Victorian Numbered Acts Victorian Numbered ActsAfter section 230 of the Transport Act 1983 insert —
(1) In any proceeding for an offence against a relevant transport safety law, a certificate signed, or purporting to be signed, by the Safety Director or a transport safety officer stating any of the following matters shall be admissible in evidence and, in the absence of evidence to the contrary, shall be proof of the matters stated—
(a) a stated document is one of the following things made, given, served or issued under a relevant transport safety law or regulations made under a relevant transport safety law—
(i) an appointment or a decision;
(ii) a notice, notification, direction or requirement;
(iii) an accreditation or exemption;
(iv) an improvement notice or an amendment to an improvement notice already served;
(v) a prohibition notice or an amendment to a prohibition notice already served;
(vi) a clearance certificate issued under section 228ZZH;
(vii) a certificate issued under section 228ZZN;
(b) a stated document is a copy of a thing referred to in paragraph (a);
(c) on a stated day, or during a stated period, a stated person—
(i) was or was not accredited; or
(ii) held or did not hold an exemption;
(d) on a stated day, or during a stated period, an accreditation or exemption—
(i) was or was not in force; or
(ii) was or was not subject to a stated term, condition, limitation or restriction;
(e) on a stated day, or during a stated period, an accreditation was suspended;
(f) on a stated day an accreditation was cancelled, varied or surrendered;
(g) on a stated day a condition or restriction on an accreditation was varied or revoked;
(h) on a stated day an exemption was revoked;
(i) on a stated day or during a stated period, an appointment as a transport safety officer was, or was not, in force for a stated person;
(j) on a stated day a stated person was given a stated notice, notification or direction under a relevant transport safety law;
(k) on a stated day a person was served—
(i) an improvement notice or prohibition notice; or
(ii) amendment to an improvement notice or prohibition notice already served;
(l) on a stated day—
(i) an improvement notice was cancelled; or
(ii) a prohibition notice was withdrawn;
(m) on a stated day a clearance certificate under section 228ZZH was issued;
(n) on a stated day a certificate under section 228ZZN was issued;
(o) on a stated day a stated requirement was made of a stated person;
(p) that a stated amount is payable under the Rail Safety Act 2006 by a stated person and has not been paid.
(2) In this section—
"accreditation" has the same meaning as in the Rail Safety Act 2006 ;
"exemption" means an exemption under—
(a) section 63 or 66 of the Rail Safety Act 2006 ; or
(b) regulations made under the Rail Safety Act 2006 .
(1) A court that finds a person guilty of an offence against a relevant transport safety law may, on the application of the prosecutor or the Safety Director, make an order under this section.
(2) The court may make a commercial benefits penalty order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that—
(a) was obtained or obtainable, by the person or by an associate of the person, from the commission of the offence; and
(b) in the case of a journey that was interrupted or not commenced because of action taken by a transport safety officer in connection with the commission of the offence—would have been obtained or obtainable, by the person or by an associate of the person, from the commission of the offence had the journey been completed.
(3) In estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court may take into account—
(a) benefits of any kind, whether monetary or otherwise; and
(b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and
(c) any other matters that it considers relevant, including (for example)—
(i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and
(ii) the distance over which any such goods were or were to be carried.
(4) However, in estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.
(5) Nothing in this section prevents the court from ordering payment of an amount that is—
(a) less than 3 times the estimated gross commercial benefit; or
(b) less than the estimated gross
commercial benefit.
s. 127
(1) A court that finds a person guilty of an offence against a relevant transport safety law may, on the application of the prosecutor or the Safety Director, if the court considers the person to be a systematic or persistent offender against a relevant transport safety law, make an order under this section.
(2) The court may make a supervisory intervention order requiring the person (at the person's own expense and for a specified period not exceeding one year) to do all or any of the following—
(a) to do specified things that the court considers will improve the person's compliance with relevant transport safety laws or specified aspects of a relevant transport safety law, including (for example) the following—
(i) appointing or removing staff to or from particular activities or positions;
(ii) training and supervising staff;
(iii) obtaining expert advice as to maintaining appropriate compliance;
(iv) installing, monitoring, compliance, managerial or operational equipment;
(v) implementing, monitoring, compliance, managerial or operational practices, systems or procedures;
(b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Safety Director or a person nominated by the Safety Director;
(c) to furnish compliance reports to the Safety Director or the court or both as specified in the order;
(d) to appoint a person to have responsibilities—
(i) to assist the person in improving compliance with a relevant transport safety law or specified aspects of a relevant transport safety law; and
(ii) to monitor the person's performance in complying with a relevant transport safety law or specified aspects of a relevant transport safety law and in complying with the requirements of the order; and
(iii) to furnish compliance reports to the Safety Director or the court or both as specified in the order.
(3) The court may specify matters that are to be dealt with in compliance reports and the form, manner and frequency in which compliance reports are to be prepared and furnished.
(4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form, manner and frequency in which they are to be made public.
(5) The court may only make a supervisory order if it is satisfied that the order is capable of improving the person's ability or willingness to comply with the relevant transport safety law, having regard to—
(a) the offences against a relevant transport safety law of which the person has been previously found guilty; and
(b) the offences against a relevant transport safety law for which the person has been proceeded against by way of unwithdrawn infringement notices; and
(c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with rail transport.
(6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order.
(7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of—
(a) the Safety Director; or
(b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment.
(8) In this section—
"compliance report" , in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to—
(a) the performance of the person in complying with—
(i) a relevant transport safety law or specified aspects of a relevant transport safety law specified in the order; and
(ii) the requirements of the order; and
(b) without limiting the above—
(i) things done by the person to ensure that any failure by the person to comply with the relevant transport safety law or the specified aspects of the relevant transport safety law does not continue; and
(ii) the results of those things having been done.
A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement.
Penalty: In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
(1) If a court convicts a person or finds a person guilty of an offence against a relevant transport safety law the court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions.
(2) An undertaking must specify the following conditions—
(a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned;
(b) that the offender does not commit, during the period of the adjournment, any offence against a relevant transport safety law;
(c) that the offender observes any special conditions imposed by the court.
(3) Without limiting sub-section (2)(c), the court may impose on an offender special conditions that the offender—
(a) engage a consultant, who is approved in writing by the Safety Director, to advise on or assist with safety matters; and
(b) develop and implement a systematic approach to managing risks to safety that arise or may arise in the conduct of the offender's undertaking; and
(c) arrange for the carrying out of an audit of the offender's undertaking in relation to safety by an independent person who is approved in writing by the Safety Director.
(4) An offender who has given an undertaking under this section may be called on to appear before the court—
(a) by order of the court; or
(b) by notice issued by the proper officer (within the meaning of section 72(4) of the Sentencing Act 1991 ) of the court.
(5) An order or notice under sub-section (4) must be served on the offender not less than 4 days before the time specified in it for the appearance.
(6) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding.
(7) The court may make an order under this section in relation to an offender in addition to or instead of—
(a) imposing a penalty on the offender; or
(b) making any other order that the court may make in relation to the offence.
Sections 78 and 79 of the Sentencing Act 1991 (and any definitions in that Act of terms used in those sections) apply to an order under section 230E for the release of an offender as though they were incorporated into this Act and as though—
(a) a reference to Subdivision (2) or (3) were instead a reference to section 230E; and
(b) a reference to a prescribed person, a member of a prescribed class of persons, the informant or a police prosecutor were instead a reference to the Safety Director; and
(c) the reference in section 79(4) of the Sentencing Act 1991 to a level 10 fine were instead a reference to a fine not exceeding 10 penalty units for a natural person or 50 penalty units for a body corporate; and
(d) any other necessary modifications were made.
In this Subdivision—
"relevant rail protection law" means—
(a) section 93B or 93C(1) of the Electricity Industry Act 2000 ;
(b) section 149B or 149C(1) of the Gas Industry Act 2001 ;
(c) section 48E or 48F of the Road Management Act 2004 ;
(d) section 137B(1) or 137C(1) of the Water Act 1989 ;
(e) section 62B(1) or 62C(1) of the Water Industry Act 1994 ;
"relevant rail safety duty law" means—
(a) section 93A(1) or (2) of the Electricity Industry Act 2000 ;
(b) section 149A(1) or (2) of the Gas Industry Act 2001 ;
(c) section 48B, 48C or 48D of the Road Management Act 2004 ;
(d) section 137A(1) or (2) of the Water Act 1989 ;
(e) section 62A(1) or (2) of the Water Industry Act 1994 .
Nothing in a relevant rail safety duty law is to be construed as—
(a) conferring a right of action in civil proceedings in respect of a contravention of a relevant rail safety duty law; or
(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings.
(1) If a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act applies to an activity in respect of which a duty under a relevant rail safety duty law is imposed, that provision continues to apply, and must be observed in addition to the relevant rail safety duty law.
Note: See also section 51 of the Interpretation of Legislation Act 1984 .
(2) If a relevant rail safety duty law is inconsistent with a provision of the Occupational Health and Safety Act 2004 or the regulations made under that Act, the Occupational Health and Safety Act 2004 or the regulations made under it prevail to the extent of the inconsistency.
(3) Compliance with a relevant rail safety duty law, or with any requirement imposed under a relevant rail safety duty law, is not in itself a defence in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act.
(4) Evidence of a relevant contravention of a relevant rail safety duty law is admissible in any proceedings for an offence against the Occupational Health and Safety Act 2004 or the regulations made under that Act.
(1) Divisions 1 to 3 of Part 9 of the Rail Safety Act 2006 apply to the commission of an offence against a relevant rail protection law in the same way as those Divisions apply to the commission of an offence against a provision of the Rail Safety Act 2006 (other than an offence against a provision in Division 2 or 3 of Part 3 of that Act).
(2) Divisions 1 to 3 of Part 9 of the Rail Safety Act 2006 apply to the commission of an offence against a relevant rail safety duty law in the same way as those Divisions apply to the commission of an offence against a provision of Division 2 or 3 of Part 3 of the Rail Safety Act 2006 or regulations made under that Act for the purposes of Division 2 or 3 of Part 3 of that Act.'.