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Transport (Safety Schemes Compliance
and Enforcement) Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
National schemes mandated by the Council of Australian Governments led to
new governance settings and regulatory changes for the rail and marine
sectors in Victoria being introduced in 2013. The national marine scheme,
which affects commercial vessels and other small trading vessels, has
commenced operation in the State. Implementation of the national rail
scheme is expected shortly.
The national schemes bring most parts of the rail and marine sectors under
national control while leaving other areas under state control. As a result of
these new settings, there are both national and state laws in place for rail and
marine safety regulation in Victoria.
Prior to commencement of the national schemes, compliance and
enforcement tools used by the regulator to monitor and enforce these schemes
and Victoria's bus safety scheme were contained in the Transport
(Compliance and Miscellaneous) Act 1983. As a result of Victoria's entry
into the national schemes, differences now exist between the national scheme
statutes and local standards.
The Bill brings the national and local schemes closer together, improving
standards without removing key local controls, leading to greater consistency
across national and local transport safety schemes.
It is also important to note that these powers are also used by the Chief
Investigator, Transport Safety when investigating incidents affecting the
public transport and marine sectors. The new powers are also applied to the
Chief Investigator by the Bill.
571277 1 BILL LA INTRODUCTION 19/2/2014
National harmonisation in the rail and commercial marine
sectors
The move towards harmonisation of rail safety regulation and
small commercial vessel regulation has formed part of the national
agenda for some time.
Harmonisation in these sectors led to the signing of
intergovernmental agreements in 2011 and later enactment of
national laws in South Australia and the Commonwealth
respectively. These led in turn to the passage of the Rail Safety
National Law Application Act 2013 and the Marine (Domestic
Commercial Vessel) National Law Application Act 2013 in
Victoria, and the development of similar legislation in other
Australian jurisdictions.
Victoria played a key role the development of both the rail and
domestic commercial vessel schemes. Both the national rail safety
scheme and the national marine scheme drew heavily on existing
Victorian laws but also contain various changes and
improvements, particularly in respect of compliance and
enforcement.
The Director, Transport Safety established under the Transport
Integration Act 2010 (the Safety Director and the head of
Transport Safety Victoria) and transport safety officers (who may
also be appointed as rail safety officers under the national rail
safety scheme) play a key role in the implementation of the
national schemes in Victoria.
It is important that powers and sanctions available under local
transport safety schemes are not deficient compared to the national
schemes applying in Victoria, particularly when the schemes are
being enforced on the ground by the same state agency and its
officers.
Implementation of the national rail safety law in Victoria
Implementation of the national rail safety law in Victoria is
facilitated by two Acts.
The Rail Safety National Law Application Act 2013 applies the
Rail Safety National Law (enacted by South Australia) as a law of
Victoria, with some essential modifications.
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The Rail Safety National Law (the rail safety national law) is
applied as a law of Victoria by the Rail Safety National Law
Application Act and must be read subject to the modifications
contained in that Act.
The associated Transport Legislation Amendment (Rail Safety
Local Operations and Other Matters) Act 2013 (the Local
Operations Act) amends Victoria's existing Rail Safety Act 2006
so that it will cover locally regulated railways.
The provisions in the Bill are dependent on the Rail Safety
National Law Application Act and the Local Operations Act
commencing operation. The Local Operations Act settings are
also heavily reliant on the provisions in the Bill.
The Rail Safety Act 2006 will become the Rail Safety (Local
Operations) Act 2006 once the Local Operations Act commences
operation. Changes to Victoria's local rail safety legislation made
by the Bill are therefore to the Rail Safety (Local Operations)
Act 2006.
The Rail Safety National Law Application Act 2013
The Rail Safety National Law Application Act provides a
regulatory scheme for interstate and freight railways, as well as for
Melbourne metropolitan and Victoria's regional passenger rail
services.
A minority of tourist and heritage railways which chose to be
nationally regulated and tourist railways using nationally regulated
lines will also be covered by the rail safety national law.
Freight terminals will also be regulated as private sidings under the
rail safety national law, subject to modifications made by the Rail
Safety National Law Application Act.
Rail Safety (Local Operations) Act 2006
The Rail Safety (Local Operations) Act 2006 will regulate the
Melbourne metropolitan tram network and tourist and heritage
tramways which are not covered by the rail safety national law.
It will also cover the tourist and heritage railways which will not
be regulated nationally.
The Local Operations Act broadly aligns local settings in the Rail
Safety (Local Operations) Act 2006 with national law provisions
to reduce inconsistencies between regulation of nationally and
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locally regulated railways. This provides certainty and clarity for
both the regulator and regulated persons.
Regulation of commercial vessels
The national marine or domestic commercial vessel scheme was
implemented in Victoria by the commencement of the Marine
(Domestic Commercial Vessel) National Law Application Act
2013.
The national marine domestic commercial vessel scheme deals
with most matters relating to domestic commercial vessels, but
leaves certain key matters to be regulated locally.
Importantly, waterway management and drug and alcohol
standards, as well as the regulation of recreational vessels, remain
under local regulation. Pilotage and port management also remain
under local regulation.
The national marine or domestic commercial vessel scheme
enables the Australian Maritime Safety Authority (AMSA) to
delegate functions and powers to States and Territories.
In Victoria, AMSA's powers and functions are delegated to the
Safety Director.
Regulation of bus safety in Victoria
The Bus Safety Act 2009 established a new bus safety regime for
Victoria's bus industry. It is a key component in Victoria's
transport safety regulation framework and, as with Victoria's rail
and marine safety schemes, is designed to be flexible and to
respond to changing circumstances in the industry.
As noted in the explanatory memorandum for the Bus Safety Act,
buses play an increasingly important role in the public transport
system, inevitably leading to a busier and more complex
operational environment for buses.
Among other matters, and in line with other public and marine
transport regulatory schemes, the Bus Safety Act contains a range
of key policy principles to guide persons involved in the provision
and regulation of bus services. These principles are intended to
ensure that the responsibilities are shared appropriately, and are
transparently and consistently applied. The Act also includes a
series of general safety duties to eliminate or minimise risk in the
provision of bus services.
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Compliance and enforcement provisions supporting the Bus Safety
Act regime are currently contained in the Transport (Compliance
and Miscellaneous) Act 1983, in combination with compliance
and enforcement provisions for Victoria's rail and local marine
safety schemes. These provisions will be re-located to the Bill and
modified accordingly.
Importantly, the same safety regulator (the Safety Director) is
responsible for regulating Victoria's local rail, bus and marine
safety schemes, so a consistent approach is important.
Improved compliance and investigative framework for
Victoria's local rail, bus and marine safety schemes
The purpose of Victoria's public transport and marine safety
schemes (whether locally or nationally regulated) is generally to
protect and keep people safe, so far as is reasonably practicable.
These regulatory schemes must be supported by effective and
efficient monitoring, compliance and investigative powers.
The Bill therefore establishes a modern, cohesive, effective and
efficient compliance and investigative framework for Victoria's
local rail, bus and marine safety schemes. The scheme is intended
to be clear, consistent, accessible and fair.
The Bill achieves these objectives by better aligning Victorian
existing settings with national scheme standards and making a
range of enhancements and improvements. The effect is to
provide more effective and efficient tools for Victoria's transport
safety regulator, investigator and the courts.
The result is that monitoring, compliance and enforcement
standards for Victoria's local bus, rail and marine safety schemes
provided by the Bill are more comparable with powers available
under the national laws.
The Bill enhances the ability of the Safety Director to monitor,
investigate and enforce compliance by the wide range of persons
and entities regulated under Victoria's local rail, bus and marine
safety schemes, leading to better safety outcomes consistent with
the purpose of those schemes.
A number of current powers relating to Victoria's local rail, bus
and marine safety schemes which are not contained in the national
scheme are retained. Importantly, the Bill ensures that the tools
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provided to the regulator are suitable for each of the regulated
modes of transport.
Structure of the Bill
The Bill deals with the appointment of transport safety officers.
Detailed entry, search, seizure, inquiry and questioning powers are
provided. These are essential to enable the regulator to properly
monitor and enforce compliance with safety and other duties
which apply under Victoria's local rail, bus and marine safety
schemes.
The Bill provides the regulator with important administrative
sanctions. These include the power to serve improvement notices,
prohibition notices and non-disturbance notices which are closely
aligned to existing Victorian rail, bus and marine safety laws and
national rail safety law provisions.
These provisions are currently contained in the Transport
(Compliance and Miscellaneous) Act 1983 and are substantially
re-enacted in the Bill.
Courts are also provided with tools to enforce compliance and deal
with breaches of safety duties. These provisions are also
substantially re-enactments.
Court sanctions include commercial benefits orders, supervisory
intervention orders and exclusion orders which are also contained
in the rail safety national law as well as the Transport (Compliance
and Miscellaneous) Act.
Courts also retain existing Transport (Compliance and
Miscellaneous) Act powers which are not contained in the national
scheme. These include the power to make adverse publicity
orders.
Application of transport safety officers' powers to the Chief
Investigator
Consistent with existing policy, the Bill applies transport safety
officers' powers to the Chief Investigator, Transport Safety whose
office is established under the Transport Integration Act 2010
and who conducts no-blame investigations in respect of public
transport and marine accidents.
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Implementation of nationally-approved directors' liability
principles to safety schemes legislation
Building on existing policy, the Bill provides a platform for the
continued implementation of nationally-approved directors'
liability principles in Victoria.
Consistent with national principles, the changes reduce the
potential for liability for officers of corporations in the event of
corporate fault by limiting the offences for which an officer might
be liable where an offence is committed by the corporation.
The Bill implements this reform in respect of offences under the
Bill, the Bus Safety Act 2009 and the Transport (Compliance
and Miscellaneous) Act 1983.
Penalties
Penalties in the Bill are set in dollar amounts rather than penalty
units, and a number of multipliers (the increase in the maximum
penalty applicable to bodies corporate as opposed to natural
persons) are x10 rather than x5.
These measures depart from normal Victorian policy. This is
because the rail safety national law provides for penalties in dollar
amounts and contains both x5 and x10 multipliers, and the policy
of the Bill is to broadly follow the scheme of that law in this
regard. This is so that there is reasonable parity between the
national law and the equivalent local law provisions applied by
the Bill.
Transition from the Transport (Compliance and
Miscellaneous) Act 1983 scheme
As foreshadowed, a number of provisions are repealed from the
Transport (Compliance and Miscellaneous) Act and
substantially re-enacted in the Bill. Section 16 of the
Interpretation of Legislation Act 1984 deals with where a
provision of an Act is repealed and re-enacted, with or without
modification.
Section 16 provides that, unless the contrary intent appears, any
reference to the provision in an Act or subordinate instrument to
the repealed provision shall be construed as a reference to the
re-enacted provision. Also, any subordinate instrument or other
thing shall have effect as if made or done under the re-enacted
provision (even if the provision is modified).
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The effect is that appointments, directions and things such as
improvement and prohibition notices are taken to be appointments,
directions and notices under the Bill, and matters such as the
seizure of things and the securing of sites are taken to be seizures
or sites which have been secured under the Bill. For this reason,
specific transitional provisions are not required to be included in
the Bill.
The following examples explain how this works.
Currently, transport safety officers are appointed under
section 228T of the Transport (Compliance and Miscellaneous)
Act 1983. The effect of section 16 of the Interpretation of
Legislation Act is that, from the commencement of the relevant
provisions in the Bill, a transport safety officer is taken to be
appointed under the equivalent provisions in the Bill. The
appointment is taken to be subject to the same conditions as and
for the term of the appointment under the Transport (Compliance
and Miscellaneous) Act.
Currently a vessel may be detained under section 228ZBA(1)(a)
of the Transport (Compliance and Miscellaneous) Act 1983.
The effect of section 16 of the Interpretation of Legislation Act is
that, if a vessel has been (and is) detained when the relevant
provisions in the Bill commence, the vessel is taken, on and from
the commencement of those provisions, to be detained under the
Bill.
A direction may be given to a person under section 228ZS of the
Transport (Compliance and Miscellaneous) Act 1983 about a
thing's return, if the thing has been seized from public transport or
marine premises (other than RS Act railway premises within the
meaning of section 98 of the Rail Safety National Law
Application Act 2013). (RS Act railway premises means railway
premises within the meaning of the Rail Safety Act 2006 of a rail
transport operator who transitions to being a rail infrastructure
manager or a rolling stock operator regulated under the rail safety
national law when the Rail Safety National Law Application Act
2013 commences operation).
The effect of section 16 of the Interpretation of Legislation Act is
that, if the direction to return the thing has not been complied with
before the commencement of the relevant provisions in the Bill,
the direction is taken, on commencement of those provisions, to be
a direction under the Bill.
8
The effect of section 16 of the Interpretation of Legislation Act
is that if an improvement notice served on a person under section
228ZZC of the Transport (Compliance and Miscellaneous) Act
1983 before the commencement of the relevant provisions in the
Bill is taken to be an improvement notice served on that person
under the Bill.
However, that is not the case if the notice is an improvement
notice to which the Rail Safety National Law Application Act
2013 applies (because the Bill does not cover such notices), or to
a notice that has been cancelled under section 228ZZG of the
Transport (Compliance and Miscellaneous) Act.
If the Safety Director accepts an undertaking under section
228ZZSC of the Transport (Compliance and Miscellaneous)
Act 1983 (other than an undertaking by a transitioning rail
transport operator within the meaning of section 98 of the Rail
Safety National Law Application Act 2013) under section
228ZZSB of the Transport (Compliance and Miscellaneous) Act
and that undertaking has not been withdrawn before the provisions
in the Bill commence, the effect of section 16 of the Interpretation
of Legislation Act is that the undertaking is taken to be an
enforceable voluntary undertaking accepted by the Safety Director
under the Bill.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purpose of the Bill which is to provide a
scheme for the enforcement of transport safety legislation by--
· re-enacting, with modifications, the scheme under the
Transport (Compliance and Miscellaneous) Act 1983
for the enforcement of transport safety schemes; and
· adopting and adapting provisions from the Rail Safety
National Law.
As explained, implementation of the national rail safety law in
Victoria is facilitated by two Acts.
The Rail Safety National Law Application Act 2013 applies
the rail safety national law (as enacted by South Australia) as a
law of Victoria, with essential modifications. This will cover
nationally regulated railways in Victoria, such as Metro Trains
9
Melbourne and V/Line passenger rail services, as well as
interstate and freight railways.
The associated Transport Legislation Amendment (Rail
Safety Local Operations and Other Matters) Act 2013
amends Victoria's existing Rail Safety Act 2006 (which will
become the Rail Safety (Local Operations) Act 2006) to cover
locally regulated railways, such as the Yarra Trams network in
Melbourne.
Clause 2 deals with commencement and provides that the Bill comes into
operation on a day or days to be proclaimed.
The Bill does not contain a default commencement date. This is
because an open ended commencement is provided for the Rail
Safety National Law Application Act 2013 and the associated
Transport Legislation Amendment (Rail Safety Local
Operations and Other Matters) Act 2013, to which the Bill
relates. An open ended commencement date is usually provided
for in respect of national law application Acts.
As explained, the substantive provisions in the Bill cannot
commence prior to the commencement of the substantive
provisions of those Acts. Nonetheless, once those Acts are in
operation, the Bill is expected to be proclaimed to commence
quickly, most likely shortly after Royal Assent.
Clause 3 contains a number of definitions that apply across the Bill.
Definitions of significance include the following--
Accredited bus operator
This definition, which was contained in the Transport
(Compliance and Miscellaneous) Act 1983, means a bus
operator accredited under Part 4 of the Bus Safety Act 2009.
Accredited rail transport operator
This definition, which is used in place of the definition of rail
operator in the Transport (Compliance and Miscellaneous)
Act 1983, means a rail transport operator accredited under
Part 5 of the Rail Safety (Local Operations) Act 2006.
This definition is needed for the purpose of clause 92.
An authorised officer, which includes a person appointed by
an accredited rail transport operator, may temporarily close a
10
crossing, bridge, subway or similar structure if that is necessary
because there is an immediate risk to safety.
The expression is also used in relation to evidentiary certificates
under clause 107, whereby evidence may be given that a person
was, or was not, an accredited rail transport operator by means
of a certificate.
Approved bus safety code of practice
This definition, which means a code of practice within the
meaning of the Bus Safety Act 2009, is required so that
relevant codes of practice extend to codes issued under
Victoria's bus safety scheme.
Approved code of practice
This definition, which was contained in the Transport
(Compliance and Miscellaneous) Act 1983, has been modified
so that relevant codes of practice extend to Victoria's local bus
and marine safety schemes.
The expression includes an approved bus safety code of
practice, an approved marine safety code of practice and an
approved rail safety code of practice.
Approved marine safety code of practice
This definition, which means a code of practice within the
meaning of the Marine Safety Act 2010, is required so that
relevant codes of practice extend to codes issued under
Victoria's local marine safety scheme.
Approved rail safety code of practice
This definition, which means a code of practice within the
meaning of the Rail Safety (Local Operations) Act 2009, is
essentially the same as an approved code of practice as defined
in the Transport (Compliance and Miscellaneous) Act 1983,
which was an approved code of practice within the meaning of
the Rail Safety Act 2006.
Authorised officer
This definition is required in respect of the power to secure, and
restrict access to, a site, rolling stock, a bus or a vessel under
clause 16 of the Bill. It means a transport safety officer or a
police officer.
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This follows the rail safety national law by extending the power
to secure a site to both transport safety officers and police
officers. In many cases, it will be police officers who are first
on the scene and thus first to secure a site.
Bus
This has the same meaning as in the Bus Safety Act 2009.
That is, a motor vehicle that has been built (i) with seating
positions for 10 or more adults including the driver; and (ii)
to comply with the requirements specified in the Australian
Design Rules for a passenger omnibus, within the meaning of
those rules.
A motor vehicle may also be prescribed or declared to be a bus
under the Bus Safety Act.
The definition excludes most vehicles in respect of which a
taxi-cab licence has been granted under the Transport
(Compliance and Miscellaneous) Act 1983, a motor vehicle
prescribed or declared not to be a bus, and vehicles known as
Hummers.
Bus premises
This definition, which is contained in the Transport
(Compliance and Miscellaneous) Act 1983, has been modified
so that a bus and a bus stopping point are excluded from the
definition.
Buses are separately referred to in the Bill and the boundaries of
a bus stopping point may not be sufficiently clear to effectively
determine where compliance and investigative powers may be
exercised.
Bus premises include a depot or base of operations for a bus
service. In addition, the definition extends to a place where bus
safety work is carried out, and premises including an office or
building used in connection with the provision of bus services
or where the provision of bus services is managed.
This modified definition provides greater certainty compared
with the current law about where the powers of a transport
safety officer in the Bill may be exercised.
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Business day
This means a day that is not a Saturday, Sunday or public
holiday throughout Victoria.
Bus safety worker
This definition, which is contained in the Transport
(Compliance and Miscellaneous) Act 1983, has the same
meaning as in the Bus Safety Act 2009.
That is, a person who has carried out or is carrying out or is
about to carry out bus safety work, including a person employed
or engaged by a bus operator to carry out bus safety work, a
person engaged by any other person to carry out bus safety
work, a trainee or a volunteer.
Bus safety work, as defined in the Bus Safety Act 2009, means
an activity that may affect the safety of bus services including--
· driving a bus or activities associated with driving a bus;
· designing, constructing, supplying, repairing,
modifying, maintaining, monitoring, examining or
testing a bus;
· designing, constructing, supplying, installing, repairing,
modifying, maintaining, monitoring, examining or
testing equipment in or on a bus;
· setting or altering a schedule or timetable for a bus
service; or
· an activity prescribed to be bus safety work under the
Bus Safety Act.
Bus service
The Bill adopts this definition, which is contained in the Bus
Safety Act 2009, and means the operation of one or more buses
to provide a service for the transportation of passengers by road.
Compliance and investigative purposes
This definition, which is contained in the Transport
(Compliance and Miscellaneous) Act 1983, has been modified
so that it refers to a transport safety or infrastructure law and to
approved codes of practice, as defined by the Bill, rather than a
relevant transport safety law and approved compliance codes,
13
which are the expressions used in the Transport (Compliance
and Miscellaneous) Act.
The definition is important because it helps set the boundaries
in which transport safety officers may exercise powers under
the Bill.
Compliance and investigative purposes includes purposes--
· related to ascertaining whether the Bill or a transport
safety or infrastructure law has been, or is being,
complied with, including whether an offence has been
committed against the Bill or a transport safety or
infrastructure law; and
· related to ascertaining whether an approved code of
practice has been, or is being, complied with; and
· related to an investigation into a public transport safety
matter or a marine safety matter; and
· related to an audit under Division 5 of Part 3 of the Rail
Safety (Local Operations) Act 2006; and
· related to an audit under section 20 of the Bus Safety
Act 2009.
Exercise
The Bill provides that exercise, in relation to a function,
includes perform. This has the same meaning as exercise in the
rail safety national law.
Improvement notice
This means an improvement notice served under section 50 of
the Bill.
Level crossing
The Bill adopts this definition, which is contained in the
Transport (Compliance and Miscellaneous) Act 1983.
Level crossing means--
· an area where a road and railway tracks cross at
substantially the same level, whether or not there is a
level crossing sign on the road at all or any of the
entrances to the area; or
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· an area where a road and tramway tracks cross at
substantially the same level and that has a level crossing
sign on the road at each entrance to the area.
Marine incident
The Bill adopts this definition, which is contained in the
Marine Safety Act 2010.
Marine incident means--
· a death of, or injury to, a person onboard a vessel
caused by the operation or navigation of a vessel; or
· the loss or presumed loss of a vessel; or
· a collision of vessels; or
· a collision by a vessel with an object; or
· the grounding, sinking, flooding or capsizing of a
vessel; or
· a fire onboard a vessel; or
· a loss of stability of a vessel that affects the safety of the
vessel; or
· the structural failure of a vessel; or
· a close quarters situation (as defined by the Marine
Safety Act); or
· an event that results in--
· the death of, or injury to, a person onboard a
vessel; or
· the loss of a person from a vessel; or
· a vessel becoming disabled and requiring
assistance; or
· the fouling or damaging by a vessel of--
· any pipeline or submarine cable; or
· any aid to navigation within the meaning of the
Commonwealth Navigation Act.
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Marine operations
The Bill adopts this definition, which is contained in the
Marine Safety Act 2010. While the expression is used in the
Transport (Compliance and Miscellaneous) Act 1983, it is
not defined in that Act.
Marine operations means marine safety infrastructure
operations or vessel operations as defined in the Marine Safety
Act. These terms are explained below.
Marine safety infrastructure operations means--
· designing, commissioning, constructing, dredging,
manufacturing, erecting, installing, operating,
maintaining, repairing, monitoring or managing marine
safety infrastructure; or
· operating communications systems (including signals)
and vessel traffic management systems for the purpose
of directing the safe movement of vessels in port waters.
Vessel operations means--
· operating a vessel; or
· actions of a pilot when the pilot has conduct of a vessel,
including the navigation of the vessel.
Marine or port infringement law
This definition is similar to the definition of marine or port law,
which is contained in section 228S of the Transport
(Compliance and Miscellaneous) Act 1983. It means--
· a provision of the Marine Safety Act 2010 or any
regulations made under that Act;
· a provision of the Marine (Drug, Alcohol and
Pollution Control) Act 1988 or any regulations made
under that Act;
· a provision of the Port Management Act 1995 or any
regulations made under that Act.
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The difference to the definition of marine or port law in the
Transport (Compliance and Miscellaneous) Act is the inclusion
of a reference to a provision of the Port Management Act
1995.
Marine premises
The Bill re-enacts this definition, which is contained in
section 228S of the Transport (Compliance and
Miscellaneous) Act 1983.
Marine premises means--
· the building or facilities used in connection with the
undertaking of marine operations; and
· land on which vessels are stored but does not include
land used for residential purposes.
Marine safety infrastructure
The Bill incorporates this definition, which is contained in the
Marine Safety Act 2010.
Marine safety infrastructure means the channels and facilities
that are necessary to ensure the safety of marine operations and
includes--
· navigation aids and associated structures and works; and
· signage and associated structures and works; and
· lights and associated structures and works; and
· telecommunications systems and associated structures
and works; and
· buildings used for the purpose of observing vessel
operations; and
· traffic management systems (including vessel traffic
systems and associated structures and works); and
· plant and machinery used for dredging; and
· slipways, wharves, jetties, piers and other berthing
facilities; and
· boat ramps and other launching facilities.
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Marine safety infrastructure operations
The Bill incorporates this definition, which is contained in the
Marine Safety Act 2010, and means--
· designing, commissioning, constructing, dredging,
manufacturing, erecting, installing, operating,
maintaining, repairing, monitoring or managing marine
safety infrastructure; or
· operating communications systems (including signals)
and vessel traffic management systems for the purpose
of directing the safe movement of vessels in port waters.
Marine safety matter
The Bill incorporates this definition, which is contained in the
Transport Integration Act 2010, and means--
· an incident involving a vessel that resulted in, or that
had the potential to result in, the death of, or injury to,
any person, or in damage to, or the loss of, the vessel or
any other vessel, or to any other property or equipment,
and includes, for example--
· any accident involving a vessel;
· any incident involving a vessel in which there is
evidence of systematic safety deficiencies;
· the occurrence of any event that provides reasonable
grounds for the belief--
· that any pilot, pilot exempt master, harbour
master, pilotage services provider or person
providing a service under the Marine Safety Act
2010 has acted incompetently in the course of his
or her duties or in breach of that Act or the
regulations made under that Act; or
· that the holder of any harbour master licence has
breached the conditions of that licence; or
· that any pilot, pilot exempt master or pilotage
services provider, who is registered under the
Marine Safety Act 2010 to act as a pilot, pilot
exempt master or pilotage services provider
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(as the case requires), has breached the
conditions of that registration;
· any other incident or any state of affairs involving, or in
relation to, a vessel that is specified by regulations made
under the Transport Integration Act for the purposes of
this definition.
Marine safety work
The Bill incorporates this definition, which is contained in the
Marine Safety Act 2010.
Marine safety work means any activity that may affect the
safety of marine safety infrastructure operations or vessel
operations (explained in relation to the definition marine
operations) in respect of a domestic commercial vessel,
including--
· navigating, conducting or controlling the movement of a
domestic commercial vessel;
· facilitating the navigation, conduct or control of the
movement of a domestic commercial vessel;
· implementing and maintaining safe working systems
for--
· marine safety infrastructure operations; or
· vessel operations in respect of a domestic
commercial vessel;
· installing, designing, constructing, supplying, repairing,
modifying, maintaining, monitoring, examining or
testing marine safety infrastructure;
· any work involving certification as to the safety of
marine safety infrastructure or any part of marine safety
infrastructure;
· any work involving the development, management or
monitoring of safe working systems for marine safety
infrastructure operations;
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· any work connected to the removal of hazards,
obstructions or dangers to the safety of--
· marine safety infrastructure operations; or
· vessel operations in respect of a domestic
commercial vessel;
· directing (including through the use of signals and signs
and radio or other electronic communications) the
movement of vessels in port waters;
· any other work that is prescribed as marine safety work
under the Marine Safety Act.
Non-disturbance notice
This means a notice served under section 71 of the Bill.
Notifiable occurrence
This means--
· a public transport safety matter; or
· an accident or incident that is prescribed as a notifiable
occurrence--
but does not include a public transport matter or accident or
incident that is prescribed not to be a notifiable occurrence.
Officer (of a body corporate, unincorporated body or
association or partnership)
In the Bill, officer of a body corporate, unincorporated body or
association or partnership is given the same meaning it has in
section 9 of the Corporations Act. That is--
Officer of a corporation means--
· a director or secretary of the corporation; or
· a person--
· who makes, or participates in making, decisions
that affect the whole, or a substantial part, of the
business of the corporation; or
· who has the capacity to affect significantly the
corporation's financial standing; or
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· in accordance with whose instructions or wishes
the directors of the corporation are accustomed
to act (excluding advice given by the person in
the proper performance of functions attaching to
the person's professional capacity or their
business relationship with the directors or the
corporation); or
· a receiver, or receiver and manager, of the property of
the corporation; or
· an administrator of the corporation; or
· an administrator of a deed of company arrangement
executed by the corporation; or
· a liquidator of the corporation; or
· a trustee or other person administering a compromise or
arrangement made between the corporation and
someone else.
Officer of an entity that is neither an individual nor a
corporation means--
· a partner in the partnership if the entity is a partnership;
or
· an office holder of the unincorporated association if the
entity is an unincorporated association; or
· a person--
· who makes, or participates in making, decisions
that affect the whole, or a substantial part, of the
business of the entity; or
· who has the capacity to affect significantly the
entity's financial standing.
The term is specifically defined in the Bill rather than adopting
the Transport (Compliance and Miscellaneous) Act 1983
format which is to define officer by reference to Victoria's rail
safety legislation which then refers to the Corporations Act of
the Commonwealth.
21
Passenger transport company
This definition, which is contained in the Transport
(Compliance and Miscellaneous) Act 1983, is adopted in the
Bill. It means--
· V/Line Corporation; or
· a train operator; or
· a tram operator; or
· a person or body specified in an Order under
section 2(2A) of the Transport (Compliance
and Miscellaneous) Act, subject to any terms and
conditions specified in that Order.
Person
Person is defined to include a body corporate, unincorporated
body or association, and a partnership in addition to a natural
person. The term is specifically defined in the Bill rather than
by reference to Victoria's rail safety legislation, as occurs in the
Transport (Compliance and Miscellaneous) Act 1983.
Police officer
The Bill provides that police officer means a member of the
police force within the meaning of the Police Regulation Act
1958.
The Police Regulation Act 1958 will be replaced by the
Victoria Police Act 2013. When the Bill and the Victoria
Police Act both commence, the reference in the Bill to a
member of the police force within the meaning of the Police
Regulation Act will be amended to refer to a police officer
under the Victoria Police Act. This is provided for in
clause 159 of the Bill.
Clause 159 will be proclaimed to commence along with the
substantive parts of the Bill if the Police Regulation Act has
commenced operation at that time. If the substantive provisions
in the Bill commence before the Police Regulation Act
commences operation, clause 160 will be proclaimed to
commence at the time the Police Regulation Act commences
operation.
22
Private siding
Private siding is given the same meaning as in the Rail Safety
(Local Operations) Act 2006. That is, a siding that is managed
by a person other than a person who controls the rail
infrastructure that the siding connects with, or has access to, but
does not include--
· a marshalling yard; or
· a siding used mainly to enable rolling stock to pass
other rolling stock that is on the same track; or
· a passenger terminal; or
· a siding of a kind that regulations made under the Rail
Safety (Local Operations) Act state is not a private
siding.
Prohibition notice
This means a prohibition notice served under section 60 of the
Bill.
Public transport premises
The Bill re-enacts this definition, which is contained in the
Transport (Compliance and Miscellaneous) Act 1983.
It means railway premises or bus premises (as defined in the
Bill).
Public transport safety matter
The Bill incorporates this definition, which is contained in the
Transport Integration Act 2010, and means--
· an incident involving rolling stock, rail infrastructure,
a bus or any infrastructure used in bus operations that
resulted in, or that had the potential to result in, the
death of, or injury to, any person, or in damage to any
property or equipment, and includes, for example--
· any derailment of any rolling stock;
· any collision involving any bus or rolling stock;
· any incident resulting from the construction,
maintenance or operation of a railway or from
the operation of a bus;
23
· any failure of any part of rail infrastructure or
any rolling stock or any part of any rolling stock;
· any failure of any bus or part of a bus or of any
equipment on a bus or of anything used in bus
operations;
· any failure or breach of any practice or procedure
involving rolling stock or a bus;
· any fire, explosion or other similar occurrence
involving rolling stock or a bus;
· any incident in which there is evidence of
systematic safety deficiencies;
· any other incident or any state of affairs involving, or in
relation to, rolling stock, rail infrastructure, buses or any
infrastructure used in bus operations that is specified by
regulations made under the Transport Integration Act
for the purposes of this definition.
Rail infrastructure
The Bill adopts the meaning that rail infrastructure has in the
Rail Safety (Local Operations) Act 2006, which is different
to its meaning in the Rail Safety Act 2006. The definition
contained in the Transport (Compliance and Miscellaneous)
Act 1983 is given the same meaning as in the Rail Safety Act
2006. The definition in the Bill is therefore different to that in
the Transport (Compliance and Miscellaneous) Act.
For the Bill, rail infrastructure means the facilities that are
necessary to enable a railway to operate and includes--
· railway tracks and associated railway track structures;
and
· service roads, signalling systems, communications
systems, rolling stock control systems, train control
systems and data management systems; and
· notices and signs; and
· electrical power supply and electric traction systems;
and
· associated buildings, workshops, depots and yards; and
24
· plant, machinery and equipment; and
· tram stops and tram stations;
but does not include--
· rolling stock; or
· any facility, or facility of a class, that is prescribed by
regulations not to be rail infrastructure.
Rail infrastructure manager
The Bill adopts this definition from the Rail Safety (Local
Operations) Act 2006. It means a person who controls rail
infrastructure.
Rail safety worker
The Bill re-enacts this definition, which is contained in the
Transport (Compliance and Miscellaneous) Act 1983.
The expression has the same meaning as in the Rail Safety
(Local Operations) Act 2006 and means a person who has
carried out, is carrying out or is about to carry out, rail safety
work and includes--
· a person who is employed or engaged by a rail transport
operator to carry out rail safety work; or
· a person engaged by a person (other than by a rail
transport operator) to carry out rail safety work; or
· a trainee; or
· a volunteer.
Rail transport operator
The expression has the same meaning as in the Rail Safety
(Local Operations) Act 2006 and means--
· a rail infrastructure manager; or
· a rolling stock operator; or
· a person who is both a rail infrastructure manager and
a rolling stock operator.
25
Railway
The Bill adopts the definition of railway in the Rail Safety
(Local Operations) Act 2006.
Railway is defined to mean a guided system designed for the
movement of rolling stock that has the capability of transporting
passengers or freight or both on a railway track with a railway
track gauge of 600 millimetres or more, together with its rail
infrastructure, and includes--
· a heavy railway;
· a light railway;
· a monorail railway;
· an inclined railway;
· a tramway;
· a railway within a marshalling yard or passenger or
freight terminal;
· a private siding;
· a railway that is prescribed by regulations made under
the Rail Safety (Local Operations) Act to be a railway.
Railway operations
The Bill adopts the definition of railway operations in the Rail
Safety (Local Operations) Act 2006.
Railway operations means any of the following--
· the construction of a railway, railway tracks and
associated railway track structures;
· the construction of rolling stock;
· the design, management, commissioning, maintenance,
repair, modification, installation, operation or
decommissioning of rail infrastructure;
· the design, commissioning, use, modification,
maintenance, repair or decommissioning of rolling
stock;
26
· the operation or movement, or causing the operation or
movement by any means, of rolling stock on a railway
(including for the purposes of construction or
restoration of rail infrastructure);
· the movement, or causing the movement, of rolling
stock for the purposes of operating a railway service;
· the scheduling, control and monitoring of rolling stock
being operated or moved on rail infrastructure.
This follows the definition of railway operations in the rail
safety national law.
Railway premises
The Bill adopts the definition of railway premises in the Rail
Safety (Local Operations) Act 2006, omitting paragraph (f).
Paragraph (f) in the definition in the Rail Safety (Local
Operations) Act 2006 relates to rolling stock or other vehicles
associated with railway operations. Rolling stock is dealt with
separately to railway premises in the Bill, which is why
paragraph (f) is omitted from the definition of railway premises.
The effect is that railway premises means--
· land (including any premises on the land) on or in which
is situated rail infrastructure; or
· land (including any premises on the land) on or in which
is situated any over-track or under-track structure or part
of an over-track or under-track structure; or
· workshops, freight depots or maintenance depots used
in connection with the carrying out of railway
operations; or
· land (including any premises on land) on or in which
documents or records required for, or relating to, the
accreditation of an accredited rail transport operator are
kept; or
· premises including an office, building or housing used
in connection with the carrying out of railway
operations; or
· any other rail workplace.
27
Registered bus operator
The Bill adopts the definition of registered bus operator in the
Bus Safety Act 2009, which means an operator registered to
operate a bus service under section 22 of that Act.
Residential premises
Residential premises means premises, rolling stock, a bus or
vessel or part of premises, rolling stock, a bus or a vessel that is
used predominantly for residential purposes.
Road vehicle
The Bill defines road vehicle as any vehicle propelled by any
form of motive power except a bus or rolling stock.
Rolling stock
The Bill adopts the definition of rolling stock in the Rail Safety
(Local Operations) Act 2006. That is, a vehicle that operates
on or uses a railway, and includes a locomotive, carriage, rail
car, rail motor, light rail vehicle, train, tram, light inspection
vehicle, self propelled infrastructure maintenance vehicle,
trolley, wagon or monorail vehicle but does not include a
vehicle designed to operate both on and off a railway when the
vehicle is not operating on a railway.
Safety Director
The Bill defines the Director, Transport Safety (whose office is
established under the Transport Integration Act 2010) as the
Safety Director for the purpose of the Bill.
Safety work infringement
This expression is contained in section 208 of the Transport
(Compliance and Miscellaneous) Act 1983 and relates to an
offence committed by a rail safety worker who has the presence
of alcohol in his or her breath. The rail safety worker may be
served a safety work infringement.
Safety work infringements may, subject to certain requirements,
lead to a conviction without a finding of guilt in respect of the
offence by a court.
The definition covers offences in respect of both national and
locally regulated railways. The local and national rail safety
law offences (as applied and supplemented by the Rail Safety
28
National Law Application Act 2013) relate to the presence of
alcohol in a person's breath or blood of the amount specified in
the definition.
Safety work infringement means--
· an offence under section 76(1)(a) or 77(1)(a), (f) or (g)
of the Rail Safety (Local Operations) Act 2006 in
circumstances where--
· the concentration of alcohol in the blood or
breath of the rail safety worker is less than
0·015 grams per 100 millilitres of blood or
0·015 grams per 210 litres of exhaled air (as the
case requires); and
· the offence is a first offence having regard to the
provisions of section 74 of the Rail Safety
(Local Operations) Act 2006; or
· an offence against section 128(1) of the Rail Safety
National Law (Victoria) or section 77(1)(a), (f) or (g)
of the Rail Safety (Local Operations) Act 2006 (as it
forms part of the Rail Safety National Law
Application Act 2013 by operation of section 43 of that
Act) in circumstances where--
· the concentration of alcohol in the blood or
breath of the rail safety worker is less than
0·015 grams per 100 millilitres of blood or
0·015 grams per 210 litres of exhaled air (as the
case requires); and
· the offence is a first offence having regard to the
provisions of section 74 of the Rail Safety
(Local Operations) Act 2006 (as it forms part of
the Rail Safety National Law Application Act
2013 by operation of section 43 of that Act).
Searchable premises
This means public transport premises or marine premises or
other premises entered by a transport safety officer under Part 2
of the Bill.
29
Searchable rolling stock, bus or vessel
This means rolling stock, bus or vessel entered or boarded by a
transport safety officer under Part 2 of the Bill.
Transport safety infringement
This means an offence against a transport safety infringement
law other than a safety work infringement that is prescribed to
be a transport safety infringement for the purposes of the Bill.
Transport safety infringement law
The Bill adopts the definition in the Transport (Compliance
and Miscellaneous) Act 1983, modified to extend to registered
bus operators. The expression means--
· in the case of an accredited bus operator or a registered
bus operator--a provision of the Bus Safety Act 2009
or the regulations made under that Act;
· in the case of an accredited rail transport operator--
a provision of the Rail Safety (Local Operations) Act
2006 or the regulations made under that Act;
· a marine or port law.
The modification is important because it extends the tools
available to the regulator where a person who is not required to
become accredited, but who is required to register as a
registered bus operator, fails to do so. In appropriate
circumstances, serving an infringement notice and/or an
improvement notice (for example) may be a response preferred
by the regulator to prosecution or other remedies. The change
in definition facilitates the use of these alternatives to
prosecution in respect of persons who are, or should be,
registered bus operators.
Transport safety officer
This means a person appointed under section 116 of the Bill.
Transport safety or infrastructure law
This is derived from the definition of relevant transport safety
law contained in section 2 of the Transport (Compliance and
Miscellaneous) Act 1983. It means--
· the Bus Safety Act 2009 or any regulations made under
that Act;
30
· the Marine (Drug, Alcohol and Pollution Control)
Act 1988 or any regulations made under that Act;
· the Marine Safety Act 2010 or any regulations made
under that Act;
· the Port Management Act 1995 or any regulations
made under that Act;
· the Rail Safety (Local Operations) Act 2006 or any
regulations made under that Act;
· section 93A, 93B or 93C of the Electricity Industry
Act 2000;
· section 149A, 149B or 149C of the Gas Industry Act
2001;
· Division 4A of Part 4 of the Road Management Act
2004;
· the Transport Integration Act 2010 or any regulations
made under that Act;
· section 137A, 137B or 137C of the Water Act 1989;
· section 23 of the Crimes Act 1958 but only in relation
to conduct engaged in by a person on or at, or in the
immediate vicinity of, rail infrastructure or rolling stock
that places or may place another person in danger of
serious injury.
Transport safety undertaking
This means an undertaking given under clause 83 of the Bill.
Transport system
The Bill adopts the meaning given to transport system in the
Transport Integration Act 2010, which means--
all the components which make up the system for the movement
of persons and goods including--
· the physical components such as--
· transport networks, paths and ways including
roads, railways, shipping lanes, waterways, air
flight paths, crossings, cycling paths and
footpaths;
31
· facilities for accessing, disembarking, unloading
and the interchange of, persons and goods and
for the storage of freight and vehicles, including
train stations, tram stops, bus stops, inter-modal
transfer facilities, freight yards, port facilities,
airports and taxi stands, depots and networks;
· motor vehicles, taxi-cabs, hire cars, trains, trams,
buses, ferries, boats, ships, aeroplanes, motor
cycles, bicycles and mobility aids;
· control, communications and location systems
and technology, information, and other systems
and equipment; and
· the management components such as--
· strategic planning including plans for building
the network, acquiring vehicles, reserving land
for future development and business continuity;
· operations planning including business plans,
corporate plans, operations plans and
contingency plans;
· operational matters required to operate the
transport system including schedules, timetables
and ticketing systems;
· administration, maintenance and information
management matters;
· research and marketing including advertising and
promotions;
· legislative and regulatory systems such as
registration, licensing and accreditation; and
· the labour components including all the persons
involved in planning, policy development, operations
and regulating and managing the physical and
management components of the transport system; and
· the services components including passenger, freight
and any other transport services to move persons and
goods.
32
Utility
The Bill adopts the definition in the Transport (Compliance
and Miscellaneous) Act 1983, which means--
· an entity (whether publicly or privately owned) which
provides, or intends to provide, water, sewerage,
drainage, gas, electricity, telephone, telecommunication
or other like services under the authority of an Act of
Victoria or the Commonwealth; or
· a road authority within the meaning of the Road
Management Act 2004.
Vehicle
The Bill defines vehicle to mean a conveyance that is designed
to be propelled or drawn by any means, whether or not capable
of being so propelled or drawn. This may be distinguished from
a road vehicle, which excludes a bus and rolling stock.
Vessel
Vessel is given the same meaning it has in the Marine Safety
Act 2010, which is any kind of vessel that is used, or capable of
being used, in navigation by water, however propelled or
moved, and includes--
· a barge, lighter, floating restaurant or other floating
vessel; and
· an air-cushion vehicle, or other similar craft, that is used
in navigation by water; and
· any aeroplane that is designed for and capable of being
waterborne, for so long as that aeroplane is waterborne;
and
· a life boat; and
· a thing being towed by a vessel; and
· a thing prescribed to be a vessel; and
· an off-shore industry mobile unit within the meaning of
the Commonwealth Navigation Act--
but does not include a facility within the meaning of Schedule 3
to the Offshore Petroleum and Greenhouse Gas Storage Act
2010.
33
Vessel operations
Vessel operations is given the same meaning it has in the
Marine Safety Act 2010, which is--
· operating a vessel; or
· actions of a pilot when the pilot has conduct of a vessel,
including the navigation of the vessel.
Clause 4 provides that the Bill is transport legislation within the meaning
of the Transport Integration Act 2010.
This ensures that a transport body within the meaning of that
Act must have regard to the transport system objectives in the
Transport Integration Act 2010 when exercising its powers
and performing functions under the Bill as it is transport
legislation.
This is consistent with the application of the Transport
Integration Act 2010 to all other transport bodies in Victoria
which operate under transport legislation.
Transport body is defined in section 3 of the Transport
Integration Act. Relevant transport bodies in the Bill are the
Safety Director, the Chief Investigator, Transport Safety, the
Minister for Public Transport, Ministers responsible for other
transport legislation in respect of the transport system as defined
in the Transport Integration Act, the Secretary of the
Department of Transport, Planning and Local Infrastructure,
and the Department of Transport, Planning and Local
Infrastructure.
Division 2 of Part 2 of the Transport Integration Act sets out the
transport system objectives. These are--
· social and economic inclusion; and
· economic prosperity; and
· environmental sustainability; and
· integration of transport and land use; and
· efficiency, coordination and reliability; and
· safety and health and wellbeing.
34
Division 3 of Part 2 of the Transport Integration Act sets out
decision making principles. These are--
· the principle of integrated decision making; and
· the principle of triple bottom line assessment
(economic, social and environmental costs and
benefits); and
· the principle of equity; and
· the principle of the transport system user perspective;
and
· the precautionary principle; and
· the principle of stakeholder engagement and community
participation; and
· the principle of transparency.
Clause 5 provides that the Bill binds the Crown in the right of Victoria,
and to the extent the legislative power of the Parliament permits
the Crown in all its other capacities.
PART 2--COMPLIANCE AND INVESTIGATIVE POWERS
Part 2 of the Bill confers a range of powers for compliance and investigative
purposes, principally on transport safety officers. The powers also apply to
the Safety Director who has the powers and functions of a transport safety
officer (this is provided by clause 115 of the Bill).
Part 2 is also applied in modified form for the purposes of the public
transport and marine safety transport investigation scheme contained in
Part V of the Transport (Compliance and Miscellaneous) Act 1983, so
that the powers also apply to the Chief Investigator, Transport Safety
(see clause 139).
Part 2 specifies conditions and restrictions on the exercise of these powers.
The powers include powers of entry into certain premises, rolling stock or
buses or boarding certain vessels (Division 1), powers exercisable upon such
entry or boarding (Division 2), powers relating to the issue and execution of
search warrants (Division 3), other related investigatory powers (Division 4)
and directions powers (Division 6).
Provision is also made for minimising damage and for compensation relating
to the exercise of powers (Division 5), and for other matters including
limitations on the use of those powers (Division 7).
35
Key terms used in this Part, such as "transport safety officer" and
"compliance and investigative purposes", are defined in clause 3.
Division 1--Entry and boarding
This Division empowers a transport safety officer, without warrant, to enter
premises that the officer reasonably suspects are marine premises or public
transport premises, or to enter rolling stock or a bus or to board a vessel while
that vehicle or vessel is in use.
The power of entry may only be exercised for compliance and investigative
purposes. This requirement circumscribes the exercise of powers under
Part 2.
The Bill also sets out the requirements to give notice of entry or boarding.
The powers of entry in this Division are not exercisable in respect of any part
of a place that is residential premises, except under a search warrant or in the
limited circumstances set out in clause 46.
Clause 6 authorises a transport safety officer, for compliance and
investigative purposes, to enter premises which the officer
reasonably suspects are public transport premises or marine
premises, or to enter or board rolling stock, a bus or vessel
while it is in use.
The clause is based on section 143 of the rail safety national
law, extended to cover bus and marine safety. However,
reference to the reason for entry or boarding (for compliance
and investigative purposes) is made. Similar powers are
contained in section 228Z of the Transport (Compliance and
Miscellaneous) Act 1983.
Also, provision is made for notice to be left if an entry or
boarding is made without the presence of a person with control
or management of the premises, vehicle or vessel.
If the officer enters premises which are not public transport
premises or marine premises, the officer must leave the place
immediately.
An officer may enter a place that adjoins public transport
premises or marine premises if entry is urgently required to
deal with a marine incident or a public transport accident.
This provision must be read with clause 46, which imposes
restrictions on entry to residential premises.
36
An entry or boarding may be made with or without the consent
of the person with control or management of the place, rolling
stock, bus or vessel.
If the owner or occupier of the public transport premises or
marine premises or adjoining premises, or the person in control
or with management of the rolling stock, bus or vessel is not
present, the officer must leave a notice containing details set out
in clause 6(5), unless entry is authorised by a search warrant.
(Powers of entry under warrant are set out in Division 3 of
Part 2).
The notice must contain--
· the time of entry and departure; and
· the purpose of entry; and
· a description of things done while on the premises,
rolling stock, but or vessel; and
· the procedure for contacting the Safety Director for
further details of the entry or boarding.
Separate provisions apply where entry or boarding is authorised
by search warrant.
Clause 7 sets out requirements for notice to be given of entry into a place,
rolling stock or bus or boarding of a vessel under clause 6.
The clause is based on section 144 of the rail safety national
law.
Prior notice is not required.
However, as soon as practicable after entry or boarding, a
transport safety officer must take all reasonable steps to
notify--
· in the case of entry into a premises, the person with
control or management of the premises entered; or
· in the case of entry to rolling stock or a bus, the operator
and driver of the rolling stock or bus; or
· in the case of boarding a vessel, the master of the vessel.
An officer is not required to notify a person if to do so would
defeat the purpose of the entry or boarding, or would cause
unreasonable delay.
37
Division 2--Powers on entry and boarding
This Division sets out the powers of a transport safety officer who enters a
place, rolling stock or a bus, or who boards vessel under clause 6.
The power of entry may only be exercised for compliance and investigative
purposes. This requirement circumscribes the exercise of powers under
Division 2 of the Bill.
Clause 8 authorises a transport safety officer who enters public transport
premises or marine premises, rolling stock or a bus or who
boards a vessel under clause 6 to do any of a number of
specified things at those premises or on that rolling stock, bus or
vessel.
The clause is based on section 145 of the rail safety national
law, extended to cover bus and marine safety, drawing also on
sections 228ZB and 228ZBA(2) of the Transport (Compliance
and Miscellaneous) Act 1983.
Some changes are made. Reference is made in subclause (1)(a)
to searching, and, in subclause (1)(c) to copying. Copying may
be preferred to seizing a document and may be a less invasive
and more efficient way to obtain evidentiary material. Also,
reference is made in subclause (1)(e) to examining
infrastructure, rather than the structure, which has been opened
or entered.
Direction powers contained in section 145 of the rail safety
national law are separately provided for in the Bill.
The provision also contains requirements to give reasonable
help (explained below). The reasonable help requirement is
adapted so that it covers matters relevant to buses and vessels as
well as to rolling stock and premises.
Under clauses 8(1)(a) to (h), (k) and (m), the specified things a
transport safety officer may do on entry or boarding include--
· searching, inspecting and examining the premises,
rolling stock, bus or vessel; and
· making inquiries; and
· inspecting, examining and copying things, including a
document; and
38
· bringing and using any equipment or materials that may
be required. For example, a ladder, portable storage
device such as a flash drive colloquially known as a
memory stick, document scanner or digital camera; and
· entering or opening for examination rail infrastructure,
a road vehicle or other thing at railway premises, or on
rolling stock, a bus, vessel or other thing at the railway
premises or on the rolling stock, bus or vessel; and
· reasonable force may be used for the purpose of
entering or opening premises or things for examination
(clause 47 provides that powers conferred under the Bill
may not be exercised unless the officer uses no more
force than is reasonably necessary to enter or board, or
to do the thing for which entry or boarding is effected);
and
· taking measurements, making surveys and taking levels;
for those purposes, an officer may dig trenches, break
up soil and set up posts, stakes or markers; and
· conducting tests and making sketches or recordings
(including photographs or audio, video, digital or other
recordings); and
· marking, tagging or otherwise identifying road vehicles,
rolling stock, buses, vessels or things at the premises or
on the rolling stock, bus or vessel; and
· taking and removing samples of any substance for
analysis, testing or examination without paying for the
sample.
The officer is also given specific power in clause 8(1)(i) to seize
any thing including a document at the premises or in a road
vehicle at the premises, or on rolling stock, a bus or vessel.
This power may be exercised if the officer reasonably believes
that the thing is evidence of an offence against a transport safety
or infrastructure law. In some cases, exercising the power to
copy a document may be preferred.
Under clause 8(1)(j), the officer may also seize any thing at the
premises or on the rolling stock, bus or vessel if the officer
believes, on reasonable grounds, that it is necessary to seize the
thing in order to prevent its concealment, loss or destruction.
39
These seizure powers are additional to other powers of seizure
in Part 2 of the Bill.
Under clause 8(1)(l), the officer may require persons at the
premises, a rail safety worker at railway premises or on rolling
stock, the driver of the bus or the master or a crew member of
the vessel to give the officer reasonable help to exercise the
officer's powers under clauses 8(1)(a) to (k).
Under clause 8(3), a failure to comply with a requirement to
give reasonable help, without reasonable excuse, is an offence.
Clause 8(4) provides that "reasonable help" includes--
· assistance to enable the officer to find and gain access
to electronically stored material and information.
For example, requiring a person to use or provide
password, or to assist the officer in accessing and
retrieving data from CCTV recordings by unlocking a
secure facility in which CCTV recordings are monitored
and stored, helping the officer operate CCTV equipment
to view data and, if necessary, helping the officer to
extract or preserve the CCTV data;
· unloading rolling stock;
· running the engine of a locomotive or bus, operating a
vessel or driving a train, tram or bus;
· assistance to enable the officer to enter rail
infrastructure or open rolling stock.
Reasonable help would include such matters as allowing
something to be examined, moving a train, tram, bus or vessel,
and indicating where things the officer wishes to inspect for
compliance and investigative purposes are located. Reasonable
help would also include such matters as providing a key for, or
demonstrating certain features of, a locomotive, bus or vessel.
It might also include providing facilities to the officer to copy or
scan a document.
Clause 8(1)(m) also provides that an officer may exercise any
power that is reasonably necessary to be exercised for the
purposes of a transport safety or infrastructure law.
Clause 8(2) provides that a film, photograph, video or digital
recording or other image is not inadmissible as evidence by
reason only of the fact it includes the likeness of one or more
40
persons if the capturing of that likeness is incidental to the
taking of the film, photograph, video or digital recording or
other image.
Clause 9 empowers a transport safety officer who enters public transport
premises, rolling stock or a bus under clause 6 to give a
direction to a person at the premises or on the rolling stock or a
bus that relates to the stopping or movement of any road vehicle
at the premises or the rolling stock or bus.
The clause is similar to the power contained in section 145(1)(e)
of the rail safety national law.
A failure to comply with such a direction, without reasonable
excuse, is an offence.
Clause 10 empowers a transport safety officer who, under clause 6, enters
marine premises or who boards or proposes to board a vessel to
give certain directions in relation to a vessel.
The provision is drawn from section 228ZBA of the Transport
(Compliance and Miscellaneous) Act 1983.
The officer may direct the master or operator of a vessel to do
anything necessary to enable the effective and safe detention of
the vessel. For example, if the vessel is a trailerable vessel and
the master has a trailer, to take the vessel out of the water and
secure it on the trailer.
The officer may also require the master to supply information,
answer questions or produce documents in order to determine
whether the vessel is a domestic commercial vessel.
As explained, transport safety officers may also exercise powers
delegated by the Australian Maritime Safety Authority to the
Safety Director in respect of domestic commercial vessels
regulated by the Commonwealth.
This is important because officers must be able to ascertain
which scheme the vessel is subject to for a particular purpose.
In many cases, a vessel could be subject to both schemes at the
same time (for example, a fishing or tourist vessel is required to
comply with the Commonwealth scheme in respect of the
National Standard for Commercial Vessels and Victorian laws
in respect of waterway rules).
41
The officer may, for compliance and investigative purposes,
require the master or operator of a vessel to stop the vessel, to
manoeuvre the vessel in a specified manner or to a specified
place such as a berth, to secure the vessel in a specified manner
and to produce, for inspection, equipment the officer specifies
in the direction.
A direction to produce equipment might include a requirement
to produce floatation devices or other equipment required to be
kept on a vessel.
The ability to give a direction when an officer proposes to board
a vessel means that a direction may be made from the water, as
well as on a vessel after boarding.
A failure to comply with such a direction, without reasonable
excuse, is an offence.
Clause 11 provides that a transport safety officer who boards a vessel
under clause 6 may detain the vessel for so long as is necessary
(but no longer than 48 hours) for the purpose of exercising a
power under clause 8.
The provision is drawn from section 228ZBA of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 12 allows the Magistrates' Court, on application by a transport
safety officer, to extend the period for detention of a vessel
beyond the period of 48 hours set out in clause 11, or such other
period extended by the Court.
The provision is drawn from section 228ZW of the Transport
(Compliance and Miscellaneous) Act 1983, but is clarified to
confirm that a period of detention may be extended if an
application to extend is made before the initial detention expires
or within a further period of detention authorised by the Court.
That is, more than one application may be made provided that it
is made within the period during which the vessel is lawfully
detained.
The Court may extend the period if it is satisfied that the
continued detention of the vessel is necessary for the purposes
of an investigation into whether an offence has been committed
against a transport safety or infrastructure law, to enable
evidence of such an offence to be obtained for the purposes of a
42
prosecution, or because the vessel is, or is likely to be, required
for the purposes of an investigation into a marine safety matter.
The Court may adjourn the application to enable notice of the
application to be given to any person: for example, the owner or
master of the vessel.
Clause 13 allows for an assistant to accompany a transport safety officer
on an entry or boarding under Part 2 of the Bill if the officer
considers the assistance necessary. The entry or boarding may
be to public transport premises, marine premises or another
place, to rolling stock or a bus, or a vessel. The assistant may
be an interpreter.
This provision is drawn from section 146 of the rail safety
national law. Sections 228ZB(2) and 228ZBA(2)(i) of the
Transport (Compliance and Miscellaneous) Act 1983 contain
similar provisions.
The assistant may do such things as the officer reasonably
requires to assist the officer in the exercise of his or her powers
under the Bill or a transport safety or infrastructure law.
Anything done lawfully by the assistant is taken to have been
done by the officer.
Clause 14 supplements clause 8. The clause provides for the use of
electronic equipment (such as a laptop computer or portable
disk player) to access information on a disk, tape or device
(for example, a computer, hard drive, satellite navigation unit,
memory stick, EFTPOS machine, or camera memory card)
found during a search under Part 2 of the Bill.
This provision is drawn from section 147 of the rail safety
national law. However, information is defined and is given the
same meaning as in the Electronic Transactions (Victoria)
Act 2000. That is, information in the form of data, text, images
or sound.
The provision applies if a thing found at searchable premises
or on a searchable rolling stock, bus or vessel is, or includes, a
disk, tape or other devise for the storage, receipt or transmission
of information, or if equipment found in or on those places or
things may be used with such items.
43
A transport safety officer or assistant may use equipment at the
premises or on the bus or vessel in various ways: for example,
to generate a document, or copy data to another disk or other
storage device.
The officer may seize documents so produced and remove a
storage device in which the information has been stored.
If it is not practicable to put the information in documentary
form and seize the document, or copy the information to a disk,
tape or other storage device, the officer may seize the
equipment that enables the information to be accessed.
The officer or assistant may only carry out these actions if he or
she believes on reasonable grounds that the disk, tape or other
device contains information which is relevant to determining
whether the Bill or a transport safety or infrastructure law has
been contravened, and that the operation or seizure can be
carried out without damage to the equipment.
Clause 15 supplements clause 8 and is drawn from section 148 of the rail
safety national law. Similar powers are contained in section
228ZF of the Transport (Compliance and Miscellaneous) Act
1983.
The clause authorises a transport safety officer who is
exercising a power under Part 2 of the Bill to bring to
searchable premises, or a searchable rolling stock, bus or vessel,
equipment reasonably necessary for the examination or
processing of a things found there, to determine whether they
are things that may be seized.
Clause 15(2) also authorises an officer or an assistant to operate
equipment already at the searchable premises or on the
searchable rolling stock, bus or vessel for the examination or
processing of a things found there, if the officer or assistant
believes on reasonable grounds that the equipment is suitable
and the examination or processing can be carried out without
damage to the equipment.
Clause 16 permits an authorised officer (that is, a transport safety officer
or a police officer) to secure the perimeter of any site at any
place, or restrict access to rolling stock, a bus or vessel for the
purpose of protecting evidence that might be relevant for
compliance and investigative purposes.
44
The clause is drawn from section 149 of the rail safety national
law, but is extended so that an officer may restrict access to
rolling stock and other things. Section 228ZC of the Transport
(Compliance and Miscellaneous) Act 1983 covers similar
ground.
An authorised officer may secure the perimeter of a site, or
restrict access to rolling stock, a bus or vessel by whatever
means the office considers appropriate. This may include by
securing an area with tape in conjunction with Victoria Police
or the Chief Investigator, Transport Safety or both.
It is an offence to enter or remain at a site so secured, or to
board or remain in rolling stock, a bus or vessel to which access
is so restricted, without the permission of an authorised officer,
except in the circumstances set out in clause 16(4).
The exceptions under clause 16(4) are to ensure the safety
of persons, to remove deceased persons or animals, to move a
road vehicle or its wreckage to a safe place, or to protect the
environment from significant damage or pollution.
If a person asks an authorised officer for permission to enter or
remain at a site or to enter or board rolling stock, a bus or
vessel, the officer must not unreasonably withhold permission.
Clause 17 empowers a transport safety officer to give directions to a
person in control of specified things, or a specified class of
things, that they must not be removed or interfered with except
with the permission of the officer.
This clause is derived from section 228ZO of the Transport
(Compliance and Miscellaneous) Act 1983.
In control is defined as having, or reasonably appearing to
have, authority to exercise control over the thing or class of
things.
The direction may be given for the purpose of protecting
evidence that might be relevant for compliance and
investigative purposes.
A failure or refusal to comply with a direction is an offence,
unless the conduct was necessary for one of the purposes set out
in clause 17(3).
45
Those purposes are to ensure the safety of persons, animals or
property, to move deceased persons or animals, to move rolling
stock or a bus or wreckage of those things to a safe place, or to
protect the environment from significant damage or pollution.
If a person asks an authorised officer for permission to remove
or interfere with a thing which is the subject of a direction, the
officer must not unreasonably withhold permission.
Division 3--Search warrants
This Division relates to the issue and execution of search warrants in relation
to offences against transport safety or infrastructure laws.
These provisions are based on Subdivision 2 of Division 5 of Part 4 of the
rail safety national law, but Victorian search warrant procedures and
processes are adopted. Subdivision 5 of Division 4B of Part VII of the
Transport (Compliance and Miscellaneous) Act 1983 contains broadly
similar search warrant powers for transport safety officers.
Clause 18 empowers a magistrate to issue a search warrant, on application
by a transport safety officer, for a place, rolling stock, a bus or
vessel.
The magistrate may issue the warrant only if satisfied that there
are reasonable grounds for suspecting that there is a particular
thing or activity that may provide evidence of an offence
against the Bill or a transport safety or infrastructure law, and
that thing or activity is, or may be within the next 72 hours, at
the place or in the rolling stock or on the bus or vessel.
The warrant must state the matters set out in clause 18(4),
including that a stated transport safety officer may, with
necessary and reasonable help and force, enter the place, rolling
stock or bus or board the vessel for which the warrant has been
issued and exercise the powers of the officer.
It must state the offence for which the warrant is sought, the
evidence that may be seized, the hours of entry or boarding and
the expiry date of the warrant (which must be within 7 days
after its issue). The warrant must not authorise a transport
safety officer to arrest a person.
46
The warrant must be issued in accordance with the
Magistrates' Court Act 1989 and in the form set out in the
rules of court under that Act, and (subject to Division 3 of
Part 2 of the Bill) the rules to be observed with respect to search
warrants in that Act apply to warrants under this clause.
For example, under section 75(2) of the Magistrates' Court Act,
an application for a search warrant must be supported by
evidence on oath or by affidavit. That requirement is
complemented by clause 18(2) of the Bill, which allows a
magistrate to require further information, or information in a
particular way (such as in a statutory declaration), before
considering the application.
Clause 19 provides that, in certain circumstances, a search warrant
authorises the transport safety officer who executes the warrant
also to seize a thing which is not of the kind described in the
warrant. Those circumstances are where the officer believes on
reasonable grounds that--
· the thing is of a kind which could have been included in
a warrant issued under Part 2 of the Bill, or which will
afford evidence about the commission of an offence
against the Bill or transport safety or infrastructure law;
and
· it is necessary to seize the thing in order to prevent its
use in the commission of such an offence, or its
concealment, loss or destruction.
This power is additional to the powers of seizure set out in other
provisions of Part 2 of the Bill, such as clauses 8(1)(i), (j)
and (k), 14(2) and 27.
Clause 20 provides that, before executing a search warrant, the transport
safety officer named in the warrant or an assistant must
announce that he or she is authorised by the warrant to enter or
board, and give any person there an opportunity to allow that
entry or boarding.
This requirement does not apply if the officer or assistant
believes on reasonable grounds that immediate entry or
boarding is needed to ensure the safety of any person or that the
effective execution of the warrant is not frustrated.
47
Clause 21 requires the transport safety officer executing a search warrant
to produce his or her identity card, and to give a copy of the
warrant, to a person who has, or appears to have, control or
management of the place, rolling stock, bus or vessel and who is
then present.
Division 4--Other related investigatory powers
This Division sets out various other related investigative powers of transport
safety officers and others.
Clause 22 empowers a transport safety officer who enters searchable
premises (that is, public transport premises or marine premises
or another place entered under Part 2 of the Bill) or boards a
searchable rolling stock, bus or vessel (that is, rolling stock, a
bus or a vessel entered or boarded under Part 2) to require a
person there to tell the officer who has custody of, or access to,
a document, device or thing or to require such a person to
produce that document, device or thing or to answer questions.
A failure to comply with such a requirement, without
reasonable excuse, is an offence.
Under section 38 of the Interpretation of Legislation Act
1984, "document" is widely defined so as to include, for
example, a device containing data in electronic form, a
photograph, a disc, tape soundtrack or other device in which
sounds or data other than visual images are embodied, and a
film, microfilm, negative tape or other device in which visual
images are embodied.
The requirement to produce a document, device or thing may be
to produce the document, device or thing while the officer is at
the premises or on the bus or vessel, or within a specified
period. The requirement must be made by written notice, unless
the circumstances require the officer to have immediate access
to the document, device or other thing.
If a person is required to answer questions, the interview must
be conducted in private if the officer considers it appropriate, or
if the person interviewed so requests. This requirement may be
invoked by the officer or by the person being interviewed
during the interview. This does not limit the operation of
clause 13 of the Bill (under which an officer may be
accompanied by an assistant), or prevent a representative of
the interviewee being present.
48
The provision is based on section 154 of the rail safety national
law.
Clause 23 abrogates the privilege against self-incrimination in relation to a
requirement to answer a question or provide information or a
document under Part 2 of the Bill (for example, under clause 8
or 22).
The provision is based on section 155 of the rail safety national
law. However (and similarly to the modifications made to the
rail safety national law by the Rail Safety National Law
Application Act 2013), the answer given, or information or
document provided, by a natural person, or any information or
document obtained as a direct result or an indirect consequence
of the answer, information or document, is not admissible as
evidence against that person in a criminal proceeding or
proceedings for the imposition of a civil penalty, other than a
proceeding arising out of the false or misleading nature of the
answer, information or document.
This provision provides a person required to answer questions
or produce documents with direct and derivative use immunity
in respect of the answers given or documents provided, and any
matters found as a consequence of the provision of the answer
or document.
This provides direct and derivative immunity in respect of the
information or other evidence provided or obtained as a result
of the use of the power.
The immunity extends to provide protections in respect of the
penalty privilege, which applies in proceedings for a civil
penalty. Civil penalties are pecuniary penalties which, are civil
in nature, do not constitute criminal offences and do not include
the possibility of imprisonment. A person subject to the
possibility of a civil penalty is not ordinarily obliged to provide
evidence against themselves.
Clause 23(3) provides that, despite clause 23(1) and (2), certain
information or documents are nevertheless admissible against a
person. This "carve-out" relates to any information, document
or item which is required to be kept under a transport safety or
infrastructure law. That is because the information, document
or item is required to be kept, and will be available, in any
event.
49
Clause 24 requires a transport safety officer to identify himself or herself
and provide specified warnings before requiring a person to
answer a question or provide information or a document under
Part 2 of the Bill. The provision is based on section 157 of the
rail safety national law.
If the officer fails to provide a warning to a natural person about
the effect of clause 24, the refusal of the person to answer a
question, or to provide information of a document, on the
grounds of self-incrimination does not constitute an offence.
This clause does not prevent an officer from obtaining and
using evidence given to the officer voluntarily. This is
important because, in most cases, regulated persons fully
cooperate with the regulator to better secure positive public
transport and marine safety outcomes.
Clause 25 empowers a transport safety officer to make copies of, or take
extracts from, a document given to the officer under a transport
safety or infrastructure law, or seized under Part 2 of the Bill,
and to keep the document (or copy) for the period that the
officer considers necessary. The provision is based on
section 157 of the rail safety national law.
Clause 26 provides for inspection of a document retained in custody by a
transport safety officer under Part 2 of the Bill. The provision
is based on section 157 of the rail safety national law.
The person who produced the document, its owner or a person
authorised by either of those persons may inspect or copy the
document at all reasonable times.
Clause 27 permits a transport safety officer to deal in various ways with
a thing seized under Part 2 of the Bill. The officer may move
the thing from the place it was seized, leave it at the place of
seizure but restrict access to it, or make any seized equipment
inoperable. This provision is drawn from section 228ZP of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 28 creates offences relating to tampering with seized things to
which access has been restricted or seized equipment which a
transport safety officer has made inoperable. If a person obtains
the officer's permission, it is not an offence. This provision is
drawn from section 228ZQ of the Transport (Compliance and
Miscellaneous) Act 1983.
50
Clause 29 empowers a transport safety officer to give directions to the
person in control of a thing to enable it to be seized under Part 2
of the Bill. (In control is defined in subclause (7) to mean
having, or reasonably appearing to a transport safety officer
as having, authority to exercise control over the thing).
This provision is drawn from section 159 of the rail safety
national law. A similar power is contained in section 228ZR of
the Transport (Compliance and Miscellaneous) Act 1983.
The directions may be to take the thing to a specified place
within a specified time, and, if necessary, to remain in control
of it at the specified place for a specified period. Such a
direction must usually be given in writing in a signed notice.
However, if it is not practicable to do so, the direction may be
given orally and confirmed by a signed written notice given to
the person as soon as is practicable.
A further direction may be given if it is necessary and
reasonable to do so.
A failure to comply with such a direction or further direction,
without reasonable excuse, is an offence. It is a reasonable
excuse if the direction was unreasonable.
The costs of complying with a direction or further direction
must be borne by the person in control of the thing.
Clause 30 empowers a transport safety officer to direct the person to
whom a direction has been given under clause 29(1) to return
the thing to the place from which it was taken. Failure to
comply with such a direction, without reasonable excuse, is
an offence. It is a reasonable excuse if the direction was
unreasonable. This provision is drawn from section 160 of
the rail safety national law. Similar power is contained in
section 228ZS of the Transport (Compliance and
Miscellaneous) Act 1983.
The cost of complying with such a direction must be borne by
the person.
Clause 31 requires a transport safety officer to give a receipt for a thing
seized under Part 2 of the Bill. The receipt must describe
generally the thing seized and its condition. The receipt must
be given to the person from whom the thing was seized or to the
owner.
51
This provision is drawn from section 161 of the rail safety
national law. This is similar to section 228ZT of the Transport
(Compliance and Miscellaneous) Act 1983.
If it is not practicable to do so, provision is made for leaving the
receipt in a conspicuous position and in a reasonably secure
way at the place from which the thing was seized or, if the thing
was seized from rolling stock, a bus or vessel, on that vehicle or
vessel.
This clause does not apply if it would be impracticable or
unreasonable to expect the officer to account for the thing,
given its condition, nature and value.
Clause 32 provides that a transport safety officer who seizes a document
or other thing that can readily be copied or a storage device
containing information that can readily be copied under Part 2
of the Bill must give a copy of the thing or information to the
owner or custodian of the document, thing or device as soon as
practicable after the seizure.
This requirement does not apply to a document, thing or device
moved under clause 27(a) or 29, or if the officer is unable to
discover the identity of the owner or custodian.
This provision is based on section 228ZU of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 33 is drawn from section 162 of the rail safety national law.
The clause provides for the forfeiture to the State of seized
things in certain limited circumstances.
The first two circumstances are where the Safety Director
cannot find the person entitled to the thing after making
reasonable inquiries or cannot return the thing after making
reasonable efforts.
The Safety Director is not, however, required to make inquiries
to find a person nor to make efforts to return a thing if it would
be unreasonable to make those inquiries or efforts.
The third circumstance is where the Safety Director reasonably
believes it is necessary to forfeit the thing to prevent it being
used to commit an offence against a transport safety or
infrastructure law.
52
In that case, the Safety Director must give written notice to the
person entitled to the thing, unless the person cannot be found
after reasonable inquiries or it is impracticable or would be
unreasonable to give the notice. The notice must state the
reasons for the decision and information about the right of
review under Part 5 of the Bill.
In deciding what inquiries and efforts are reasonable, or
whether it would be unreasonable to give notice about a thing,
regard must be had to the thing's nature, condition and value.
The Safety Director may recover in a court of competent
jurisdiction (that is, within any limit of the monetary
jurisdiction of the court) storage or disposal costs as a debt due
from the person entitled to the thing.
Person entitled to a thing is defined to mean the person from
whom it was seized, unless that person is not entitled to possess
the thing. If that is the case, person entitled means the owner of
the thing.
Clause 34 is drawn from section 163 of the rail safety national law.
Similar provisions are contained in section 228ZV of the
Transport (Compliance and Miscellaneous) Act 1983.
The clause provides for the return of a seized thing after the
end of 6 months since its seizure on application to the Safety
Director by a person entitled to it (as defined in clause 34(5) to
mean the person entitled to possess the thing or its owner).
The Safety Director must return the thing to the applicant unless
the Safety Director has reasonable ground to retain the thing.
Reasonable grounds are set out in clause 34(3) and are for the
purposes of an investigation into whether an offence has been
committed against the Bill or a relevant transport safety or
infrastructure law, to enable evidence of such an offence to be
obtained for the purposes of a prosecution, or because the thing
is required, or is likely to be required, for the purposes of an
investigation into a public transport safety matter or a rail safety
or bus safety audit.
The Safety Director may impose any conditions on the return of
a seized thing that the Safety Director considers appropriate to
eliminate or minimize any risk to safety: for example, that it
may not be used in certain ways or in certain places, that it may
only be used in certain ways or for certain purposes, or that it
53
may not be provided for use to another person unless that
person has appropriate systems and arrangements in place to
ensure the thing is used safely.
Clause 35 provides an owner of a seized thing with a right of access to it,
including a right to copy a document. The right is qualified: it
does not apply if it would be impracticable or unreasonable to
allow inspection or copying. The provision is based on
section 164 of the rail safety national law.
Division 5--Damage and compensation
This Division imposes requirements to minimise inconvenience, detriment
and damage in the exercise of powers under Part 2 of the Bill, and provides
for compensation for loss or damage from the exercise of a power in certain
circumstances. (The entitlement to compensation does not affect any other
right of action of the person.)
Clause 36 is based on section 165 of the rail safety national law, and
requires a transport safety officer, in the exercise of a power
under Part 2 of the Bill or under a transport safety or
infrastructure law, to take all reasonable steps to ensure that the
officer and any assistant cause as little inconvenience, detriment
and damage as practicable.
The provision complements clause 49 of the Bill, which
requires that in exercising powers under Part 2 of the Bill, an
officer must cause as little inconvenience as possible and must
not remain at any place or on any rolling stock, bus or vessel
any longer than is reasonably necessary.
Clause 37 is based on section 166 of the rail safety national law, and
requires a transport safety officer, as soon as practicable, to give
written notice of any damage (other than damage which the
officer reasonably believes is trivial) that is caused by the
officer or an assistant when exercising or purporting to exercise
powers under Part 2 of the Bill or under a transport safety or
infrastructure law.
The notice must be given to the person whom the officer
believes on reasonable grounds is the person in control of the
thing. If it is the case, the notice may state that the officer
believes the damage was caused by a latent defect or
circumstances beyond the officer's control.
54
If it is impracticable for any reason to give the notice to the
person believed to be in control of the thing, it may be left in
a conspicuous position and in a reasonably secure way at the
place where the damage happened.
Clause 38 is based on section 167 of the rail safety national law, and
allows a person to claim compensation from the Safety Director
if the person incurs damage because of the exercise or purported
exercise of a power under Part 2 of the Bill.
The provision must be read with clause 39, which imposes
limits on the availability of compensation. Clauses 38 and 39
are similar to section 228ZZB of the Transport (Compliance
and Miscellaneous) Act 1983.
Reference is made to where a person incurs damage, rather than
where a person incurs loss or expense as is the case in
section 167 of the rail safety national law.
Subclause (2) and the reference to "damage" in subclause (1)
are derived from section 228ZZB(3) of the Transport
(Compliance and Miscellaneous) Act 1983. In determining
the amount of compensation payable in relation to damage to
electronic equipment (such as a computer, portable storage
device or CCTV system), regard must be had to whether the
occupier of public transport premises or marine premises, and
the employers and agents of the occupier, were available at the
time and, if they were, whether they provided any warning or
guidance as to the operation of the equipment that was
appropriate in the circumstances.
Note that an officer may also require a person to provide
reasonable help under clause 8 of the Bill, which would include
help in operating the electronic equipment or device.
Clause 39 is derived from section 228ZZB(2) of the Transport
(Compliance and Miscellaneous) Act 1983. Clause 39
provides that the Safety Director is not liable to pay
compensation if the damage occurred during an inspection or
search under Part 2 of the Bill and two other conditions are met.
The first is that the thing that was the object of the inspection or
search provides evidence of the commission of an offence
against the Bill or an offence against, or non-compliance with, a
transport safety or infrastructure law, or of non-compliance with
an approved code of practice. The second condition is that the
55
damage caused was no more than was reasonably necessary in
inspecting or searching for the thing.
Clause 40 provides that compensation may be claimed and ordered in a
proceeding commenced in a court of competent jurisdiction
(that is, within any limit of the monetary jurisdiction of the
court), or in a proceeding against the claimant for an offence
against the Bill or a transport safety or infrastructure law.
This clause is derived from section 167 of the rail safety
national law.
The court may order compensation only if it is satisfied that it
is just to make the order in the circumstances of the particular
case. For example, in deciding whether to order compensation,
the court might have regard to whether the claimant has been
found guilty of an offence as a result of the investigation, or
whether and if so to what extent the conduct of the claimant,
such as the concealment of evidence, contributed to the loss or
expense.
If the thing provides evidence of the commission of an offence
or non-compliance in the circumstances described in clause 39,
compensation is not payable.
Regulations may be made prescribing matters that may, or must,
be taken into account by the court in considering whether it is
just to make the order.
Division 6--Directions powers
This Division empowers a transport safety officer to give various directions,
including requiring names and addresses, directing the person in charge of a
vessel to stop, requiring the production of licences and the like, and requiring
information about rolling stock from a rail operator or rail safety worker.
Clause 41 empowers a transport safety officer to require a person to
provide their name and residential address in certain
circumstances. The clause is based on section 168 of the rail
safety national law.
The circumstances are that the officer--
· finds the person committing an offence against the Bill
or a transport safety or infrastructure law; or
56
· finds the person in circumstances that lead, or has
information that leads, the officer to reasonably suspect
the person has committed an offence against the Bill or
a transport safety or infrastructure law; or
· reasonably believes that the person may be able to assist
in the investigation of an offence against the Bill or a
transport safety or infrastructure law.
The officer must tell the person the reason for the requirement,
and warn the person that it is an offence to fail to state that
name and address unless the person has a reasonable excuse.
If the officer reasonably believes that the name or address given
is false, the officer may require the person to give evidence of
its correctness.
A failure, without reasonable excuse, to comply with either
requirement is an offence.
Clause 42 requires the master or operator of a vessel to stop the vessel if
required to do so by a transport safety officer or police officer.
A refusal or failure to do so is an offence.
This clause is based on section 228ZNA of the Transport
(Compliance and Miscellaneous) Act 1983, but contains
modifications to enhance clarity, including referring to the
master or operator of a vessel rather than the person in charge of
the vessel.
The clause also creates offences relating to the failure of the
master or operator of a vessel to produce or allow inspection,
when required to do so by a police officer or a transport safety
officer, of a certificate, licence or exemption or other document
issued or required to be displayed on the vessel under the
Marine Safety Act 2010, unless the document is not on the
vessel at the time.
Clause 43 empowers a transport safety officer to give directions for
compliance and investigative purposes to certain persons
concerned with identifying and locating the owner, operator or
person in charge or apparently in charge of rolling stock, the
owner, operator or person in charge or apparently in charge of
a bus, or the owner or master of a vessel.
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A refusal or failure to comply with such a direction is an
offence, unless the officer did not inform the person at the time
the direction was made that it is an offence to fail to comply
with it.
This clause is based on section 228ZM of the Transport
(Compliance and Miscellaneous) Act 1983, but is expanded to
cover information in relation to buses.
Clause 44 provides for the manner in which directions under Part 2 of the
Bill may be given by a transport safety officer. (This includes
directions under clauses 9, 10, 17, 29, 30 and 43.) This clause
is based on section 228ZY of the Transport (Compliance and
Miscellaneous) Act 1983.
Directions may be given orally or in writing. In giving an oral
direction, the officer must state whether it is to be complied
with immediately or within a specified period and must warn
the person to whom it is given that it is an offence under the Bill
to fail to comply.
In giving a direction in writing, the officer must ensure that the
direction states the period within which it is to be complied
with, and that it is an offence under the Bill to fail to comply.
A written direction may be given to the person or sent by post.
Clause 45 provides that a transport safety officer may on the same
occasion give directions under one, or more than one, provision
of this Part. The officer may also give further directions under
a provision, or one or more other provisions, of the Bill.
This clause is similar to section 171 of the rail safety national
law but specifies that further directions may be given under one
or more relevant provision.
Division 7--Other matters
This Division deals with residential premises, use of force and the manner in
which transport safety officers' powers must be exercised. The Division
requires minimal use of force in the exercise of powers under Part 2 of the
Bill, and requires transport safety officers to minimise inconvenience and the
duration of entry or boarding under this Part.
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Clause 46 is derived from section 153 of the rail safety national law,
adapted to specifically refer to rolling stock, a bus or vessel.
The clause provides that the powers of a transport safety officer
under this Part of the Bill in relation to entering a place are not
exercisable in respect of any part of a place that is residential
premises, except in limited circumstances. Those circumstances
are--
· with the consent of the person with control or
management of the premises, or a person at or resident
of the premises; or
· under the authority conferred by a search warrant; or
· for the sole purpose of gaining access to suspected
public transport premises, but only if the officer
believes that no reasonable alternative access is
available, and at a reasonable time having regard to the
times at which rail safety work or bus safety work is
being carried out at the premises to which access is
sought.
Clause 47 should be read with clause 48. The two clauses re-enact, with
minor clarifications, section 228ZZ of the Transport
(Compliance and Miscellaneous) Act 1983. The effect of
clauses 47 and 48 is to ensure broad coverage of the limitations
on use of force.
The clause requires a transport safety officer or an assistant to
use no more force than is reasonably necessary to effect an
entry into a place, rolling stock or a bus or the boarding of a
vessel, or to do anything in or on that place or thing.
The powers under Part 2 of the Bill are limited accordingly.
Clause 48 provides that a provision of the Bill that authorises a person to
use reasonable force does not authorise a person who is not a
police officer to use force against another person.
Clause 49 requires a transport safety officer, in exercising powers under
Part 2 of the Bill, to cause as little inconvenience as possible
and not to remain at a place, or on rolling stock, a bus or vessel
any longer that is reasonably necessary.
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PART 3--ENFORCEMENT MEASURES
This Part contains a range of measures to deal with threats to the safety of
railway, marine or bus operations, and current, prospective or past
contraventions of a transport safety or infrastructure law. The provisions
substantially re-enact those in existing legislation, with additions and
modifications based on the rail safety national law and other laws.
The powers include provisions relating to improvement notices (Division 1),
prohibition notices (Divisions 2 and 3), non-disturbance notices (Division 4),
injunctions (Division 6), enforceable voluntary undertakings (Division 7) and
particular additional enforcement measures relating to rail and bus safety
(Division 8). The Part also includes general provisions relating to notices
under this Part (Division 5).
Key terms used in this Part (such as "transport safety officer", "transport
safety or infrastructure law", "railway operations" and "marine operations")
are defined in clause 3.
Division 1--Improvement notices
This Division provides for the service of an improvement notice requiring
specified action, before a specified date, to deal with a current or likely
contravention of a transport safety or infrastructure law, or with threats to
safety in relation to rail or marine operations or the provision of bus services.
A failure to comply with a notice is an offence. The Division sets out what
must be included in an improvement notice, and provides for their
amendment or cancellation, and for the issue of a certificate if the notice is
complied with.
The provisions substantially re-enact those in Subdivision 9 of Division 4B
of Part VII of the Transport (Compliance and Miscellaneous) Act 1983.
So, for example, clause 50 is similar to section 228ZZC of that Act. It is also
based on the rail safety national law.
A person served with an improvement notice has a right of review under
Part 5 of the Bill.
Improvement notices may be used to deal with safety threats from any
source, not merely from those conducting rail or marine operations or
providing bus services. For example, a notice could be served on a contractor
carrying out road works in a way which threatens safety at a railway crossing.
The service of an improvement notice does not prevent the prosecution of a
person for the particular contravention.
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Clause 50 authorises a transport safety officer to serve an improvement
notice on a person. This is based on section 175 of the rail
safety national law.
An improvement notice might be served if, for example, a
component of a safety management system contains a procedure
to maintain certain infrastructure such as a signalling kit, but the
procedure is not being followed, or there is no maintenance
procedure in place for that infrastructure. The notice might
require a procedure to be put in place, and followed, and for the
infrastructure to be inspected and, if necessary, brought up to
standard by a certain date.
While notices may include more than one item (for example,
maintenance procedures might need to be put in place, or
followed, for various different items of infrastructure) multiple
notices each dealing with particular matters might also be
served.
Serving multiple notices for (for example) different defects has
the benefit of enabling closure of each item (or notice) once the
defect has been remedied, so that targeted enforcement activity
may be undertaken for specific regulatory defaults. Use of
multiple notices also more readily facilitates enforcement where
different compliance dates are given by which different matters
must be improved.
The officer may issue the notice if he or she reasonably believes
that the person--
· is contravening a provision of a transport safety or
infrastructure law; or
· has contravened such a law in circumstances that make
it likely that the contravention will continue or be
repeated; or
· is carrying out or has carried out railway or marine
operations that threaten safety, or other operations that
threaten rail safety or marine safety; or
· is providing bus services that threaten safety or other
services that threaten bus safety.
The notice may require the person to remedy the contravention,
to prevent a likely contravention from occurring, to remedy the
things or operations causing the contravention or likely
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contravention, or to carry out railway or marine operations or
provide bus services so that safety is not threatened or likely to
be threatened.
The decision to serve an improvement notice is a mandatory
transport safety decision under the Transport Integration Act
2010. Section 175 of that Act provides that if a mandatory
transport safety decision may result in significant costs or
expenses being incurred by a person whose interests are
affected by the decision, the Safety Director must conduct a
cost-benefit analysis and consult, in accordance with that
section.
Before serving an improvement notice, a transport safety officer
must notify the Safety Director of his or her intention to do so.
Clause 51 provides that an improvement notice may require a person to
close a level crossing, a bridge or other structure passing over or
under a railway that the person owns or controls or for which
the person is responsible. The person must publish notices of
the required closure.
This provision is not contained in the rail safety national law,
and is based on section 228ZZD of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 52 sets out what must be included in an improvement notice.
This is based on section 176 of the rail safety national law and
is similar to section 228ZZC(4) of the Transport (Compliance
and Miscellaneous) Act 1983.
If the notice is based on a contravention or likely continued or
repeated contravention, it must include particulars of the
provision which is being contravened and how it is being
contravened, or that and how it has been contravened, and must
specify a day before which the contravention or likely
contravention must be remedied.
In any other case, the notice must (in substance) give particulars
of the basis on which it is served (for example, that the officer
believes that the person is carrying out operations that threaten
rail safety and how they are doing so) and state the day before
which operations must be carried out or services provided so
that safety is not threatened.
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The notice also must state that it is a notice under clause 50,
must set out the penalty for non-compliance and must include
information about the right to a review under Part 5 of the Bill.
(Under Part 5, a person served, or an affected rail transport
operator or operator of a bus service, may apply to the Safety
Director, within 28 days, for review of the decision to serve the
notice).
If, under section 175 of the Transport Integration Act 2010,
a cost-benefit analysis has been carried out, the notice must set
out the results of that analysis.
The notice may also include directions about remedial action,
and the Bill also clarifies that an improvement notice may
include recommendations.
The day stated for compliance with the notice must be
reasonable in all the circumstances.
Clause 53 allows for a direction in an improvement notice to refer to an
approved code of practice, or offer the person a choice of ways
in which to remedy the contravention. This is drawn from
section 180(3) of the rail safety national law, extended to refer
specifically to approved codes of practice.
Clause 54 allows for an improvement notice to be amended by a transport
safety officer or the Safety Director, by serving on the person
affected a notice stating the terms of the amendment.
The notice of amendment must state the reasons for it,
information about obtaining a review of the decision to serve
the notice and that it is served under this clause. This is similar
to section 228ZZF of the Transport (Compliance and
Miscellaneous) Act 1983.
Clause 55 permits the Safety Director to cancel an improvement notice.
Notice of cancellation must be given to the person served with
the notice. This is similar to section 228ZZG of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 56 applies if a transport safety officer or the Safety Director is
satisfied that a person served with an improvement notice has
complied with a requirement in it.
The officer or Director must then serve a clearance certificate
to the effect that the requirement has been complied with.
The notice may relate to all or specific requirements of the
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improvement notice. The requirement of the improvement
notice ceases to be effective upon receipt of the certificate.
This is similar to section 228ZZH of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 57 provides that the service, amendment or cancellation of an
improvement notice, or the service of a clearance certificate,
does not affect any proceeding for an offence against a transport
safety or infrastructure law in connection with any matter in
respect of which the notice was served. This is similar to
section 228ZZI of the Transport (Compliance and
Miscellaneous) Act 1983.
Clause 58 creates an offence of failing, without reasonable excuse, to
comply with an improvement notice within the period specified
in the notice. A failure to comply with a recommendation in a
notice is not an offence.
A reference in this clause to a notice may be taken to refer to a
notice as amended under clause 54, or to an extended time to
comply if the compliance period has been extended under
clause 59.
Clause 59 permits a transport safety officer to extend the period for
compliance with an improvement notice, if that period has not
ended. Written notice of the extension must be given. This is
drawn from clause 178 of the rail safety national law.
Currently, section 228ZZF of the Transport (Compliance and
Miscellaneous) Act 1983 allows for the amendment of
improvement notices, which could include the date by which a
certain matter must be dealt with.
It is also open to the Safety Director to not extend or enforce the
notice and, instead, serve a new notice based on the then facts.
For example, if steps had been taken to remedy the
contravention mentioned in the notice but those steps had not
been completed due to matters outside the regulated person's
control such as severe adverse weather conditions.
In those circumstances, a new notice might be appropriate not
only because of the change in timing but because the
outstanding matters may be different, in part, to those contained
in the original notice. Alternatively, specified matters in the
earlier notice could be the subject of a clearance certificate.
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Division 2--Prohibition notices
The provisions in this Division substantially re-enact those in Subdivision 10
of Division 4B of Part VII of the Transport (Compliance and
Miscellaneous) Act 1983. So, for example, clause 60 is similar to
section 228ZZJ of that Act.
Clause 60 authorises a transport safety officer to serve a prohibition notice
on a person who has, or appears to have, control over particular
activities which the notice prohibits.
This clause is based on section 179 of the rail safety national
law, modified so as to apply to rail, bus and marine safety
matters. The modifications draw substantially on
section 228ZZJ of the Transport (Compliance and
Miscellaneous) Act 1983.
A prohibition notice served under this clause may prohibit the
carrying on of the activity, or the carrying on of the activity in
a way specified in the notice.
A prohibition notice might be served if, for example, a rail
transport operator couples or uncouples rolling stock while a
person is standing between the rolling stock, or conducts rolling
stock operations with passengers located on top of an open
flatbed carriage.
A notice might be served in respect of bus services where, for
example, an operator is providing services for which it should
be, but is not, accredited. Prohibition notices may also be
appropriate if, for example, an operator does not have an
appropriate regime in place for bus maintenance, if the operator
is not carrying out annual bus inspections as required by the
Bus Safety Act 2010 or if maintenance issues such as
unserviceable tyres are identified when transport safety officers
conduct compliance and investigative activities.
The situations in which an officer is empowered to serve a
prohibition notice are complex. For that reason, they are set out
in detail below.
The officer may serve the prohibition notice if he or she
reasonably believes that--
· an activity is occurring in relation to railway operations,
bus services or public transport premises that involves
or will involve an immediate risk to safety, or
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· an activity may occur in relation to railway operations,
bus services or public transport premises that, if it
occurs, will involve an immediate risk to safety, or
· an activity may occur at, on, or in the immediate
vicinity of, rail infrastructure, rolling stock or a bus
stopping point that, if it occurs, will involve an
immediate risk to safety, or
· an activity is occurring on, or in relation to marine
operations or marine premises that involves or will
involve an immediate risk to safety, or
· an activity is occurring on, or in relation to the operation
of a vessel that involves or will involve an immediate
risk to safety, or
· an activity is occurring at marine premises or a place
where vessels are operated, stored, moored, berthed or
placed that involves or will involve an immediate risk to
safety, or
· an activity, if it occurs at or in relation to marine
premises or a place where vessels are operated, stored,
moored, berthed or placed, may involve an immediate
risk to safety.
The formulation "risk to safety", which is used in the rail safety
national law, is adopted in preference to "risk to the safety of a
person", as contained in the Transport (Compliance and
Miscellaneous) Act 1983. This is more straightforward and
reference to "safety of a person" may, in some circumstances,
unduly limit the power.
While reference to a bus stopping point is not used in the
definition of bus premises, the Bill adopts the formulation in
section 228ZZJ of the Transport (Compliance and
Miscellaneous) Act 1983 for the purposes of this provision,
since it would be reasonably apparent to a transport safety
officer whether an activity may involve an immediate risk to
safety in the immediate vicinity of a bus stopping point.
In relation to the use of prohibition notices, using this
expression is an appropriate constraint.
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A prohibition notice may be given orally but must be confirmed
by written notice as soon as practicable after the oral notice was
given. This is similar to section 228ZZKA of the Transport
(Compliance and Miscellaneous) Act 1983 which allows an
oral direction to be given before a prohibition notice is served.
Clause 61 prescribes the contents of a prohibition notice and is based on
section 180 of the rail safety national law, modified so as to
apply to rail, bus and marine safety matters and drawing
substantially on section 228ZZJ of the Transport (Compliance
and Miscellaneous) Act 1983.
The notice must--
· state that the transport safety officer believes that
grounds for the service of the notice exist and the basis
for that belief; and
· briefly, state the activity that the officer believes
involves or will involve the risk to safety or will give
rise to the risk; and
· state the provision of a transport safety or infrastructure
law (if any) which is being or is likely to be
contravened; and
· state that it is a notice under clause 60; and
· set out the penalty for non-compliance; and
· include information about the right to a review under
Part 5. (Under Part 5, a person served, or an affected
rail transport operator or operator of a bus service, may
apply to the Safety Director, within 28 days, for review
of the decision to serve the notice).
The notice may include directions on measures to be taken to
remedy the risks, activities or matters to which the notice
relates, or the contravention or likely contravention of the
provision of a transport safety or infrastructure law (if any).
A direction may offer a choice of ways to remedy the risk,
activities or matters or contravention or likely contravention
prohibited in the notice.
Where the notice prohibits an activity being carried out in a
specified way, the notice may specify premises at which the
activity is not to be carried out, infrastructure at or on, or in the
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vicinity of which, the activity is not to be carried out, any thing
which is not to be used in connection with the activity, that a
vessel is not to be operated and any procedure that is not to be
followed in connection with the activity.
Clause 62 provides that a direction included in a prohibition notice may
refer to an approved code of practice and may offer a choice of
ways to remedy the matter or matters specified in the notice that
may involve, or will involve, an immediate risk to safety. This
clause is based on section 180(3) of the rail safety national law,
modified to refer to approved codes of practice.
Clause 63 creates an offence of failing, without reasonable excuse, to
comply with a prohibition notice. This clause is based on
section 181 of the rail safety national law. However, a failure
to comply with a recommendation in a notice is not an offence.
This is similar to section 228ZZK of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 64 allows for a prohibition notice to be amended by a transport
safety officer or the Safety Director, by serving on the person
affected a notice stating the terms of the amendment.
The notice of amendment must state the reasons for it,
information about obtaining a review of the decision to serve
the notice and that it is served under the clause.
An amendment which purports to prohibit different activities
to those mentioned in the original notice is ineffective.
This clause is based on section 228ZZL of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 65 permits the Safety Director to withdraw a prohibition notice.
Notice of withdrawal must be given to the person affected by
the notice. This clause is based on section 228ZZM of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 66 applies if a transport safety officer or the Safety Director is
satisfied that a person served with a prohibition notice has
remedied all the matters, or a matter, in it.
The officer or Director must then serve a certificate to the effect
that matters that gave rise to an immediate risk to safety have
been remedied. The certificate must be served as soon as
practicable after the officer or Director are so satisfied.
The requirement or requirements of the prohibition notice to
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which the certificate relates cease to be effective upon receipt of
the certificate. This clause is based on section 228ZZN of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 67 provides that the service, amendment or cancellation of a
prohibition notice, or the issue of a certificate that matters that
gave rise to an immediate risk to safety have been remedied,
does not affect any proceeding for an offence against a transport
safety or infrastructure law in connection with any matter in
respect of which the notice was served. This clause is based on
section 228ZZO of the Transport (Compliance and
Miscellaneous) Act 1983.
Division 3--Remedial action in relation to prohibition notices
This Division sets out when the Safety Director may take remedial action
where a person served with a prohibition notice fails to take reasonable steps
to comply with the requirements of the notice. These provisions are drawn
from Division 5 of Part 5 of the rail safety national law.
Clause 68 provides that the Safety Director may take any remedial action
the Safety Director believes reasonable to make public transport
premises, marine premises, a vessel or situation safe if a person
served with a prohibition notice fails to take reasonable steps to
comply with the requirements of the notice.
Before taking action, the Safety Director must give written
notice of the Director's intention to take that action and the
liability of the person (on whom the notice is served) for the
costs of that action.
Clause 69 enables the Safety Director to take any remedial action
necessary to make public transport premises, marine premises
or a vessel safe if circumstances exist in which a prohibition
notice could be served but, after taking reasonable steps, the
person with control or management of the premises or vessel on
whom the notice would otherwise be served cannot be found.
Clause 70 provides that the costs of remedial action taken under
Division 3 may be recovered, as a debt due to the Safety
Director in a court of competent jurisdiction (that is, within any
limit of the monetary jurisdiction of the court), from the person
served with a prohibition notice or, if the debt relates to matters
undertaken under clause 69, from any person on whom a
prohibition notice could have been served.
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Division 4--Non-disturbance notices
This Division is drawn from Division 3 of Part 5 of the rail safety national
law, and sets out when a transport safety officer may serve notice requiring
certain persons to preserve or prevent disturbance of a site, rolling stock, a
bus or vessel.
Clause 71 provides that a transport safety officer may serve a non-
disturbance notice on the person with control or management of
public transport premises, marine premises, rolling stock, a bus
or vessel.
The notice may be served if the officer reasonably believes it is
necessary to facilitate the exercise of his or her powers under a
transport safety or infrastructure law.
Clause 72 provides that a non-disturbance notice may require the person to
preserve or prevent the disturbance of the site, particular rolling
stock or a particular bus or vessel for a specified period. In the
case of rolling stock, a bus or vessel the period must be
reasonable in the circumstances.
Reference to a site includes any plant, substance, structure or
thing associated with the site.
The notice must specify the period, not exceeding 7 days, for
which the notice applies and state the obligations of the person
on whom the notice is served, the measures to be taken to
preserve the site or prevent disturbance of the rolling stock, bus
or vessel, and must set out the penalty for contravening the
notice.
The notice must include information about the right to a review
under Part 5. (Under Part 5, a person served, or an affected rail
transport operator or operator of a bus service, may apply to the
Safety Director, within 28 days, for review of the decision to
serve the notice).
A non-disturbance notice does not prevent any action--
· to assist an injured person or animal; or
· to remove a deceased person or animal; or
· that is essential to make the site, bus or vessel safe or
prevent a further incident; or
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· that is associated with a police investigation, in respect
of which a transport safety officer has given permission;
or
· to protect the environment from significant damage or
pollution.
Clause 73 creates an offence of failing, without reasonable excuse, to
comply with a non-disturbance notice.
Clause 74 provides that one or more subsequent non-disturbance notices
may be served if the transport safety officer considers it
necessary. A subsequent notice may be served before or after
the expiry of an earlier notice. Each notice must comply with
the requirements of clause 72.
Clause 75 enables a transport safety officer to cancel a non-disturbance
notice.
Division 5--General requirements applying to notices
This Division is drawn from Division 4 of Part 5 of the rail safety national
law and contains provisions relating to notices.
Clause 76 defines notice for the purpose of this Division to mean an
improvement notice, a prohibition notice or a non-disturbance
notice.
Clause 77 provides that notices must be in writing.
Clause 78 provides that a transport safety officer may make minor changes
to a notice for clarification, to correct errors or references or to
reflect changes of address or other circumstances.
Clause 79 provides that a notice is not invalid merely because or a formal
defect or irregularity in the notice, or a failure to use the correct
name provided the person to whom the notice is given is
correctly identified, and the notice is served or given to that
person in accordance with clause 80.
Clause 80 deals with service of notices, which may be left at public
transport premises, marine premises, or on rolling stock, a bus
or vessel or served in a prescribed manner including in
accordance with regulations made under with section 132.
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Division 6--Injunctions
This Division provides that the Safety Director may apply for an injunction to
enforce an improvement notice, a prohibition notice or a non-disturbance
notice, and is derived from Division 6 of Part 5 of the rail safety national law.
Clause 81 defines notice for the purpose of this Division to mean an
improvement notice, a prohibition notice or a non-disturbance
notice.
Clause 82 empowers the Safety Director to apply to the Magistrates' Court
for an injunction compelling a person to comply with a notice or
restraining a person from contravening a notice.
The Safety Director may apply for an injunction whether or not
a proceeding for an offence have been commenced and whether
or not the time for compliance has expired.
Division 7--Enforceable voluntary undertakings
This Division is drawn from Division 6 of Part 10 of the rail safety national
law and enables the Safety Director to accept a written undertaking from an
accredited bus operator or a rail transport operator in respect of a
contravention, or alleged contravention, of a transport safety or infrastructure
law. However, the circumstances in which an undertaking may not be
accepted are formulated differently to the national rail safety law provisions
and refer to a relevant indictable offence which the Safety Director considers
it appropriate to prosecute.
The provisions substantially re-enact those in Subdivision 13 of Division 4B
of Part VII of the Transport (Compliance and Miscellaneous) Act 1983.
So, for example, clause 83(1) is similar to section 228ZZSB(1) of that Act.
Undertakings given under this Division are enforceable and may not be
varied or withdrawn without the Safety Director's written consent.
Clause 83 enables the Safety Director to accept a written undertaking from
an accredited bus operator or a rail transport operator in respect
of a contravention, or alleged contravention of a transport safety
or infrastructure law. An undertaking does not constitute an
admission of guilt in respect of a contravention, or alleged
contravention.
The Safety Director must not accept an undertaking if it is in
connection with a contravention or alleged contravention of an
indictable offence of a transport safety or infrastructure law and
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the Safety Director considers that it would be appropriate to
prosecute for the contravention.
Clause 84 requires the Safety Director to give written notice about whether
he or she accepts or rejects the undertaking and the reasons for
this.
Clause 85 provides that a transport safety undertaking takes effect and
becomes enforceable when the Safety Director's decision to
accept it is given to the operator that provided the undertaking,
or on any later date specified by the Director.
Clause 86 creates an offence of contravening a transport safety
undertaking.
Clause 87 applies if the Safety Director considers that an accredited bus
operator or a rail transport operator has contravened a transport
safety undertaking.
The Safety Director may apply to the Magistrates' Court to
enforce the undertaking.
If satisfied that the undertaking has been contravened, the Court
may order the operator to comply, or to take specified action to
comply, with the undertaking, discharge the undertaking, or
may make an order that the person that contravened the
undertaking pay the Safety Director's costs of the proceedings
and any reasonable costs in monitoring compliance with the
undertaking in future, or may make any other order the Court
considers appropriate in the circumstances.
Subclause (4) creates an offence of contravening a court order
in relation to a transport safety undertaking.
Subclause (5) provides that nothing in the clause prevents a
proceeding for the contravention or alleged contravention of a
transport safety or infrastructure law being commenced.
Clause 88 allows an accredited bus operator or a rail transport operator
that has given a transport safety undertaking to the Safety
Director to vary or withdraw the undertaking, but only with the
written consent of the Director. However, the undertaking
cannot be varied so that the variation relates to a different
contravention to the one which was the subject of the initial
undertaking.
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Clause 89 deals with proceedings for an alleged contravention of a
transport safety or infrastructure law if a transport safety
undertaking is in effect in relation to that contravention.
No proceeding may be commenced if a person has given an
undertaking which has been accepted by the Director and which
has been completely discharged.
Subclauses (3) and (4) confirm that an undertaking may be
accepted before a proceeding has been finalised, in which case
the Safety Director must take all reasonable steps to have the
proceeding discontinued as soon as possible.
Division 8--Additional enforcement measures relating to rail and
bus safety
This Division contains powers which enable the Safety Director to respond to
safety reports prepared in response to coronial inquiries and other safety
investigations, to order works to stop and to order the temporary closure of
railway crossings and bridges, etc. These provisions are drawn from
Division 7 of Part 5 of the rail safety national law.
Clause 90 permits the Safety Director to serve notice directing a rail
transport operator or the operator of a bus service to install
safety or protective systems, devices, equipment or appliances
specified in the notice in response to safety reports in response
or relating to an inquest held by the Coroners Court, a report of
an investigation held under the Transport Safety Investigations
Act 2003 of the Commonwealth, or any other report of an
investigation into a rail safety or bus safety matter.
Directions must specify the time in which the systems, devices,
equipment or appliances must be installed and the reasons why
the Director considers it necessary for the operator to take the
specified action.
The notice must include information about the right to a review
under Part 5. (Under Part 5, an affected rail transport operator
or operator of a bus service, may apply to the Safety Director,
within 28 days, for review of the decision to serve the notice).
Clause 90(4) creates an offence of failing, without reasonable
excuse, to comply with a direction given under this clause.
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Clause 91 makes it an offence for a person, other than a rail transport
operator, to carry out any works near a railway that threaten, or
are likely to threaten, the safety or operation integrity of the
railway without notifying the relevant rail infrastructure
manager of the intention to carry out those works.
The provisions are equivalent to section 199 of the rail safety
national law.
If the Safety Director has reasonable grounds to believe that a
person is carrying or proposes to carry out any works near a
railway that threaten, or are likely to threaten, the safety or
operation integrity of the railway, the Safety Director may give
written notice to the person to stop, alter or not commence the
works.
The Safety Director may also give written notice to a rail
transport operator to stop, alter or not commence railway
operations if the Safety Director has reasonable grounds to
believe that the operator is carrying out, or proposes to carry
out, railway operations on or near land on which there is
infrastructure or works of a utility and the operations threaten,
or are likely to threaten, the safety of the utility infrastructure or
works or the safety provision by the utility of water, gas,
electricity or like services. It is an offence not to comply
without reasonable excuse.
If works are carried out in contravention of the requirement to
notify a relevant rail infrastructure manager of the person's
intention to carry out works, or in contravention of a direction
given by the Safety Director in a written notice to stop, alter or
not commence works, the Safety Director may give written
notice to the person with care, control or management of the
land where the infrastructure or works are situated to alter,
demolish or take away the work.
The notice must specify a reasonable time in which this must be
done. It is an offence not to comply with the notice without
reasonable excuse.
Notices given under this clause must state they are served under
this clause and include information about the right to a review
under Part 5. (Under Part 5, the rail transport operator, operator
of a bus service, person given a direction or affected utility may
apply to the Safety Director, within 28 days, for review of the
decision to serve the notice).
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Clause 92 empowers an authorised officer (which means a person holding
specific authority for the purposes of this clause from the Safety
Director or an accredited rail transport operator) to temporarily
close or regulate a railway crossing, bridge, subway or other
structure for crossing or passing over or under a railway.
The provisions are equivalent to section 200 of the rail safety
national law.
The officer may close or regulate the crossing, bridge, subway
or other structure if it is necessary because of an immediate
threat to safety.
As soon as practicable after closing or regulating the crossing,
bridge, subway or other structure, the officer must notify the
person or authority responsible for it of its closure or regulation.
PART 4--INFRINGEMENT NOTICES
This Part sets out when an infringement notice can be issued for offences.
The structure of this Part contains elements of infringement provisions in the
rail safety national law and the Transport (Compliance and Miscellaneous)
Act 1983, and Victorian infringement notice processes are adopted to ensure
that the scheme can work in Victoria.
The penalty for an infringement will be the amount prescribed in the
regulations.
Although penalties in the Bill, and penalties including infringement penalties
in the rail safety national law, are expressed in dollar amounts, infringement
penalties prescribed in regulations for the purpose of the Bill will be
expressed in penalty units.
Offences for which an infringement notice can be issued by virtue of this Part
are infringement offences within the meaning of the Infringements Act
2006. This means that certain aspects of that Act apply to infringement
notices issued for these offences (such as the service of the notice, the form
of the notice, internal review and provisions as to payment of fines and
enforcement of notices), subject to anything additional or different in this
Part.
Division 1--Transport safety infringement notices
This Division substantially re-enacts relevant aspects of Division 2 of
Part VII of the Transport (Compliance and Miscellaneous) Act 1983 for
the purpose of offences under the Bill which may be prescribed as
infringement offences.
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Clause 93 permits a transport safety infringement notice to be served on a
person by a transport safety officer who has reason to believe
that the person has committed an offence (other than a safety
work infringement) that is--
· prescribed for the purposes of this Act; and
· is an offence against any of the following Acts or the
regulations made under those Acts--
· the Bus Safety Act 2009- in the case of an
accredited bus operator;
· the Rail Safety (Local Operations) Act 2006--
in the case of a rail transport operator;
· the Marine Safety Act 2010;
· the Marine (Drug, Alcohol and Pollution
Control) Act 1988;
· the Port Management Act 1995.
This clause also permits a transport safety infringement notice
to be served on a person by a police officer who has reason to
believe that the person has committed an offence (other than a
safety work infringement) that is--
· prescribed for the purposes of this Act; and
· is an offence against any of the following Acts or the
regulations made under those Acts--
· the Marine Safety Act 2010;
· the Marine (Drug, Alcohol and Pollution
Control) Act 1988;
· the Port Management Act 1995.
Division 2--Safety work infringements
This Division substantially re-enacts Division 2A of Part VII of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 94 authorises a police officer who has reason to believe that a rail
safety worker has committed a safety work infringement to
serve a safety work infringement notice on the worker.
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A safety work infringement can only be issued for certain
specified first offences involving the presence of alcohol in the
blood or breath of a rail safety worker. The offences are
specified in the definition of safety work infringement, which is
explained in the notes to clause 3.
Clause 95 provides that a safety work infringement takes effect 28 days
after the date of the notice as a conviction for the offence
specified in the notice unless the rail safety worker objects.
The objection must be in writing and include the information set
out in this clause including that the worker refuses to pay the
penalty, requests the matter be dealt with by a court and intends
to defend any charge arising out of the facts on which the
infringement notice was based.
The effect of an objection is that the infringement notice is
cancelled, and the matter may only proceed by the filing of a
charge (in court).
Clause 96 allows a rail safety worker to apply to the Magistrates' Court to
have the time for objecting extended, if--
· the infringement notice was not delivered personally;
and
· the worker was not aware, before the conviction takes
effect, that the notice had been issued.
An application must be made within 7 days after the rail safety
worker becomes aware of the notice.
The court must not grant the notice unless satisfied that the
worker was not aware that the notice had been issued before it
took effect as a conviction.
If an extension is granted, the conviction is set aside, the notice
is cancelled, any enforcement procedures are discontinued and
the matter must be proceeded with by way of a charge.
A charge-sheet may not be filed after 12 months from the date
of the rail safety worker's objection.
Clause 97 provides that subject to this Division, the procedures set out in
the Infringements Act 2006 may be used to enforce the amount
specified in a safety work infringement notice.
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Clause 98 establishes a procedure for proving the prior convictions or
findings of guilt, and the particulars relating to those
convictions or findings, of a rail safety worker who is served
with a summons to answer a charge for a safety work
infringement.
A separate document in the prescribed form signed by the
informant and endorsed with a notice in the prescribed form
may be served with the summons setting out the alleged
convictions.
The document is admissible in evidence if the court is satisfied
that a copy was served on the rail safety worker at least 14 days
before the hearing, but may not be used without the consent of
the rail safety worker if he or she is present at the hearing.
The court may also be set aside the sentence imposed on the rail
safety worker if it has reasonable grounds to believe the notice
was not in fact brought to the attention of the accused or that the
accused was not in fact convicted or found guilty of the matters
alleged in the notice.
PART 5--REVIEW OF DECISIONS
This Part applies to the review of decisions by the Safety Director and by the
Victorian Civil and Administrative Tribunal (VCAT). The scheme, and
particularly the decisions that are susceptible to review, is similar to the
scheme contained in Part 7 of the rail safety national law.
The Part essentially re-enacts Subdivision 12 of Division 4B of Part VII of
the Transport (Compliance and Miscellaneous) Act 1983 for the purpose
of the Bill (review of decisions relating to improvement and prohibition
notices) and extends the provisions relating to reviews to other similar
decisions.
Clause 99 includes a Table that sets out--
· each of the provisions under which a decision is made
that is reviewable (known as a reviewable decision);
and
· the person who is eligible to apply for a review of the
particular decision (referred to as the eligible person).
This is typically the person who is affected by the
decision.
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For example, a review can be requested of the decision to serve
an improvement notice that requires contraventions or threats to
safety in relation to railway or marine operations or a bus
service to be rectified. A review of such a decision may be
made by the person on whom the notice is served, or a rail
transport operator or the operator of a bus service whose
interests are affected by the decision.
A reviewable decision under a provision listed in the Table
includes a refusal to make a decision or an instrument, imposing
a condition or restriction, or doing or refusing to do any other
thing.
In the case of a decision relating to forfeiture of a seized thing,
the eligible person is the person from whom the thing was
seized, unless that person is not entitled to possess it in which
case the eligible person is the owner of the thing.
Clause 100 enables an eligible person to apply to the Safety Director for a
review of a "reviewable decision".
The Safety Director can affirm or vary the decision, or set it
aside and make a new decision that the Safety Director
considers appropriate.
This clause sets out the process for the review.
The application must be made within 28 days after the decision
first came to the person's notice or such longer period as the
Safety Director allows.
The Safety Director may appoint another person (not being the
person who made the reviewable decision) to review the
decision.
The decision continues to have effect in the meantime, unless
it is stayed by the Safety Director. A decision about a stay, if
requested, must be made by the end of the next business day
following the day on which the application is made. If a
decision is not made, the stay application is taken to be granted.
This follows section 216(9) of the rail safety national law.
Conditions may be imposed on a stay of operation of a decision.
Clause 101 describes the manner and timing of the Safety Director's review
and the method by which the Director's decision must be given
to the eligible person.
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The decision must be given in a written notice and must set out
the Safety Director's reasons for the decision and findings on
any material questions of fact that led to the decision, referring
to the evidence or other material on which those findings were
based.
The decision must be by written notice given within 14 days
after the application for review, or within 7 days if the
reviewable decision was under Division 1, 2, 3 or 4 of Part 3 of
the Bill (that is, in respect of improvement notices, prohibition
notices, remedial action in relation to prohibition notices and
non-disturbance notices).
Subclause (3) provides that if notice is not given, the Safety
Director is taken to have affirmed the reviewable decision.
Clause 102 enables an eligible person to apply to VCAT for review of--
· a reviewable decision made initially by the Safety
Director; or
· a decision to review made by the Safety Director under
clause 100; or
· a decision taken to have been affirmed by reason of
clause 101(3).
The application for review must be made within 28 days after
the day on which the decision first came to the applicant's
notice or, if the Safety Director is required under the Victorian
Civil and Administrative Tribunal Act 1998 to give a
statement of reasons, within 28 days after the day on which that
statement was given, whichever is later.
PART 6--GENERAL LIABILITY AND COURT PROCESSES
Division 1--General matters
Clause 103 is similar to section 224 of the Transport (Compliance and
Miscellaneous) Act 1983 (and section 226 of the rail safety
national law). The clause creates the following offences
relating to a person complying or purporting to comply with the
Bill, a transport safety or infrastructure law or a direction or
requirement under the Bill or such a law--
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· the giving of information that the person knows to be
false or misleading in a material particular, or that the
person knows omits any matter or thing without which
the information is misleading;
· the production of documents that the person knows to
be false or misleading without indicating the respect in
which it is false or misleading and, if practicable,
providing correct information or providing, with the
document, a written certificate stating that the document
is false or misleading in a material particular and setting
out that or those particulars;
· recklessly giving information or producing a document
that is false or misleading in a material particular.
Division 2--Director and officer criminal liability
Clause 104 imposes personal criminal liability on directors and officers of a
body corporate which commits an offence against a specified
provision of the Bill.
In March 2008, the Council of Australian Governments
(COAG) agreed to a project to harmonise provisions in
legislation that impose liability on directors and other corporate
officers where a corporation has breached the criminal law.
Clause 104 is derived from model provisions which have been
developed to ensure greater consistency in directors' liability
provisions in Victorian statutes and which are more aligned
with nationally determined principles. For that reason, the
following explanation is customised and extracted from the
explanatory memorandum for the Bill for the Statute Law
Amendment (Directors' Liability) Act 2012.
The model provisions, which have been adopted in the Bill,
implement an agreement by COAG in June 2009 for all
Australian jurisdictions to apply six common principles to
determine the circumstances in which it is appropriate to impose
personal criminal liability on a director or manager of a body
corporate.
A director or manager of a body corporate has a separate legal
identity from the body corporate itself. As a result, a director
or manager is not liable for the criminal conduct of the body
82
corporate unless a provision expressly attributes criminal
liability to the director or manager.
This clause provides that a body corporate commits an offence
against a specified provision, an officer of the body corporate
also commits an offence against that provision if the officer
failed to exercise due diligence to prevent the commission of
the offence by the body corporate.
The effect of this formulation is that the prosecution must prove
that the body corporate committed the offence. That is, the
offence is that of the body corporate for which the officer may
also be liable.
This does not require a prior finding of guilt, or proceedings,
against the body corporate, but does requires the prosecution to
satisfy the court of the necessary elements constituting the
specific offence it is alleged the body corporate committed.
The prosecution is then required to prove, beyond reasonable
doubt, that the accused officer failed to exercise due diligence to
prevent the commission of the offence by the body corporate.
The clause provides that an officer may commit an offence
whether or not the body corporate has been prosecuted for, or
found guilty of, an offence. A finding by a court that an officer
has committed an offence for the purposes of this section is not
contingent on a prior finding of guilt against the body corporate
or prior prosecutorial action being taken against the body
corporate for the same offence.
The clause allows the officer to rely on a defence that would
have been available to the body corporate, either under
legislation or under the common law, had the body corporate
been charged with the same offence. The officer bears the same
burden of proof that the body corporate would bear in
establishing the defence.
The inclusion of a person who is concerned in, or takes part in,
the management of a body corporate within the definition of
officer in this clause includes, and also extends, the meaning
of that notion beyond the meaning of officer as defined in
section 9 of the Corporations Act. For instance, a person who
does not make or participate in making decisions that affect the
whole or a substantial part of the business of the corporation
may nevertheless be concerned in the management of a body
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corporate and thereby considered to be an officer for the
purposes of this provision.
The words "due diligence" are not defined in this clause. It is
intended that the words be given their ordinary meaning.
Courts have held that a requirement to exercise due diligence to
prevent something being done is to take all reasonable steps to
prevent it (Universal Telecasters (Qld) Ltd v Guthrie (1978) 18
ALR 531 at 552). The concept of due diligence has also more
generally been associated with a requirement to exercise
reasonable care and skill (Riverstone Meat Co. Pty. Ltd. v
Lancashire Shipping Co. Ltd. [1960] 1 QB 536 at 581; Papera
Traders Co. Ltd. v Hyundai Merchant Marine Co. Ltd. [2002] 1
Lloyd's Rep 719 at 737).
This provision sets out various factors to which a court may
have regard when determining whether or not due diligence was
exercised. The factors are--
· what the officer knew or ought reasonably to have
known about the commission of the offence by the body
corporate; and
· whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence by the body corporate; and
· what steps the officer took or could reasonably have
taken to prevent the commission of the offence by the
body corporate; and
· any other relevant matter.
These factors are not intended to be exhaustive as it is intended
that all the circumstances of the particular case may be
considered. Some other relevant circumstances may include the
size and nature of the company's business, the officer's position
and responsibilities within the company, the particular function
the officer is performing, the experience or skills of the
particular officer, the competence of a company's management,
the competence of the company's advisors, the distribution of
responsibilities within the company and the circumstances of
the specific case (see Australian Securities and Investments
Commission v Healey (2011) 196 FCR 291 at 330).
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The following offences in the Bill are the offences to which the
clause applies--
· clause 8(3) failing to give reasonable help;
· clause 22(6) failing to provide documents, devices or
things or answer questions;
· clause 29(4) failing to comply with a direction relating
to seizure;
· clause 43(2) failing to provide information;
· clause 58(1) non-compliance with an improvement
notice;
· clause 63(1) non-compliance with a prohibition notice;
· clause 73 non-compliance with a non-disturbance
notice;
· clause 86 non-compliance with a transport safety
undertaking;
· clause 90(4) non-compliance with a direction in
response to certain safety reports;
· sections 91(4) or (6) non-compliance with a requirement
to stop (etc) works;
· clauses 103(1), (2) or (3) giving false or misleading
information;
· clause 110(9) non-compliance with a supervisory
intervention order;
· clause 111(5) non-compliance with an exclusion order;
· clause 126 assaulting, threatening or intimidating a
transport safety officer.
Division 3--Proceedings and evidentiary matters
This Division contains various procedural and evidentiary provisions in
relation to proceedings under (including proceedings for offences against)
this Bill or a transport safety or infrastructure law.
Clause 105 provides that only the Safety Director, a transport safety officer,
with the written authorisation of the Safety Director or a police
officer, may commence proceedings under the Bill or a
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transport safety or infrastructure law (including proceedings for
offences against the Bill or such a law). This clause is a
re-enactment with modifications of section 229A of the
Transport (Compliance and Miscellaneous) Act 1983.
An authorisation for a transport safety officer may be given
either generally or in a particular case, and is sufficient
authority to continue a proceeding where the court amends the
charge-sheet, warrant or summons (that is, where the court
gives consent to amend the charge-sheet, warrant or summons).
The person who commences such a proceeding may appear by
another person authorised by the Safety Director or by a police
prosecutor. Subclause (3) expressly provides that a transport
safety officer who commences a proceeding may conduct the
proceeding before the court. (This is in addition to the rights of
appearance in a criminal proceeding under section 328 of the
Criminal Procedure Act 2009).
Clause 105(5) provides that despite the general rule, the
Director of Public Prosecutions may commence a proceeding
for an indictable offence against this Bill or a transport safety
or infrastructure law.
Clause 106 provides that a proceeding for an indictable offence against this
Bill or a transport safety or infrastructure law may be
commenced within 3 years after the offence is committed or the
Safety Director becomes aware the offence was committed.
Such a proceeding may also be commenced at any time with the
written authorisation of the Director of Public Prosecutions.
This is similar to section 229B of the Transport (Compliance
and Miscellaneous) Act 1983.
Clause 107 provides for the use of evidentiary certificates in proceedings
for an offence against this Bill or a transport safety or
infrastructure law. A certificate signed or purporting to be
signed by the Safety Director or a transport safety officer stating
certain matters is admissible in evidence and, in the absence
of evidence to the contrary, is proof of the matters stated.
This clause is a re-enactment of section 230A of the Transport
(Compliance and Miscellaneous) Act 1983.
86
The matters which may be included in an evidentiary certificate
are listed in clause 107(1). They enable, for example, proof to
be given by certificate of an improvement notice, when it was
served, and the authority of the person who signed it, or that on
a stated day a person was or was not an accredited bus operator,
accredited rail transport operator or registered bus operator.
Division 4--Court based sanctions
This Division provides for a range of orders which may be made against a
person who is found guilty of an offence against this Bill or a relevant law.
The orders may be made in addition to any sentence imposed by the court.
This Division is drawn from Division 4 of Part 8 of the rail safety national
law and (particularly in the case of adverse publicity orders) from the earlier
enacted Division 6 of Part VII of the Transport (Compliance and
Miscellaneous) Act 1983.
The orders which may be made include--
· a commercial benefits order (clause 109); and
· a supervisory intervention order (clause 110); and
· an exclusion order (clause 111); and
· an adverse publicity order (clause 112).
The Division also allows a court to adjourn a proceeding with or without
conviction, for up to 2 years upon the person giving a safety undertaking
(clause 113).
The power to make an adverse publicity order (but not any of the other
powers under this Division) also applies where a person is found guilty of a
relevant marine law. Relevant marine law (defined in clause 108) is used
only for that purpose.
Clause 108 defines terms used in this Division.
An Australian rail safety law is defined to mean the Rail Safety
National Law (Victoria), the rail safety national law as in force
from time to time and set out in the Schedule to the Rail Safety
National Law (South Australia) Act 2012 of South Australia as
applied as a law of a participating jurisdiction within the
meaning that expression has in that law, or a previous
enactment of a participating jurisdiction which corresponds, or
substantially corresponds, to the rail safety national law as
enacted in Victoria.
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A relevant law is defined to mean a provision of the Bus Safety
Act 2009 or the Rail Safety (Local Operations) Act 2006, or
regulations under either Act.
A relevant marine law is defined to mean a provision of the
Marine Safety Act 2010 or the Marine (Drug, Alcohol and
Pollution Control) Act 1988, or regulations under either Act.
Clause 109 allows a court that finds a person guilty of an offence against
the Bill or a relevant law to make a commercial benefits order,
on the application of the prosecutor or the Safety Director.
This essentially re-enacts section 230B of the Transport
(Compliance and Miscellaneous) Act 1983.
A commercial benefits order requires the person to pay, as a
fine, an amount up to triple the estimated gross commercial
benefit that was received or receivable, or in certain cases
would have been receivable, by the person or an associate from
the commission of the offence. The order may be for a sum less
than 3 times the estimated gross commercial benefit or be less
than the estimated gross commercial benefit.
Clause 109(3) sets out matters that the court may take into
account in estimating the gross commercial benefit, including
benefits of any kind, whether monetary or otherwise or
monetary savings or reductions in operating or capital
expenditure.
Clause 109(4) provides that any costs, expenses or liabilities
incurred by the person or an associate are to be disregarded.
Associate is very widely defined in clause 109(6). For example,
a member of the same household, trustees or beneficiaries of the
same trust, or related bodies corporate are defined as associates.
Clause 110 allows a court that finds a person guilty of an offence against
the Bill or a relevant law to make a supervisory intervention
order, on the application of the prosecutor or the Safety
Director. This essentially re-enacts sections 230C and 230D of
the Transport (Compliance and Miscellaneous) Act 1983.
The court may make the order if it considers the person to be a
systematic or persistent offender against such laws.
88
The court may only make a supervisory intervention order if it
is satisfied that the order is capable of improving the person's
ability or willingness to comply with the Bill or the relevant
law.
A supervisory intervention order requires the person (at the
person's own expense, and for a specified period of up to one
year) to do all or any of the things set out in clause 110(2).
They include--
· doing specified things that the court considers will
improve the person's compliance such as the
following--
· appointing or removing staff to or from
particular activities or positions;
· training and supervising staff;
· obtaining expert advice about maintaining
appropriate compliance;
· installing monitoring, compliance, managerial or
operational equipment;
· implementing monitoring, compliance,
managerial or operational practices or
operational practices, systems or procedures;
· conducting specified monitoring, compliance,
managerial or operational practices, systems or
procedures subject to the direction of the Safety
Director (or his or her nominee);
· furnishing compliance reports to the Safety Director or
the court or both, as specified in the order;
· appointing a person to have responsibilities to assist in
improving compliance, monitoring the person's
performance in complying, and furnishing compliance
reports.
The court may require compliance reports to be made public,
and specify the form, manner and frequency of such
publication.
89
In considering whether to make an order the court is satisfied
that the order will be capable of improving the person's ability
to comply with the Bill or a relevant law, the court may take
account of the accused's conduct, not only of Victorian rail
transport laws, but also equivalent rail safety, bus safety and
marine safety laws of another Australian jurisdiction. In this
regard, the court may also consider infringement notices in
certain circumstances.
If the court makes a supervisory intervention order, it may
suspend any other penalty or sanction imposed for the offence
until the court determines that there has been a substantial
failure to comply with the order.
A court that has power to make supervisory intervention orders
may revoke or amend an order.
It is an offence for a person who is subject to requirement of a
supervisory intervention order to engage in conduct that results
in a contravention of the requirement. If the conduct
complained of also amounts to the commission of another
offence against the Bill or a relevant law, the person may
alternatively be prosecuted for that offence.
Clause 111 allows a court that finds a person guilty of an offence against
this Act or a relevant law to make an exclusion order, on the
application of the prosecutor or the Safety Director. This clause
(and clause 129, which is a Corporations Act displacement
provision in respect of this clause) essentially re-enacts
section 230DA of the Transport (Compliance and
Miscellaneous) Act 1983.
The court may make the order if it considers the person to be a
systematic or persistent offender against such laws. The order
may be made for the purpose of restricting opportunities for the
person to commit or be involved in the commission of further
offences against such laws.
The court may only make an exclusion order if it is satisfied
that the person should not continue the things the subject of
the order and that a supervisory intervention order is not
appropriate, having regard to offences for which the person has
been found guilty and unwithdrawn expiation or infringement
notices relating to offences against the Bill or a relevant law or
an Australian rail safety law, and other relevant offences.
90
An exclusion order may prohibit the person, for a specified
period, from doing any of the things set out in clause 111(2).
They include such matters as providing or managing the
provision of rail infrastructure, operating rolling stock, or
operating providing or managing the provision of bus services,
or being an officer of a corporation which does so. An order
does not exclude a person from driving a train or rolling stock.
A person might also lawfully drive a bus because an order
relates, in respect of bus safety, to providing or managing the
provision of bus services which would not extend to a person in
his or her capacity as a bus driver.
A court that has power to make an exclusion order may revoke
or amend the order.
It is an offence for a person who is subject to an exclusion order
to engage in conduct that results in a contravention of the order.
This clause must be read with clause 129, by which provisions
under the Corporations Act are displaced. This is required
because otherwise the exclusion provisions would be
inconsistent with the scheme of the Corporations Act.
Clause 112 allows a court that finds a person guilty of an offence against
the Bill, a relevant law or a relevant marine law to make an
adverse publicity order, on the application of the prosecutor or
the Safety Director. The provision re-enacts section 230FA of
the Transport (Compliance and Miscellaneous) Act 1983 for
the purposes of the Bill.
An adverse publicity order requires the offender to do all or any
of the things set out in clause 112(2). They include--
· to publicise, or to notify a specified person or class of
persons of, the offence, its consequences, the penalty
imposed and any other related matter, in a specified
way, within the period specified in the order; or
· to give the Safety Director within 7 days thereafter
evidence that the action or actions were taken by the
offender in accordance with the order.
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An adverse publicity order may be made in addition to
imposing a penalty or making any other order in relation to the
offence.
Clause 113 allows a court that convicts, or finds a person guilty, of an
offence against the Bill or a relevant law to adjourn the
proceeding for a period of up to 2 years and release the offender
subject to the offender giving an undertaking with specified
conditions. This clause, and clause 114, re-enact sections 230E
and 230F of the Transport (Compliance and Miscellaneous)
Act 1983 for the purposes of the Bill.
The undertaking must specify the conditions set out in clause
113(2). One of the mandatory conditions is that the offender
does not commit, during the period of the adjournment, any
offence against this Bill or a relevant law.
The court may also impose special conditions, which may
include conditions that the offender--
· engage a consultant to advise on or assist with safety
matters;
· develop and implement a systematic approach to
managing risks to safety; and
· arrange for the carrying out of a safety audit by an
independent person.
An offender who has given an undertaking may be called upon
to appear before the court.
If, on the adjourned date, the court is satisfied that the offender
has observed the conditions of the undertaking, it must
discharge the offender without any further hearing.
An order under this clause may be made in addition to or
instead of imposing a penalty or making any other order in
relation to the offence.
Clause 114 applies relevant provisions of the Sentencing Act 1991 to an
order under clause 113. (The applied provisions, section 78 and
Part 3C, relate to the variation and contravention of orders).
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PART 7--THE SAFETY DIRECTOR AND TRANSPORT
SAFETY OFFICERS
Division 1--The Safety Director
Clause 115 provides that the Safety Director has all of the functions and
powers that a transport safety officer has under the Bill. This is
consistent with section 139 of the rail safety national law, under
which the national regulator has all the powers of a rail safety
officer.
Division 2--Transport safety officers
This Division is derived from Divisions 2, 3 and 8 of Part 4 of the rail safety
national law and Division 4AB and Subdivision 2 of Division 4B of Part VII
of the Transport (Compliance and Miscellaneous) Act 1983.
Subdivision 1--Appointment
Clause 116 provides for the appointment of a transport safety officer by the
Safety Director. Any person who is suitably qualified or trained
to exercise the powers of a transport safety officer may be
appointed.
These provisions re-enact the provisions in Subdivision 2 of
Division 4B of Part VII of the Transport (Compliance and
Miscellaneous) Act 1983 for the purposes of the Bill.
An appointment may be general or subject to conditions, such
as limiting the appointment to the exercise of specific powers or
functions. A transport safety officer may, but need not be, a
person who is a person employed in the Department of
Transport, Planning and Local Infrastructure under the Public
Administration Act 2004.
A person appointed is, by virtue of the appointment, an officer
of the State.
Clause 117 provides for the issuing of identity cards to transport safety
officers.
Clause 118 requires a person who has ceased to be a transport safety officer
to return their identity card to the Safety Director as soon as
practicable. It is an offence not to comply.
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Clause 119 sets out when a transport safety officer is required to produce
his or her identity card when exercising or proposing to exercise
powers under the Bill or a transport safety or infrastructure law.
The card must be produced unless the officer reasonably
believes that to do so would affect the safety or welfare of a
person or frustrate the effective exercise of a power. The card
does not have to be produced to a person if the officer has
already produced it on the same day.
Failure to produce an identity card does not invalidate the
actions taken or things done by the officer.
Subdivision 2--Functions and powers of transport safety officers
Clause 120 provides that a transport safety officer has the powers and
functions conferred under the Bill and a transport safety or
infrastructure law.
Other functions regarding these laws include providing
information about compliance, requiring compliance through
the issuing of notices, investigating contraventions, and
assisting in prosecutions.
Clause 121 provides that a transport safety officer is subject to directions
from the Safety Director, which may be specific or general.
Clause 122 authorises a transport safety officer to take affidavits where this
relates to the performance or exercise of his or her functions or
powers.
Clause 123 enables a transport safety officer to participate in certain
inquiries, such as an inquiry into the cause of death or injury of
a person carrying out bus, marine or rail safety work.
Subdivision 3--Offences in relation to transport safety officers
Clause 124 makes it an offence to intentionally hinder or obstruct a
transport safety officer who is exercising his or her powers
under the Bill or a transport safety or infrastructure law.
This provision is based on section 172 of the rail safety national
law and is similar to elements of an offence contained in
section 225 of the Transport (Compliance and
Miscellaneous) Act 1983.
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Clause 125 prohibits a person who is not a transport safety officer from
holding himself or herself out, in any way, to be such an officer.
This provision is based on section 173 of the rail safety national
law and re-enacts section 228WA of the Transport
(Compliance and Miscellaneous) Act 1983.
Clause 126 makes it an offence to directly or indirectly assault, threaten or
intimidate a transport safety officer or a person assisting such
an officer, or to attempt to do so. This provision is based on
section 174 of the rail safety national law and is similar to
elements of an offence contained in section 225 of the
Transport (Compliance and Miscellaneous) Act 1983.
PART 8--GENERAL
Clause 127 preserves legal professional privilege in relation to documents
and information.
Clause 128 generally enables the Safety Director to recover reasonable
costs in a court of competent jurisdiction (that is, within any
limit of the monetary jurisdiction of the court) associated with
inspections under this Bill of railway infrastructure, rolling
stock, railway premises, bus or marine premises, or a bus or
vessel. Costs of rail and bus safety audits are excluded.
This provision aligns local settings with section 259 of the rail
safety national law.
Clause 129 relates to the power of a court to make an exclusion order under
clause 111. As explained, an exclusion order can prohibit a
person who has been found guilty of an offence against this
Bill, the Bus Safety Act 2009 or the Rail Safety (Local
Operations) Act 2006 who is a systematic or persistent
offender for a specified period from--
· conducting activities such as managing rail
infrastructure or bus services; or
· being a director, secretary or officer concerned in the
management of a body corporate involved in such
activities.
This clause declares section 111 (as clause 111 will become) to
be a "Corporations legislation displacement provision" for the
purposes of the Corporations Act. This is permitted by the
Corporations Act, and ensures that section 111 can apply to its
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full extent, and not be at risk of invalidity because it is
inconsistent with that Act. (For example, because section 111
enables a court to prohibit a person from engaging in specified
activities as a director of a company.)
This provision is a re-enactment of section 230DB of the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 130 provides that nothing in a relevant rail safety duty law--
· confers a right of action in a civil proceeding in respect
of a contravention of such a law; or
· confers a defence to, or otherwise affects, a right of
action in a civil proceeding.
The clause lists the "relevant rail safety laws". It includes a
number of laws that establish safety standards. For example,
it applies to the duty under section 93A of the Electricity
Industry Act 2000 on an electricity corporation or works
contractor to exercise certain powers safely on or in the
immediate vicinity of rail infrastructure or rolling stock.
Clause 131 provides for the service of documents under this Bill or a
transport safety or infrastructure law. For example, by
delivering it personally, by sending it by post or by sending it
to or leaving it at a registered or accredited or exempt person's
address for service (being the last address provided by that
person to the Safety Director as the person's address for
service).
Clause 132 provides for the making of regulations including regulations
regarding transport safety infringements currently contained in
section 228ZZPA of the Transport (Compliance and
Miscellaneous) Act 1983.
PART 9--AMENDMENT OF OTHER ACTS AND REPEALS
Division 1--Bus Safety Act 2009
Clause 133 inserts a definition of body corporate into section 3(1) of the
Bus Safety Act 2009 and substitutes a new definition of officer
in that section. The new definitions relate to new section 69 of
that Act.
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Body corporate has the same meaning as corporation has in
section 57A the Corporations Act. However, consistent with
the approach taken in clause 104, the inclusion of a person who
is concerned in, or takes part in, the management of a body
corporate within the definition of officer includes, and also
extends, the meaning of that notion beyond the meaning of
officer as defined in section 9 of the Corporations Act.
Clause 134 substitutes a new section 69 into the Bus Safety Act 2009
which imposes personal criminal liability on a director or
manager of a body corporate for specified offences committed
by the body corporate under that Act.
The provision takes an approach consistent with the approach
taken in clause 104. Please refer to the notes about that clause
for further information about this type of liability.
The following Bus Safety Act offences are specified as offences
to which the directors' liability provisions apply--
· section 15(1) which places a duty on an operator to
ensure, so far as is reasonably practicable, the safety of
a bus service. To avoid doubt, section 16(1)--the duty
of a procurer to ensure the safety of a bus service--
is not to be made subject to the directors' liability
provision because the duty, while central to the bus
safety scheme, is at arms' length from the operation of
the bus service and (in any event) other duties such as
occupational health and safety duties apply;
· section 17(1) which places a duty on a bus safety
worker to take reasonable measures to ensure the safety
of persons who may be affected by the acts or omissions
of the bus safety worker. The expression includes
designers, manufacturers, repairers etc and is a core
element of the bus safety scheme;
· section 18(1) which contains duties in relation to bus
stopping points and bus stop infrastructure. A person
who determines the location of, designs, constructs,
installs, modifies or maintains a bus stopping point or
any bus stop infrastructure, or who engages a person to
do any of those things, must ensure, so far as is
reasonably practicable, that the location, design,
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construction or condition of the bus stopping point or
bus stop infrastructure is safe;
· section 22A(1) which provides that an operator of a bus
service which is not a commercial bus service or a local
bus service must not operate the bus service unless the
operator is registered;
· section 22A(2) which provides that a registered bus
operator must comply with conditions specified in
section 22(6) of the Bus Safety Act, which contain the
basic minimum requirements for an operator of a
registered bus service;
· section 22A(3) which relates to the operation of
registered bus services--a bus operator who is
registered in respect of a commercial minibus service
must ensure that a person driving a bus for that bus
service is the holder of a driver accreditation under
Division 5 of Part VI of the Transport (Compliance
and Miscellaneous) Act 1983;
· section 22A(4) which relates to the operation of
commercial minibus services--a registered bus operator
must ensure that a person driving a motor vehicle that is
a bus for the bus service in respect of which the operator
is registered holds an appropriate driver licence for the
category of motor vehicle that person is driving for the
registered bus operator;
· section 24 which makes it an offence for an operator to
operate commercial bus service or local bus service
unless accredited;
· section 36 which makes it offence for an accredited bus
operator to fail to comply with conditions of
accreditation;
· section 41(1) which provides that if a relevant change in
circumstances occurs with respect to an accreditation or
an accredited bus operator, the accredited bus operator
must notify the Safety Director of the change in writing
within 7 days after becoming aware of the change;
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· section 41(3) which provides that if the relevant change
in circumstances referred to in relation to section 41(1)
has resulted or will result in any particular set out in the
certificate of accreditation becoming inaccurate or
inapplicable, the accredited bus operator must surrender
the operator's certificate to the Safety Director when the
accredited operator notifies the Safety Director of the
change under section 41(1);
· section 41(6) which applies where an accredited bus
operator fails to notify the Safety Director of relevant
changes in circumstances;
· section 54(2) which provides that an accredited bus
operator or registered bus operator must comply with a
request by the Safety Director to provide safety
information;
· section 56(2) which requires an operator to whom the
section applies to develop, maintain and implement an
alcohol and drug management policy that (a) is
developed in consultation with bus safety workers who
are employees, or contractors, of the operator for the
purposes of operating the bus service; and (b) provides
for certain matters specified in section 57 of the Bus
Safety Act;
· section 65 which relates to notification of prescribed
incidents;
· section 66(1) which provides that a person must not
either deliberately or recklessly (a) provide any
information under the Bus Safety Act that is false or
misleading in a material detail; or (b) provide under that
Act any document that is false or misleading in a
material detail; or (c) make any representation under
that Act that provides a false or misleading impression
of a material detail; or (d) fail to include any material
matter in any information or document provided under
that Act if the failure causes the information or
document to be false or misleading; or (e) engage in
conduct, or a course of conduct, for a purpose that is
relevant to that Act, if that conduct is misleading or
deceptive, or is likely to mislead or deceive.
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Division 2--Marine Safety Act 2010
Clause 135 substitutes a new definition of transport safety officer in
section 3(1) of the Marine Safety Act 2010 (transport safety
officer has the meaning it has in the Bill).
Division 3--Rail Safety Act 2006
Clause 136 substitutes a new definition of transport safety officer in
section 3(1) of the Rail Safety Act 2006 (transport safety
officer has the meaning it has in the Bill).
Division 4--Transport (Compliance and Miscellaneous) Act 1983
Clause 137 makes consequential amendments to the following definitions
in section 2(1) of the Transport (Compliance and
Miscellaneous) Act 1983: mandatory bus safety decision,
mandatory marine safety decision, mandatory rail safety
decision, improvement notice and prohibition notice.
The definitions are now given the same meaning as in the Bill.
Provisions affected by or relating to those matters are now
contained in the Bill rather than the Transport (Compliance
and Miscellaneous) Act.
In addition, the clause repeals the definitions of relevant marine
safety law and relevant transport safety law because they are
redundant.
Clauses 138 to 141 deal with the application of powers of transport safety
officers under the Bill to the Chief Investigator, Transport Safety established
under the Transport Integration Act 2010. These powers are currently
contained in Part V of the Transport (Compliance and Miscellaneous) Act
1983.
Clause 138 omits the definition of railway in section 82C(1) and has the
effect of omitting the definitions of harbour master, master,
owner, pilot, pilotage services provider and pilot exempt
master from section 82C(2) of the Transport (Compliance
and Miscellaneous) Act 1983 because these definitions are
no longer required for the purpose of Part V of that Act.
Vessel remains a term defined in section 82C(2) of that Act
and has the same meaning that it has in the Marine Safety Act
2010, which is explained in the notes to clause 2.
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Clause 139 applies the powers of transport safety officers in Part 2 of the
Bill to the Chief Investigator, Transport Safety (Chief
Investigator). This is the same as the scheme in Division 3 of
Part V of the Transport (Compliance and Miscellaneous) Act
1983.
Section 84 of the Transport (Compliance and Miscellaneous)
Act 1983, which applies the powers of transport safety officers
in that Act to the Chief Investigator, is replaced so as to apply
the powers in Part 2 of the Bill to that office.
As with the existing Transport (Compliance and Miscellaneous)
Act scheme, the powers are modified by new section 84 so that
they relate to investigative purposes and the functions of the
Chief Investigator.
A reference to public transport premises is taken to be a
reference to any place where an incident involving a bus
occurred and where the bus, or anything that is, or is possibly,
relevant to an investigation into the incident involving the bus,
is present. This is similar to section 84(a)(ii)(A) of the
Transport (Compliance and Miscellaneous) Act.
It is not necessary to duplicate section 84(a)(ii)(B), which refers
to premises used by a person to conduct bus operations and
other related activities, because these matters are captured by
the definition of bus premises in the Bill.
A reference to compliance and investigative purposes is taken to
be a reference to an investigation into a public transport matter
or a marine safety matter. This is like section 84(a)(vii) of the
Transport (Compliance and Miscellaneous) Act.
A reference to a transport safety officer is taken to be a
reference to the Chief Investigator. This is like section 84(a)(i)
of the Transport (Compliance and Miscellaneous) Act.
A new definition of specified person is inserted, and is similar
to the definition of relevant person in section 228S of the
Transport (Compliance and Miscellaneous) Act 1983.
(The definition of relevant person is repealed; references to a
commercial marine duty holder and a works contractor within
the meaning of the Water Act 1989 are not required, and are
omitted from the new definition).
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Specified person means--
· a rail transport operator; or
· an operator of any bus service; or
· an employee of a rail transport operator; or
· a driver of a bus used to provide a bus service; or
· a contractor of a rail transport operator; or
· a procurer of a bus service within the meaning of the
Bus Safety Act 2009; or
· a rail safety worker; or
· a bus safety worker; or
· a utility; or
· an employee of a utility; or
· a works contractor within the meaning of section 85 of
the Electricity Industry Act 2000, section 48A of the
Road Management Act 2004, or section 137A(4) of
the Water Act 1989; or
· a person authorised in writing by a gas distribution
company or gas transmission company under
section 148(7) or 149(6) of the Gas Industry Act 2001;
or
· a person whom the Chief Investigator believes on
reasonable grounds may be able to provide information,
documents or assistance for the purpose of carrying out
an investigation into a public transport safety matter or a
marine safety matter.
The powers of a transport safety officer on entry or boarding
under clause 8 are varied so that references to an offence against
a transport safety or infrastructure law are taken to be references
to the purpose of carrying out an investigation into a public
transport safety matter or a marine safety matter.
In relation to seizure under clause 8(1)(i), the Chief Investigator
must reasonably believe the seizure is necessary for the purpose
of carrying out an investigation into a public transport safety
matter or a marine safety matter rather than (for transport safety
officers) having a reasonable belief the thing to be seized is
102
evidence of an offence against a transport safety or
infrastructure law.
Similarly, under clause 8(1)(m), the Chief Investigator may
exercise any power that is reasonably necessary to be exercised
for the purposes of an investigation into a public transport
safety matter or a marine safety matter rather than (for transport
safety officers) for the purposes of a transport safety or
infrastructure law.
Clause 12(3) is also varied so that the Magistrates' Court may
order the detention of a vessel for the purposes of an
investigation into a marine safety matter or because the vessel
is or is likely to be required for an investigation into such a
matter.
Clause 13(2)(a) is varied to substitute a reference in the Bill
and a transport safety or infrastructure law with a reference
to Part V of the Transport (Compliance and Miscellaneous)
Act, which contains the relevant powers of the Chief
Investigator.
Clause 14(2) is also varied so that information may be put into
documentary form, copied or seized if the Chief Investigator
believes on reasonable grounds that it is relevant to an
investigation into a public transport safety matter or a marine
safety matter.
Clause 18 is also varied so that a warrant may be issued if there
are reasonable grounds for suspecting that there is a particular
thing or activity that may be significant to an investigation into
a public transport safety matter or a marine safety matter which
is, or may within the next 72 hours be, at a particular place or
on particular rolling stock or a particular bus or vessel.
If a warrant is issued, it must contain a brief description of the
investigation in respect of which the warrant is sought.
Things not mentioned in the warrant may also be seized under
clause 19 if they are of significance to an investigation into a
public transport safety matter or a marine safety matter.
Clause 22 is substituted by a provision which draws both on
clause 22 of the Bill and section 228ZK of the Transport
(Compliance and Miscellaneous) Act 1983.
103
This provides that the Chief Investigator may, for the purposes
of an investigation into a public transport safety matter or a
marine safety matter, direct a specified person to provide to the
Chief Investigator certain documents, devices or things.
Those are, any document required to be kept under a relevant
transport safety or infrastructure law, and any documents,
devices or other things in the person's possession or control
relating to the provision of bus services, railway operations or
marine operations.
The direction must state where and to whom the documents,
devices or other things are to be produced and may specify
particular documents, devices or other things, or particular
classes of documents, devices or other things.
New section 22(4) provides that the Chief Investigator may
inspect and copy any documents, devices or other things that
are produced pursuant to a direction under new section 22(3).
Items may be seized and removed if the Chief Investigator
believes on reasonable grounds are significant for the purposes
of the investigation into the public transport safety matter or a
marine safety matter.
As with transport safety officers, the privilege against self-
incrimination is abrogated, and direct and derivative use
immunities (explained in respect of clause 23 of the Bill) are
provided.
Clause 23(3), which contains exceptions to those immunities, is
omitted in respect of the Chief Investigator. The "carve-outs"
from the immunities are not needed for the purpose of Part V of
the Transport (Compliance and Miscellaneous) Act because
the Chief Investigator carries out no-blame investigations.
A new clause 24(4) is inserted which provides (to avoid doubt)
that nothing in clause 24 limits the Chief Investigator's powers
under section 84AB of the Transport (Compliance and
Miscellaneous) Act 1983, which contains a separate coercive
questioning power.
Clause 33, which relates to forfeiture of seized things, is also
changed so that a thing may only be forfeited if the Chief
Investigator cannot find the person entitled to the thing after
making reasonable inquiries, cannot return the thing after
making reasonable efforts or where the Chief Investigator
104
reasonably believes it is necessary to forfeit the thing for the
purpose of carrying out an investigation into a public transport
safety matter or a marine safety matter.
Similarly, if a thing has been seized but has not been forfeited,
it must be returned to the person entitled unless the Chief
Investigator has reasonable grounds to retain it. New section 84
provides that, for the purposes of clause 34(3), it is reasonable
ground if the purpose is carrying out an investigation into a
public transport safety matter or a marine safety matter.
References to the exercise of power under a transport safety or
infrastructure law are omitted in clauses 36 and 37(1). So, for
example, "exercising a power under a transport safety or
infrastructure law or this Part" becomes "exercising a power
under this Part".
References to the commission of an offence against or non-
compliance with such a law are also omitted in respect of
compensation provisions in clauses 39(a) and 40(1)(b), with
the effect that the Chief Investigator is not liable to pay
compensation (which may be claimed and ordered in
proceedings in a court of competent jurisdiction) if damage
caused is no more than reasonably necessary in inspecting or
searching for a thing.
The power to require a person to provide the person's name and
address in clause 41(1) is also varied so that the Chief
Investigator may require a person to provide the person's name
and residential address if the Chief Investigator believes, on
reasonable grounds, that the person is a specified person
(in accordance with the new definition provided for in new
section 84(b)).
The power to require a person to stop a vessel and produce
licences, etc., contained in clause 42 is disapplied.
Clause 140 inserts new sections 84A and 84AA into the Transport
(Compliance and Miscellaneous) Act 1983 to provide that the
Chief Investigator must carry photograph identification when
exercising a power conferred under section 84 of that Act as
replaced by the Bill. The effect of the amendment is to provide
that the Chief Investigator must produce his or her photo
identification in the same manner and subject to the same
conditions as a transport safety officer is required or subject to
under clause 119.
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Clause 141 amends section 84B(1) of the Transport (Compliance and
Miscellaneous) Act 1983 to omit a reference to section 84A.
Clause 142 repeals Division 2A of Part VII of the Transport (Compliance
and Miscellaneous) Act 1983 which relates to safety work
infringements. The provisions are substantially re-enacted in
Division 2 of Part 4 of the Bill.
Clause 143 substitutes a new section 226 into the Transport (Compliance
and Miscellaneous) Act 1983 which imposes personal criminal
liability on a director or manager of a body corporate for
specified offences committed by the body corporate under that
Act. The provision takes an approach consistent with the
approach taken in clause 104. Please refer to the notes about
that clause for further information about this type of liability.
Body corporate has the same meaning as corporation has in
section 57A the Corporations Act. However, the inclusion of a
person who is concerned in, or takes part in, the management of
a body corporate within the definition of officer in this clause
includes, and also extends, the meaning of that notion beyond
the meaning of officer as defined in section 9 of the
Corporations Act.
The following offences are specified as offences to which the
directors' liability provisions apply--
· section 131 which makes it an offence for a taxi-cab
operator not to be accredited;
· section 131A(1) which makes it an offence for provider
of taxi-cab network services not to be accredited;
· section 133B which makes it an offence to fail to
comply with conditions of accreditation;
· section 135F(5) which relates to improvement notices;
· section 137(3) which provides that an accreditation
cannot be transferred;
· section 137A(4) which provides that the holder of an
accreditation to notify of a relevant change in
circumstances;
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· section 137C which contains offences about false
representations in relation to an accreditation;
· section 144(1A) and (4) which relate to conditions on a
commercial passenger vehicle licence;
· section 150A(1) which provides that an unauthorised
person must not trade in taxi-cab licences;
· sections 158(1) and (3) which create offences of
operating commercial passenger vehicles without
authorisation;
· section 158AA which provide that it is an offence for
a taxi-cab to be operated without permission of the
accredited operator or related person;
· section 158AB(1) which provides that the operator of a
taxi-cab commits an offence if the operator's taxi-cab is
operated by certain persons;
· section 158B(1), (2) and (4) which contains offences
relating to security cameras and privacy of passengers;
· section 169WA(2) which provides that an operator must
not permit a non-accredited driver to drive commercial
passenger vehicle;
· section 224(1) which contains an offence relating to the
provision of false or misleading information;
· section 225(2) and (3) which makes it an offence to
assault or obstruct officers (as defined in the section);
· section 225B which provides that it is an offence to
impersonate an officer;
· section 225C(2) which makes it an offence to offer,
give, solicit or accept a bribe;
· section 228DA which requires accredited companies
(a passenger transport company or bus company or the
Bus Association Victoria) to comply with conditions of
those accreditations;
· section 228DB which makes it an offence to employ or
engage an authorised officer without accreditation;
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· section 228G which contains requirements for a
passenger transport company or bus company or the
Bus Association Victoria to notify the Secretary of
the Department of Transport, Planning and Local
Infrastructure about charges laid against an authorised
officer;
· section 228H(1) which provides that company that
holds an accreditation (other than a temporary
accreditation) under the accreditation regime for
passenger transport companies engaging authorised
officers must notify the Secretary of the Department of
Transport, Planning and Local Infrastructure
(in writing) of any relevant incident or occurrence
within 48 hours after the incident or occurrence takes
place;
· section 228H(4) which provides that if a company
which engages authorised officers receives a request
under subsection 228H(2) about any matter related to
the authorised officers employed or engaged by the
company it must comply with that request within the
period specified under subsection (3) by the Secretary
of the Department of Transport, Planning and Local
Infrastructure;
· section 228H(6) which provides that such a company
must comply with any request for further information
under subsection 228H(5) within the period (if any)
specified in that request--this again relates to the
accreditation regime for passenger transport companies
engaging authorised officers;
· section 228QA(6) which contains provisions about
improvement notices in respect of the accreditation
regime for passenger transport companies engaging
authorised officers.
Clauses 144 to 149 make further consequential amendments to the
Transport (Compliance and Miscellaneous) Act 1983.
Clause 144 repeals Division 4B of Part VII of the Transport (Compliance
and Miscellaneous) Act 1983, which contains transport safety
officers' compliance and investigatory powers which are being
replaced by the powers in the Bill.
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Clause 145 repeals section 229A of the Transport (Compliance and
Miscellaneous) Act 1983, which determines who may bring
prosecutions for offences against a relevant transport safety law,
which is being replaced by the provisions in the Bill.
Clause 146 repeals section 229B of the Transport (Compliance and
Miscellaneous) Act 1983, which limits the period in which
certain persons may bring prosecutions for offences against a
relevant transport safety law, which is being replaced by the
provisions in the Bill.
Clause 147 repeals section 230A of the Transport (Compliance and
Miscellaneous) Act 1983, which relates to evidentiary
certificates. New, similar, provisions are contained in
clause 107 of the Bill.
Clause 148 repeals the definition of relevant law in section 230AI of the
Transport (Compliance and Miscellaneous) Act 1983, which
relates to court orders such as commercial benefit orders.
New, similar, provisions are contained in the Bill.
Clause 149 amends section 230B of the Transport (Compliance and
Miscellaneous) Act 1983 relating to commercial benefits
orders, so that it does not apply to matters now dealt with by
clause 109 of the Bill.
Clause 150 amends section 230C of the Transport (Compliance and
Miscellaneous) Act 1983 relating to supervisory intervention
orders, so that it does not apply to matters now dealt with by
clause 110 of the Bill.
Clause 151 amends section 230DA of the Transport (Compliance and
Miscellaneous) Act 1983 relating to exclusion orders, so that it
does not apply to matters now dealt with by clause 111 of the
Bill.
Clause 152 amends section 230E of the Transport (Compliance and
Miscellaneous) Act 1983 relating to release on giving an
undertaking to the court, so that it does not apply to matters
now dealt with by clause 113 of the Bill.
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Clause 153 amends section 230F of the Transport (Compliance and
Miscellaneous) Act 1983 relating to the variation or
contravention of orders providing for the release of a person on
giving an undertaking, so that it does not apply to matters now
dealt with by clause 114 of the Bill.
Clause 154 amends section 230FA of the Transport (Compliance and
Miscellaneous) Act 1983 relating to adverse publicity orders,
so that it does not apply to matters now dealt with by clause 112
of the Bill.
Clause 155 repeals paragraph (e) from the definitions of relevant rail
protection law and relevant rail safety duty law in section 230G
of the Transport (Compliance and Miscellaneous) Act 1983
because these are no longer required for the purpose of that Act.
Clause 156 repeals section 230H of the Transport (Compliance and
Miscellaneous) Act 1983. The repealed section has been
re-enacted as clause 130 of the Bill.
Division 5--Rail Safety National Law Application Act 2013
Clause 157 amends section 91(1) and repeals section 91(2) of the Rail
Safety National Law Application Act 2013 which inserts
references to the national rail safety law in relation to provisions
relating to the Chief Investigator. Those references are
unnecessary because the Chief Investigator will investigate
matters relating to nationally regulated railways under
delegation from the Australian Transport Safety Bureau.
Division 6--Transport Legislation Amendment (Rail Safety Local
Operations and Other Matters) Act 2013
Clause 158 repeals section 108 of the Transport Legislation Amendment
(Rail Safety Local Operations and Other Matters) Act 2013
which amends section 215B(8) of the Transport (Compliance
and Miscellaneous) Act 1983 which relates to safety work
infringements. The amendment changes the title of the Rail
Safety Act 2006 to the Rail Safety (Local Operations) Act
2006 but overlaps with a similar amendment made by
section 95 of the Rail Safety National Law Application Act
2013.
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Provisions relating to safety work infringements are repealed
and re-enacted in the Bill, but the Rail Safety National Law
Application Act 2013 amendment is nevertheless required in
case that Act commences prior to commencement of the safety
work infringements provisions in the Bill.
Division 7--Victoria Police Act consequential amendment
Clause 159 substitutes a new definition of police officer in clause 3 which
provides that the term police officer has the same meaning as in
the Victoria Police Act 2013. If that Act commences before
the Bill, this provision will be proclaimed to commence with
the other provisions in the Bill. If that Act commences after the
provisions in the Bill commence, this provision will not be
commenced until the commencement of the Victoria Police Act.
Division 8--Repeal of amending Part
Clause 160 provides that Part 9 is repealed on the first anniversary of the
first day on which all of its provisions are in operation. It will
be repealed on this day as it will have taken full effect.
The repeal of the Part does not affect the continuing operation
of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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