b) regulations made under the Rail
Safety Act 2005.
Division 6--Sentencing Orders in relation to
Relevant Transport Safety Laws
230B. Commercial benefits penalty order
25
(1) A court that finds a person guilty of an
offence against a relevant transport safety
law may, on the application of the prosecutor
or the Safety Director, make an order under
this section.
30
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(2) The court may make a commercial benefits
penalty order requiring the person to pay, as
a fine, an amount not exceeding 3 times the
amount estimated by the court to be the gross
commercial benefit that--
5
(a) was obtained or obtainable, by the
person or by an associate of the person,
from the commission of the offence;
and
(b) in the case of a journey that was
10
interrupted or not commenced because
of action taken by a transport safety
officer in connection with the
commission of the offence--would
have been obtained or obtainable, by
15
the person or by an associate of the
person, from the commission of the
offence had the journey been
completed.
(3) In estimating the gross commercial benefit
20
that was or would have been obtained or
obtainable from the commission of the
offence, the court may take into account--
(a) benefits of any kind, whether monetary
or otherwise; and
25
(b) monetary savings or a reduction in any
operating or capital expenditure of any
kind achieved because of the
commission of the offence; and
(c) any other matters that it considers
30
relevant, including (for example)--
(i) the value per tonne or per
kilometre of the carriage of the
goods involved in the offence as
freight; and
35
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(ii) the distance over which any such
goods were or were to be carried.
(4) However, in estimating the gross commercial
benefit that was or would have been obtained
or obtainable from the commission of the
5
offence, the court is required to disregard
any costs, expenses or liabilities incurred by
the person or by an associate of the person.
(5) Nothing in this section prevents the court
from ordering payment of an amount that
10
is--
(a) less than 3 times the estimated gross
commercial benefit; or
(b) less than the estimated gross
commercial benefit.
15
230C. Supervisory intervention order
(1) A court that finds a person guilty of an
offence against a relevant transport safety
law may, on the application of the prosecutor
or the Safety Director, if the court considers
20
the person to be a systematic or persistent
offender against a relevant transport safety
law, make an order under this section.
(2) The court may make a supervisory
intervention order requiring the person (at
25
the person's own expense and for a specified
period not exceeding one year) to do all or
any of the following--
(a) to do specified things that the court
considers will improve the person's
30
compliance with relevant transport
safety laws or specified aspects of a
relevant transport safety law, including
(for example) the following--
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(i) appointing or removing staff to or
from particular activities or
positions;
(ii) training and supervising staff;
(iii) obtaining expert advice as to
5
maintaining appropriate
compliance;
(iv) installing, monitoring,
compliance, managerial or
operational equipment;
10
(v) implementing, monitoring,
compliance, managerial or
operational practices, systems or
procedures;
(b) to conduct specified monitoring,
15
compliance, managerial or operational
practices, systems or procedures subject
to the direction of the Safety Director
or a person nominated by the Safety
Director;
20
(c) to furnish compliance reports to the
Safety Director or the court or both as
specified in the order;
(d) to appoint a person to have
responsibilities--
25
(i) to assist the person in improving
compliance with a relevant
transport safety law or specified
aspects of a relevant transport
safety law; and
30
(ii) to monitor the person's
performance in complying with a
relevant transport safety law or
specified aspects of a relevant
transport safety law and in
35
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complying with the requirements
of the order; and
(iii) to furnish compliance reports to
the Safety Director or the court or
both as specified in the order.
5
(3) The court may specify matters that are to be
dealt with in compliance reports and the
form, manner and frequency in which
compliance reports are to be prepared and
furnished.
10
(4) The court may require that compliance
reports or aspects of compliance reports be
made public, and may specify the form,
manner and frequency in which they are to
be made public.
15
(5) The court may only make a supervisory
order if it is satisfied that the order is capable
of improving the person's ability or
willingness to comply with the relevant
transport safety law, having regard to--
20
(a) the offences against a relevant transport
safety law of which the person has been
previously found guilty; and
(b) the offences against a relevant transport
safety law for which the person has
25
been proceeded against by way of
unwithdrawn infringement notices; and
(c) any other offences or other matters that
the court considers to be relevant to the
conduct of the person in connection
30
with rail transport.
(6) The order may direct that any other penalty
or sanction imposed for the offence by the
court is suspended until the court determines
that there has been a substantial failure to
35
comply with the order.
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(7) A court that has power to make supervisory
intervention orders may revoke or amend a
supervisory intervention order on the
application of--
(a) the Safety Director; or
5
(b) the person in respect of whom the order
was made, but in that case only if the
court is satisfied that there has been a
change of circumstances warranting
revocation or amendment.
10
(8) In this section--
"compliance report", in relation to a person
in respect of whom a supervisory
intervention order is made, means a
report relating to--
15
(a) the performance of the person in
complying with--
(i) a relevant transport safety
law or specified aspects of a
relevant transport safety law
20
specified in the order; and
(ii) the requirements of the
order; and
(b) without limiting the above--
(i) things done by the person to
25
ensure that any failure by the
person to comply with the
relevant transport safety law
or the specified aspects of
the relevant transport safety
30
law does not continue; and
(ii) the results of those things
having been done.
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230D. Contravention of supervisory intervention
order
A person who is subject to a requirement of a
supervisory intervention order must not
engage in conduct that results in
5
contravention of the requirement.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
10
230E. Release on the giving of a safety
undertaking
(1) If a court convicts a person or finds a person
guilty of an offence against a relevant
transport safety law the court may (with or
15
without recording a conviction) adjourn the
proceeding for a period of up to 2 years and
make an order for the release of the offender
on the offender giving an undertaking with
specified conditions.
20
(2) An undertaking must specify the following
conditions--
(a) that the offender appears before the
court if called on to do so during the
period of the adjournment and, if the
25
court so specifies, at the time to which
the further hearing is adjourned;
(b) that the offender does not commit,
during the period of the adjournment,
any offence against a relevant transport
30
safety law;
(c) that the offender observes any special
conditions imposed by the court.
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(3) Without limiting sub-section (2)(c), the court
may impose on an offender special
conditions that the offender--
(a) engage a consultant, who is approved in
writing by the Safety Director, to
5
advise on or assist with safety matters;
and
(b) develop and implement a systematic
approach to managing risks to safety
that arise or may arise in the conduct of
10
the offender's undertaking; and
(c) arrange for the carrying out of an audit
of the offender's undertaking in relation
to safety by an independent person who
is approved in writing by the Safety
15
Director.
(4) An offender who has given an undertaking
under this section may be called on to appear
before the court--
(a) by order of the court; or
20
(b) by notice issued by the proper officer
(within the meaning of section 72(4) of
the Sentencing Act 1991) of the court.
(5) An order or notice under sub-section (4)
must be served on the offender not less than
25
4 days before the time specified in it for the
appearance.
(6) If the court is satisfied at the time to which a
further hearing of a proceeding is adjourned
that the offender has observed the conditions
30
of the undertaking, it must discharge the
offender without any further hearing of the
proceeding.
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(7) The court may make an order under this
section in relation to an offender in addition
to or instead of--
(a) imposing a penalty on the offender; or
(b) making any other order that the court
5
may make in relation to the offence.
230F. Variation or breach of orders under
section 230E
Sections 78 and 79 of the Sentencing Act
1991 (and any definitions in that Act of
10
terms used in those sections) apply to an
order under section 230E for the release of
an offender as though they were incorporated
into this Act and as though--
(a) a reference to Subdivision (2) or (3)
15
were instead a reference to section
230E; and
(b) a reference to a prescribed person, a
member of a prescribed class of
persons, the informant or a police
20
prosecutor were instead a reference to
the Safety Director; and
(c) the reference in section 79(4) of the
Sentencing Act 1991 to a level 10 fine
were instead a reference to a fine not
25
exceeding 10 penalty units for a natural
person or 50 penalty units for a body
corporate; and
(d) any other necessary modifications were
made.
30
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Division 7--Other Matters
Subdivision 1--Interpretation
230G. Definitions
In this Subdivision--
"relevant rail protection law" means--
5
(a) section 93B or 93C(1) of the
Electricity Industry Act 2000;
(b) section 149B or 149C(1) of the
Gas Industry Act 2001;
(c) section 48E or 48F of the Road
10
Management Act 2004;
(d) section 137B(1) or 137C(1) of the
Water Act 1989;
(e) section 62B(1) or 62C(1) of the
Water Industry Act 1994;
15
"relevant rail safety duty law" means--
(a) section 93A(1) or (2) of the
Electricity Industry Act 2000;
(b) section 149A(1) or (2) of the Gas
Industry Act 2001;
20
(c) section 48B, 48C or 48D of the
Road Management Act 2004;
(d) section 137A(1) or (2) of the
Water Act 1989;
(e) section 62A(1) or (2) of the
25
Water Industry Act 1994.
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Subdivision 2--Liability
230H. Civil liability not affected by a relevant
rail safety duty law
Nothing in a relevant rail safety duty law is
to be construed as--
5
(a) conferring a right of action in civil
proceedings in respect of a
contravention of a relevant rail safety
duty law; or
(b) conferring a defence to an action in
10
civil proceedings or otherwise affecting
a right of action in civil proceedings.
230I. Interaction with the Occupational Health
and Safety Act 2004
(1) If a provision of the Occupational Health
15
and Safety Act 2004 or the regulations made
under that Act applies to an activity in
respect of which a duty under a relevant rail
safety duty law is imposed, that provision
continues to apply, and must be observed in
20
addition to the relevant rail safety duty law.
Note: See also section 51 of the Interpretation of
Legislation Act 1984.
(2) If a relevant rail safety duty law is
inconsistent with a provision of the
25
Occupational Health and Safety Act 2004
or the regulations made under that Act, the
Occupational Health and Safety Act 2004
or the regulations made under it prevail to
the extent of the inconsistency.
30
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(3) Compliance with a relevant rail safety duty
law, or with any requirement imposed under
a relevant rail safety duty law, is not in itself
a defence in any proceedings for an offence
against the Occupational Health and
5
Safety Act 2004 or the regulations made
under that Act.
(4) Evidence of a relevant contravention of a
relevant rail safety duty law is admissible in
any proceedings for an offence against the
10
Occupational Health and Safety Act 2004
or the regulations made under that Act.
230J. Offences by bodies corporate, officers of
bodies corporate, partnerships etc.
(1) Divisions 1 to 3 of Part 9 of the Rail Safety
15
Act 2005 apply to the commission of an
offence against a relevant rail protection law
in the same way as those Divisions apply to
the commission of an offence against a
provision of the Rail Safety Act 2005 (other
20
than an offence against a provision in
Division 2 or 3 of Part 3 of that Act).
(2) Divisions 1 to 3 of Part 9 of the Rail Safety
Act 2005 apply to the commission of an
offence against a relevant rail safety duty law
25
in the same way as those Divisions apply to
the commission of an offence against a
provision of Division 2 or 3 of Part 3 of the
Rail Safety Act 2005 or regulations made
under that Act for the purposes of Division 2
30
or 3 of Part 3 of that Act.'.
128. Service
(1) In section 250 of the Transport Act 1983, after
"Act" insert "or the Rail Safety Act 2005".
(2) In section 251 of the Transport Act 1983, after
35
"Act" insert "or the Rail Safety Act 2005".
237
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Rail Safety Act 2005
Act No.
Part 10--Amendment of Transport Act 1983
s. 129
129. Statute law revision
In section 246CF of the Transport Act 1983, in
the notes at the foot of that section, for "Note 2"
(where first occurring) substitute "Note 1".
__________________
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 130
PART 11--OTHER AMENDMENTS TO ACTS, SAVINGS AND
TRANSITIONALS
See:
Division 1--Amendment of Public Transport Competition Act No.
Act 1995 68/1995.
Reprint No. 2
as at
130. Application for accreditation
5 17 June 2004.
LawToday:
(1) In section 7(1) and (2) of the Public Transport www.dms.
Competition Act 1995, for "Secretary" substitute dpc.vic.
gov.au
"Safety Director".
(2) In section 7(3) of the Public Transport
Competition Act 1995, for "Secretary" (where
10
twice occurring) substitute "Safety Director".
131. Matters to be considered
(1) Insert the following heading to section 8 of the
Public Transport Competition Act 1995--
"Matters to be considered by Safety Director".
15
(2) In section 8(1) of the Public Transport
Competition Act 1995, for "Secretary" (where
twice occurring) substitute "Safety Director".
(3) In section 8(2) of the Public Transport
Competition Act 1995, for "Secretary" substitute
20
"Safety Director".
132. Giving or refusal of accreditation
(1) In section 9(1) and (2) of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
25
(2) In section 9(3) and (4) of the Public Transport
Competition Act 1995, for "Secretary" (where
twice occurring) substitute "Safety Director".
239
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 133
133. Conditions of accreditation
In section 10(1)(c), (2) and (3) of the Public
Transport Competition Act 1995, for
"Secretary" substitute "Safety Director".
134. Change of conditions etc.
5
In section 11(1), (2), (3) and (4) of the Public
Transport Competition Act 1995, for
"Secretary" (wherever occurring) substitute
"Safety Director".
135. Duration of accreditation
10
In section 12(2) of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
136. Requirement to notify of charges etc.
(1) Insert the following heading to section 13 of the
15
Public Transport Competition Act 1995--
"Requirement to notify Safety Director of
charges etc.".
(2) In section 13 of the Public Transport
Competition Act 1995, for "Secretary" (where
20
twice occurring) substitute "Safety Director".
137. Periodical returns
In section 14(1) and (2) of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
25
138. Application for renewal of accreditation
In section 15(1), (2), (3)(a), (5) and (6) of the
Public Transport Competition Act 1995, for
"Secretary" substitute "Safety Director".
240
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 139
139. Renewal of accreditation
(1) In section 16(1), (2) and (3) of the Public
Transport Competition Act 1995, for
"Secretary" substitute "Safety Director".
(2) In section 16(5) of the Public Transport
5
Competition Act 1995, for "Secretary" (where
twice occurring) substitute "Safety Director".
140. Nature of accreditation
In section 17(3) of the Public Transport
Competition Act 1995, for "Secretary" substitute
10
"Safety Director".
141. Safety Director not liable for giving accreditation
(1) Insert the following heading to section 19 of the
Public Transport Competition Act 1995--
"Safety Director not liable for giving
15
accreditation".
(2) In section 19 of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
142. Supervision of accredited persons
20
(1) In section 20(1) and (4) of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
(2) In section 20(3) of the Public Transport
Competition Act 1995, for "Secretary" (wherever
25
occurring) substitute "Safety Director".
143. Procedure and powers
(1) In section 21(1) and (3) of the Public Transport
Competition Act 1995, for "Secretary" substitute
"Safety Director".
30
(2) In section 21(2) of the Public Transport
Competition Act 1995, for "Secretary" (where
twice occurring) substitute "Safety Director".
241
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 144
144. Immediate power of suspension
(1) In section 22(1) and (3) of the Public Transport
Competition Act 1995, for "Secretary" (where
twice occurring) substitute "Safety Director".
(2) In section 22(2), (4) and (6) of the Public
5
Transport Competition Act 1995, for
"Secretary" substitute "Safety Director".
145. Review by Victorian Civil and Administrative
Tribunal
In section 24(1) of the Public Transport
10
Competition Act 1995, for "Secretary" substitute
"Safety Director".
146. Codes of practice
In section 24A(7) of the Public Transport
Competition Act 1995, for "Secretary" substitute
15
"Safety Director".
147. Fees
(1) In section 34(1) and (3) of the Public Transport
Competition Act 1995 after "Secretary" insert
"or Safety Director".
20
(2) In section 34(2) of the Public Transport
Competition Act 1995--
(a) after "Secretary" (where first occurring)
insert "or Safety Director";
(b) after "Secretary" (where secondly occurring)
25
insert "or the Safety Director (as the case
requires)".
(3) In section 34(5) and (6) of the Public Transport
Competition Act 1995, after "Secretary" insert
"or Safety Director (as the case requires)".
30
242
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 148
148. Delegation
After section 35(2) of the Public Transport
Competition Act 1995 insert--
"(3) The Safety Director may, by instrument,
delegate to--
5
(a) an officer or other person by name; or
(b) the holder of an office or position; or
(c) a body--
any power of the Safety Director under this
Act other than this power of delegation.".
10
149. No compensation payable
(1) In section 36(1) of the Public Transport
Competition Act 1995, paragraphs (a) to (i) are
repealed.
(2) After section 36(1A) of the Public Transport
15
Competition Act 1995 insert--
"(1B) No compensation is payable to any person in
respect of or as a consequence of any
decision of the Safety Director under this
Act--
20
(a) to give or refuse to give an
accreditation in relation to any kind of
road transport passenger service;
(b) to impose a condition on an
accreditation;
25
(c) to vary the kind of road transport
passenger service to which an
accreditation relates;
(d) to vary or revoke a condition of an
accreditation or impose a new
30
condition;
(e) to give a temporary accreditation;
243
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 150
(f) to renew or refuse to renew an
accreditation;
(g) to consent or refuse to consent to the
surrender of an accreditation;
(h) to exercise a power under section 20;
5
(i) to suspend an accreditation under
section 22.".
See: Division 2--Amendment of Rail Corporations Act 1996
Act No.
79/1996.
150. New definition inserted
Reprint No. 3
as at
In section 3(1) of the Rail Corporations Act
15 July 2003
10
and
1996 insert the following definition--
amending
Act Nos
' "Safety Director" means the Director, Public
73/2003,
12/2004,
Transport Safety appointed under section 9L
49/2004,
of the Transport Act 1983;'.
108/2004,
110/2004 and
151. Objective of Rail Track
15 25/2005.
LawToday:
In section 10 of the Rail Corporations Act 1996,
www.dms.
dpc.vic.
for "an" substitute "a safe,".
gov.au
152. Functions and powers of Rail Track
For section 11(1)(ba)(i) of the Rail Corporations
Act 1996 substitute--
20
"(i) operate rolling stock for the purposes of
providing passenger services;".
153. New section 12 inserted
After section 11 of the Rail Corporations Act
1996 insert--
25
'12. Contingency planning for exercise of
certain powers
(1) Rail Track must develop and maintain a
contingency plan for the possible carrying
out of rail operations by it in the event
30
another person carrying out such operations
244
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 154
using railways and rail infrastructure
established, owned, managed or maintained
by Rail Track does not want, or is unable, to
do so.
(2) In this section--
5
"rail operations" has the same meaning as
in the Rail Safety Act 2005.'.
154. Definition of "access provider" amended and new
definitions inserted
In section 38A of the Rail Corporations Act
10
1996--
(a) in the definition of "access provider", for
paragraphs (a) and (b) substitute--
"(a) a rail infrastructure manager who is
accredited under Part 5 of the Rail
15
Safety Act 2005 in respect of rail
infrastructure operations the manager
carries out;
(b) a rail infrastructure manager who is
exempted under section 63 of the Rail
20
Safety Act 2005, or regulations made
under that Act, from the requirement to
be accredited under that Act in respect
of rail infrastructure operations the
manager carries out;";
25
(b) insert the following definitions--
' "rail infrastructure manager" has the
same meaning as in the Rail Safety Act
2005;
"rail infrastructure operations" has the
30
same meaning as in the Rail Safety Act
2005;'.
245
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 155
155. Decisions not to interfere with certain directions of
the Safety Director
In section 38ZZE of the Rail Corporations Act
1996--
(a) for "Secretary" (where twice occurring)
5
substitute "Safety Director";
(b) for "section 115B of the Transport Act
1983" substitute "section 42 of the Rail
Safety Act 2005".
156. Statute law revision
10
(1) In the heading to section 38ZJ of the Rail
Corporations Act 1996 omit "proposed".
(2) In section 38ZZZB(3)(a) of the Rail
Corporations Act 1996, after "access" (where
secondly occurring) insert "provider".
15
Division 3--Other Amendments
See: 157. Electricity Industry Act 2000 amendment--New
Act No.
section 85 substituted and new sections 93A to 93C
68/2000.
Reprint No. 3 inserted
as at
14 July 2005
(1) For section 85 of the Electricity Industry Act
20 and
2000 substitute--
amending
Act Nos
'85. Definitions
39/2005 and
65/2005.
In this Part--
LawToday:
www.dms.
dpc.vic.
"electricity corporation" means VENCorp,
gov.au
a distribution company, a transmission
25
company or a generation company;
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
"rail operations" has the same meaning as
in the Rail Safety Act 2005;
30
"rail operator" has the same meaning as in
the Rail Safety Act 2005;
246
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 157
"rolling stock" has the same meaning as in
the Rail Safety Act 2005;
"works contractor" means a person
engaged directly or indirectly by an
electricity corporation to carry out an
5
activity referred to in section 93 on
behalf of the electricity corporation,
and includes a sub-contractor.'.
(2) After section 93 of the Electricity Industry Act
2000 insert--
10
'93A. Safety duties in relation to works on or in
immediate vicinity of rail infrastructure
or rolling stock
(1) An electricity corporation must, when
exercising a power under section 93 on or in
15
the immediate vicinity of rail infrastructure
or rolling stock, ensure, so far as is
reasonably practicable, that it exercises the
power safely.
Penalty: 9000 penalty units.
20
(2) A works contractor must, when carrying out
an activity referred to in section 93 on or in
the immediate vicinity of rail infrastructure
or rolling stock, ensure, so far as is
reasonably practicable, that he, she or it
25
carries out the activity safely.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
30
(3) An offence against sub-section (1) or (2) is
an indictable offence.
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
35 Magistrates' Court Act 1989).
247
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Act No.
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s. 157
93B. Notification of owners or occupiers of land
on which there is rail infrastructure or
rolling stock
An electricity corporation must, before
exercising a power under section 93 on land
5
on which there is rail infrastructure or rolling
stock, notify the owner or occupier of that
land of the intended exercise of the power if
the exercise of that power will threaten, or is
likely to threaten, the safety of that rail
10
infrastructure or rolling stock.
Penalty: 300 penalty units.
93C. Notification of electricity corporations
before rail operations carried out
(1) A rail operator must, before carrying out rail
15
operations that will threaten, or are likely to
threaten, the safety of an electricity
corporation's works, or the safe provision by
the electricity corporation of electricity or
other like services, notify that electricity
20
corporation of the rail operator's intention to
carry out those operations.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
25
300 penalty units.
(2) In this section--
"works" includes power lines, equipment,
devices, structures or undertakings.'.
248
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 158
158. Gas Industry Act 2001 amendment--New sections See:
147A and 149A to 149C inserted Act No.
31/2001.
Reprint No. 2
(1) Before section 148 of the Gas Industry Act 2001 as at
insert-- 1 March 2005
and
'147A. Definitions
5 amending
Act Nos
In this Division-- 25/2004,
108/2004,
"rail infrastructure" has the same meaning 33/2005,
39/2005 and
as in the Rail Safety Act 2005; 61/2005.
LawToday:
"rail operations" has the same meaning as www.dms.
dpc.vic.
in the Rail Safety Act 2005;
10 gov.au
"rail operator" has the same meaning as in
the Rail Safety Act 2005;
"rolling stock" has the same meaning as in
the Rail Safety Act 2005.'.
(2) After section 149 of the Gas Industry Act 2001
15
insert--
'149A. Safety duties in relation to works on or in
immediate vicinity of rail infrastructure
or rolling stock
(1) A gas distribution company or gas
20
transmission company must, when exercising
a power under this Division on or in the
immediate vicinity of rail infrastructure or
rolling stock, ensure, so far as is reasonably
practicable, that they safely exercise the
25
power.
Penalty: 9000 penalty units.
249
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 158
(2) A person authorised in writing by a gas
distribution company or gas transmission
company under section 148(7) or 149(6) to
exercise a power of the gas distribution
company or gas transmission company under
5
those sections must, when exercising the
power on or in the immediate vicinity of rail
infrastructure or rolling stock, ensure, so far
as is reasonably practicable, that they safely
exercise the power.
10
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
(3) An offence against sub-section (1) or (2) is
15
an indictable offence.
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
149B. Notification of owners or occupiers of land
20
on which there is rail infrastructure or
rolling stock
A gas distribution company or gas
transmission company must, before
exercising a power under this Division on
25
land on which there is rail infrastructure or
rolling stock, notify the owner or occupier of
that land of the intended exercise of the
power if the exercise of that power will
threaten, or is likely to threaten, the safety of
30
that rail infrastructure or rolling stock.
Penalty: 300 penalty units.
250
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 159
149C. Notification of gas distribution and
transmission companies before rail
operations carried out
(1) A rail operator must, before carrying out rail
operations that will threaten, or are likely to
5
threaten, the safety of a gas distribution
company's or gas transmission company's
works, or the safe provision by a gas
distribution company or gas transmission
company of gas or other like services, notify
10
that gas distribution company or gas
transmission company of the rail operator's
intention to carry out those operations.
Penalty: In the case of a natural person,
60 penalty units;
15
In the case of a body corporate,
300 penalty units.
(2) In this section--
"works" includes pipes, equipment, devices,
structures, pipelines or undertakings.'.
20
See:
159. Magistrates' Court Act 1989 amendment--Certain Act No.
indictable offences triable summarily etc. 51/1989.
Reprint No. 11
(1) In Schedule 4 to the Magistrates' Court Act as at
1 July 2005
1989-- and
amending
(a) after clause 55 insert--
25 Act Nos
77/2004,
"55A. Rail Safety Act 2005 2/2005,
16/2005,
Indictable offences under the Rail Safety Act 18/2005,
2005 but the maximum penalty that the Court 19/2005,
may impose is-- 45/2005 and
62/2005.
30 (a) in the case of a natural person, LawToday:
www.dms.
240 penalty units; and
dpc.vic.
(b) in the case of a body corporate, gov.au
1200 penalty units.
251
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 159
55B. Road Management Act 2004
Indictable offences under section 48B, 48C
or 48D of the Road Management Act 2004 but
the maximum penalty that the Court may
5 impose is--
(a) in the case of a natural person,
240 penalty units; and
(b) in the case of a body corporate,
1200 penalty units.";
(b) for clause 56C substitute--
10
"56C. Electricity Industry Act 2000
Offences by a body corporate under section
97(7) of the Electricity Industry Act 2000,
offences under section 93A(1) or (2) or 97(11)
15 of that Act but the maximum penalty that the
Court may impose in respect of offences under
section 93A(1) or (2) is--
(a) in the case of a natural person,
240 penalty units; and
20 (b) in the case of a body corporate,
1200 penalty units.";
(c) for clause 56E substitute--
"56E. Gas Industry Act 2001
Offences by a body corporate under section
25 208(5) of the Gas Industry Act 2001 and
offences under section 149A(1) or (2), 186(9)
or 210(1) of that Act but the maximum penalty
that the Court may impose in respect of
offences under section 149A(1) or (2) is--
30 (a) in the case of a natural person,
240 penalty units; and
(b) in the case of a body corporate,
1200 penalty units.";
(d) after clause 56F insert--
35 "56G. Water Act 1989
Indictable offences under section 137A(1)
or (2) of the Water Act 1989 but the maximum
penalty that the Court may impose is--
252
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 160
(a) in the case of a natural person,
240 penalty units; and
(b) in the case of a body corporate,
1200 penalty units.
5 56H. Water Industry Act 1994
Indictable offences under section 62A(1) or (2)
of the Water Industry Act 1994 but the
maximum penalty that the Court may impose
is--
10 (a) in the case of a natural person,
240 penalty units; and
(b) in the case of a body corporate,
1200 penalty units.".
(2) In Schedule 5 to the Magistrates' Court Act
1989, before clause 8(1)(b)(vii) insert--
15
"(vih) a transport safety officer within the meaning of the
Transport Act 1983; or".
See:
160. Road Management Act 2004 amendment--New Act No.
Division 4A of Part 4 of that Act inserted 12/2004.
Reprint No. 1
After section 48 of the Road Management Act
20 as at
1 July 2004
2004 insert-- and
amending
'Division 4A--Safety Duties in relation to Act Nos
39/2004,
Works on or near Rail Infrastructure 108/2004,
110/2004,
14/2005,
48A. Definitions 24/2005 and
61/2005.
In this Division--
25 LawToday:
www.dms.
"rail infrastructure" has the same meaning dpc.vic.
gov.au
as in the Rail Safety Act 2005;
"rail operations" has the same meaning as
in the Rail Safety Act 2005;
"rail operator" has the same meaning as in
30
the Rail Safety Act 2005;
"rolling stock" has the same meaning as in
the Rail Safety Act 2005;
253
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 160
"works contractor" means a person
engaged directly or indirectly by a State
road authority or an infrastructure
manager or works manager to carry out
works on behalf of the State road
5
authority or infrastructure manager or
works manager, and includes a sub-
contractor.
48B. State road authority duty in relation to
works on or in immediate vicinity of rail
10
infrastructure or rolling stock
A State road authority must, when exercising
a power or performing a duty under this Act
on or in the immediate vicinity of rail
infrastructure or rolling stock, ensure, so far
15
as is reasonably practicable, that it exercises
the power or performs the duty safely.
Penalty: 9000 penalty units.
48C. Infrastructure manager or works
manager duties in relation to works on or
20
in immediate vicinity of rail infrastructure
or rolling stock
An infrastructure manager or works manager
must, when exercising a power or
performing a duty under this Act on or in the
25
immediate vicinity of rail infrastructure or
rolling stock, ensure, so far as is reasonably
practicable, that he, she or it exercises the
power or performs the duty safely.
Penalty: In the case of a natural person,
30
1800 penalty units;
In the case of a body corporate,
9000 penalty units.
254
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Act No.
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s. 160
48D. Works contractor duty in relation to
works on or in immediate vicinity of rail
infrastructure or rolling stock
A works contractor must, when carrying out
works on or in the immediate vicinity of rail
5
infrastructure or rolling stock, ensure, so far
as is reasonably practicable, that he, she or it
carries out the works safely.
Penalty: In the case of a natural person,
1800 penalty units;
10
In the case of a body corporate,
9000 penalty units.
48E. Notification of owners or occupiers of land
on which there is rail infrastructure or
rolling stock
15
A State road authority must, before
exercising a power under this Act on land on
which there is rail infrastructure or rolling
stock, notify the owner or occupier of that
land of the intended exercise of the power if
20
the exercise of that power will threaten, or is
likely to threaten, the safety of that rail
infrastructure or rolling stock.
Penalty: 300 penalty units.
255
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Act No.
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s. 161
48F. Notification of road authorities before rail
operations carried out
A rail operator must, before carrying out rail
operations that will threaten, or are likely to
threaten, the safety of a road authority's road
5
infrastructure, notify that road authority of
the rail operator's intention to carry out those
operations.
Penalty: In the case of a natural person,
60 penalty units;
10
In the case of a body corporate,
300 penalty units.
48G. Certain offences in this Division are
indictable offences
An offence against section 48B, 48C or 48D
15
is an indictable offence.
Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).'.
See: 161. Water Act 1989 amendment--New sections 137A
20 Act No.
to 137C inserted
80/1989.
Reprint No. 7
After section 137 of the Water Act 1989 insert--
as at
1 December
'137A. Safety duties in relation to works on or in
2003
and
immediate vicinity of rail infrastructure
amending
or rolling stock
25 Act Nos
46/2003,
(1) An Authority must, when carrying out any
48/2003,
12/2004,
works on or in the immediate vicinity of rail
81/2004,
infrastructure or rolling stock, ensure, so far
82/2004,
108/2004 and
as is reasonably practicable, that it carries
48/2005.
out those works safely.
LawToday:
30
www.dms.
dpc.vic.
Penalty: 9000 penalty units.
gov.au
(2) A works contractor must, when carrying out
works on or in the immediate vicinity of rail
infrastructure or rolling stock, ensure, so far
256
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Rail Safety Act 2005
Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 161
as is reasonably practicable, that he, she or it
carries out those works safely.
Penalty: In the case of a natural person,
1800 penalty units;
In the case of a body corporate,
5
9000 penalty units.
(3) An offence against sub-section (1) or (2) is
an indictable offence.
Note: However, the offence may be heard and determined
10 summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
(4) In this section--
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
"rolling stock" has the same meaning as in
15
the Rail Safety Act 2005;
"works contractor" means a person
engaged directly or indirectly by an
Authority to carry out works on behalf
of the Authority, and includes a sub-
20
contractor.
137B. Notification of owners or occupiers of land
on which there is rail infrastructure or
rolling stock
(1) An Authority must, before carrying out
25
works on land on which there is rail
infrastructure or rolling stock, notify the
owner or occupier of that land of the
Authority's intention to carry out those works
if the carrying out of those works will
30
threaten, or is likely to threaten, the safety of
that rail infrastructure or rolling stock.
Penalty: 300 penalty units.
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Part 11--Other Amendments to Acts, Savings and Transitionals
s. 162
(2) In this section--
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
"rolling stock" has the same meaning as in
the Rail Safety Act 2005.
5
137C. Notification of Authorities before rail
operations carried out
(1) A rail operator must, before carrying out rail
operations that will threaten, or are likely to
threaten, the safety of an Authority's works,
10
notify the Authority of the rail operator's
intention to carry out those operations.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
15
300 penalty units.
(2) In this section--
"rail operations" has the same meaning as
in the Rail Safety Act 2005;
"rail operator" has the same meaning as in
20
the Rail Safety Act 2005.'.
See: 162. Water Industry Act 1994 amendment--New
Act No.
sections 62A to 62C inserted
121/1994.
Reprint No. 5
After section 62 of the Water Industry Act 1994
as at
28 April 2005
insert--
25 and
amending
'62A. Safety duties in relation to works on or in
Act No.
immediate vicinity of rail infrastructure
48/2003.
LawToday:
or rolling stock
www.dms.
dpc.vic.
(1) A licensee must, when carrying out any
gov.au
works it is empowered under this Act to
30
carry out on or in the immediate vicinity of
rail infrastructure or rolling stock, ensure, so
258
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 162
far as is reasonably practicable, that it carries
out those works safely.
Penalty: 9000 penalty units.
(2) A works contractor must, when carrying out
works on or in the immediate vicinity of rail
5
infrastructure or rolling stock, ensure, so far
as is reasonably practicable, that he, she or it
carries out those works safely.
Penalty: In the case of a natural person,
1800 penalty units;
10
In the case of a body corporate,
9000 penalty units.
(3) An offence against sub-section (1) or (2) is
an indictable offence.
15 Note: However, the offence may be heard and determined
summarily (see section 53 of, and Schedule 4 to, the
Magistrates' Court Act 1989).
(4) In this section--
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
20
"rolling stock" has the same meaning as in
the Rail Safety Act 2005;
"works contractor" means a person
engaged directly or indirectly by a
licensee to carry out works on behalf of
25
the licensee, and includes a sub-
contractor.
259
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 162
62B. Notification of owners or occupiers of land
on which there is rail infrastructure or
rolling stock
(1) A licensee must, before carrying out works
on land on which there is rail infrastructure
5
or rolling stock, notify the owner or occupier
of that land of the licensee's intention to
carry out those works if the carrying out of
those works will threaten, or is likely to
threaten, the safety of that rail infrastructure
10
or rolling stock.
Penalty: 300 penalty units.
(2) In this section--
"rail infrastructure" has the same meaning
as in the Rail Safety Act 2005;
15
"rolling stock" has the same meaning as in
the Rail Safety Act 2005.
62C. Notification of licensees before rail
operations carried out
(1) A rail operator must, before carrying out rail
20
operations that will threaten, or are likely to
threaten, the safety of a licensee's works,
notify the licensee of the rail operator's
intention to carry out those operations.
Penalty: In the case of a natural person,
25
60 penalty units;
In the case of a body corporate,
300 penalty units.
(2) In this section--
"rail operations" has the same meaning as
30
in the Rail Safety Act 2005;
"rail operator" has the same meaning as in
the Rail Safety Act 2005.'.
260
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 163
Division 4--Savings and Transitionals
163. Definitions
In this Division--
"accredited commercial rail operator" means a
person (other than an accredited tourist and
5
heritage rail operator) who was, immediately
before the commencement of section 119--
(a) accredited to manage rail infrastructure
under Division 3 of Part VI of the
Transport Act 1983; or
10
(b) accredited to provide or operate rolling
stock under Division 3 of Part VI of the
Transport Act 1983;
"accredited tourist and heritage rail operator"
means a person who--
15
(a) immediately before the commencement
of section 119--
(i) managed rail infrastructure for the
purpose of operating a tourist and
heritage railway and was
20
accredited to manage that rail
infrastructure under Division 3 of
Part VI of the Transport Act
1983 (as in force immediately
before the commencement of
25
section 119); or
(ii) provided or operated rolling stock
that was operated on a tourist and
heritage railway and was
accredited to provide or operate
30
that rolling stock under Division 3
of Part VI of the Transport Act
1983 (as in force immediately
before the commencement of
section 119); and
35
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Part 11--Other Amendments to Acts, Savings and Transitionals
s. 163
(b) is declared under section 166 to be an
accredited tourist and heritage rail
operator;
"manage", in relation to rail infrastructure, has
the meaning given to it by section 107 of the
5
Transport Act 1983 (as in force
immediately before the commencement of
section 119);
"operate", in relation to rolling stock, has the
meaning given to it by section 109(2) of the
10
Transport Act 1983 (as in force
immediately before the commencement of
section 119);
"provide", in relation to rolling stock, has the
meaning given to it by section 109(1) of the
15
Transport Act 1983 (as in force
immediately before the commencement of
section 119);
"rail infrastructure" has the same meaning as in
section 104(1) of the Transport Act 1983
20
(as in force immediately before the
commencement of section 119);
"railway" has the same meaning as in section
104(1) of the Transport Act 1983 (as in
force immediately before the commencement
25
of section 119);
"rolling stock" has the same meaning as in
section 104(1) of the Transport Act 1983
(as in force immediately before the
commencement of section 119);
30
"tourist and heritage railway" means a railway
declared under section 166 to be a tourist and
heritage railway.
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 164
164. General transitional provision
This Division does not affect or take away from
the Interpretation of Legislation Act 1984.
165. Savings and transitional regulations
The regulations may contain provisions of a
5
savings or transitional nature consequent on the
enactment of this Act and the repeal of
Divisions 2 and 3 of Part VI of the Transport Act
1983.
166. Declaration in relation to tourist and heritage
10
railways
The Minister, by notice published in the
Government Gazette, may, for the purposes of this
Division, declare--
(a) a person who was accredited under
15
Division 3 of Part VI of the Transport Act
1983 (as in force immediately before the
commencement of section 119) to manage
rail infrastructure to be an accredited tourist
and heritage rail operator;
20
(b) a person who was accredited under
Division 3 of Part VI of the Transport Act
1983 (as in force immediately before the
commencement of section 119) to provide or
operate rolling stock to be an accredited
25
tourist and heritage rail operator;
(c) a railway to be a tourist and heritage railway.
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Act No.
Part 11--Other Amendments to Acts, Savings and Transitionals
s. 167
167. Orders and approvals relating to alcohol and other
drug controls under the Transport Act 1983
On the commencement of section 119--
(a) an Order made under section 93(1AA) of the
Transport Act 1983 is deemed to be an
5
Order made under section 4 and may be
amended or revoked accordingly;
(b) an approval under section 93(1A) of the
Transport Act 1983 is deemed to be an
Order made under section 8 and may be
10
amended or revoked accordingly;
(c) an Order made under the Transport Act
1983 for the purposes of the definition of
"corresponding law" as defined by section
93(1) of that Act is deemed to be an Order
15
made under section 9 and may be amended
or revoked accordingly.
168. Existing accreditations for accredited commercial
rail operators
(1) On the commencement of section 119, an
20
accredited commercial rail operator is deemed to
be accredited under Part 5 as an accredited rail
operator--
(a) if the person is a rail infrastructure manager,
in respect of the rail infrastructure operations
25
the operator carries out;
(b) if the person is a rolling stock operator, in
respect of the rolling stock operations the
operator carries out.
(2) However, despite anything to the contrary in
30
Part 5, an accreditation referred to in sub-
section (1) expires on the second anniversary of
the commencement of section 119.
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s. 169
169. Existing accreditations for accredited tourist and
heritage rail operators
(1) On the commencement of section 119, an
accredited tourist and heritage rail operator is
deemed to be accredited under Part 5 as an
5
accredited rail operator--
(a) if the person is a rail infrastructure manager,
in respect of the rail infrastructure operations
the operator carries out;
(b) if the person is a rolling stock operator, in
10
respect of the rolling stock operations the
operator carries out.
(2) However, despite anything to the contrary in
Part 5, an accreditation referred to in sub-
section (1) expires on the third anniversary of the
15
commencement of section 119.
170. Compliance with safety management system
requirements not required until old accreditations
expire
Despite anything to the contrary in Division 4 of
20
Part 3, a rail operator who holds an accreditation
referred to in section 168 or 169 is not required to
comply with that Division while an accreditation
referred to in those sections has not expired.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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