Transport (Rail Safety) Act 2010

An Act to provide for rail safety, and for related purposes

Long title amd 2010 No. 6 s 329

1Short title

This Act may be cited as the Transport (Rail Safety) Act 2010 .

2Commencement

This Act commences on a day to be fixed by proclamation.

3Objects

Having regard to the importance of ensuring rail safety and regulatory efficiency, the objects of this Act are—

(a)to provide for improvement of the safe carrying out of railway operations; and

(b)to provide for the management of risks associated with railway operations; and

(c)to make special provision for the control of particular risks arising from railway operations; and

(d)to promote public confidence in the safety of transport of passengers or freight by rail.

4Ways this Act achieves its objects

(1)This section states the ways this Act achieves its objects.

(2)This Act, the Work Health and Safety Act and the Electrical Safety Act impose duties and obligations directed at ensuring rail safety on—

(a)rail transport operators and other persons carrying out railway operations; and

(b)rail safety workers.

Note—

The Work Health and Safety Act and the Electrical Safety Act also impose duties on other persons whose activities could affect rail safety, including for example, persons who conduct a business or undertaking that designs, manufactures, supplies, installs, constructs or commissions a thing that is to be used as or in connection with rail infrastructure or rolling stock.

(3)This Act also provides for a system of accreditation directed at ensuring rail transport operators have the competence and capacity to carry out particular railway operations safely that includes the following—

(a)a requirement to be accredited before carrying out the railway operations;

(b)criteria for deciding whether or not a rail transport operator is suitable for carrying out the railway operations;

(c)a requirement to have a safety management system for the railway operations that—

(i)is established and updated in consultation with persons who carry out work, or will carry out work, in relation to the railway operations; and

(ii)provides for the assessment, evaluation and control of all risks associated with the railway operations.

(4)This Act also provides for the following—

(a)a coordinated approach to the management of the following—

(i)risks to safety arising from a rail transport operator’s railway operations caused by the railway operations of another rail transport operator;

(ii)risks to safety arising from railway operations on or in relation to rail infrastructure caused by the existence or use of a rail or road crossing for a road;

(iii)risks to safety arising from the existence or use of a rail or road crossing for a road caused by railway operations on or in relation to rail infrastructure;

(b)the establishment and implementation of plans and programs to manage particular risks to the safety of railway operations arising from security incidents, emergencies, poor health and fitness of workers, fatigue of workers and the presence of alcohol and drugs in workers;

(c)measures for ensuring rail safety workers are competent and not impaired by the presence of alcohol or drugs;

(d)the reporting of information about, and the auditing, monitoring and investigation of, the carrying out of railway operations, including, in particular, reporting and investigation of notifiable occurrences and other occurrences that endanger or could endanger the safe operation of railway operations.

s 4 amd 2011 No. 18 s 404 sch 4 pt 1

5Application of Act generally

(1)This Act applies to railway operations, rail safety work and other activities associated with railway operations.

(2)However, this Act does not apply to railway operations, rail safety work or another activity relating to any of the following—

(a)a railway that—

(i)is part of, and used solely for, mining operations; and

(ii)is not connected to a railway used to transport passengers or freight;

(b)a slipway;

(c)a railway used only to guide a crane;

(d)an aerial cable operated system;

(e)a railway that—

(i)is operated solely within an amusement or theme park; and

(ii)is an amusement device required to be registered under the Work Health and Safety Act for its use; and

(iii)does not operate on or across a road;

(f)a monorail;

(g)a cane railway;

(h)a railway, or a class of railway, prescribed under a temporary regulation to be a railway to which this Act does not apply.

(3)In this section—

cane railway means a railway that—

(a)is operated, entirely or partly, on an access right under the Sugar Industry Act 1999 , chapter 2, part 4; and

(b)is used, or proposed to be used, to transport sugar cane, sugar or sugar cane by-products; and

(c)does not transport—

(i)passengers; or

(ii)freight other than sugar cane, sugar or sugar cane by-products.

mining operations means—

(a)coal mining operations within the meaning of the Coal Mining Safety and Health Act 1999 , schedule 3; or

(b)operations within the meaning of the Mining and Quarrying Safety and Health Act 1999 , section 10.

s 5 amd 2011 No. 18 s 404 sch 4 pt 1

6Application of Act to circumstances to which Electrical Safety Act applies

(1)This section applies if—

(a)this Act, in the absence of this section, would have application in particular circumstances; and

(b)the Electrical Safety Act also has application in the circumstances.

(2)This Act does not have application in the circumstances to the extent that the Electrical Safety Act has application.

(3)Without limiting subsection (2), to the extent that this Act would impose on a person a rail safety duty that is concurrent with an electrical safety duty imposed on the person under the Electrical Safety Act, the rail safety duty does not apply to the person.

Example for subsection (3)—

Section 24 of this Act imposes a duty on a rail transport operator to ensure rail safety is not affected by the carrying out of the operator’s railway operations. Under the Electrical Safety Act, a duty is imposed on a person conducting a business or undertaking to ensure the business or undertaking is conducted in a way that is electrically safe. Accordingly, the duty under this Act of a rail transport operator to ensure rail safety is not affected by the carrying out of the operator’s railway operations does not include a duty to ensure the railway operations are carried out in a way that is electrically safe.

Note—

See the Work Health and Safety Act, schedule 1, part 2, division 2 for a similar provision to this section.

s 6 amd 2011 No. 18 s 404 sch 4 pt 1

7Act binds all persons

This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

8Definitions

The dictionary in schedule 3 defines particular words used in this Act.

9Meaning of railway operations

Each of the following are railway operations—

(a)the construction of a railway, railway tracks and associated track structures or rolling stock;

(b)the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure;

(c)the commissioning, maintenance, repair, modification or decommissioning of rolling stock;

(d)the operation or movement, or causing the operation or movement in any way, of rolling stock on a railway track, including for the construction or restoration of rail infrastructure or operating a railway service.

Note—

The commissioning, installation and decommissioning of rail infrastructure, and the commissioning and decommissioning of rolling stock, are railway operations for this Act. However, the Work Health and Safety Act and Electrical Safety Act impose duties about the safety of the commissioning, installation and decommissioning. See section 6 and part 2 for the application of those Acts.

s 9 amd 2011 No. 18 s 404 sch 4 pt 1

10Meaning of rail safety work

(1)Work that is of any of the following classes is rail safety work—

(a)driving or despatching rolling stock or another similar activity capable of controlling or affecting the movement of rolling stock;

(b)signalling, including signalling operations, receiving or relaying communications or another similar activity capable of controlling or affecting the movement of rolling stock;

(c)coupling or uncoupling rolling stock;

(d)maintaining, repairing, modifying, monitoring, inspecting or testing rolling stock, including checking that the rolling stock is working properly before being used;

(e)installation of components in relation to rolling stock;

(f)work on or about rail infrastructure relating to the design, construction, maintenance, repair, modification, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used;

(g)installation or maintenance of—

(i)a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure; or

(ii)the way of supplying electricity directly to rail infrastructure, to rolling stock using rail infrastructure, or to a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure;

(h)work involving certification about the safety of rail infrastructure or rolling stock or a component of rail infrastructure or rolling stock;

(i)work involving the decommissioning of rail infrastructure or rolling stock or a component of rail infrastructure or rolling stock;

(j)work involving the development, management or monitoring of safe working systems for a railway;

(k)work involving the management or monitoring of the safety of passengers on or at a railway;

(l)any other work prescribed under a temporary regulation to be rail safety work.

(2)However, rail safety work does not include work prescribed under a temporary regulation not to be rail safety work.

Notes—

1In this Act, the term rail safety work is used to describe work that could affect the safety of railways. It is not used to describe work that is directed at ensuring rail safety.

2Work relating to the design of rail infrastructure or involving the decommissioning of rail infrastructure or rolling stock is rail safety work for this Act. However, the Work Health and Safety Act and Electrical Safety Act impose duties about the safety of the design and decommissioning. See section 6 and part 2 for the application of those Acts.

s 10 amd 2011 No. 18 s 404 sch 4 pt 1

11Corresponding laws

For the purposes of corresponding laws—

(a)this Act is a rail safety law; and

(b)the chief executive is the rail safety regulator for this Act.

12Ensuring rail safety

Rail safety is ensured when persons, including rail safety workers, passengers, other users of railways, users of rail or road crossings and the general public, are free from—

(a)death, injury or illness caused by railway operations, rail safety work or other activities associated with railway operations; and

(b)risk of death, injury or illness caused by railway operations, rail safety work or other activities associated with railway operations.

pt hdg amd 2011 No. 18 s 404 sch 4 pt 1

13Purpose of pt 2

The purpose of this part is to explain, in general terms, the operation of this Act in relation to the operation of the Work Health and Safety Act.

s 13 amd 2011 No. 18 s 404 sch 4 pt 1

14Application of this Act in circumstances to which Work Health and Safety Act applies

(1)This section applies if—

(a)this Act applies in particular circumstances; and

(b)the Work Health and Safety Act also has application in the circumstances.

Note—

Under schedule 1, part 2, division 3 of the Work Health and Safety Act, that Act does not apply to circumstances to which part 3, division 2 of this Act applies.

(2)The Work Health and Safety Act continues to apply, and must be complied with, in addition to this Act.

Notes—

1See the Acts Interpretation Act 1954 , section 45 for the prohibition on punishing a person more than once in relation to an act or omission constituting an offence under 2 or more laws.

2See the Work Health and Safety Act, schedule 1, part 2, division 4 for the application of that Act, including the continued application of that Act even if another Act imposes a lesser standard for particular duties about health and safety.

(3)If this Act is inconsistent with the Work Health and Safety Act, the Work Health and Safety Act prevails to the extent of the inconsistency.

(4)However, this Act is not inconsistent with the Work Health and Safety Act only because it—

(a)imposes additional duties on a person on whom a duty is imposed under the Work Health and Safety Act; or

(b)otherwise increases the standards of safety required for railway operations, rail safety work or another activity associated with railway operations.

(5)Without limiting subsection (2), (3) or (4)—

(a)if a provision of this Act deals with a particular matter and a provision of the Work Health and Safety Act deals with the same matter and it is impossible to comply with both provisions, a person must comply with the provision of the Work Health and Safety Act and not with the provision of this Act; and

(b)if a provision of this Act deals with a particular matter and a provision of the Work Health and Safety Act deals with the same matter and it is possible to comply with both provisions, a person must comply with both provisions.

s 14 amd 2011 No. 18 s 404 sch 4 pt 1

15Safety directions and relationship with Work Health and Safety Act

(1)It is a defence in a proceeding against a person for a safety direction contravention for the person to prove—

(a)the person committed the act or omission constituting the safety direction contravention as part of complying with the person’s workplace health and safety duties; and

(b)it was not reasonably practicable for the person to comply with the workplace health and safety duties without committing the act or omission constituting the safety direction contravention; and

(c)in committing the act or omission constituting the safety direction contravention, the person did each of the following—

(i)chose an appropriate way to diminish the consequences of the safety direction contravention;

(ii)took reasonable precautions to diminish the consequences of the safety direction contravention;

(iii)exercised proper diligence to diminish the consequences of the safety direction contravention.

(2)In this section—

safety direction contravention means a contravention of an improvement notice or prohibition notice.

workplace health and safety duties, of a person, means—

(a)the person’s health and safety duties under the Work Health and Safety Act, part 2; or

(b)the person’s duty to comply with a direction, notice or order under the Work Health and Safety Act, part 10, divisions 1 to 3.

s 15 amd 2011 No. 18 s 404 sch 4 pt 1

16Compliance with this Act is no defence for Work Health and Safety Act

Compliance with this Act, or a duty or requirement imposed under it, is not in itself a defence in a proceeding for an offence against the Work Health and Safety Act.

Note—

See the Work Health and Safety Act, schedule 1, part 2, division 4 for the requirement to discharge duties under that Act even though another Act imposes similar obligations with a lower standard.

s 16 amd 2011 No. 18 s 404 sch 4 pt 1

17Duty applying to more than 1 person

If more than 1 person has a rail safety duty for a matter, each person—

(a)retains responsibility for the person’s rail safety duty for the matter; and

(b)must discharge the person’s rail safety duty to the extent the matter is within the person’s control; and

(c)must consult, and cooperate, with all other persons who have a rail safety duty for the matter.

18Person may owe rail safety duties in more than 1 capacity

A person on whom a rail safety duty is imposed may be subject to more than 1 rail safety duty.

Examples—

1A person may manage rail infrastructure and operate or move rolling stock on the rail infrastructure and be subject to rail safety duties in both capacities.

2A person may operate or move rolling stock on rail infrastructure and undertake to operate or move other rolling stock on the rail infrastructure for another person and be subject to rail safety duties in both capacities.

19Civil liability not affected by this part

(1)This part does not—

(a)create a civil cause of action based on a contravention of a provision of this part; or

(b)affect a civil right or remedy existing apart from this part, whether at common law or otherwise.

(2)Without limiting subsection (1) (b), compliance with this part does not necessarily show that a civil obligation existing apart from this part has been satisfied or has not been breached.

(3)This section does not affect the interpretation of this Act other than this part.

20Explanation of div 2

(1)The object of this division is to ensure, so far as is reasonably practicable, rail safety is not affected by the carrying out of prescribed railway operations.

(2)The object is achieved by providing for the elimination or minimisation of risks to safety caused by prescribed railway operations so far as is reasonably practicable.

(3)This division acknowledges that to ensure the efficient, effective and safe carrying out of prescribed railway operations it is necessary—

(a)to provide for express and specific duties for ensuring rail safety is not affected by the carrying out of prescribed railway operations; and

(b)to ensure the duties mentioned in paragraph (a) are consistently imposed and applied nationally.

(4)This division seeks to strike an appropriate balance between—

(a)the need for nationally consistent duties and obligations for ensuring rail safety; and

(b)the need for consistency with the Work Health and Safety Act, which is the main Act that deals with the health and safety of people at work including people at work at railway premises or other premises where railway operations are carried out.

(5)To achieve the balance mentioned in subsection (4)—

(a)the duties imposed under this division are limited to prescribed railway operations; and

(b)health and safety duties under the Work Health and Safety Act continue to apply to other railway operations and to activities associated with railway operations.

Note—

See schedule 1, part 2, division 3 of the Work Health and Safety Act.

(6)For subsection (5) (a), prescribed railway operations are identified as requiring nationally consistent duties and requirements to ensure the effective and efficient carrying out of the prescribed railway operations across State borders.

s 20 amd 2011 No. 18 s 404 sch 4 pt 1

21Application of div 2

This division applies only in relation to prescribed railway operations of a rail transport operator, including prescribed railway operations carried out by another person on the operator’s behalf.

Note—

Under section 14, the Work Health and Safety Act continues to apply in relation to other railway operations.

Example—

A rail infrastructure manager whose railway operations include prescribed railway operations and the decommissioning of rail infrastructure or rolling stock is subject to a rail safety duty under section 24 in relation to the prescribed railway operations and a health and safety duty under the Work Health and Safety Act, section 19 in relation to the decommissioning.

s 21 amd 2011 No. 18 s 404 sch 4 pt 1

22Meaning of prescribed railway operations

(1)The following are prescribed railway operations—

(a)the operation or movement of rolling stock on a railway track;

(b)an activity that affects the safe operation or movement of rolling stock on a railway track, as mentioned in subsection (2).

(2)For subsection (1) (b) and subject to subsection (3), the following are activities that affect the safe operation or movement of rolling stock on a railway track—

(a)constructing—

(i)a railway track; or

(ii)an associated track structure that is necessary to ensure the safe operation or movement of rolling stock on a railway track;

Examples of associated track structures necessary to ensure the safe operation or movement of rolling stock on a railway track—

bridge, cutting, drainage works, excavation, landfill, siding, track support earthworks, tunnel

(b)constructing any of the following if the construction is carried out on or in the immediate vicinity of a railway track—

(i)a signalling system, communications system or rolling stock control system associated with the operation or movement of rolling stock on the railway track;

(ii)an electrical traction system associated with the operation or movement of rolling stock on the railway track;

(iii)a part of a system mentioned in subparagraph (i) or (ii);

(c)maintaining, repairing or modifying any of the following if the activity is carried out on or in the immediate vicinity of a railway track—

(i)rail infrastructure mentioned in paragraph (a) or (b);

(ii)a data management system associated with the operation or movement of rolling stock on the railway track;

(iii)a notice or sign erected or placed on or in the immediate vicinity of the railway track;

(iv)plant, machinery or equipment associated with the operation or movement of rolling stock on the railway track;

Examples for subparagraph (iv)—

plant, machinery or equipment forming part of a level crossing, bridge or another structure used to cross over or under a railway

(v)rolling stock;

(d)operating any of the following to the extent the activity affects the operation or movement of rolling stock on a railway track—

(i)a signalling system, communications system, rolling stock control system or data management system;

(ii)an electrical traction system;

(iii)plant, machinery or equipment;

Examples for subparagraph (iii)—

plant, machinery or equipment forming part of a level crossing, bridge or another structure used to cross over or under a railway

(e)an activity that affects the safe operation or movement of rolling stock on a railway track and is prescribed under a temporary regulation for this section.

(3)Constructing, maintaining, repairing or modifying a platform, station, tram stop or similar structure or works are not activities that affect the safe operation or movement of rolling stock on a railway track.

Note—

Railway operations not mentioned in subsection (2) and railway operations mentioned in subsection (3) are not the subject of rail safety duties under this division. See the Work Health and Safety Act and Electrical Safety Act for duties about safety for those railway operations.

s 22 amd 2011 No. 18 s 404 sch 4 pt 1

23Concept of ensuring that rail safety is not affected by prescribed railway operations

(1)A duty imposed on a person under this division to ensure, so far as is reasonably practicable, rail safety is not affected by prescribed railway operations carried out by or on behalf of the person requires the person—

(a)to eliminate the risks to safety caused by the prescribed railway operations, so far as is reasonably practicable; or

(b)if it is not reasonably practicable to eliminate the risks to safety caused by the prescribed railway operations—to reduce the risks so far as is reasonably practicable.

(2) Subsection (3) states the matters to which regard must be had in deciding the following—

(a)whether or not it is reasonably practicable to eliminate a risk to safety caused by prescribed railway operations;

(b)the things that should be done or omitted to be done by a person to eliminate or reduce, so far as is reasonably practicable, a risk to safety caused by prescribed railway operations.

(3)The following are the matters to which regard must be had—

(a)the likelihood of the risk eventuating;

(b)the degree of harm that would result if the risk eventuated;

(c)what the person concerned knows or ought reasonably to know about the risk and any ways of eliminating or reducing the risk;

(d)the availability and suitability of ways to eliminate or reduce the risk;

(e)the cost of eliminating or reducing the risk.

24Duty to ensure rail safety

A rail transport operator must ensure, so far as is reasonably practicable, rail safety is not affected by the carrying out of the operator’s prescribed railway operations.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

25When rail transport operator fails to discharge duty

(1)Without limiting section 24, a rail transport operator contravenes the section if the operator fails to do any of the following—

(a)develop and implement, so far as is reasonably practicable, safe working systems for carrying out the prescribed railway operations;

(b)ensure, so far as is reasonably practicable, that each rail safety worker who carries out rail safety work for the prescribed railway operations—

(i)is of sufficient good health and fitness to carry out the work safely; and

(ii)is competent to carry out the work;

(c)ensure, so far as is reasonably practicable, that each rail safety worker who is on duty for carrying out rail safety work for the prescribed railway operations—

(i)has less alcohol present in the worker’s blood or breath than the concentration prescribed under a regulation; and

(ii)is not impaired by a drug;

(d)ensure, so far as is reasonably practicable, that each rail safety worker who carries out rail safety work for the prescribed railway operations complies with the operator’s fatigue management program in force under section 85;

(e)provide, so far as is reasonably practicable, adequate facilities for the safety of persons at prescribed railway premises under the control or management of the operator;

(f)provide, so far as is reasonably practicable, each rail safety worker with the information, instruction, training and supervision that is necessary to ensure the worker’s rail safety when carrying out rail safety work for the prescribed railway operations;

(g)provide, so far as is reasonably practicable, other rail transport operators and other persons at prescribed railway premises under the control or management of the operator with the information that is necessary to ensure the operators’ and persons’ rail safety.

(2)For subsection (1) (c), a rail safety worker is on duty for carrying out rail safety work if the worker—

(a)is about to carry out the rail safety work; or

(b)is carrying out the rail safety work; or

(c)has just carried out the rail safety work.

(3)In this section—

prescribed railway premises means railway premises at which prescribed railway operations are carried out.

26When rail infrastructure manager fails to discharge duty

Without limiting section 24 or 25, a rail infrastructure manager contravenes section 24 if the manager fails to do any of the following—

(a)ensure, so far as is reasonably practicable, that the construction, maintenance, repair, modification or operation of the manager’s rail infrastructure is done or carried out in a way that ensures rail safety is not affected by the prescribed railway operations;

Note—

This paragraph does not include a reference to the commissioning, decommissioning, design or installation of rail infrastructure because the duty imposed under section 24 does not apply to the commissioning, decommissioning, design or installation. See the Work Health and Safety Act and Electrical Safety Act for duties about the safety of the commissioning, decommissioning, design or installation.

(b)establish, so far as is reasonably practicable, systems and procedures for the scheduling, control and monitoring of the prescribed railway operations that ensure rail safety is not affected by the railway operations.

s 26 amd 2011 No. 18 s 404 sch 4 pt 1

27When rolling stock operator fails to discharge duty

Without limiting section 24 or 25, a rolling stock operator contravenes section 24 if the operator fails to do any of the following—

(a)provide or maintain, for the prescribed railway operations, rolling stock that, so far as is reasonably practicable, is safe;

(b)ensure, so far as is reasonably practicable, that the maintenance, repair, modification, cleaning, operation or movement of rolling stock is done or carried out in a way that ensures rail safety is not affected by the prescribed railway operations;

Note—

This paragraph does not include a reference to the commissioning, decommissioning or design of rolling stock because the duty imposed under section 24 does not apply to the commissioning, decommissioning or design. See the Work Health and Safety Act and Electrical Safety Act for duties about the safety of the commissioning, decommissioning or design.

(c)comply, so far as is reasonably practicable, with the systems and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager for the use of the manager’s rail infrastructure by the operator;

(d)so far as is reasonably practicable, establish and maintain equipment, systems and procedures to minimise risks to the safety of the prescribed railway operations;

(e)make arrangements for ensuring, so far as is reasonably practicable, rail safety in connection with the maintenance, repair, modification, operation and movement of the operator’s rolling stock for the prescribed railway operations.

s 27 amd 2011 No. 18 s 404 sch 4 pt 1

28Duty of rail transport operator extends to contractors

(1)This section applies if a person (a contractor) undertakes prescribed railway operations on behalf of a rail transport operator, other than as an employee of the operator.

(2)The duties under this division applying to the rail transport operator in relation to the prescribed railway operations apply to the contractor to the extent the duties relate to matters over which the operator has control or would have had control if not for an agreement purporting to limit or remove the control.

(3)The contractor must comply with the duties applying to the contractor under subsection (2) in relation to the rail transport operator’s prescribed railway operations undertaken by the contractor.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

29Explanation of div 3

(1)The object of this division is to ensure rail safety is not affected by the activities of rail safety workers.

(2)The object is achieved by imposing duties on rail safety workers directed at ensuring the safety of the workers, and other persons at railway premises, is not affected by the workers’ acts or omissions.

Note—

Under section 14, the Work Health and Safety Act continues to apply, and must be complied with, in addition to this Act.

s 29 amd 2011 No. 18 s 404 sch 4 pt 1

30Definition for div 3

In this division—

relevant operator, for rail safety work, means—

(a)if the rail safety work relates to railway operations carried out by a rail transport operator—the rail transport operator; or

(b)

if the rail safety work relates to railway operations carried out by a person (contractor) who undertakes the railway operations on behalf of a rail transport operator, other than as an employee of the operator—the contractor and the rail transport operator.

31Particular provisions of Criminal Code do not apply

The Criminal Code, sections 23 and 24 do not apply to an offence under this division.

Notes—

1The Criminal Code, section 23 deals with a person’s criminal responsibility for an act or omission that happens independently of the person’s will or for an event that is accidental.

2The Criminal Code, section 24 deals with a person’s criminal responsibility for an act or omission done under an honest and reasonable, but mistaken, belief in the state of things.

32Duty to take reasonable care for particular rail safety work

(1)A rail safety worker, when carrying out prescribed rail safety work, must—

(a)take reasonable care for the worker’s own safety; and

(b)take reasonable care for the safety of persons who may be affected by the worker’s acts or omissions.

Note—

Rail safety work that is not prescribed rail safety work is not the subject of a duty under this section. See the Work Health and Safety Act and Electrical Safety Act for duties about safety for rail safety work that is not prescribed rail safety work.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

(2)For subsection (1) (a) or (b), in deciding whether a rail safety worker failed to take reasonable care, regard must be had to what the rail safety worker knew about the relevant circumstances.

(3)In this section—

prescribed rail safety work means rail safety work involving—

(a)rolling stock; or

(b)a railway track or associated track structure.

s 32 amd 2011 No. 18 s 404 sch 4 pt 1

33Duty to comply with relevant operator’s instructions

(1)This section applies if—

(a)a relevant operator has given a rail safety worker who is carrying out, or is about to carry out, rail safety work an instruction relating to the way the rail safety work must be carried out; and

(b)the rail safety worker knows, or ought reasonably to know, the instruction is action, or a part of action, that is taken by the relevant operator to comply with a requirement under this Act.

(2)The rail safety worker must comply with the instruction given by the relevant operator when carrying out the rail safety work.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

(3)In this section—

requirement includes rail safety duty.

34Duty to not interfere with or misuse things provided by relevant operator

A rail safety worker, when carrying out rail safety work, must not, intentionally or recklessly, interfere with or misuse anything provided to the worker by the relevant operator for the work—

(a)in the interests of ensuring safety of persons; or

(b)under this Act.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

35Duty to not place safety of others at risk

(1)This section applies to a rail safety worker carrying out rail safety work on or in the immediate vicinity of rail infrastructure.

(2)The rail safety worker must not, intentionally or recklessly, place at risk the safety of another person on or in the immediate vicinity of the rail infrastructure.

Maximum penalty—

(a)if the breach causes multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the breach causes death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the breach causes bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the breach involves exposure to a substance likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e)otherwise—500 penalty units or 6 months imprisonment.

36Compliance with regulation etc.

(1)It is a defence in a proceeding against a person for a contravention of a duty imposed on the person under this division for the person to prove—

(a)if a regulation makes provision in relation to preventing the contravention of the duty—that the person complied with the regulation to prevent the contravention; or

(b)if a compliance code has been made in relation to a duty stating a way or ways to prevent the contravention of the duty—

(i)that the person adopted and followed a stated way to prevent the contravention; or

(ii)that the person adopted and followed another way to comply with the duty and took reasonable precautions and exercised proper diligence to prevent the contravention; or

(c)if no regulation makes provision, and no compliance code has been made, in relation to preventing the contravention of the duty—that the person chose an appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.

(2)In this section, a reference to a regulation or compliance code is a reference to the regulation or code in force at the time of the contravention.

37Causes over which person has no control

It is a defence in a proceeding against a person for an offence against this division for the person to prove that the commission of the offence was due to causes over which the person had no control.

38Civil liability not affected by this part

(1)This part does not—

(a)create a civil cause of action based on a contravention of a provision of this part; or

(b)affect a civil right or remedy that exists apart from this part, whether at common law or otherwise.

(2)Without limiting subsection (1) (b), compliance with this part does not necessarily show that a civil obligation that exists apart from this part has been satisfied or has not been breached.

(3)This section does not affect the interpretation of this Act other than this part.

39Accreditation required for railway operations

(1)A person must not carry out, or cause or permit to be carried out, railway operations unless—

(a)the person is a rail transport operator who is accredited for the railway operations; or

(b)the person is exempt under this Act from the requirement to be accredited for the railway operations; or

(c)the person is, whether as an employee or otherwise, carrying out the railway operations, or causing or permitting the railway operations to be carried out, on behalf of another person who is—

(i)accredited for the railway operations; or

(ii)exempt under this Act from the requirement to be accredited for the railway operations.

Maximum penalty—500 penalty units.

(2)To remove any doubt, it is declared that a person is accredited for railway operations only if the accreditation for the railway operations is in force and has not been suspended under this Act.

40Accreditation not required for related body corporate

(1)This section applies if—

(a)railway operations are carried out by or on behalf of both a corporation and a related body corporate of the corporation; and

(b)the corporation is accredited for the railway operations.

(2)The related body corporate is exempt from the requirement to be accredited for the railway operations.

Note—

See section 61 for the requirement to apply for an exemption notice.

(3)In this section—

related body corporate see the Corporations Act, section 50.

41Accreditation not required for particular railway operations on or at private siding

A rail infrastructure manager of a private siding is exempt from the requirement to be accredited for the following railway operations carried out on or at the siding by or on behalf of the manager—

(a)the construction of a railway, railway tracks and associated track structures;

(b)the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure.

Notes—

1See section 61 for the requirement to apply for an exemption notice.

2This section refers to the commissioning, installation and decommissioning of rail infrastructure because, under this Act, accreditation is required for all railway operations. However, the Work Health and Safety Act and the Electrical Safety Act impose duties about the safety of the commissioning, installation and decommissioning. See section 6 and part 2 for the application of those Acts.

s 41 amd 2011 No. 18 s 404 sch 4 pt 1

42Exemption may be granted

(1)The chief executive may exempt a person from the requirement to be accredited for railway operations, on or at a low risk railway, of a stated scope and nature that are proposed to be carried out by or on behalf of the person.

(2)For subsection (1), the stated scope and nature of the railway operations includes—

(a)the railway operations for which the exemption is granted under subsection (3); and

(b)details of the nature of the railway operations mentioned in paragraph (a), including, for example—

(i)the location of the railway operations or the rail infrastructure to which the railway operations relate; and

(ii)for railway operations relating to rolling stock—the type of rolling stock that can be used for the railway operations or the type of traction system that can be used for the railway operations.

(3)An exemption under subsection (1) may be granted for 1 or more of the following—

(a)all or stated railway operations on or at a stated low risk railway;

(b)a service or aspect, or part of a service or aspect, of stated railway operations on or at a stated low risk railway;

(c)construction of stated rail infrastructure for a stated low risk railway;

(d)an activity that is part of railway operations on or at a stated low risk railway, including, for example, the following—

(i)site preparation;

(ii)restoration or repair work;

(iii)testing of a railway track or other rail infrastructure;

(iv)another activity considered appropriate by the chief executive.

s 42 amd 2011 No. 12 s 121

43Application for exemption

(1)A person may apply to the chief executive to exempt the person from the requirement to be accredited for railway operations, on or at a low risk railway, of a stated scope and nature that are proposed to be carried out by or on behalf of the person.

(2)The application for the exemption must—

(a)be in the approved form; and

(b)state the scope and nature of the railway operations for which the exemption is sought.

(3)The chief executive may, by notice, require the applicant—

(a)to supply further information; or

(b)to verify by statutory declaration any information supplied to the chief executive.

s 43 amd 2011 No. 12 s 122

44What applicant must demonstrate and conditions that may be imposed

(1)The chief executive may grant an exemption under this subdivision, with or without conditions, to the applicant only if the chief executive is satisfied that granting the exemption would not be likely to create risks to the safety of the railway operations greater than that which would be the case if the applicant was required to be accredited for the railway operations.

(2)In making a decision under subsection (1), the chief executive must have regard to the following—

(a)the scope and nature of the railway operations;

(b)for railway operations relating to the operation or movement of rolling stock on a railway track—

(ii)the speed at which the rolling stock is to move on the railway track; and

(iii)whether there is to be more than 1 rolling stock moving on the railway track at the same time and, if so, whether the rolling stock will cross on the track; and

(iv)whether any members of the public will be at or near the railway track while the rolling stock is moving on it;

(c)anything else the chief executive considers relevant.

(3)For subsection (1), the chief executive may impose on the exemption a condition about the safe construction, maintenance or operation of—

(a)rail infrastructure for the railway operations; or

(b)rolling stock used as part of the railway operations.

Note—

This subsection empowers the chief executive to impose conditions about the safe construction, maintenance or operation of rail infrastructure or rolling stock used in railway operations the subject of an exemption under this subdivision because divisions 3 to 5 (which include requirements about safety management) do not apply to the railway operations.However, a rail transport operator carrying out the railway operations, or a person carrying out the railway operations on behalf of a rail transport operator, is also subject to rail safety duties under part 2, and duties about safety under the Work Health and Safety Act and Electrical Safety Act, in relation to the railway operations.

(4)However, a condition imposed under subsection (3) can not apply to railway operations the subject of an accreditation.

(5)To remove any doubt, it is declared that a condition imposed by the chief executive under subsection (3) may be the same as, or similar to, a requirement of a provision of divisions 3 to 5 applying to railway operations the subject of an accreditation.

s 44 amd 2011 No. 12 s 123; 2011 No. 18 s 404 sch 4 pt 1

45Considering application

(1)This section applies if a person applies for an exemption under section 43 for railway operations.

(2)The chief executive must consider the application and—

(a)if the chief executive is satisfied of the matter mentioned in section 44 (1) in relation to the railway operations—grant the exemption, with or without conditions; or

(b)refuse the application.

(3)The chief executive must grant the exemption, or refuse the application, before the latest of the following periods ends—

(a)6 months after the application was received by the chief executive;

(b)if the chief executive requested further information in relation to the application—6 months, or another period agreed to by the chief executive and the applicant, after the chief executive receives the final information requested;

(c)if the chief executive, by notice to the applicant before the expiry of a period mentioned in paragraph (a) or (b), nominates another period ending after the period mentioned in paragraph (a) or (b)—the nominated period.

(4)If the chief executive gives a notice under subsection (3) (c), the notice must include, or be accompanied by, an information notice for the decision to extend the period mentioned in the subsection.

46Steps after application decided

(1)If the chief executive grants an exemption under this subdivision, the chief executive must give the applicant—

(a)a notice stating the matters mentioned in subsection (2); and

(b)if the chief executive has imposed a condition on the exemption—an information notice for the decision to impose the condition.

(2)A notice under subsection (1) (a) must state the following—

(a)the details of the applicant prescribed under a regulation;

(b)that the applicant is exempt from the requirement to be accredited for railway operations of the scope and nature for which the exemption is granted;

(c)the scope and nature of the railway operations for which the exemption is granted;

(d)if the chief executive has imposed conditions on the exemption—the conditions.

(3)If the chief executive decides to refuse an application for an exemption under this subdivision, the chief executive must give the applicant an information notice for the decision.

47Effect of exemption

A person who is granted an exemption under this subdivision for railway operations of a stated scope and nature is exempt from the requirement to be accredited for the railway operations.

48Operator etc. must not contravene condition of exemption

(1)This section applies if the chief executive imposes conditions on an exemption granted under this subdivision.

(2)A person carrying out railway operations for which the exemption is granted must not contravene a condition of the exemption.

Maximum penalty—80 penalty units.

49Grounds for varying, suspending or revoking exemption

(1)This section applies if—

(a)an exemption under this subdivision was granted because of a document or representation that is false or misleading or obtained or made in another improper way; or

(b)the chief executive reasonably considers—

(i)risks to the safety of the railway operations the subject of an exemption under this subdivision are greater than that which would be the case if the person granted the exemption was required to be accredited for the railway operations; or

(ii)the person granted an exemption under this subdivision is unable to carry out railway operations the subject of the exemption in a way that complies with the duties or requirements under this Act for the railway operations; or

(c)the person granted an exemption under this subdivision has contravened this Act.

(2)The chief executive may, by complying with section 50—

(a)vary the exemption in either or both of the following ways—

(i)by varying the scope and nature of the railway operations that are the subject of the exemption;

(ii)by varying the conditions of the exemption, including by imposing new conditions; or

(b)suspend the exemption wholly or partly, or in relation to stated railway operations, for a stated period; or

(c)revoke the exemption wholly or partly, or in relation to stated railway operations, with immediate effect or with effect from a stated future date.

50Procedure for varying, suspending or revoking exemption

(1)Before making a decision under section 49, the chief executive must—

(a)give the person a notice stating—

(i)that the chief executive is considering making a decision under section 49 of the type, and for the reasons, stated in the notice; and

(ii)that the person may, within the period of at least 28 days stated in the notice, make written representations to the chief executive showing cause why the decision should not be made; and

(b)consider any representations made under paragraph (a)(ii) that have not been withdrawn.

(2)If, after considering the written representations, the chief executive decides to act under section 49, the chief executive must give the person an information notice for the decision.

(3)If the chief executive decides to revoke the exemption, the information notice must also include a direction to the person to return the notice given under section 46 (1) for the exemption to the chief executive within 14 days after receiving the information notice.

(4)A person who is directed under subsection (3) to return a notice must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(5)A decision under section 49 takes effect on the later of the following—

(a)the day the information notice is given to the person;

(b)the day of effect stated in the information notice.

(6)If, after considering the written representations, the chief executive decides action is no longer required under section 49 in relation to the exemption, the chief executive must give the person notice of the decision.

51Suspending exemption immediately

(1)This section applies if the chief executive reasonably considers there is, or would be, an immediate and serious risk to the safety of persons if a person’s exemption under this subdivision is not suspended immediately.

(2)The chief executive may, by notice given to the person and without complying with section 50, immediately suspend the person’s exemption—

(a)wholly or partly, or in relation to stated railway operations; and

(b)for a stated period not exceeding 6 weeks.

(3)The notice given under subsection (2) must include, or be accompanied by, an information notice.

(4)The chief executive may amend a suspension of a person’s exemption under this section to—

(a)reduce the period of suspension; or

(b)extend the period of suspension so long as the total suspension period does not exceed 6 weeks.

(5)Before amending a suspension of a person’s exemption under this section to extend the period of suspension, the chief executive must—

(a)give the person a notice stating—

(i)that the chief executive is considering extending the period of suspension for the reasons stated in the notice; and

(ii)that the person may, within the period of at least 7 days stated in the notice, make written representations to the chief executive showing cause why the suspension should not be extended; and

(b)consider any representations made under paragraph (a)(ii) that have not been withdrawn.

(6)If, after considering the written representations, the chief executive decides to amend the suspension of a person’s exemption to extend the period of suspension, the chief executive must give the person an information notice for the decision.

(7)If the chief executive decides to amend the suspension of a person’s exemption to reduce the period of suspension, the chief executive must give the person a notice stating the new period of suspension.

52Application of sdiv 5

This subdivision applies to a private siding if rail infrastructure railway operations carried out on or at the siding by or on behalf of the rail infrastructure manager of the siding are not the subject of an accreditation.

53Definitions for sdiv 5

In this subdivision—

accredited railway means a railway in relation to which an accreditation for rail infrastructure railway operations has been granted.

rail infrastructure railway operations means—

(a)the construction of a railway, railway tracks and associated track structures; or

(b)the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure.

54Connection or access between private siding and accredited railway

(1)This section applies if a rail infrastructure manager of a private siding and an accredited person for an accredited railway have entered into an agreement about the siding’s connection with, or access to, the railway.

(2)The accredited person may—

(a)disconnect the private siding from the accredited railway; or

(b)close the connection between the private siding and the accredited railway.

(3)However, before taking action under subsection (2), the accredited person must—

(a)give at least 3 months notice of the proposed action to the rail infrastructure manager; or

(b)obtain written agreement to the proposed action from the rail infrastructure manager.

(4)If the accredited person acts under subsection (2), the accredited person may, by notice, require the rail infrastructure manager to remove any part of the private siding (the part) that is on land managed by the accredited person.

(5)If the rail infrastructure manager does not remove the part within a reasonable time, the accredited person may remove it and recover the costs of the removal from the manager as a debt.

(6) Subsections (2) to (5) are subject to the agreement between the rail infrastructure manager and the accredited person.

Note—

See section 38 for an explanation of the relationship between this part (including this section) and civil liability.

55Particular private sidings required to be registered

(1)This section applies if a rail infrastructure manager of a private siding wishes the siding—

(a)to be connected with, or to have access to, an accredited railway; or

(b)if on the day this section takes effect the siding is connected with, or has access to, an accredited railway—to continue to be connected with, or have access to, the accredited railway.

(2)The rail infrastructure manager must lodge with the chief executive a request for the registration of the private siding that—

(a)is in the approved form; and

(b)is accompanied by a document that—

(i)lists each accredited railway to which the siding is or is proposed to be connected, or has or is proposed to have access; and

(ii)identifies each (if any) interface arrangement applying to both railway operations at the siding and railway operations at the accredited railway mentioned in subparagraph (i).

Note—

See also section 58 (2).

(3)After receiving a request under subsection (2), the chief executive must, within a reasonable period—

(a)register the private siding, with or without conditions; and

(b)issue a notice of registration to the rail infrastructure manager.

(4)For subsection (3) (a), the chief executive may impose a condition on the registration of a private siding about the safe construction, maintenance or operation of the siding.

Note—

This subsection empowers the chief executive to impose conditions about the safe construction, maintenance or operation of a private siding because divisions 3 to 5 (which include requirements about safety management) do not apply to railway operations carried out on or at the private siding that are exempt from accreditation under section 41.However, the rail infrastructure manager is also subject to rail safety duties under part 2, and duties about safety under the Work Health and Safety Act and Electrical Safety Act, in relation to railway operations carried out on or at the private siding.

(5)However, a condition imposed under subsection (4) can not apply to railway operations the subject of an accreditation.

(6)If the chief executive has imposed conditions on the registration, the notice of registration issued under subsection (3) (b) must—

(a)state the conditions; and

(b)be accompanied by an information notice for the decision to impose the conditions.

(7)The chief executive must make the registration particulars prescribed under a regulation available for inspection by the public during office hours on business days at the following places—

(a)each office of the department;

(b)each other place prescribed under a regulation.

(8)A rail infrastructure manager of a private siding must not allow the siding to be connected with, or have access to, an accredited railway unless the manager has received a notice of registration for the siding under this section.

Maximum penalty—80 penalty units.

(9) Subsection (8) applies despite any agreement mentioned in section 54 (1).

(10)To remove any doubt, it is declared that a condition imposed by the chief executive under subsection (4) may be the same as, or similar to, a requirement of a provision of divisions 3 to 5 applying to railway operations the subject of an accreditation.

s 55 amd 2011 No. 18 s 404 sch 4 pt 1

(11)–(12) exp 2 September 2013 (see s 55 (12))

56Prescribed registration conditions

(1)A regulation may prescribe a condition (a prescribed registration condition) about the safe construction, maintenance or operation of a private siding to which a person’s registration of a private siding is subject.

(2)However, a condition prescribed under subsection (1) can not apply to railway operations the subject of an accreditation.

(3)If there is an inconsistency between a condition stated on a registration notice for a private siding and a prescribed registration condition applying to the registration of the siding—

(a)the prescribed registration condition applies to the extent of the inconsistency; and

(b)the condition stated on the registration notice has no effect to the extent of the inconsistency.

(4)For the application of a prescribed registration condition to a person’s registration of a private siding, it is irrelevant when the registration takes effect.

(5)To remove any doubt, it is declared that a regulation may prescribe a condition for subsection (1) that is the same as, or similar to, a requirement of a provision of divisions 3 to 5 applying to railway operations the subject of an accreditation.

57Compliance with registration conditions for private siding

(1)A person carrying out railway operations on or at a private siding registered under section 55 must not contravene a registration condition of the registration.

Maximum penalty—80 penalty units.

(2)In this section—

registration condition, of the registration of a private siding, means—

(a)a prescribed registration condition under section 56 to which the registration is subject; or

(b)a condition stated on the registration notice for the siding.

58Annual registration fees

(1)Subject to subsection (2), the rail infrastructure manager of a private siding registered under section 55 must pay the annual registration fee prescribed under a regulation by the date prescribed under the regulation.

Note—

If the rail infrastructure manager fails to pay an annual registration fee, the unpaid fee may be recovered under section 281.

(2)The annual registration fee payable for the first year of registration must accompany the request for registration lodged under section 55 (2).

59Interface coordination for registered private siding

(1)This section applies if a private siding—

(a)is or is proposed to be connected with, or has or is proposed to have access to, an accredited railway; and

(b)is registered under section 55.

(2)The rail infrastructure manager of the private siding must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from railway operations carried out by or on behalf of the manager that may be caused, wholly or partly, by railway operations carried out by or on behalf of the accredited person for the accredited railway; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement for the identified risks with the accredited person.

Maximum penalty—200 penalty units.

(3)The rail infrastructure manager may identify and assess the risks mentioned in subsection (2) (a)—

(a)independently; or

(b)jointly with the accredited person for the accredited railway; or

(c)by adopting the identification and assessment of the risks carried out by the accredited person for the accredited railway.

(4)The accredited person for the accredited railway must—

(a)identify, so far as is reasonably practicable risks to the safety of persons arising, or potentially arising, from railway operations carried out by or on behalf of the person that may be caused, wholly or partly, by railway operations carried out by or on behalf of the rail infrastructure manager; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement for the identified risks with the rail infrastructure manager.

Maximum penalty—200 penalty units.

(5)The accredited person may identify and assess the risks mentioned in subsection (4) (a)—

(a)independently; or

(b)jointly with the rail infrastructure manager of the private siding; or

(c)by adopting the identification and assessment of the risks carried out by the rail infrastructure manager of the private siding.

(6) Subsection (7) applies if the chief executive is satisfied the rail infrastructure manager or accredited person—

(a)is unreasonably refusing or failing to enter into an interface agreement under subsection (2) or (4); or

(b)is unreasonably delaying the negotiation of an interface agreement the manager and person are seeking to enter into under subsection (2) or (4).

(7)Sections 77 and 78 apply in relation to the rail infrastructure manager and accredited person as if subsection (2) or (4) were a relevant provision mentioned in section 77 (1).

(8)The rail infrastructure manager must give the accredited person notice of any railway operations being, or about to be, carried out on or at the private siding that may affect the safety of persons on or at the accredited railway.

Maximum penalty—200 penalty units.

(9)The accredited person must give the rail infrastructure manager notice of any railway operations being, or about to be, carried out on or at the accredited railway that may affect the safety of persons on or at the private siding.

Maximum penalty—200 penalty units.

(10)A rail infrastructure manager of a private siding must prepare and keep a register containing—

(a)a copy of each interface agreement applying to railway operations carried out by or on behalf of the manager; and

(b)a copy of each interface direction given in relation to railway operations carried out by or on behalf of the manager.

Maximum penalty—100 penalty units.

(11)An accredited person must include the following in the accredited person’s register kept under section 79—

(a)a copy of each interface agreement applying to the person’s railway operations under this section;

(b)a copy of each interface direction relating to the person’s railway operations given to the person under this section.

Maximum penalty—100 penalty units.

s 59 (12)–(13) exp 2 September 2013 (see s 59 (13))

60Chief executive may cancel registration of private siding

The chief executive may cancel the registration of a private siding under section 55 if—

(a)the siding is not or is no longer connected with, or does not have or no longer has access to, an accredited railway; and

(b)the chief executive has obtained written agreement for the cancellation from the rail infrastructure manager of the siding.

61Requirement to obtain exemption notice

(1)This section applies if this Act, other than subdivision 4, provides that a person is exempt from the requirement to be accredited for particular railway operations carried out by or on behalf of the person.

(2)The person must apply to the chief executive for the issue of an exemption notice under this section.

Note—

Under section 96, a rail transport operator who is exempt from the requirement to be accredited for particular railway operations must have the exemption notice for the exemption available for inspection.

(3)The chief executive must give the person an exemption notice for the railway operations immediately after receiving the application.

(4)In this section—

exemption notice, for railway operations carried out by or on behalf of a person, means a notice stating the person is exempt from the requirement to be accredited for the railway operations.

62Application of div 3

This division does not apply in relation to railway operations carried out by or on behalf of a rail transport operator for which the operator is exempt under this Act from the requirement to be accredited.

63Requirement to have and implement safety management system

(1)A rail transport operator must have and implement a safety management system complying with this division for railway operations carried out by or on behalf of the operator.

Maximum penalty—200 penalty units.

(2) Subsection (3) applies if 2 or more rail transport operators have an interface arrangement applying to risks to the safety of persons arising, or potentially arising, from railway operations carried out by or on behalf of any of them.

(3)If the safety management systems of all of the rail transport operators, when taken as 1 system, comply with this division, each safety management system is taken to comply with this division.

64General requirements for safety management system

(1)A rail transport operator’s safety management system for railway operations must—

(a)be in the approved form; and

(b)comply with—

(i)the requirements prescribed under a regulation; and

(ii)the risk management principles, methods and procedures prescribed under a regulation; and

(c)identify and assess the risks to safety of persons arising or potentially arising from the carrying out of the railway operations; and

(d)state—

(i)the controls, including audits, expertise, resources and staff, that are to be used by the operator to manage risks to the safety of persons, and to monitor the safety of persons, in relation to the railway operations; and

(ii)the procedures for monitoring, reviewing and revising the adequacy of the controls mentioned in subparagraph (i); and

(e)include measures to manage risks to the safety of persons identified under section 59, 72, 73 or 74; and

(f)include a copy of each of the following applying in relation to the railway operations—

(i)the operator’s security management plan under section 81;

(ii)the operator’s emergency management plan under section 82;

(iii)the operator’s health and fitness management program under section 83;

(iv)the operator’s alcohol and drug management program under section 84;

(v)the operator’s fatigue management program under section 85.

(2)Also, a rail transport operator’s safety management system for railway operations must identify—

(a)the person responsible for preparing each part of the safety management system; and

(b)the person, or class of persons, responsible for implementing the system.

65Review of safety management system

(1)A rail transport operator must review the operator’s safety management system in the way prescribed under a regulation—

(a)if a regulation prescribes when or the periods within which the review must be conducted—at the prescribed times or within the prescribed periods; or

(b)if paragraph (a) does not apply and the operator and chief executive have agreed when or the periods within which the review must be conducted—at the agreed times or within the agreed periods; or

(c)otherwise—at least yearly.

Maximum penalty—200 penalty units.

(2)This section is subject to section 289 (3).

66Consultation requirement

A rail transport operator, before establishing a safety management system for railway operations, or reviewing or varying a safety management system for railway operations, must, so far as is reasonably practicable, consult with—

(a)persons likely to be affected by the system or its review or variation who are persons—

(i)who carry out, or are likely to carry out, the railway operations; or

(ii)who work, or are likely to work, on or at the operator’s railway premises; or

(iii)who work, or are likely to work, on or with the operator’s rolling stock; and

(b)health and safety representatives, within the meaning of the Work Health and Safety Act, representing any of the persons mentioned in paragraph (a); and

(c)unions representing any of the persons mentioned in paragraph (a); and

(d)any other rail transport operator, or a responsible road manager for a road, with whom the operator has an interface arrangement; and

(e)the public, as appropriate.

s 66 amd 2011 No. 18 s 404 sch 4 pt 1

67Operator must not contravene safety management system

(1)A rail transport operator must not contravene the operator’s safety management system for railway operations, unless the operator has a reasonable excuse.

Maximum penalty—200 penalty units.

(2)It is a reasonable excuse for a rail transport operator contravening the safety management system if—

(a)the contravention can not be avoided without the operator contravening—

(i)an accreditation condition of the operator’s accreditation for the railway operations; or

(ii)an improvement notice or prohibition notice; or

(b)without the contravention, the likelihood of a notifiable occurrence happening would increase.

(3) Subsection (2) does not limit the excuses that may be reasonable excuses for subsection (1).

68Contractor must not contravene safety management system

(1)This section applies if a person (a contractor) undertakes railway operations on behalf of a rail transport operator, other than as an employee of the operator.

(2)Before the contractor starts carrying out the railway operations, the rail transport operator must—

(a)give the contractor a notice stating where and when the contractor may inspect the parts of the operator’s safety management system applying to the railway operations (the relevant parts); and

(b)ensure the relevant parts are available for inspection by the contractor in the way stated in the notice.

Maximum penalty—200 penalty units.

(3)The contractor must not, unless the contractor has a reasonable excuse, contravene the rail transport operator’s safety management system, to the extent the system applies to the railway operations undertaken by the contractor.

Maximum penalty—200 penalty units.

(4)It is a reasonable excuse for a person contravening the safety management system if—

(a)the contravention can not be avoided without the person contravening—

(i)an accreditation condition of the accreditation for the railway operations of the rail transport operator for whom the person is undertaking the railway operations; or

(ii)an improvement notice or prohibition notice; or

(b)without the contravention, the likelihood of a notifiable occurrence happening would increase; or

(c)the person complied with the parts of the safety management system that were made available to the person under subsection (2).

(5) Subsection (4) does not limit the excuses that may be reasonable excuses for subsection (3).

69Chief executive may direct amendment of safety management system

(1)The chief executive may, by notice, direct a rail transport operator to amend the operator’s safety management system within a stated period of at least 28 days after the direction is given.

(2)A notice giving a direction under subsection (1) must include, or be accompanied by, an information notice for the decision to give the direction.

(3)The rail transport operator must comply with the direction unless the operator has a reasonable excuse.

Maximum penalty for subsection (3)—200 penalty units.

70Requirement to give safety performance report

(1)A rail transport operator must, for each reporting period, give the chief executive a safety performance report complying with subsection (2) within 6 months after the end of the period.

Maximum penalty—100 penalty units.

(2)The safety performance report must—

(a)be in the approved form; and

(b)comply with the requirements prescribed under a regulation; and

(c)include the following—

(i)a description and assessment of the safety performance of railway operations carried out by or on behalf of the rail transport operator;

(ii)comments on any deficiencies in, and any irregularities in, the railway operations that may be relevant to ensuring rail safety in relation to the railway operations;

(iii)a description of any initiatives undertaken in the reporting period, or proposed to be undertaken in the next reporting period, relating to the safety of persons in relation to the railway operations;

(iv)any other information or performance indicators prescribed under a regulation.

(3)In this section—

reporting period means a calendar year or, if the chief executive and rail transport operator have agreed on another period for this section, the other period.

71Meaning and scope of interface agreements

(1)An interface agreement, for risks to the safety of persons, is a written agreement about managing the risks that provides for the following—

(a)implementing and maintaining measures for managing the risks;

(b)the evaluation, testing and, if necessary, revision of the measures mentioned in paragraph (a);

(c)the roles and responsibilities of each party to the agreement in relation to the measures mentioned in paragraph (a);

(d)the procedures by which each party will monitor compliance with the obligations under the agreement;

(e)a process for keeping the agreement under review and how any review will be conducted and implemented.

(2)An interface agreement—

(a)may be entered into by—

(i)2 or more rail transport operators; or

(ii)1 or more rail transport operators and 1 or more responsible road managers for a road; and

(b)may include measures to manage any number of the following—

(i)risks to the safety of persons arising, or potentially arising, from railway operations carried out by or on behalf of a rail transport operator that may be caused, wholly or partly, by railway operations carried out by or on behalf of another rail transport operator;

(ii)risks to the safety of persons arising, or potentially arising, from railway operations carried out on or in relation to rail infrastructure that may be caused, wholly or partly, by the existence or use of a rail or road crossing;

(iii)risks to the safety of persons arising, or potentially arising, from the existence or use of a rail or road crossing that may be caused, wholly or partly, by railway operations carried out on or in relation to rail infrastructure; and

(c)may provide for a matter by applying, adopting or incorporating a matter contained in another document (with or without modification); and

(d)may consist of 2 or more documents.

72Rail transport operator’s obligation relating to another rail transport operator’s railway operations

(1)A rail transport operator must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from railway operations carried out by or on behalf of the operator that may be caused, wholly or partly, by railway operations carried out by or on behalf of another rail transport operator; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement for the identified risks with the other operator.

Maximum penalty—200 penalty units.

(2)Unless otherwise provided in a temporary regulation, subsection (1) (d) does not apply if neither the rail transport operator nor the other rail transport operator is a rail infrastructure manager.

(3)For subsection (1), the rail transport operator may identify and assess the risks—

(a)independently; or

(b)jointly with the other rail transport operator; or

(c)by adopting the identification and assessment of the risks carried out by the other rail transport operator.

s 72 (4)–(5) exp 2 September 2012 (see s 72 (5))

73Rail infrastructure manager’s obligation relating to rail or road crossing for a public road

(1)A rail infrastructure manager must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from railway operations carried out on or in relation to the manager’s rail infrastructure that may be caused, wholly or partly, by the existence or use of a rail or road crossing for a public road; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement for the identified risks with the responsible road manager for the road.

Maximum penalty—200 penalty units.

(2)For subsection (1), the rail infrastructure manager may identify and assess the risks—

(a)independently; or

(b)jointly with the responsible road manager for the road; or

(c)by adopting the identification and assessment of the risks carried out by the responsible road manager for the road.

s 73 (3)–(4) exp 2 September 2012 (see s 73 (4))

74Rail infrastructure manager’s obligation relating to rail or road crossing for a private road

(1)A rail infrastructure manager must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from railway operations carried out on or in relation to the manager’s rail infrastructure that may be caused, wholly or partly, by the existence or use of a rail or road crossing for a private road; and

(b)assess the identified risks; and

(c)consider whether it is necessary to manage the identified risks in conjunction with the responsible road manager for the road; and

(d)if the rail infrastructure manager forms the opinion it is necessary to manage the identified risks in conjunction with the responsible road manager for the road—

(i)give the responsible road manager notice of the rail infrastructure manager’s opinion; and

(ii)identify measures to manage the identified risks so far as is reasonably practicable; and

(iii)for managing the identified risks, reasonably seek to enter into an interface agreement with the responsible road manager; and

(e)if the rail infrastructure manager forms the opinion it is not necessary to manage the identified risks in conjunction with the responsible road manager for the road, keep a written record of—

(i)the rail infrastructure manager’s opinion; and

(ii)the reasons for forming that opinion.

Maximum penalty—200 penalty units.

(2)For subsection (1), the rail infrastructure manager may identify and assess the risks—

(a)independently; or

(b)jointly with the responsible road manager for the road; or

(c)by adopting the identification and assessment of the risks carried out by the responsible road manager for the road.

s 74 (3)–(4) exp 2 September 2012 (see s 74 (4))

75Responsible road manager’s obligation relating to rail or road crossing for a public road

(1)The responsible road manager for a public road must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from the existence or use of a rail or road crossing for the road that may be caused, wholly or partly, by railway operations carried out on or in relation to rail infrastructure; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement with the rail infrastructure manager of the rail infrastructure.

Maximum penalty—200 penalty units.

(2)For subsection (1), the responsible road manager may identify and assess the risks—

(a)independently; or

(b)jointly with the rail infrastructure manager of the rail infrastructure; or

(c)by adopting the identification and assessment of the risks carried out by the rail infrastructure manager of the rail infrastructure.

(3)Nothing in this section authorises or requires a responsible road manager for a road to act inconsistently with, or without regard to, the road manager’s functions or powers under another Act.

s 75 (4)–(5) exp 2 September 2012 (see s 75 (5))

76Responsible road manager’s obligation relating to rail or road crossing for a private road

(1)This section applies if, under section 74 (1) (d), a rail infrastructure manager gives the responsible road manager for a private road a notice about a rail or road crossing for the road.

(2)The responsible road manager for the road must—

(a)identify, so far as is reasonably practicable, risks to the safety of persons arising, or potentially arising, from the existence or use of a rail or road crossing for the road that may be caused, wholly or partly, by railway operations carried out on or in relation to the rail infrastructure manager’s rail infrastructure; and

(b)assess the identified risks; and

(c)identify measures to manage the identified risks so far as is reasonably practicable; and

(d)for managing the identified risks, reasonably seek to enter into an interface agreement about the risks with the rail infrastructure manager.

Maximum penalty—200 penalty units.

(3)For subsection (2), the responsible road manager may identify and assess the risks—

(a)independently; or

(b)jointly with the rail infrastructure manager of the rail infrastructure; or

(c)by adopting the identification and assessment of the risks carried out by the rail infrastructure manager of the rail infrastructure.

(4)Nothing in this section authorises or requires a responsible road manager for a road to act inconsistently with, or without regard to, the road manager’s functions or powers under another Act.

s 76 (5)–(6) exp 2 September 2012 (see s 76 (6))

77Chief executive may give notice about failure to enter into interface agreement

(1)This section applies if the chief executive is satisfied that a rail transport operator, rail infrastructure manager or responsible road manager for a road to whom section 72 (1), 73 (1), 74 (1), 75 (1) or 76 (2) (the relevant provision) applies—

(a)is unreasonably refusing or failing to enter into an interface agreement with another person under the relevant provision; or

(b)is unreasonably delaying the negotiation of an interface agreement the operator or manager is seeking to enter into with another person under the relevant provision.

(2)The chief executive may give the rail transport operator, rail infrastructure manager or responsible road manager, and the other person, a notice (a preliminary notice) that—

(a)states the chief executive’s powers under this subdivision, including that the chief executive may give a direction under section 78 (2) (b) at any time after a stated date that is at least 28 days after the preliminary notice is given; and

(b)includes copies of this section and section 78; and

(c)may contain suggested terms for inclusion in an interface agreement for the risks mentioned in the relevant provision.

(3)The chief executive may, by notice, ask a person to whom a preliminary notice was given for information the chief executive reasonably requires for giving a direction under section 78 (2) (b).

(4)A person to whom a notice is given under subsection (3) must comply with the notice, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)—60 penalty units.

78Chief executive may give direction about arrangement that is to apply

(1)This section applies if—

(a)the chief executive gives a preliminary notice under section 77 to—

(i)a rail transport operator, rail infrastructure manager or responsible road manager for a road; and

(ii)a person (the other person) with whom the operator or manager is required to seek to enter into an interface agreement under a relevant provision; and

(b)the operator or manager, and the other person, have not entered into an interface agreement for the risks mentioned in the relevant provision by the date stated in the preliminary notice.

(2)The chief executive may—

(a)decide the arrangements that are to apply in relation to the management of the risks mentioned in the relevant provision; and

(b)direct the rail transport operator, rail infrastructure manager or responsible road manager, or the other person, or both of them to implement the arrangements by a stated date.

(3)A direction under subsection (2) (b) may be given at any time after a day that is at least 28 days after the preliminary notice is given.

(4)A direction given under subsection (2) (b) must be written and state the following—

(a)the arrangements decided by the chief executive that are to apply in relation to the management of the risks mentioned in the relevant provision;

(b)the date by which the arrangements must be implemented.

(5)A person to whom a direction is given under subsection (2) (b) must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(6)In this section—

relevant provision see section 77 (1).

79Register of interface arrangements

(1)A rail transport operator must prepare and keep a register containing copies of the following—

(a)each interface agreement applying to the railway operations carried out by or on behalf of the operator;

(b)each interface direction given to the operator in relation to the railway operations carried out by or on behalf of the operator.

Maximum penalty—100 penalty units.

(2)A rail infrastructure manager must prepare and keep a register containing copies of the following—

(a)each interface agreement applying to railway operations carried out on or in relation to the manager’s rail infrastructure;

(b)each interface direction given to the manager in relation to railway operations carried out on or in relation to the manager’s rail infrastructure.

Maximum penalty—100 penalty units.

(3)A responsible road manager for a road must prepare and keep a register containing copies of the following—

(a)each interface agreement applying to a rail or road crossing for the road;

(b)each interface direction given to the manager in relation to a rail or road crossing for the road.

Maximum penalty—100 penalty units.

(4)A rail transport operator who is a rail infrastructure manager may keep 1 register for subsections (1) and (2).

80Notifying other party about particular matters

(1)A rail transport operator must give another rail transport operator (the other operator) with whom the operator has an interface arrangement notice of any railway operations carried out by or on behalf of the operator that may affect the safety of railway operations carried out by or on behalf of the other operator.

Maximum penalty—200 penalty units.

(2)A rail infrastructure manager must give a responsible road manager for a road with whom the rail infrastructure manager has an interface arrangement notice of any railway operations carried out on or in relation to the rail infrastructure manager’s rail infrastructure that may affect the safety of a rail or road crossing, or the use of a rail or road crossing, for the road.

Maximum penalty—200 penalty units.

(3)A responsible road manager for a road must give a rail infrastructure manager with whom the road manager has an interface arrangement notice of the following—

(a)any new rail or road crossing for the road, or change in an existing rail or road crossing for the road, that may affect the safety of railway operations carried out on or in relation to the rail infrastructure manager’s rail infrastructure;

(b)any new, or changed, use of a rail or road crossing for the road that may affect the safety of railway operations carried out on or in relation to the rail infrastructure manager’s rail infrastructure.

Maximum penalty—200 penalty units.

81Requirement to have and implement security management plan

(1)A rail transport operator must have a security management plan complying with subsection (2) for railway operations carried out by or on behalf of the operator.

Maximum penalty—200 penalty units.

(2)The security management plan must—

(a)include measures to protect people from, and respond to acts of, theft, assault, sabotage, terrorism and other criminal acts of other parties and from other harm; and

(b)comply with the requirements prescribed under a regulation.

(3)A rail transport operator must ensure—

(a)the operator’s security management plan is implemented; and

(b)the appropriate response measures of the operator’s security management plan are implemented without delay if an incident of a type mentioned in subsection (2) (a) happens.

Maximum penalty—200 penalty units.

(4)However, if an incident of a type mentioned in subsection (2) (a) results in an emergency, subsection (3) does not apply to the extent that the implementation of the security management plan, or a response measure of the security management plan, is inconsistent with a response measure of the emergency management plan required to be implemented under section 82 (4) for the emergency.

82Requirement to have and implement emergency management plan

(1)A rail transport operator must have an emergency management plan complying with subsection (2) for railway operations carried out by or on behalf of the operator.

Maximum penalty—200 penalty units.

(2)An emergency management plan must—

(a)be prepared—

(i)in conjunction with each emergency service and each other entity prescribed under a regulation; and

(ii)in a way that complies with the requirements prescribed under a regulation; and

(b)provide for the matters prescribed under a regulation.

(3)A rail transport operator must ensure—

(a)the operator’s emergency management plan is kept in a way that complies with the requirements prescribed under a regulation; and

(b)a copy of the operator’s emergency management plan is given to each emergency service and each other entity prescribed under a regulation; and

(c)the operator’s emergency management plan is tested in the way prescribed under a regulation.

Maximum penalty—200 penalty units.

(4)A rail transport operator must ensure that the appropriate response measures of the operator’s emergency management plan that the operator is required to implement under the plan are implemented without delay if an emergency happens.

Maximum penalty—200 penalty units.

(5)In this section—

emergency service means the following—

(a)the Queensland Ambulance Service;

(b)the Queensland Fire and Rescue Service;

(c)the Queensland Police Service.

83Requirement to have and implement health and fitness management program

A rail transport operator must have and implement a health and fitness management program, complying with the requirements prescribed under a regulation, for rail safety workers who carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.

Maximum penalty—200 penalty units.

84Requirement to have and implement alcohol and drug management program

A rail transport operator must have and implement an alcohol and drug management program, complying with the requirements prescribed under a regulation, for rail safety workers who carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.

Maximum penalty—200 penalty units.

85Requirement to have and implement fatigue management program

A rail transport operator must have and implement a fatigue management program, complying with the requirements prescribed under a regulation, for rail safety workers who carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.

Maximum penalty—200 penalty units.

86Testing for presence of alcohol or drugs

(1)The chief executive may enter into an arrangement with a rail transport operator about the testing, in the way prescribed under a regulation, for the presence of alcohol or 1 or more drugs in a rail safety worker who is on duty for carrying out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.

(2)The rail transport operator must comply with the arrangement.

Note—

If the rail transport operator fails to comply with the arrangement, the chief executive may suspend or revoke the operator’s accreditation for railway operations, wholly or partly, under section 109.

(3)For subsection (1), a rail safety worker is on duty for carrying out rail safety work if the worker—

(a)is about to carry out the rail safety work; or

(b)is carrying out the rail safety work; or

(c)has just carried out the rail safety work.

87Assessment of competence

(1)A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock has the competence to carry out the work.

Maximum penalty—500 penalty units.

(2)For subsection (1), the competence of a rail safety worker to carry out particular rail safety work must be assessed in the way prescribed under a regulation for the work.

Note—

If the rail transport operator fails to assess the competence of a rail safety worker to carry out particular rail safety work in the way prescribed under a regulation for the work, the chief executive may suspend or revoke the operator’s accreditation for railway operations, wholly or partly, under section 109.

(3)This section does not prevent a rail transport operator from requiring a rail safety worker to undergo further training before carrying out rail safety work.

(4)A rail transport operator must keep a record, in the way prescribed under a regulation, of the competence of each rail safety worker who carries out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock.

Maximum penalty—100 penalty units.

s 87 (5)–(6) exp 2 September 2012 (see s 87 (6))

88Identification for rail safety workers

(1)A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work on or in relation to the operator’s rail infrastructure or rolling stock has identification that allows a rail safety officer to check the type of competence and training the worker has for the work.

Maximum penalty—40 penalty units.

(2)A rail safety worker who is on duty for carrying out rail safety work on or in relation to a rail transport operator’s rail infrastructure or rolling stock must, if asked by a rail safety officer, produce for the officer’s inspection the identification provided to the worker under subsection (1), unless the worker has a reasonable excuse.

Maximum penalty—40 penalty units.

(3)For subsection (2), a rail safety worker is on duty for carrying out rail safety work if the worker—

(a)is about to carry out the rail safety work; or

(b)is carrying out the rail safety work; or

(c)has just carried out the rail safety work.

s 88 (4)–(5) exp 2 September 2012 (see s 88 (5))

89Application of div 4

This division does not apply in relation to railway operations carried out by or on behalf of a rail transport operator for which the operator is exempt under this Act from the requirement to be accredited.

90Chief executive may require particular information

(1)The chief executive may, by notice, require a rail transport operator to give the chief executive, by a stated date and in the stated way, any or all of the following—

(a)information about measures taken by the operator to ensure rail safety;

(b)information the chief executive reasonably requires, for the administration of this Act, about rail safety or the operator’s accreditation for railway operations, including information about the operator’s financial capacity or insurance arrangements;

(c)information prescribed under a regulation for this subsection.

(2)A rail transport operator given a notice under subsection (1) must comply with the notice, unless the operator has a reasonable excuse.

Maximum penalty for subsection (2)—200 penalty units.

91Requirement to give prescribed information

(1)A rail transport operator must, as provided under subsection (2), give the chief executive the information about safety, or the operator’s accreditation for railway operations, that is prescribed under a regulation for this subsection.

Maximum penalty—200 penalty units.

(2)The information under subsection (1) must be given—

(a)in the way prescribed under a regulation; and

(b)within the time prescribed under a regulation; and

(c)for the periods prescribed under a regulation.

92Application of div 5

This division does not apply in relation to railway operations carried out by or on behalf of a rail transport operator for which the operator is exempt under this Act from the requirement to be accredited.

93Notification of particular occurrences

(1)If a notifiable occurrence happens on or in relation to a rail transport operator’s railway premises or railway operations, the operator must report the occurrence, within the period and in the way prescribed under a regulation, to—

(a)the chief executive; or

(b)if the chief executive has given the operator a notice nominating another entity to whom the report is to be given—the nominated entity.

Maximum penalty—200 penalty units.

(2)Two or more rail transport operators may, for complying with subsection (1), make a joint report about a notifiable occurrence affecting them.

(3)The chief executive may, by notice, require a rail transport operator to give to the chief executive, or another entity, a written report, complying with the requirements stated in the notice, about another occurrence or type of occurrence that endangers or could endanger the safe operation of railway operations carried out by or on behalf of the operator.

(4)The chief executive may, by notice, require a rail transport operator who has given a report under this section to verify information in the report by statutory declaration.

(5)A rail transport operator who is given a notice under subsection (3) or (4) must comply with the notice, unless the operator has a reasonable excuse.

Maximum penalty for subsection (5)—200 penalty units.

94Investigation of particular occurrences

(1)The chief executive may, by notice, require a rail transport operator to investigate in the way stated in the notice—

(a)a notifiable occurrence that has happened on or in relation to the operator’s railway premises or railway operations; or

(b)another occurrence that has endangered or could endanger the safe operation of the operator’s railway operations.

(2)The chief executive must decide the level of investigation required under subsection (1) having regard to—

(a)the severity and potential consequences of the notifiable occurrence or other occurrence; and

(b)whether or not there have been any similar occurrences on or in relation to the rail transport operator’s railway premises or railway operations.

(3)The chief executive must ensure the focus of an investigation required under subsection (1) is directed at identifying the cause of, and factors contributing to, the notifiable occurrence or other occurrence, rather than apportioning blame.

(4)The rail transport operator must, unless the operator has a reasonable excuse, ensure that the investigation is conducted in the way stated in the notice within—

(a)the period stated in the notice; or

(b)if the chief executive has extended the period mentioned in paragraph (a) by a later notice—the extended period mentioned in the later notice.

Maximum penalty for subsection (4)—200 penalty units.

95Report of investigation under s 94

(1)This section applies if a rail transport operator has carried out an investigation under section 94.

(2)The rail transport operator must give the chief executive a report of the investigation, complying with the requirements stated in the notice given under section 94, within—

(a)the period stated in the notice; or

(b)if the chief executive has extended the period mentioned in paragraph (a) by a later notice—the extended period mentioned in the later notice.

Maximum penalty—200 penalty units.

(3)The following is not admissible in evidence against an individual in any civil or criminal proceeding—

(a)a report given under this section (primary evidence);

(b)any information, or document or other thing, obtained as a direct or indirect result of the report (derived evidence).

(4) Subsection (3) does not prevent primary evidence or derived evidence being admitted in evidence in criminal proceedings about the falsity or misleading nature of the primary evidence.

(5)Also, subsection (3) has no effect on the use or admissibility of the primary evidence or derived evidence in a coronial procedure.

96Relevant documents must be kept and made available for inspection

(1)A rail transport operator must—

(a)keep each relevant document for the operator—

(i)at the relevant place for the operator; and

(ii)during the relevant times for the operator; and

(b)if asked by a rail safety officer, produce the document for the officer’s inspection unless the operator has a reasonable excuse.

Maximum penalty—40 penalty units.

(2)It is not a reasonable excuse for a rail transport operator to not produce an exemption notice in response to a request under subsection (1) (b) that the operator has not obtained the exemption notice under section 61.

(3)In this section—

relevant document, for a rail transport operator, means the following—

(a)if the operator is an accredited person for railway operations—the operator’s accreditation notice for the accreditation for the railway operations;

(b)if the operator is exempt under this Act from the requirement to be accredited for railway operations—

(i)for a rail transport operator exempt from the requirement to be accredited for railway operations under section 47—the notice about the exemption given to the operator under section 46 (1); or

(ii)for a rail transport operator exempt from the requirement to be accredited for railway operations under another provision of this Act—the exemption notice given to the operator under section 61;

(c)if the operator is a rail infrastructure manager of a private siding registered with the chief executive—the operator’s registration notice for the siding;

(d)any other document prescribed under a regulation for the operator.

relevant place, for a rail transport operator, means the following—

(a)if the operator is a corporation—the operator’s registered office; or

(b)otherwise—the operator’s principal place of business or, if the chief executive approves another place nominated by the operator, the approved place.

relevant times, for a rail transport operator, means the following—

(a)if the operator is a corporation—office hours on business days; or

(b)otherwise—office hours on business days or, if the chief executive approves other periods nominated by the operator, the approved periods.

97Purpose of accreditation

The purpose of accrediting a person for railway operations is to attest that the person has demonstrated to the chief executive that the person has the competence and capacity to manage risks to the safety of persons arising, or potentially arising, from the railway operations.

98Accreditation criteria

The following are the accreditation criteria for a person for being accredited for railway operations—

(a)the railway operations relate to—

(i)rail infrastructure for which the person is or will be a rail infrastructure manager; or

(ii)proposed rail infrastructure for which the person will be a rail infrastructure manager; or

(iii)rolling stock for which the person is or will be a rolling stock operator; or

(iv)proposed rolling stock for which the person will be a rolling stock operator;

(b)the person has the competence and capacity to manage risks to the safety of persons arising, or potentially arising, from the railway operations;

(c)the person—

(i)has the competence and capacity to implement the person’s safety management system for the railway operations; and

(ii)has the financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the railway operations;

(d)the person has met the consultation requirements under this Act applying to the person’s safety management system for the railway operations;

(e)the person is not disqualified, under section 109 (3), from applying for accreditation for the railway operations;

(f)any other criteria prescribed under a temporary regulation.

99Accreditation may be granted

(1)The chief executive may grant an accreditation for railway operations of a stated scope and nature.

(2)For subsection (1), the stated scope and nature of the railway operations includes—

(a)the railway operations for which accreditation is granted under subsection (3); and

(b)details of the nature of the railway operations mentioned in paragraph (a), including, for example—

(i)the location of the railway operations or the rail infrastructure to which the railway operations relate; and

(ii)for railway operations relating to rolling stock—the type of rolling stock that can be used for the railway operations or the type of traction system that can be used for the railway operations.

(3)An accreditation may be granted for 1 or more of the following—

(a)all or stated railway operations on or at—

(i)a stated railway or part of a railway; or

(ii)a railway, or a part of a railway, having a stated scope or stated characteristics;

(b)a service or aspect, or part of a service or aspect, of stated railway operations;

(c)construction of stated rail infrastructure;

(d)an activity that is a part of railway operations, including, for example, the following—

(i)site preparation;

(ii)restoration or repair work;

(iii)testing of a railway track or other rail infrastructure;

(iv)another activity considered appropriate by the chief executive.

Note—

An accredited person is given particular powers under the Transport Infrastructure Act 1994 . See, for example, chapter 7, part 4 for powers to enter another person’s land for carrying out particular railway operations.

(4)An accreditation may, on an applicant’s request, be granted for a stated period only.

100Application for accreditation

(1)A person may apply to the chief executive for accreditation for railway operations of a stated scope and nature that are proposed to be carried out by or on behalf of the person.

(2)The application for accreditation must—

(a)be made in the approved form; and

(b)state the following—

(i)the scope and nature of the railway operations for which accreditation is sought;

(ii)whether or not the applicant—

(A)is an accredited person for railway operations under a corresponding law (including a person whose accreditation for railway operations is suspended under a corresponding law); or

(B)has applied for accreditation for railway operations under a corresponding law;

(iii)if the applicant is an accredited person for railway operations under a corresponding law and the applicant’s accreditation is suspended under the corresponding law—that the accreditation is suspended under the corresponding law; and

(c)include—

(i)the information or other items prescribed under a regulation; and

(ii)a safety management plan for the railway operations for which accreditation is sought; and

(d)be accompanied by the application fee prescribed under a regulation.

(3)The chief executive may, by notice, require the applicant—

(a)to supply further information; or

(b)to verify by statutory declaration any information supplied to the chief executive.

(4)In this section—

safety management plan, for railway operations, means a document describing the proposed safety management system for the railway operations.

101What applicant for accreditation must demonstrate

The chief executive may grant an accreditation for railway operations to the applicant only if the chief executive is satisfied that the applicant—

(a)meets the accreditation criteria for being accredited for the railway operations for which accreditation is sought; and

(b)has complied with any other requirements prescribed under a regulation for this section.

102Coordination of applications between operators

(1)This section applies if the chief executive—

(a)receives applications for accreditation for railway operations from 2 or more rail transport operators; and

(b)believes that coordinated preparation of the applications is necessary to ensure that the railway operations of the rail transport operators are carried out safely.

(2)The chief executive may give a written direction to the rail transport operators to coordinate their applications.

(3)Without limiting subsection (2), a direction under the subsection may require a rail transport operator the subject of the direction to give another rail transport operator the subject of the direction information about the circumstances relating to the operator’s railway operations that could constitute a risk to the safety of persons in relation to the other operator’s railway operations.

(4)A rail transport operator who is given a direction under subsection (2) must comply with the direction, unless the operator has a reasonable excuse.

Maximum penalty—60 penalty units.

(5)A rail transport operator who has coordinated the preparation of an application for accreditation in compliance with a direction under this section must ensure the application is amended, after the coordination, to include details of the following—

(a)the information given, under the direction, by the rail transport operator to each other rail transport operator the subject of the direction;

(b)the information given, under the direction, to the rail transport operator by each other rail transport operator the subject of the direction.

Maximum penalty—60 penalty units.

(6)The rail transport operator must give the amended application to the chief executive.

(7)Subject to subsection (8), if the rail transport operator does not give the amended application to the chief executive within 6 months after the direction is given, the operator’s application for accreditation lapses.

(8)The chief executive may, by notice to the rail transport operator, extend the period within which the amended application must be given.

(9)In this section—

rail transport operator includes a person who will be a rail transport operator.

103Coordination of decisions between rail safety regulators

(1)This section applies if the chief executive receives an application for accreditation for railway operations that indicates that the applicant—

(a)is an accredited person for railway operations under a corresponding law (including a person whose accreditation for railway operations is suspended under the corresponding law); or

(b)has applied for accreditation for railway operations under a corresponding law.

(2)The chief executive must, as soon as possible and before deciding the application, consult with the relevant corresponding rail safety regulator about the application with a view to the chief executive’s decision on the application being consistent with—

(a)if the applicant is an accredited person under the corresponding law—the applicant’s accreditation, including any decision of the relevant corresponding rail safety regulator on an application for a variation of the accreditation or a variation of a condition of the accreditation, under the corresponding law; or

(b)if the applicant is applying for accreditation in another State—the decision of the relevant corresponding rail safety regulator on the application in the other State.

104Considering application

(1)The chief executive must consider each application for accreditation for railway operations and—

(a)if the chief executive is satisfied the chief executive can grant the accreditation under section 101—grant the accreditation, with or without conditions; or

(b)otherwise—refuse the application.

(2)The chief executive must grant the accreditation, or refuse the application, before the latest of the following periods ends—

(a)6 months after the application was received by the chief executive;

(b)if the applicant was required to coordinate the application with another rail transport operator under section 102—6 months after the chief executive receives the amended application after the coordination;

(c)if the chief executive requested further information in relation to the application—6 months, or another period agreed to by the chief executive and the applicant, after the chief executive receives the final information requested;

(d)if the chief executive, by notice to the applicant before the expiry of a period mentioned in paragraph (a), (b) or (c), nominates another period ending after the period mentioned in paragraph (a), (b) or (c)—the nominated period.

(3)If the chief executive gives a notice under subsection (2) (d), the notice must include, or be accompanied by, an information notice for the decision to extend the period mentioned in the subsection.

105Steps after application decided

(1)If the chief executive grants an accreditation, the chief executive must give the applicant—

(a)a notice granting the accreditation and stating the matters mentioned in subsection (2); and

(b)if the chief executive has imposed a condition on the accreditation—an information notice for the decision to impose the condition.

(2)A notice under subsection (1) (a) must state the following—

(a)the details of the applicant prescribed under a regulation;

(b)the scope and nature of the railway operations for which the accreditation is granted;

(c)the way in which the railway operations for which the accreditation is granted are to be carried out;

(d)if the chief executive has imposed conditions on the accreditation—the conditions;

(e)any other information prescribed under a regulation.

(3)If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice for the decision.

106Prescribed accreditation conditions

(1)A regulation may prescribe a condition (a prescribed accreditation condition) to which a person’s accreditation for railway operations is subject.

(2)If there is an inconsistency between a condition stated on an accreditation notice for an accreditation for railway operations and a prescribed accreditation condition applying to the accreditation—

(a)the prescribed accreditation condition applies to the extent of the inconsistency; and

(b)the condition stated on the accreditation notice has no effect to the extent of the inconsistency.

(3)For the application of a prescribed accreditation condition to a person’s accreditation for railway operations, it is irrelevant when the accreditation was granted.

(4)Also, if a person’s accreditation for railway operations is varied under this part, the accreditation as varied is subject to the prescribed accreditation conditions.

107Breach of accreditation condition

A person carrying out railway operations the subject of an accreditation must not contravene an accreditation condition of the accreditation.

Maximum penalty—200 penalty units.

108Annual accreditation fees

(1)An accredited person must pay the annual accreditation fee prescribed under a regulation by the date prescribed under the regulation.

(2)The chief executive may accept payment of an annual accreditation fee payable by an accredited person under an agreement made with the person, whether for payment by instalments or otherwise.

Note—

If the accredited person fails to pay an annual accreditation fee, the unpaid fee may be recovered under section 281. Also, the chief executive may suspend or revoke the accredited person’s accreditation for railway operations, wholly or partly, under section 109.

109Grounds for suspending or revoking accreditation

(1)This section applies if—

(a)the chief executive reasonably considers an accredited person—

(i)no longer meets the accreditation criteria for being accredited for the railway operations the subject of the person’s accreditation; or

(ii)is unable to carry out the railway operations the subject of the person’s accreditation in a way that complies with the duties or requirements under this Act for the railway operations; or

(iii)is not managing rail infrastructure, or is not operating rolling stock, in relation to the railway operations the subject of the person’s accreditation and has not done so for the previous year or longer; or

(b)an accredited person contravenes this Act.

(2)The chief executive may, by complying with section 110—

(a)suspend the accredited person’s accreditation wholly or partly, or in relation to stated railway operations, for a stated period; or

(b)revoke the accredited person’s accreditation wholly or partly, or in relation to stated railway operations, with immediate effect or with effect from a stated future date.

(3)If the chief executive revokes an accredited person’s accreditation, the chief executive may declare that the person is disqualified from applying for accreditation, or accreditation for stated railway operations, for a stated period.

110Procedure for suspending or revoking accreditation

(1)Before making a decision under section 109, the chief executive must—

(a)give the person a notice stating—

(i)that the chief executive is considering making a decision under section 109 of the type, and for the reasons, stated in the notice; and

(ii)that the person may, within the period of at least 28 days stated in the notice, make written representations to the chief executive showing cause why the decision should not be made; and

(b)consider any representations made under paragraph (a)(ii) that have not been withdrawn.

(2)If, after considering the written representations, the chief executive decides to act under section 109, the chief executive must give the person an information notice for the decision.

(3)If the chief executive decides to revoke the accreditation, the information notice must also include a direction to the accredited person to return the accreditation notice for the accreditation to the chief executive within 14 days after receiving the information notice.

(4)A person who is directed under subsection (3) to return an accreditation notice must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(5)A decision under section 109 takes effect on the later of the following—

(a)the day the information notice is given to the accredited person;

(b)the day of effect stated in the information notice.

(6)If the chief executive decides to act under section 109 in relation to a person who is an accredited person under a corresponding law, including a person whose accreditation is suspended under the corresponding law, the chief executive must notify the relevant corresponding rail safety regulator of the decision.

(7)If, after considering the written representations, the chief executive decides action is no longer required under section 109 in relation to the accreditation, the chief executive must give the person notice of the decision.

111Suspending accreditation immediately

(1)This section applies if the chief executive reasonably considers there is, or would be, an immediate and serious risk to the safety of persons if an accredited person’s accreditation is not suspended immediately.

(2)The chief executive may, by notice given to the person and without complying with section 110, immediately suspend the person’s accreditation—

(a)wholly or partly, or in relation to stated railway operations; and

(b)for a stated period not exceeding 6 weeks.

(3)The notice given under subsection (2) must include, or be accompanied by, an information notice.

(4)The chief executive may amend a suspension of a person’s accreditation under this section to—

(a)reduce the period of suspension; or

(b)extend the period of suspension so long as the total suspension period does not exceed 6 weeks.

(5)Before amending a suspension of a person’s accreditation under this section to extend the period of suspension, the chief executive must—

(a)give the person a notice stating—

(i)that the chief executive is considering extending the period of suspension for the reasons stated in the notice; and

(ii)that the person may, within the period of at least 7 days stated in the notice, make written representations to the chief executive showing cause why the suspension should not be extended; and

(b)consider any representations made under paragraph (a)(ii) that have not been withdrawn.

(6)If, after considering the written representations, the chief executive decides to amend the suspension of a person’s accreditation to extend the period of suspension, the chief executive must give the person an information notice for the decision.

(7)If the chief executive decides to amend the suspension of a person’s accreditation to reduce the period of suspension, the chief executive must give the person a notice stating the new period of suspension.

(8)If the chief executive decides to act under this section in relation to a person who is an accredited person under a corresponding law, including a person whose accreditation is suspended under the corresponding law, the chief executive must notify the relevant corresponding rail safety regulator of the decision.

112Varying conditions of accreditation

(1)The chief executive may, at any time—

(a)vary or revoke a condition imposed by the chief executive on an accredited person’s accreditation; or

(b)impose a new condition on an accredited person’s accreditation.

(2)Before taking action under subsection (1), the chief executive must—

(a)give the accredited person notice of the action the chief executive proposes to take; and

(b)allow the accredited person to make written representations about the proposed action within 14 days or, if the chief executive and the accredited person have agreed on another period, the other period; and

(c)consider any representations made under paragraph (b) that have not been withdrawn.

(3) Subsection (2) does not apply if the chief executive reasonably considers it necessary to take immediate action in the interests of ensuring the safety of persons.

(4)If the chief executive decides to act under subsection (1), the chief executive must give the accredited person an information notice for the decision.

113Application for variation of accreditation

(1)An accredited person may apply to the chief executive for a variation of the person’s accreditation.

(2)An application for a variation of accreditation must—

(a)be in the approved form; and

(b)include the following—

(i)the details of the variation being sought;

(ii)the information or other items prescribed under a regulation.

(3)The chief executive may, by notice, require an applicant for a variation of an accreditation—

(a)to supply further information; or

(b)to verify by statutory declaration any information supplied to the chief executive.

114Requirement to consult with affected rail transport operators

(1)This section applies if the applicant for a variation of accreditation is a person to whom a direction under section 102 (coordination direction) was given.

(2)The chief executive may give the applicant a written direction (consultation direction) to consult with 1 or more rail transport operators who were the subject of the coordination direction.

(3)Without limiting subsection (2), a consultation direction may require the applicant to give another rail transport operator information about how the proposed variation may or will affect the railway operations of the other rail transport operator.

(4)A person given a consultation direction must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—60 penalty units.

(5)An applicant for a variation of accreditation who has consulted with a rail transport operator in compliance with a consultation direction must ensure the application is amended, after the consultation, to include details of the following—

(a)the information given, under the consultation direction, by the applicant to the other rail transport operator;

(b)any information given to the applicant by the other rail transport operator in response to the information given to the operator under the consultation direction.

Maximum penalty—60 penalty units.

(6)The applicant must give the amended application to the chief executive.

(7)Subject to subsection (8), if the applicant does not give the amended application to the chief executive within 6 months after the consultation direction is given, the applicant’s application for variation of accreditation lapses.

(8)The chief executive may, by notice to the applicant, extend the period within which the amended application must be given.

115Coordination of decisions between rail safety regulators

(1)This section applies if the chief executive receives an application for a variation of accreditation that indicates that the applicant—

(a)is an accredited person for railway operations under a corresponding law (including a person whose accreditation for railway operations is suspended under a corresponding law); or

(b)has applied for accreditation for railway operations under a corresponding law.

(2)The chief executive must, as soon as possible and before deciding the application, consult with the relevant corresponding rail safety regulator in relation to the application with a view to the chief executive’s decision on the application being consistent with—

(a)if the applicant is an accredited person under the corresponding law—the applicant’s accreditation, including any decision of the relevant corresponding rail safety regulator on an application for a variation of the accreditation, or a variation of a condition of the accreditation; or

(b)if the applicant is applying for accreditation under the corresponding law—the decision of the relevant corresponding rail safety regulator on the application.

116Considering application for variation

(1)The chief executive must consider each application for a variation of accreditation and—

(a)if the chief executive is satisfied the applicant meets the accreditation criteria for being accredited for the railway operations the subject of the accreditation as varied by the proposed variation—vary the accreditation, with or without the imposition of new or varied conditions on the accreditation; or

(b)otherwise—refuse the application.

(2)The chief executive must vary the accreditation, or refuse the application, before the latest of the following periods ends—

(a)6 months after the application was received by the chief executive;

(b)if the applicant was required to consult with other rail transport operators under section 114—6 months after the chief executive receives the amended application after the consultation;

(c)if the chief executive requested further information in relation to the application—6 months, or another period agreed between the chief executive and the applicant, after the chief executive receives the final information requested;

(d)if the chief executive, by notice to the applicant before the expiry of a period mentioned in paragraph (a), (b) or (c), nominates another period ending after the period mentioned in paragraph (a), (b) or (c)—the nominated period.

(3)If the chief executive gives a notice under subsection (2) (d), the notice must include, or be accompanied by, an information notice for the decision to extend the period in the way mentioned in the subsection.

117Steps after application for variation decided

(1)If the chief executive decides to vary the accreditation, the chief executive must give the applicant—

(a)a notice varying the accreditation and stating the matters mentioned in subsection (2); and

(b)if the chief executive has imposed new or varied conditions on the accreditation—an information notice for the decision to impose the new or varied conditions.

(2)A notice under subsection (1) (a) must state the following—

(a)the details of the applicant prescribed under a regulation;

(b)details of the variation to the accreditation to the extent the variation applies to the scope and nature of the railway operations the subject of the accreditation, or the way in which the railway operations are to be carried out;

(c)if the chief executive has imposed new or varied conditions on the accreditation—the conditions of the accreditation after the variation;

(d)any other information prescribed under a regulation.

(3)If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice for the decision.

118Application for variation of conditions

(1)An accredited person may apply to the chief executive for a variation of a condition of the person’s accreditation for railway operations imposed by the chief executive.

(2)An application for variation of a condition of accreditation must be made as if it were an application for a variation of accreditation.

Note—

See section 113 (2) for the requirements for an application for a variation of accreditation.

(3)The chief executive may, by notice, require an applicant for a variation of a condition of accreditation—

(a)to supply further information; or

(b)to verify by statutory declaration any information supplied to the chief executive.

119Requirement to consult with affected rail transport operators

(1)This section applies if the applicant for a variation of a condition of accreditation is a person to whom a direction under section 102 (coordination direction) was given.

(2)The chief executive may give the applicant a written direction (consultation direction) to consult with 1 or more rail transport operators who were the subject of the coordination direction.

(3)Without limiting subsection (2), a consultation direction may require the applicant to give another rail transport operator information about how the proposed variation may or will affect the railway operations of the other rail transport operator.

(4)A person given a consultation direction must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—60 penalty units.

(5)An applicant for a variation of a condition of accreditation who has consulted with another rail transport operator in compliance with a consultation direction must ensure the application is amended, after the consultation, to include details of the following—

(a)the information given, under the consultation direction, by the applicant to the other rail transport operator;

(b)any information given to the applicant by the other rail transport operator in response to the information given to the operator under the consultation direction.

Maximum penalty—60 penalty units.

(6)The applicant must give the amended application to the chief executive.

(7)Subject to subsection (8), if the applicant does not give the amended application to the chief executive within 6 months after the consultation direction is given, the applicant’s application for a variation of a condition of accreditation lapses.

(8)The chief executive may, by notice to the applicant, extend the period within which the amended application must be given.

120Coordination of decisions between rail safety regulators

(1)This section applies if the chief executive receives an application for a variation of a condition of accreditation that indicates that the applicant—

(a)is an accredited person for railway operations under a corresponding law (including a person whose accreditation for railway operations is suspended under a corresponding law); or

(b)has applied for accreditation for railway operations under a corresponding law.

(2)The chief executive must, as soon as possible and before deciding the application, consult with the relevant corresponding rail safety regulator in relation to the application with a view to the chief executive’s decision on the application being consistent with—

(a)if the applicant is an accredited person under the corresponding law—the applicant’s accreditation, including any decision of the relevant corresponding rail safety regulator on an application for a variation of the accreditation or a variation of a condition of the accreditation; or

(b)if the applicant is applying for accreditation under the corresponding law—the decision of the relevant corresponding rail safety regulator on the application.

121Considering application for variation of condition

(1)The chief executive must consider each application for a variation of a condition of accreditation and—

(a)if the chief executive is satisfied the applicant meets the accreditation criteria for being accredited for the railway operations the subject of the accreditation as varied by the proposed variation—vary the condition; or

(b)otherwise—refuse the application.

(2)The chief executive must vary the condition, or refuse the application, before the latest of the following periods ends—

(a)6 months after the application was received by the chief executive;

(b)if the applicant was required to consult with other rail transport operators under section 119—6 months after the chief executive receives the amended application after the consultation;

(c)if the chief executive requested further information in relation to the application—6 months, or another period agreed between the chief executive and the applicant, after the chief executive receives the final information requested;

(d)if the chief executive, by notice to the applicant before the expiry of a period mentioned in paragraph (a), (b) or (c), nominates another period ending after the period mentioned in paragraph (a), (b) or (c)—the nominated period.

(3)If the chief executive gives a notice under subsection (2) (d), the notice must include, or be accompanied by, an information notice for the decision to extend the period in the way mentioned in the subsection.

122Steps after application for variation of condition decided

(1)If the chief executive decides to vary the condition of the accreditation, the chief executive must give the applicant a notice varying the condition of the accreditation and stating the following—

(a)the details of the applicant prescribed under a regulation;

(b)details of the variation of the condition of the accreditation to the extent the variation applies to the scope and nature of the railway operations the subject of the accreditation, or the way in which the railway operations are to be carried out;

(c)the conditions of the accreditation after the variation;

(d)any other information prescribed under a regulation.

(2)If the chief executive decides to refuse the application, the chief executive must give the applicant an information notice for the decision.

123Consolidated accreditation notice

(1)This section applies if, under this part—

(a)a person’s accreditation for railway operations is varied; or

(b)a condition of a person’s accreditation for railway operations is varied.

(2)The chief executive must, immediately after the variation, issue the person a notice (a consolidated accreditation notice) stating the matters mentioned in section 105 (2) for the accreditation as applying after the variation.

(3)The consolidated accreditation notice must identify when each variation of the accreditation, or a condition of the accreditation, came into effect.

124Surrender of accreditation

An accredited person may, in the way prescribed under a regulation, surrender the person’s accreditation for railway operations.

125Accreditation can not be transferred to or vested in another person

(1)An accreditation for railway operations granted to a person under this part can not—

(a)be transferred or otherwise similarly dealt with; or

(b)vest in another person by operation of law.

(2)A purported transfer of, or similar dealing with, an accreditation is of no effect.

(3)This section applies despite any other Act or law.

126Applications for accreditation if railway operations sold or transferred by accredited person

(1)This section applies if—

(a)an accredited person proposes to sell or otherwise transfer the railway operations the subject of the person’s accreditation to another person (the transferee); and

(b)the transferee applies, or notifies the chief executive of the transferee’s intent to apply, for accreditation for the railway operations; and

(c)the chief executive is satisfied that, in relation to the application or proposed application, the transferee—

(i)meets the accreditation criteria for being accredited for the railway operations; or

(ii)meets a part of the accreditation criteria for being accredited for the railway operations; and

(d)the chief executive is satisfied that, having regard to the matter mentioned in paragraph (c), it is not necessary to require the transferee to comply with a requirement under this part applying to the application.

(2)The chief executive may, by notice, waive compliance by the transferee with the requirement.

Examples for subsection (2)—

1If the chief executive is satisfied the transferee has a safety management system for the railway operations and the transferee has the competence and capacity to implement the system, the chief executive may waive the requirement that the transferee’s application for accreditation for the railway operations include a safety management plan for the operations.

2If the chief executive is satisfied the transferee meets the criteria mentioned in section 98 (b), (c) and (d) in relation to risks to the safety of persons arising, or potentially arising, from the railway operations to an extent that a reassessment of the transferee’s ability to meet the requirements is not necessary, the chief executive may waive the application fee that must accompany the application.

(3)A waiver of compliance with a requirement under subsection (2) may be given subject to the conditions or restrictions the chief executive reasonably considers necessary.

Examples of conditions or restrictions for subsection (3)—

•a condition that the waiver only applies if the transferee’s application for accreditation is for railway operations of the same scope and nature as the railway operations that are transferred

•a condition that the waiver only applies if the transferee’s application for accreditation for railway operations is accompanied by documentary evidence that stated employees of the accredited person who were responsible for ensuring the safety of the accredited person’s railway operations are, or will be, employees of the transferee and will be responsible for ensuring the safety of the transferee’s railway operations the subject of the accreditation

127Functions of chief executive

(1)In addition to any other functions conferred on the chief executive under this Act, the chief executive has the following functions—

(a)to administer, audit and review the accreditation regime under this Act;

(b)to work with rail transport operators, rail safety workers, others involved in railway operations and corresponding rail safety regulators to improve the safety of railways in Queensland and nationally;

(c)to give information to corresponding rail safety regulators, including information about causal factors of notifiable occurrences, accreditation processes, investigation methods and risk assessment methodologies;

(d)to collect and publish information about the safety of railways;

(e)to give, or facilitate the giving of, advice, education and training about the safety of railways;

(f)to monitor, investigate and enforce compliance with this Act.

(2)The functions of the chief executive under this Act are in addition to the functions the chief executive has under any other Act or law.

128Information to be included in annual reports

(1)The chief executive must ensure the department’s annual report for a financial year includes the following—

(a)information about the developments in the safety of railways that happened in the year;

(b)information about any improvements and other important changes for the regulation of the safety of railways that happened in the year.

(2)In this section—

annual report means an annual report under the Financial Accountability Act 2009.

129Chief executive may exercise powers of rail safety officers

(1)The chief executive may exercise any power conferred on a rail safety officer under this Act.

(2)For subsection (1), in this Act, other than this part, a reference to a rail safety officer includes a reference to the chief executive.

130Audit of railway operations of rail transport operators

(1)The chief executive may—

(a)audit the railway operations of a rail transport operator; and

(b)prepare and implement a program (an audit program), for each year, for inspecting the railway operations of rail transport operators; and

(c)for an audit, inspect the railway operations of a rail transport operator whether or not under an audit program.

(2)Without limiting subsection (1) (b), an audit program may focus on 1 or more of the following—

(a)particular rail transport operators;

(b)particular criteria relating to rail transport operators;

(c)particular aspects of the safety of railways;

(d)particular aspects of railway operations.

(3)Before inspecting the railway operations of a rail transport operator under this section, the chief executive must give the operator a notice about the proposed inspection at least 24 hours before the inspection is proposed to be carried out.

(4)A regulation may prescribe procedures for the conduct of audits under this section, including procedures to ensure the confidentiality of records.

(5)In this section—

rail transport operator includes a person who undertakes railway operations on behalf of a rail transport operator, other than as an employee of the operator.

131Definitions for sdiv 3

In this subdivision—

dispute matter see section 134 (1) (a).

QCA means the Queensland Competition Authority established under the Queensland Competition Authority Act 1997 , section 7.

rail transport infrastructure has the meaning given by the Transport Infrastructure Act 1994 , schedule 6.

safety matter see section 132 (1).

safety matter direction see section 134 (1) (c).

132Chief executive may decide matters on request

(1)This section applies if parties to negotiations for a proposed agreement about access to rail transport infrastructure are unable to agree about a matter relating to rail safety (a safety matter).

(2)The chief executive may make a decision about the safety matter if—

(a)the access is required to be given under an access undertaking and, under that undertaking, QCA asks the chief executive to make a decision about the safety matter; or

(b)there is no access undertaking but access is required to be given under the Queensland Competition Authority Act 1997 and QCA asks the chief executive to make a decision about the safety matter; or

(c)the access is not required under an access undertaking or the Queensland Competition Authority Act 1997 , but at least 1 of the parties to the negotiations asks the chief executive to make a decision about the safety matter and the chief executive reasonably considers it appropriate to make a decision.

(3)If the chief executive makes a decision about a safety matter under subsection (2) (a), QCA, in dealing with matters under the access undertaking that include the safety matter, must not make a decision relating to the safety matter that is inconsistent with the chief executive’s decision.

(4)If the chief executive makes a decision about a safety matter under subsection (2) (b), QCA must have regard to the decision when exercising a power under the Queensland Competition Authority Act 1997 relating to the safety matter.

(5)If the chief executive makes a decision about a safety matter under subsection (2) (c), the decision is binding on the parties to the negotiations only if the parties agree to be bound by the decision.

(6)The chief executive may develop guidelines for making decisions under subsection (2).

(7)The chief executive must ensure a copy of the guidelines mentioned in subsection (6) is available for inspection, free of charge, at each department office during office hours on business days.

(8)In this section—

access undertaking see the Queensland Competition Authority Act 1997 , schedule.

133Notice of dispute under agreement for access

(1)This section applies to a dispute under an agreement for accessing rail transport infrastructure if the dispute is about a safety matter, including, for example, the following agreements—

(a)an agreement mentioned in section 54 (1);

(b)an access agreement.

(2)A person who gives notice of the dispute to another party to the agreement may give the chief executive a signed notice stating details of the dispute.

(3)Each rail transport operator who is a party to the agreement must give the chief executive a notice stating details of the resolution of the dispute within 14 days after the resolution.

Maximum penalty—10 penalty units.

(4)In this section—

access agreement see the Queensland Competition Authority Act 1997 , schedule.

resolution, of a dispute, means the end of the dispute by—

(a)agreement of the parties to the dispute; or

(b)arbitration; or

(c)a decision of an expert under the agreement; or

(d)a decision of a court or QCA.

134Safety matter directions for disputes under agreement for access

(1)This section applies if the chief executive—

(a)is given a notice under section 133 (2) about a matter that is in dispute (dispute matter); and

(b)has taken steps the chief executive considers appropriate to become reasonably informed about the dispute matter; and

(c)reasonably considers that in relation to the dispute matter it is reasonable to give a rail transport operator a written direction (safety matter direction) to do or not to do a stated act.

(2)The chief executive may, by complying with section 135, give the rail transport operator the safety matter direction.

(3)For subsection (1) (b), the steps the chief executive takes may include consulting with 1 or more of the following persons about the dispute matter—

(a)each rail transport operator who is a party to the agreement;

(b)another person whom the chief executive reasonably believes may be able to help the chief executive in relation to the dispute matter, including, for example, QCA.

(4)For consulting with a rail transport operator, the chief executive may give a notice to the operator stating a reasonable time and place for a meeting with the operator.

(5)A rail transport operator given a notice under subsection (4) must attend the meeting at the time and place stated in the notice, unless the operator has a reasonable excuse.

Maximum penalty for subsection (5)—10 penalty units.

135Procedure for giving safety matter direction

(1)If the chief executive proposes to give, under section 134, a rail transport operator a safety matter direction in relation to a dispute matter (the proposed action), the chief executive must give each party to the agreement, and QCA, a notice stating the following—

(a)the proposed action;

(b)the grounds for the proposed action;

(c)an outline of the facts and circumstances forming the basis for the grounds;

(d)an invitation to each person given the notice to make written representations, within a stated period of at least 14 days, about why the proposed action should not be taken.

(2)The chief executive must consider any written representations made within the stated period.

(3)If, after considering any written representations made within the stated period, the chief executive still considers it is reasonable to give the safety matter direction, the chief executive may give the safety matter direction.

(4)The safety matter direction must—

(a)state the day by which the safety matter direction must be complied with, which must be reasonable having regard to the nature of the matters to be done under the safety matter direction; and

(b)include, or be accompanied by, an information notice about the chief executive’s decision to give the safety matter direction.

(5)The chief executive must give a notice about the fact that a safety matter direction has been given to a rail transport operator under section 134 to each other person who was given a notice about the safety matter direction under subsection (1).

136Compliance with safety matter direction

A person to whom a safety matter direction is given under section 134 must comply with the direction, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

137Appointment of persons as rail safety officers

(1)The chief executive may appoint an officer of the department, or another person, as a rail safety officer.

(2)The chief executive may appoint a person as a rail safety officer only if the chief executive is satisfied the person is qualified for appointment because the person has the necessary expertise or experience.

138Appointment conditions and limit on powers

(1)A rail safety officer holds office on the conditions stated in—

(a)the officer’s instrument of appointment; or

(b)a notice signed by the chief executive given to the officer; or

(c)a regulation.

Example for paragraph (a)—

The instrument of appointment of a rail safety officer who is an employee of a rail transport operator may provide the officer is appointed only to investigate, or may not investigate, a matter under section 183 about particular rail transport infrastructure or rolling stock.

(2)The instrument of appointment, the notice signed by the chief executive or a regulation may limit the officer’s powers under this Act.

139Issue of identity card

(1)The chief executive must issue an identity card to each rail safety officer.

(2)The identity card must—

(a)contain a recent photo of the officer; and

(b)contain a copy of the officer’s signature; and

(c)identify the person as a rail safety officer under this Act; and

(d)state an expiry date for the card.

(3)This section does not prevent the issue of a single identity card to a person for this Act and other purposes.

140Production or display of identity card

(1)In exercising a power under this Act in relation to another person, a rail safety officer must—

(a)produce the officer’s identity card for the other person’s inspection before exercising the power; or

(b)have the officer’s identity card displayed so that it is clearly visible to the other person when exercising the power.

(2)However, if it is not practical to comply with subsection (1), the officer must produce the identity card for the other person’s inspection at the first reasonable opportunity.

(3)For subsection (1), a rail safety officer does not exercise a power in relation to another person only because the officer has entered a place as mentioned in section 145 (1) (b) or (2).

141When rail safety officer ceases to hold office

(1)A rail safety officer ceases to hold office if any of the following happens—

(a)the term of office stated in a condition of office ends;

(b)under another condition of office, the officer ceases to hold office;

(c)the officer’s resignation under section 142 takes effect.

(2) Subsection (1) does not limit the ways a rail safety officer may cease to hold office.

(3)In this section—

condition of office means a condition on which the rail safety officer holds office.

142Resignation

A rail safety officer may resign by signed notice given to the chief executive.

143Return of identity card

A person who ceases to be a rail safety officer must return the person’s identity card to the chief executive within 21 days after ceasing to be a rail safety officer, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

144Reciprocal powers of rail safety officers

(1)This section applies in relation to another State (the other State) only if there is a provision corresponding to this section in force under a corresponding law of the other State.

(2)The Minister may enter into a written agreement, with the Minister responsible for administering the corresponding law, about—

(a)the exercise of powers under the corresponding law by Queensland rail safety officers; or

(b)the exercise of powers under this Act by interstate rail safety officers of the other State.

Note—

The Acts Interpretation Act 1954 , section 24AA allows for the amendment or repeal of a written agreement under this section.

(3)To the extent provided for in an agreement under subsection (2)—

(a)a Queensland rail safety officer may, in Queensland or the other State, exercise powers conferred, under the corresponding law, on interstate rail safety officers of the other State; and

(b)an interstate rail safety officer of the other State may, in Queensland or the other State, exercise powers conferred, under this Act, on Queensland rail safety officers.

(4)An act or omission of a Queensland rail safety officer exercising a power under subsection (3) is taken to be an act or omission done or made under both this Act and the corresponding law.

(5)A regulation may provide for the way powers may be exercised under subsection (3).

(6)In this section—

Queensland rail safety officer means a rail safety officer appointed under division 2.

145Power to enter places

(1)A rail safety officer may enter a place if—

(a)an occupier of the place consents to the entry; or

(b)the place is a public place and the entry is made when it is open to the public; or

(c)the entry is authorised by a warrant; or

(d)the place is railway premises and the entry is made—

(i)when the place is open for carrying on activities for which the place is railway premises; or

(ii)when the place is required to be open for inspection under an accreditation; or

(iii)when the place is otherwise open for entry; or

(e)the place is railway premises that are not open as mentioned in paragraph (d)(i), (ii) or (iii) and the entry is urgently required to investigate the circumstances of a notifiable occurrence.

(2)For the purpose of asking the occupier of a place for consent to enter, a rail safety officer may, without the occupier’s consent or a warrant—

(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or

(b)enter part of the place the officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.

(3)A rail safety officer who enters railway premises under subsection (1) (d) or (e) must not unnecessarily impede any activities being conducted at the railway premises.

(4)Nothing in this part allows entry to a home without the occupier’s consent or a warrant.

(5)In this section—

home means a building, caravan or other structure in which an individual lives.

notifiable occurrence means an accident or incident associated with railway operations that—

(a)has caused or could have caused—

(i)death; or

(ii)serious injury; or

(iii)significant property damage; and

(b)is not an accident or incident prescribed under a temporary regulation not to be a notifiable occurrence.

public place means—

(a)a place, or a part of a place, that the public is entitled to use, that is open to members of the public or that is used by the public, whether or not on payment of money; or

(b)a place, or a part of a place, that the occupier allows members of the public to enter, whether or not on payment of money.

146Procedure for entry with consent

(1)This section applies if a rail safety officer intends to ask the occupier of a place to consent to the officer or another person entering the place.

(2)Before asking for the consent, the officer must tell the occupier—

(a)the purpose of the entry; and

(b)that the occupier is not required to consent.

(3)If the consent is given, the officer may ask the occupier to sign an acknowledgement of the consent.

(4)The acknowledgement must state—

(a)that the occupier has been told—

(i)the purpose of the entry; and

(ii)that the occupier is not required to consent; and

(b)the purpose of the entry; and

(c)that the occupier gives the officer consent to enter the place and exercise powers under this part; and

(d)the date and time the consent was given.

(5)If the occupier signs an acknowledgement, the officer must immediately give a copy to the occupier.

(6)If—

(a)an issue arises in a proceeding about whether the occupier consented to the entry; and

(b)an acknowledgement complying with subsection (4) for the entry is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

147General procedure for other entries without warrant

(1)This section applies if a rail safety officer intends to enter railway premises under section 145 (1) (d) or (e).

(2)The officer must give the occupier of the railway premises reasonable notice of the intention to enter unless—

(a)the giving of the notice would be reasonably likely to defeat the purpose for which it is intended to enter the railway premises; or

(b)entry is required in circumstances for which the officer reasonably believes there is an immediate risk to the safety of persons because of the carrying out of railway operations at the railway premises.

(3)If an occupier is present when the officer intends to enter the railway premises, the officer must, before entering the railway premises, tell, or make a reasonable attempt to tell, the occupier—

(a)the purpose of the entry; and

(b)that the officer is permitted under section 145 (1) (d) or (e) to enter the railway premises without the occupier’s consent or a warrant.

148Application for warrant

(1)A rail safety officer may apply to a magistrate for a warrant for a place.

(2)The officer must prepare a written application that states the grounds on which the warrant is sought.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

149Issue of warrant

(1)The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a)there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and

(b)the evidence is at the place or, within the next 7 days, will be at the place.

(2)The warrant must state—

(a)the place to which the warrant applies; and

(b)that a stated rail safety officer may, with necessary and reasonable help and force—

(i)enter the place and any other place necessary for entry to the place; and

(ii)exercise the officer’s powers under this part; and

(c)particulars of the offence the magistrate considers appropriate in the circumstances; and

(d)the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and

(e)the evidence that may be seized under the warrant; and

(f)the hours of the day or night when the place may be entered; and

(g)the magistrate’s name; and

(h)the date and time of the warrant’s issue; and

(i)the date, within 14 days after the warrant’s issue, the warrant ends.

150Application by electronic communication and duplicate warrant

(1)An application under section 148 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if a rail safety officer reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the officer’s remote location.

(2)The application—

(a)may not be made before the officer prepares the written application under section 148 (2); but

(b)may be made before the written application is sworn.

(3)The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—

(a)it was necessary to make the application under subsection (1); and

(b)the way the application was made under subsection (1) was appropriate.

(4)After the magistrate issues the original warrant—

(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the officer; or

(b)otherwise—

(i)the magistrate must tell the officer the date and time the warrant is issued and the other terms of the warrant; and

(ii)the officer must complete a form of warrant, including by writing on it—

(A)the magistrate’s name; and

(B)the date and time the magistrate issued the warrant; and

(C)the other terms of the warrant.

(5)The copy of the warrant mentioned in subsection (4) (a), or the form of warrant completed under subsection (4) (b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.

(6)The officer must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 148 (2) and (3); and

(b)if the officer completed a form of warrant under subsection (4) (b)—the completed form of warrant.

(7)The magistrate must keep the original warrant and, on receiving the documents under subsection (6)—

(a)attach the documents to the original warrant; and

(b)give the original warrant and documents to the clerk of the court of the relevant magistrates court.

(8)Despite subsection (5), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and

(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(9)This section does not limit section 148.

(10)In this section—

relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991 .

151Defect in relation to a warrant

(1)A warrant is not invalidated by a defect in the warrant, or in compliance with section 148, 149 or 150, unless the defect affects the substance of the warrant in a material particular.

(2)In this section—

warrant includes a duplicate warrant mentioned in section 150 (5).

152Warrants—procedure before entry

(1)This section applies if a rail safety officer named in a warrant issued under this part for a place is intending to enter the place under the warrant.

(2)Before entering the place, the officer must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the officer’s identity card or other document evidencing the appointment;

(b)give the person a copy of the warrant;

(c)tell the person the officer is permitted by the warrant to enter the place;

(d)give the person an opportunity to allow the officer immediate entry to the place without using force.

(3)However, the officer need not comply with subsection (2) if the officer reasonably believes that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.

(4)In this section—

warrant includes a duplicate warrant mentioned in section 150 (5).

153General powers after entering a place

(1)This section applies to a rail safety officer who enters a place under this part.

(2)However, if a rail safety officer enters a place to get the occupier’s consent to enter a place, this section applies to the officer only if the consent is given or the entry is otherwise authorised.

(3)For compliance or investigative purposes, the officer may do any of the following—

(a)search any part of the place and any rail infrastructure, rolling stock, road vehicle or other thing at the place;

(b)enter or open, using reasonable force, rail infrastructure, rolling stock, a road vehicle or other thing at the place to examine the rail infrastructure, rolling stock, road vehicle or other thing;

(c)inspect, film, photograph, videotape or otherwise record an image of a document, structure, rail infrastructure, rolling stock, road vehicle or other thing at the place, including a document or other thing that is in rolling stock or a road vehicle at the place;

(d)take, or authorise another person to take, for analysis a thing, or a sample of or from a thing, at the place;

(e)mark, tag or otherwise identify rolling stock, a road vehicle or other thing at the place;

(f)take an extract from, or copy, a document at the place, including a document that is in rolling stock or a road vehicle at the place;

(g)examine, analyse or survey land or soil at the place and, for the examination, analysis or survey, dig trenches, break up soil or set posts, stakes or markers;

(h)test any part of rail infrastructure or rolling stock at the place, for identifying the quality of, or faults in, the rail infrastructure or rolling stock;

(i)take into the place the equipment, materials or persons the officer reasonably requires for exercising a power under this part;

(j)take a necessary step to allow a power under paragraph (a) to (i) to be exercised.

(4)If a rail safety officer takes, or authorises another person to take, a sample or thing for analysis under subsection (3) (d), the officer must—

(a)give a receipt for the sample or thing to the person in charge of the thing or the place from which it was taken; and

(b)for a sample or thing with an intrinsic value—at the end of 6 months after the sample or thing was taken, return it to the person who appears to be the owner of it or the person in charge of the thing or the place from which it was taken.

Note—

See section 173 (1) for what happens if a sample or thing can not be returned to its owner or the owner can not be found.

(5)However, if for any reason it is not practicable to comply with subsection (4) (a), the officer must leave the receipt at the place in a conspicuous position and in a reasonably secure way.

(6)In this section—

enter includes re-enter.

154Procedure before entering or opening rolling stock or road vehicle

(1)If a relevant person is present at rolling stock or a road vehicle, a rail safety officer must do or make a reasonable attempt to do the following before entering the rolling stock or vehicle under section 153—

(a)tell the relevant person the purpose of the entry;

(b)ask for the consent of the relevant person to the entry;

(c)tell the relevant person the officer is permitted under section 153 to enter the rolling stock or vehicle without consent;

(d)for a road vehicle—if the relevant person is not the owner of the vehicle, advise the vehicle’s owner of the officer’s intention to enter it.

(2)If a relevant person is not present at rolling stock or a road vehicle, before entering the rolling stock or vehicle, the officer must—

(a)take reasonable steps to find a relevant person for the rolling stock or vehicle; and

(b)comply with subsection (1) (a) to (c) for the relevant person if found.

(3) Subsections (1) (d) and (2) do not require the officer to take a step the officer reasonably believes may frustrate or otherwise hinder an inspection or investigation under this Act or the purpose of the intended entry.

(4)In this section—

relevant person means—

(a)for rolling stock—a person who is the driver or guard of, or engineer for, the rolling stock; or

(b)for a road vehicle—a person who appears to be the driver, or to be in control, of the vehicle.

155Power to require reasonable help or information

(1)A rail safety officer may require the occupier of, or someone else at, a place entered under this part to give the officer—

(a)reasonable help to exercise a power under section 153; or

(b)information to help the officer ascertain whether this Act is being or has been complied with.

Example for subsection (1)—

When inspecting rolling stock in relation to which an accreditation applies, a rail safety officer may ask the driver of the rolling stock to accompany the officer or to explain how a piece of equipment is used as part of the accredited person’s safety management system.

(2)When making a requirement under subsection (1), the officer must warn the person that it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(3)A person required to give reasonable help under subsection (1) (a), or give information under subsection (1) (b), must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(4)It is a reasonable excuse for an individual to not comply with a requirement to give information under subsection (1) (b) if complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty.

156Power to stop or move rolling stock or a road vehicle that may be entered or opened

(1)If rolling stock or a road vehicle that a rail safety officer may enter or open under this part is moving or about to move, the officer may—

(a)require the rail transport operator who manages or controls the operation of the rolling stock or vehicle to—

(i)stop the rolling stock or vehicle at a stated place; or

(ii)not move the rolling stock or vehicle from a stated place; or

(iii)move the rolling stock or vehicle to a stated place; or

(b)ask or signal the person in control of the rolling stock or vehicle to—

(i)stop the rolling stock or vehicle at a stated place; or

(ii)not move the rolling stock or vehicle from a stated place.

(2)However—

(a)before making a request or giving a signal under subsection (1) (b) for rolling stock, the officer must consult with the train controller for the rolling stock about whether it is safe to stop the rolling stock at, or not move the rolling stock from, the place taking into account other rolling stock; and

(b)the request or signal must disrupt the operation of rolling stock only to the extent that is reasonably necessary.

(3)A rail transport operator of whom a requirement is made under subsection (1) (a) must comply with the requirement, unless the operator has a reasonable excuse.

Maximum penalty—200 penalty units.

(4)The person in control of rolling stock, or a road vehicle, to whom a request is made or signal given under subsection (1) (b) must comply with the request or signal, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(5)It is a reasonable excuse for the person in control of rolling stock or a road vehicle not to comply with the request or signal if—

(a)to immediately comply with the request or signal would—

(i)endanger the person or someone else; or

(ii)cause damage to rail infrastructure, rolling stock or a road vehicle; and

(b)the person complies with the request or signal as soon as is practicable to comply with it.

(6)In this section—

train controller, for rolling stock, means an individual who is in control of train control signalling and communication for the section of railway track on which the rolling stock is moving or stationary.

157Other powers about rolling stock or road vehicles that may be entered

(1)If a rail safety officer enters or opens rolling stock or a road vehicle under this part, the officer may require the person in control of the rolling stock or vehicle—

(a)to give the officer reasonable help to enter or open the rolling stock or vehicle; or

(b)to bring the rolling stock or vehicle to a stated reasonable place and remain in control of the rolling stock or vehicle for a reasonable period to allow the officer to exercise a power under this part.

(2)When making a requirement under subsection (1), the officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(3)A person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—100 penalty units.

158Power to use electronic equipment at the place entered

(1)This section applies if—

(a)a thing found in or on rolling stock or a road vehicle, or at a place, is, or includes, a disk, tape or other device used for the storage of information; and

(b)equipment in or on the rolling stock or road vehicle, or at the place, may be used with the disk, tape or other device.

(2)Without limiting section 153, a rail safety officer—

(a)may operate the equipment to access the information; and

(b)may seize the equipment to enable the officer to operate it to access the information.

(3)A rail safety officer may operate or seize equipment under subsection (2) only if the officer reasonably believes the operation or seizure can be carried out without damage to the equipment.

159Power to use equipment at the place entered to examine or process things

(1)Without limiting section 153 or 158, a rail safety officer exercising a power under this part may operate equipment in or on rolling stock or a road vehicle, or at a place, to carry out the examination or processing of a thing found in or on the rolling stock or road vehicle, or at the place, in order to decide whether it is a thing that may be seized.

(2)However, subsection (1) applies only if the officer reasonably believes that—

(a)the equipment is suitable for the examination or the processing; and

(b)the examination or processing can be carried out without damage to the equipment.

160Power to secure a site

(1)For protecting evidence that might be relevant for compliance or investigative purposes, a rail safety officer may secure a part of a place (the site) entered under this part in the way the officer considers appropriate.

(2)A person must not, without the written approval of a rail safety officer or a reasonable excuse, enter or remain at the site.

Maximum penalty—40 penalty units.

(3) Subsection (2) does not apply if the person enters the site, or remains at the site—

(a)to ensure the safety of persons; or

(b)to remove deceased persons or animals from the site; or

(c)to move a road vehicle, or the wreckage of a road vehicle, to a safe place; or

(d)to protect the environment from significant damage or pollution.

161Seizing evidence at a place entered without consent or warrant

A rail safety officer who lawfully enters a place under this part without the consent of the occupier and without a warrant, may seize a thing at the place only if the officer reasonably believes—

(a)the thing is evidence of an offence against this Act; and

(b)the seizure is necessary to prevent the thing being—

(i)destroyed, hidden or lost; or

(ii)used to commit, continue or repeat an offence against this Act.

162Seizing evidence at a place entered with consent or warrant

(1)This section applies if—

(a)a rail safety officer is authorised to enter a place under this part only with the consent of the occupier or a warrant; and

(b)the officer enters the place after obtaining the necessary consent or warrant.

(2)If the officer enters the place with the occupier’s consent, the officer may seize a thing at the place only if—

(a)the officer reasonably believes the thing is evidence of an offence against this Act; and

(b)seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier’s consent.

(3)If the officer enters the place with a warrant, the officer may seize the evidence for which the warrant is issued.

(4)The officer may seize anything else at the place if the officer reasonably believes—

(a)the thing is evidence of an offence against this Act; and

(b)the seizure is necessary to prevent the thing being—

(i)destroyed, hidden or lost; or

(ii)used to commit, continue, or repeat an offence against this Act.

(5)Also, the officer may seize a thing at the place if the officer reasonably believes it has just been used in committing an offence against this Act.

163Securing seized things

Having seized a thing under this part, a rail safety officer may—

(a)move the thing from the place where it was seized (the place of seizure); or

(b)leave the thing at the place of seizure but take reasonable action to restrict access to it; or

Examples of restricting access to a thing—

•marking, sealing, tagging or otherwise identifying the thing to show access to it is restricted

•sealing the entrance to a room where the thing is situated and marking the entrance to show access to the thing is restricted

(c)for equipment—make it inoperable.

Example of making equipment inoperable—

dismantling equipment or removing a component of equipment without which the equipment is not capable of being used

164Tampering with seized thing

(1)If a rail safety officer restricts access to a seized thing under section 163, a person must not tamper with the thing, or something restricting access to the thing, without a rail safety officer’s written approval.

Maximum penalty—200 penalty units.

(2)If a rail safety officer makes seized equipment inoperable under section 163, a person must not tamper with the equipment without a rail safety officer’s written approval.

Maximum penalty—200 penalty units.

(3)In this section—

tamper includes attempt to tamper.

165Powers to support seizure

(1)To enable a thing to be seized under this part, a rail safety officer may require the person in control of it—

(a)to take it to a stated reasonable place by a stated reasonable time; and

(b)if necessary, to remain in control of it at the stated place for a stated reasonable time.

(2)The requirement—

(a)must be made by notice; or

(b)if for any reason it is not practicable to give the notice, may be given orally and confirmed by notice as soon as is practicable.

(3)A further requirement may be made under this section about the same thing if it is necessary and reasonable to make the further requirement.

Examples of a further requirement—

a requirement that the thing—

•be transported during stated off-peak hours

•be transported along a particular route

•be transported in a particular way

(4)A person of whom a requirement is made under subsection (1) or (3) must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(5)Subject to section 208, the cost of complying with subsection (4) must be borne by the person.

(6)For this section, a person is in control of a thing if the person has, or reasonably appears to a rail safety officer to have, authority to exercise control over the thing.

166Rail safety officer may require thing’s return

(1)If a rail safety officer has required a person to take a thing to a stated reasonable place by a stated reasonable time under section 165 (1), the officer may require the person to return the thing to the place from which it was taken.

(2)A person of whom a requirement is made under subsection (1) must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(3)Subject to section 208, the cost of complying with subsection (2) must be borne by the person.

167Receipt for seized things

(1)As soon as practicable after a rail safety officer seizes a thing under this part, the officer must give a receipt for it to the person from whom it was seized.

(2)However, if for any reason it is not practicable to comply with subsection (1), the officer must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.

(3)The receipt must describe generally each thing seized and its condition.

(4)This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt, given the thing’s nature, condition and value.

168Access to seized thing

(1)Until a thing that has been seized under this part is forfeited or returned, a rail safety officer must allow its owner to inspect it and, if it is a document, to copy it.

(2) Subsection (1) does not apply if it is impracticable or it would be unreasonable to allow the inspection or copying.

169Return of seized things

(1)If a thing has been seized by a rail safety officer under this part but not forfeited, the officer must return it to its owner—

(a)at the end of 6 months after the seizure; or

(b)if a proceeding for an offence involving the thing is started within 6 months after the seizure, at the end of the proceeding and any appeal from the proceeding; or

(c)if the officer stops being satisfied its continued retention as evidence is necessary—immediately.

(2)This section does not apply if the thing seized does not have any intrinsic value.

170Application of div 4

This division applies if—

(a)a rail safety officer is authorised to seize a record, device or other thing under this part; and

(b)the record, device or other thing can not, or can not readily, be physically seized and removed.

171Rail safety officer may issue embargo notice

(1)A rail safety officer may issue a notice (embargo notice) forbidding the use, movement, sale, leasing, transfer, deletion of information from or other dealing with a record, device or other thing, or any part of it, without the written approval of a rail safety officer or the chief executive.

(2)The embargo notice must state—

(a)a description of the thing to which the notice applies; and

(b)the activities that the notice forbids; and

(c)the particulars prescribed under a regulation; and

(d)the requirements under section 172 and the maximum penalties for failing to comply with the requirements.

(3)On issuing an embargo notice, a rail safety officer must—

(a)give a copy of the notice to the owner of the record, device or other thing; or

(b)if the owner can not be found after making reasonable inquiries, attach a copy of the notice to the record, device or other thing in a conspicuous position and in a reasonably secure way.

172Contravening embargo notice

(1)A person must not knowingly do anything that is forbidden by an embargo notice.

Maximum penalty—60 penalty units.

(2)A person (relevant person) must not instruct or ask another person to do anything that the relevant person knows is forbidden by an embargo notice.

Maximum penalty—60 penalty units.

(3)It is a defence in a proceeding against a person for an offence against subsection (1) or (2) relating to the movement of a record, device or other thing, or a part of a record, device or other thing, for the person to prove that the person—

(a)moved, or instructed or asked another person to move, the record, device, other thing or part for the purpose of protecting or preserving it; and

(b)notified the rail safety officer who issued the embargo notice of the following, within 48 hours after the movement—

(i)the movement of the record, device, other thing or part;

(ii)the new location of the record, device, other thing or part.

(4)A person to whom a copy of an embargo notice is given under this division must take reasonable steps to prevent another person from doing anything forbidden by the embargo notice.

Maximum penalty—60 penalty units.

(5)Despite any other Act or law, a sale, lease, transfer or other dealing with a record, device or other thing, or a part of a record, device or other thing, in contravention of this section is void.

173Forfeiture by rail safety officer

(1)A sample or thing taken for analysis, or a thing seized, under this part is forfeited to the State if the rail safety officer who took, or arranged the taking of, the sample or thing or who seized the thing—

(a)can not find its owner, after making reasonable inquiries; or

(b)can not return it to its owner, after making reasonable efforts; or

(c)reasonably considers that it is necessary to retain it to prevent the commission of an offence against this Act.

(2)In applying subsection (1)—

(a) subsection (1) (a) does not require the officer to make inquiries if it would be unreasonable to make inquiries to find the owner; and

(b) subsection (1) (b) does not require the officer to make efforts if it would be unreasonable to make efforts to return the sample or thing to its owner.

(3)If a sample or thing is forfeited to the State under subsection (1) (c), the rail safety officer who decided it is necessary to retain the sample or thing to prevent the commission of an offence against this Act must give the sample’s or thing’s owner an information notice for the decision.

(4) Subsection (3) does not apply if the officer can not find the owner after making reasonable enquiries.

(5)Regard must be had to a sample’s or thing’s nature, condition and value in deciding—

(a)whether it is reasonable to make inquiries or efforts; and

(b)if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.

(6)In this section—

owner, of a sample or a thing taken for analysis, includes the person in charge of the thing or place from which the sample or thing was taken.

174Forfeiture on conviction

(1)On conviction of a person for an offence against this Act, a court may order the forfeiture to the State of anything owned by the person and seized under this part.

(2)The court may make any order to enforce the forfeiture it considers appropriate.

(3)This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or another law.

175Dealing with forfeited sample or thing

(1)On forfeiture of a sample or thing to the State, the sample or thing becomes the State’s property and may be dealt with by the chief executive in a way the chief executive reasonably believes is appropriate.

(2)Without limiting subsection (1), the chief executive may destroy or dispose of the sample or thing.

176Power to require name and address

(1)This section applies if—

(a)a rail safety officer finds a person committing an offence against this Act; or

(b)a rail safety officer finds a person in circumstances that lead, or has information that leads, the officer reasonably to suspect the person has committed an offence against this Act; or

(c)a rail safety officer finds a person at railway premises and—

(i)reasonably believes the person is carrying out railway operations on behalf of a rail transport operator; and

(ii)reasonably considers that it is necessary for this Act to know the person’s name and residential or business address.

(2)The officer may require the person to state the person’s name and residential or business address.

(3)When making a requirement under subsection (2), the officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(4)The officer may also require the person to give the officer evidence of the correctness of the stated name or address if the officer reasonably suspects the stated name or address to be false.

177Failure to give name or address

(1)A person of whom a requirement is made under section 176 (2) or (4) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(2)A person does not commit an offence against subsection (1) if—

(a)the person was required to state the person’s name and residential or business address by a rail safety officer who suspected the person had committed an offence against this Act; and

(b)the person is not proved to have committed the offence.

(3)It is not a reasonable excuse for an individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty.

Note—

Subsection (3) and other similar provisions in this Act refer to only an individual on the basis that the privilege to which the subsection or provision refers applies only to individuals.

178Power to require production of documents

(1)A rail safety officer may require a person carrying out railway operations to make available for inspection by the officer, or produce to the officer for inspection, at a reasonable time and place nominated by the officer—

(a)a document that the person is required to keep under this Act, including a document the person is required to prepare and implement for the railway operations; or

Examples of documents a person may be required to prepare and implement for railway operations—

safety management system, emergency management plan

(b)a document that—

(i)is prepared by the person in relation to a document mentioned in paragraph (a); and

(ii)the officer reasonably believes is necessary for the officer to consider to understand or verify the document mentioned in paragraph (a); or

Example—

A safety management system may require testing of equipment as part of a scheduled maintenance program and a documented record of the results of the test to be kept. If an item of equipment is tested under the safety management system, the document stating the results of the test is a document prepared in relation to the safety management system.

(c)another document kept by, or otherwise under the control of, the person if the document is relevant to carrying out the railway operations.

Example for paragraph (c)—

a document about a person’s financial capacity, or public risk insurance arrangements, for meeting potential accident liabilities arising from railway operations

(2)When making a requirement under subsection (1), the officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(3)The officer may keep the document to copy it but must return the document to the person after copying it.

179Failure to produce document

(1)A person of whom a requirement is made under section 178 must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—60 penalty units.

(2)It is not a reasonable excuse for an individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty.

180Use of particular evidence in proceedings

(1)This section applies in relation to the following (primary evidence)—

(a)any answer given by an individual in response to a requirement under section 176 (2) or (4);

(b)any document mentioned in section 178 (1) produced by an individual to a rail safety officer, and the fact of that production, in response to a requirement under section 178 (1).

(2)The following is not admissible in evidence against an individual in any civil or criminal proceeding—

(a)primary evidence;

(b)any information, or document or other thing, obtained as a direct or indirect result of primary evidence (derived evidence).

(3) Subsection (2) does not prevent primary evidence or derived evidence being admitted in evidence in criminal proceedings about the falsity or misleading nature of the primary evidence.

181Power to require information about contravention

(1)This section applies if a rail safety officer reasonably believes—

(a)a provision of this Act has been contravened; and

(b)a person may be able to give information about the contravention.

(2)The officer may require the person to give information within the person’s knowledge about the contravention in a stated reasonable time and in a stated reasonable way.

(3)When making a requirement under subsection (2), the officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

182Failure to give information about contravention

(1)A person of whom a requirement is made under section 181 must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—60 penalty units.

(2)It is a reasonable excuse for an individual to not comply with the requirement if complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty.

183Chief executive may require investigation by rail safety officer

(1)This section applies if—

(a)a notifiable occurrence happens; or

(b)the chief executive becomes aware that a notifiable occurrence, or another occurrence that endangers or could endanger the safe operation of railway operations, may have happened, even if it has not been reported.

(2)The chief executive may require a rail safety officer to investigate the matter.

(3)If a report has been given to the chief executive about the occurrence under section 93 or 95, the chief executive may require the officer to investigate the matter by reviewing the report.

184Report of investigation

(1)After a rail safety officer finishes an investigation under section 183, the officer must give a report of the results of the investigation (RSO report) to the chief executive, including—

(a)whether or not the officer reasonably considers the occurrence being investigated to be a notifiable occurrence; and

(b)if the officer considers the occurrence being investigated to be a notifiable occurrence—the reasons for considering the occurrence to be a notifiable occurrence.

(2)The chief executive must give the Minister a copy of the RSO report within 14 days after receiving the report.

(3)The Minister must table in the Legislative Assembly a copy of the RSO report within 14 days after receiving the report.

(4)The following is not admissible in evidence in any civil or criminal proceeding—

(a)the RSO report;

(b)any report prepared by the officer as an interim RSO report;

(c)any report prepared by the officer as a draft RSO report for the purposes of consultation.

(5)However, subsection (4) has no effect on the use or admissibility of any type of report mentioned in the subsection in a coronial procedure.

185Application of sdiv 2

This subdivision applies if—

(a)a notifiable occurrence has happened or a notifiable occurrence, or another occurrence that endangers or could endanger the safe operation of railway operations, may have happened; and

(b)a rail safety officer is investigating the occurrence, whether or not at the chief executive’s request.

186Definition for sdiv 2

In this subdivision—

alcohol test includes—

(a)a preliminary test to give an indication of the presence or absence of alcohol in a person’s breath; and

(b)a test to analyse a person’s blood or breath to determine the person’s blood alcohol concentration.

187Power to require help

(1)If the rail safety officer reasonably needs help in investigating the occurrence, the officer may require a person to give the officer reasonable help in the investigation.

(2)A requirement may only be made of a person whom the rail safety officer reasonably believes is competent to give the help.

188Power to require answers to questions or production of document or other thing

If the rail safety officer reasonably believes it necessary for the purposes of the investigation, the officer may require a person to—

(a)answer questions relevant to the occurrence; or

(b)produce documents or other things relevant to the occurrence.

189Power to require alcohol or drug test or examination

(1)The rail safety officer may require a person carrying out rail safety work on or in relation to a rail transport operator’s rail infrastructure or rolling stock to take an alcohol test, drug test or medical examination if the officer reasonably suspects—

(a)the person caused, or was directly involved in, the occurrence; and

(b)the result of the test or examination may help in deciding the circumstances and probable causes of the occurrence.

(2)The test mentioned in subsection (1) must take place within 2 hours after the occurrence happens.

(3)The medical examination mentioned in subsection (1) must take place within a reasonable time after the officer forms the reasonable suspicions about the person under the subsection.

(4)The cost of a test or examination under this section must be borne by the rail transport operator.

(5)If the person refuses to take a test mentioned in subsection (1), the person may be taken, for a purpose prescribed under a regulation, to have been under the influence of alcohol or a drug when the occurrence happened, in the absence of evidence to the contrary.

190Requirement to give warning when making requirement of individual

When making a requirement of an individual under this subdivision, a rail safety officer must—

(a)warn the individual it is an offence to fail to comply with the requirement unless the individual has a reasonable excuse; and

(b)advise the individual that—

(i)it is not a reasonable excuse that complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty; and

(ii)if the individual is not an accredited person—anything obtained under the requirement, and any evidence derived directly or indirectly from anything obtained under the requirement, is not admissible in evidence against the individual in any civil or criminal proceeding.

191Failure to comply with requirement

(1)A person of whom a requirement is made under this subdivision must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2)It is not a reasonable excuse for an individual to fail to comply with the requirement that complying with the requirement might tend to incriminate the individual or make the individual liable to a penalty.

192Use of particular evidence in proceedings

(1)The following (primary evidence) is not admissible in evidence against an individual in any civil or criminal proceeding—

(a)any help given by the individual to a rail safety officer in investigating an occurrence in response to a requirement under section 187;

(b)any answer given by the individual to a question mentioned in section 188 (a) to a rail safety officer in investigating an occurrence in response to a requirement under section 188 (a);

(c)a document or other thing mentioned in section 188 (b) produced by the individual to a rail safety officer in investigating an occurrence, and the fact of that production, in response to a requirement under section 188 (b);

(d)the results of an alcohol test, drug test or medical examination of the individual mentioned in section 189.

(2)Also, any information, or document or other thing, obtained as a direct or indirect result of primary evidence (derived evidence), is not admissible in evidence against the individual in any civil or criminal proceeding.

(3) Subsections (1) and (2) do not prevent primary evidence or derived evidence being admitted in evidence in criminal proceedings about the falsity or misleading nature of the primary evidence.

(4)In this section—

individual does not include an individual who is an accredited person.

193Rail safety officer may give improvement notice

(1)This section applies if a rail safety officer reasonably believes—

(a)a person is contravening a provision of this Act; or

(b)a person has contravened a provision of this Act and it is likely that the contravention will continue or be repeated; or

(c)a person is carrying out or has carried out railway operations that threaten rail safety.

(2)The officer may give the person a notice (an improvement notice) stating the person must, within the period of at least 7 days stated in the notice—

(a)if subsection (1) (a) or (b) applies—carry out rail safety work, or do another thing, to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention; or

(b)if subsection (1) (c) applies—carry out the railway operations in a way that ensures rail safety is not threatened.

194What improvement notice may require

(1)An improvement notice given to a person on a ground mentioned in section 193 (1) (a) or (b) may state—

(a)the way in which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, must be remedied; or

(b)a choice of ways in which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, may be remedied; or

(c)that the person to whom the notice is given must give the chief executive a program of rail safety work the person proposes to carry out to remedy the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention.

(2)An improvement notice given to a person on the ground mentioned in section 193 (1) (c) may state—

(a)the way in which the railway operations may be carried out to ensure rail safety is not threatened; or

(b)a choice of ways in which the railway operations may be carried out to ensure rail safety is not threatened; or

(c)that the person to whom the notice is given must give the chief executive a program of the railway operations the person proposes to carry out to remedy the threat to rail safety.

(3)The improvement notice may state that a program mentioned in subsection (1) (c) or (2) (c) must include a timetable for the completion of the program.

(4)This section does not limit section 193.

195What improvement notice must state

An improvement notice given by a rail safety officer must—

(a)be or include an information notice for the decision to give the notice; and

(b)state the following—

(i)for an improvement notice given on the basis a person is reasonably believed to be contravening, have contravened, or be likely to further contravene a provision of this Act—the provision of this Act in relation to which the belief is held;

(ii)for an improvement notice given on the basis a person is reasonably believed to be carrying out or have carried out railway operations that threaten rail safety—the railway operations in relation to which the belief is held;

(iii)the penalty for failing to comply with the notice;

(iv)the effect of section 198;

(v)that the notice is given under this division.

196Compliance with improvement notice

(1)A person to whom an improvement notice has been given must comply with the notice, unless the person has a reasonable excuse.

Maximum penalty—150 penalty units.

(2)It is a defence in a proceeding against a person for an offence against subsection (1) for the person to prove that—

(a)for an improvement notice given on a ground mentioned in section 193 (1) (a) or (b)—the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention, were remedied within the period stated in the notice, though in a way different from that stated in the notice; or

(b)for an improvement notice given on the ground stated in section 193 (1) (c)—the threat to rail safety was removed within the period stated in the notice, though in a way different from that stated in the notice.

Note—

See also section 15.

197Amendment of improvement notice

(1)An amendment of an improvement notice given to a person is ineffective to the extent it purports to deal with a contravention of a different provision of this Act from that dealt with in the improvement notice when first given.

(2)To remove any doubt, it is declared that if the chief executive decides to amend an improvement notice given to a person, the chief executive must give the person an information notice for the decision.

Note—

The Acts Interpretation Act 1954 , section 24AA allows for the amendment or repeal of an improvement notice.

198Proceedings for offences not affected by improvement notice

The giving, amendment or repeal of an improvement notice does not affect any proceedings for an offence against this Act, or the Work Health and Safety Act, in connection with any matter in relation to which the improvement notice was given.

s 198 amd 2011 No. 18 s 404 sch 4 pt 1

199Chief executive may arrange for rail safety work not carried out

(1)This section applies if a person fails to comply with an improvement notice given to the person on a ground mentioned in section 193 (1) (a) or (b) requiring the person to carry out rail safety work to remedy—

(a)the alleged contravention or likely contravention; or

(b)the matters or activities occasioning the alleged contravention or likely contravention.

(2)The chief executive may arrange for the rail safety work to be carried out.

(3)The chief executive may recover from the person given the improvement notice the reasonable costs and expenses incurred by the chief executive for the carrying out of the rail safety work as a debt.

200Rail safety officer may give prohibition notice

(1)This section applies if a rail safety officer reasonably believes—

(a)an activity happening in relation to railway operations or railway premises involves or is likely to involve an immediate risk to the safety of persons; or

(b)an activity may happen in relation to railway operations or railway premises and, if it happens, the activity will involve or is likely to involve an immediate risk to the safety of persons; or

(c)an activity may happen at, on, or in the immediate vicinity of, rail infrastructure or rolling stock and, if it happens, the activity will involve or is likely to involve an immediate risk to the safety of persons.

(2)The officer may give a person who has or appears to have control over the activity a notice (a prohibition notice) stating that either of the following is prohibited until the officer has certified in writing that the matters that give or are likely to give rise to the risk have been remedied—

(a)the carrying on of the activity;

(b)the carrying on of the activity in a stated way.

(3)A prohibition notice under subsection (2) (b) may state that the carrying on of an activity in a stated way is prohibited by stating 1 or more of the following—

(a)a place, or part of a place, at which the activity must not be carried on;

(b)a thing that must not be used in connection with the activity;

(c)a procedure that must not be followed in connection with the activity.

(4)A prohibition notice takes effect when it is given or, if the notice states a later date, on the stated later date.

201What prohibition notice may require

(1)A prohibition notice may state a requirement about the measures that must be taken to minimise or eliminate—

(a)the risk to safety to which the notice relates; or

(b)the activity causing, or likely to cause, the risk to safety to which the notice relates; or

(c)the matters that give, or are likely to give, rise to the risk to safety to which the notice relates; or

(d)if the officer believes the activity to which the notice relates involves a contravention or likely contravention of this Act—the contravention or likely contravention.

(2)For subsection (1), a requirement in a prohibition notice may—

(a)require measures be taken in a way stated in a compliance code; or

(b)state a choice of ways in which the person to whom the notice is given may minimise or eliminate the risk, activity, matters, contravention or likely contravention mentioned in subsection (1).

202What prohibition notice must state

A prohibition notice given by a rail safety officer must—

(a)be or include an information notice for the decision to give the notice; and

(b)state the following—

(i)the activity that the officer believes involves or is likely to involve the risk to safety to which the notice relates, and the matters that give, or are likely to give, rise to the risk;

(ii)if the officer believes that the activity involves a contravention or likely contravention of a provision of this Act, the provision and the basis for the belief;

(iii)the penalty for failing to comply with the notice;

(iv)the effect of section 206;

(v)that the notice is given under this division.

203Compliance with prohibition notice

A person to whom a prohibition notice is given must comply with the notice, unless the person has a reasonable excuse.

Note—

See, however, section 15.

Maximum penalty—150 penalty units.

204Oral direction before prohibition notice given

(1)This section applies if a rail safety officer reasonably believes—

(a)an activity mentioned in section 200 (1) is happening or may happen; and

(b)it is not possible or reasonable to give a prohibition notice under that section immediately.

(2)The officer may direct a person who has or appears to have control over the activity to do or not to do a stated act by telling the person—

(a)to do or not to do the stated act; and

(b)the reason for the officer giving the direction.

(3)When giving the direction, the officer must warn the person it is an offence to fail to comply with the direction unless the person has a reasonable excuse.

(4)A person to whom a direction is given under subsection (2) must comply with it, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(5)A direction given under subsection (2) ceases to have effect if the officer does not, within 5 days after giving the direction, give the person to whom the direction is given a prohibition notice in relation to the activity.

205Amendment of prohibition notice

(1)An amendment of a prohibition notice given to a person is ineffective to the extent it purports to deal with a contravention of a different provision of this Act from that dealt with in the prohibition notice when first given.

(2)To remove any doubt, it is declared that if the chief executive decides to amend a prohibition notice given to a person, the chief executive must give the person an information notice for the decision.

Note—

The Acts Interpretation Act 1954 , section 24AA allows for the amendment or repeal of a prohibition notice.

206Proceedings for offences not affected by prohibition notice

The giving, amendment or repeal of a prohibition notice does not affect any proceedings for an offence against this Act, or the Work Health and Safety Act, in connection with any matter in relation to which the prohibition notice was given.

s 206 amd 2011 No. 18 s 404 sch 4 pt 1

207Notice of damage

(1)This section applies if—

(a)a rail safety officer damages property when exercising or purporting to exercise a power under this part; or

(b)a person (the other person) acting under the direction or authority of a rail safety officer damages property.

(2)The officer must immediately give a notice to the person who appears to the officer to be the owner of the property stating—

(a)the particulars of the damage; and

(b)that the person who suffered the damage may claim compensation under section 208.

(3)If the officer believes the damage was caused by a latent defect in the property or circumstances beyond the officer’s or other person’s control, the officer may state the belief in the notice.

(4)If, for any reason, it is impracticable to comply with subsection (2), the officer must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.

(5)This section does not apply to damage the officer reasonably believes is trivial.

(6)In this section—

owner, of property, includes the person in possession or control of it.

208Compensation

(1)This section applies if a person incurs loss or expense because of the exercise or purported exercise of a power under this part by a rail safety officer, other than because of a forfeiture under section 173 or 174.

(2)If the power was exercised or purportedly exercised under division 7, the person may claim compensation for the loss or expense from the officer’s employing authority.

(3)If subsection (2) does not apply, the person is entitled to be paid the reasonable compensation because of the loss or expense that is agreed between the chief executive and the person, or failing agreement, decided by a court.

(4)Payment of compensation may be claimed and ordered in a proceeding—

(a)brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b)for an offence against this Act brought against the person claiming compensation.

(5)A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

(6)A regulation may prescribe matters that may, or must, be taken into account by the court in considering whether it is just to make the order.

(7)In this section—

employing authority, of a rail safety officer, means—

(a)if the officer is an employee of an accredited person—the accredited person; or

(b)otherwise—the State.

209Only reasonable force may be used

A power under this part to enter a place, or to do anything in or on a place, may be exercised only if the person proposing to exercise the power uses no more force than is reasonably necessary to exercise the power.

210Only police officers may use force against a person

A provision of this part authorising a person to use reasonable force does not authorise a person who is not a police officer to use force against another person.

211Minister may establish or re-establish board of inquiry

(1)The Minister may, by gazette notice, establish or re-establish a board of inquiry about an occurrence that—

(a)has happened on or in relation to railway premises or railway operations; and

(b)the Minister considers is a notifiable occurrence.

(2)The gazette notice, or a subsequent gazette notice, may state matters relevant to the board of inquiry, including, for example, the membership of the board and its terms of reference.

(3)The Minister may exercise powers under this section for an occurrence—

(a)whether or not the occurrence has been investigated by a rail safety officer; and

(b)whether or not a board of inquiry has previously inquired into the occurrence.

212Role of board of inquiry

(1)The board of inquiry must—

(a)inquire into the circumstances and probable causes of the relevant occurrence; and

(b)give the Minister a written report of the board’s findings.

(2)The report may contain the recommendations the board of inquiry considers appropriate and other relevant matters.

(3)The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving the report.

(4)However, if the board of inquiry gives the Minister a separate report of matters that the board considers should not be made public, the Minister need not table the separate report in the Legislative Assembly.

(5)The following is not admissible in evidence in any civil or criminal proceeding—

(a)a report under this section;

(b)any report prepared by the board of inquiry as an interim report under this section;

(c)any report prepared by the board of inquiry as a draft report under this section for consultation purposes.

(6)However, subsection (5) has no effect on the use or admissibility of any type of report mentioned in the subsection in a coronial procedure.

213Conditions of appointment of members

(1)Members of the board of inquiry are entitled to be paid the fees and allowances that may be decided by the Minister.

(2)The members’ terms of office are the terms provided by this Act and any other terms decided by the Minister.

214Chief executive to arrange for services of staff and financial matters for board of inquiry

As soon as practicable after the board of inquiry is established or re-established, the chief executive must consult with the chairperson of the board and arrange for the following—

(a)the services of officers and employees of the department, rail safety officers and other persons to be made available to the board for the conduct of the inquiry;

(b)financial matters relevant to the board.

215Rail safety officer may exercise powers for inquiry

(1)This section applies to a rail safety officer whose services have been made available to the board of inquiry.

(2)The officer may exercise powers under part 7 for the occurrence the subject of the board of inquiry’s inquiry.

216Procedure

(1)In conducting its inquiry, the board of inquiry—

(a)must observe natural justice; and

(b)must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues; and

(c)is not bound by the rules of evidence; and

(d)may inform itself in any way it considers appropriate, including, for example, by holding hearings; and

(e)may decide the procedures to be followed for the inquiry.

(2)However, the board of inquiry must comply with this division and any procedural rules prescribed under a regulation.

(3)The chairperson of the board of inquiry presides at the inquiry.

217Notice of inquiry

The chairperson of the board of inquiry must give at least 14 days notice of the time and place of its inquiry to anyone who the chairperson has reason to believe should be given the opportunity to appear at the inquiry.

218Inquiry to be held in public other than in special circumstances

(1)The board of inquiry’s inquiry must be held in public.

(2)However, the board of inquiry may, of its own initiative or on the application of a person represented at the inquiry, direct that the inquiry, or a part of the inquiry, be held in private, and give directions about the persons who may be present.

(3)The board of inquiry may give a direction under subsection (2) only if it is satisfied it is appropriate to make the direction in the special circumstances of the inquiry.

219Protection of members, legal representatives and witnesses

(1)A member of the board of inquiry has, in the performance of the member’s duties, the same protection and immunity as a judge of the Supreme Court.

(2)A lawyer or other person appearing before the board of inquiry for someone else has the same protection and immunity as a lawyer appearing for a party in a proceeding in the Supreme Court.

(3)A person summoned to attend or appearing before the board of inquiry as a witness has the same protection as a witness in a proceeding in the Supreme Court.

220Record of proceedings to be kept

The board of inquiry must keep a record of its proceedings.

221Procedural fairness and representation

In conducting its inquiry, the board of inquiry must give anyone directly concerned in the occurrence the subject of the inquiry the opportunity of making a defence to all claims made against the person either in person or by lawyer or agent.

222Board of inquiry’s powers on inquiry

(1)In conducting its inquiry, the board of inquiry may—

(a)act in the absence of any person who has been given a notice under section 217 or some other reasonable notice; and

(b)receive evidence on oath or affirmation or by statutory declaration; and

(c)adjourn the inquiry; and

(d)disregard any defect, error, omission or insufficiency in a document; and

(e)permit or refuse to permit a person, including a lawyer, to represent someone else at the inquiry.

(2)A member of the board of inquiry may administer an oath or affirmation to a person appearing as a witness before the inquiry.

223Notice to witness

(1)The chairperson of the board of inquiry may, by notice given to a person, require the person to attend the inquiry at a stated time and place to give evidence or produce stated documents or things.

(2)A person required to appear as a witness before the board of inquiry is entitled to the witness fees prescribed under a regulation or, if no witness fees are prescribed, the reasonable witness fees decided by the chairperson.

224Inspection of documents or things

(1)If a document or other thing is produced to the board of inquiry at its inquiry, the board may—

(a)inspect the document or other thing; and

(b)make copies of, photograph, or take extracts from, the document or other thing if it is relevant to the inquiry.

(2)The board of inquiry may also take possession of the document or other thing, and keep it while it is necessary for the inquiry.

(3)While the board of inquiry keeps a document or other thing under this section, the board must permit a person otherwise entitled to possession of the document or other thing to inspect it, make copies of it, photograph it, or take extracts from it, at a reasonable place and time the board decides.

225Inquiry may continue despite court proceedings unless otherwise ordered

The inquiry of the board of inquiry may start or continue, and a report may be prepared or given, despite a proceeding before any court or tribunal, unless a court or tribunal with the necessary jurisdiction orders otherwise.

226Offences by witnesses

(1)A person given a notice under section 223 must not—

(a)fail, without reasonable excuse, to attend as required by the notice; or

(b)fail, without reasonable excuse, to continue to attend as required by the chairperson of the board of inquiry until excused from further attendance.

Maximum penalty—60 penalty units.

(2)A person appearing as a witness at the board of inquiry’s inquiry must not—

(a)fail to take an oath or make an affirmation when required by the chairperson of the board; or

(b)fail, without reasonable excuse, to answer a question the person is required to answer by a member of the board; or

(c)fail, without reasonable excuse, to produce a document or thing the person is required to produce by a notice under section 223.

Maximum penalty—60 penalty units.

227Self-incrimination

(1)An individual appearing as a witness at the board of inquiry’s inquiry is not excused from—

(a)answering a question put to the individual at the inquiry; or

(b)producing a document or other thing at the inquiry;

on the ground that the answer or the production of the document or other thing might tend to incriminate the individual or make the individual liable to a penalty.

(2)The following is not admissible in evidence against an individual in any civil or criminal proceeding—

(a)any answer given at the inquiry by the individual, and any document or other thing produced at the inquiry by the individual and the fact of that production, in response to a requirement under this division (primary evidence);

(b)any information, or document or other thing, obtained as a direct or indirect result of primary evidence (derived evidence).

(3) Subsection (2) does not prevent primary evidence or derived evidence being admitted in evidence in criminal proceedings about the falsity or misleading nature of the primary evidence.

(4)In subsection (2)—

individual does not include an individual who is an accredited person.

228Contempt of board of inquiry

A person must not—

(a)insult the board of inquiry; or

(b)deliberately interrupt the board of inquiry’s inquiry; or

(c)create or continue, or join in creating or continuing, a disturbance in or near a place where the board of inquiry is conducting its inquiry; or

(d)do anything that would be contempt of court if the board of inquiry were a judge acting judicially.

Maximum penalty—60 penalty units.

229Change of membership

The inquiry of the board of inquiry is not affected by a change in its membership.

230Definitions for pt 9

In this part—

court includes any tribunal, authority, person or body that has power to require the production of documents or answering of questions, but does not include the Legislative Assembly or a commission of inquiry under the Commissions of Inquiry Act 1950 .

data logger recording means a recording from a device installed on a self-propelled rolling stock that records rolling stock event data related to operational performance of the rolling stock.

data logger recording information means—

(a)a data logger recording or part of a data logger recording; or

(b)a copy or printout of all or part of a data logger recording; or

(c)any information obtained from a data logger recording or part of a data logger recording.

inquiry means an inquiry conducted by a board of inquiry under this Act.

investigation means an investigation of an occurrence under part 7, division 7.

relevant person see section 231.

restricted information means any of the following, other than data logger recording information—

(a)a statement, whether oral or in writing, obtained from a person in the course of an investigation or inquiry, including any record of the statement;

(b)all information recorded in the course of an investigation or inquiry;

(c)all communications in the course of an investigation or inquiry with a person involved in the operation of rolling stock that is or was the subject of an investigation or inquiry;

(d)medical or private information regarding persons, including deceased persons, involved in an occurrence that is being or has been investigated or that is or has been the subject of an inquiry;

(e)in relation to rolling stock that is or was the subject of an investigation or inquiry—information recorded for the purposes of monitoring or directing the progress of the rolling stock from 1 place to another or information recorded about the operation of the rolling stock;

(f)records of the analysis of information or anything else obtained in the course of an investigation or inquiry, including opinions expressed by a person in that analysis;

(g)information contained in a document that is given to a rail safety officer or board of inquiry in connection with an investigation or inquiry.

231Meaning of relevant person

A relevant person is any of the following—

(a)the chief executive;

(b)a rail safety officer—

(i)who is required to investigate a matter under section 183 (2); or

(ii)who is not required to investigate a matter under section 183 (2) but who is investigating a notifiable occurrence, or another occurrence that endangers or could endanger the safe operation of railway operations, for the purpose of finding out its cause as opposed to finding evidence of a suspected offence; or

(iii)whose services are made available to a board of inquiry under section 214;

(c)another person made available to help a board of inquiry in any capacity.

232Prohibition on recording or disclosure of restricted information by relevant persons

(1)A person who is or has been a relevant person must not make a record of restricted information.

Maximum penalty—2 years imprisonment.

(2)A person who is or has been a relevant person must not disclose restricted information to any person or to a court.

Maximum penalty—2 years imprisonment.

(3)This section is subject to section 234.

233Prohibition on recording or disclosure of restricted information by other persons

(1)A person who has, or had, access to restricted information under section 239 must not—

(a)make a record of the information; or

(b)disclose the information to any person or to a court.

Maximum penalty—2 years imprisonment.

(2)This section is subject to section 234.

234Exceptions to prohibitions on recording or disclosure of restricted information

(1)Sections 232(1) and (2) and 233(1) do not apply to—

(a)anything done by a person in performing functions under this Act or in connection with this Act; or

(b)without limiting paragraph (a), disclosure to any board of inquiry; or

(c)disclosure to a court in criminal proceedings for an offence against this part, part 7, division 7 or part 8; or

(d)disclosure of restricted information to a court in civil proceedings if—

(i)the chief executive has issued a certificate stating that the disclosure of the information is not likely to interfere with any current or future investigation or inquiry; and

(ii)the court makes an order under subsection (2) in relation to the disclosure.

(2)If a court in civil proceedings is satisfied that any adverse domestic and international impact that the disclosure of restricted information might have on any current or future investigations or inquiries is outweighed by the public interest in the administration of justice, the court may order the disclosure.

(3)In a proceeding for an offence against section 232 (1) or (2) or section 233 (1), the onus is on the defendant to adduce or point to evidence that suggests a reasonable possibility that subsection (1) applies.

235Court can not require disclosure of restricted information

If a person is prohibited by this subdivision from disclosing restricted information—

(a)the person can not be required by a court to disclose the information; and

(b)any information disclosed by the person in contravention of this section is not admissible in any civil or criminal proceeding, other than a proceeding against the person under this subdivision.

236Court may direct no publication or communication of restricted information

A court in which a disclosure mentioned in section 234 (1) (c) or (d) is made may direct that the restricted information, or any information obtained from the restricted information, must not—

(a)be published or communicated to any person; or

(b)be published or communicated other than in the way, and to the persons, the court states.

237Release of restricted information for ensuring rail safety

(1)The chief executive may disclose restricted information to any person if the chief executive considers that the disclosure is necessary or desirable for the purposes of ensuring rail safety.

(2)However, the chief executive may only disclose restricted information that is, or that contains, personal information in the circumstances prescribed under a regulation.

(3)In this section—

individual does not include an individual who is an accredited person.

personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

238Authorisation of coroner to have access to restricted information

(1)This section applies if a coroner requests or requires the chief executive to give restricted information to the coroner.

(2)The chief executive must give the restricted information to the coroner.

239Chief executive may authorise persons to have access to restricted information

The chief executive may authorise someone other than a relevant person to have access to restricted information if the chief executive considers that it is necessary or desirable to do so.

240Certification by chief executive of relevant person’s involvement in investigation or inquiry

The chief executive may issue a certificate stating that a stated person who is or has been a relevant person is involved, or has been involved, in an investigation or inquiry about a stated occurrence.

241Relevant persons not compellable as witnesses

(1)A person who is or has been a relevant person is not obliged to comply with a subpoena or similar direction of a court to attend and answer questions about an occurrence if the chief executive has issued a certificate under section 240 for the person in relation to the occurrence.

(2)A relevant person is not compellable to give an expert opinion in any civil or criminal proceeding in relation to rail safety.

(3)This section does not apply to—

(a)an inquiry; or

(b)an inquiry conducted by a board of inquiry established or re-established under the Transport Infrastructure Act 1994 , section 219 as in force from time to time before the commencement of this section; or

(c)a coronial inquest.

(4)In this section—

expert opinion means an opinion that requires specialised knowledge based on training, study or experience.

242Discrimination against or victimisation of employees

(1)An employer must not dismiss an employee, or otherwise prejudice an employee in the employee’s employment, for the dominant or substantial reason that the employee—

(a)has helped or given information to a public agency in relation to a breach or alleged breach of an Australian rail safety law; or

(b)has made a complaint about a breach or alleged breach of an Australian rail safety law to an employer, former employer, fellow employee, former fellow employee, union or public agency.

Examples of prejudicial conduct in relation to an employee’s employment—

•demotion of the employee

•unwarranted transfer of the employee

•reducing the employee’s terms of employment

Maximum penalty—40 penalty units.

(2)An employer must not fail to offer employment to a prospective employee, or in offering employment to a prospective employee treat the prospective employee less favourably than another prospective employee would be treated in similar circumstances, for the dominant or substantial reason that the prospective employee—

(a)has helped or given information to a public agency in relation to a breach or alleged breach of an Australian rail safety law; or

(b)has made a complaint about a breach or alleged breach of an Australian rail safety law to an employer, former employer, fellow employee, former fellow employee, union or public agency.

Maximum penalty—40 penalty units.

(3)In this section—

Australian rail safety law means this Act or a corresponding rail safety law.

employee includes an individual who works under a contract for services.

employer, of a prospective employee, includes a prospective employer of the employee.

public agency means a public agency of any jurisdiction and includes the following—

(a)the chief executive;

(b)a rail safety officer;

(c)a police officer;

(d)a corresponding rail safety regulator;

(e)an interstate rail safety officer;

(f)a police officer of another State.

243Order for damages or reinstatement

(1)This section applies if an employer is convicted of an offence against section 242 in relation to an employee or prospective employee.

(2)In addition to imposing a penalty, a court may make 1 or more of the following orders—

(a)an order that the employer pay, within a stated period, the employee or prospective employee the damages the court considers appropriate to compensate the employee or prospective employee;

(b)for an employee—an order that the employee be reinstated or re-employed in the employee’s former position or, if that position is not available, in a similar position;

(c)for a prospective employee—an order that the prospective employee be employed in the position for which the prospective employee applied, or a similar position.

(3)In this section—

employee includes an individual who works under a contract for services.

employer, of a prospective employee, includes a prospective employer of the employee.

244False or misleading statements

(1)A person must not state anything to an official that the person knows is false or misleading in a material particular.

Maximum penalty—200 penalty units.

(2)In a proceeding for an offence against subsection (1), it is enough for a charge to state that the statement made was ‘false or misleading’, without specifying which.

245False or misleading documents

(1)A person must not give an official a document containing information the person knows is false or misleading in a material particular.

Maximum penalty—200 penalty units.

(2) Subsection (1) does not apply if the person, when giving the document—

(a)tells the official, to the best of the person’s ability, how it is false or misleading; and

(b)if the person has, or can reasonably obtain, the correct information—gives the correct information.

(3)In a proceeding for an offence against subsection (1), it is enough for a charge to state that the document was ‘false or misleading’, without specifying which.

246Obstruction of officials

(1)A person must not obstruct an official in the exercise of a power under this Act, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2)If a person has obstructed an official and the official decides to proceed with the exercise of the power, the official must warn the person that—

(a)it is an offence to obstruct the official, unless the person has a reasonable excuse; and

(b)the official considers the person’s conduct is an obstruction.

(3)In this section—

obstruct includes—

(a)assault, hinder, intimidate and resist; and

(b)attempt or threaten to obstruct.

official means—

(a)the chief executive; or

(b)a rail safety officer; or

(c)an interstate rail safety officer exercising a power under this Act as provided for in a reciprocal powers agreement; or

(d)a person acting under the direction of a person mentioned in paragraph (a), (b) or (c), in the exercise of a power under this Act.

247Concealing document or other thing

A person must not intentionally conceal the location or existence of a document or other thing from an official in the exercise of a power under this Act.

Maximum penalty—200 penalty units.

248Impersonating a rail safety officer

A person must not pretend to be a rail safety officer.

Maximum penalty—100 penalty units.

249Interfering with equipment, rail infrastructure or rolling stock

(1)A person must not interfere with equipment, rail infrastructure or rolling stock unless—

(a)the interference is permitted or authorised—

(i)by an authorised person for the equipment, rail infrastructure or rolling stock; or

(ii)under the Transport Infrastructure Act 1994 , section 253; or

(b)the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2) Subsection (1) does not apply to a person who carries out urgent maintenance of equipment, rail infrastructure or rolling stock.

(3)In this section—

authorised person, for equipment, rail infrastructure or rolling stock, means—

(a)the rail transport operator who has the effective management and control of the equipment, rail infrastructure or rolling stock; or

(b)a rail safety officer.

interfere with, equipment, rail infrastructure or rolling stock, includes—

(a)disable, move or operate the equipment, rail infrastructure or rolling stock; and

(b)attempt to interfere with the equipment, rail infrastructure or rolling stock.

250Using brake or emergency device

(1)A person must not, unless the person has a reasonable excuse—

(a)apply a brake, or use an emergency device, fitted to a train or tram; or

(b)use an emergency device on railway premises.

Example of emergency device—

emergency button on a station communication board or on an escalator

Maximum penalty—100 penalty units.

(2) Subsection (1) does not apply to—

(a)a person who has lawful control of the train or tram; or

(b)a person who is using a brake or emergency device on the train or tram, or an emergency device on railway premises, and has lawful authority to use the brake or device.

251Stopping a train or tram

(1)A person must not, unless the person has a reasonable excuse, cause, or attempt to cause, a train or tram in motion to stop.

Maximum penalty—100 penalty units.

(2) Subsection (1) does not apply to—

(a)a person who has lawful control of the train or tram; or

(b)a person who is using a brake or emergency device on the train or tram, or an emergency device on railway premises, and has lawful authority to use the brake or device.

252Notification requirement for prescribed persons

(1)This section applies if—

(a)a person prescribed under a regulation for this section carries out, or intends to carry out, an operation or activity prescribed under a regulation for this section; and

(b)the operation or activity could adversely affect the safety of a rail transport operator’s rail infrastructure or rolling stock.

(2)The person must, within the period prescribed under a regulation, notify the rail transport operator, in the approved form, of the following—

(a)the commencement of the operation or activity;

(b)any discontinuation or recommencement of the operation or activity;

(c)the completion of the operation or activity.

Maximum penalty—200 penalty units.

253Multiple offences

Despite any Act or other law, a person may be punished for more than 1 breach of a requirement of this Act if the breaches relate to different parts of the same railway premises, rail infrastructure or rolling stock.

254Responsibility for acts or omissions of representative

(1)This section applies in a proceeding for an offence against this Act.

(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)In this section—

representative means—

(a)for a corporation—an executive officer, employee or agent of the corporation; or

(b)for an individual—an employee or agent of the individual.

state of mind, of a person, includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

256Daily penalty for continuing offences

(1)This section applies to a person who commits an offence against this Act that requires the person to do something or not do something.

(2)The offence is a continuing offence and may be charged in 1 or more complaints for periods for which the offence continues.

Maximum penalty for each day the offence continues after the person is convicted of the offence—¹/₅ of the maximum penalty for the offence.

(3)For the penalty under subsection (2), an offence that continues for a part of a day is taken to have continued for the entire day.

257Compliance with conditions of accreditation

(1)This section applies if an accreditation condition of a person’s accreditation makes provision in relation to preventing a contravention of a requirement of this Act.

(2)If the person complies with the accreditation condition to the extent that it makes that provision, the person is taken to have complied with the requirement.

(3)In this section—

requirement includes rail safety duty.

258Compliance with compliance code

(1)This section applies if—

(a)a compliance code makes provision in relation to preventing a contravention of a requirement of this Act; and

(b)a person complies with the compliance code to the extent that it makes that provision.

(2)The person is taken to have complied with the requirement.

(3)In this section—

requirement includes rail safety duty.

259Internal review of decisions

(1)A person whose interests are affected by a decision described in schedule 2 (the original decision) may ask the chief executive to review the decision.

(2)The person is entitled to receive a statement of reasons for the original decision whether or not the provision under which the decision is made requires that the person be given a statement of reasons for the decision.

(3)The Transport Planning and Coordination Act 1994 , part 5, division 2—

(a)applies to the review; and

(b)provides—

(i)for the procedure for applying for the review and the way it is to be carried out; and

(ii)that the person may apply to QCAT to have the original decision stayed.

260External review of decisions

(1)This section applies if the chief executive’s decision (the internal review decision) on a review under section 259 is not the decision sought by the applicant for the review.

Note—

Under the Transport Planning and Coordination Act 1994 , section 34, the chief executive must give the applicant a notice complying with the QCAT Act, section 157 (2).

(2)The applicant may apply, as provided under the QCAT Act, to QCAT for a review of the internal review decision.

Note—

The QCAT Act, section 22 (3) provides that QCAT may stay the operation of the internal review decision, either on application by a person or on its own initiative.

261Application of pt 12

This part applies to a proceeding under this Act.

262Evidence from records required to be kept under Act

A certificate purporting to be signed by the chief executive and stating any of the following matters is evidence of the matter—

(a)a stated document is a record, or an extract from a record, kept under section 280;

(b)a stated document is a copy of a record or extract mentioned in paragraph (a);

(c)on a stated day, or for a stated period, an accreditation was, or was not, in force for a stated person;

(d)on a stated day, or for a stated period, a stated condition applied, or did not apply, to an accreditation in force for a stated person;

(e)on a stated day, or for a stated period, an accreditation for a stated person was suspended;

(f)on a stated day, an accreditation for a stated person was revoked or surrendered;

(g)on a stated day, a stated person was given an improvement notice, or a notice amending an improvement notice, and the requirements applying to the person under the improvement notice, or the improvement notice as amended;

(h)on a stated day, a stated person was given a prohibition notice, or a notice amending a prohibition notice, and the requirements applying to the person under the prohibition notice, or the prohibition notice as amended.

263Evidence about reciprocal powers agreement

A certificate purporting to be signed by the chief executive and stating any of the following matters is evidence of the matter—

(a)on a stated day, or during a stated period, a rail safety officer was exercising, or purportedly exercising, powers under a stated provision of a stated reciprocal powers agreement;

(b)on a stated day, or during a stated period, an interstate rail safety officer was exercising, or purportedly exercising, powers under a stated provision of a stated reciprocal powers agreement;

(c)a stated document is a copy of a stated reciprocal powers agreement;

(d)a stated document is a copy of an extract from a stated reciprocal powers agreement.

264Evidence of other matters

(1)A certificate purporting to be signed by an official and stating any of the following matters is evidence of the matter—

(a)a stated matter appears in a stated record kept by the official for the administration or enforcement of this Act or a corresponding law;

(b)a stated matter appears in a stated record accessed by the official for the administration or enforcement of this Act or a corresponding law.

(2)A certificate purporting to be signed by an official stating a matter that has been worked out from either of the following is evidence of the matter—

(a)a stated record kept by the official for the administration or enforcement of this Act or a corresponding law;

(b)a stated record accessed by the official for the administration or enforcement of this Act or a corresponding law.

(3)In this section—

official means—

(a)the chief executive; or

(b)a rail safety officer; or

(c)a corresponding rail safety regulator.

265Proof of appointment and authority unnecessary

(1)For a proceeding under this Act, the following must be presumed unless a party to the proceeding, by prescribed notice, requires proof of it—

(a)the appointment of any of the following—

(i)the chief executive;

(ii)a rail safety officer;

(iii)a corresponding rail safety regulator;

(iv)an interstate rail safety officer;

(v)a police officer of another State;

(vi)the head of the police force or police service of another State;

(b)the authority of the chief executive or a rail safety officer to do anything under this Act.

(2)In this section—

prescribed notice, for a proceeding under this Act, means notice at least 14 days before the day a court starts to hear the proceeding.

266Proof of signature unnecessary

A signature purporting to be the signature of any of the following is evidence of the signature it purports to be—

(a)the chief executive;

(b)a rail safety officer;

(c)a corresponding rail safety regulator;

(d)an interstate rail safety officer;

(e)a police officer of another State;

(f)the head of the police force or police service of another State.

267Proceedings for offences

(1)A proceeding for an offence against this Act—

(a)is to be taken in a summary way under the Justices Act 1886 ; and

(b)must be started by complaint of—

(i)the chief executive; or

(ii)someone else authorised by the Minister.

(2)The proceeding must start within the later of the following periods to end—

(a)1 year after the commission of the offence;

(b)6 months after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.

(3)A statement in a complaint for an offence against this Act that the matter of the complaint came to the knowledge of the complainant on a stated day is evidence of when the matter came to the complainant’s knowledge.

pt 12A (ss 267A–267C) ins 2011 No. 12 s 124

267AApplication of pt 12A

This part applies to a person other than a person who makes a disclosure as a public officer under the Public Interest Disclosure Act 2010 .

pt 12A (ss 267A–267C) ins 2011 No. 12 s 124

267BGeneral limitation

(1)A person (the disclosing person) is not civilly or criminally liable for disclosing information to an official about a person’s conduct, whether committed before or after the commencement of this section, that the disclosing person honestly believes, on reasonable grounds, contravenes this Act.

(2)Without limiting subsection (1)—

(a)in a proceeding for defamation, the disclosing person has a defence of absolute privilege for publishing the disclosed information; and

(b)if the disclosing person would otherwise be required to maintain confidentiality about the disclosed information under an Act, agreement, oath, rule of law or practice, the disclosing person does not—

(i)contravene the Act, oath, rule of law or practice by making the disclosure; or

(ii)breach the agreement by making the disclosure.

(3)In this section—

agreement includes a contract or deed.

pt 12A (ss 267A–267C) ins 2011 No. 12 s 124

267CLiability for conduct unaffected

(1)The liability of the disclosing person for his or her own conduct is not affected only because the disclosing person discloses the conduct to an official.

(2)However, a court may have regard to the disclosure if—

(a)the disclosing person is prosecuted for an offence involving the conduct; and

(b)the disclosing person’s conduct was in compliance with an express instruction of a rail transport operator or someone authorised by a rail transport operator to give the instruction.

(3) Subsection (2) does not limit the Penalties and Sentences Act 1992 .

pt 12A (ss 267A–267C) ins 2011 No. 12 s 124

268Giving information to WHS chief executive

(1)The chief executive may, if asked by the WHS chief executive under an arrangement, give the WHS chief executive information held by the chief executive that—

(a)the chief executive is satisfied will help the WHS chief executive in the exercise of the WHS chief executive’s functions under the Work Health and Safety Act; and

(b)is not restricted information under section 230.

(2)A WHS official who acquires information or accesses a document containing information given under subsection (1) must not do either of the following—

(a)disclose to anyone else—

(i)the information; or

(ii)the contents of or information contained in the document;

(b)give access to the document to anyone else.

Maximum penalty—100 penalty units.

(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document—

(a)if the information or document is about a person—with the person’s consent; or

(b)for administering, or monitoring or enforcing compliance with, the Work Health and Safety Act; or

(c)for the administration or enforcement of another Act or law, if the disclosure or access is in the interests of public safety; or

(d)in a proceeding before a court, or before an entity carrying out functions under the Work Health and Safety Act, in which the information is relevant to the issue before the court or entity; or

(e)as required or authorised under an Act; or

(f)in a way authorised under a temporary regulation.

(4) Subsection (1) applies despite section 269.

(5)In this section—

WHS chief executive means the chief executive of the department in which the Work Health and Safety Act is administered.

WHS official means a person who is, or has been—

(a)the WHS chief executive or a delegate of the WHS chief executive; or

(b)an inspector under the Work Health and Safety Act or a person acting under the direction of the inspector; or

(c)another person involved in the administration of the Work Health and Safety Act.

s 268 amd 2011 No. 18 s 404 sch 4 pt 1

269Confidentiality

(1)This section applies to a prescribed person who has, in the course of administering this Act or because of an opportunity provided by involvement in administering this Act—

(a)acquired information about someone else; or

(b)gained access to a document about someone else.

(2)The prescribed person must not do either of the following—

(a)disclose to anyone else—

(i)the information; or

(ii)the contents of or information contained in the document;

(b)give access to the document to anyone else.

Maximum penalty—100 penalty units.

(3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document, about a person—

(a)with the person’s consent; or

(b)for administering, or monitoring or enforcing compliance with, this Act or a corresponding rail safety law; or

(c)for the administration or enforcement of another Act or law, if the disclosure or access is in the interests of public safety; or

(d)in a proceeding before a court, or before an entity carrying out functions under this Act or a corresponding rail safety law, in which the information is relevant to the issue before the court or entity; or

(e)as required or authorised under an Act; or

(f)in a way authorised under a temporary regulation.

(4)This section does not prevent the chief executive or a corresponding rail safety regulator from—

(a)using information to accumulate aggregate data; or

(b)authorising the use of aggregate data for research or education.

(5)In this section—

prescribed person means a person who is or has been involved in the administration of this Act, including a person who is or has been any of the following—

(a)a rail safety officer or a person acting under the direction of a rail safety officer;

(b)a person authorised by the chief executive or a rail safety officer to do something under this Act;

(c)a delegate of the chief executive;

(d)a person employed by, or engaged to provide services to or on behalf of, the chief executive;

(e)a person employed by, or engaged to provide services to, an entity engaged to provide services to the chief executive.

270Particular persons acting under this Act

(1)This section applies to each of the following persons (a relevant person)—

(a)the chief executive;

(b)a rail safety officer;

(c)a person authorised by the chief executive, a rail safety officer, a corresponding rail safety regulator or an interstate rail safety officer to do something under this Act.

(2)A relevant person is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.

(3)If subsection (2) prevents civil liability attaching to a relevant person, the liability attaches instead to—

(a)for the chief executive—the State; or

(b)for a relevant person who is a rail safety officer—

(i)if the officer is an employee of an accredited person and the officer’s act or omission related to an occurrence on or in relation to the accredited person’s railway premises or railway operations—the accredited person; or

(ii)otherwise—the State; or

(c)for a relevant person mentioned in subsection (1) (c)—

(i)if the person was authorised by the chief executive and was acting under the control or direction of the chief executive—the State; or

(ii)if the person was authorised by a rail safety officer and was acting under the control or direction of the officer—the entity to whom the liability would attach under paragraph (b) if the officer had done the act or made the omission; or

(iii)if the person was authorised by a corresponding rail safety regulator or an interstate rail safety officer and was acting under the control or direction of the corresponding rail safety regulator or interstate rail safety officer—the corresponding rail safety regulator.

(4)In this section—

corresponding rail safety regulator means a rail safety regulator under a prescribed corresponding law.

interstate rail safety officer means an interstate rail safety officer under a prescribed corresponding law.

prescribed corresponding law means a corresponding law prescribed under a regulation for this section.

271Particular persons acting under prescribed corresponding law

(1)This section applies if—

(a)an authorised person does an act, or makes an omission, in the exercise of a power conferred under a prescribed corresponding law; and

(b)when the authorised person does the act or makes the omission, the authorised person is acting under the control and direction of the chief executive in relation to the exercise of the power mentioned in paragraph (a); and

(c)civil liability for the act or omission would attach to the authorised person, apart from the provision mentioned in paragraph (d); and

(d)a provision of the prescribed corresponding law provides that civil liability for the act or omission attaches to the chief executive.

(2)The liability attaches to the State.

(3)In this section—

authorised person means—

(a)a rail safety officer; or

(b)a person authorised by the chief executive or a rail safety officer to do something under a prescribed corresponding law.

prescribed corresponding law means a corresponding law prescribed under a regulation for this section.

272Persons helping in accidents or emergencies

(1)This section applies if—

(a)a person helps, or attempts to help, in a situation in which an accident or emergency on or in relation to railway premises or railway operations happens or is likely to happen; and

(b)the help, or attempt to help, is given honestly and without negligence; and

(c)the person does not obtain a fee, charge or other reward for the help, or attempt to help; and

(d)the accident or emergency, or likely accident or emergency, was not wholly or partly caused by the person.

(2)The person is not civilly liable for the help or attempt to help.

(3)If subsection (2) prevents civil liability attaching to a person, the liability attaches instead to the State.

(4)This section does not apply to a person to whom section 270 or 271 applies.

273Registered health practitioners advising on fitness of rail safety worker

(1)This section applies to a registered health practitioner who, acting honestly on reasonable grounds, gives information about a person’s fitness for rail safety work to any of the following persons—

(a)the chief executive;

(b)a rail transport operator;

(c)a registered health practitioner employed or engaged by the chief executive or a rail transport operator.

(2)The registered health practitioner is not liable, civilly, criminally or under an administrative process, for giving the information.

(3)Without limiting subsection (2)—

(a)in a proceeding for defamation, the registered health practitioner has a defence of absolute privilege for publishing the information; and

(b)the registered health practitioner—

(i)does not, by giving the information, contravene any Act, oath, rule of law or practice requiring the practitioner to maintain confidentiality of the information; and

(ii)is not liable for disciplinary action for giving the information.

(4)Also, merely because the registered health practitioner gives the information, the practitioner can not be held to have—

(a)breached any code of professional etiquette or ethics; or

(b)departed from accepted standards of professional conduct.

(5)In this section—

information, about a person’s fitness for rail safety work, includes—

(a)the results of a test or examination relevant to the person’s fitness for the work; and

(b)an opinion about the person’s fitness for the work formed on the basis of the results mentioned in paragraph (a); and

(c)an opinion about whether it may be dangerous to allow the person to perform the work.

registered health practitioner means a person registered under—

(a)the Medical Practitioners Registration Act 2001 , part 3; or

(b)the Optometrists Registration Act 2001 , part 3; or

(c)the Physiotherapists Registration Act 2001 , part 3.

274Making compliance codes

(1)The Minister may make a code of practice in relation to how persons who have duties under this Act can prevent a contravention of a requirement under this Act.

(2)A code of practice, or an instrument amending or repealing a code of practice, has no effect unless the Minister gives notice of its making.

(3)A notice under subsection (2) is subordinate legislation.

(4)A code of practice, or an instrument amending or repealing a code of practice, commences on the later of the following—

(a)the day the notice under subsection (2) commences; or

(b)the day the code or instrument provides that it commences.

(5)A code of practice expires 10 years after its commencement.

(6)The Minister must ensure a copy of each code of practice as in force from time to time, and any document applied, adopted or incorporated by the code of practice, is made available for inspection, free of charge, at each department office during office hours on business days.

(7)A code of practice may be made available in written or electronic form.

(8)In this section—

requirement includes rail safety duty.

275Civil liability not affected by compliance code

(1)Compliance or noncompliance with a compliance code does not—

(a)create a civil cause of action; or

(b)affect a civil right or remedy, whether at common law or otherwise.

(2)Without limiting subsection (1) (b), compliance with a compliance code does not necessarily show that a civil obligation has been satisfied or has not been breached.

276Use of compliance code in proceedings

(1)In a proceeding under this Act, a document purporting to be a compliance code is admissible as evidence of the code if—

(a)the proceeding relates to a contravention of a requirement of this Act; and

(b)it is claimed the person contravened the requirement; and

(c)the code states a way or ways to prevent a contravention of the requirement.

(2)In this section—

requirement includes rail safety duty.

277Meaning of rail safety undertaking

A rail safety undertaking is a written undertaking made by a person (the identified person for the undertaking) that—

(a)recognises that the chief executive alleges (the alleged contravention for the undertaking) that the identified person has contravened a provision of part 3; and

(b)identifies the facts and circumstances of the alleged contravention; and

(c)includes an assurance from the identified person about the identified person’s future behaviour.

s 277 amd 2013 No. 51 s 212

278Chief executive may accept undertakings

(1)The chief executive may, by notice given to the identified person for a rail safety undertaking, accept the rail safety undertaking.

(2)When the chief executive accepts the rail safety undertaking, the undertaking—

(a)starts operating; and

(b)becomes enforceable against the identified person.

(3)The identified person may at any time with the agreement of the chief executive—

(a)withdraw the rail safety undertaking; or

(b)change the provisions of the rail safety undertaking.

(4)However, the provisions of the rail safety undertaking can not be changed to provide for a different alleged contravention for the undertaking.

(5)Proceedings can not be brought for an offence against this Act constituted by the contravention or alleged contravention to which the rail safety undertaking relates.

279Enforcement of undertakings

(1)If the chief executive considers that an identified person for a rail safety undertaking has contravened the undertaking, the chief executive may apply to a Magistrates Court for an order under this section for the enforcement of the undertaking.

(2)If the court is satisfied that the person has contravened the rail safety undertaking, it may make—

(a)an order that the person must comply with the undertaking or take stated action to comply with the undertaking; or

(b)any other order the court considers appropriate.

280Records to be kept by chief executive

The chief executive must keep a record of the following—

(a)the grant of an accreditation;

(b)a refusal of an application for accreditation;

(c)the conditions imposed by the chief executive on the grant of an accreditation;

(d)the variation of an accreditation;

(e)the variation of a condition of accreditation imposed by the chief executive;

(f)the suspension or revocation of an accreditation;

(g)the surrender of an accreditation;

(h)the issue of an improvement notice, and any amendment of the notice;

(i)the issue of a prohibition notice, and any amendment of the notice.

281Recovery of amounts payable under Act

(1)A fee, charge or other amount payable under this Act is a debt due to the State and may be recovered—

(a)in summary proceedings under the Justices Act 1886 ; or

(b)by action for a debt in a court of competent jurisdiction.

(2)A fee, charge or other amount payable under this Act may also be recovered in a proceeding for an offence against this Act.

(3)An order made under subsection (2) is enforceable under the Justices Act 1886 as an order for payment of money made by a magistrate under that Act.

(4)If an order is made under subsection (2)—

(a)the order may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921 ; and

(b)on being filed, is taken to be an order made by a Magistrates Court constituted under that Act and may be enforced accordingly.

282Contracting out prohibited

(1)A contract is void to the extent to which it—

(a)is contrary to this Act; or

(b)purports to annul, exclude, restrict or otherwise change the effect of a provision of this Act.

(2)This section does not prevent the parties to a contract from including provisions in the contract that impose greater or more onerous obligations on an entity than are imposed by the requirements of this Act.

(3)This section applies to contracts entered into before or after the commencement of this section.

(4)In this section—

contract includes agreement.

requirement includes rail safety duty.

283Approval of forms

The chief executive may approve forms for use under this Act.

284Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)Without limiting subsection (1), a regulation made under this Act may—

(a)impose duties or requirements on persons for ensuring safety of persons in relation to railway operations, rail safety work or another activity associated with railway operations; or

(b)impose a penalty of not more than 20 penalty units for a contravention of a provision of the regulation; or

(c)prescribe fees payable under this Act; or

(d)provide for the review of decisions made under the regulation.

(3)Also, for section 36 (1) (a), a regulation made under this Act may make provision in relation to preventing a contravention of a duty imposed under part 3, division 3.

285Temporary regulation-making power

(1)A regulation (a temporary regulation) may make provision about—

(a)exemptions, either absolute or conditional, from all or particular provisions of this Act for a person, railway, part of a railway, railway operations or part of railway operations; or

(b)a matter for which a temporary regulation may provide under a provision of this Act.

(2)However, a temporary regulation may make provision about a matter mentioned in subsection (1) only if it is necessary to make the provision temporarily under a regulation to ensure consistency between this Act and corresponding rail safety laws.

(3)A temporary regulation must declare it is a temporary regulation.

(4)A provision of a temporary regulation providing for a matter mentioned in subsection (1) expires 1 year after its commencement.

286Definitions for pt 14

In this part—

approved safety management system means a safety management system that was, immediately before the commencement, an approved safety management system under the unamended TIA, section 122.

commencement means the commencement of this section.

complying safety management system means a safety management system complying with the requirements for a safety management system under part 4, division 3.

serious incident has the meaning given by the unamended TIA.

TIA accreditation means accreditation under the unamended TIA, chapter 7, part 3, or chapter 10, part 5, that was in force immediately before the commencement, or is granted under section 319 or 321.

TIA reviewable decision means any of the following—

(a)a decision of the chief executive—

(i)to refuse to grant an accreditation under the unamended TIA, section 126 or 388; or

(ii)to refuse to amend the conditions of an accreditation under the unamended TIA, section 132 or 393;

(b)a decision of the chief executive to impose conditions on an accreditation granted under the unamended TIA, section 126 or 388;

(c)a decision of the chief executive—

(i)to refuse to approve an amendment of a rail transport operator’s approved safety management system under the unamended TIA, section 133; or

(ii)to refuse to approve a rail transport operator’s proposed safety management system under the unamended TIA, section 136;

(d)a decision of the chief executive to give a safety direction under the unamended TIA, section 144 (1);

(e)a decision of a rail safety officer to give a safety direction under the unamended TIA, section 146 (1) or 147 (1);

(f)a decision of the chief executive to give a direction mentioned in the unamended TIA, section 159 (2) (a);

(g)a decision of the chief executive to amend, suspend or cancel an accreditation under the unamended TIA, section 158 (2), 159 (2), 394 (3), 394 (8), 395 (3), 395 (6) or 396 (2).

transitioned approved safety management system means a safety management system taken to be a complying safety management system under section 287 (2), 288 (2) or (5), 322 (2) or 325 (3).

transition-ending event, for a rail transport operator who has a transitioned approved safety management system, means—

(a)the passing of 12 months after the commencement; or

(b)the operator establishes a new safety management system that complies with the requirements for a safety management system under part 4, division 3; or

(c)the operator varies the transitioned approved safety management system to comply with the requirements for a safety management system under part 4, division 3.

unamended TIA means the Transport Infrastructure Act 1994 as in force from time to time before the commencement.

287Approved safety management system

(1)This section applies if a rail transport operator has an approved safety management system.

(2)The approved safety management system is taken to be a complying safety management system until a transition-ending event happens for the rail transport operator.

Note—

See, however, section 325 (2).

288Changes to approved safety management system

(1)If a rail transport operator’s application for an amendment of an approved safety management system is made but not decided before the commencement, the application must be decided under the unamended TIA, section 133 and, for that purpose, the unamended TIA continues to have effect as if this Act had not been enacted.

(2)If the chief executive approves the proposed amendment, the rail transport operator’s approved safety management system with the incorporated amendment is taken to be a complying safety management system until a transition-ending event happens for the operator.

(3)If the chief executive refuses to approve the proposed amendment, the rail transport operator may apply for a review of the decision under the unamended TIA as if this Act had not been enacted.

(4)If a rail transport operator’s application for an approval of a proposed safety management system under the unamended TIA, section 136 is made but not decided before the commencement, the application must be decided under the unamended TIA, section 136 and, for that purpose, the unamended TIA continues to have effect as if this Act had not been enacted.

(5)If the chief executive approves the proposed safety management system under the unamended TIA, section 136, the rail transport operator’s proposed safety management system the subject of the approval is taken to be a complying safety management system until a transition-ending event happens for the operator.

(6)If the chief executive refuses to approve the proposed safety management system, the rail transport operator may apply for a review of the decision under the unamended TIA as if this Act had not been enacted.

Note—

See section 318 in relation to a review of a decision mentioned in subsection (3) or (6).

289Application of Act to transitioned approved safety management system

(1)This section applies if a rail transport operator has a transitioned approved safety management system.

(2)Until a transition-ending event happens for the rail transport operator, a reference in this Act to the safety management system of the operator is taken to be a reference to the operator’s transitioned approved safety management system.

(3)For section 65, the review of the rail transport operator’s safety management system required under that section must be conducted when the transitioned approved safety management system would have been required to be reviewed under the unamended TIA, section 135 if that section had still been in force.

(4) Subsection (3) stops having effect when the transition-ending event happens.

290Continuing effect of existing accreditations

(1)A TIA accreditation—

(a)continues in force; and

(b)is taken to be an accreditation granted under this Act for the following—

(i)for a TIA accreditation for a railway—railway operations relating to the railway that are within the scope of the TIA accreditation;

(ii)for a TIA accreditation for a light rail—railway operations relating to the light rail that are within the scope of the TIA accreditation; and

(c)is subject to—

(i)the conditions imposed on the TIA accreditation by the chief executive under the unamended TIA; and

(ii)regulation conditions within the meaning of the unamended TIA, section 129 applying to the accreditation.

(2)If, at the commencement, an accreditation under the unamended TIA, chapter 7, part 3, or chapter 10, part 5, is subject to a suspension under the unamended TIA, the accreditation is taken to continue in force under subsection (1) but remains subject to the suspension until the end of the suspension period applying under the unamended TIA.

(3)The chief executive must give the person to whom the TIA accreditation was granted a notice stating the matters mentioned in section 105 (2)—

(a)for an accreditation in force under the unamended TIA, chapter 7, part 3, or chapter 10, part 5, immediately before the commencement or an accreditation mentioned in subsection (2)—as soon as practicable but within 6 months after the commencement; or

(b)for an accreditation granted under section 319 or 321—when the accreditation is granted.

(4)For an accreditation mentioned in subsection (3) (a), the notice given for the accreditation under the unamended TIA, section 126 (6) or 388 (7) is taken to be the accreditation notice for the accreditation for railway operations as continued in force under this Act, until the chief executive gives the notice mentioned in subsection (3) (a) for the accreditation.

Note—

Under section 96, a rail transport operator who is an accredited person for railway operations is required to keep the operator’s accreditation notice for the railway operations at a particular place and to produce it to a rail safety officer who requests it.

(5)In this section—

scope, of a TIA accreditation, means the scope of the accreditation as stated in—

(a)for a TIA accreditation for a railway—the notice given by the chief executive under the unamended TIA, section 126 (6); or

(b)for a TIA accreditation for a light rail—the notice given by the chief executive under the unamended TIA, section 388 (7).

291Existing applications for accreditation

(1)An application (TIA application) for an accreditation under the unamended TIA that is not decided before the commencement is taken to be an application for accreditation for the following made under this Act—

(a)if the TIA application relates to a railway—accreditation for railway operations relating to the railway of the scope and nature stated in the application;

(b)if the TIA application relates to a light rail—accreditation for railway operations relating to the light rail of the scope and nature stated in the application.

(2)For applying this Act to an application mentioned in subsection (1), a notice given by the chief executive under the unamended TIA, section 125 or 387 is taken to be a notice given under section 100 (3).

292Unpaid annual levy

(1)This section applies if—

(a)before the commencement, the chief executive gave a person a notice under the unamended TIA, section 127 (3) or 389 (2); and

(b)at the commencement, the person has not paid the amount of the levy mentioned in the notice, whether or not the date stated in the notice by which the amount must be paid is on or after the commencement.

(2)The person must pay the amount of the levy—

(a)if the date stated in the notice is on or before the commencement—immediately; or

(b)otherwise—before the date stated in the notice.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

293Existing applications for amendment of conditions of accreditation

(1)This section applies to an application made under the unamended TIA for an amendment of the conditions imposed on a person’s TIA accreditation.

(2)If the application is not decided before the commencement, the application is taken to be an application for a variation of a condition of accreditation made under this Act.

(3)For applying section 121 (1) (a) to the decision on the application, the applicant is taken to have met the part of the accreditation criteria for being accredited for railway operations relating to the preparation of the applicant’s safety management system if the applicant has an approved safety management system.

294Notices about financial capacity or public risk insurance arrangements

(1)This section applies if the chief executive has given a notice under the unamended TIA, section 137 (3) before the commencement.

(2)The notice continues in force and the unamended TIA, section 137 (3) and (4) continue to apply in relation to the notice as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

295Requirement to notify cancellations etc. of particular agreements

(1)The unamended TIA, section 138 continues to apply in relation to a TIA accreditation as if this Act had not been enacted.

(2) Subsection (1) stops having effect 1 year after the commencement.

296Decisions about matters relating to access to rail transport infrastructure

(1)If the chief executive has started considering whether or not to make a decision under the unamended TIA, section 139 but has not made a decision under that section at the commencement, the chief executive may continue the consideration under section 132 as if the consideration had started under this Act.

(2)At the commencement, a decision of the chief executive made under the unamended TIA, section 139 is taken to have been made under section 132.

297Existing guidelines about matters relating to access to rail transport infrastructure

Guidelines developed under the unamended TIA, section 139 (6) and having effect immediately before the commencement are taken to be guidelines developed under section 132 (6).

298Dealing with disputes about access to rail transport infrastructure if no safety direction given

(1)This section applies if—

(a)before the commencement, the chief executive is given a notice under the unamended TIA, section 140 (2); and

(b)the chief executive reasonably considers it may be appropriate to give a safety direction under the unamended TIA, chapter 7, part 3, division 4 about the matter stated in the notice as in dispute (the dispute matter); and

(c)the chief executive has not given a safety direction under the unamended TIA, section 144 (1) in relation to the dispute matter.

(2)If, at the commencement, the chief executive has not given a proposed safety direction under the unamended TIA, section 142, the chief executive may deal with the dispute matter under this Act as if the notice was given under section 133 (2).

(3)If, before the commencement, the chief executive has given a proposed safety direction under the unamended TIA, section 142 but has not taken action in relation to the dispute matter under the unamended TIA, section 144—

(a)at the commencement, the proposed safety direction is taken to have been given under section 135; and

(b)the chief executive may deal with the dispute matter under this Act as if the proposed safety direction had been given under section 135.

299Continuing effect of safety directions

(1)This section applies to either of the following given before the commencement and in force immediately before the commencement—

(a)a safety direction given by the chief executive under the unamended TIA, section 144 (1);

(b)a safety direction given by a rail safety officer under the unamended TIA, section 146 (1) or 147 (1).

(2)The safety direction continues in force and the relevant provisions continue to apply in relation to the direction as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

(4)In this section—

relevant provisions means—

(a)for a safety direction given by the chief executive under the unamended TIA, section 144 (1)—the unamended TIA, sections 144 and 149; or

(b)for a safety direction given by a rail safety officer under the unamended TIA, section 146 (1)—the unamended TIA, sections 146 and 149; or

(c)for a safety direction given by a rail safety officer under the unamended TIA, section 147 (1)—the unamended TIA, sections 147 and 149.

300Existing audit program

An audit program prepared under the unamended TIA, section 150 and having effect immediately before the commencement is taken to be an audit program prepared under section 130 (1) (b).

301Existing inspections under audit program

(1)This section applies if—

(a)before the commencement, the chief executive has given a notice under the unamended TIA, section 152; and

(b)at the commencement, the person to whom the notice is given has not complied with the requirement in the notice as required under the unamended TIA, section 153.

(2)The notice continues in force and the unamended TIA, sections 152 and 153 continue to apply in relation to the notice as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

302Disciplinary action against accredited persons

(1)This section applies if—

(a)before the commencement, the chief executive has given a notice under the unamended TIA, section 156, 394 (2) or 395 (2) (the show cause notice); and

(b)at the commencement, the chief executive has not finally dealt with the proposed action to which the notice relates.

(2)The chief executive may continue to consider the proposed action under the unamended TIA as if this Act had not been enacted and, for that purpose, the relevant provisions continue to apply in relation to the proposed action as if this Act had not been enacted.

(3)If the chief executive’s decision on the proposed action is to amend, suspend or cancel a person’s TIA accreditation, the amendment, suspension or cancellation has effect under this Act as if it were an amendment, suspension or cancellation of the accreditation as continued under section 290.

(4)If the chief executive’s decision on the proposed action is to direct a person to apply for an amendment of an approved safety management system for a railway, the decision is taken to be a direction given under section 69 for the person’s transitioned safety management system.

(5)If, under subsection (2), a person’s TIA accreditation is amended, suspended or cancelled, or a person is given a direction to apply for an amendment of the person’s approved safety management system, the person may apply for a review of the relevant decision under the unamended TIA as if this Act had not been enacted.

(6) Subsection (5) applies despite subsections (3) and (4).

(7)For subsection (5), the unamended TIA continues to have effect as if this Act had not been enacted.

Note—

See section 318 in relation to a review mentioned in subsection (5).

(8)In this section—

relevant provisions means—

(a)for a proposed action relating to a railway—the unamended TIA, sections 157, 159 and 160; or

(b)for a proposed action relating to light rail—the unamended TIA, sections 394, 395 and 397.

303Requirement about remedying breach of accreditation condition

(1)This section applies if, before the commencement, the chief executive has given a notice under the unamended TIA, section 391 (2).

(2)The notice continues in force and the unamended TIA, section 391 continues to apply in relation to the requirement as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

304Rail safety officers

(1)A person who, immediately before the commencement, was a rail safety officer under the unamended TIA is taken to be appointed as a rail safety officer under section 137—

(a)until the end of the term of appointment under the unamended TIA; and

(b)on the conditions of the appointment under the unamended TIA that are consistent with this Act.

(2)The chief executive must issue the rail safety officer an identity card under section 139 as soon as possible after the commencement.

(3)This section does not apply to a police officer.

305Existing warrants

(1)This section applies to a warrant issued under the unamended TIA, section 182 (the previous warrant) if, immediately before the commencement, the warrant was in effect and had not been executed.

(2)The previous warrant—

(a)continues to have effect according to its terms; and

(b)is taken to be a warrant issued under section 149.

306Sample or thing taken for analysis

(1)This section applies to a sample or thing taken for analysis under the unamended TIA, section 185 (3) (d) that has not been finally dealt with under the unamended TIA, chapter 7, part 5 before the commencement.

(2)The sample or thing is taken to be a sample or thing taken for analysis under section 153 (3) (d).

Note—

A thing to which this section applies may be forfeited under section 173.

307Dealing with seized property

(1)This section applies to a thing seized under the unamended TIA, section 190 or 191 that has not been finally dealt with under the unamended TIA, chapter 7, part 5 before the commencement.

(2)The thing is taken to have been seized under—

(a)for a thing seized under the unamended TIA, section 190—section 161; or

(b)for a thing seized under the unamended TIA, section 191—section 162.

(3)A receipt given for the thing under the unamended TIA, section 196 is taken to be a receipt given for the thing under section 167.

Note—

A thing to which this section applies may be returned under section 169 or forfeited under section 173 or 174.

(4)For applying this Act to the seizure, the period of 6 months mentioned in section 169 is taken to have started when the thing was seized under the unamended TIA.

(5)If, before the commencement, a rail safety officer has secured the seized thing under the unamended TIA, section 192, the thing is taken to have been secured under section 163.

308Requirements about moving things

(1)This section applies if a rail safety officer has made a requirement under the unamended TIA, section 194 (1) or (3) or 195 (1).

(2)The requirement continues in force and the unamended TIA, sections 194 and 195 continue to apply in relation to the requirement as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

309Request for report or incident details

(1)This section applies if, before the commencement, the chief executive has made a requirement under the unamended TIA, section 215 (2).

(2)The requirement continues in force and the unamended TIA, section 215 continues to apply in relation to the requirement as if this Act had not been enacted.

(3)This section does not limit the Acts Interpretation Act 1954 , section 20 or 20A.

310Existing investigations about particular incidents

(1)This section applies if, at the commencement, an investigation about an incident had started but not been completed under the unamended TIA, chapter 7, part 6, division 2 or section 400.

(2)The investigation may be continued under part 7, division 7 as if it were a notifiable occurrence.

(3)For subsection (2)—

(a)a requirement made by a rail safety officer under the unamended TIA, section 217 (2) is taken to be a requirement made under section 187; and

(b)a requirement made by a rail safety officer under the unamended TIA, section 217 (4) is taken to be a requirement made under section 188; and

(c)a requirement made by a rail safety officer under the unamended TIA, section 217 (5) is taken to be a requirement made under section 189.

(4)In this section—

incident means a serious incident, or an incident other than a serious incident, on or involving a railway.