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RAIL SAFETY BILL 2006

                            Rail Safety Bill

                              As Sent Print

                EXPLANATORY MEMORANDUM


                                    General
The main purpose of this Bill it to provide for safe rail operations in Victoria
by introducing a contemporary approach to rail safety regulation and
improved organisational arrangements. The Bill aims to maintain and
improve the safety of rail operations (trains and trams) in Victoria and, in
particular, to further reduce the risks of rail incidents, such as train to train
collisions and derailments. The Bill draws on proven safety regulation
models in other key industry sectors and jurisdictions and provides for--
         ·    clearly defined performance-based safety duties for key
              industry participants (including contractors and rail safety
              workers) and utilities (gas, water, road and electricity);
         ·    an enhanced rail safety accreditation scheme based on a more
              rigorous assessment and management of rail safety risks,
              particularly those associated with major incidents;
         ·    a hierarchy of safety compliance requirements to facilitate an
              effective and proportionate regulatory response to incidents of
              safety non-compliance by rail operators and other persons; and
         ·    organisational arrangements to clearly define the role and
              responsibilities of the public transport safety regulator
              including its establishment as a statutory office within the
              Department of Infrastructure.
The Bill seeks to facilitate the maintenance and improvement of rail safety
standards in Victoria in recognition of the importance of safe rail services to
the Victorian economy and community.




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551310                                                 BILL LA AS SENT 2/3/2006

 


 

Clause Notes PART 1--PRELIMINARY Part 1 of the Bill outlines the purpose and objects of the Bill, contains the commencement provision and interpretative provisions, including definitions. The Part also contains provisions to support the alcohol and other drug controls for rail safety workers set out in Part 6. Clause 1 sets out the main purpose of the Bill, which is to provide for safe rail operations in Victoria. Clause 2 provides for most of the Bill to come into operation on a day or days to be proclaimed, provided that if a provision of the Bill has not come into operation before 1 January 2007, it comes into operation on that day. Clause 3 defines terms used in the Bill, and in particular, defines key terms such as "major incident", "rail contractor", "rail infrastructure", "rail infrastructure manager", "rail infrastructure operations", "rail operator", "rail safety worker", "railway", "rolling stock", "rolling stock operations", "rolling stock operator" and "utility". Clause 4 provides that the Minister may declare any substance to be a drug for the purposes of Part 6 of the Bill. Clause 5 defines the term "control", in relation to rail infrastructure managers. It sets out the circumstances in which a rail infrastructure manager is taken to control rail infrastructure which the rail infrastructure manager owns, on which he, she or it has the right to operate rolling stock or the right to allow another person to operate rolling stock. This is an important concept in the Bill, because a person in "control" of "rail infrastructure" will ordinarily be required to be accredited. Clause 6 sets out the types of railway to which this Bill does not apply. Clause 7 sets out the classes of work carried out by a rail safety worker which are taken to be rail safety work for the purposes of the Bill. Clause 8 provides that the Director of the Victorian Institute of Forensic Medicine may, in writing, approve a person to take blood samples for the purposes of Part 6 of this Bill. Clause 9 provides that the Minister may declare a law of another State or a Territory that creates an offence substantially similar to an offence created by clause 76(1) to be a corresponding law for the purposes of Part 6. 2

 


 

Clause 10 provides that references in the Bill to the commission of an offence against, or contravention of, the Bill include references to the commission of an offence against, or contravention of, regulations made under the Bill. Clause 11 sets out the objects of the Bill, which are to promote -- · the safety of rail operations; and · the effective management of safety risks in rail operations; and · continuous improvement in rail safety management; and · public confidence in the safety of rail transport; and · the involvement of all relevant stakeholders in rail safety. Clause 12 provides that the Bill binds the Crown. PART 2--PRINCIPLES OF RAIL SAFETY Part 2 sets out the Principles of Rail Safety which reflect the broad policy principles underpinning the Bill. Clause 11 of the Bill provides that the Principles of Rail Safety cannot create legal rights or give rise to any civil course of action. Clause 13 lists the persons who share responsibility for rail safety and who therefore form part of the rail safety chain of responsibility. They are: rail operators, rail safety workers, other persons involved in the provision of rail infrastructure or rolling stock, the Safety Director and members of the public. Clause 14 provides that the management of safety risks associated with rail operations is the responsibility of the person best able to control that risk. Clause 15 provides that if approaches to managing risks associated with a railway have a particular impact on other railways or railway networks, the best practicable rail safety outcome should be sought. Clause 16 sets out the purposes for which enforcement of the Bill and regulations is to be carried out. They are: protecting public safety, promoting improvement in rail safety, removing commercial incentives for unsafe conduct and influencing attitudes and behaviour that may have adverse impacts on rail safety. 3

 


 

Clause 17 provides that rail regulatory decision making processes should be timely, transparent and nationally consistent. Clause 18 establishes the principle that the people and organisations who share responsibility for rail safety should participate and be involved in the management of risks associated with rail operations. PART 3--RAIL SAFETY DUTIES AND OTHER SAFETY REQUIREMENTS Part 3 contains a range of new safety duties and other measures that are aimed at ensuring the safety of rail operations by allocating responsibility to the parties who make up the chain of responsibility for rail safety. In particular, it imposes safety duties on rail infrastructure managers, rolling stock operators and other persons to ensure, so far as is reasonably practicable, the safety of rail operations. Division 1--The Concept of Ensuring Safety Clause 19 explains the nature of the duty to ensure safety under the Bill. Sub-clause (1) provides that a duty imposed on a person under the Bill or the regulations to ensure, so far as reasonably is practicable, safety, requires the person to-- · eliminate risks to safety so far as is reasonably practicable; and · if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable. Sub-clause (2) sets out certain matters to which regard must be had in determining what is, or what at a particular time was, reasonably practicable in relation to ensuring safety. Division 2--Safety Duties of Rail Infrastructure Managers and Rolling Stock Operators Clause 20 sets out the main duties of rail infrastructure managers relating to rail safety. Sub-clause (1) provides that a rail infrastructure manager must, so far as is reasonably practicable, ensure the safety of rail infrastructure operations carried out by the rail infrastructure manager. 4

 


 

A rail infrastructure manager contravenes this duty if the rail infrastructure manager fails to do the particular things set out in sub-clause (2), for example, if the rail infrastructure manager fails to provide or maintain rail infrastructure that is, so far as is reasonably practicable, safe. If a rail infrastructure manager contravenes sub-clause (1) he, she or it is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). Clause 21 sets out the main duties of rolling stock operators relating to rail safety. Sub-clause (1) provides that a rolling stock operator must, so far as is reasonably practicable, ensure the safety of rolling stock operations carried out by the rolling stock operator. A rolling stock operator contravenes this duty if the rolling stock operator fails to do the particular things set out in sub-clause (2), for example, if the rolling stock operator fails to provide or maintain rolling stock that is, so far as is reasonably practicable, safe. If a rolling stock operator contravenes sub-clause (1) he, she or it is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). Division 3--Safety Duties of Other Persons Clause 22 sets out the duties of rail contractors relating to rail safety. Sub-clause (1) requires a rail contractor who designs, commissions, constructs, manufactures, supplies, installs, erects, maintains, repairs, modifies or decommissions any thing, and who knows or ought reasonably to know that the thing is to be or was used as rail infrastructure or rolling stock, to comply with certain requirements set out in the sub-clause, for example, to ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, constructed, manufactured, supplied, installed, erected, maintained, repaired or modified. Sub-clause (2) requires a rail contractor who supplies rail infrastructure operations or rolling stock operations to a rail operator to ensure, so far as is reasonably practicable, the safety of those operations. 5

 


 

Sub-clause (3) provides that a rail contractor contravenes sub- clause (2) if the rail contractor fails to do any of the things set out in that sub-clause, for example, failing to provide or maintain rail infrastructure that is, so far as is reasonably practicable, safe. A rail contractor who contravenes sub-clause (1) or sub- clause (2) is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). Sub-clause (5) makes provision with respect to financiers and other intermediaries who acquire ownership or possession of things supplied only in the course of providing finance for their acquisition. Clause 23 sets out the duties of rail safety workers. Sub-clause (1) requires a rail safety worker, when carrying out rail safety work, to do certain things, including, to take reasonable care for his or her own safety and for the safety of other persons who may be affected by the worker's acts or omissions. Sub-clause (2) provides that a rail safety worker carrying out rail safety work must not intentionally or recklessly interfere with or misuse anything provided to him by the organisation employing or engaging him or her in the interest of safety or under the Act or the regulations. Sub-clause (3) provides that a rail safety worker, when carrying out rail safety work, must not wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk. Sub-clause (4) provides that for the purposes of determining whether a rail safety worker failed to take reasonable care, regard must be had to what the rail safety worker knew about the relevant circumstances. A rail safety worker who contravenes clause (1), (2) or (3) is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units. Division 4--Safety Management Systems Clause 24 defines a safety management system for the purposes of the Bill as the system and arrangements established and maintained by a rail operator in accordance with the Bill and regulations made under the Bill to ensure the safe management of its rail operations. 6

 


 

Clause 25 deals with the form and contents of safety management systems. It provides, amongst other things, that a safety management system must be documented, must contain the matters and information that are prescribed and must be kept and maintained in accordance with the regulations. Clause 26 sets out who the rail operator must consult with before establishing a safety management system. Clause 27 provides that a rail operator must at all times have in place a safety management system in respect of its rail operations that complies with the requirements of the Act and the regulations. A rail operator who fails to comply with this requirement is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). Clause 28 provides that a rail operator must comply with the safety management system it has in place in respect of its rail operations. A rail operator who contravenes this requirement is guilty of an indictable offence and is liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 (for a body corporate). Division 5--Safety Audits and Audits of Medical Records of Rail Safety Workers Clause 29 requires the Safety Director to conduct safety audits of accredited rail operations at least once every 12 months, and empowers the Safety Director to conduct such an audit more frequently if he or she considers it appropriate to do so. Clause 30 makes provision for the audit of medical records of rail safety workers. Sub-clause (1) provides that the Safety Director or a transport safety officer may conduct audits of medical records of people employed or engaged to perform rail safety work held by an accredited rail operator or its rail contractor. Further provisions of this clause-- · state that an audit consists of an inspection of medical records to establish whether the accredited rail operator or rail contractor has in place appropriate medical examination procedures and health monitoring systems; 7

 


 

· provide that for the purposes of an audit, an accredited rail operator or rail contractor must give the Safety Director or a transport safety officer access to medical records of the person employed or engaged to perform rail safety work that is held by them; and · provide that regulations may establish procedures for the conduct of audits, including procedures to ensure the confidentiality of medical records. Division 6--Other Matters Clause 31 provides that two or more contraventions of a safety duty in Division 2 or 3, or of a provision for which an officer, body corporate, partnership, unincorporated body or association is liable, may be charged as a single offence if they arise out of the same factual circumstances. This provision applies subject to any court order to the contrary. If two or more contraventions are charged as a single offence, only a single penalty may be imposed in respect of the contraventions. Clause 32 provides that nothing in Part 3 of the Bill is to be construed as conferring a right of action in civil proceedings, conferring a defence to an action in civil proceedings, or otherwise affecting a right of action in civil proceedings. PART 4--PROTECTION AND CONTROL OF RAIL OPERATIONS Clause 33 provides that the Safety Director may require utility works to stop if the works threaten the safety of rail infrastructure, and may order rail operations to stop if they threaten the works or services of a utility. In the case where the utility provides electricity, gas or other like services, the Safety Director must first consult with Energy Safe Victoria. A utility or rail operator who fails to comply with a direction given under this clause is guilty of an indictable offence and liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). 8

 


 

Clause 34 provides that where works or operations are carried out in contravention of a direction under clause 33, the Safety Director may direct that the works or operations be altered, demolished or taken away within a specified time. A person who fails to comply with a direction given under this clause is guilty of an indictable offence and liable to a fine not exceeding 1800 penalty units (for a natural person) or 9000 penalty units (for a body corporate). PART 5--ACCREDITATION OF RAIL INFRASTRUCTURE AND ROLLING STOCK OPERATIONS Part 5 replaces the provisions relating to accreditation of managers of rail infrastructure and providers and operators of rolling stock set out in Division 3 of Part VI of the Transport Act 1983. The main changes that are made to the accreditation system by this Bill are that-- · the purpose of accreditation under the Bill is to ensure that a rail operator has demonstrated a competency and capacity to manage rail safety risks; · the adequacy of a rail operator's risk management and safety management systems to manage rail safety risks is given greater emphasis under the Bill; and · providers of rolling stock are no longer required to be accredited unless they are also rolling stock operators. Division 1--Preliminary Matters Clause 35 sets out the purpose of accreditation under Part 5 of the Bill, which is to attest that a rail operator has demonstrated to the satisfaction of the Safety Director that he, she or it has the competence and the capacity to manage rail safety risks. Division 2--Accreditation Clause 36 provides that a rail infrastructure manager must not operate rolling stock, or allow it to be operated, on rail infrastructure controlled by the rail infrastructure manager unless he, she or it is accredited or is exempt from the requirement to be accredited. A rail infrastructure manager who contravenes this requirement is guilty of an offence and is liable to a fine not exceeding 1000 penalty units or imprisonment for 12 months or both (for a natural person) or a fine not exceeding 2500 penalty units (for a body corporate). 9

 


 

Clause 37 provides that a rolling stock operator must not operate rolling stock unless he, she or it is accredited or is exempt from the requirement to be accredited. A rolling stock operator who contravenes this requirement is guilty of an offence and liable to a fine not exceeding 1000 penalty units or imprisonment not exceeding 12 months or both (for a natural person) or a fine not exceeding 2500 penalty units (for a body corporate). Clause 38 makes provision in relation to applications for accreditation. It provides that rail infrastructure managers and rolling stock operators may apply to the Safety Director for accreditation in respect of their rail operations. Provisions of this clause-- · deal with the manner and form in which an application for accreditation must be made, and the things which must accompany an application; · allow the Safety Director to require an applicant to supply further information or verify by declaration information supplied for the purposes of the application; and · make provision with respect to the signing and declaration of applications for accreditation. Clause 39 sets out the criteria on which accreditation applications by rail infrastructure managers are to be assessed. It provides that the Safety Director must accredit a rail infrastructure manager in respect of his, her or its rail infrastructure operations if the Safety Director is satisfied that the rail infrastructure manager-- · is either accredited for similar operations in another jurisdiction or has the competence and capacity to carry out the operations safely; and · has demonstrated that he, she or it has taken all reasonable steps to comply with the requirements of Division 3; and · has demonstrated that his, her or its safety management system complies with Division 4 of Part 3; and 10

 


 

· has demonstrated that he, she or it has complied with clause 26; and · has the financial capacity or insurance necessary to meet reasonable potential liabilities arising from the carrying out of the rail infrastructure operations. Clause 40 sets out the criteria on which accreditation applications by rolling stock operators are to be assessed. It provides that the Safety Director must accredit a rolling stock operator in respect of his, her or its rolling stock operations if satisfied that the rolling stock operator-- · is either accredited for similar operations in another jurisdiction or has the competence and capacity to carry out the operations safely; and · has demonstrated that he, she or it has taken all reasonable steps to comply with the requirements of Division 3; and · has demonstrated that his, her or its safety management system complies with Division 4 of Part 3; and · has demonstrated that he, she or it has complied with clause 26; and · has the financial capacity or insurance arrangements to meet reasonable potential liabilities arising from the carrying out of rolling stock operations; and · where the rolling stock operator is not also the rail infrastructure manager who controls the relevant railway on which rolling stock will be operated, that the rolling stock operator has an agreement which includes arrangements for the safe operation of rolling stock with the rail infrastructure manager that allows it to operate on the railway. Clause 41 provides that the Safety Director may accredit a rolling stock operator where the rolling stock operator does not have an agreement of the kind referred to in clause 40(d) with the relevant rail infrastructure manager if the Safety Director has given the rolling stock operator a direction under clause 42. 11

 


 

Clause 42 empowers the Safety Director to give certain directions in relation to intended rolling stock operators if he or she is satisfied that a rolling stock operator who has applied for accreditation-- · has made a reasonable attempt to obtain an agreement from the relevant rail infrastructure manager referred to in clause 40(d); and · the rail infrastructure manager is unreasonably refusing to enter into such an agreement or is otherwise unreasonably delaying the negotiation of such an agreement. Further provisions of the clause-- · enable the Safety Director to issue a written notice to the person and the rail infrastructure manager which, among other things, may contain suggested terms concerning the safe operation of the rolling stock; · provide that if an agreement has not been entered into by a date specified in the notice, the Safety Director may determine the arrangements to enable the safe operation of the rolling stock and may direct either or both parties to give effect to them; · sets out requirements as to the form and content of such a direction; · provide that a person who fails to comply with a direction is guilty of an offence and liable to a maximum fine of 100 penalty units, and is guilty of a further offence in respect of each day after the day on which the initial offence was committed during which the person fails to comply with the direction. Clause 43 enables the Safety Director to direct rail operators to co-ordinate their applications for accreditation to ensure that rail operations are carried out safely. A direction given under this clause may require each rail operator to provide information to another rail operator concerning circumstances relating to rail operations that could constitute a hazard. 12

 


 

Clause 44 specifies time limits within which the Safety Director must make a decision in relation to an application for accreditation. The Safety Director must decide whether to accredit an applicant within six months of receiving the application. However, the Safety Director may extend the period before the expiry of the initial six month period. If the Safety Director decides to extend the period, he or she must notify the applicant and the Secretary in writing. The Secretary must include in the Department's report of operations details of every decision made to extend the period. Clause 45 provides that the Safety Director must notify the applicant if he or she refuses the application for accreditation, must give a statement of reasons for the refusal and must notify the applicant that he, she or it has a right to seek review under Part 7 of the Bill. Clause 46 provides that the Safety Director may limit the accreditation of a rail infrastructure manager or a rolling stock operator in any way the Safety Director thinks appropriate, including by imposing conditions on the accreditation or restricting the scope of the accreditation so that it only applies in respect of part of a railway or of a particular type of service (in the case of a rail infrastructure manager) or in respect of part of a particular type of service or rolling stock (in the case of a rolling stock operator). Accreditation is also subject to certain conditions set out in the regulations. Sub-clause (4) provides that a rail operator who is accredited in another State or a Territory to do anything that is similar to what the person is accredited to do in Victoria is subject to the condition that he, she or it must advise the Safety Director in writing immediately if the accreditation in the other State or Territory expires or is cancelled, suspended, varied, surrendered, withdrawn or revoked. Sub-clause (5) provides further that it is a condition of accreditation that an accredited rail operator must take reasonable steps to ensure that a rail safety worker who carries out, or is about to carry out, rail safety work for that operator is not affected by alcohol or other drugs. Sub-clause (6) provides that if an accredited rail operator who has been accredited subject to a restriction carries out any action that is inconsistent with that restriction, the accredited rail operator is not accredited to carry out that action for the purposes of sections 36 or 37. 13

 


 

Sub-clause (7) provides that a condition requiring compliance with any provision of a code of practice (whether approved under section 91 or not) is of no effect. Clause 47 provides that accreditation remains in force until it is cancelled, surrendered, or a period of time specified by the Director for disciplinary reasons expires. The Safety Director may also grant temporary accreditation for up to 12 months. Clause 48 Sub-clause (1) provides that an accredited rail operator is guilty of an offence if he, she or it fails to comply with a condition or restriction of accreditation and is liable to a penalty not exceeding 1800 penalty units or imprisonment not exceeding 12 months or both (for a natural person) or to a fine not exceeding 9000 penalty units (for a body corporate). Sub-clause (2) provides that an accredited rail operator who fails to comply with a condition of accreditation relating to rail safety workers affected by alcohol or other drugs is guilty of an offence and liable to a fine not exceeding 2000 penalty units. The fact that a rail safety worker has been found guilty of certain offences involving alcohol or other drugs while carrying out rail safety work is admissible in evidence in any proceedings for an offence under sub-clause (2). Division 3--Risk Management Requirements for Accreditation Clause 49 applies Division 3 to every rail infrastructure manager and rolling stock operator applying for accreditation under Part 5 of the Bill. Clause 50 deals with hazard identification and risk assessments. Sub-clause (1) requires a rail infrastructure manager to-- · identify all incidents which could occur on or at rail infrastructure or while carrying out rail infrastructure operations; and · identify all hazards that could cause or could contribute to causing those incidents. Sub-clause (2) requires a rolling stock operator to-- · identify all incidents which could occur while carrying out rolling stock operations; and · identify all hazards that could cause or contribute to causing those incidents. 14

 


 

Sub-clause (3) provides that a rail infrastructure manager or rolling stock operator must document all aspects of the hazard identification required by sub-clauses (1) or (2). Sub-clause (4) provides that a rail operator must conduct a comprehensive and systematic risk assessment in relation to all potential incidents and the hazards which could cause or contribute to causing those incidents as identified in accordance with sub-clauses (1) or (2). Sub-clause (5) sets out the required elements of a risk assessment. It requires an examination and analysis of the hazards and incidents to provide the rail operator with a detailed understanding of all aspects of risk to safety associated with the incidents. This must include-- · the nature of each hazard and incident; · the likelihood of each hazard causing a incident; · the magnitude and severity of a possible incident; and · the range of control measures considered. Sub-clause (6) specifies how the rail operator must go about conducting an assessment. Sub-clause (7) sets out the obligations of the rail operator to document the assessment. Sub-clause (8) defines "incident" as including a major incident (as defined in clause 3). Clause 51 requires a rail operator to adopt measures that eliminate or, if it is not practicable to eliminate, reduce so far as reasonably practicable, the likelihood of an incident occurring, or in the event of an incident occurring, reducing its magnitude and severity. Clause 52 deals with emergency planning, and-- · requires a rail infrastructure manager to prepare an emergency plan with respect to his, her or its rail infrastructure and rail infrastructure operations; · requires a rolling stock operator to prepare an emergency plan for the rolling stock operations he, she or it carries out; 15

 


 

· provides that the emergency plan must be included among the risk control measures required under clause 51; · sets out certain requirements for an emergency plan; and · provides that requirements in relation to preparation, maintenance, disclosure and testing of an emergency plan will be dealt with in regulations. Division 4--Variation and Surrender of Accreditation Clause 53 makes provision for the variation of a condition or restriction of accreditation, or revocation of conditions or restrictions of accreditation, on the application of an accredited rail operator to the Safety Director. Clause 54 requires an accredited rail operator to apply to the Safety Director for a variation of the accreditation in certain circumstances, including if the accredited rail operator proposes to make a change to, or to the manner of carrying out, an accredited rail operation. The obligation arises where the change might be reasonably expected to change the nature, character and scope of the accredited rail operations with the result that the operations are not within the competence, capacity and systems for which the accredited rail operator is accredited, or where the change might reasonably be expected to require a significant variation to a risk assessment already conducted under clause 50. An accredited rail operator commits an offence if he, she or it makes a change to, or to the manner of carrying out, an accredited rail operation if the change required the rail operator to apply for a variation under sub-clause (1) and the variation has not been granted. An accredited rail operator who contravenes this section is liable to a fine not exceeding 1000 penalty units or imprisonment not exceeding 12 months or both (for a natural person) or a fine not exceeding 2500 penalty units (for a body corporate). Further provisions of this clause-- · make provision with respect to the form and content of applications for variation of accreditation and the powers and obligations of the Safety Director in relation to such applications; and 16

 


 

· provide that the Safety Director may issue guidelines relating to the identification of changes that require applications for variation of accreditation. Clause 55 makes provision with respect to the variation or imposition of new conditions or restrictions of an accreditation on the initiative of the Safety Director. Clause 56 provides for the surrender of accreditation, which must be with the consent of the Safety Director and in accordance with the regulations. Clause 57 makes it an offence for a person to give false or misleading information in relation to an application for accreditation, a variation to an accreditation or a variation of a condition or restriction of an accreditation. The offence is subject to a defence that at the time the offence is alleged to have been committed, the accused believed on reasonable grounds that the information was not false or misleading. Division 5--Disciplinary Action Clause 58 confers on the Safety Director a power of immediate suspension in certain circumstances. Sub-clause (1) provides that the Safety Director may, subject to and in accordance with the regulations, immediately suspend an accreditation if he or she considers it necessary to do so in the interests of public safety or to protect the safety of rail safety workers. Sub-clause (2) provides that the Safety Director may immediately suspend an accreditation without holding on inquiry under clause 59. Sub-clause (3) provides that a suspension may be for a specified period or until a specified event or until further determination is made by the Safety Director. An accredited rail operator whose accreditation is suspended under this section may require the Safety Director to hold an inquiry under clause 59. The Safety Director must commence the enquiry within 7 days. Sub-clause (5) provides that if an enquiry is held under clause 59, an immediate suspension that is still in effect ceases to have effect on the completion of that inquiry. 17

 


 

Clause 59 makes provision with respect to disciplinary action against an accredited rail operator or a person who was an accredited rail operator. Sub-clause (1) empowers the Safety Director to hold an inquiry for the purpose of determining whether proper cause exists for taking disciplinary action. Sub-clause (2) sets out the circumstances where there will be proper cause for taking disciplinary action, which include where the person-- · has contravened this Bill or certain Parts of the Transport Act 1983; · does not have financial capacity or insurance to meet reasonable potential accident liabilities; and · has not demonstrated that it is able to carry out rail infrastructure operations or rolling stock operations safely. Sub-clause (3) sets out the forms of disciplinary action that the Safety Director may take. Where the person is accredited, that includes-- · giving a warning; · imposing new conditions or restrictions of the accreditation; · imposing an expiry date on the accreditation; · suspending the accreditation; and · cancelling the accreditation. Clause 60 Sub-clause (1) sets out the procedures the Safety Director is to follow, and the Safety Director's powers, in conducting an inquiry under clause 59. In particular, it imposes an obligation on the Safety Director to act fairly and according to equity and good conscience and without regard to technicalities or legal forms. Sub-clause (2) confers on the Safety Director various powers in relation to the taking of evidence under the Evidence Act 1958. Clause 61 provides that a person whose accreditation is suspended is not accredited during the period of the suspension. 18

 


 

Division 5--Miscellaneous Clause 62 provides that accreditation is personal to the person who holds it and is not capable of being transferred or assigned. Clause 63 deals with exemptions for private siding rail operations. Sub-clause (1) enables rail infrastructure managers and rolling stock operators who carry out rolling stock operations in relation to private sidings to apply to the Safety Director for an exemption from the accreditation requirement under Part 5 of the Bill. Further provisions of this clause-- · deal with the manner of making an application for an exemption; · set out the matters to which the Safety Director must have regard in deciding whether to exempt a rail infrastructure manager or rolling stock operator from the accreditation requirement (which include the scale or complexity of the private siding, the extent of the railway track layout and other rail infrastructure, the risks to safety associated with the operation of the private siding and the interface co-ordination plan agreement accompanying the application); · provide that an exemption may be subject to terms, conditions and limitations specified in it; · require the Safety Director to give reasons if he or she refuses an application for exemption; and · provide that the Safety Director may issue guidelines as to how he or she will apply the criteria for deciding whether to grant an exemption. Clause 64 provides that the Safety Director may revoke an exemption given for a private siding where it no longer meets the criteria set out in clause 63(3). Clause 65 subject to clause 66, which allows tourist and heritage rail operators to apply for an exemption to this requirement, requires that within every 5 year period following accreditation, an accredited rail operator must demonstrate to the Safety Director that they comply with the requirements of Division 3 (which sets out the risk management requirements applicable to accredited rail operators). 19

 


 

Clause 66 provides that an accredited tourist and heritage railway operator may apply for an exemption from the requirement in clause 65. Sub-clause (5) sets out the considerations to which the Safety Director must have regard when deciding whether to grant an exemption. Clause 67 requires an accredited rail operator to investigate and prepare a report into any railway accident or incident that may affect the accredited rail operator's operations. Clause 68 requires an accredited rail operator who has prepared an emergency plan to put the plan into effect without delay if a major incident occurs or an event or incident which could reasonably be expected to lead to a major incident occurs. Clause 69 provides that an accredited rail operator must notify the Safety Director, the Chief Investigator, Transport and Marine Safety Investigations and emergency services of an occurrence of a major incident immediately after becoming aware of that occurrence. Emergency services include the Chief Commissioner of Police, an ambulance service, the Metropolitan Fire & Emergency Services Board or the Country Fire Authority. A person who contravenes this clause is liable to a fine not exceeding 1800 penalty units or imprisonment not exceeding 12 months or both (for a natural person) or a fine not exceeding 9000 penalty units (for a body corporate). PART 6--ALCOHOL AND OTHER DRUGS CONTROL FOR SAFETY WORKERS This Division substantially re-enacts the provisions of Division 2 of Part VI of the Transport Act 1983, which deals with alcohol and other drug controls for workers engaged in safety work on railway and tramway systems. Part 6 and Division 2 of Part VI of the Transport Act 1983 are similar in substance to equivalent provisions in Part 5 of the Road Safety Act 1986. Division 1--Preliminary Matters Clause 70 defines the terms "accident" and "irregular incident" for the purposes of Part 6. Clause 71 sets out various presumptions in relation to the presence of alcohol or drugs in the blood or breath of a rail safety worker. The provisions of this section-- · provide that where a worker is shown to have a particular concentration of alcohol in his or her breath or blood within 3 hours of an alleged offence involving 20

 


 

alcohol, it is presumed that the same concentration of alcohol was present in the blood at the time of the offence, until the contrary is proved; · provide that where a worker is shown to have had a certain drug present in his body within 3 hours of an alleged offence, it is presumed that the same drug was present at the time of the offence, until the contrary is proved; and · provide that for certain offences involving the presence of alcohol or drugs in the body when a person is carrying out rail safety work, it is presumed that the concentration of alcohol or presence of drugs is not due to consumption or use after the person carried out rail safety work, unless the contrary is proved. Clause 72 establishes a presumption for the purposes of clauses 79 and 80 (which confer various powers to carry out assessments and take samples from rail safety workers believed to be impaired by drugs) that a rail safety worker is not to be taken to be so impaired unless his or her behaviour gives rise to a reasonable suspicion that he or she is unable to carry out safety work properly. Clause 73 provides that a rail safety worker is regarded as being about to carry out rail safety work if that worker has arrived at his or her place of work but has not yet begun work. Clause 74 provides that, if a rail safety worker who is found guilty of one of the offences relating to alcohol or drugs has at any other time been found guilty or convicted as a rail safety worker of the same or another offence involving alcohol or drugs, that finding of guilt or conviction is to be taken to be a conviction for a subsequent offence. Clause 75 provides that nothing in this Part of the Bill, or in Division 4B of Part 7 of the Transport Act 1983, allows a transport safety officer or a member of the police force to enter residential premises without a warrant. 21

 


 

Division 2--Offences, Testing and Analysis Clause 76 provides that a rail safety worker is guilty of an offence if he or she does certain things, including if he or she-- · carries out safety work with more than the prescribed concentration of alcohol; · carries out safety work while impaired by a drug; · refuses to undergo a preliminary breath test; · refuses to undergo a drug impairment assessment; · refuses to undergo a preliminary breath test or furnish a sample of breath for analysis; · refuses to comply with a requirement to provide a blood or urine sample; or · is found to have more than the prescribed concentration of alcohol in the breath or blood within 3 hours of performing rail safety work. Further provisions of the clause-- · provide that a rail safety worker may be convicted or found guilty of various offences even where certain requirements in relation to the assessment of impairment, or testing for the presence of alcohol or drugs, have not been complied with; · state that the non availability of a breath analysis instrument, or a person to operate it, at the time or place that a rail safety worker is required to furnish a sample of breath is not a reason of a substantial character that would excuse a refusal to furnish a sample of breath for analysis; · state that a person who is guilty of an alcohol or drug related offence is liable to a fine not exceeding 12 penalty units (for a first offence) or 25 penalty units or 3 months imprisonment (for a subsequent offence); · make provision with respect to the proof of offences relating to carrying out rail safety work while impaired by a drug; · provide for certain defences; 22

 


 

· make evidence of the effect of the consumption of alcohol on the person charged admissible only to rebut certain presumptions; and · set out the matters a court is required to record upon convicting or finding a rail safety worker guilty of an offence under the clause. Clause 77 makes provision with respect to preliminary breath tests required to be undergone by rail safety workers. It empowers a transport safety officer, and in some circumstances a member of the police force, to require a rail safety worker to undergo a preliminary breath test in certain circumstances, and sets out the manner in which a test must be conducted. A rail safety worker is not obliged to undergo a preliminary breath test more than 3 hours after he or she last carried out rail safety work. A rail safety worker who is unexpectedly required to carry out safety work may request a transport safety officer to carry out a test, and the transport safety officer must comply with that request. The result of a preliminary breath test is inadmissible as evidence against the rail safety worker tested in a proceeding for an offence against sub-clause 76(1), unless the test was requested by the rail safety worker. Clause 78 makes provision with respect to the taking of samples of breath and blood. It includes provisions which-- · enable a breath sample to be taken from a rail safety worker who undergoes a preliminary breath test which indicates the presence of alcohol, or who fails to carry out the test; · enable a breath sample to be taken from a rail safety worker who undergoes a drug assessment in accordance with clause 79; · require a person from whom a sample has been obtained to be given a certificate setting out the concentration of alcohol indicated; · set out the manner in which a sample of breath is to be provided; · set out certain defences for refusing to furnish a sample of breath; 23

 


 

· enable breath samples to be taken by a registered medical practitioner or approved health professional in certain circumstances; · make it an offence to hinder or obstruct a registered medical practitioner or approved health professional attempting to take a sample; · provides that no action lies against a registered medical practitioner or an approved health professional in respect of things properly and necessarily done in the course of taking a sample provided that person believed on reasonable grounds that he or she was allowed to take the sample; and · provide for a rail safety worker to provide a blood sample as an alternative to a breath sample. Clause 79 makes provision with respect to the assessment of drug impairment of rail safety workers. Clause 80 makes provision with respect to the taking of blood and urine samples. Clause 81 sets out the requirements and procedures in relation to the destruction of samples and identifying information relating to alcohol and drug testing. Clause 82 sets out circumstances where a blood sample can and cannot be taken. Division 3--Evidentiary Provisions Clause 83 sets out provisions about the use of evidence relating to blood samples. Clause 84 sets out provisions about the use of evidence relating to urine samples. Clause 85 sets out provisions about the use of evidence relating to breath samples. Division 4--Other Matters Clause 86 deals with authorities issued by the Chief Commissioner of Police or Safety Director for the purposes of this Part. 24

 


 

PART 7--REVIEW OF DECISIONS Part 7 identifies decisions made by the Safety Director under the Rail Safety Bill which are subject to review and provides for the review of these decisions. Part 7 should be read in conjunction with clause 125, which inserts new section 228ZZQ into the Transport Act 1983, so as to provide a comprehensive list of rail safety related decisions identified as being subject to review. Clause 87 identifies certain decisions made under the Rail Safety Bill as reviewable decisions. Clause 88 provides for the internal review by the Safety Director of reviewable decisions (other than decisions made by the Safety Director). The clause sets out the procedure for applying for internal review and the procedures that must be followed by the Safety Director in reviewing the decision. Clause 89 provides for review by the Victorian Civil and Administrative Tribunal of reviewable decisions under the Bill. A person may apply to the Tribunal for a decision that was made, or that was subject to internal review, by the Safety Director. Clause 90 sets out special rights of review for interstate applicants for accreditation. PART 8--CODES OF PRACTICE Clause 91 provides for the approval of codes of practice. The provisions of this clause-- · empower the Minister to approve codes of practice to provide guidance to accredited rail operators and other persons who may be placed under obligations by or under the Bill; · set out what a code of practice may consist of, and what it may incorporate or refer to; and · state that a code of practice takes effect the day it is published in the Government Gazette. 25

 


 

Clause 92 provides for the revision of approved codes of practice. The provisions of this clause-- · empower the Minister to approve revisions to an approved code of practice and to revoke an approval of a code of practice; and · provide that the approval of a revision to an approved code of practice takes effect on the day the approval is published in the Government Gazette. Clause 93 provides that the approval of a code of practice ceases to be in effect when notice of revocation of the approval is published in the Government Gazette. Clause 94 requires the Minister to cause a copy of every approved code of practice, and incorporated documents applied by an approved code of practice, to be made available for public inspection without charge. Clause 95 provides that before the Minister approves a new code of practice or a revision of the whole or part of an approved code of practice, he or she must consult with any party that may be affected. Clause 96 provides that a person is not liable to any criminal or civil proceedings for failing to observe a provision of an approved code of practice. PART 9--GENERAL Division 1--Offences by Bodies Corporate Clause 97 provides that conduct engaged in by an employee, agent or officer of a body corporate acting within the scope of his or her employment or actual or apparent authority is taken also to be conduct engaged in by the body corporate. Clause 98 provides for the liability of officers of bodies corporate. Provisions of this clause-- · make an officer of a body corporate whose failure to take reasonable care causes the body corporate to contravene the Act or regulations also guilty of an offence; · provide that the offence of the officer may be either an indictable or summary offence, depending on whether 26

 


 

the offence as committed by the body corporate is indictable or summary; · set out the matters to which regard must be had when determining whether an officer is guilty of an offence; · provide that an officer may be found guilty regardless of whether or not the body corporate has been found guilty or convicted; and · provide that officers who are volunteers are not liable to be prosecuted under this clause for acts or omissions committed as volunteers. Division 2--Offences by Partnerships and Unincorporated Bodies or Associations Clause 99 makes provision with respect to the liability of officers acting on behalf of partnerships and unincorporated bodies or associations. Provisions of this section-- · provide that where the Bill imposes a duty on a person or provides that a person is guilty of an offence, and the person is a partnership or an unincorporated body or association, then in certain circumstances the reference to the person is taken to be a reference to the partnership or unincorporated body or association; and · provide that the maximum penalty that may be imposed on a partnership or unincorporated body or association is that which a court can impose on a natural person who is guilty of the same offence; and · set out the matters to which regard must be had in determining the guilt of an officer of a partnership or unincorporated body or association. Division 3--Proceedings against the Crown Clause 100 provides for the responsible agency for the Crown under the Bill, where "agency" includes the Director of Public Transport. Sub-clause (1) provides that if proceedings are brought against the Crown for an offence against the Bill or the regulations, the responsible agency in respect of the offence may be specified in any document initiating, or relating to, the proceedings. 27

 


 

Sub-clause (2) provides that the "responsible agency" in respect of an offence is the agency of the Crown: · whose acts or omissions are alleged to constitute the offence; or · if that agency has ceased to exist, that is the successor of that agency; or · if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency. Sub-clause (3) provides that the responsible agency in respect of an offence is entitled to act in proceedings against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency. Sub-clause (4) provides that the person prosecuting the offence may change the responsible agency during the proceedings with the court's leave. Division 4--Other Matters Clause 101 deals with the relationship between the Bill and the Occupational Health and Safety Act 2004. Sub-clause (1) provides that if a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act applies to an activity in respect of which a duty under Part 3 of the Bill is imposed, that provision continues to apply and must be observed in addition to Part 3 and any regulations made for the purposes of the Part. Sub-clause (2) provides that if a provision of the Bill or the regulations made under the Bill is inconsistent with a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act, the Occupational Health and Safety Act 2004 or the regulations made under it prevail to the extent of the inconsistency. 28

 


 

Sub-clause (3) provides that compliance with the Bill or the regulations made under this Bill, or with any requirement imposed under this Bill or the regulations, is not in itself a defence in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. Sub-clause (4) provides that evidence of a relevant contravention of this Bill or the regulations made under this Bill is admissible in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. Clause 102 provides that if a person complies with the duties or obligations set out in regulations or an approved code of practice under this Bill then the person is taken to have complied with this Bill and regulations. Clause 103 provides that the Safety Director may charge a prescribed fee for any safety audit conducted under Part 3 or service provided under Part 5 of this Bill. Clause 104 provides that a disallowable instrument, being an Order under clause 4, or notice under clause 79(7), or approved code of practice under clause 91, must be laid before each House of Parliament where it may be disallowed in whole or in part by either House of Parliament. Division 5--Regulations Clause 105 provides that the Governor in Council may make regulations with respect to-- · exempting persons from the need to be accredited; · annual accreditation fees and fees for the late payment of annual accreditation fees; · investigations carried out under clause 67. Clause 106 provides that the Governor in Council may make regulations with respect to the performance of safety duties and obligations, risk management and risk minimisation. Clause 107 provides that the Governor in Council may make regulations with respect to the preparation, content and operation of safety management systems. 29

 


 

Clause 108 provides that the Governor in Council may make regulations with respect to the requirements for competency and certification of rail safety workers. Clause 109 provides that the Governor in Council may make regulations with respect to the methods used in the handling, use, maintenance, storage and testing of blood and urine samples to be used for drug and alcohol testing. Clause 110 is a general regulation making power which, amongst other things, provides that the Governor in Council may make regulations with respect to such matters as record keeping, reporting requirements and fees. PART 10--AMENDMENT OF TRANSPORT ACT 1983 Clause 111 inserts various new definitions into section 2(1) of the Transport Act 1983, including of the terms "accredited rail operator", "approved code of practice", "Director, Public Transport Safety" or "Safety Director", "rail infrastructure manager", "rail infrastructure operations", "rolling stock operations", "rolling stock operator" and "transport safety officer". The new definitions are inserted to ensure that the Safety Director, whose office is established and empowered under the Transport Act 1983, is able to perform functions and exercise powers with respect to rail safety under the Rail Safety Bill and the Transport Act 1983 as amended. Clause 112 inserts a new Subdivision heading "Subdivision 1--General" into Division 1 of Part II. Clause 113 adds a new function to the functions of the Department of Infrastructure under section 4(2)(c) of the Transport Act 1983, being the function of developing policy for the development of legislation relating to public transport safety. Clause 114 inserts a new Subdivision heading "Subdivision 2--Director of Public Transport" into Division 1 of Part II. Clause 115 inserts a new requirement into section 9 of the Transport Act 1983 to the effect that the Director of Public Transport must perform or exercise his or her functions in a "safe, efficient and commercial manner". 30

 


 

Clause 116 inserts into the Transport Act 1983 new sections 9AA, 9AB, 9AC, relating to the powers of the Director of Public Transport to take over the conduct of passenger rail operations and provision for the cost-benefit analysis of relevant rail safety projects. New section 9AA requires the Director to develop and maintain a contingency plan for the possible exercise by the Director of a power under section 9(4). New section 9AB provides that prior to undertaking a relevant rail safety project that may result in significant costs or expenses being incurred by the Crown, the Director must conduct a cost- benefit analysis and must consult with the Treasurer, Premier and any other Minister whose area of responsibility may be affected and any other person specified in guidelines prepared under new section 9AC. New section 9AC provides for the preparation of guidelines by the Minister for Transport for the purposes of the cost-benefit analyses and consultation required under section 9AB. Clause 117 inserts a new Subdivision 3 of Division 1 of Part II of the Transport Act 1983, containing new sections 9K to 9ZA. New section 9K makes provision for the appointment of a Director, Public Transport Safety (the "Safety Director"). New section 9L provides that the Safety Director is appointed for a term of up to 5 years but is eligible for reappointment, and that the Public Administration Act 2004 does not generally apply to his or her appointment. New sections 9M, 9N, 9O and 9P make provision with respect to the cessation, resignation, suspension or removal from office of the Safety Director and the appointment of an acting Safety Director, Public Transport Safety. New section 9Q provides that decisions made by the Safety Director or acting Safety Director are not invalid simply because of a defect in their appointment. New section 9R provides that the Safety Director, subject to new sections 9U(2) and 9W, is not subject to the direction and control of the Minister for Transport. New section 9S provides that the Safety Director, or Acting Safety Director, is not personally liable where he or she, in good faith, acts or omits to act in the exercise of his or her powers under a relevant transport safety law, or in the reasonable belief that the act or omission was done within his or her authority 31

 


 

under the a relevant transport safety law. Any liability that would otherwise apply applies instead to the Crown. New section 9T provides that the Safety Director has the functions conferred on him or her by the Transport Act 1983, the Rail Safety Act 2005, the Public Transport Competition Act 1995 or any other Act, or regulations made under those Acts, and various other functions including: advising and making recommendations to the Minister in respect of public transport safety, investigating and reporting on public transport safety matters, undertaking training, preparing codes and guidelines in relation to transport safety and carrying out educational and awareness-raising activities in relation to rail safety. New section 9U sets out certain powers of the Safety Director. New section 9V provides that in performing his or her functions, the Safety Director must have regard to-- · ensuring safety standards; and · ensuring that societal costs are considered and assessed such that the benefits are proportionate to the costs; and · the objects of the Rail Safety Act 2005. New section 9W provides that while the Safety Director is not generally subject to the control of the Minister, the Minister may direct the Safety Director to investigate a public transport safety matter. However, the Minister is not permitted to give certain types of directions. For example, the Minister must not direct the Director to stop investigating, or to not investigate, a public transport safety matter. The Minister must publish any direction given in the Government Gazette and lay it before both Houses of Parliament. New section 9X provides that staff may be employed under Part 3 of the Public Administration Act 2004 to assist in the performance of the Safety Director's functions. New section 9Y provides that the Safety Director may delegate his or her powers under this Bill, the Transport Act 1983, or the Public Transport Competition Act 1995 to a transport safety officer or employee employed under Part 3 of the Public Administration Act 2004, or a consultant, contractor or agent. New section 9Z provides that the Safety Director may disclose or publish information obtained or collected in the performance of his or her functions. 32

 


 

New section 9ZA provides that before making a mandatory rail safety decision that may result in significant costs or expenses being incurred by a person whose interests are affected by the decision, the Safety Director must conduct or cause to be conducted a cost-benefit analysis and consult with the Premier, Treasurer, responsible Minister and the person affected by the mandatory rail safety decision. New section 9ZB provides that the Minister may prepare guidelines for the purpose of the cost-benefit analysis and consultation required to be carried out by the Safety Director in relation to a mandatory rail safety decision. Before doing so, the Minister must consult with the Premier and the Treasurer. Guidelines may, among other things, require the Safety Director to obtain an independent assessment about the methodology to be applied in the conduct of a cost-benefit analysis. New section 9ZC provides that the Safety Director may enter into a memorandum of understanding with the Chief Investigator and any other persons or bodies required by the regulations as to the exercise of their respective functions and powers. New section 9ZD provides that the Safety Director may, without risk of liability, give advice as to how to comply with a relevant transport safety law. Clause 118 inserts a new Subdivision heading "Subdivision 4--Provisions relating to Passenger Services" in Division 1 of Part II of the Transport Act 1983. Clause 119 repeals Divisions 2 and 3 of Part VI of the Transport Act 1983. Clause 120 amends the heading to Part VII of the Transport Act 1983 because the Part will provide for other matters being inserted by this Bill (see clause 127 of this Bill). Clause 121 makes consequential amendments to the definition of "safety work infringement" in section 208 of the Transport Act 1983. Clause 122 inserts new Division 4AAA--Transport Safety Offences into the Transport Act 1983. The new Division moves into the Transport Act 1983 a number of the substantive safety offences and provisions contained in the current Transport (Ticketing and Conduct) Regulations 2005 and the former and now revoked Transport (Passenger and Rail Freight) Regulations 1994. 33

 


 

New section 221U contains definitions for the purposes of Division 4AAA of Part VII, of a number of terms, including: "authorised person", "bicycle", "level crossing", "pedestrian", "rail premises", "railway track", "rail vehicle", "road vehicle", "tramway track", "vehicle" and "wheeled recreational device". New section 221V(1) provides that section 221V(2) applies where a provision in this Division states that a person does not have the benefit of the mistake of fact defence. New section 22V(2) provides that it is not a defence to a charge for the offence for the person to prove that, at or before the time of the conduct constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted an offence. New section 221W limits the application of new section 221V to offences created under Division 4AAA. New section 221X sets out offences relating to the driving of a vehicle that exceeds mass or dimension limits over railway tracks (which includes tramway tracks) without the written permission of the Director. The person charged with an offence under this section may invoke the "reasonable steps" defence if the person relied on the weight stated in a container weight declaration. New section 221Y provides that the operator of a vehicle driven in contravention of section 221X is guilty of an offence. An operator charged with an offence under this section may invoke the "reasonable steps" defence if the person driving the vehicle relied on the weight stated in a container weight declaration. New section 221Z sets out how the reasonable steps defence operates for the purposes of sections 221X and 221Y. New section 221ZA provides that the Director may specify, by notice published in the Government Gazette, the maximum allowable dimensions for vehicles crossing railway and tramway tracks. The Director may also specify fee and charges for granting permission to over-dimensional vehicles to cross railway or tramway tracks. 34

 


 

New section 221ZB provides that a person must not take, or attempt to take, an animal across railway tracks at a pedestrian or level crossing if warning lights are flashing and bells are ringing, if a gate, boom or barrier is closed or opening or closing, if a rail vehicle is entering the crossing or if certain other circumstances apply. New section 221ZC provides that it is an offence to place anything on a railway or tramway track, except when driving normally in a vehicle. New section 221ZD provides that a person must not, without reasonable excuse-- · mount or attempt to mount any part of a locomotive, rail vehicle or road vehicle that is not intended for passenger travel; · a walk or climb on any part of rail premises not intended for use be passengers or the public. New section 221ZE sets out offences relating to travelling on a part of a locomotive, rail vehicle or road vehicle that is not intended for the purpose of travel. It also prohibits a person riding a bicycle or wheeled recreational device or wheeled toy from attaching himself or herself to the exterior of a rail or road vehicle. New section 221ZF sets out offences relating to the application of emergency brakes and other emergency devices. New section 221ZG provides that it is an offence to stop a rail vehicle or road vehicle without reasonable excuse. New section 221ZH provides that it is an offence for a person to move, interfere, tamper, operate, or to attempt to do any of those things, in relation to rail or road transport vehicles or equipment, without the permission of an authorised person. New section 221ZI provides that a person must not cause drainage or sewage to flow onto Rail Track land or premises. Clause 123 repeals section 222 of the Transport Act 1983. Clause 124 substitutes for section 223 of the Transport Act 1983, the offence relating to trespass on land or property owned by the Roads Corporation or Rail Track (otherwise known as VicTrack). The penalty for contravening new section 223 is 20 penalty units. 35

 


 

Clause 125 inserts new Division 4B into the Transport Act 1983, which primarily provides for the appointment of transport safety officers and the conferring on them of powers to enforce provisions of the Bill and other transport safety laws. New section 228S, which defines various terms used in relation to the enforcement of relevant transport safety laws, including: "compliance and investigative purposes", "major incident", "railway", "rail infrastructure", "rail operations", "railway premises", "rail safety worker", "relevant person" and "utility". New section 228SA(1) provides that Division 4B binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. New section 228SA(1) provides that in order to avoid doubt, the Crown is a body corporate for the purposes of this Division. New section 228T provides for the appointment of transport safety officers by the Safety Director. New section 228U requires the Safety Director to issue transport safety officers with identity cards. New section 228V provides for the return of an identity card once the person to whom it was issued ceases to be a transport safety officer. New section 228W(1) provides that, subject to new section 228W(2), a transport safety officer must produce his or her identity card before exercising his or her powers under the Act. New section 228W(2) provides that a transport safety officer is not required to produce his or her identity card if-- · the officer reasonably believes that the production of the identity card would affect the safety or welfare of any person or frustrate the effective exercise of a power under Division 4B; or · the request to produce his or her identity card is made by a person to whom the officer has already produced that identity card on the same day. New section 22W(3) provides that failure to produce the card does not invalidate the action taken by a transport safety officer. New section 228X provides that the Safety Director may give a direction to a transport safety officer in relation to that officer's performance or exercise of a function or power. 36

 


 

New section 228Y provides for the Ombudsman to investigate any action or omission taken by a transport safety officer who is not employed by a public statutory body within the meaning of the Ombudsman Act 1973 and any matter relating to that action. New section 228Z provides that a transport safety officer has, for compliance and investigative purposes, the power to enter, without consent, any railway premises at any time if rail operations are being carried out there, or the occupier consents, or the transport safety officer is authorized to do so under a search warrant. A transport safety officer may only enter residential premises if the occupier consents or is authorised to do so under a warrant. New section 228ZA sets out the procedure that applies where entry is made with the consent of the occupier. New section 228ZB deals with general powers of inspection, inquiry and search. It empowers a transport safety officer who enters railway premises or residential premises to do various things for compliance and investigative purposes, including to inspect, to inquire, to take samples, to make sketches and recordings, to search for evidence, to require production of documents and to make copies of them. New subsection 228ZC provides that a transport safety officer may secure any part of railway premises to ascertain whether an offence has been committed or to preserve evidence. New section 228ZD provides that it is an offence to enter a secured site without reasonable excuse. New section 228ZE provides that a transport safety officer may seize anything on railway premises or residential premises if he or she believes it to be necessary for compliance and investigative purposes. New section 228ZE is subject to the safeguards set out in new sections 228ZT, 228ZU, 228ZV and 228ZW. New section 228ZF provides that a transport safety officer may bring onto railway premises or residential premises any equipment necessary for examination or processing of things found at the premises in order to determine whether they are things that may be seized. New section 228ZG provides that a transport safety officer may apply to the Magistrates' Court for a search warrant for railway premises or residential premises if the officer reasonably believes that evidence of an offence will be found there. The section sets out the circumstances in which a warrant may be issued, and the things that must be stated in it. Warrants issued in accordance 37

 


 

with this section must not authorize a transport safety officer to arrest a person. New section 228ZH provides that a transport safety officer may seize things not described in the search warrant where the officer reasonably believes that the thing-- · is of a kind which could have been included in the warrant; or · will afford evidence about the commission of an offence against a relevant transport safety law-- and the officer believes on reasonable grounds that seizure of the thing is necessary to prevent it being concealed, lost, destroyed or used in the contravention of a relevant transport safety law. New section 228ZI provides that before executing a search warrant, a transport safety officer must announce that he or she is authorised by the warrant to enter the railway or residential premises and must give an opportunity to be allowed entry unless it is reasonably believed that immediate entry is necessary to ensure safety or effective execution of the search warrant. New section 228ZJ provides that a transport safety officer must identify himself or herself and give a copy of the search warrant to the occupier of the railway or residential premises. New section 228ZK provides that a transport safety officer may require certain persons to provide documents or other things required to be kept under a relevant transport safety law. The direction must state where and to whom such things are to be produced. The penalty for contravention of new section 228ZK is 60 penalty units. New section 228ZL provides that a transport officer may direct a person to give him or her assistance in exercising a power. Failure to comply without reasonable excuse is an offence unless the person can establish that the direction was unreasonable or the direction was outside the scope of that person's business or other activities. The penalty for contravention of new section 228ZL is 60 penalty units. New section 228ZM provides that a transport safety officer may direct a rail operator or rail safety worker to provide the name, home address and business address of any other person associated with rolling stock, or to give other information that would lead to the identification of that person. Failure to comply is an offence. The penalty for contravention of this section is 5 penalty units. 38

 


 

New section 228ZN provides that a transport safety officer may direct an individual who the officer believes to be a relevant person to state his or her name, home address and business address. Failure to comply or knowingly providing false information is an offence. The penalty for contravention of this section is 5 penalty units. New section 228ZO provides that, for the purpose of protecting evidence, a transport safety officer may require that a thing must not be removed or interfered with without his or her permission. The penalty for contravention of this section is 60 penalty units. New section 228ZP provides that on seizing a thing, a transport safety officer may move it from the place of seizure, leave it there but restrict access to it or make it inoperable. New section 228ZQ provides that it is an offence to tamper with a thing that has been seized without the transport safety officer's permission. New section 228ZR enables a transport safety officer, for the purpose of seizure, to direct the operator of a thing to take it to a specified place at a specified time and if necessary remain in control of it. New section 228ZS provides that a person directed to take a thing to a specified place under section 228ZR may also be directed to return it. New section 228ZT provides that if a transport safety officer seizes a thing, he or she must provide a receipt to the person in charge of that thing or railway premises or residential premises from which it was taken. The receipt must identify the thing seized, the person who seized it and the reason for seizure. If for any reason it is not practicable to give the receipt, the transport safety officer must either leave the receipt in a conspicuous place, or send it by post. New section 228ZU provides that a transport safety officer must provide a copy of any document or thing that has been seized to the owner or custodian of that thing, unless it was moved under section 228ZP or 228ZR or the transport safety officer cannot identify the owner or custodian. New section 228ZV provides that where a thing is seized, the transport safety officer must return it to the person from whom it was seized. New section 228ZW provides that a transport safety officer may apply to the Magistrates' Court for an extension of the period during which a thing that has been seized may be retained. 39

 


 

New section 228ZX provides that a transport safety officer may apply to the Magistrates' Court to have the thing seized forfeited to the State. The Court may make the order provided that it is satisfied that either the transport safety officer cannot find the owner of the thing seized, or it is necessary to prevent the commission of an offence. New section 228ZY deals with the manner of giving directions under the Division. It provides that a direction may be given either orally or in writing. The transport safety officer must state whether it is to be complied with immediately or within a specified period and that failure to comply is an offence. New section 228ZZ provides that a power conferred under the new Division to enter railway or residential premises or do anything in railway or residential premises may not be exercised unless the transport safety officer uses no more force than is reasonably necessary to enter the premises or do the thing for which the entry is effected. New section 228ZZA provides that where a transport safety officer seizes electronic equipment and has reason to believe that information pertaining to a breach against a relevant transport safety law is stored on that equipment, that officer may require access to that information. New section 228ZZB provides for the payment of compensation by the Safety Director for damage caused in the exercise of a power conferred by the Division 4B. New section 228ZZC provides that where the Safety Director or a transport safety officer believes that a relevant person is contravening or has contravened a provision of a relevant transport safety law, or in the case of an accredited rail operator, a condition of the operator's accreditation, the Safety Director or transport safety officer may serve an improvement notice on the relevant person requiring the relevant person to take specified action by a specified date to remedy the contravention or to stop the contravention from continuing or occurring again. New section 228ZZD provides that an improvement notice may require the closure of a level crossing or a bridge or other structure. New section 228ZZE provides that it is an offence to fail to comply with an improvement notice without reasonable excuse. The penalty for contravention of this section is 500 penalty units in the case of a natural person, and 2500 penalty units in the case of a body corporate. 40

 


 

New section 228ZZF provides for the amendment of improvement notices by the Safety Director or a transport safety officer and when an amendment is to have effect. New section 228ZZG provides for the cancellation of improvement notices. New section 228ZZH provides for the issue of certificates to the effect that any specified requirements of an improvement notice have been complied with. New section 228ZZI provides that the service, amendment or cancellation of an improvement notice does not affect proceedings for offences in connection with the matter in respect of which the improvement notice was served. New section 228ZZJ provides that where the Safety Director a transport safety officer believes on reasonable grounds that an activity is occurring at railway premises or in the immediate vicinity of rail infrastructure or rolling stock, that involves or will involve an immediate risk to the safety of a person or rail operations, the transport safety officer may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity until the Safety Director or transport safety officer certifies that the risks have been remedied. A prohibition notice must set out the basis of the Safety Director's or transport safety officer's belief, and may include directions on the measures to be taken to remedy the risk. New section 228ZZK provides that it is an offence to fail to comply with a prohibition notice. The penalty for contravention of this section is 500 penalty units in the case of a natural person, and 2500 penalty units in the case of a body corporate. New section 228ZZL sets out the manner by which the Safety Director or a transport safety officer may amend a prohibition notice, and when the amendment is to become effective. New section 228ZZM provides for the withdrawal of a prohibition notice. New section 228ZZN provides for the issue of certificates when the risk giving rise to a prohibition notice is remedied. New section 228ZZO provides that the service of a prohibition notice does not affect proceedings for offences in connection with the matter in respect of which the prohibition notice was served. 41

 


 

New section 228ZZP(1) provides that, subject to new section 228ZZP(2), a person is not excused from complying with a direction given under Division 4B on the ground that complying with the direction may-- · result in information being provided that might incriminate the person; or · make the person liable to a penalty. New section 228ZZP(2) provides that any information obtained from a natural person under this Division-- · is not admissible in evidence against the person in criminal proceedings other than in proceedings in respect of the provision of false information; or · must not be used in any action, proceeding or process that may make a person liable to penalty. New section 228ZZP(3) provides that despite section 228ZZP(2)(a), any information obtained from a person under section 228ZK(1) is admissible in evidence against the person in criminal proceedings. New section 228ZZP(4) provides that despite section 228ZZP(2), any information obtained from a person under this Division that is contained in any document or item-- · that the person is required to keep a relevant transport safety law; or · that was obtained without the direct assistance of the person-- is admissible in evidence against the person in criminal proceedings or may be used any action, proceeding or process that may make a person liable to penalty. New section 228ZZP(5) provides that, for the purposes of section 228ZZP(4), a person provides direct assistance in the obtaining of a document or item if the person is required to identify, to reveal the location of, or to explain the contents of, the document or item. New section 228ZZQ provides that certain decisions relating to improvement and prohibition notices are reviewable decisions. New section 228ZZQ should be read in conjunction with clause 87 of this Bill so as to provide a comprehensive list of rail safety related decisions identified as being subject to review. 42

 


 

New section 228ZZR provides for internal review of certain reviewable decisions (other than decisions made by the Safety Director) by the Safety Director. New section 228ZZS provides for review of certain reviewable decisions by the Victorian Civil and Administrative Tribunal. Clause 126 inserts new sections 229A and 229B into Part VI of the Transport Act 1983. New section 229A sets out who may bring proceedings and conduct proceedings in court for relevant transport safety law offences. New section 229B specifies a limitation period of 3 years (or longer with the written authorisation of the Director of Public Prosecutions) for relevant transport safety law offences. Clause 127 inserts new section 230A and new Divisions 6 and 7 into Part VII of the Transport Act 1983. New section 230A makes provision with respect to evidentiary certificates to facilitate proof of certain matters that might arise in proceedings for offences against relevant transport safety laws. New section 230B provides that where a court finds a person guilty of an offence against a relevant transport safety law, the court may, on the application of the Safety Director, order the person to pay a fine that is up to 3 times the gross commercial benefit that the person or an associate of the person received from the commission of the offence (or would have received if the relevant journey had been completed). New section 230C provides for the making of supervisory intervention orders by a court. Such an order may require the person to do things that the court considers will improve the person's compliance with a relevant transport safety law. Contravention of a requirement of a supervisory intervention order is an offence. New section 230D provides that a person must contravene a supervisory intervention order. The penalty for contravening this provision is 120 penalty units in the case of a natural person and 600 penalty units in the case of a body corporate. New section 230E provides that a court may release an offender on the giving of safety undertaking. 43

 


 

New section 230E(1) provides that if a court convicts or finds a person guilty of an offence against a relevant transport safety law, the court may adjourn proceedings for up to 2 years and release the offender on the offender giving an undertaking with specified conditions. New section 230E(2) provides that an undertaking must specify conditions including that the offender-- · appear before the court if called on to do so during the period of adjournment; · does not commit any further offence against any relevant transport safety law during the period of the adjournment; · observes any special conditions imposed by the Court. New section 230E(3) enables a court to impose on an offender special conditions that the offender-- · engage an approved consultant to advise on or assist with safety matters; and · develop and implement a systematic approach to managing risks to safety that arise or may arise from the offender's undertaking; and · arrange an audit in relation to the safety of the offender's undertaking by an independent person approved by the Safety Director. New section 230E(4) and (5) provide that an offender who has given an undertaking may be called upon to appear before the court by order or notice issued by the proper officer of the court. Such order or notice must be served on the offender not less than 4 days before the time specified for the appearance. New section 230E(6) enables a court to discharge the offender without further hearing of the proceeding if the court is satisfied at the time of hearing further proceedings that the offender has observed the conditions of the undertaking. New section 230E(7) provides that a court may make an order for release on giving a safety undertaking in addition to or instead of imposing a penalty on the offender or making any other order that the court may make in relation to the offence. 44

 


 

New section 230F provides for the variation or breach of orders under new section 230E. It provides that sections 78 and 79 of the Sentencing Act 1991 apply to an order under new section 230E as though they were incorporated into the Transport Act 1983. New section 230G inserts new definitions of "relevant rail protection law" and "relevant rail safety duty law". In general terms, these laws are the laws applicable to utilities and other persons who may conduct works on or in the vicinity of railways. New section 230H provides that nothing in a relevant rail safety duty law affects a right of civil action or a defence to an action in civil proceedings. New section 230I deals with the relationship between relevant rail safety duty laws and the Occupational Health & Safety Act 2004, by providing as follows-- · New section 230I(1) provides that if a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act applies to an activity in respect of which a duty under a relevant rail safety duty law is imposed, that provision continues to apply and must be observed in addition to the relevant rail safety duty law. · New section 230I(2) provides that if a relevant rail safety duty law is inconsistent with a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act, the Occupational Health and Safety Act 2004 or the regulations made under it prevail to the extent of the inconsistency. · New section 230I(3) provides that compliance with a relevant rail safety duty law, or with any requirement imposed under a relevant rail safety duty law, is not in itself a defence in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. · New section 230I(4) provides that evidence of a relevant contravention of a relevant rail safety duty law is admissible in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act. 45

 


 

New section 230J provides that the provisions set out in Divisions 1 to 3 of Part 9 of the Bill (dealing with offences by bodies corporate, officers of bodies corporate and partnerships etc) apply to offences under rail safety protection laws and relevant rail safety duty laws. Clause 128 makes amendments to sections 250 and 251 of the Transport Act 1983 which apply provisions relating to the service of documents under the Transport Act 1983. The amendments allow for service under the Rail Safety Act 2005. Clause 129 is a statute law revision. It amends section 246CF of the Transport Act 1983 by substituting "Note 1" for "Note 2". PART 11--OTHER AMENDMENTS TO ACTS, SAVINGS AND TRANSITIONALS Division 1--Amendment of Public Transport Competition Act 1995 Division 1 sets out amendments to the Public Transport Competition Act 1995 (which deals with the regulation of buses and bus services) which are consequential upon the establishment of the position of the Safety Director in the amendments to the Transport Act 1983 contained in this Bill (see clause 117). The Safety Director will take over accreditation of road transport passenger services under the Public Transport Competition Act 1995. Clause 130 makes consequential amendments to section 7 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 131 makes consequential amendments to section 8 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 132 makes consequential amendments to section 9 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 133 makes consequential amendments to section 10 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 134 makes consequential amendments to section 11 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. 46

 


 

Clause 135 makes consequential amendments to section 12(2) of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 136 makes consequential amendments to section 13 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 137 makes consequential amendments to section 14 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 138 makes consequential amendments to section 15 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 139 makes consequential amendments to section 16 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 140 makes consequential amendments to section 17(3) of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 141 makes consequential amendments to section 19 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 142 makes consequential amendments to section 20 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 143 makes consequential amendments to section 21 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 144 makes consequential amendments to section 22 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 145 makes consequential amendments to section 24(1) of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 146 makes consequential amendments to section 24A(7) of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. 47

 


 

Clause 147 makes consequential amendments to section 34 of the Public Transport Competition Act 1995 consequential upon the Safety Director taking over accreditation under the Act. Clause 148 inserts a new section 35(2A) into the Public Transport Competition Act 1995 which is consequential upon the Safety Director taking over accreditation under the Act. Clause 149 inserts a new section 36(1B) into the Public Transport Competition Act 1995 which is consequential upon the Safety Director taking over accreditation under the Act. Division 2--Amendment of Rail Corporations Act 1996 Division 2 sets out amendments to the Rail Corporations Act 1996 that are generally consequential amendments. Clause 150 makes a consequential amendment to section 3(1) of the Rail Corporations Act 1996. It inserts a new definition of "Safety Director". Clause 151 amends section 10 of the Rail Corporation Act 1996 (objective of Rail Track) to require Rail Track to carry out and perform its functions in a safe, efficient and commercial manner. Clause 152 amends section 11 of the Rail Corporations Act 1996 (functions and powers of Rail Track) to enable Rail Track to operate rolling stock for the purposes of providing passenger services if directed to do so by the Minister by order published in the Government Gazette. Clause 153 inserts new section 12 into the Rail Corporations Act 1996 that provides that Rail Track must develop and maintain a contingency plan for the possible carrying out by it of certain rail operations on railways and rail infrastructure established, owned, managed or maintained by it. Clause 154 amends section 38A of the Rail Corporations Act 1996 to insert new definitions of "rail infrastructure manager" and "rail infrastructure operations", and to amend the existing definition of "access provider". Clause 155 makes consequential amendments to 38ZZE of the Rail Corporations Act 1996, consequential upon the creation of the position of the Safety Director and the repeal of Division 3 of Part VI of the Transport Act 1983. Clause 156 makes a statute law revision amendments to sections 38ZJ and 38ZZZB of the Rail Corporations Act 1996. 48

 


 

Division 3--Other amendments Clause 157 substitutes section 85 of, and inserts new sections 93A to 93C into, the Electricity Industry Act 2000. New section 85 essentially inserts new definitions of "rail infrastructure", "rail operations", "rail operator", "rolling stock" and "works contractor" for the purposes of Part 5 of the Electricity Industry Act 2000. New section 93A imposes duties on electricity corporations when exercising powers under section 93, or works contractors when carrying out activities referred to in section 93, on or in the immediate vicinity of rail infrastructure, to ensure, so far as is reasonably practicable, that the powers are exercised, or activities are carried out, safely. The penalty for contravening is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. New section 93B requires an electricity corporation to notify the owner or occupier of land where there is rail infrastructure or rolling stock before exercising its power to carry out works there if the exercise of the power will threaten, or is likely to threaten, the safety of rail infrastructure or rolling stock. The penalty for contravening this provision is 300 penalty units. New section 93C requires a rail operator to notify an electricity corporation before carrying out rail operations that will threaten or that are likely to threaten the safety of the electricity corporation's works or the safe provision of electricity or other like services. The penalty for contravening this provision is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. Clause 158 inserts new section 147A and new sections 149A to 149C into the Gas Industry Act 2001. New section 147A includes new definitions for "rail infrastructure", "rail operations", "rail operator" and "rolling stock". New section 149A imposes duties on a gas distribution or transmission company or a person authorised by them under section 148(7) or 149(6), when exercising a power to carry out works on or in the immediate vicinity of rail infrastructure or rolling stock, to ensure, so far as is reasonably practicable, that the power is exercised safely. The penalty for contravening these duties is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. 49

 


 

New section 149B requires a gas distribution nor transmission company to notify the owner or occupier of land where there is rail infrastructure or rolling stock before exercising its power to carry out works of its intention to do so if the exercise of the power will threaten, or is likely to threaten, the safety of rail infrastructure or rolling stock. The penalty for contravening this provision is 300 penalty units. New section 149C requires a rail operator to notify a gas distribution or transmission company before carrying out rail operations that will threaten or that are likely to threaten the safety of the gas distribution or transmission company's works or the safe provision of gas or other like services of the rail operator's intention to carry out the operations. The penalty for contravening this provision is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. Clause 159 amends the Magistrate Court Act 1989 to provide that indictable offences under the Rail Safety Act 2005, and under the provisions inserted by this Part into the Electricity Industry Act 2000, Gas Industry Act 2001, Road Management Act 2004, Water Act 1989 and Water Industry Act 1994, may be heard summarily. Clause 160 inserts a new Division 4A of Part 4 containing new sections 48A, 48B, 48C, 48D, 48E, 48F and 48G, into the Road Management Act 2004. The provisions impose duties on State road authorities, infrastructure managers, works managers and works contractors carrying out works or on in the immediate vicinity of rail infrastructure or rolling stock to ensure so far as is reasonably practicable that they carry out the works safely. New section 48A includes new definitions for "rail infrastructure", "rail operations", "rail operator" and "rolling stock". New section 48B requires a State road authority, when exercising its power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, to ensure so far as is reasonably practicable, that it exercises its power or performs its duty safely. The penalty for contravening this provision is 9000 penalty units. 50

 


 

New section 48C requires an infrastructure manager or works manager, when exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, to ensure, so far as is reasonably practicable, that they exercise their power or perform their duty safely. The penalty for contravening this provision is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. New section 48D requires a works contractor, when carrying out works on or in the immediate vicinity of rail infrastructure or rolling stock, to ensure, so far as is reasonably practicable, that they carry out their works safely. The penalty for contravening this provision is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. New section 48E requires a State road authority to notify the owner or occupier of land where there is rail infrastructure or rolling stock before exercising its power to carry out works of its intention to do so if the exercise of the power will threaten, or is likely to threaten, the safety of rail infrastructure to rolling stock. The penalty for contravening this provision is 300 penalty units. New section 48F requires a rail operator to notify a road authority before carrying out rail operations that will threaten or that are likely to threaten the safety of the road authority's road infrastructure of the rail operator's intention to carry out the operations. The penalty for contravening this provision is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. New section 48G provides that offences in new sections 48B, 48C and 48D are indictable offences. Clause 161 inserts new sections 137A to 137C into the Water Act 1989. New section 137A imposes duties on water authorities and works contractors, when carrying out works on or in the immediate vicinity of rail infrastructure, to ensure, so far as is reasonably practicable, that they carry out the works safely. The penalty for contravening these duties is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. New section 137B requires a water authority to notify the owner or occupier of land where there is rail infrastructure or rolling stock before carrying out works of its intention to do so if the carrying out of the works will threaten, or is likely to threaten, the safety of rail infrastructure or rolling stock. The penalty for contravening this provision is 300 penalty units. 51

 


 

New section 137C requires a rail operator to notify a water authority before carrying out rail operations that will threaten or that are likely to threaten the safety of the water authority's works of the rail operator's intention to carry out the operations. The penalty for contravening this provision is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. Clause 162 inserts new section 62A to 62C into the Water Industry Act 1994. New section 62A imposes duties on water licensees and works contractors, when carrying out work on or in the immediate vicinity of rail infrastructure, to ensure, so far as is reasonably practicable, that they carry out the works safely. The penalty for contravening these duties is 1800 penalty units in the case of a natural person, and 9000 penalty units in the case of a body corporate. New section 62B requires a water licensee to notify the owner or occupier of land where there is rail infrastructure or rolling stock before carrying out works of its intention to do so if the carrying out of the works will threaten, or is likely to threaten, the safety of rail infrastructure or rolling stock. The penalty for contravening this provision is 300 penalty units. New section 62C requires a rail operator to notify a water licensee before carrying out rail operations that will threaten or that are likely to threaten the safety of the licensee's works of the rail operator's intention to carry out the operations. The penalty for contravening this provision is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. Division 4--Savings and Transitionals Clause 163 sets out the definitions of a number of terms used in the Division, including "accredited commercial rail operator", "accredited tourist and heritage rail operator", "manage", "operate", "provide", "rail infrastructure", "railway", "rolling stock", "tourist heritage railway". Clause 164 provides that the Division does not affect or take away from the Interpretation of Legislation Act 1984. Clause 165 provides that the regulations may contain savings or transitional provisions consequent upon the enactment of this Bill and the repeal of Divisions 2 and 3 of the Transport Act 1983. 52

 


 

Clause 166 provides for the declaration by the Minister of-- · certain current managers of rail infrastructure or operators or providers of rolling stock who are accredited to be accredited tourist and heritage rail operators for the purposes of the Division; · certain railways to be tourist and heritage railways for the purposes of the Division. Clause 167 deems certain orders and approvals made for the purposes of Division 2 of Part VI of the Transport Act 1983 to be orders and approvals for the purposes of this Bill. Clause 168 provides for the deemed accreditation of accredited commercial rail operators for a period of two years after the commencement of this Bill. Clause 169 provides for the deemed accreditation of accredited tourist and heritage rail operators for a period of three years after the commencement of this Bill. Clause 170 provides that compliance with Division 4 of Part 3 of this Bill is not required until the deemed accreditations referred to in clauses 168 and 169 expire. 53

 


 

 


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