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This is a Bill, not an Act. For current law, see the Acts databases.


RAIL SAFETY NATIONAL LAW APPLICATION BILL 2013

   Rail Safety National Law Application
                 Bill 2013

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                   General
The main purpose of the Rail Safety National Law Application Bill 2013 is to
provide for a national rail safety regulation scheme, including a national rail
safety regulator and a national rail safety investigator in Victoria, in
accordance with the State's intergovernmental obligations.
In June 2009, the Council of Australian Governments agreed to pursue
national schemes including dedicated regulators for the heavy vehicle,
rail and marine sectors in addition to a national rail safety investigator.
COAG members, including the Premier of Victoria, signed
intergovernmental agreements in August 2011 which set the structures and
procedures for the roll out of these proposals across the country.
Overall, the measures form part of a broader COAG project which aims to
improve national economic outcomes by seeking to reduce costs to business
in complying with regulation and by assisting labour mobility.
Regulation
Applied laws or template approach
The main changes in the Bill relate to the national regulation scheme.
The national rail safety regulation proposal is structured as an applied laws or
template scheme. This adoption method requires the host jurisdiction to pass
a law and the other participating jurisdictions in the scheme to pass
legislation to apply that law locally. South Australia is the host jurisdiction
for the national rail regulation scheme and it passed a template national law
in 2012 thereby making it available for other jurisdictions to apply.
The South Australian-based national law is set out in the Annexure to this
Bill.



571275                                 1       BILL LA INTRODUCTION 6/3/2013

 


 

The Rail Safety National Law Application Bill 2013 will be a new Victorian principal Act that applies the South Australian law as Victorian law and also enables the operation of the national regulator in this State. It contains substantive stand-alone provisions, including clause 6 which applies the national law. It also amends Victoria's key transport statute, the Transport Integration Act 2010, and other affected Victorian statutes. Key features of the regulatory scheme The key features of the national law applied by the Bill essentially adopt the policy template in Victoria's Rail Safety Act 2006. That statute was later followed by a subsequent national model bill (the model Bill) and was progressively replicated in the laws of other States and Territories between 2007 and 2010. The key features of that framework have not changed markedly in the last seven years and include provision for-- general safety duties covering industry parties and individuals which require persons to ensure safety so far as reasonably practicable; and accreditation requirements for rail operators including those who manage track and other rail infrastructure and operate rolling stock; and safety management system requirements; and an industry regulator; and a range of measures which enable the rail safety regulator to take appropriate compliance and enforcement action. As well as these matters, the new national law adopts some additional features of Victoria's rail safety scheme which were not picked up by the model Bill including strengthened risk management requirements, cost benefit protections against potentially gold plated rail safety decisions, establishment of a general safety duty on persons who load and unload freight from rail wagons and other important matters. The national rail safety law applied by the Bill therefore essentially represents an updating of the current framework. While the underlying regulatory scheme endures, the key changes made by the national scheme arise from the applied laws approach and more fundamentally, the establishment of a national regulator. 2

 


 

Rail operations covered The national rail safety regulation scheme applies to most but not all railways in Victoria. The scheme covers the metropolitan passenger rail network operated by Metro Trains Melbourne, the regional network operated by V/Line and regional operations managed by the Australian Rail Track Corporation, Pacific National and other rail operators. The railways captured by the national scheme can be summarised as follows-- interstate passenger and freight heavy rail operations (involving operators such as the Australian Rail Track Corporation and Pacific National); and all domestic metropolitan and regional passenger and freight heavy rail operations (involving operators such as Metro Trains Melbourne and V/Line); and freight terminals (for example, the freight terminals at Dynon); and tourist and heritage heavy rail operators operating on lines shared with freight and regional commercial passenger trains and three tourist and heritage railways which operate on stand-alone lines but which opted for national regulation. The key exclusions from the national scheme are purely local operations that remain under Victoria's existing Rail Safety Act 2006 by agreement between Victoria, the Commonwealth and other jurisdictions. All tram and light rail operations--for example, Melbourne's tram system-- and seven tourist and heritage railways operating in regional areas of Victoria on stand-alone rail lines which did not opt for national regulation are therefore excluded from the national scheme. One national entity The national rail safety regulator which is located in Adelaide is created by the national law. In practical terms, having a national regulator means that rail operators working across multiple jurisdictions need only obtain one rail safety accreditation. As a result, the scheme particularly benefits rail operators who operate across State and Territory borders who will need one safety management system and be ultimately responsible to one regulator. For this reason, the scheme is positioned to reduce red tape and costs to national operators. 3

 


 

Service level agreement Rail safety regulation will continue to be provided in Victoria by the Director, Transport Safety, the current industry regulator established under the Transport Integration Act 2010. The Safety Director is the head of Transport Safety Victoria (TSV), Victoria's integrated safety regulator for bus, maritime and rail transport. As provided by the Bill, the Safety Director will operate under a service level agreement (SLA) between the Minister, the Director, Transport Safety and the national regulator along with sufficient accompanying delegations to ensure an effective, robust and practical arrangement. In recognition of the importance of good rail safety to Victorians, the Bill provides that the Minister and the Director, Transport Safety must both sign the SLA to ensure approval of the arrangement at both policy and operational levels. Investigations The national rail safety initiatives affect safety-related investigations as well as industry regulation although the legislative changes needed are relatively minimal compared with the regulation-driven changes. The measures establish a national rail safety investigator to facilitate the pooling of so called no blame or just culture investigatory resources from the two States which currently have this investigatory model--Victoria and New South Wales--while introducing a complete dedicated investigation capability in other States and Territories for the first time. Victoria's rail safety investigations capability is provided for currently in Part 7 of the Transport Integration Act 2010 and Part V of the Transport (Compliance and Miscellaneous) Act 1983. The Australian Transport Safety Bureau (ATSB) currently confines its rail safety investigation activities to the national rail lines which comprise the defined interstate rail network. It was resolved as part of the national agreement to extend the role of the ATSB by cooperation so it becomes a truly national rail safety investigator by having the capacity to conduct or oversee investigations on all nationally regulated rail lines in all jurisdictions for the first time. As Victoria already has an established investigator in the Chief Investigator, Transport Safety established under the Transport Integration Act 2010, it was agreed that rail safety investigations in Victoria may be conducted either directly by ATSB or by the Chief Investigator acting on behalf of ATSB in accordance with the terms of a collaboration agreement between the agencies. If ATSB is not interested in a particular matter, the Chief Investigator may still investigate it under State law. Over time, it is expected that the majority 4

 


 

of rail safety investigations in Victoria and New South Wales will be conducted under Commonwealth legislation, the Transport Safety Investigation Act 2003, either by ATSB directly or through the existing State investigation offices. State and Territory Ministers currently have no power to direct ATSB to conduct an investigation under the Commonwealth Act, something which the Victorian Minister can require of the Chief Investigator under local arrangements. The Commonwealth Act was amended by the Commonwealth Transport Safety Investigation Amendment Act 2012 at Victoria's initiative and with the subsequent agreement of all jurisdictions to give State and Territory Ministers capacity to request that ATSB conduct rail safety investigations. Structure of the Bill The Rail Safety National Law Application Bill 2013 is divided into 7 parts. Part 1 sets out preliminary matters including the purpose of the Bill and definitions. Part 2 provides for the application of the national law and matters relating to interpretation. The part also contains provisions relating to declarations and exclusions. Part 3 sets out provisions relating to the national rail safety regulator including provisions governing the relationship between that regulator and Victoria's existing rail safety regulator, the Safety Director established under the Transport Integration Act 2010. Part 4 sets out provisions relating to a limited number of local modifications to the national law and additional requirements. Modifications include provisions to-- enable drug and alcohol controls to continue to apply to rail safety workers in Victoria; provide for the jurisdiction of local courts and VCAT; further detail about the relationship between the national regulator and the Safety Director; provide for matters relating to delegations, self-incrimination and infringement notices. Part 5 provides for a number of miscellaneous matters relating criminal liability of corporate officers and the making of regulations including possible transitional regulations. 5

 


 

Part 6 makes related amendments to other Victorian statutes including transport statutes such as the Transport Integration Act 2010, the Transport (Compliance and Miscellaneous) Act 1983, the Rail Management Act 1996 and the Tourist and Heritage Railways Act 2010. Part 7 contains savings and transitional matters including transition from matters set out in Victoria's current main rail safety statute, the Rail Safety Act 2006, and the Transport (Compliance and Miscellaneous) Act 1983. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the main purposes of the Bill which are-- to provide for the application of the a National Law (the Rail Safety National Law) (in these notes called the national law); and to make related amendments to other Acts. Clause 2 deals with commencement and provides that Part 1 of the Bill comes into operation on the day after the day the Bill receives the Royal Assent. The remaining provisions of the Bill come into operation on a day or days to be proclaimed. The proclamation of commencement may only be made on or after the day on which the Minister specifies in a notice that a service level agreement has been entered into between the Minister, the Safety Director and the Office of the National Rail Safety Regulator (ONRSR). The Bill does not contain a default commencement date. This is because, as specifically provided for in clause 2(2), the commencement of the Bill is dependent on a service level agreement and associated delegations being in place. For this reason, it is necessary to allow for an open ended commencement. An open ended commencement is also usually provided for in respect of national law application Bills. Clause 3 contains a number of definitions, which are-- body corporate is given the same meaning as corporation has in section 57A of the Corporations Act 2001 (Cth); 6

 


 

Chief Investigator, Transport Safety means the person holding the position referred to in section 179(1) of the Transport Integration Act 2010; Department means Department of Transport; excluded local railway means a railway declared to be an excluded local railway by Order in Council under clause 9; Rail Safety National Law (Victoria) or Law means the national provisions applying in this jurisdiction because of clause 6; that is, the national law as applied and varied by clause 6 of the Bill; Road Rules means the Road Safety Road Rules 2009; Safety Director means Director, Transport Safety within the meaning of section 3 of the Transport Integration Act 2010 (Safety Director); service level agreement means an agreement between the Minister, the Safety Director and ONRSR relating to-- the performance and exercise by the Safety Director of functions and powers of the National Rail Safety Regulator under the Rail Safety National Law (Victoria); and the performance and exercise by rail safety officers of functions and powers under the Rail Safety National Law (Victoria); and transport safety officer means a person appointed under section 228T of the Transport (Compliance and Miscellaneous) Act 1983. The provision notes that the term railway crossing is dealt with in clause 40 of the Bill. Clauses 2(2) and (3) provide that terms used in this Bill and also the national law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia have the same meanings in this Bill as they have in that Law, but that this provision does not apply to the extent that the context or subject matter otherwise indicates or requires. Clause 4 provides that if the Minister, the Safety Director and the ONRSR enter into a service level agreement, the Minister may, by notice published in the Government Gazette, specify the date on which the service level agreement takes effect. 7

 


 

Clause 5 provides that the Bill and the Rail Safety National Law (Victoria) (that is, the Rail Safety National Law as defined in the Bill or the national law in these clause notes) are transport legislation within the meaning of the Transport Integration Act 2010. This means that a transport body must have regard to the transport system objectives in the Transport Integration Act 2010 when exercising its powers and performing functions under any transport legislation. This is consistent with the application of the Transport Integration Act 2010 to all other transport bodies in Victoria which operate under State law. Application of the Transport Integration Act 2010 operates to reduce the risk of the national scheme giving insufficient regard to other key considerations including potential impacts on roads, ports and land use. The provision is complemented by clause 81 of the Bill, which amends the definition of transport body to include the national rail safety regulator and the ONRSR. This means that the national regulator and ONRSR must have regard to the transport system objectives and the decision making principles in the Transport Integration Act 2010 when exercising its powers and performing functions under the national law as it applies in Victoria. Division 2 of Part 2 of the Transport Integration Act 2010 sets out the transport system objectives. Division 3 of Part 2 of the Transport Integration Act 2010 sets out the decision making principles. PART 2--APPLICATION OF RAIL SAFETY NATIONAL LAW Clause 6 applies the national law, which appears in the Annexure to the Bill, as a law of Victoria. That is, the national law, as in force from time to time, set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia-- subject to Parts 3, 4 and 5 of this Bill, applies as a law of this jurisdiction; and 8

 


 

as so applying may be referred to as the Rail Safety National Law (Victoria); and so applies as if it were an Act. Clause 7 contains interpretive provisions. Subclause (1) defines the following terms for the purposes of the Rail Safety National Law (Victoria)-- court has the meaning given by clause 8; emergency services means an emergency services agency within the meaning of the Emergency Management Act 1986; footpath has the same meaning as in the Road Rules; Gazette means the Victoria Government Gazette; Minister means the Minister for Public Transport; police officer has the same meaning as member of the force has in the Police Regulation Act 1958; public sector body has the same meaning as in the Public Administration Act 2004; public sector employee has the same meaning as in the Public Administration Act 2004; Rail Safety National Law or this Law means the Rail Safety National Law (Victoria); railway does not include an excluded local railway; road has the same meaning as it has in the Road Management Act 2004; shared path has the same meaning as in Rule 242 of the Road Rules; the jurisdiction or this jurisdiction means Victoria. Subclause (2) provides that for the purposes of paragraph (b) of the definition of prescribed authority in section 13(3) of the Rail Safety National Law (Victoria), the relevant authority is the Chief Investigator, Transport Safety. This is required for the purpose of section 13 of the Rail Safety National Law (Victoria), which provides that it is a function of the ONRSR to engage in, promote and coordinate the sharing of information to achieve the objects of this Law, including the 9

 


 

sharing of information with a prescribed authority (i.e. the Chief Investigator, Transport Safety, established under a law of Victoria). Clause 8 defines court for the purpose of Division 6 of Part 5 and Division 6 of Part 10 of the Rail Safety National Law (Victoria) (damage to seized things and compensation, and enforceable voluntary undertakings) as the Magistrates' Court. Clause 9 provides that the Governor in Council, by Order published in the Government Gazette, may declare a railway, or a railway of a specified class, to be an excluded local railway. However, the railway must not be a railway that is prescribed by the national regulations for the purposes of section 7(1)(g) of the Rail Safety National Law (Victoria) (railways to which the Rail Safety National Law (Victoria) does not apply). This clause enables the exclusion of local railways from the national law by declaration. Clause 10 provides protection against double jeopardy in cases where-- there is an act or omission that is an offence against the Rail Safety National Law (Victoria) and against a law of another participating jurisdiction; and the offender has been punished for the offence under the law of the other jurisdiction. Clause 11 excludes various Victorian statutes because South Australian oversight laws apply to the national regulator. Oversight laws are laws relating to such matters as financial oversight, freedom of information, records, the Ombudsman and privacy. Because South Australia does not currently have privacy legislation, privacy is dealt with in a particular way. This is explained in more detail in the Statement of Compatibility for the Bill. In addition, the national law (and therefore the Rail Safety National Law (Victoria)) contains interpretive provisions and provisions to give effect to a nationally agreed majority disallowance of regulations procedure. 10

 


 

The following Acts of this jurisdiction do not apply to the Rail Safety National Law (Victoria) or to instruments made under that Law-- the Audit Act 1994; the Financial Management Act 1994; the Interpretation of Legislation Act 1984; the Public Administration Act 2004 (except to the extent that that Act applies to functions being exercised by a public sector employee); the Ombudsman Act 1973; the Freedom of Information Act 1982; the Public Records Act 1973; the Subordinate Legislation Act 1994 (except to the extent provided by clause 12). However, those Acts apply to a public sector body or a public sector employee exercising a function under the Rail Safety National Law (Victoria). The Charter of Human Rights and Responsibilities Act 2006 also applies to the Bill and the national law, and to public authorities exercising functions of a public nature under the Bill and the national law, as explained in the Statement of Compatibility for the Bill. Clause 12 deals with scrutiny of national regulations by the Scrutiny of Acts and Regulations Committee of Parliament (SARC). The Statement of Compatibility for the Bill contains a detailed discussion about the application of the Charter of Human Rights and Responsibilities Act 2006 and the application of Victorian provisions allowing for scrutiny of the Bill and subordinate legislation by SARC. Subclause (1) provides that section 15(1) of the Subordinate Legislation Act 1994 and Part 5 except section 21(1)(j) of that Act apply to regulations made under the Rail Safety National Law (Victoria) as if-- the national regulation were a statutory rule within the meaning of that Act; and 11

 


 

a reference in section 15(1) of that Act to publication of notice of the making of the statutory rule in the Government Gazette under section 17(2) of that Act were a reference to publication of the national regulation under section 265(1) of the Rail Safety National Law (Victoria). Section 15(1) of the Subordinate Legislation Act refers to the publication of regulations in the Victorian Government Gazette under section 17(2) of the Act, which has been disapplied. For the purpose of this provision, section 15(1) of the Subordinate Legislation Act 1994 applies to a national regulation as if the words "published in the Government Gazette under section 17(2)," were replaced with "published in accordance with section 265(1) of the Rail Safety National Law (Victoria)". The effect is that once a national regulation is made and is published on the New South Wales legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales, it must be laid before each House of the Parliament on or before the 6th sitting day after notice of the making of the national regulation has been published on the New South Wales legislation website. The provisions in Part 5 of the Subordinate Legislation Act 1994 then apply to the national regulation. However, the Bill excludes section 21(1)(j) of Part 5 of the Subordinate Legislation Act 1994, which enables SARC to report if a statutory rule has been prepared in contravention of that Act or the guidelines. That is because the regulations are national regulations. In addition, disallowance does not occur until and unless a majority of participating jurisdictions have disallowed the national regulation. Subclause (2) provides that if a national regulation is disallowed in whole or in part under the Subordinate Legislation Act 1994, then despite anything to the contrary in that Act, the disallowed regulation does not, or the disallowed part does not, cease to have effect in this jurisdiction unless the disallowed regulation is, or disallowed part is, disallowed in a majority of the participating jurisdictions. 12

 


 

The practical effect is that a national regulation cannot be disallowed unless disallowed by the Parliaments of a majority of participating jurisdictions. Subclause (3) confirms that in such a case, the disallowed regulation ceases, or disallowed part ceases, to have effect on the date that regulation or part is disallowed in the last of the participating jurisdictions forming the majority of participating jurisdictions. That is, once disallowed by the Parliaments of a majority of participating jurisdictions the regulations are then taken to be disallowed. PART 3--THE REGULATOR Division 1--Ministerial declarations as to service level agreements Clause 13 provides that the Minister may declare whether a service level agreement is in effect. Subclause (1) provides that the Minister, by notice published in the Government Gazette, may declare that he or she is of the opinion that-- there is no service level agreement in effect; there is a service level agreement that will have effect. Subclause (2) provides that if the Minister makes a declaration under subclause (1)(b), the Minister must specify in the declaration the day on which the Minister is of the opinion that the service level agreement will take effect. Division 2--Modifications to the Law following Ministerial declarations Clause 14 applies if the Minister makes a declaration under clause 13 that there is no service level agreement in effect. The clause makes a series of technical modifications to the Rail Safety National Law (Victoria) as it applies as a law of Victoria in relation to the regulator. 13

 


 

The effect of this clause is that if the Minister makes a declaration that there is no service level agreement in place, the Safety Director becomes the regulator under the Rail Safety National Law (Victoria). This situation continues until such time as the Minister declares that there is a service level agreement in place. This part of the Bill underscores the importance of ongoing local involvement in the operation of the national scheme. Clause 15 provides that the national regulator is the regulator if there is a service level agreement in place. The clause applies if the Minister makes a declaration under clause 13(1)(b) that there is a service level agreement that will have effect; and clause 14 had effect immediately before the publication of that declaration in accordance with clause 13(1)(b). Clause 14 does not have effect during the period commencing on the date specified in the declaration as the date on which the service level agreement will take effect and ending on the date a declaration is published under clause 13(1)(a). The effect is that if the Minister makes a declaration that there is no service level agreement in place, and later makes a declaration that a service level agreement is in place, the national regulator becomes the Regulator under the Rail Safety National Law (Victoria) in Victoria. This situation continues until such time as the Minister declares that there is no service level agreement in place. This part of the Bill underscores the importance of ongoing local involvement in the operation of the national scheme. Division 3--Transition between regulators on the basis of Ministerial declarations This Division explains what happens when there is a change from the national regulator to the Safety Director, or from the Safety Director to the national regulator following a Ministerial declaration. 14

 


 

Clause 16 defines the following terms for the purpose of this Division-- application; compliance and enforcement instrument; declaration day; regulator direction; regulatory instrument; the new regulator; the previous regulator. These definitions are needed to support any transitions between regulators. Clause 17 provides that on the declaration day, a regulatory instrument in effect immediately before that day is taken to have been granted by the new regulator. Clause 18 provides that on the declaration day, a compliance and enforcement instrument in effect immediately before that day is taken to have been given, issued or made by the new regulator. Clause 19 provides that a direction given by the Regulator (a regulator direction) before a declaration day is taken to have been given by the new regulator on that day. Clause 20 provides that subject to Division 3 of Part 3 of the Bill-- anything done by the previous regulator under the Rail Safety National Law (Victoria) before a declaration day is on that day taken to be a thing done by the new regulator; and anything commenced but not completed by the previous regulator under the Rail Safety National Law (Victoria) before a declaration day may on and after that day be continued and completed by the new regulator. Clause 21 relates to applications which have not been determined when there is a transition between regulators. The clause provides that if an application made before a declaration day that has not been determined by the previous regulator on that day it may be determined by the new regulator 15

 


 

on and after that day and, for that purpose, anything done by the previous regulator before the declaration day is taken to have been done by the new regulator. Clause 22 deals with appointments of enforcement officials by regulators on transition. An appointment of an authorised person before a declaration day by the previous regulator that is in effect immediately before that day is, on that day, taken to be an appointment of the authorised person by the new regulator. An appointment of a rail safety officer before a declaration day by the previous regulator that is in effect immediately before that day is, on that day, taken to be an appointment of the rail safety officer by the new regulator. Clause 23 deals with the appointment of persons to review decisions of the regulator on an internal review. A person appointed by the previous regulator under section 216(2) of the Rail Safety National Law (Victoria) in respect of an application under that section that has not been determined by the previous regulator before a declaration day is, on that day taken to be an appointment of the person by the new regulator. Section 216 of the national law deals with reviews by the regulator. Clause 24 contains provisions relating to infringement notices. An infringement notice served by the previous regulator under section 234 of the Rail Safety National Law (Victoria) which has not been withdrawn before a declaration day is taken to have been served by the new regulator on that day. A withdrawal notice served the by previous regulator under section 238 of the Rail Safety National Law (Victoria) before a declaration day is taken to have been served by the new regulator on that day. Clause 25 provides that a rail safety undertaking accepted by the previous regulator before a declaration day is taken, on that day, to have been accepted by the new regulator. 16

 


 

Clause 26 deals with written agreements to vary or withdraw rail safety undertakings. If there is a written agreement in effect under section 256 of the Rail Safety National Law (Victoria) immediately before a declaration day under which the previous regulator has agreed for a rail safety undertaking to be withdrawn or varied then, on that declaration day, the new regulator becomes a party to the agreement in place of the previous regulator and the agreement has effect as if the new regulator had always been a party to the agreement. Clause 27 provides that if an instrument of delegation made by the Director, Transport Safety under section 45(2) of the Rail Safety National Law (Victoria) (as modified by clause 14 of the Bill) is in force immediately before a declaration day, then on that declaration day, that instrument of delegation is taken to be an instrument of delegation made by the new regulator. Clause 28 provides that if an instrument of delegation made by the national rail safety regulator under section 45(2) of the Rail Safety National Law (Victoria) is in force immediately before a declaration day and the instrument delegates a function or power of the national regulator under the national law or an Act to a person other than the Safety Director then, on that declaration day, that instrument of delegation is taken to be an instrument of delegation made by the new regulator. Clause 29 provides that a direction given under section 154 of the Rail Safety National Law (Victoria) by the previous regulator before a declaration day that has not been complied with before that declaration day is taken, on that day, to be a direction under section 154 of the Rail Safety National Law (Victoria) given by the new regulator. Section 154 of the Rail Safety National Law (Victoria) contains a power to require the production of documents and to answer questions. Clause 30 relates to forfeiture of seized things and reasonable enquiries made by the previous regulator. Any reasonable inquiries made by the previous regulator to find a person entitled to a seized thing referred to in section 162(1)(a) of the Rail Safety National Law (Victoria) before a 17

 


 

declaration day are taken, on that day, taken to be reasonable inquiries made by the new regulator referred to in that section. The reference to section 162 of the Rail Safety National Law (Victoria) relates to reasonable enquiries to be made to ascertain the person entitled to a forfeiture of seized thing. Clause 31 relates to seized things and reasonable efforts made by the previous regulator. Any reasonable efforts made by the previous regulator to return a seized thing to the person entitled to the thing referred to in section 162(1)(b) of the national law before a declaration day are taken, on that day, to be reasonable efforts made by the new regulator referred to in that section. Clause 32 relates to applications for the return of seized things and provides that an application made to the previous regulator under section 163 of the Rail Safety National Law (Victoria) for the return of a seized thing is taken, if made before a declaration day, to be an application made to the new regulator under section 163 of the Rail Safety National Law (Victoria). Clause 33 provides that an improvement notice issued and served under section 175 of the Rail Safety National Law (Victoria) before a declaration day by the previous regulator is taken, on that day, to be an improvement notice issued and served under that section by the new regulator. Clause 34 provides that a prohibition notice served under section 179 of the Rail Safety National Law (Victoria) before a declaration day by the previous regulator is taken, on that day, to be a prohibition notice served under that section by the new regulator. Clause 35 applies if, immediately before a declaration day proceedings to which the previous regulator was a party under the Rail Safety National Law (Victoria) were pending or existing in any court or VCAT. On and after that declaration day, the new regulator is substituted for the previous regulator as a party to the proceedings and has the same rights in the proceedings as the previous regulator. 18

 


 

Clause 36 deals with the provision of information and assistance by the previous regulator to the new regulator. Subclause (1) provides that, on and after a declaration day, the previous regulator is authorised, on its own initiative or at the request of the new regulator-- to provide the new regulator with such information (including information given in confidence) in the possession or control of the previous regulator that is reasonably required by the new regulator for the purposes of the Rail Safety National Law (Victoria) and the Bill; and to provide the new regulator with such other assistance as is reasonably required by the new regulator to perform a function or duty, or exercise a power, conferred or imposed under the Rail Safety National Law (Victoria) and the Bill. Subclause (2) provides that nothing done, or authorised to be done, by the previous regulator in acting under subsection (1)-- constitutes a breach of, or default under, an Act or other law; or constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or constitutes a breach of a duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or constitutes a civil or criminal wrong; or terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or releases a surety or any other obligee wholly or in part from an obligation. Subclause (3) provides that the clause applies despite any other Act or law (other than the Charter of Human Rights and Responsibilities Act 2006). 19

 


 

Clause 37 provides that subject to Division 3 of Part 3 of the Bill, on a declaration day, every reference to the previous regulator in a document (by whatever name called or however described) is to be taken to be a reference to the new regulator. This clause applies unless the context otherwise requires. Clause 38 enables the Governor in Council to make regulations containing provisions of a transitional nature, including matters of an application or savings nature arising as a result of the making of a declaration under clause 13 and the application of clauses 14 and 15. Regulations made under this clause may-- have a retrospective effect to a day on or from a date not earlier than a declaration day; and be of limited or general application; and leave any matter or thing to be decided by a specified person or class of person. Regulations under this clause have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. The clause does not include a self-repeal provision because transitional regulations may be needed for any time there is a transition between regulators. PART 4--MODIFICATIONS TO THE RAIL SAFETY NATIONAL LAW AND ADDITIONAL REQUIREMENTS Division 1--Definition modifications Clause 39 modifies the definition of private siding in section 4 of the Rail Safety National Law (Victoria) by providing that paragraph (d) of the definition is omitted. Paragraph (d) of the definition refers to freight terminals. Under the national law, freight terminals are not private sidings. However, in Victoria freight terminals are currently treated as private sidings under the Rail Safety Act 2006 and are regulated accordingly. 20

 


 

The effect of this clause is that the treatment of freight terminals in Victoria remains consistent with existing requirements. The national requirement for accreditation is disapplied by the provision. Clause 40 substitutes the definition of railway crossing in section 4 of the Rail Safety National Law (Victoria) so that a different definition of railway crossing applies for the purposes of that Law in Victoria. The new substituted definition takes into account Victoria's extensive metropolitan tram network in Melbourne. The definition applies in respect of safety interface agreement requirements in the national law. The new definition ensures that existing requirements for Melbourne's tram network are retained. Division 2--Due diligence modification Clause 41 provides that section 55 of the Rail Safety National Law (Victoria) does not apply in Victoria. Section 55 of the Rail Safety National Law (Victoria) places due diligence requirements on officers of persons with duties or obligations under that Law to ensure that the person complies with the duty or obligation. This provision was assessed as imposing a significant red tape burden on Victorian businesses and will not apply in Victoria. Division 3--Delegation power modification Clause 42 provides control measures on the delegation powers of the ONRSR and the national regulator which are needed to ensure appropriate local involvement in the regulation of rail safety in Victoria consistent with the SLA. Subclauses (1) and (2) make modifications to sections 45(1) and (2) of the Rail Safety National Law (Victoria) which are consequential to the modifications made by subclause (3). Subclause (2) provides that section 45(2) of the Rail Safety National Law (Victoria) applies as a law of this jurisdiction as if for "The Regulator" there were substituted "Subject to sections 45A and 45C, the Regulator". 21

 


 

Subclause (3) modifies the application of the Rail Safety National Law (Victoria) as a law of this jurisdiction by providing that the law is to apply as if new sections 45A to 45C were inserted into the Law. New section 45A requires the national rail safety regulator to obtain the consent of the Safety Director before the regulator may delegate a function or power of the regulator under this Law or an Act to-- a person holding an office or acting in an office specified by the Safety Director; or a person who is a corporation sole. The Safety Director may give his or consent under subsection (1) subject to any conditions. New section 45B prevents ONRSR or the national rail safety regulator from amending or revoking certain specified instruments of delegation without the consent of the Minister. New section 45C prevents ONRSR or the national rail safety regulator from amending or revoking certain specified instruments of delegation without the consent of the Safety Director. Division 4--Alcohol and drug controls for rail safety workers Clause 43 provides that Part 6 of the Rail Safety (Local Operations) Act 2006 (which the Rail Safety Act 2006 will become following the commencement of the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013). The clause makes a number of modifications to ensure that Part 6 of the Rail Safety (Local Operations) Act 2006 as it forms part of the Rail Safety National Law (Victoria) is consistent with the Law. This is necessary to ensure that the national law processes are supplemented by local alcohol and drug provisions in order to establish a holistic and enforceable alcohol and drug control regime. The effect of clause 43 is that the drug and alcohol controls which will be inserted into the Rail Safety (Local Operations) Act 2006 by the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 apply to rail 22

 


 

safety workers and railway operations regulated under the national law. The provisions are explained in the explanatory memorandum for that Bill. Section 75 of the Rail Safety (Local Operations) Act 2006 is omitted because it relates to entry to residential premises, which is already contained in section 153 of the Rail Safety National Law (Victoria). Section 76 of the Rail Safety (Local Operations) Act 2006 is omitted because it relates to offences relating to the prescribed concentration of alcohol or the prescribed concentration of drugs, which are already contained in section 128 of the Rail Safety National Law (Victoria). Section 83 of the Rail Safety (Local Operations) Act 2006 is omitted because it relates to when a transport safety officer or a police officer (authorised person under the national law) may require a person to undergo a preliminary breath test or breath analysis, which is already contained in section 126 of the Rail Safety National Law (Victoria). Section 86A of the Rail Safety (Local Operations) Act 2006 is omitted because it relates to when a transport safety officer or a police officer (authorised person under the national law) may require a person to undergo a drug screening test, an oral fluid analysis or a blood test, which is already contained in section 127 of the Rail Safety National Law (Victoria). Section 86F of the Rail Safety (Local Operations) Act 2006 is omitted because it contains provisions prohibiting a sample of oral fluid or blood and any other forensic material taken incidentally during a drug screening test, an oral fluid analysis or a blood test from being used for purposes other than that contemplated by the legislation, which is already contained in section 129 of the Rail Safety National Law (Victoria). References to rail safety work within the meaning of the Rail Safety (Local Operations) Act 2006 are read as references to rail safety work within the meaning of the Rail Safety National Law (Victoria). References to railway premises within the meaning of the Rail Safety (Local Operations) Act 2006 are read as references to railway premises within the meaning of the Rail Safety National Law (Victoria). 23

 


 

References to various sections in the Rail Safety (Local Operations) Act 2006 which are to be read as references to various sections in the Rail Safety National Law (Victoria) are needed because the Rail Safety National Law (Victoria) sections deal with the subject matter of the equivalent but differently numbered Rail Safety (Local Operations) Act 2006 references. For example, section 77 of the Rail Safety (Local Operations) Act 2006 and section 128 of the Rail Safety National Law (Victoria) contain the offences relating to prescribed concentration of alcohol or a prescribed drug. A reference to the Rail Safety (Local Operations) Act 2006 is taken to be a reference to the Rail Safety National Law (Victoria) and the Bill. References to a transport safety officer are taken to be references to an authorised person, which includes a member of the police force. For that reason, the definition of police officer and references to police officer are omitted. Subclause (3) inserts new subsection (5) after section 127(4) of the Rail Safety National Law (Victoria). That provides that, for the purposes of subsection 127(1), a requirement to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these) includes a requirement under section 86D. Section 86D relates to supplementary requirements in respect of oral fluid analysis and blood tests following a requirement to submit to an oral fluid analysis or blood test under new section 86A(1) of the Rail Safety (Local Operations) Act 2006 (section 127(1) of the Rail Safety National Law (Victoria)) or an assessment of drug impairment under sections 86B and 86C of the Rail Safety (Local Operations) Act 2006 (applied to the Rail Safety National Law (Victoria) by the Bill). Division 5--Additional compliance and enforcement requirements Clause 44 provides that the Rail Safety National Law (Victoria) applies subject to Division 5 of Part 4. Clause 45 applies the Magistrates' Court Act 1989 to warrants issued under section 150 of the Rail Safety National Law (Victoria) by providing that a search warrant under section 150 of the Rail 24

 


 

Safety National Law (Victoria) must be issued in accordance with the Magistrates' Court Act 1989 and in the form set out in the regulations under that Act. However, despite section 78 of the Magistrates' Court Act 1989, a search warrant must not authorise a rail safety officer to arrest a person. Subject to any provision to the contrary in section 150 of the Rail Safety National Law (Victoria), subclause (3) provides that the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this clause. Clause 46 deals with the abrogation of the privilege against self- incrimination and provides that both direct use and derivative use immunities apply. Subclause (1) provides that clause 46 applies despite anything to the contrary in section 155 of the Rail Safety National Law (Victoria). Clause 46(2) provides that without limiting section 155 of the Rail Safety National Law (Victoria), any answer to a question or information provided or document obtained as a direct result or indirect consequence of the answer, information or document being provided by a person under a requirement or direction of a rail safety officer under Part 4 of the Rail Safety National Law (Victoria) is not admissible as evidence against that person in civil or criminal proceedings other than proceedings arising out of the false and misleading nature of the answer, information or document. This provides a direct and indirect, or derivative use immunity to persons required to give information which may incriminate the person. Clause 46(3) provides that despite section 155 of the Rail Safety National Law (Victoria) or subclause (2)-- any information or document required to be kept under the Rail Safety National Law (Victoria) that is provided by a person under a requirement under section 154 of the Rail Safety National Law (Victoria) is admissible in evidence against the person in criminal proceedings; and 25

 


 

any information obtained from a person under Part 4 of the Rail Safety National Law (Victoria) that is contained in any document or item that the person is required to keep under the Rail Safety National Law (Victoria) is admissible in evidence against the person in criminal proceedings or may be used in any action, proceeding or process that may make a person liable to a penalty. The information and documentation is information and documentation required to be kept or contained in documentation required to be kept under the Rail Safety National Law (Victoria), and so is discoverable in any event. Division 6--Review of decisions Clause 47 provides that the Victorian Civil and Administrative Tribunal (VCAT) is the reviewing entity for the purpose of the Rail Safety National Law (Victoria). This is achieved by disapplying section 217 of the Rail Safety National Law (Victoria) and substituting a new section 217. Division 7--Certain infringements from national infringement notice regime do not apply Clause 48 provides for the disapplication of certain offences under the Rail Safety National Law (Victoria) as infringement offences under the national law infringement notice regime. Those offences relate to the failure to comply with a supervisory intervention order or with a rail safety undertaking. PART 5--MISCELLANEOUS Division 1--Director and officer criminal liability Clause 49 provides that if a body corporate commits an offence against a specified provision, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate. This means that the prosecution is required to prove that the body corporate committed the offence. 26

 


 

This does not require a prior finding of guilt against the body corporate but requires the prosecution to satisfy the court of the necessary elements constituting the specific offence. The prosecution is then required to prove, beyond reasonable doubt, that the accused failed to exercise due diligence to prevent the commission of the offence by the body corporate. Subclause (2) specifies provisions of the Rail Safety National Law (Victoria) as provisions to which the clause applies. Subclause (3) provides that, in determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to-- what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and any other relevant matter. Subclause (4) provides that, without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear. Subclause (5) provides that an officer of a body corporate may commit an offence against a provision specified in subclause (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision. That is, an officer may commit an offence whether or not the body corporate has been prosecuted for, or found guilty of, an offence. This means that a finding by a court that an officer has committed an offence for the purposes of this clause is not contingent on a prior finding of guilt against the body corporate 27

 


 

or prior prosecutorial action being taken against the body corporate for the same offence. Clause 50 is a Corporations Act displacement provision. The clause provides that section 232 of the Rail Safety National Law (Victoria) is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 2D of that Commonwealth Act. A note confirms that section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. The provision is required because section 232 of the Rail Safety National Law (Victoria) enables a court to make an exclusion order, whereby a person who is a systematic or persistent offender against an Australian rail safety law may be prohibited, for a specified period, from being a director, secretary or officer concerned in the management of a body corporate involved in managing rail infrastructure or operating rolling stock in Victoria. Division 3--Regulations Clause 51 contains regulation making powers. The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by the Bill to be prescribed or necessary to be prescribed to give effect to the Bill. Clause 52 contains transitional regulation making powers. Regulations may be made containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013, including any repeals and amendments made as a result of the enactment of the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. 28

 


 

The regulations may-- have a retrospective effect to a day on or from a date not earlier than the day on which this Act receives Royal Assent; and be of limited or general application; and leave any matter or thing to be decided by a specified person or class of person. The clause enables regulations to have retrospective effect because the regulations deal with transitional matters which will have effect upon commencement of the national law in Victoria. Regulations under this clause have effect despite anything to the contrary in any Act (other than this Act, the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Act 2013 or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. This clause is repealed on the second anniversary of the day on which it comes into operation. PART 6--AMENDMENTS OF OTHER ACTS This Part deals with consequential amendments to other Acts. The amendments are required to reflect the establishment and commencement of the national scheme in Victoria and its interaction with other legislation along with the local operations scheme and the change of name of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. For example, the consequential amendments deal with changes in terminology such as the use of the term "rail transport operator" instead of "rail operator", and "railway operations" instead of "rail operations". This also means, for example, that expressions such as "rail operator's" are changed to "rail transport operator's". 29

 


 

Division 1--Eastlink Project Act 2004 Clause 53 amends the references in the definition of Utility in section 3 of the Eastlink Project Act 2004 from a person who manages rail infrastructure or a person who operates rolling stock to a rail transport operator (which encompasses both of these functions). The amendments reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. Division 2--Electricity Industry Act 2000 Clause 54 amends various definitions for the purpose of Part 5 of the Electricity Industry Act 2000. The clause amends section 85 of the Electricity Industry Act 2000 as follows-- the clause substitutes new definitions of rail infrastructure and rolling stock; the clause inserts new definitions of rail transport operator and railway operations; the clause repeals the definitions of rail operations and rail operator. The amendments reflect definitional changes made by this Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. Clause 55 makes consequential amendments to section 93C of the Electricity Industry Act 2000 dealing with requirements for the notification of electricity corporations before railway operations are carried out. The clause makes the following substitutions-- for "rail operator" the clause substitutes "rail transport operator"; for "rail operations" the clause substitutes "railway operations"; for "rail operator's" the clause substitutes "rail transport operator's". 30

 


 

The amendments reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. Division 3--Electricity Safety Act 1998 Clause 56 amends the definition of railway in section 3 of the Electricity Safety Act 1998 to mean a railway within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria). The amendments reflect definitional changes made by this Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. Division 4--Gas Industry Act 2001 Clause 57 substitutes section 147A of the Gas Industry Act 2001 with a new section which contains the following new definitions-- rail infrastructure means rail infrastructure within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria); rail transport operator means a rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria); railway operations means railway operations within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria); rolling stock means rolling stock within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria). The changes reflect definitional changes made by this Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. 31

 


 

Division 4--Gas Industry Act 2001 Clause 58 amends references in section 149C of the Gas Industry Act 2001 which deals with notification of gas distribution and transmission companies before railway operations are carried out. The amendments reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. The clause makes the following substitutions-- for "rail operator" the clause substitutes "rail transport operator"; for "rail operations" the clause substitutes "railway operations"; for "rail operator's" the clause substitutes "rail transport operator's". Division 5--Interpretation of Legislation Act 1984 Clause 59 inserts new section 38FA into the Interpretation of Legislation Act 1984. New section 38FA provides that in an Act or subordinate instrument, Rail Safety National Law (Victoria) means the provisions applying because of clause 6 of the Bill. Division 6--Major Transport Projects Facilitation Act 2009 Clause 60 makes amendments to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. The clause substitutes new definitions of rail infrastructure and rolling stock in section 3 of the Major Transport Projects Facilitation Act 2009. 32

 


 

Division 7--Melbourne City Link Act 1995 Clause 61 makes amendments to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. The clause amends the definition of Utility in section 21(1) of the Melbourne City Link Act 1995. The clause substitutes paragraphs (d) and (e) with a new paragraph (d) as follows-- "(d) a rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria);". Clause 62 amends section 39(2)(b) of the Melbourne City Link Act 1995 to reflect the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and the Rail Safety National Law (Victoria). The clause inserts a new reference to the Rail Safety National Law (Victoria) and replaces the reference to the Rail Safety Act 2006 with a reference to the Rail Safety (Local Operations) Act 2006. Division 8--Rail Management Act 1996 Clause 63 makes amendments to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. Certain definitions are changed for the purposes of Part 2A of that Act. The clause substitutes a new definition of access provider in section 38A of the Rail Management Act 1996 so that it covers accredited rail transport operator and rail transport operators who are exempted within the meaning of the Rail Safety (Local Operations) Act 2006 and accredited persons and rail infrastructure managers within the meaning of the Rail Safety National Law (Victoria). 33

 


 

The clause inserts new definitions of rail transport operator and railway operations in section 38A of the Rail Management Act 1996. The definitions of rail infrastructure manager and rail infrastructure operations in that section are also repealed by the clause. Clause 64 amends section 38ZZE of the Rail Management Act 1996 (decisions must not interfere with certain decisions of the Safety Director) to reflect the new short title of the Rail Safety (Local Operations) Act 2006. Clause 65 amends section 60A of the Rail Management Act 1996 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013. The effect of the amendments is that relevant rail operators to whom section 60A of the Rail Management Act 1996 applies may clear trees without obtaining permits, consistent with the current arrangements for rail transport operators in Victoria. Division 9--Road Management Act 2004 Clause 66 amends the definition of road management function in section 3(1) of the Rail Management Act 2004 to reflect the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and inserts a reference to the Rail Safety National Law (Victoria). Clause 67 substitutes a new section 48A of the Road Management Act 2004 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. New section 48A contains new definitions of rail infrastructure, rail transport operator, railway operations, rolling stock and works contractor. 34

 


 

Clause 68 amends section 48B of the Road Management Act 2004 to reflect the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and inserts a reference to Subdivision 2 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). Section 48B relates to duties in relation to works on or immediately in the vicinity of rail infrastructure or rolling stock. Clause 69 amends section 48DB of the Road Management Act 2004 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. The amendments also inserts a reference to Subdivision 2 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). Clause 70 amends sections 48EA(3) and 48EB(3) of the Road Management Act 2004 to reflect the change in title of the Rail Safety Act 2006 and to insert a reference to Subdivision 2 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). The provisions relate to notifications by responsible road authorities, infrastructure managers or works managers or works contractors in relation to works on or near rail infrastructure. Clause 71 makes consequential amendments to section 48EC of the Road Management Act 2004 in respect of notification by rail operators before exercising a power or performing a duty under the Road Management Act 2004 on or in the immediate vicinity of a road authority's road infrastructure about that intended exercise of a duty. These amendments reflect definitional changes and the change of title from the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and insert a reference to the Rail Safety National Law (Victoria). 35

 


 

Clause 72 makes consequential amendments to section 48F of the Road Management Act 2004 in respect of notifications of road authorities before railway operations are carried out. The amendment reflects definitional changes and the change of title from the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and inserts a reference to the Rail Safety National Law (Victoria). Clause 73 amends clause 8 of Schedule 7 to the Road Management Act 2004 which deals with the duty to the give notice to other infrastructure managers or works managers. The amendment reflects definitional changes and the change of title from the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and inserts a reference to the Rail Safety National Law (Victoria). Division 10--Road Safety Act 1986 Clause 74 amends section 92 of the Road Safety Act 1986 which deals with disclosure of information by VicRoads. Section 92 of the Road Safety Act 1986 prohibits the disclosure of information except in certain cases. Section 92(3) contains exceptions to the prohibition. The clause substitutes section 92(3)(ca) with new sections 92(3)(ca) and 92(3)(caa) of the Road Safety Act 1986. The effect is to amend the existing exception to the prohibition on disclosure of information to extend to the retitled Rail Safety (Local Operations) Act 2006 and to the Rail Safety National Law (Victoria). Division 11--Tourist and Heritage Railways Act 2010 Clause 75 amends section 3 of the Tourist and Heritage Railways Act 2010 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. 36

 


 

The definitions of rail asset and tourist and heritage railway operator are amended and a new definition of rolling stock is inserted. Clause 76 makes a consequential amendment to section 31(1)(i) of the Tourist and Heritage Railways Act 2010. The effect is that regulations under the Tourist and Heritage Railways Act 2010 may be made prohibiting conduct in relation to, or regulating the conduct of anyone in or on, any rolling stock or place belonging to or under the control of a tourist and heritage railway operator. Division 12--Water Act 1989 Clause 77 amends definitions in section 137A(4) of the Water Act 1989, which relates to safety duties in relation to works on or in the immediate vicinity of rail infrastructure or rolling stock, to substitute new definitions of rail infrastructure and rolling stock. Clause 78 substitutes section 137B(2) of the Water Act 1989, which contains definitions relating to provisions dealing with the notification of owners or occupiers of land on which there is rail infrastructure or rolling stock. Substituted section 137B(2) contains new definitions of rail infrastructure and rolling stock. Clause 79 substitutes section 137C of the Water Act 1989, which contains definitions relating to provisions dealing with the notification of authorities before railway operations are carried out. Substituted section 137C contains new definitions of rail transport operator and railway operations. Division 13--Criminal Procedure Act 2009 Clause 80 substitutes item 25 of Schedule 2 to the Criminal Procedure Act 2009, which relates to indictable offences that may be heard and determined summarily, to refer to indictable offences under the Rail Safety (Local Operations) Act 2006 and indictable offences under the Rail Safety National Law (Victoria). 37

 


 

Division 14--Transport Integration Act 2010 Division 14 amends the Transport Integration Act 2010 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. The changes are also needed to reflect national and intergovernmental transport safety investigation arrangements. Clause 81 inserts new definitions of Australian Transport Safety Bureau, Office of the National Rail Safety Regulator, National Rail Safety Regulator and rail safety officer in section 3 of the Transport Integration Act 2010. The clause substitutes new definitions of railway and rolling stock. The clause amends the definitions of rail infrastructure, rail safety worker, and transport legislation. Clause 82 amends section 172(2)(c) of the Transport Integration Act 2010 which relates to the object of the Safety Director to refer to the Rail Safety (Local Operations) Act 2006 instead of the Rail Safety Act 2006. Clause 83 amends section 173(1) of the Transport Integration Act 2010 which relates to the functions of the Safety Director to refer to the Rail Safety (Local Operations) Act 2006 instead of the Rail Safety Act 2006, and to the Rail Safety National Law Application Act 2013. Clause 84 amends section 177(2)(b) of the Transport Integration Act 2010 which relates to information disclosure by the Safety Director to refer to the Rail Safety (Local Operations) Act 2006 instead of the Rail Safety Act 2006. Clause 85 amends section 178(1) of the Transport Integration Act 2010 which relates to delegation by the Safety Director to refer to the Rail Safety (Local Operations) Act 2006 instead of the Rail Safety Act 2006. 38

 


 

Clause 86 substitutes section 180 of the Transport Integration Act 2010. The effect of the substitution is to also provide that it is an object of the Chief Investigator, Transport Safety to seek to improve transport safety by liaising collaboratively with the Australian Transport Safety Bureau. Clause 87 inserts new section 181(3)(aa) into the Transport Integration Act 2010 to provide that it is a function of the Chief Investigator, Transport Safety, under an arrangement referred to in new section 182A of the Transport Integration Act 2010, to perform services in connection with the Australian Transport Safety Bureau's functions or the exercise of the Australian Transport Safety Bureau's functions. Clause 88 inserts new section 182A into the Transport Integration Act 2010 to give effect to the national rail safety investigation arrangements under which the Chief Investigator, Transport Safety may enter into arrangements with the Chief Executive Officer of the Australian Transport Safety Bureau to perform services in connection with the Bureau's functions. Clause 89 amends section 197A of the Transport Integration Act 2010 to make definitional changes, to reflect the change in title of the Rail Safety Act 2006 and to include reference to the Rail Safety National Law (Victoria). The clause substitutes new definitions of decision, regulated body and regulator. Division 15--Transport (Compliance and Miscellaneous) Act 1983 Division 15 amends the Transport (Compliance and Miscellaneous) Act 1983 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. Clause 90 makes a consequential amendment to section 12(3) of the Transport (Compliance and Miscellaneous) Act 1983 which relates to financial assistance to train drivers following fatal incidents. 39

 


 

Clause 91 makes consequential amendments to section 82C of the Transport (Compliance and Miscellaneous) Act 1983 to reflect definitional changes made by the Bill and the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 and the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006. Clause 92 amends section 85H of the Transport (Compliance and Miscellaneous) Act 1983 to replace an out of date reference to Executive Director of Transport Safety Investigations of the Commonwealth Australian Transport Safety Bureau. Clause 93 substitutes a new definition of rail safety worker in section 208 of the Transport (Compliance and Miscellaneous) Act 1983 so that the definition encompasses rail safety workers within the meaning of the Rail Safety (Local Operations) Act 2006 and the Rail Safety National Law (Victoria). Clause 94 substitutes a new definition of safety work infringement in section 208 of the Transport (Compliance and Miscellaneous) Act 1983. The new definition reflects the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006, amendments to alcohol controls made to that Act and new alcohol offences against the Rail Safety National Law (Victoria). Clause 95 amends section 215B(8) of the Transport (Compliance and Miscellaneous) Act 1983, which relates to safety work infringements, to reflect the change in title of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006 and to add a reference to the Rail Safety National Law Application Act 2013. Clause 96 amends section 230E of the Transport (Compliance and Miscellaneous) Act 1983 which relates to an order for the release of an offender on giving a safety undertaking to include reference to the national rail safety regulator and to the Rail Safety National Law (Victoria). The clause inserts new definitions of National Rail Safety Regulator and relevant law. 40

 


 

Division 16--Repeal of amending Part Clause 97 deals with the repeal of Part 6 of the Bill. Part 6 is repealed on the first anniversary of the first day on which all of its provisions are in operation. The repeal does not affect the continuing operation of the amendments made by the Part (see section 15(1) of the Interpretation of Legislation Act 1984). PART 7--SAVINGS AND TRANSITIONALS Division 1--Preliminary matters Clause 98 defines the following terms for the purposes of Part 7 of the Bill-- commencement day, which means the day on which clause 6 of the Bill comes into operation; old scheme safety management system; relevant person; relevant road manager; RS Act, which means the Rail Safety Act 2006 as in force from time to time before the commencement day; RS Act accreditation; RS Act railway premises; TCM Act, which means the Transport (Compliance and Miscellaneous) Act 1983 as in force from time to time before the commencement day; TCM Act improvement notice; TCM Act prohibition notice; transport safety officer; transitioning rail infrastructure manager; transitioning rolling stock operator; transitioning rail transport operator. 41

 


 

Clause 99 provides that Part 7 of the Bill does not affect or take away from the Interpretation of Legislation Act 1984. Division 2--Transition from the Rail Safety Act 2006 Division 2 of Part 7 of the Bill deals with transitional arrangements and provides that various matters which occurred or were done or made under the Rail Safety Act 2006 are taken to have occurred or to have been done or made under the Rail Safety National Law (Victoria). Clause 100 deals with the declaration of a drug and provides that, on the commencement day, a declaration under section 6 of the RS Act that is in effect immediately before that day is taken to be a declaration under section 4 of the Rail Safety National Law (Victoria). Clause 101 deals with the approval of persons to take blood samples and provides that on the commencement day, a person approved under section 8 of the RS Act whose approval is in effect immediately before that day is taken to have been appointed as an authorised person. Clause 102 deals with safety management systems and provides that if a transitioning rail transport operator has in place an old scheme safety management system immediately before the commencement day, the old scheme safety management system is taken to be a safety management system approved by the Regulator under Division 6 of Part 3 of the Rail Safety National Law (Victoria). Clause 103 relates to consultation for the purpose of safety management systems and provides that if a transitioning rail transport operator has commenced consultation for the purposes of establishing an old scheme safety management system before the commencement day but not determined the consultation, that consultation is taken to be consultation to which section 99(3) of the Law applies. Clause 104 relates to a system and arrangements established by a transitioning rail transport operator who is exempt from accreditation and provides that a system and arrangements established by the operator pursuant to section 28B of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be a safety management system 42

 


 

established under Subdivision 1 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). Clause 105 relates to directions to stop rail operations or utility works and provides that a direction given under sections 33(1) or 33(2) of the RS Act that is in effect immediately before the commencement day is taken to be a direction given under the Rail Safety National Law (Victoria). Clause 106 relates to directions to alter, demolish or take away works and provides that a direction given under section 34(1) of the RS Act that is in effect immediately before the commencement day is taken to be a direction given under section 199(5) of the Rail Safety National Law (Victoria). Clause 107 deals with safety interface agreements and rail operations. A safety interface agreement entered into by a transitioning rail transport operator pursuant to section 34B of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be an interface agreement entered into by the operator pursuant to section 106 of the Rail Safety National Law (Victoria). Clause 108 deals with safety interface agreements and rail infrastructure and public roads or pathways. A safety interface agreement entered into by a transitioning rail infrastructure manager pursuant to section 34C of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be an interface agreement entered into by the manager pursuant to section 107(1) of the Rail Safety National Law (Victoria). Clause 109 deals with safety interface agreements and rail infrastructure and relevant roadways or pathways. A safety interface agreement entered into by a relevant road manager pursuant to section 34D of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be an interface agreement entered into by the manager pursuant to section 108(1) of the Rail Safety National Law (Victoria). 43

 


 

Clause 110 deals with safety interface agreements and assessments by road managers of public roadways or pathways. A safety interface agreement entered into by a relevant road manager pursuant to section 34E of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be an interface agreement entered into by the manager pursuant to section 107(2) of the Rail Safety National Law (Victoria). Clause 111 deals with safety interface agreements and assessments by road managers of relevant roadways or pathways. A safety interface agreement entered into by a relevant road manager pursuant to section 34F of the RS Act that is in effect immediately before the commencement day is taken, on that day, to be an interface agreement entered into by the manager pursuant to section 108(2) of the Rail Safety National Law (Victoria). Clause 112 deals with written notices of the Safety Director in relation to safety interface agreements. On the commencement day, a written notice served on a transitional rail transport operator or a relevant road manager under section 34J(2) of the RS Act that is in effect immediately before that day is taken to be a written notice given to that person under section 110(2) of the Rail Safety National Law (Victoria). Clause 113 deals with directions of the Safety Director in relation to safety interface agreements. On the commencement day, a direction under section 34J(5)(b) of the RS Act that is in effect immediately before that day is taken to be a direction under section 110(4)(b) of the Rail Safety National Law (Victoria). Clause 114 deals with registers of safety interface agreements. A register maintained by a transitioning rail transport operator pursuant to section 34K(1) of the RS Act is taken, on and after the commencement day, to be a register maintained by the operator pursuant section 111(1) of the Rail Safety National Law (Victoria). 44

 


 

A register maintained by a relevant road manager pursuant to section 34K(2) of the RS Act is taken, on and after the commencement day, to be a register maintained by the manager pursuant section 111(2) of the Rail Safety National Law (Victoria). Clause 115 deals with accredited rail operators. A transitioning rail transport operator who is an accredited rail operator within the meaning of the RS Act is taken, on the commencement day, to be an accredited person. Clause 116 provides that accreditations under the Rail Safety Act 2006 are taken to be accreditations under the Rail Safety National Law (Victoria) and are subject to the same conditions and restrictions that applied to the accreditations under the RS Act. Clause 117 provides that accreditations under the Rail Safety Act 2006 are to be registered in the National Rail Safety Register. Clause 118 provides that if an application for accreditation under section 38(1) or (2) of the RS Act has been made by a transitioning rail transport operator before the commencement day and the Safety Director has not determined the application before the commencement day, the application is taken to be an application under section 64 of the Rail Safety National Law (Victoria). Clause 119 provides that direction of the Safety Director under section 43 of the RS Act to coordinate and cooperate with applications for accreditation that is in effect immediately before the commencement day is taken to be a direction of the Regulator under section 66 of the Rail Safety National Law (Victoria). Clause 120 relates to discretionary applications for variations of accreditation. On the commencement day an application under section 53 of the RS Act is taken to be an application for variation under section 68(1) of the Rail Safety National Law (Victoria). Clause 121 relates to mandatory applications for variations of accreditation. On the commencement day an application for variation under section 54 of the RS Act is taken to be an application under section 68(2) of the Rail Safety National Law (Victoria). 45

 


 

Clause 122 relates to variations, revocations or the imposition of conditions of or restrictions accreditations by the Safety Director. On the commencement day, a decision or written notice of a decision under section 55 of the RS Act is taken to be a decision or written notice of the regulator under section 72 of the Rail Safety National Law (Victoria). Clause 123 relates to suspended accreditations. On the commencement day, a suspension of a transitioning rail transport operator's accreditation under section 58 or 59 of the RS Act is taken to be a suspension of the operator's accreditation under section 73 or 74 of the Rail Safety National Law (Victoria), as the case requires. The suspension continues in effect until that date set by the Safety Director under the RS Act. Clause 124 relates to surrender of accreditation. On the commencement day, a request to surrender an accreditation under section 56 of the RS Act by a transitioning rail transport operator is taken to be written notice of the intention to surrender the accreditation under section 75(2)(a) of the Rail Safety National Law (Victoria) and the regulator must deal with it under that section. Division 3--Transition of pending internal review decisions under Rail Safety Act 2006 Clause 125 relates to reviews of decisions to refuse to accredit. If an application for a review of a decision to refuse accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act and clause 118 does not apply to the application while the review under section 88 of the RS Act is on foot. If, following the review, the decision of the Safety Director is that the transitioning rail transport operator is accredited, the effect of the clause is that the operator is taken to hold an accreditation under the national law that is subject to the same conditions and restrictions the Safety Director imposes in his or her decision. 46

 


 

Clause 126 relates to reviews of decisions to give a direction to co-ordinate applications. If an application for a review of a decision to give a direction to co-ordinate applications has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act and clause 119 does not apply to the direction while the review under section 88 of the RS Act is on foot. If, following the review, the effect of the decision of the Safety Director is that the transitioning rail transport operators must coordinate their applications for accreditation, the direction that is the subject of the review is taken to be to be a direction of the Regulator under section 66 of the national law. Clause 127 relates to a review of a decision to impose a condition or restriction on an initial accreditation. If an application for a review of a decision to impose a condition on or restrict the scope of a transitioning rail transport operator's accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act and clause 118 does not apply to the application while the review under section 88 of the RS Act is on foot. If the Safety Director affirms the imposition of the conditions or restrictions of accreditation, the transitioning rail transport operator is taken to hold an accreditation under the national law that is subject to the conditions and restrictions the Safety Director affirmed in his or her decision. If the Safety Director varies the conditions or restrictions of accreditation, the transitioning rail transport operator is taken to hold an accreditation under the national law that is subject to the conditions and restrictions as varied by the Safety Director in his or her decision. If the Safety Director sets aside the decision to impose the conditions or restrictions of accreditation and substitutes a new decision which imposes different conditions or restrictions of accreditation, the transitioning rail transport operator is taken to hold an accreditation under the national law that is subject to the conditions and restrictions imposed by the Safety Director under his or her decision. 47

 


 

Clause 128 relates to a review of a decision to refuse to vary or revoke a condition or restriction of accreditation. If an application for a review of a decision under section 53 of the RS Act to refuse to vary or revoke condition or restriction of accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law that is subject to the conditions and restrictions which applied immediately before the reviewable decision. If the Safety Director sets aside the reviewable decision and grants a variation of the condition or restriction of the transitioning rail transport operator's accreditation, the operator is taken to hold an accreditation under the national law that is subject to the condition or restriction as varied by the Safety Director in his or her decision and all the other conditions or restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. If the Safety Director sets aside the reviewable decision and agrees to a revocation of the condition or restriction of the transitioning rail transport operator's accreditation, the operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied immediately before the reviewable decision except the condition and restriction that was the subject of the application for review. Clause 129 relates to a review of a decision to refuse to vary an accreditation. If an application for a review of a decision under section 54 of the RS Act to refuse to vary an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions or restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. 48

 


 

If the Safety Director sets aside the reviewable decision and agrees to vary the transitioning rail transport operator's accreditation, the operator is taken to hold an accreditation under the national law as varied by the Safety Director in his or her decision. Clause 130 relates to a review of a decision to vary, revoke, or impose a new condition or restriction on an accreditation. If an application for a review of a decision under section 55 of the RS Act to refuse to vary, revoke, or impose a new condition or restriction on an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to-- if the reviewable decision varied a condition or restriction, all conditions and restrictions that applied to the operator's RS Act accreditation immediately before the review and the varied condition or restriction imposed by the reviewable decision; if the reviewable decision revoked a condition or restriction, all conditions and restrictions that applied to the operator's RS Act accreditation immediately before the review except the condition or restriction that was revoked by the decision. If the Safety Director varies the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to all conditions and restrictions that applied to the RS Act accreditation immediately before the review, subject to any new or varied condition or restriction imposed by the decision of the Safety Director. If the Safety Director sets aside the reviewable decision and substitutes a new decision, the transitioning rail transport operator is taken to hold an accreditation under the national law. That accreditation is subject to all conditions and restrictions that applied to the operator's RS Act accreditation immediately before the review, subject to any new or varied conditions or restrictions imposed by the new decision. 49

 


 

If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. Clause 131 relates to a review of a decision to refuse to consent to surrender of an accreditation. If an application for a review of a decision under section 56 of the RS Act to refuse to consent to the surrender of an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. If the Safety Director sets aside the reviewable decision and agrees to the surrender of the transitioning rail transport operator's accreditation, the operator is taken to be an accredited person under the national law until such time as the accreditation is surrendered in accordance with the national law. The accreditation is subject to the conditions and restrictions which applied to it immediately before the reviewable decision until that time. Clause 132 relates to a review of a decision to immediately suspend an accreditation. If an application for a review of a decision under section 58 of the RS Act to immediately suspend an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, or to set it aside and impose a new period of suspension, the transitioning rail transport operator is taken to be an accredited person under the national law whose accreditation has been suspended until the day on which the suspension ends. 50

 


 

If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law. In each case, the accreditation is subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. Clause 133 relates to a review of a decision to take disciplinary action and impose a new condition or restriction on an accreditation. If an application for a review of a decision under section 59 of the RS Act to impose a new condition or restriction on an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the new condition or restriction that was the subject of the application for review and all other conditions or restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. If the Safety Director varies or sets aside the reviewable decision and imposes a condition or restriction on the operator's accreditation different from that imposed under the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the condition or restriction imposed under the new decision and all the other conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. 51

 


 

Clause 134 relates to a review of a decision to take disciplinary action and impose an expiry date on an accreditation. If an application for a review of a decision under section 59 of the RS Act to cancel an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator's accreditation is taken to have been revoked under the national law with effect from the date specified in the reviewable decision. If the Safety Director varies or sets aside the reviewable decision and imposes a different date of expiry on the operator's accreditation, the transitioning rail transport operator's accreditation is taken to be revoked under the national law with effect from the date specified in the new decision. If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. Clause 135 relates to a review of a decision to take disciplinary action and suspend an accreditation. If an application for a review of a decision under section 59 of the RS Act to suspend an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law which is suspended until the day on which the suspension ends. If the Safety Director sets aside the reviewable decision and imposes a new period of suspension, the transitioning rail transport operator is taken to hold an accreditation under the national law which is suspended until the day on which the suspension ends. 52

 


 

If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law. In each case, the accreditation is subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. Clause 136 relates to a review of a decision to take disciplinary action and cancel an accreditation. If an application for a review of a decision under section 59 of the RS Act to cancel an accreditation has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator's accreditation is taken to have been revoked under the national law. If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to hold an accreditation under the national law subject to the conditions and restrictions which applied to the operator's RS Act accreditation immediately before the reviewable decision. Clause 137 relates to a review of a decision to refuse to grant an exemption from the requirement to be accredited. If an application for a review of a decision under section 63 of the RS Act to refuse to grant an exemption from the requirement to be accredited under the RS Act has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the decision, the transport operator is taken not to be an accredited person under the national law. If the Safety Director sets aside the reviewable decision and grants the exemption from the requirement to be accredited under the RS Act, the transitioning rail transport operator is taken to have been granted an exemption under Division 5 of Part 3 of the national law subject to any terms, conditions or limitations specified in the decision of the Safety Director. 53

 


 

Clause 138 relates to a review of a decision to revoke an exemption from the requirement to be accredited. If an application for a review of a decision under section 64 of the RS Act to revoke an exemption from the requirement to be accredited under the RS Act has been made before the commencement day and the review has not been completed before that day, it must be completed in accordance with the RS Act. If the Safety Director affirms the reviewable decision, the transitioning rail transport operator is taken not to be an accredited person or to hold an exemption under Division 5 of Part 3 of the national law. If the Safety Director sets aside the reviewable decision, the transitioning rail transport operator is taken to have been granted an exemption under the national law subject to the same terms, conditions or limitations that applied to the exemption granted to the operator under the RS Act that was the subject of the application for review. Division 4--Transition from the Transport (Compliance and Miscellaneous) Act 1983 Clause 139 relates to secured sites. A site at RS Act railway premises that is secured under section 228ZC of the TCM Act immediately before the commencement date is taken on and after that date to be secured under section 149 of the Rail Safety National Law (Victoria). Clause 140 relates to things seized under seizure powers. A thing seized under section 228ZE of the TCM Act from RS Act railway premises is taken to have been seized from railway premises under section 158 of the Rail Safety National Law (Victoria). Clause 141 relates to things seized under a search warrant. A thing seized under a search warrant issued under section 228ZG of the TCM Act from RS Act railway premises is taken to have been seized from railway premises under section 158 of the Rail Safety National Law (Victoria). 54

 


 

Clause 142 relates to search warrants. A search warrant issued under section 228ZG of the TCM Act in relation to RS Act railway premises that has not been executed before the commencement day is taken on the commencement day to have been issued under section 150 of the Rail Safety National Law (Victoria) in relation to those premises. Clause 143 relates to power to require production of documents and to answer questions. A direction given under section 228ZK of the TCM Act that has not been complied with before the commencement day is taken to be a direction under section 154 of the Rail Safety National Law (Victoria) on that day. Clause 144 relates to a direction to provide reasonable assistance. A direction given under section 228ZL of the TCM Act that has not been complied with before the commencement day is taken to be a direction under section 154(1)(k) of the Rail Safety National Law (Victoria) on that day. Clause 145 relates to powers to support seizure. A direction given to a person under section 228ZR of the TCM Act that has not been complied with before the commencement day is taken to be a direction under section 159 of the Rail Safety National Law (Victoria) on that day. Clause 146 relates to power to direct a thing's return. A direction given to a person under section 228ZS of the TCM Act that has not been complied with before the commencement day is taken to be a direction under section 160 of the Rail Safety National Law (Victoria) on that day. Clause 147 relates to the receipt for a seized thing. A receipt given under section 228ZT of the TCM Act is taken to be a receipt given under section 161 of the Rail Safety National Law (Victoria). 55

 


 

Clause 148 relates to improvement notices. A TCM Act improvement notice served on a relevant person that has not been withdrawn under section 228ZZG of that Act before the commencement day is taken to be an improvement notice issued and served under section 175 of the Rail Safety National Law (Victoria). However, this does not apply to a TCM Act improvement notice to which clause 153 applies. Clause 149 relates to prohibition notices. A TCM Act prohibition notice served on a specified person that has not been cancelled under section 228ZZM of that Act before the commencement day is taken to be a prohibition notice issued under section 179 of the Rail Safety National Law (Victoria). Subclause (3) defines who is a specified person. This clause does not apply to a TCM Act prohibition notice to which clause 154 applies. Clause 150 relates to oral directions given before a prohibition notice is served. An oral direction given under section 228ZZKA of the TCM Act before the commencement day is taken to be a prohibition notice under section 179 of the Rail Safety National Law (Victoria) that has been issued orally. The notice must be confirmed in writing within 5 days of the day on which the oral direction is given. Clause 151 relates to enforceable undertakings. If the Safety Director has accepted an undertaking by a transitioning rail transport operator under section 228ZZSB of the TCM Act before the commencement day and that undertaking has not been withdrawn, the undertaking is taken to be a rail safety undertaking accepted by the Regulator under section 251 of the Rail Safety National Law (Victoria). 56

 


 

Clause 152 relates to the withdrawal or variation of enforceable undertakings. If a transitioning rail transport operator has applied to the Safety Director under section 228ZZSC of the TCM Act for a variation or withdrawal of an undertaking and the Safety Director has not made a decision in respect of that application before the commencement day, the undertaking is taken, on that day, to be accepted by the Regulator and the application is taken to be a request to vary or withdraw the undertaking under the Rail Safety National Law (Victoria). Clause 153 deals with reviewable decisions and the service of improvement notices. If an application for review is made under section 228ZZR of the TCM Act in relation to the service of an improvement notice on a relevant person and the review has not been completed before the commencement day, the review must be completed in accordance with the RS Act on and after that day. If the Safety Director affirms the service of the improvement notice, it is taken to be an improvement notice served on that person under section 175 of the Rail Safety National Law (Victoria). Clause 154 deals with reviewable decisions and the service of prohibition notices. If an application for review is made under section 228ZZR of the TCM Act in relation to the service of a prohibition notice on a specified person and the review has not been completed before the commencement day, the review must be completed in accordance with the RS Act on and after that day. If the Safety Director affirms the service of the prohibition notice, it is taken to be a prohibition notice served on that person under section 175 of the Rail Safety National Law (Victoria). Subclause (4) provides that specified person has the same meaning as in clause 149(3). 57

 


 

Division 5--Exemption from requirement to be accredited Division 5 deals with the exemption of Regional Rail Link entities from the requirement to be accredited under the national law which preserves the status quo in Victoria. In line with other exemptions, the exemption last for 3 years from the anniversary of the commencement day. Clause 155 provides that the Regional Rail Link entities are exempted from the requirement to be accredited for 3 years from the commencement day, which is the day on which clause 6 comes into operation (see clause 98). Subclause (2) contains the following definitions which are required for the purposes of the clause-- project authority; project proponent; Regional Rail Link Authority; Regional Rail Link entity; Regional Rail Link 1; Regional Rail Link 2. Division 6--Private siding accreditation exemptions Division 6 deals with transitioning rail transport operators in connection with private sidings. Under section 63 of the RS Act, rail infrastructure managers and rolling stock operators of private sidings can apply for an exemption from accreditation. An exempt operator is subject to general duties, but other requirements are less onerous than for accreditation. Under the Rail Safety National Law (Victoria), rail infrastructure managers of private sidings are required to be registered, and rolling stock managers of private sidings are required to be accredited. A registered rail infrastructure manager is subject to general duties, but other requirements are less onerous than for accreditation. Clause 156 provides that a rail infrastructure manager of a private siding who holds an exemption under section 63 of the RS Act is taken, on the commencement day, to hold a registration under Division 5 of Part 3 of the Law. 58

 


 

The terms, conditions and limitations that applied to the exemption under the RS Act are taken to be conditions or restrictions that the transitioning rail infrastructure manager's registration is subject to. Clause 157 provides that a rolling stock operator of a private siding who holds an exemption under section 63 of the RS Act is taken, on the commencement day, to hold an accreditation under the Rail Safety National Law (Victoria). The terms, conditions and limitations that applied to the exemption under the RS Act are taken to be conditions or restrictions that the transitioning rolling stock operator's accreditation is subject to. The effect of this clause is to treat a transitioning rolling stock operator's exemption under the RS Act as an accreditation under the Rail Safety National Law (Victoria), which preserves the status quo in Victoria. In line with other transitional arrangements relating to exemptions, the transitional arrangement lasts 3 years from the commencement date. This provides a transitioning rolling stock operator of a private siding a period of three years from the commencement date to apply for a new accreditation under the Rail Safety National Law (Victoria). Subclause (3) therefore provides that the clause expires on the third anniversary of the commencement day. Division 7--Other matters Clause 158 authorises the Safety Director to-- give the national regulator information in the possession or control of the Safety Director that is reasonably required for by the national regulator for the purposes of the Rail Safety National Law (Victoria) and this Bill; and provide assistance to the national regulator as is reasonably required by the national regulator to perform a function or duty or exercise a power conferred or imposed under the Rail Safety National Law (Victoria) and this Bill; and 59

 


 

deals with the provision of personal and health information and assistance by the Safety Director to the Regulator. Subclause (5) defines information as including health information within the meaning of the Health Records Act 2001 and personal information within the meaning of the Information Privacy Act 2000 and Health Records Act 2001. ANNEXURE The Annexure sets out the Rail Safety National Law which is set out in the Schedule to Rail Safety National Law (South Australia) Act 2012 of South Australia, and the accompanying explanatory clause notes. The Annexure does not form part of the Bill. 60

 


 

 


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