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Rail Safety Act 2006

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					                            Version No. 001
                       Rail Safety Act 2006
                               Act No. 9/2006
        Version incorporating amendments as at 1 August 2006


                       TABLE OF PROVISIONS
Section                                                                     Page

PART 1—PRELIMINARY                                                             1
  1.      Purpose                                                              1
  2.      Commencement                                                         1
  3.      Definitions and interpretation                                       2
  4.      Declaration of substances to be a drug                              13
  5.      Meaning of "control"                                                13
  6.      Railways to which this Act does not apply                           14
  7.      Rail safety work                                                    14
  8.      Approval of person to take blood samples for the purposes of
          Part 6                                                              16
  9.      Declaration of an alcohol and drug control law of another
          State or Territory to be corresponding law                          16
  10.     References to contraventions of Acts to be read as including
          references to contraventions of regulations                         16
  11.     Objects and principles of rail safety                               17
  12.     Crown to be bound                                                   17

PART 2—PRINCIPLES OF RAIL SAFETY                                              18
  13.     Principle of shared responsibility                                  18
  14.     Principle of accountability for managing safety risks               18
  15.     Principle of integrated risk management                             18
  16.     Principle of enforcement                                            19
  17.     Principle of transparency and consistency                           19
  18.     Principle of participation, consultation and involvement of all
          affected persons                                                    19




                                        i
Section                                                                     Page

PART 3—RAIL SAFETY DUTIES AND OTHER SAFETY
REQUIREMENTS                                                                  20
Division 1—The Concept of Ensuring Safety                                     20
  19.     The concept of ensuring safety                                      20
Division 2—Safety Duties of Rail Infrastructure Managers and
Rolling Stock Operators                                                       21
  20.     Duty of rail infrastructure managers to ensure safety of rail
          infrastructure operations                                           21
  21.     Duty of rolling stock operators to ensure safety of rolling
          stock operations                                                    22
Division 3—Safety Duties of Other Persons                                     23
  22.     Rail contractor duties                                              23
  23.     Duties of rail safety workers                                       26
Division 4—Safety Management Systems                                          27
  24.  What is a safety management system?                                    27
  25.  Form and contents of safety management systems                         28
  26.  Rail operator must consult before establishing safety
       management system                                                      28
  27. Rail operator to have in place a safety management system               29
  28. Rail operator must comply with a safety management system               29
  28A. Provision of access to SMS to Safety Director or transport
       safety officer                                                         30
Division 5—Safety Audits and Audits of Medical Records of Rail
Safety Workers                                                                30
  29.     Safety audits                                                       30
  30.     Audit of medical records of rail safety workers                     30
Division 6—Other Matters                                                      31
  31.     Single charge for multiple contraventions of certain duties         31
  32.     Civil liability not affected by Division 2 or 3                     32

PART 4—PROTECTION AND CONTROL OF RAIL
OPERATIONS                                                                    33
  33.     Safety Director may require utility works or rail operations to
          stop                                                                33
  34.     Safety Director may direct utility works or rail operations to
          be altered, demolished or taken away                                34




                                          ii
Section                                                                       Page

PART 5—ACCREDITATION OF RAIL INFRASTRUCTURE
AND ROLLING STOCK OPERATIONS                                                    36
Division 1—Preliminary Matters                                                  36
  35.     Purpose of accreditation                                              36
Division 2—Accreditation                                                        36
  36.     Offence for certain rail infrastructure managers not to be
          accredited                                                            36
  37.     Rolling stock operators must not operate rolling stock unless
          accredited                                                            37
  38.     Application for accreditation                                         37
  39.     Criteria on which accreditation applications by rail
          infrastructure managers are to be assessed                            39
  40.     Criteria on which accreditation applications by rolling stock
          operators are to be assessed                                          40
  41.     Accreditation following direction                                     41
  42.     Safety Director may give directions in relation to rolling stock
          operator applicants                                                   41
  43.     Safety Director may direct applicants to co-ordinate and
          cooperate in their accreditation applications                         43
  44.     Time within which Safety Director must make decision
          whether to accredit                                                   44
  45.     Notification and reasons to be given if accreditation refused         45
  46.     Restrictions and conditions concerning accreditation                  45
  47.     How long accreditation lasts                                          47
  48.     Offence to fail to comply with conditions etc.                        47
Division 3—Risk Management Requirements for Accreditation                       48
  49.     Application of Division                                               48
  50.     Identification of incidents and hazards, and risk assessment          48
  51.     Measures to control likelihood, magnitude and severity of
          consequences of incidents                                             50
  52.     Emergency planning                                                    51
Division 4—Variation and Surrender of Accreditation                             52
  53.     Accredited rail operator may apply for variation or revocation
          of conditions and restrictions                                        52
  54.     Application for variation of accreditation is required in certain
          cases                                                                 53
  55.     Safety Director may vary, revoke or impose new conditions or
          restrictions of an accreditation on own initiative                    55
  56.     Surrender of accreditation                                            56
  57.     False or misleading information                                       57




                                        iii
Section                                                                   Page

Division 5—Disciplinary Action                                              58
  58.     Power of immediate suspension                                     58
  59.     Disciplinary action against an accredited rail operator           59
  60.     Procedure and powers concerning disciplinary inquiries            61
  61.     Effect of suspension                                              61
Division 6—Miscellaneous                                                    62
  62. Accreditation cannot be transferred                                   62
  62A. Co-ordination between Safety Director and corresponding
       Rail Safety Regulator                                                62
  63. Accreditation exemptions for private siding rail operations           64
  64. Revocation of accreditation exemptions for private siding rail
       operations                                                           66
  65. Accredited rail operators must demonstrate ongoing
       compliance with risk management requirements                         68
  66. Exemption from ongoing compliance with risk management
       requirements                                                         68
  67. Accredited rail operator must investigate railway accidents
       and incidents                                                        70
  68. Accredited rail operator must put into effect emergency plan
       without delay                                                        71
  69. Accredited rail operator must notify emergency services and
       others of a major incident                                           71

PART 6—ALCOHOL AND OTHER DRUG CONTROLS FOR
RAIL SAFETY WORKERS                                                         73
Division 1—Preliminary Matters                                              73
  70.     Definitions                                                       73
  71.     Presumptions in relation to presence of concentrations of
          alcohol and other drugs                                           73
  72.     When a rail safety worker is not to be taken to be impaired       74
  73.     When a rail safety worker is to be regarded as being about to
          carry out rail safety work                                        75
  74.     Findings of guilt and convictions and subsequent offences         75
  75.     Entry into residential premises not allowed without a warrant     75
Division 2—Offences, Testing and Analysis                                   76
  76.     Offences involving alcohol                                        76
  77.     Preliminary breath tests                                          81
  78.     Breath analysis                                                   83
  79.     Drug assessment                                                   88
  80.     Blood and urine samples                                           92
  81.     Destruction of identifying information                            94
  82.     Blood samples to be taken in certain cases                        97




                                       iv
Section                                                                Page

Division 3—Evidentiary Provisions                                        99
  83.     Evidentiary provisions—blood tests                             99
  84.     Evidentiary provisions—urine tests                            106
  85.     Evidentiary provisions—breath tests                           110
Division 4—Other Matters                                                114
  86.     Approvals                                                     114

PART 7—REVIEW OF DECISIONS                                              116
  87.     Reviewable decisions                                          116
  88.     Internal review                                               120
  89.     Review by the Tribunal                                        122
  90.     Special right of review concerning interstate applicants      123

PART 8—CODES OF PRACTICE                                                125
  91.     Codes of practice                                             125
  92.     Revisions to approved codes of practice                       125
  93.     Revocation of approvals of codes of practice                  126
  94.     Availability of approved codes of practice                    126
  95.     Minister must consult before approving code of practice or
          revision to code of practice                                  126
  96.     Effect of approved code of practice                           127

PART 9—GENERAL                                                          128
Division 1—Offences by Bodies Corporate                                 128
  97.     Imputing conduct to bodies corporate                          128
  98.     Liability of officers of bodies corporate                     128
Division 2—Offences by Partnerships and Unincorporated Bodies
or Associations                                                         130
  99.     Liability of officers of partnerships and unincorporated
          bodies or associations                                        130
Division 3—Proceedings against the Crown                                131
  100. Responsible agency for the Crown                                 131
Division 4—Other Matters                                                132
  101. Interaction with the Occupational Health and Safety
       Act 2004                                                         132
  102. Effect of compliance with regulations or approved codes of
       practice                                                         133
  103. Fees for service                                                 134
  104. Tabling and disallowance of certain Orders, notices and
       approved codes of practice                                       134



                                        v
Section                                                                    Page

Division 5—Regulations                                                      135
  105. Accreditation                                                        135
  106. Safety duties and risk management requirements and
       minimisation                                                         135
  107. Safety management systems                                            136
  108. Rail safety work                                                     136
  109. Alcohol and other drug controls                                      138
  110. General regulation making powers                                     139

PART 10—AMENDMENT OF TRANSPORT ACT 1983                                     143
  111. Definitions                                                          143
  112. New Subdivision 1 heading inserted into Division 1 of
       Part II                                                              145
  113. Objects and functions of the Department                              146
  114. New Subdivision 2 heading inserted into Division 1 of
       Part II                                                              146
  115. Functions and powers of Director                                     146
  116. New sections 9AA to 9AC inserted                                     146
       9AA. Contingency planning for exercise of certain powers             146
       9AB. Director to conduct cost-benefit analysis of relevant
                rail safety projects                                        147
       9AC. Guidelines for cost-benefit analysis and consultation           148
  117. New Subdivision 3 of Division 1 of Part II inserted                  148
          Subdivision 3—Director, Public Transport Safety                   148
          9K.    Director, Public Transport Safety                          148
          9L.    Appointment and terms and conditions                       149
          9M.    When the Safety Director ceases to hold office             149
          9N.    Resignation                                                150
          9O.    Suspension and removal from office for
                 misconduct etc.                                            150
          9P.    Acting appointment                                         152
          9Q.    Validity of acts and decisions                             153
          9R.    Safety Director not subject to Ministerial direction or
                 control                                                    153
          9S.    Immunity                                                   153
          9T.    Functions of Safety Director                               154
          9U.    Powers of Safety Director                                  156
          9V.    Safety Director to have regard to certain objectives       158
          9W.    Ministerial direction to investigate public transport
                 safety matters                                             158
          9X.    Staff                                                      159
          9Y.    Delegation                                                 159
          9Z.    Information disclosure by Safety Director                  160




                                      vi
Section                                                                   Page

          9ZA.     Safety Director to conduct cost-benefit analysis of
                   and consult about mandatory rail safety decisions       160
          9ZB. Guidelines                                                  161
          9ZC. Memoranda of understanding                                  162
          9ZD. Power to give advice on compliance                          163
  118.    New Subdivision 4 heading inserted into Division 1 of Part II    163
  119.    Repeal                                                           163
  120.    Amendment of heading to Part VII                                 164
  121.    Definition                                                       164
  122.    New Division 4AAA of Part VII inserted                           164
          Division 4AAA—Transport Safety Offences                          164
          Subdivision 1—Interpretation                                     164
          221U.     Definitions                                           164
          221V.     Exclusion of mistake of fact defence                  169
          221W.     Statement that mistake of fact defence does not apply
                    not to affect other offences                          169
          Subdivision 2—Offences                                           170
          221X.  Overdimensional vehicles crossing tracks                  170
          221Y.  Operators of overdimensional vehicles crossing tracks
                 without permission also guilty of offence                 173
       221Z.     Reasonable steps defence—reliance on container
                 weight declaration                                        174
       221ZA. Specification of vehicle limits and fees for
                 overdimensional vehicles crossing tracks                  175
       221ZB. Animals on railway tracks                                    175
       221ZC. Placing things on tracks                                     176
       221ZD. Mounting a place not intended for travel etc.                176
       221ZE. Travelling in a place not intended for travel etc.           177
       221ZF. Applying brake or emergency device                           178
       221ZG. Stopping a rail vehicle or road vehicle                      178
       221ZH. Operating equipment                                          178
       221ZI.    Permitting drainage                                       179
  123. Repeal of certain offences                                          179
  124. New section 223 substituted                                         179
       223.      Offence to trespass on land or premises of Roads
                 Corporation or Rail Track                                 179
  125. New Division 4B of Part VII inserted                                180
          Division 4B—Enforcement of Relevant Transport Safety
          Laws                                                             180
          Subdivision 1—Interpretation                                     180
          228S.     Definitions                                            180
          228SA.    Crown to be bound                                      183



                                      vii
Section                                                                     Page

          Subdivision 2—Transport Safety Officers                            184
          228T.    Appointment                                               184
          228U.    Identity cards                                            184
          228V.    Return of identity cards                                  185
          228W.    Production of identity card                               185
          228X.    Transport safety officers subject to Safety Director's
                   direction                                                 186
          228Y.    Investigation by Ombudsman of actions etc. of
                   transport safety officers                                 186
          Subdivision 3—Powers of Entry                                      187
          228Z.    Power of entry                                            187
          228ZA.   Procedure for entry with consent                          187
          Subdivision 4—Inspection, Inquiry, Search and Seizure
          Powers                                                             189
          228ZB.   General inspection, inquiry and search powers             189
          228ZC.   Securing a site                                           190
          228ZD.   Offence to enter secured site                             191
          228ZE.   Seizure power                                             191
          228ZF.   Use of equipment to examine or process things             191
          Subdivision 5—Search Warrants                                      192
          228ZG.   Search warrant                                            192
          228ZH.   Seizure of things not mentioned in the warrant            194
          228ZI.   Announcement before entry                                 194
          228ZJ.   Copy of warrant to be given to occupier                   195
          Subdivision 6—Directions                                           195
          228ZK. Power to require production of documents and related
                 items                                                       195
          228ZL. Direction to provide reasonable assistance                  197
          228ZM. Direction to provide certain information                    198
          228ZN. Direction to state name and address                         198
          228ZO. Directions for the protection of evidence                   199
          Subdivision 7—Seized Things and Samples Taken                      200
          228ZP.   Securing seized things                                    200
          228ZQ.   Offence to tamper with seized thing                       201
          228ZR.   Powers to support seizure                                 201
          228ZS.   Transport safety officer may direct a thing's return      202
          228ZT.   Receipt for seized things                                 203
          228ZU.   Copies of certain seized things to be given               204
          228ZV.   Return of seized things                                   204




                                     viii
Section                                                                   Page

          228ZW. Magistrates' Court may extend period                      205
          228ZX. Magistrates' Court may order forfeiture of thing in
                 certain cases                                             206
          Subdivision 8—Miscellaneous Provisions Relating to
          Enforcement Powers                                               207
          228ZY.  Manner in which transport safety officers may give
                  directions under this Division                           207
          228ZZ. Use of force                                              207
          228ZZA. Use or seizure of electronic equipment                   208
          228ZZB. Compensation for damage caused during exercise of
                  powers under this Division                               209
          Subdivision 9—Improvement Notices                                210
          228ZZC. Improvement notices                                  210
          228ZZD. Improvement notices—closures of level crossings,
                  bridges or other structures                          213
          228ZZE. Contravention of improvement notice                  213
          228ZZF. Amendment of improvement notices                     214
          228ZZG. Cancellation of improvement notices                  215
          228ZZH. Clearance certificates for improvement notices       215
          228ZZI. Proceedings for offences not affected by improvement
                  notices                                              215
          Subdivision 10—Prohibition Notices                               216
          228ZZJ. Prohibition notice                                       216
          228ZZK. Contravention of prohibition notice                      218
          228ZZL. Amendment of prohibition notice                          219
          228ZZM. Withdrawal of prohibition notices                        219
          228ZZN. Certificates that matters that give rise to immediate
                  risks to safety remedied                                 220
          228ZZO. Proceedings for offences not affected by prohibition
                  notices                                                  220
          Subdivision 11—Other Matters                                     220
          228ZZP. Self-incrimination not an excuse                         220
          Subdivision 12—Review of Decisions Relating to
          Improvement and Prohibition Notices                              222
       228ZZQ. Reviewable decisions                                        222
       228ZZR. Review by the Safety Director                               223
       228ZZS. Review by the Tribunal                                      225
  126. New section 229A and 229B inserted                                  226
       229A. Who may only bring proceedings for offences against
              relevant transport safety laws                               226
       229B. Limitation period for prosecutions for indictable
              offences against relevant transport safety laws              227


                                      ix
Section                                                               Page

  127. New section 230A and Divisions 6 and 7 of Part VII inserted     227
       230A. Evidentiary certificates—relevant transport safety
              laws                                                     227
          Division 6—Sentencing Orders in relation to Relevant
          Transport Safety Laws                                        230
          230B.   Commercial benefits penalty order                    230
          230C.   Supervisory intervention order                       232
          230D.   Contravention of supervisory intervention order      235
          230E.   Release on the giving of a safety undertaking        236
          230F.   Variation or breach of orders under section 230E     238
          Division 7—Other Matters                                     238
          Subdivision 1—Interpretation                                 238
          230G. Definitions                                            238
          Subdivision 2—Liability                                      239
       230H. Civil liability not affected by a relevant rail safety
                duty law                                               239
       230I. Interaction with the Occupational Health and Safety
                Act 2004                                               240
       230J. Offences by bodies corporate, officers of bodies
                corporate, partnerships etc.                           241
  128. Service                                                         241
  129. Statute law revision                                            241

PART 11—OTHER AMENDMENTS TO ACTS, SAVINGS AND
TRANSITIONALS                                                          242
Division 1—Amendment of Public Transport Competition
Act 1995                                                               242
  130.    Application for accreditation                                242
  131.    Matters to be considered                                     242
  132.    Giving or refusal of accreditation                           242
  133.    Conditions of accreditation                                  243
  134.    Change of conditions etc.                                    243
  135.    Duration of accreditation                                    243
  136.    Requirement to notify of charges etc.                        243
  137.    Periodical returns                                           243
  138.    Application for renewal of accreditation                     243
  139.    Renewal of accreditation                                     244
  140.    Nature of accreditation                                      244
  141.    Safety Director not liable for giving accreditation          244
  142.    Supervision of accredited persons                            244




                                        x
Section                                                                   Page

  143.    Procedure and powers                                             244
  144.    Immediate power of suspension                                    245
  145.    Review by Victorian Civil and Administrative Tribunal            245
  146.    Codes of practice                                                245
  147.    Fees                                                             245
  148.    Delegation                                                       246
  149.    No compensation payable                                          246
Division 2—Amendment of Rail Corporations Act 1996                         247
  150. New definition inserted                                             247
  151. Objective of Rail Track                                             247
  152. Functions and powers of Rail Track                                  247
  153. New section 12 inserted                                             247
       12.      Contingency planning for exercise of certain powers        247
  154. Definition of "access provider" amended and new definitions
       inserted                                                            248
  155. Decisions not to interfere with certain directions of the Safety
       Director                                                            249
  156. Statute law revision                                                249
Division 3—Other Amendments                                                249
  157. Electricity Industry Act 2000 amendment—New section 85
       substituted and new sections 93A to 93C inserted                    249
       85.      Definitions                                                249
       93A. Safety duties in relation to works on or in immediate
                vicinity of rail infrastructure or rolling stock           250
       93B. Notification of owners or occupiers of land on which
                there is rail infrastructure or rolling stock              251
       93C. Notification of electricity corporations before rail
                operations carried out                                     251
  158. Gas Industry Act 2001 amendment—New sections 147A
       and 149A to 149C inserted                                           252
       147A. Definitions                                                   252
       149A. Safety duties in relation to works on or in immediate
                vicinity of rail infrastructure or rolling stock           252
       149B. Notification of owners or occupiers of land on which
                there is rail infrastructure or rolling stock              253
       149C. Notification of gas distribution and transmission
                companies before rail operations carried out               254
  159. Magistrates' Court Act 1989 amendment—Certain indictable
       offences triable summarily etc.                                     254




                                      xi
Section                                                                   Page

  160. Road Management Act 2004 amendment—New Division 4A
       of Part 4 of that Act inserted                                      256
          Division 4A—Safety Duties in relation to Works on or
          near Rail Infrastructure                                         256
          48A.  Definitions                                                256
          48B.  State road authority duty in relation to works on or
                in immediate vicinity of rail infrastructure or rolling
                stock                                                      257
       48C. Infrastructure manager or works manager duties in
                relation to works on or in immediate vicinity of rail
                infrastructure or rolling stock                            257
       48D. Works contractor duty in relation to works on or in
                immediate vicinity of rail infrastructure or rolling
                stock                                                      258
       48E.     Notification of owners or occupiers of land on which
                there is rail infrastructure or rolling stock              258
       48F.     Notification of road authorities before rail operations
                carried out                                                259
       48G. Certain offences in this Division are indictable
                offences                                                   259
  161. Water Act 1989 amendment—New sections 137A to 137C
       inserted                                                            259
       137A. Safety duties in relation to works on or in immediate
                vicinity of rail infrastructure or rolling stock           259
       137B. Notification of owners or occupiers of land on which
                there is rail infrastructure or rolling stock              260
       137C. Notification of Authorities before rail operations
                carried out                                                261
  162. Water Industry Act 1994 amendment—New sections 62A
       to 62C inserted                                                     261
       62A. Safety duties in relation to works on or in immediate
                vicinity of rail infrastructure or rolling stock           261
       62B. Notification of owners or occupiers of land on which
                there is rail infrastructure or rolling stock              263
       62C. Notification of licensees before rail operations
                carried out                                                263
Division 4—Savings and Transitional Provisions                             264
  163. Definitions                                                         264
  164. General transitional provision                                      266
  165. Savings and transitional regulations                                266
  166. Declaration Order in relation to tourist and heritage
       operation and railways                                              267
  167. Orders and approvals relating to alcohol and other drug
       controls under the Transport Act 1983                               267
  168. Authorities for the purposes of Part 6                              268


                                     xii
Section                                                                   Page

  169. Specified procedures for carrying out assessment of drug
       impairment                                                          268
  170. Existing applications for accreditation                             269
  171. Review of decisions in relation to applications of accreditation
       transitioned under this Division                                    271
  172. Existing accreditations deemed to be accreditations under this
       Act                                                                 271
  173. Expiry of transitional accreditations and post new scheme
       accreditations                                                      272
  174. Conditions and restrictions of transitional accreditations may
       be varied in accordance with Division 4 of Part 5                   273
  175. Transitional accreditations may be surrendered                      273
  176. Existing application for changes of conditions or restrictions
       of accreditation                                                    273
  177. Change of conditions or restrictions on accreditation on
       initiative of Secretary                                             274
  178. Compliance with certain provisions not required while
       accreditations under Division are in force                          275
  179. Accreditations transitioned under Division not Part 5
       accreditations for purposes of section 65                           275
  180. Private sidings                                                     275
  181. References to Secretary in transitional accreditations to be
       read as references to Safety Director                               276
  182. Codes of Practice                                                   276
                            ═══════════════

ENDNOTES                                                                   277
1. General Information                                                     277
2. Table of Amendments                                                     278
3. Explanatory Details                                                     279




                                    xiii
                     Version No. 001
                  Rail Safety Act 2006
                       Act No. 9/2006

    Version incorporating amendments as at 1 August 2006

The Parliament of Victoria enacts as follows:


                  PART 1—PRELIMINARY

     1. Purpose
             The main purpose of this Act is to provide for safe
             rail operations in Victoria.
     2. Commencement
         (1) Subject to sub-sections (4) and (5), this Act          S. 2(1)
                                                                    amended by
             (except sections 129 and 156) comes into               No. 47/2006
             operation on a day or days to be proclaimed.           s. 39(1).

         (2) Sections 129 and 156(2) come into operation on
             the day after the day this Act receives the Royal
             Assent.
         (3) Section 156(1) comes into operation on the day
             section 5 of the Transport Legislation (Further
             Amendment) Act 2005 comes into operation.
         (4) If a provision of this Act (except section 123) does   S. 2(4)
                                                                    amended by
             not come into operation before 1 January 2007, it      No. 47/2006
             comes into operation on that day.                      s. 39(2).

         (5) If section 123 does not come into operation before     S. 2(5)
                                                                    inserted by
             30 June 2008, it comes into operation on that day.     No. 47/2006
                                                                    s. 39(3).




                               1
                      Rail Safety Act 2006
                        Act No. 9/2006
                        Part 1—Preliminary
s. 3


       3. Definitions and interpretation
           (1) In this Act—
              "accreditation" means an accreditation under
                  Part 5;
              "accredited rail operations" means—
                     (a) rail infrastructure operations carried out
                         by a rail infrastructure manager in
                         respect of which the rail infrastructure
                         manager is accredited under Part 5; or
                     (b) rolling stock operations carried out by a
                         rolling stock operator in respect of
                         which the rolling stock operator is
                         accredited under Part 5;
              "accredited rail operator" means a rail
                  infrastructure manager or rolling stock
                  operator who is accredited under Part 5;
              "ambulance service" has the same meaning as in
                 the Ambulance Services Act 1986;
              "approved code of practice" means a code of
                  practice approved under Part 8 and includes
                  an approved code of practice revised in
                  accordance with that Part;
              "approved health professional" means—
                     (a) a registered nurse, within the meaning
                         of the Nurses Act 1993, registered in
                         division 1 of the register kept under that
                         Act;
                     (b) a person approved under section 8 to
                         take a blood sample for the purposes of
                         this Act;
              "binding access arrangement" has the same
                  meaning as in section 38A of the Rail
                  Corporations Act 1996;



                                2
        Rail Safety Act 2006
          Act No. 9/2006
          Part 1—Preliminary
                                                      s. 3


"breath analysing instrument" means a breath
    analysing instrument within the meaning of
    the Road Safety Act 1986;
"business day" means a day other than a
    Saturday, a Sunday or a public holiday
    appointed under the Public Holidays Act
    1993;
"Chief Investigator" means the Chief
    Investigator, Transport and Marine Safety
    Investigations appointed under section 83 of
    the Transport Act 1983;
"competence", in relation to a rail safety worker,
    means sufficient education, training,
    experience, acquired knowledge, and skills
    to enable the rail safety worker to perform a
    specified task correctly;
"control", in relation to a rail infrastructure—see
    section 5;
"corresponding law" means, for the purposes of
    Part 6, a law of another State or a Territory
    of the Commonwealth declared under
    section 9 to be a corresponding law;
"Country Fire Authority" means the Country
    Fire Authority appointed under the Country
    Fire Authority Act 1958;
"Department" means the Department of
    Infrastructure;
"dispute resolution decision" has the same
     meaning as in section 38A of the Rail
     Corporations Act 1996;
"drug" means a substance that is a drug for the
    purposes of this Act by virtue of a
    declaration under section 4 or any other
    substance (other than alcohol) which, when
    consumed or used by a person, deprives that


                  3
                          Rail Safety Act 2006
                            Act No. 9/2006
                            Part 1—Preliminary
  s. 3


                       person (temporarily or permanently) of any
                       of his or her normal mental or physical
                       faculties;
                  "emergency plan"—see section 52;
                  "emergency service" means—
                        (a) the Chief Commissioner of Police;
                        (b) an ambulance service;
                        (c) the Country Fire Authority;
                        (d) the Metropolitan Fire and Emergency
                            Services Board;
                  "Energy Safe Victoria" means Energy Safe
                      Victoria established under section 4 of the
                      Energy Safe Victoria Act 2005;
                  "hazard" means a source of potential harm;
                  "health and safety representative" has the same
                      meaning as in the Occupational and Health
                      and Safety Act 2004;
S. 3(1) def. of   "interface co-ordination plan" means a plan
"interface
co-ordination          developed by a rail operator that identifies
plan"                  and specifies—
substituted by
No. 47/2006
s. 40.
                        (a) the potential risks to the safety of rail
                            operations carried out by that rail
                            operator at a place that may be caused
                            or contributed, wholly or in part by—
                              (i) the activities or rail operations of
                                  another rail operator or activities
                                  of another person at that place; or
                              (ii) the ownership, occupation or
                                   management of that place by
                                   another rail operator or another
                                   person;
                        (b) any other matter or thing that is
                            prescribed;


                                    4
        Rail Safety Act 2006
          Act No. 9/2006
          Part 1—Preliminary
                                                        s. 3


"major incident" means an incident or natural
    event that poses a serious and immediate risk
    to safety and includes a derailment of rolling
    stock, a collision, a fire or explosion;
"Metropolitan Fire and Emergency Services
    Board" means the Metropolitan Fire and
    Emergency Services Board established under
    the Metropolitan Fire Brigades Act 1958;
"officer" of a body corporate, unincorporated
     body or association or partnership has the
     meaning given by section 9 of the
     Corporations Act;
"person" includes a body corporate,
    unincorporated body or association and a
    partnership;
"premises" includes any structure, building or
    place (whether built on or not), and any part
    of such structure, building or place;
"prescribed concentration of alcohol" means
    any concentration of alcohol present in the
    breath or blood of a person;
"private siding" means a siding that is managed
     by a person other than a person who controls
     the rail infrastructure that the siding connects
     with, or has access to, but does not include—
      (a) a marshalling yard;
      (b) a siding used mainly to enable rolling
          stock to pass other rolling stock that is
          on the same track;
      (c) a passenger terminal;
      (d) a siding of a kind that the regulations
          state is not a private siding;




                  5
               Rail Safety Act 2006
                 Act No. 9/2006
                 Part 1—Preliminary
s. 3


       "public transport safety matter" has the
           meaning set out in section 82A of the
           Transport Act 1983;
       "rail contractor" means a person who—
             (a) whether or not under an agreement with
                 a rail infrastructure manager or rolling
                 stock operator designs, commissions,
                 constructs, manufactures, supplies,
                 installs, erects, maintains, repairs,
                 modifies or decommissions any thing
                 that may be used as rail infrastructure
                 or rolling stock; or
             (b) is engaged directly or indirectly by a
                 rail infrastructure manager or rolling
                 stock operator to supply rail
                 infrastructure operations or rolling
                 stock operations to that rail
                 infrastructure manager or rolling stock
                 operator, and includes a sub-contractor;
       "rail infrastructure" means the facilities that are
            necessary to operate a railway safely and
            includes, but is not limited to, railway track,
            associated track structures and works (such
            as cuttings, tunnels, bridges, stations,
            platforms, tram stops, excavations, land fill,
            track support earthworks and drainage
            works), over-track structures, under-track
            structures, service roads, signalling systems,
            rolling stock control systems,
            communications systems, notices and signs,
            overhead electrical power supply systems,
            and associated buildings, workshops, depots,
            yards, plant, machinery and equipment, but
            does not include rolling stock;
       "rail infrastructure manager" means a person
            who controls rail infrastructure;



                         6
        Rail Safety Act 2006
          Act No. 9/2006
          Part 1—Preliminary
                                                        s. 3


"rail infrastructure operations" means
     designing, commissioning, constructing,
     manufacturing, erecting, installing,
     operating, maintaining, repairing, modifying,
     decommissioning or managing rail
     infrastructure;
"rail operations" means rail infrastructure
     operations or rolling stock operations;
"rail operator" means a rail infrastructure
     manager or rolling stock operator;
"rail safety work"—see section 7;
"rail safety worker" means a person who has
     carried out, is carrying out or is about to
     carry out, rail safety work and includes—
      (a) a person who is employed or engaged
          by a rail operator to carry out rail safety
          work;
      (b) a person engaged by a person (other
          than by a rail operator) to carry out rail
          safety work;
      (c) a trainee;
      (d) a volunteer;
"railway" means a guided system designed for
     the movement of rolling stock that has the
     capability of transporting passengers or
     freight or both on a railway track with a
     railway track gauge of 600 millimetres or
     more, together with its rail infrastructure,
     and includes—
      (a) a heavy railway;
      (b) a light railway;
      (c) a monorail railway;
      (d) an inclined railway;


                  7
              Rail Safety Act 2006
                Act No. 9/2006
                Part 1—Preliminary
s. 3


            (e) a tramway;
            (f) a railway within a marshalling yard or
                passenger or freight terminal;
            (g) a private siding;
            (h) a railway that is prescribed by the
                regulations to be a railway;
           Note: Section 6 sets out the railways to which this
                 Act does not apply.
       "railway premises" means—
            (a) land (including any premises on the
                land) on or in which is situated any
                item or part of an item of rail
                infrastructure; or
            (b) land (including any premises on the
                land) on or in which is situated any
                over-track structure or part of an over-
                track structure, or on or in which is
                situated any under-track structure or
                part of an under-track structure; or
            (c) land (including any premises on land)
                on or in which documents or records
                required for, or relating to, the
                accreditation of an accredited rail
                operator are kept; or
            (d) freight centres or depots; or
            (e) maintenance depots; or
            (f) premises including an office, building
                or housing used in connection with the
                carrying out of rail operations; or
            (g) rolling stock or other vehicles
                associated with the railway; or
            (h) workshops; or




                         8
        Rail Safety Act 2006
          Act No. 9/2006
          Part 1—Preliminary
                                                        s. 3


       (i) any railway track, works or other thing
           that is part of anything mentioned in
           paragraphs (e) to (h)—
     but does not include any residential
     premises;
"registered employee organisation" means an
     organisation, of which some or all of the
     members are employees, that is registered, or
     taken to be registered, under Schedule 1B to
     the Workplace Relations Act 1996 of the
     Commonwealth;
"registered medical practitioner" means a
     registered medical practitioner within the
     meaning of the Medical Practice Act 1994;
"residential premises" means premises, or a part
     of premises, that is used for predominantly
     residential purposes;
"rolling stock" means a vehicle or a part of a
     vehicle that operates on or uses a railway
     track, and includes a locomotive, carriage,
     rail car, rail motor, light rail vehicle, train,
     tram, light inspection vehicle, road/rail
     vehicle, trolley, wagon or monorail vehicle
     but does not include a vehicle or a part of a
     vehicle designed to operate both on and off a
     railway track when the vehicle is not
     operating on a railway track;
"rolling stock operations" means—
       (a) operating rolling stock; or
      (b) designing, commissioning,
          constructing, manufacturing,
          maintaining, repairing or modifying
          rolling stock;




                  9
               Rail Safety Act 2006
                 Act No. 9/2006
                 Part 1—Preliminary
s. 3


       "rolling stock operator" means a person who is
            entitled to operate rolling stock on a railway
            because the person is—
             (a) also the rail infrastructure manager who
                 controls the railway on which the
                 rolling stock is operated; or
             (b) a party to an agreement that allows
                 them to operate rolling stock on that
                 railway; or
             (c) allowed to operate rolling stock on that
                 railway under a binding access
                 arrangement or dispute resolution
                 decision;
       "safety audit" means an inspection of the
            following to ensure that an accredited rail
            operator is complying with the requirements
            of Parts 3 and 5—
             (a) the rail infrastructure or rolling stock
                 used in carrying out accredited rail
                 operations; and
             (b) accredited rail operations; and
             (c) the performance of the employees of
                 the accredited rail operator who are
                 employed in relation to the rail
                 infrastructure or rolling stock;
       "Safety Director" means the Director, Public
           Transport Safety appointed under section 9L
           of the Transport Act 1983;
       "safety management system"—see Division 4 of
            Part 3;
       "Secretary" means the Secretary to the
           Department;




                        10
        Rail Safety Act 2006
          Act No. 9/2006
         Part 1—Preliminary
                                                      s. 3


"substance" means substance in any form
    (whether gaseous, liquid, solid or other) and
    includes material, preparation, extract and
    admixture;
"supply" includes—
      (a) in relation to goods—supply and
          resupply by way of sale, exchange,
          lease, hire or hire purchase, whether as
          principal or agent;
      (b) in relation to services—provide, grant
          or confer, whether as principal or agent;
"transport safety officer" has the same meaning
     as in the Transport Act 1983;
"Tribunal" means Victorian Civil and
    Administrative Tribunal established by the
    Victorian Civil and Administrative
    Tribunal Act 1998;
"utility" means—
      (a) an entity (whether publicly or privately
          owned) which provides, or intends to
          provide, water, sewerage, drainage,
          gas, electricity, telephone,
          telecommunication or other like
          services under the authority of an Act
          of Victoria or the Commonwealth;
      (b) a road authority within the meaning of
          the Road Management Act 2004;
"Victorian Institute of Forensic Medicine
    Director" means the Director within the
    meaning of the Coroners Act 1985;
"volunteer" means a person who is acting on a
     voluntary basis (irrespective of whether the
     person receives out-of-pocket expenses).




                 11
                   Rail Safety Act 2006
                     Act No. 9/2006
                     Part 1—Preliminary
s. 3


       (2) For the purposes of this Act, a rail infrastructure
           manager is deemed to carry out rail infrastructure
           operations supplied to the rail infrastructure
           manager by—
            (a) a rail contractor engaged directly or
                indirectly by the rail infrastructure manager
                to supply those operations to the rail
                infrastructure manager; or
            (b) a sub-contractor of the rail contractor
                referred to in paragraph (a).
       (3) For the purposes of this Act, a rolling stock
           operator is deemed to carry out rolling stock
           operations supplied to the rolling stock operator
           by—
            (a) a rail contractor engaged directly or
                indirectly by the rolling stock operator to
                supply those operations to the rolling stock
                operator; or
            (b) a sub-contractor of the rail contractor
                referred to in paragraph (a).
       (4) For the purposes of this Act—
            (a) an accredited rail operator is deemed to carry
                out rail infrastructure operations or rolling
                stock operations supplied to the accredited
                rail operator by—
                  (i) a rail contractor engaged directly or
                      indirectly by the accredited rail
                      operator to supply those operations to
                      the accredited rail operator; or
                 (ii) a sub-contractor of the rail contractor
                      referred to in sub-paragraph (i); and
            (b) rail infrastructure operations or rolling stock
                operations referred to in paragraph (a) are
                deemed to be accredited rail operations.



                            12
                Rail Safety Act 2006
                  Act No. 9/2006
                  Part 1—Preliminary
                                                                     s. 4


4. Declaration of substances to be a drug
       The Minister, by Order published in the
       Government Gazette, may declare any substance
       to be a drug for the purposes of Part 6.
       Note: An Order under this section is disallowable by either
             House of Parliament: see section 104.
5. Meaning of "control"
       A person controls rail infrastructure if the
       person—
         (a) owns the rail infrastructure and uses that
             infrastructure to—
               (i) operate rolling stock on a railway
                   forming part of that infrastructure; or
              (ii) allow another person to operate rolling
                   stock on a railway forming part of that
                   infrastructure; or
        (b) is entitled, under a right conferred by an Act
            or an agreement, to use rail infrastructure
            to—
               (i) operate rolling stock on a railway
                   forming part of that infrastructure; or
              (ii) allow another person to operate rolling
                   stock on a railway forming part of that
                   infrastructure; or
         (c) is required under a binding access
             arrangement or dispute resolution decision to
             allow another person to operate rolling stock
             on a railway forming part of rail
             infrastructure that the person—
               (i) owns; or
              (ii) uses under a right conferred by an Act
                   or an agreement.




                           13
                      Rail Safety Act 2006
                        Act No. 9/2006
                        Part 1—Preliminary
s. 6


       6. Railways to which this Act does not apply
              This Act does not apply to—
                (a) a railway in a mine that is underground, or
                    chiefly underground, and that is used in
                    connection with the performance of mining
                    operations; or
               (b) a railway that is operated solely within an
                   amusement or theme park; or
                (c) a slipway; or
               (d) a railway used only to guide a crane; or
                (e) an aerial cable operated system; or
                (f) a railway that the regulations state is a
                    railway to which this Act does not apply.
       7. Rail safety work
              For the purposes of this Act, rail safety work
              means—
                (a) driving, despatching, or any other activity
                    which is capable of controlling or affecting
                    the movement of rolling stock;
               (b) signalling, and signalling operations,
                   receiving and relaying of communications or
                   any other activity which is capable of
                   controlling or affecting the movement of
                   rolling stock;
                (c) coupling or uncoupling rolling stock;
               (d) designing, constructing, repairing,
                   modifying, maintaining, monitoring,
                   inspecting or testing of—
                     (i) rolling stock, including checking that
                         the rolling stock is working properly
                         before being used or operated; or




                               14
       Rail Safety Act 2006
         Act No. 9/2006
         Part 1—Preliminary
                                                        s. 7


     (ii) civil or electric traction infrastructure;
          or
    (iii) signalling or telecommunications
          equipment;
(e) installing components in relation to rolling
    stock;
(f) any work on or about rail infrastructure
    relating to the design, construction, repair,
    modification, maintenance, monitoring,
    inspecting or testing of rail infrastructure or
    associated works or equipment, including
    checking that the rail infrastructure is
    working properly before being used or
    operated;
(g) installing or maintaining any part of rail
    infrastructure or of the telecommunications
    system relating to it or used in connection
    with it, or of the means of supplying
    electricity directly to a railway or to any
    rolling stock using the rail infrastructure or
    to the telecommunications system;
(h) receiving and relaying of communications;
(i) any work involving certification as to the
    safety of rail infrastructure or rolling stock or
    any part or component of rail infrastructure
    or rolling stock;
(j) any work involving the decommissioning or
    disposal of rail infrastructure or rolling stock
    or any part or component of rail
    infrastructure or rolling stock;
(k) any work involving the development,
    management or monitoring of safe working
    systems for railways;




                15
                        Rail Safety Act 2006
                          Act No. 9/2006
                          Part 1—Preliminary
s. 8


                 (l) any work in relation to ensuring the safety
                     of—
                       (i) rail safety workers on a railway;
                      (ii) any persons working on or near a
                           railway, whether or not the person
                           working on or near the railway track is
                           carrying out rail safety work;
                (m) any other work that is prescribed by the
                    regulations as rail safety work—
                but does not include any work referred to in
                paragraphs (a) to (l) that is prescribed by the
                regulations not to be rail safety work.
        8. Approval of person to take blood samples for the
           purposes of Part 6
                The Victorian Institute of Forensic Medicine
                Director may, in writing, approve a person to take
                blood samples for the purposes of Part 6 if he or
                she is of the opinion that the person has the
                appropriate qualifications, training and experience
                to take such samples.
        9. Declaration of an alcohol and drug control law of
           another State or Territory to be corresponding law
                The Minister, by Order published in the
                Government Gazette, may declare a law of
                another State or a Territory of the Commonwealth
                that creates an offence substantially similar to an
                offence created by section 76(1) to be a
                corresponding law.
       10. References to contraventions of Acts to be read as
           including references to contraventions of regulations
                A reference in this Act to the commission of an
                offence against, or a contravention of, this Act
                includes a reference to the commission of an
                offence against, or a contravention of, regulations
                made under this Act.


                                  16
                 Rail Safety Act 2006
                   Act No. 9/2006
                   Part 1—Preliminary
                                                                 s. 11


11. Objects and principles of rail safety
     (1) The objects of this Act are to promote—
          (a) the safety of rail operations;
          (b) the effective management of safety risks in
              rail operations;
          (c) continuous improvement in rail safety
              management;
          (d) public confidence in the safety of rail
              transport;
          (e) the involvement of relevant stakeholders in
              rail safety.
     (2) The Parliament does not intend by Part 2 to create
         in any person any legal right or give rise to any
         civil cause of action.
12. Crown to be bound
     (1) This Act binds the Crown, not only in right of
         Victoria but also, so far as the legislative power of
         the Parliament permits, the Crown in all its other
         capacities.
     (2) To avoid doubt, the Crown is a body corporate for
         the purposes of this Act or the regulations.
                __________________




                           17
                         Rail Safety Act 2006
                           Act No. 9/2006
                     Part 2—Principles of Rail Safety
s. 13



             PART 2—PRINCIPLES OF RAIL SAFETY

        13. Principle of shared responsibility
                 Rail safety is the shared responsibility of—
                  (a) rail operators; and
                  (b) rail safety workers; and
                  (c) other persons who—
                        (i) design, commission, construct,
                            manufacture, supply, install, erect,
                            maintain, repair, modify or
                            decommission rail infrastructure or
                            rolling stock; and
                       (ii) supply rail infrastructure operations or
                            rolling stock operations to rail
                            operators; and
                  (d) the Safety Director; and
                  (e) the public.
        14. Principle of accountability for managing safety risks
                 Managing risks associated with the carrying out of
                 rail infrastructure operations or rolling stock
                 operations is the responsibility of the person best
                 able to control that risk.
        15. Principle of integrated risk management
                 If approaches to managing risks associated with
                 any particular railway have potential impacts on
                 any other railway or a railway network of which
                 the railway is a part, the best practicable rail
                 safety outcome should be sought.




                                    18
                 Rail Safety Act 2006
                   Act No. 9/2006
             Part 2—Principles of Rail Safety
                                                                 s. 16


16. Principle of enforcement
         Enforcement of this Act and regulations made
         under this Act should be undertaken for the
         purpose of—
          (a) protecting public safety;
          (b) promoting improvement in rail safety;
          (c) removing incentive for any unfair
              commercial advantage that might be derived
              from contravening the rail safety
              requirements under this Act or the
              regulations; and
          (d) influencing the attitude and behaviour of
              persons whose actions may have adverse
              impacts on rail safety.
17. Principle of transparency and consistency
         Rail regulatory decision making processes should
         be timely, transparent and nationally consistent.
18. Principle of participation, consultation and
    involvement of all affected persons
         The persons and classes of persons referred to in
         section 13 should—
          (a) participate in or be able to participate in; and
          (b) be consulted on; and
          (c) be involved in—
         the formulation and implementation of measures
         to manage risks to safety associated with rail
         operations.
                __________________




                           19
                            Rail Safety Act 2006
                              Act No. 9/2006
            Part 3—Rail Safety Duties and Other Safety Requirements
s. 19



        PART 3—RAIL SAFETY DUTIES AND OTHER SAFETY
                      REQUIREMENTS

            Division 1—The Concept of Ensuring Safety

         19. The concept of ensuring safety
              (1) To avoid doubt, a duty imposed on a person under
                  this Act or the regulations to ensure, so far as is
                  reasonably practicable, safety requires the person
                  to—
                    (a) eliminate risks to safety so far as is
                        reasonably practicable; and
                    (b) if it is not reasonably practicable to eliminate
                        risks to safety, to reduce those risks so far as
                        is reasonably practicable.
              (2) To avoid doubt, for the purposes of Divisions 2
                  and 3 or regulations made for the purposes of
                  those Divisions, regard must be had to the
                  following matters in determining what is (or was
                  at a particular time) reasonably practicable in
                  relation to ensuring safety—
                    (a) the likelihood of the hazard or risk concerned
                        eventuating;
                    (b) the degree of harm that would result if the
                        hazard or risk eventuated;
                    (c) what the person concerned knows, or ought
                        reasonably to know, about the hazard or risk
                        and any ways of eliminating or reducing the
                        hazard or risk;
                    (d) the availability and suitability of ways to
                        eliminate or reduce the hazard or risk;
                    (e) the cost of eliminating or reducing the hazard
                        or risk.



                                      20
                     Rail Safety Act 2006
                       Act No. 9/2006
     Part 3—Rail Safety Duties and Other Safety Requirements
                                                                    s. 20


Division 2—Safety Duties of Rail Infrastructure Managers
             and Rolling Stock Operators

  20. Duty of rail infrastructure managers to ensure
      safety of rail infrastructure operations
       (1) A rail infrastructure manager must, so far as is
           reasonably practicable, ensure the safety of rail
           infrastructure operations carried out by the rail
           infrastructure manager.
           Penalty: In the case of a natural person,
                    1800 penalty units;
                       In the case of a body corporate,
                       9000 penalty units.
       (2) Without limiting sub-section (1), a rail
           infrastructure manager contravenes that sub-
           section if the rail infrastructure manager fails to
           do any of the following—
             (a) provide or maintain rail infrastructure that is,
                 so far as is reasonably practicable, safe;
             (b) provide or maintain systems of rail safety
                 work that are, so far as is reasonably
                 practicable, safe;
             (c) provide, so far as is reasonably practicable,
                 such—
                   (i) information, instruction, training or
                       supervision to rail safety workers as is
                       necessary to enable those workers to
                       perform their rail safety work in a way
                       that is safe; and
                   (ii) information to persons on railway
                        premises (other than rail safety
                        workers) as is necessary to enable those
                        persons to ensure their safety.




                               21
                           Rail Safety Act 2006
                             Act No. 9/2006
           Part 3—Rail Safety Duties and Other Safety Requirements
s. 21


             (3) An offence against sub-section (1) is an indictable
                 offence.
                  Note: However, the offence may be heard and determined
                        summarily (see section 53 of, and Schedule 4 to, the
                        Magistrates' Court Act 1989).
        21. Duty of rolling stock operators to ensure safety of
            rolling stock operations
             (1) A rolling stock operator must, so far as is
                 reasonably practicable, ensure the safety of rolling
                 stock operations carried out by the rolling stock
                 operator.
                 Penalty: In the case of a natural person,
                          1800 penalty units;
                              In the case of a body corporate,
                              9000 penalty units.
             (2) Without limiting sub-section (1), a rolling stock
                 operator contravenes that sub-section if the rolling
                 stock operator fails to do any of the following—
                   (a) provide or maintain rolling stock that is, so
                       far as is reasonably practicable, safe;
                   (b) provide or maintain systems of rail safety
                       work that are, so far as is reasonably
                       practicable, safe;
                   (c) provide, so far as is reasonably practicable,
                       such—
                          (i) information, instruction, training or
                              supervision to rail safety workers as is
                              necessary to enable those workers to
                              perform their rail safety work in a way
                              that is safe; and
                         (ii) information to persons on railway
                              premises (other than rail safety
                              workers) as is necessary to enable those
                              persons to ensure their safety.



                                     22
                   Rail Safety Act 2006
                     Act No. 9/2006
   Part 3—Rail Safety Duties and Other Safety Requirements
                                                                       s. 22


     (3) An offence against sub-section (1) is an indictable
         offence.
          Note: However, the offence may be heard and determined
                summarily (see section 53 of, and Schedule 4 to, the
                Magistrates' Court Act 1989).

    Division 3—Safety Duties of Other Persons

22. Rail contractor duties
     (1) A rail contractor who—
           (a) designs, commissions, constructs,
               manufactures, supplies, installs, erects,
               maintains, repairs, modifies or
               decommissions any thing; and
           (b) knows, or ought reasonably to know, that the
               thing is to be or was used as rail
               infrastructure or rolling stock—
         must—
           (c) ensure, so far as is reasonably practicable—
                  (i) that the thing is safe if it is used for a
                      purpose for which it was designed,
                      commissioned, constructed,
                      manufactured, supplied, installed,
                      erected, maintained, repaired or
                      modified; or
                 (ii) that the thing is decommissioned
                      safely; and
           (d) carry out, or arrange the carrying out, of such
               testing and examination as may be necessary
               for compliance with this section; and




                             23
                        Rail Safety Act 2006
                          Act No. 9/2006
        Part 3—Rail Safety Duties and Other Safety Requirements
s. 22


                (e) in the case of a thing to which
                    paragraph (c)(i) applies, take such action as
                    is necessary to ensure that there will be
                    available in connection with the use of the
                    thing adequate information about—
                      (i) the use for which the thing was
                          designed, commissioned, constructed,
                          manufactured, supplied, installed,
                          erected, maintained, repaired or
                          modified; and
                      (ii) the results of any testing or examination
                           referred to in paragraph (d); and
                     (iii) any conditions necessary to ensure the
                           thing is safe if it is used for a purpose
                           for which it was designed,
                           commissioned, constructed,
                           manufactured, supplied, installed,
                           erected, maintained, repaired or
                           modified.
              Penalty: In the case of a natural person,
                       1800 penalty units;
                          In the case of a body corporate,
                          9000 penalty units.
          (2) A rail contractor who supplies rail infrastructure
              operations or rolling stock operations to a rail
              operator must, so far as is reasonably practicable,
              ensure the safety of those operations.
              Penalty: In the case of a natural person,
                       1800 penalty units;
                          In the case of a body corporate,
                          9000 penalty units.




                                  24
                Rail Safety Act 2006
                  Act No. 9/2006
Part 3—Rail Safety Duties and Other Safety Requirements
                                                                    s. 22


  (3) Without limiting sub-section (2), a rail contractor
      contravenes that sub-section if the rail contractor
      fails to do any of the following—
        (a) in the case of a rail contractor that manages
            or operates rail infrastructure, provide or
            maintain rail infrastructure that is, so far as is
            reasonably practicable, safe;
        (b) in the case of a rail contractor that operates
            rolling stock, provide or maintain rolling
            stock that is, so far as is reasonably
            practicable, safe;
        (c) provide or maintain systems of rail safety
            work that are, so far as is reasonably
            practicable, safe;
        (d) supply rail infrastructure operations or
            rolling stock operations in accordance with
            the safety management system of the rail
            operator that has engaged the rail contractor
            to supply rail infrastructure operations or
            rolling stock operations to them;
        (e) provide, so far as is reasonably practicable,
            such—
               (i) information, instruction, training or
                   supervision to rail safety workers as is
                   necessary to enable those workers to
                   perform their rail safety work in a way
                   that is safe; and
              (ii) information to persons on railway
                   premises (other than rail safety
                   workers) as is necessary to enable those
                   persons to ensure their safety.
  (4) An offence against sub-section (1) or (2) is an
      indictable offence.
       Note: However, the offence may be heard and determined
             summarily (see section 53 of, and Schedule 4 to, the
             Magistrates' Court Act 1989).


                          25
                           Rail Safety Act 2006
                             Act No. 9/2006
           Part 3—Rail Safety Duties and Other Safety Requirements
s. 23


             (5) For the purposes of sub-section (1), if the person
                 who supplies the thing—
                   (a) carries on the business of financing the
                       acquisition of the thing by customers; and
                   (b) has, in the course of that business, acquired
                       an interest in the thing solely for the purpose
                       of financing its acquisition by a customer
                       from a third person or its provision to a
                       customer by a third person; and
                   (c) has not taken possession of the thing or has
                       taken possession of it solely for the purpose
                       of passing possession to that customer—
                 the reference in sub-section (1) to the person who
                 supplies that thing is instead taken to be a
                 reference to the third person.
        23. Duties of rail safety workers
             (1) A rail safety worker, when carrying out rail safety
                 work must—
                   (a) take reasonable care for his or her own
                       safety; and
                   (b) take reasonable care for the safety of persons
                       who may be affected by the rail safety
                       worker's acts or omissions; and
                   (c) co-operate with the rail operator or rail
                       contractor employing or engaging them with
                       respect to any action taken by the rail
                       operator to comply with a requirement
                       imposed by or under this Act or the
                       regulations.
                 Penalty: 1800 penalty units.




                                     26
                  Rail Safety Act 2006
                    Act No. 9/2006
  Part 3—Rail Safety Duties and Other Safety Requirements
                                                                      s. 24


    (2) A rail safety worker, when carrying out rail safety
        work, must not intentionally or recklessly interfere
        with or misuse anything provided to them by the
        rail operator or rail contractor employing or
        engaging them—
          (a) in the interests of safety; or
          (b) under this Act or the regulations.
        Penalty: 1800 penalty units.
    (3) A rail safety worker, when carrying out rail safety
        work, must not wilfully or recklessly place the
        safety of another person on or in the immediate
        vicinity of rail infrastructure at risk.
        Penalty: 1800 penalty units.
    (4) For the purposes of sub-section (1)(a), (b) or (c),
        in determining whether a rail safety worker failed
        to take reasonable care, regard must be had to
        what the rail safety worker knew about the
        relevant circumstances.
    (5) An offence against sub-section (1), (2) or (3) is an
        indictable offence.
         Note: However, the offence may be heard and determined
               summarily (see section 53 of, and Schedule 4 to, the
               Magistrates' Court Act 1989).

     Division 4—Safety Management Systems

24. What is a safety management system?
        A safety management system is the system and
        arrangements established and maintained by a rail
        operator in accordance with this Act and
        regulations made under this Act to ensure the safe
        management of the rail operations the rail operator
        carries out.




                            27
                           Rail Safety Act 2006
                             Act No. 9/2006
           Part 3—Rail Safety Duties and Other Safety Requirements
s. 25


        25. Form and contents of safety management systems
                 A safety management system must—
                   (a) be documented; and
                   (b) provide a comprehensive and integrated
                       management system for all aspects of control
                       measures adopted, including the measures
                       adopted in accordance with section 51; and
                   (c) be so set out and expressed that its contents
                       are readily accessible and comprehensible to
                       persons who use it; and
                   (d) be prepared in accordance with the
                       regulations; and
                   (e) contain the matters and information required
                       by the regulations; and
                   (f) be kept and maintained in accordance with
                       the regulations.
        26. Rail operator must consult before establishing safety
            management system
                 A rail operator, before establishing a safety
                 management system in relation to rail operations
                 the rail operator carries out, must consult with—
                   (a) persons who work on or at railway premises
                       or with rolling stock and any registered
                       employee organisation representing them;
                       and
                   (b) every person employed by the rail operator
                       who is a health and safety representative; and
                   (c) any person with whom they have entered
                       into an interface co-ordination plan.
                 Penalty: In the case of a natural person,
                          180 penalty units;
                             In the case of a body corporate,
                             900 penalty units.


                                     28
                   Rail Safety Act 2006
                     Act No. 9/2006
   Part 3—Rail Safety Duties and Other Safety Requirements
                                                                       s. 27


27. Rail operator to have in place a safety management
    system
     (1) A rail operator must at all times have in place a
         safety management system in respect of the rail
         operations that the rail operator carries out that
         complies with the requirements of this Act and the
         regulations.
         Penalty: In the case of a natural person,
                  1800 penalty units;
                      In the case of a body corporate,
                      9000 penalty units.
     (2) An offence against sub-section (1) is an indictable
         offence.
          Note: However, the offence may be heard and determined
                summarily (see section 53 of, and Schedule 4 to, the
                Magistrates' Court Act 1989).
28. Rail operator must comply with a safety
    management system
     (1) A rail operator must comply with the safety
         management system the rail operator has in place
         in respect of the rail operations that the rail
         operator carries out.
         Penalty: In the case of a natural person,
                  1800 penalty units;
                      In the case of a body corporate,
                      9000 penalty units.
     (2) An offence against sub-section (1) is an indictable
         offence.
          Note: However, the offence may be heard and determined
                summarily (see section 53 of, and Schedule 4 to, the
                Magistrates' Court Act 1989).




                             29
                                    Rail Safety Act 2006
                                      Act No. 9/2006
                    Part 3—Rail Safety Duties and Other Safety Requirements
  s. 28A


S. 28A         28A. Provision of access to SMS to Safety Director or
inserted by         transport safety officer
No. 47/2006
s. 41.                (1) The Safety Director may request, in writing, a rail
                          operator to provide the Safety Director, or a
                          transport safety officer, access to the railway
                          premises of the rail operator, and any document or
                          equipment at those railway premises, for the
                          purpose of enabling the Safety Director, or the
                          transport safety officer, to inspect the safety
                          management system of the rail operator.
                      (2) A rail operator must comply with a request under
                          sub-section (1) within 7 days after receiving the
                          request.
                          Penalty: 15 penalty units.

              Division 5—Safety Audits and Audits of Medical Records of
                                Rail Safety Workers

                 29. Safety audits
                          The Safety Director must conduct, or cause to be
                          conducted, a safety audit of the accredited rail
                          operations of an accredited rail operator at least
                          once every 12 months, and may conduct such an
                          audit more frequently if she or he considers it
                          appropriate to do so.
                 30. Audit of medical records of rail safety workers
                      (1) The Safety Director or a transport safety officer
                          may from time to time, and in accordance with the
                          regulations (if any), conduct an audit of any
                          medical records of people employed or engaged to
                          perform rail safety work that are held by the
                          accredited rail operator or by a rail contractor of
                          the accredited rail operator.




                                              30
                   Rail Safety Act 2006
                     Act No. 9/2006
   Part 3—Rail Safety Duties and Other Safety Requirements
                                                                      s. 31


     (2) An audit under this section consists of an
         inspection of the medical records to establish
         whether the accredited rail operator or rail
         contractor has in place appropriate medical
         examination procedures and health monitoring
         systems to ensure that people employed or
         engaged by the accredited rail operator or rail
         contractor to perform rail safety work are
         medically fit for the work they are required to
         perform.
     (3) For the purposes of an audit under this section, an
         accredited rail operator or rail contractor must
         give the Safety Director or a transport safety
         officer access to the medical record of any person
         employed or engaged to perform rail safety work
         that is held by the accredited rail operator or rail
         contractor.
     (4) The regulations may establish procedures for the
         conduct of audits under this section, including
         procedures to ensure the confidentiality of
         medical records.

              Division 6—Other Matters

31. Single charge for multiple contraventions of certain
    duties
     (1) This section applies to—
           (a) a contravention of a provision of Division 2
               or 3 by a person; and
           (b) a contravention of such a provision for which
               an officer of a body corporate, partnership or
               unincorporated body or association
               (including a body corporate, partnership or
               unincorporated body or association
               representing the Crown) is liable.
          Note: For liability of officers, see Divisions 1 and 2 of
                Part 9.



                               31
                           Rail Safety Act 2006
                             Act No. 9/2006
           Part 3—Rail Safety Duties and Other Safety Requirements
s. 32


             (2) Subject to any contrary court order, two or more
                 contraventions may be charged as a single offence
                 if they arise out of the same factual circumstances.
             (3) This section does not authorise contraventions of
                 two or more provisions of Division 2 or 3 to be
                 charged as a single offence.
             (4) If two or more contraventions are charged as a
                 single offence, a single penalty only may be
                 imposed in respect of the contraventions.
        32. Civil liability not affected by Division 2 or 3
                 Nothing in Division 2 or 3 is to be construed as—
                   (a) conferring a right of action in civil
                       proceedings in respect of a contravention of
                       a provision of those Divisions; or
                   (b) conferring a defence to an action in civil
                       proceedings or otherwise affecting a right of
                       action in civil proceedings; or
                   (c) affecting the extent (if any) to which a right
                       of action arises, or civil proceedings may be
                       taken, with respect to breaches of duties or
                       obligations imposed by the regulations.
                         __________________




                                     32
                  Rail Safety Act 2006
                    Act No. 9/2006
      Part 4—Protection and Control of Rail Operations
                                                                   s. 33



 PART 4—PROTECTION AND CONTROL OF RAIL
              OPERATIONS

33. Safety Director may require utility works or rail
    operations to stop
     (1) If—
          (a) a utility is carrying out, or proposes to carry
              out, works on or in the immediate vicinity of
              rail infrastructure; and
          (b) the Safety Director reasonably believes the
              works threaten, or are likely to threaten, the
              safety of rail operations—
         the Safety Director may, subject to sub-
         section (3), give the utility a written direction to
         stop, alter or not to start the works.
     (2) If—
          (a) a rail operator is carrying out, or proposes to
              carry out, rail operations on land on which
              there are works of a utility or within the
              immediate vicinity of the works of a utility;
              and
          (b) the Safety Director reasonably believes the
              rail operations threaten, or are likely to
              threaten, the works or the safe provision by
              the utility of (as the case requires) gas,
              electricity or other like services—
         the Safety Director may give the rail operator a
         written direction to stop, alter or not to start the
         rail operations.
     (3) If the utility referred to in sub-section (1) or (2) is
         a utility that provides, or intends to provide, gas,
         electricity or other like services, the Safety
         Director must consult with Energy Safe Victoria




                            33
                          Rail Safety Act 2006
                            Act No. 9/2006
              Part 4—Protection and Control of Rail Operations
s. 34


                 before giving a direction under either of those
                 sub-sections.
             (4) A utility must not fail, or refuse, to comply with a
                 direction under sub-section (1), unless the utility
                 has a reasonable excuse.
                 Penalty: In the case of a natural person,
                          1800 penalty units;
                             In the case of a body corporate,
                             9000 penalty units.
             (5) A rail operator must not fail, or refuse, to comply
                 with a direction under sub-section (2), unless the
                 rail operator has a reasonable excuse.
                 Penalty: In the case of a natural person,
                          1800 penalty units;
                             In the case of a body corporate,
                             9000 penalty units.
             (6) An offence against sub-section (4) or (5) is an
                 indictable offence.
                 Note: However, the offence may be heard and determined
                       summarily (see section 53 of, and Schedule 4 to, the
                       Magistrates' Court Act 1989).
        34. Safety Director may direct utility works or rail
            operations to be altered, demolished or taken away
             (1) Subject to sub-section (4), if works are carried out
                 contrary to a direction under section 33(1), the
                 Safety Director may, by written notice, direct the
                 utility to alter, demolish or take away the works
                 within a specified period of time.
             (2) If rail operations are carried out contrary to a
                 direction under section 33(3), the Safety Director
                 may, by written notice, direct the rail operator
                 who carried out the rail operations to—




                                    34
             Rail Safety Act 2006
               Act No. 9/2006
 Part 4—Protection and Control of Rail Operations
                                                                 s. 34


     (a) alter, demolish or take away any rail
         infrastructure within a specified period of
         time; or
     (b) alter any rolling stock operations within a
         specified period of time.
(3) The period of time specified in a direction under
    sub-section (1) or (2) must be a reasonable period
    of time.
(4) Before giving a direction under sub-section (1) to
    a utility that provides, or intends to provide, gas,
    electricity or other like services, the Safety
    Director must consult with Energy Safe Victoria.
(5) A person given a direction under sub-section (1)
    or (2) must not fail or refuse to comply with a
    direction under (as the case requires) sub-
    section (1) or (2), unless the person has a
    reasonable excuse.
    Penalty: In the case of a natural person,
             1800 penalty units;
                In the case of a body corporate,
                9000 penalty units.
(6) An offence against sub-section (5) is an indictable
    offence.
    Note: However, the offence may be heard and determined
          summarily (see section 53 of, and Schedule 4 to, the
          Magistrates' Court Act 1989).
            __________________




                       35
                                Rail Safety Act 2006
                                  Act No. 9/2006
        Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
s. 35



        PART 5—ACCREDITATION OF RAIL INFRASTRUCTURE
               AND ROLLING STOCK OPERATIONS

                       Division 1—Preliminary Matters

           35. Purpose of accreditation
                      The purpose of accreditation under this Part is to
                      attest that a rail operator has demonstrated to the
                      satisfaction of the Safety Director that the rail
                      operator has the competence and capacity to
                      manage the risks to safety associated with the rail
                      operations for which accreditation was sought.

                           Division 2—Accreditation

           36. Offence for certain rail infrastructure managers not
               to be accredited
                      A rail infrastructure manager must not operate, or
                      allow to be operated, rolling stock on rail
                      infrastructure the rail infrastructure manager
                      controls unless the rail infrastructure manager—
                        (a) is accredited under this Part; or
                        (b) holds an exemption granted under
                            section 63; or
                        (c) is exempted by the regulations from the
                            requirement to be accredited under this Part.
                      Penalty: In the case of a natural person,
                               1000 penalty units or imprisonment for
                               12 months or both;
                                   In the case of a body corporate,
                                   2500 penalty units.




                                          36
                        Rail Safety Act 2006
                          Act No. 9/2006
Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
                                                                           s. 37


   37. Rolling stock operators must not operate rolling
       stock unless accredited
              A rolling stock operator must not operate rolling
              stock on rail infrastructure unless the rolling stock
              operator—
                (a) is accredited under this Part; or
                (b) holds an exemption granted under
                    section 63; or
                (c) is exempted by the regulations from the
                    requirement to be accredited under this Part.
              Penalty: In the case of a natural person,
                       1000 penalty units or imprisonment for
                       12 months or both;
                           In the case of a body corporate,
                           2500 penalty units.
   38. Application for accreditation
         (1) A rail infrastructure manager may apply to the
             Safety Director for accreditation in respect of the
             rail infrastructure operations the rail infrastructure
             manager carries out or intends to carry out.
         (2) A rolling stock operator may apply to the Safety
             Director for accreditation in respect of the rolling
             stock operations the rolling stock operator carries
             out or intends to carry out.
         (3) An application must be—
                (a) made in the manner and form determined by
                    the Safety Director; and
                (b) accompanied by—
                      (i) the application fee set out in the
                          regulations; and
                      (ii) any other things that are required by the
                           regulations.



                                  37
                                Rail Safety Act 2006
                                  Act No. 9/2006
        Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
s. 38


                 (4) The Safety Director may require an applicant to—
                        (a) supply further information specified by the
                            Safety Director;
                        (b) verify, by statutory declaration, information
                            supplied for the purposes of the application.
                 (5) The application, and any further information
                     supplied by the applicant under sub-section (4),
                     must be signed in accordance with sub-section (6)
                     and declared by each signatory to be true and
                     correct.
                 (6) The application must be signed—
                        (a) if the applicant is a body corporate—
                              (i) being a company within the meaning of
                                  the Corporations Act, in accordance
                                  with section 127 of that Act;
                              (ii) in any other case, by each director, or
                                   each member of the committee of
                                   management, of the body corporate;
                        (b) if the applicant is an unincorporated
                            association or body, by each member of the
                            committee of management of the association
                            or body;
                        (c) if the applicant is a partnership, by each
                            partner;
                        (d) if the applicant is an individual, by the
                            individual.
                 (7) In addition, each signatory referred to in sub-
                     section (6) must declare that he or she is not a
                     person who, under Part 2D.6 of the Corporations
                     Act, is disqualified from managing corporations.




                                          38
                        Rail Safety Act 2006
                          Act No. 9/2006
Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
                                                                           s. 39


   39. Criteria on which accreditation applications by rail
       infrastructure managers are to be assessed
              The Safety Director must accredit a rail
              infrastructure manager in respect of the rail
              infrastructure operations the rail infrastructure
              manager carries out if the Safety Director is
              satisfied that—
                (a) the rail infrastructure manager—
                      (i) is accredited in another State or a
                          Territory of the Commonwealth to
                          carry out rail infrastructure operations
                          of a similar kind in that State or
                          Territory; or
                      (ii) has the competence and capacity to
                           carry out those operations safely; and
                (b) the rail infrastructure manager has—
                      (i) taken all reasonable steps to comply
                          with Division 3; and
                      (ii) demonstrated to the Safety Director
                           that—
                           (A) the rail infrastructure manager's
                               safety management system
                               complies with Division 4 of
                               Part 3; and
                           (B) the rail infrastructure manager has
                               complied with section 26; and
                     (iii) the financial capacity, or has public risk
                           insurance arrangements, to meet
                           reasonable potential accident liabilities
                           arising from the carrying out of rail
                           infrastructure operations.




                                  39
                                Rail Safety Act 2006
                                  Act No. 9/2006
        Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
s. 40


           40. Criteria on which accreditation applications by
               rolling stock operators are to be assessed
                      The Safety Director must accredit a rolling stock
                      operator in respect of the rolling stock operations
                      the rolling stock operator carries out if the Safety
                      Director is satisfied that—
                        (a) the rolling stock operator—
                              (i) is accredited in another State or a
                                  Territory of the Commonwealth to
                                  carry out rolling stock operations of a
                                  similar kind in that State or Territory;
                                  or
                              (ii) has the competence and capacity to
                                   carry out those operations safely; and
                        (b) the rolling stock operator has demonstrated
                            to the Safety Director that—
                              (i) the rolling stock operator has taken all
                                  reasonable steps to comply with
                                  Division 3; and
                              (ii) the rolling stock operator's safety
                                   management system complies with
                                   Division 4 of Part 3; and
                             (iii) the rolling stock operator has complied
                                   with section 26; and
                        (c) the rolling stock operator has the financial
                            capacity, or has public risk insurance
                            arrangements, to meet reasonable potential
                            accident liabilities arising from the carrying
                            out of rolling stock operations; and
                        (d) unless the rolling stock operator is also the
                            rail infrastructure manager who controls the
                            railway on which the rolling stock will be
                            operated—the rolling stock operator has an
                            agreement with the rail infrastructure
                            manager who controls the railway on which


                                          40
                        Rail Safety Act 2006
                          Act No. 9/2006
Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
                                                                           s. 41


                    the rolling stock operator wishes to operate
                    particular rolling stock, and the agreement
                    includes appropriate arrangements for the
                    safe operation of the rolling stock.
   41. Accreditation following direction
              Despite section 40(d), the Safety Director may
              accredit a rolling stock operator in respect of the
              rolling stock operations the rolling stock operator
              carries out even though the rolling stock operator
              does not have the agreement referred to in
              section 40(d) if the Safety Director has directed
              the rolling stock operator under section 42 to give
              effect to any arrangements specified by the Safety
              Director.
   42. Safety Director may give directions in relation to
       rolling stock operator applicants
         (1) This section applies if—
                (a) the Safety Director is satisfied that a rolling
                    stock operator who has applied for
                    accreditation of the rolling stock operations
                    that they carry out, or intends to carry out,
                    has made a reasonable attempt to obtain the
                    agreement required by section 40(d) from the
                    rail infrastructure manager who controls the
                    railway on which the person proposes to
                    operate rolling stock; and
                (b) the Safety Director is satisfied that the rail
                    infrastructure manager is unreasonably
                    refusing to enter such an agreement, or is
                    otherwise unreasonably delaying the
                    negotiation of such an agreement.
         (2) The Safety Director may issue a written notice to
             the rolling stock operator and the rail
             infrastructure manager.




                                  41
                                Rail Safety Act 2006
                                  Act No. 9/2006
        Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
s. 42


                 (3) A notice under sub-section (2)—
                        (a) must warn the parties of the Safety Director's
                            powers under this section; and
                        (b) must warn the parties that the Safety Director
                            may issue a direction under sub-section (4) at
                            any time after a specified date; and
                        (c) must contain a copy of this section and
                            section 41; and
                        (d) may contain suggested terms concerning the
                            safe operation of the rolling stock.
                 (4) If a notice is given specifying a date under sub-
                     section (3)(b) and no agreement has been entered
                     into by or on that date, the Safety Director—
                        (a) may determine the arrangements that are to
                            apply to enable the safe operation of the
                            rolling stock; and
                        (b) may direct either or both parties to give
                            effect to the arrangements; and
                        (c) may specify by when a direction must be
                            complied with.
                 (5) A direction under sub-section (4)—
                        (a) must be in writing; and
                        (b) must set out any arrangements determined by
                            the Safety Director under that sub-section;
                            and
                        (c) must be accompanied by a copy of this
                            section and section 41.
                 (6) A person who is given a direction under sub-
                     section (4) must comply with the direction.
                      Penalty: 100 penalty units.




                                          42
                        Rail Safety Act 2006
                          Act No. 9/2006
Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
                                                                           s. 43


         (7) If a person is guilty of an offence against
             sub-section (6), the person is guilty of a further
             offence in respect of each day after the day on
             which the initial offence was committed during
             which the person fails to comply with the
             direction, and is liable to a penalty of up to
             100 penalty units for each such further offence.
         (8) This section applies regardless of when the
             relevant application for accreditation was made.
   43. Safety Director may direct applicants to co-ordinate
       and cooperate in their accreditation applications
         (1) If the Safety Director—
                (a) receives applications from 2 or more rail
                    operators for the accreditation of rail
                    operations; and
                (b) believes that the co-ordinated preparation of
                    their applications is necessary to ensure that
                    the rail operations of the applicants are
                    carried out safely—
              the Safety Director may give a direction to the rail
              operators to co-ordinate their applications.
         (2) A direction under sub-section (1) must be in
             writing.
         (3) A direction under this section may require each
             rail operator that is the subject of the direction to
             provide to another rail operator, also subject to the
             direction, information concerning any
             circumstances in relation to the carrying out of rail
             operations by them that could constitute a hazard
             in relation to the carrying out of rail operations by
             the other rail operator.
         (4) A person who is given a direction under sub-
             section (1) must comply with the direction.
              Penalty: 100 penalty units.



                                  43
                                Rail Safety Act 2006
                                  Act No. 9/2006
        Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
s. 44


                 (5) A rail operator that has co-ordinated the
                     preparation of their application in accordance with
                     this section must include in the application
                     reference to information given by the operator, or
                     given to, another rail operator in accordance with
                     a direction under this section.
                      Penalty: 100 penalty units.
           44. Time within which Safety Director must make
               decision whether to accredit
                 (1) Subject to this section, the Safety Director must
                     decide whether to accredit an applicant within
                     6 months of receiving an application from the
                     applicant.
                 (2) The Safety Director may, before the expiry of the
                     period specified in sub-section (1), decide to
                     extend the period within which he or she may
                     decide whether to accredit an applicant.
                 (3) If the Safety Director decides to extend the period
                     within which he or she may decide whether to
                     accredit an applicant, the Safety Director must
                     notify—
                        (a) the applicant of that decision and the new
                            period within which the Safety Director
                            intends to make his or her decision whether
                            to accredit the applicant; and
                        (b) the Secretary of that decision.
                 (4) A notification under sub-section (3) must be in
                     writing.
                 (5) The Secretary must include in the Department's
                     report of operations details of every decision made
                     by the Safety Director under sub-section (2) in the
                     year to which the relevant report of operations
                     relates.




                                          44
                        Rail Safety Act 2006
                          Act No. 9/2006
Part 5—Accreditation of Rail Infrastructure and Rolling Stock Operations
                                                                           s. 45


   45. Notification and reasons to be given if accreditation
       refused
         (1) If the Safety Director refuses to accredit an
             applicant, the Safety Director must—
                (a) notify the applicant—
                      (i) of that refusal; and
                      (ii) that they have a right to seek review of
                           the Safety Director's decision under
                           Part 7; and
                (b) give the applicant a statement of reasons for
                    the refusal to accredit the applicant.
         (2) A notification under sub-section (1)(a) and a
             statement of reasons under sub-section (1)(b) must
             be—
                (a) in writing; and
                (b) given to the applicant as soon as practicable
                    after the Safety Director makes his or her
                    decision to refuse to accredit the applicant.
   46. Restrictions and conditions concerning accreditation
         (1) In accrediting a rail infrastructure manager or
             rolling stock operator, the Safety Director may
             limit the accreditation in any way the Safety
             Director thinks appropriate.
         (2) Without limiting sub-section (1), the Safety
             Director may—
                (a) impose conditions on the accreditation; or
                (b) restrict the scope of the accreditation so that
                    it only applies—
                      (i) in the case of an accreditation of a rail
                          infrastructure manager, in respect of
                          part of a railway or of a particular type
                          of service;



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                              (ii) in the case of an accreditation of a
                                   rolling stock operator, in respect of part
                                   of a particular type of service or rolling
                                   stock.
                 (3) An accreditation is also subject to any condition
                     set out in the regulations that applies to the
                     accreditation.
                 (4) In addition, an accredited rail operator who is
                     accredited in another State or a Territory of the
                     Commonwealth to do anything that is similar to
                     what the operator is accredited to do in Victoria is
                     subject to the condition that he, she or it must
                     advise the Safety Director in writing immediately
                     if the operator's accreditation in the other State or
                     the Territory expires or is cancelled, suspended,
                     varied, surrendered, withdrawn or revoked.
                 (5) In addition, it is a condition of accreditation that
                     an accredited rail operator must take reasonable
                     steps to ensure that a rail safety worker who
                     carries out, or is about to carry out, rail safety
                     work for that operator—
                        (a) does not have more than the prescribed
                            concentration of alcohol in his or her blood
                            or breath; or
                        (b) is not impaired by a drug.
                 (6) If an accredited rail operator who has been
                     accredited subject to a restriction carries out any
                     action that is inconsistent with the restriction, the
                     accredited rail operator is not accredited to carry
                     out that action for the purposes of section 36
                     or 37.
                 (7) A condition requiring compliance with any
                     provision of a code of practice (whether approved
                     under section 91 or not) is of no effect.




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                                                                           s. 47


   47. How long accreditation lasts
         (1) An accreditation remains in force until—
                (a) it is cancelled or surrendered; or
                (b) the expiry of any period of time specified by
                    the Safety Director under
                    section 59(3)(b)(iii) (for disciplinary
                    reasons).
         (2) The Safety Director may give a temporary
             accreditation for a period of less than 12 months.
   48. Offence to fail to comply with conditions etc.
         (1) An accredited rail operator must comply with any
             condition or restriction imposed on the
             accreditation that the operator has been given
             notice of.
              Penalty: In the case of a natural person,
                       1800 penalty units or imprisonment for
                       12 months or both;
                           In the case of a body corporate,
                           9000 penalty units.
         (2) An accredited rail operator must comply with the
             condition of accreditation set out in section 46(5).
              Penalty: 2000 penalty units.
         (3) In any proceedings for an offence under sub-
             section (2) against an accredited rail operator, the
             fact that a rail safety worker has been found guilty
             of an offence against section 76(1)(a) or (b) while
             carrying out rail safety work for that operator is
             admissible in evidence.
         (4) An offence against sub-section (1) is an indictable
             offence.
              Note: However, the offence may be heard and determined
                    summarily (see section 53 of, and Schedule 4 to, the
                    Magistrates' Court Act 1989).




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             Division 3—Risk Management Requirements for
                             Accreditation

           49. Application of Division
                 (1) This Division applies to every rail infrastructure
                     manager and rolling stock operator who applies
                     under Division 2 to be accredited under this Part
                     in respect of (as the case requires) the rail
                     infrastructure operations or rolling stock
                     operations they carry out or intend to carry out.
                 (2) The rail infrastructure manager or rolling stock
                     operator must, as part of their application, include
                     information, in writing, that evidences that they
                     have taken all reasonable steps to comply with the
                     requirements of this Division.
           50. Identification of incidents and hazards, and risk
               assessment
                 (1) A rail infrastructure manager must—
                        (a) identify all incidents which could occur on or
                            at rail infrastructure or while carrying out rail
                            infrastructure operations; and
                        (b) identify all hazards that could cause, or
                            contribute to causing, those incidents.
                 (2) A rolling stock operator must—
                        (a) identify all incidents which could occur
                            while carrying out rolling stock operations;
                            and
                        (b) identify all hazards that could cause, or
                            contribute to causing, those incidents.




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         (3) A rail infrastructure manager or rolling stock
             operator must document all aspects of any
             identification required by (as the case requires)
             sub-section (1) or (2), including the methods and
             criteria used for identifying the incidents and
             hazards.
         (4) A rail operator must conduct a comprehensive and
             systematic assessment in relation to all possible
             incidents and all hazards identified in accordance
             with (as the case requires) sub-section (1) or (2).
         (5) An assessment must involve an examination and
             analysis of the hazards and incidents identified
             in accordance with (as the case requires) sub-
             section (1) or (2) that provide the rail operator
             with a detailed understanding of all aspects of risk
             to safety associated with the incidents,
             including—
                (a) the nature of each hazard and incident; and
                (b) the likelihood of each hazard causing an
                    incident; and
                (c) in the event of an incident occurring—
                      (i) its magnitude; and
                      (ii) the severity of its consequences of the
                           incident; and
                (d) the range of control measures considered.
         (6) In conducting an assessment, the rail operator
             must—
                (a) consider hazards cumulatively as well as
                    individually; and
                (b) use assessment methodologies (whether
                    quantitative or qualitative, or both) that are
                    appropriate to the hazards being considered.




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                 (7) The rail operator must document all aspects of the
                     assessment, and the documentation must—
                        (a) describe the methodology used in the
                            examination and analysis; and
                        (b) state all the matters specified in sub-
                            section (5)(a) to (d); and
                        (c) contain judgments as to the matters specified
                            in sub-section (5)(a) and (b), and reasons for
                            those judgments; and
                        (d) contain, in relation to the range of control
                            measures considered—
                              (i) statements as to their viability and
                                  effectiveness; and
                              (ii) reasons for selecting certain control
                                   measures and rejecting others.
                 (8) In this section—
                      "incident" includes major incident.
           51. Measures to control likelihood, magnitude and
               severity of consequences of incidents
                      A rail operator must adopt measures that eliminate
                      or, if it is not practicable to eliminate, that reduce,
                      so far as is reasonably practicable—
                        (a) the likelihood of an incident referred to in
                            section 50 occurring; or
                        (b) in the event of an incident referred to in
                            section 50 occurring—
                              (i) the magnitude of the incident; and
                              (ii) the severity of the consequences of the
                                   incident.




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                                                                           s. 52


   52. Emergency planning
         (1) A rail infrastructure manager must prepare an
             emergency plan for—
                (a) the rail infrastructure the rail infrastructure
                    manager controls; and
                (b) the rail infrastructure operations the rail
                    infrastructure manager carries out.
         (2) A rolling stock operator must prepare an
             emergency plan for the rolling stock operations
             the rolling stock operator carries out.
         (3) The emergency plan so prepared by a rail
             infrastructure manager or rolling stock operator
             must be included among the measures adopted
             under section 51.
         (4) The emergency plan must—
                (a) at least address all—                                  S. 52(4)(a)
                                                                           substituted by
                                                                           No. 47/2006
                      (i) major incidents identified under                 s. 42.
                          section 50; and
                      (ii) hazards identified under section 50 that
                           could cause or contribute to causing the
                           major incidents identified under that
                           section; and
              (ab) address and include any other matters or                S. 52(4)(ab)
                                                                           inserted by
                   things that are prescribed; and                         No. 47/2006
                                                                           s. 42.


                (b) be prepared in—
                      (i) conjunction with emergency services
                          and any other person who is prescribed;
                          and
                      (ii) accordance with the regulations; and




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                        (c) be kept and maintained in accordance with
                            the regulations; and
                        (d) be provided to the emergency services and
                            any other person who is prescribed; and
                        (e) be tested in accordance with the regulations.

          Division 4—Variation and Surrender of Accreditation

           53. Accredited rail operator may apply for variation or
               revocation of conditions and restrictions
                 (1) An accredited rail operator may apply to the
                     Safety Director to—
                        (a) vary a condition or restriction of an
                            accreditation; or
                        (b) revoke a condition or restriction of an
                            accreditation.
                 (2) An application must—
                        (a) be in writing; and
                        (b) set out the reasons for the variation or
                            revocation of the condition or restriction.
                 (3) The Safety Director must consider an application
                     he or she receives under this section.
                 (4) The Safety Director may, as the case requires—
                        (a) grant or refuse to grant the variation; or
                        (b) agree or refuse to agree to the revocation.
                 (5) If the Safety Director refuses to grant a variation
                     or refuses to agree to a revocation, the Safety
                     Director must—




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                (a) notify the accredited rail operator—
                      (i) of that refusal; and
                      (ii) that they have a right to seek review of
                           the Safety Director's decision under
                           Part 7; and
                (b) give the accredited rail operator a statement
                    of reasons for the refusal.
         (6) A notification under sub-section (5)(a) and a
             statement of reasons under sub-section (5)(b) must
             be—
                (a) in writing; and
                (b) given to the accredited rail operator as soon
                    as practicable after the Safety Director
                    makes his or her decision to refuse to grant
                    the variation or to agree to the revocation
                    (as the case requires).
   54. Application for variation of accreditation is
       required in certain cases
         (1) An accredited rail operator must apply to the
             Safety Director for a variation of the accreditation
             if the accredited rail operator proposes to make a
             change to, or to the manner of carrying out,
             accredited rail operations, being a change that
             might reasonably be expected to—
                (a) change the nature, character and scope of the
                    accredited rail operations with the result that
                    the operations are not within the competence,
                    capacity and systems for which the
                    accredited rail operator is accredited; or
                (b) require a significant variation to a risk
                    assessment conducted under section 50 if a
                    risk assessment were required to be
                    conducted at the time of the change.




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                 (2) An accredited rail operator must not make any
                     change to, or to the manner of carrying out,
                     accredited rail operations if—
                        (a) the change requires the accredited rail
                            operator to apply for variation to the
                            conditions or restrictions of the accreditation
                            to which the accredited rail operator is
                            subject; and
                        (b) the variation has not been granted.
                      Penalty: In the case of a natural person,
                               1000 penalty units or imprisonment for
                               12 months or both;
                                   In the case of a body corporate,
                                   2500 penalty units.
                 (3) An application under this section must be—
                        (a) in writing; and
                        (b) describe, as the case requires—
                              (i) the nature, character and scope of the
                                  change in rail operations which will
                                  result in the rail operations not being
                                  within the competence, capacity and
                                  systems for which the accredited rail
                                  operator is accredited; or
                              (ii) all possible major incidents and all
                                   hazards that were not identified in any
                                   previous risk assessment conducted
                                   under section 50.
                 (4) The Safety Director must consider an application
                     he or she receives under this section.
                 (5) The Safety Director may grant or refuse to grant
                     the variation.




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         (6) If the Safety Director refuses to grant a variation,
             the Safety Director must—
                (a) notify the accredited rail operator—
                      (i) of that refusal; and
                      (ii) that they have a right to seek review of
                           the Safety Director's decision under
                           Part 7; and
                (b) give the accredited rail operator a statement
                    of reasons for the refusal.
         (7) A notification under sub-section (6)(a) and a
             statement of reasons under sub-section (6)(b) must
             be—
                (a) in writing; and
                (b) given to the accredited rail operator as soon
                    as practicable after the Safety Director
                    makes his or her decision to refuse to grant
                    the variation.
         (8) The Safety Director may issue guidelines relating
             to the identification of changes that require
             applications for variation of an accreditation.
   55. Safety Director may vary, revoke or impose new
       conditions or restrictions of an accreditation on own
       initiative
         (1) The Safety Director may at any time on his or her
             own initiative—
                (a) vary or revoke a condition or restriction of
                    an accreditation; or
                (b) impose a new condition or restriction.
         (2) Before taking action under this section, the Safety
             Director must—
                (a) give the accredited rail operator written
                    notice of the action that the Safety Director
                    proposes to take; and


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                        (b) allow the accredited rail operator to make
                            written representations about the intended
                            action within 10 business days (or any other
                            period that the Safety Director and the
                            accredited rail operator agree upon).
                 (3) Sub-section (2) does not apply if the Safety
                     Director considers it necessary to take immediate
                     action in the interests of public safety.
                 (4) The Safety Director must—
                        (a) give the accredited rail operator—
                              (i) details of any action taken under sub-
                                  section (1); and
                              (ii) details of any change to the conditions
                                   or restrictions of the accreditation that
                                   occur as a result of any amendment to
                                   the regulations; and
                             (iii) a statement of reasons for any action
                                   taken under sub-section (1); and
                        (b) notify the accredited rail operator that the
                            operator has a right to seek review of the
                            Safety Director's decision under Part 7.
                 (5) The Safety Director must give the details, the
                     statement of reasons and notice under sub-
                     section (4) in writing.
           56. Surrender of accreditation
                 (1) An accredited rail operator may request the Safety
                     Director to consent to the surrender of the
                     accredited rail operator's accreditation.
                 (2) A request must be in writing.
                 (3) On receipt of a request, the Safety Director may
                     consent to the surrender of the accreditation.




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         (4) If the Safety Director refuses to consent to the
             surrender of an accreditation, the Safety Director
             must—
                (a) notify the accredited rail operator—
                      (i) of that refusal; and
                      (ii) that they have a right to seek review of
                           the Safety Director's decision under
                           Part 7; and
                (b) give the rail operator a statement of reasons
                    for the refusal.
         (5) A notification under sub-section (4)(a) and a
             statement of reasons under sub-section (4)(b) must
             be—
                (a) in writing; and
                (b) given to the rail operator as soon as
                    practicable after the Safety Director makes
                    his or her decision to refuse consent to the
                    surrender of the accreditation.
   57. False or misleading information
         (1) A person must not in, or in relation to an
             application for—
                (a) an accreditation; or
                (b) a variation of accreditation; or
                (c) a variation of a condition or restriction of an
                    accreditation—
              give information that is false or misleading in a
              material detail.
              Penalty: In the case of a natural person,
                       60 penalty units or 6 months
                       imprisonment or both;
                           In the case of a body corporate,
                           300 penalty units.



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                 (2) In a proceeding for an offence against sub-
                     section (1), it is a defence to the charge for the
                     accused to prove that at the time at which the
                     offence is alleged to have been committed, the
                     accused believed on reasonable grounds—
                        (a) in the case of false information—that the
                            information was true; or
                        (b) in the case of misleading information—that
                            the information was not misleading.

                        Division 5—Disciplinary Action

           58. Power of immediate suspension
                 (1) The Safety Director may, subject to and in
                     accordance with the regulations (if any),
                     immediately suspend an accreditation if the Safety
                     Director considers it necessary to do so—
                        (a) in the interests of public safety; or
                        (b) to protect the safety of rail safety workers.
                 (2) The Safety Director may immediately suspend an
                     accreditation under this section without holding an
                     inquiry under section 59.
                 (3) A suspension under this section may be for a
                     specified period or until a specified event or until
                     a further determination is made by the Safety
                     Director.
                 (4) An accredited rail operator whose accreditation
                     has been suspended under this section may, by
                     notice served on the Safety Director, require the
                     Safety Director to hold an inquiry under
                     section 59.
                 (5) The Safety Director must commence an inquiry
                     under section 59 within 7 days after the service on
                     him or her of a notice under sub-section (4).




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         (6) If an inquiry is held under section 59, a
             suspension under this section, if then still in
             effect, ceases to have effect on the completion of
             that inquiry.
         (7) Nothing in this section limits any power of the
             Safety Director under section 59.
   59. Disciplinary action against an accredited rail
       operator
         (1) The Safety Director may hold an inquiry for the
             purpose of determining whether proper cause
             exists for taking disciplinary action against a
             relevant person.
         (2) There is proper cause for taking disciplinary
             action against a relevant person if the relevant
             person—
                (a) has contravened this Act or Division 4B of
                    Part VII of the Transport Act 1983
                    (regardless of whether or not the person has
                    been prosecuted in relation to that
                    contravention); or
                (b) has not complied with Division 4 of Part 3;
                    or
                (c) does not have the financial capacity, or
                    public risk insurance arrangements, to meet
                    reasonable potential accident liabilities
                    arising from the carrying out of rail
                    infrastructure operations or rolling stock
                    operations (as the case requires); or
                (d) has not demonstrated to the Safety Director
                    that the person is able to carry out rail
                    infrastructure operations or rolling stock
                    operations (as the case requires) safely; or
                (e) obtained the accreditation improperly; or
                (f) has not paid any fee required by the
                    regulations.


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                 (3) If, following an inquiry, the Safety Director is
                     satisfied that proper cause for taking disciplinary
                     action against the relevant person exists, the
                     Safety Director may do one or more of the
                     following—
                        (a) reprimand the relevant person;
                        (b) if the relevant person is an accredited rail
                            operator—
                              (i) warn the person that should further
                                  proper cause for taking disciplinary
                                  action be found to exist, the person may
                                  be disqualified from holding an
                                  accreditation;
                              (ii) impose one or more new conditions or
                                   restrictions of the accreditation;
                             (iii) impose an expiry date on the
                                   accreditation;
                             (iv) suspend the accreditation for a
                                  specified period or until a specified
                                  event or until a further determination is
                                  made by the Safety Director;
                              (v) cancel the accreditation immediately or
                                  with effect from a specified later date;
                        (c) disqualify the relevant person from holding
                            an accreditation—
                              (i) until a specified event; or
                              (ii) until a further determination is made by
                                   the Safety Director.
                 (4) In this section—
                      "relevant person" means an accredited rail
                           operator or a person who was an accredited
                           rail operator.




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   60. Procedure and powers concerning disciplinary
       inquiries
         (1) In exercising his or her powers under section 59,
             the Safety Director—
                (a) must act fairly and according to equity and
                    good conscience without regard to
                    technicalities or legal forms; and
                (b) is not required to conduct himself or herself
                    in a formal manner; and
                (c) is not bound by rules or practice as to
                    evidence but may inform himself or herself
                    in relation to any matter in any manner that
                    he or she thinks fit.
         (2) For the purpose of, and in connection with, any
             inquiry under section 59, the Safety Director has
             the powers conferred by sections 14, 15, 16, 20,
             20A and 21A of the Evidence Act 1958 on a
             board appointed by the Governor in Council and
             those sections apply as if the Safety Director was
             the sole member of the board.
         (3) The procedure of the Safety Director on or in
             connection with an inquiry under section 59 is in
             his or her discretion.
   61. Effect of suspension
              A person whose accreditation is suspended is not
              accredited during the period of suspension.




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  s. 62


                                 Division 6—Miscellaneous

                 62. Accreditation cannot be transferred
                       (1) An accreditation—
                              (a) is personal to the person who holds it;
                              (b) is not capable of being transferred or
                                  assigned to any other person or otherwise
                                  dealt with by the person who holds it;
                              (c) does not vest by operation of law in any
                                  other person.
                       (2) A purported transfer, assignment or lease of an
                           accreditation and any other purported dealing with
                           an accreditation by the person who holds it is of
                           no effect.
                       (3) This section has effect despite anything in any Act
                           or rule of law to the contrary.
S. 62A         62A. Co-ordination between Safety Director and
inserted by
No. 47/2006         corresponding Rail Safety Regulator
s. 43.
                       (1) This section applies if the Safety Director receives
                           an application for accreditation under Division 2,
                           or for variation of accreditation or the conditions
                           or restrictions of accreditation under Division 4,
                           that indicates that the applicant is accredited, or is
                           seeking accreditation in another State or a
                           Territory of the Commonwealth under a
                           corresponding law to carry out rail operations of a
                           similar kind to those the subject of the application
                           under Division 2 or 4.
                       (2) The Safety Director must, as soon as possible and
                           before deciding whether or not to grant the
                           application, consult with the relevant
                           corresponding Rail Safety Regulator, or
                           Regulators, in relation to the application with a
                           view to the outcome of the application being



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              consistent with the outcome of applications made
              in the other jurisdiction or jurisdictions.
         (3) The Safety Director, in complying with sub-
             section (2), must take into account any guidelines
             prepared under sub-section (5).
         (4) If the Safety Director does not, in relation to an
             application, act consistently with the provisions of
             any guidelines prepared under sub-section (5), the
             Safety Director must give the applicant reasons
             for not so acting.
         (5) The Minister may prepare guidelines about the
             manner of the consultation the Safety Director is
             required to undertake under sub-section (2).
         (6) In this section—
              "corresponding law" means—
                      (a) the law of another State or a Territory
                          of the Commonwealth corresponding,
                          or substantially corresponding, to this
                          Act; or
                      (b) a law of another State or a Territory of
                          the Commonwealth that is declared
                          under the regulations to be a
                          corresponding law, whether or not the
                          law corresponds, or substantially
                          corresponds, to this Act;
              "corresponding Rail Safety Regulator"
                  means—
                      (a) the person who, or body that, has
                          functions or powers under a
                          corresponding law that substantially
                          correspond to the functions and powers
                          of the Safety Director under this Part;
                          or




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                              (b) a person prescribed by the regulations
                                  as the corresponding Rail Safety
                                  Regulator for another State or a
                                  Territory of the Commonwealth for the
                                  purposes of this Act.
           63. Accreditation exemptions for private siding rail
               operations
                 (1) The following persons may apply to the Safety
                     Director for an exemption from the requirement to
                     be accredited under this Part—
                        (a) a rail infrastructure manager who carries out
                            rail infrastructure operations using or in
                            relation to a private siding;
                        (b) a rolling stock operator who carries out
                            rolling stock operations in a private siding.
                 (2) An application under this section must be—
                        (a) in writing; and
                        (b) accompanied by—
                              (i) an interface co-ordination plan that
                                  complies with the prescribed
                                  requirements and identifies the persons
                                  responsible for the construction,
                                  operation and maintenance of the
                                  private siding; and
                              (ii) such other information as the Safety
                                   Director reasonably requires to enable
                                   the application to be considered; and
                             (iii) the prescribed fee.




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         (3) On receipt of an application under this section, the
             Safety Director may grant or refuse to grant an
             exemption.
         (4) In deciding whether to exempt a rail infrastructure
             manager or rolling stock operator under sub-
             section (3), the Safety Director must have regard
             to—
                (a) the scale and complexity of the private
                    siding; and
                (b) the extent of the railway track layout and
                    other rail infrastructure of the private siding;
                    and
                (c) the risks to safety associated with the
                    operation and use of the private siding; and
                (d) the interface co-ordination plan
                    accompanying the application; and
                (e) any other matters that the Safety Director
                    considers relevant.
         (5) An exemption granted under this section is subject
             to the terms, conditions and limitations specified
             in the exemption that are—
                (a) imposed by the Safety Director; or
                (b) prescribed by the regulations.
         (6) A person granted an exemption under this section
             must comply with the terms, conditions and
             limitations that are specified in the exemption.
              Penalty: In the case of a natural person,
                       1000 penalty units or imprisonment for
                       12 months or both;
                           In the case of a body corporate,
                           2500 penalty units.




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                 (7) If the Safety Director refuses to grant an
                     exemption, the Safety Director must—
                        (a) notify the applicant—
                              (i) of that refusal; and
                              (ii) that they have a right to seek review of
                                   the Safety Director's decision under
                                   Part 7; and
                        (b) give the applicant a statement of reasons for
                            the refusal.
                 (8) A notification under sub-section (7)(a) and a
                     statement of reasons under sub-section (7)(b) must
                     be—
                        (a) in writing; and
                        (b) given to the applicant as soon as practicable
                            after the Safety Director makes his or her
                            decision to refuse to grant the exemption.
                 (9) The Safety Director may issue guidelines as to
                     how the Safety Director will have regard to the
                     criteria set out in sub-section (4).
           64. Revocation of accreditation exemptions for private
               siding rail operations
                 (1) If the Safety Director considers that a private
                     siding—
                        (a) used by an exempted rail infrastructure
                            manager for the carrying out of rail
                            infrastructure operations; or
                        (b) in relation to which an exempted rail
                            infrastructure manager carries out rail
                            infrastructure operations; or




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                (c) in which an exempted rolling stock operator
                    carries out rolling stock operations—
              no longer meets the criteria set out in section
              63(4), the Safety Director may, by notice, revoke
              (as the case requires) the exempted rail
              infrastructure manager's or exempted rolling stock
              operator's exemption.
         (2) A notice must be—
                (a) in writing; and
                (b) given to the exempted rail infrastructure
                    manager or exempted rolling stock operator
                    as soon as practicable after the Safety
                    Director makes his or her decision to revoke
                    the exemption.
         (3) A revocation takes effect on the date stated in the
             notice.
         (4) In this section—
              "exempted rail infrastructure manager" means
                  a rail infrastructure manager who holds an
                  exemption granted under section 63;
              "exempted rolling stock operator" means a
                  rolling stock operator who holds an
                  exemption granted under section 63;
              "exemption" means an exemption granted under
                  section 63.




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           65. Accredited rail operators must demonstrate ongoing
               compliance with risk management requirements
                 (1) An accredited rail operator must, within the
                     relevant period, demonstrate to the Safety Director
                     that the accredited rail operator has taken all
                     reasonable steps to comply with the requirements
                     in sections 50 to 52.
                 (2) In this section—
                      "relevant period" means—
                              (a) 5 years after the date on which the
                                  accredited rail operator was accredited
                                  in respect of the rail operations the
                                  operator carries out or any other period
                                  that is prescribed for the purposes of
                                  this paragraph; and
                              (b) every 5 years or any other period that is
                                  prescribed thereafter.
           66. Exemption from ongoing compliance with risk
               management requirements
                 (1) In this section—
                      "accredited tourist and heritage railway
                          operator" means an accredited rail operator
                          declared under sub-section (10) to be an
                          accredited tourist and heritage railway
                          operator for the purposes of this section.
                 (2) An accredited tourist and heritage railway
                     operator may apply to the Safety Director for an
                     exemption from the requirement to comply with
                     section 65.




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         (3) An application under this section must be—
                (a) in writing; and
                (b) accompanied by—
                      (i) such other information as the Safety
                          Director reasonably requires to enable
                          the application to be considered; and
                      (ii) the prescribed fee.
         (4) On receipt of an application under this section, the
             Safety Director may grant or refuse to grant an
             exemption.
         (5) In deciding whether to grant an exemption, the
             Safety Director must have regard to—
                (a) the scale and complexity of the accredited
                    rail operations carried out by the accredited
                    tourist and heritage railway operator; and
                (b) the extent of the railway track layout and
                    other rail infrastructure used for the carrying
                    out by the accredited tourist and heritage
                    railway operator of accredited rail
                    operations; and
                (c) the risks to safety associated with the
                    carrying out by the accredited tourist and
                    heritage railway operator of accredited rail
                    operations; and
                (d) any other matters that the Safety Director
                    considers relevant.
         (6) An exemption granted under this section is subject
             to the terms, conditions and limitations specified
             in the exemption that are—
                (a) imposed by the Safety Director; or
                (b) prescribed by the regulations.




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                 (7) If the Safety Director refuses to grant an
                     exemption, the Safety Director must—
                        (a) notify the applicant—
                              (i) of that refusal; and
                              (ii) that they have a right to seek review of
                                   the Safety Director's decision under
                                   Part 7; and
                        (b) give the applicant a statement of reasons for
                            the refusal.
                 (8) A notification under sub-section (7)(a) and a
                     statement of reasons under sub-section (7)(b) must
                     be—
                        (a) in writing; and
                        (b) given to the applicant as soon as practicable
                            after the Safety Director makes his or her
                            decision to refuse to grant the exemption.
                 (9) The Safety Director may issue guidelines as to
                     how the Safety Director will have regard to the
                     criteria set out in sub-section (5).
                (10) The Minister, by notice published in the
                     Government Gazette, may declare an accredited
                     rail operator to be an accredited tourist and
                     heritage railway operator if the Minister considers
                     that the operator is carrying out accredited rail
                     operations for the purpose of operating a tourist
                     and heritage railway.
           67. Accredited rail operator must investigate railway
               accidents and incidents
                 (1) An accredited rail operator must investigate and
                     prepare a report into any railway accident or
                     incident that may affect accredited rail operations
                     the operator carries out.
                 (2) A report under sub-section (1) must be prepared in
                     accordance with the regulations.


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   68. Accredited rail operator must put into effect
       emergency plan without delay
         (1) An accredited rail operator who has prepared an
             emergency plan must put the emergency plan into
             effect without delay if—
                (a) a major incident occurs; or
                (b) an incident occurs which could reasonably
                    be expected to lead to a major incident.
              Penalty: In the case of a natural person,
                       1800 penalty units or imprisonment for
                       12 months or both;
                           In the case of a body corporate,
                           9000 penalty units.
         (2) An offence against sub-section (1) is an indictable
             offence.
              Note: However, the offence may be heard and determined
                    summarily (see section 53 of, and Schedule 4 to, the
                    Magistrates' Court Act 1989).
   69. Accredited rail operator must notify emergency
       services and others of a major incident
         (1) An accredited rail operator must, immediately
             after becoming aware of the occurrence of a major
             incident, notify—
                (a) the emergency services with whom the
                    accredited rail operator prepared the
                    emergency plan in conjunction with; and
                (b) the Safety Director; and




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                        (c) the Chief Investigator—
                      of the occurrence of the major incident.
                      Penalty: In the case of a natural person,
                               1800 penalty units or imprisonment for
                               12 months or both;
                                   In the case of a body corporate,
                                   9000 penalty units.
                 (2) An offence against sub-section (1) is an indictable
                     offence.
                      Note: However, the offence may be heard and determined
                            summarily (see section 53 of, and Schedule 4 to, the
                            Magistrates' Court Act 1989).
                              __________________




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                                                                   s. 70



PART 6—ALCOHOL AND OTHER DRUG CONTROLS FOR
           RAIL SAFETY WORKERS

             Division 1—Preliminary Matters

  70. Definitions
            In this Part—
            "accident" means an occurrence on a railway that
                 involves the death or injury of a person or
                 damage to property arising out of the
                 operation of rolling stock;
            "irregular incident" means an occurrence on a
                 railway that is not an accident but involves a
                 breach of the operating rules or procedures
                 of the railway.
  71. Presumptions in relation to presence of
      concentrations of alcohol and other drugs
       (1) For the purposes of this Part if it is established
           that at any time within 3 hours after an alleged
           offence against section 76(1)(a), a certain
           concentration of alcohol was present in the blood
           or breath of the rail safety worker charged with
           the offence it must be presumed, until the contrary
           is proved, that not less than that concentration of
           alcohol was present in the worker's blood or
           breath (as the case requires) at the time at which
           the offence is alleged to have been committed.
       (2) For the purposes of this Part if it is established
           that at any time within 3 hours after an alleged
           offence against section 76(1)(b), a certain drug
           was present in the body of the rail safety worker
           charged with the offence it must be presumed,
           until the contrary is proved, that that drug was
           present in the worker's body at the time at which
           the offence is alleged to have been committed.



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             (3) For the purposes of an alleged offence against
                 section 76(1)(g) or (h) it must be presumed that
                 the concentration of alcohol indicated by an
                 analysis to be present in the breath of the rail
                 safety worker charged or found by an analyst to be
                 present in the sample of blood taken from the
                 worker charged (as the case requires) was not due
                 solely to the consumption of alcohol after having
                 carried out rail safety work unless the contrary is
                 proved by the worker charged on the balance of
                 probabilities by sworn evidence given by him or
                 her which is corroborated by the material evidence
                 of another person.
             (4) For the purposes of an alleged offence against
                 section 76(1)(b) it must be presumed that a drug
                 found by an analyst to be present in the sample of
                 blood or urine taken from the rail safety worker
                 charged was not due solely to the consumption or
                 use of that drug after carrying out rail safety work
                 unless the contrary is proved by the worker
                 charged on the balance of probabilities by sworn
                 evidence given by him or her which is
                 corroborated by the material evidence of another
                 person.
        72. When a rail safety worker is not to be taken to be
            impaired
                  For the purposes of sections 79 and 80, a rail
                  safety worker is not to be taken to be impaired
                  unless his or her behaviour or appearance is such
                  as to give rise to a reasonable suspicion that he or
                  she is unable to carry out rail safety work
                  properly.




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73. When a rail safety worker is to be regarded as being
    about to carry out rail safety work
          For the purposes of this Part, a rail safety worker
          is to be regarded as being about to carry out rail
          safety work if the worker has arrived at his or her
          place of work but has not yet begun work.
74. Findings of guilt and convictions and subsequent
    offences
          If a rail safety worker who is found guilty or
          convicted of an offence against any one of the
          paragraphs of section 76(1) or against that section
          has at any time been found guilty or convicted
          of—
            (a) an offence against the same or any other of
                those paragraphs or against that section; or
           (b) an offence against any corresponding law—
          the finding of guilt, or conviction, of the offence
          against that paragraph or section is to be taken to
          be a conviction for a subsequent offence.
75. Entry into residential premises not allowed without
    a warrant
          For the avoidance of doubt it is declared that
          nothing in this Part, or Division 4B of Part VII of
          the Transport Act 1983, requires a person who is
          in residential premises to allow a transport safety
          officer or a member of the police force to enter
          that premises without a warrant.




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             Division 2—Offences, Testing and Analysis

        76. Offences involving alcohol
             (1) A rail safety worker is guilty of an offence if he or
                 she—
                    (a) carries out rail safety work while more than
                        the prescribed concentration of alcohol is
                        present in his or her blood or breath; or
                   (b) carries out rail safety work while impaired
                       by a drug; or
                    (c) refuses to undergo a preliminary breath test
                        in accordance with section 77 when required
                        under that section to do so; or
                   (d) refuses to undergo an assessment of drug
                       impairment in accordance with section 79
                       when required under that section to do so or
                       refuses to comply with any other
                       requirement made under section 79(1); or
                    (e) refuses to comply with a requirement made
                        under section 78(1), (2) or (9); or
                    (f) refuses to comply with a requirement made
                        under section 80(1); or
                   (g) within 3 hours after having carried out rail
                       safety work furnishes a sample of breath for
                       analysis by a breath analysing instrument
                       under section 78 and—
                          (i) the result of the analysis as recorded or
                              shown by the breath analysing
                              instrument indicates that more than the
                              prescribed concentration of alcohol is
                              present in his or her breath; and




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                 (ii) the concentration of alcohol indicated
                      by the analysis to be present in his or
                      her breath was not due solely to the
                      consumption of alcohol after having
                      carried out the rail safety work; or
           (h) has had a sample of blood taken from him or
               her in accordance with section 78 or 82
               within 3 hours after having carried out rail
               safety work and—
                  (i) the sample has been analysed within
                      12 months after it was taken by a
                      properly qualified analyst within the
                      meaning of section 83 and the analyst
                      has found that at the time of analysis
                      more than the prescribed concentration
                      of alcohol was present in that sample;
                      and
                 (ii) the concentration of alcohol found by
                      the analyst to be present in that sample
                      was not due solely to the consumption
                      of alcohol after having carried out the
                      rail safety work.
     (2) A rail safety worker may be convicted or found
         guilty of an offence under sub-section (1)(c), (d),
         (e) or (f) even if—
            (a) in the case of an offence under paragraph (c),
                a prescribed device was not presented to the
                worker at the time of the making of the
                requirement; and
           (b) in the case of an offence under
               paragraph (d)—
                  (i) a requirement to undergo an assessment
                      of drug impairment was not made at a
                      place where such an assessment could
                      have been carried out; and



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                         (ii) a person authorised to carry out an
                              assessment of drug impairment was not
                              present at the place where the
                              requirement was made at the time it
                              was made; and
                    (c) in the case of an offence under
                        paragraph (e)—
                          (i) a breath analysing instrument was not
                              available at the place where the
                              requirement was made at the time it
                              was made; and
                         (ii) a person authorised to operate a breath
                              analysing instrument was not present at
                              the place where the requirement was
                              made at the time it was made; and
                        (iii) the person requiring a sample of blood
                              had not nominated a registered medical
                              practitioner or approved health
                              professional to take the sample; and
                         (iv) a registered medical practitioner or
                              approved health professional was not
                              present at the place where the
                              requirement was made at the time it
                              was made; and
                   (d) in the case of an offence under
                       paragraph (f)—
                          (i) the person requiring a sample of blood
                              had not nominated a registered medical
                              practitioner or approved health
                              professional to take the sample; and
                         (ii) the person requiring a sample of urine
                              had not nominated a registered medical
                              practitioner or approved health
                              professional to whom the sample was to
                              be furnished for analysis; and



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                (iii) a registered medical practitioner or
                      approved health professional was not
                      present at the place where the
                      requirement was made at the time it
                      was made.
     (3) To avoid doubt, in proceedings for an offence
         under sub-section (1)(e) a state of affairs or
         circumstance referred to in sub-section (2)(c)(i)
         or (ii) is not a reason of a substantial character for
         a refusal for the purposes of section 78(8).
     (4) A rail safety worker who is guilty of an offence
         under sub-section (1) is liable—
            (a) in the case of a first offence, to a fine not
                exceeding 12 penalty units; and
           (b) in the case of a subsequent offence, to a fine
               not exceeding 25 penalty units or to
               imprisonment for a term of not more than
               3 months.
     (5) In proceedings for an offence under sub-section
         (1)(b), proof that—
            (a) the rail safety worker was carrying out rail
                safety work; and
           (b) one or more drugs were present in the rail
               safety worker's body at the time at which he
               or she carried out rail safety work; and
            (c) the behaviour of the rail safety worker on an
                assessment of drug impairment carried out
                under section 79 was consistent with the
                behaviour usually associated with a person
                who has consumed or used that drug or those
                drugs; and




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                   (d) the behaviour usually associated with a
                       person who has consumed or used that drug
                       or those drugs would result in the person
                       being unable to carry out rail safety work
                       properly—
                  is, in the absence of evidence to the contrary,
                  proof that the rail safety worker carried out rail
                  safety work while impaired by a drug.
             (6) It is a defence to a charge under sub-section (1)(g)
                 for the person charged to prove that the breath
                 analysing instrument used was not on that
                 occasion in proper working order or properly
                 operated.
             (7) It is a defence to a charge under sub-section (1)(h)
                 for the person charged to prove that the result of
                 the analysis was not a correct result.
             (8) In any proceedings for an offence under sub-
                 section (1)(g) or (h) evidence as to the effect of
                 the consumption of alcohol on the defendant is
                 admissible for the purpose of rebutting the
                 presumption created by section 71(3) but is
                 otherwise inadmissible.
             (9) On convicting a rail safety worker, or finding a
                 rail safety worker guilty, of an offence under sub-
                 section (1) the court must cause to be entered in
                 the records of the court—
                    (a) in the case of an offence under sub-section
                        (1)(a), the level of concentration of alcohol
                        found to be present in that person's blood or
                        breath; and
                   (b) in the case of an offence under sub-section
                       (1)(g), the level of concentration of alcohol
                       found to be recorded or shown by the breath
                       analysing instrument; and




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            (c) in the case of an offence under sub-section
                (1)(h), the level of concentration of alcohol
                found to be present in the sample of blood.
77. Preliminary breath tests
     (1) A transport safety officer may at any time require
         a rail safety worker whom he or she believes on
         reasonable grounds is about to carry out rail safety
         work to undergo a preliminary breath test by a
         prescribed device before carrying out that work.
     (2) A transport safety officer or, subject to sub-
         section (3), a member of the police force may
         require—
            (a) a rail safety worker whom he or she believes
                on reasonable grounds—
                  (i) is carrying out rail safety work; and
                 (ii) has alcohol present in his or her breath;
                      or
           (b) a rail safety worker whom he or she believes
               on reasonable grounds has within the last
               3 preceding hours carried out rail safety
               work on a railway when an accident or
               irregular incident occurred involving the rail
               safety worker—
          to undergo a preliminary breath test by a
          prescribed device.
     (3) A member of the police force only has power to
         require a rail safety worker to undergo a
         preliminary breath test under sub-section (2)(b) in
         the case of an irregular incident if—
            (a) he or she has contacted a person nominated
                for the purposes of this provision by the
                person or body responsible for the operation
                of the railway; and




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                   (b) the person contacted has confirmed that an
                       irregular incident did occur and has agreed
                       that it is appropriate to conduct a preliminary
                       breath test; and
                    (c) that person is unable or likely to be unable,
                        after making all reasonable efforts, to
                        arrange for a preliminary breath test to be
                        conducted on the rail safety worker by a
                        transport safety officer within the 3 hours
                        period.
             (4) A rail safety worker required to undergo a
                 preliminary breath test must do so by exhaling
                 continuously into the device to the satisfaction of
                 the transport safety officer or member of the
                 police force.
             (5) A rail safety worker is not obliged to undergo a
                 preliminary breath test if more than 3 hours have
                 passed since the rail safety worker last carried out
                 rail safety work.
             (6) A rail safety worker who, in the course of a period
                 of duty is unexpectedly required to carry out rail
                 safety work, may request a transport safety officer
                 to conduct on him or her a preliminary breath test
                 by a prescribed device.
             (7) A transport safety officer must comply with a
                 request made under sub-section (6).
                  Penalty: 12 penalty units.
             (8) The result of a preliminary breath test conducted
                 under this section is not admissible against the rail
                 safety worker tested in a proceeding for an
                 offence against section 76(1).




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     (9) However, the result of a preliminary breath test
         that was conducted under this section is
         admissible against the rail safety worker tested in
         a disciplinary proceeding unless the test was
         conducted at the request of the rail safety worker
         under sub-section (6).
    (10) A member of the police force who conducts a
         preliminary breath test under this section must
         ensure that the operation of the railway is
         disrupted no more than is reasonably necessary as
         a result of the testing.
78. Breath analysis
     (1) If a rail safety worker undergoes a preliminary
         breath test when required by a transport safety
         officer or a member of the police force under
         section 77 to do so and—
            (a) the test in the opinion of the transport safety
                officer or member of the police force in
                whose presence it is made indicates that the
                rail safety worker's breath contains alcohol;
                or
           (b) the rail safety worker, in the opinion of the
               transport safety officer or member of the
               police force, refuses or fails to carry out the
               test in the manner specified in
               section 77(4)—
          any transport safety officer or, if the requirement
          for the preliminary breath test was made by a
          member of the police force, any member of the
          police force may require the rail safety worker to
          furnish a sample of breath for analysis by a breath
          analysing instrument and for that purpose may
          further require the rail safety worker to
          accompany a transport safety officer or member of
          the police force to a police station or other place
          where the sample of breath is to be furnished and



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                  to remain there until the rail safety worker has
                  furnished the sample of breath and been given the
                  certificate referred to in sub-section (5) or until
                  3 hours after the carrying out of the rail safety
                  work, whichever is sooner.
             (2) A transport safety officer or member of the police
                 force may require any rail safety worker who is
                 required to undergo a drug assessment under
                 section 79 to furnish a sample of breath for
                 analysis by a breath analysing instrument and
                 may, for that purpose, require the rail safety
                 worker to remain at the place at which the rail
                 safety worker is required to remain for the
                 purposes of the drug assessment until—
                    (a) the person has furnished the sample of breath
                        and been given the certificate referred to in
                        sub-section (5) and the drug assessment has
                        been carried out; or
                   (b) 3 hours after the carrying out of rail safety
                       work—
                  whichever is the sooner.
             (3) The person who required a sample of breath under
                 sub-section (1) or (2) may require the rail safety
                 worker who furnished it to furnish one or more
                 further samples if it appears to him or her that the
                 breath analysing instrument is incapable of
                 measuring the concentration of alcohol present in
                 the sample, or each of the samples, previously
                 furnished in grams per 210 litres of exhaled air
                 because the amount of sample furnished was
                 insufficient or because of a power failure or
                 malfunctioning of the instrument or for any other
                 reason whatsoever.




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     (4) A breath analysing instrument must be operated
         by a person authorised to do so by the Chief
         Commissioner of Police.
     (5) As soon as practicable after a sample of a rail
         safety worker's breath is analysed by means of a
         breath analysing instrument the person operating
         the instrument must sign and give to the rail safety
         worker whose breath has been analysed a
         certificate containing the prescribed particulars
         produced by the breath analysing instrument of
         the concentration of alcohol indicated by the
         analysis to be present in his or her breath.
     (6) A rail safety worker who furnishes a sample of
         breath under this section must do so by exhaling
         continuously into the instrument to the satisfaction
         of the person operating it.
     (7) A rail safety worker is not obliged to furnish a
         sample of breath under this section if more than
         3 hours have passed since the rail safety worker
         last carried out rail safety work.
     (8) A rail safety worker must not be convicted or
         found guilty of refusing to furnish under this
         section a sample of breath for analysis if he or she
         satisfies the court that there was some reason of a
         substantial character for the refusal, other than a
         desire to avoid providing information which might
         be used against him or her.
     (9) The person who required a sample of breath under
         sub-section (1), (2) or (3) from a rail safety
         worker may require the rail safety worker to allow
         a registered medical practitioner or an approved
         health professional nominated by the person
         requiring the sample to take from him or her a
         sample of blood for analysis if it appears to him or
         her that—




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                    (a) the rail safety worker is unable to furnish the
                        required sample of breath on medical
                        grounds or because of some physical
                        disability; or
                   (b) the breath analysing instrument is incapable
                       of measuring in grams per 210 litres of
                       exhaled air the concentration of alcohol
                       present in any sample of breath furnished by
                       the rail safety worker for any reason
                       whatsoever—
                  and for that purpose may further require that rail
                  safety worker to accompany a transport safety
                  officer or a member of the police force to a place
                  where the sample is to be taken and to remain
                  there until the sample has been taken or until
                  3 hours after the carrying out of the rail safety
                  work, whichever is sooner.
            (10) The registered medical practitioner or approved
                 health professional who takes a sample of blood
                 under sub-section (9) must deliver a part of the
                 sample to the person who required it to be taken
                 and another part to the rail safety worker from
                 whom it was taken.
            (11) A rail safety worker who allows the taking of a
                 sample of his or her blood in accordance with sub-
                 section (9) must not be convicted or found guilty
                 of refusing to furnish under this section a sample
                 of breath for analysis.
            (12) A person must not hinder or obstruct a registered
                 medical practitioner or an approved health
                 professional attempting to take a sample of the
                 blood of any other person in accordance with sub-
                 section (9).
                  Penalty: 12 penalty units.




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    (13) No action lies against a registered medical
         practitioner or an approved health professional in
         respect of anything properly and necessarily done
         by the practitioner or approved health professional
         in the course of taking any sample of blood which
         the practitioner or approved health professional
         believed on reasonable grounds was allowed to be
         taken under sub-section (9).
    (14) A rail safety worker who is required under this
         section to furnish a sample of breath for analysis
         may, immediately after being given the certificate
         referred to in sub-section (5), request the person
         making the requirement to arrange for the taking
         in the presence of a member of the police force of
         a sample of the rail safety worker's blood for
         analysis at the rail safety worker's own expense by
         a registered medical practitioner or an approved
         health professional nominated by the member of
         the police force.
    (15) A part of a sample of blood taken under sub-
         section (14) must be delivered to the person who
         required the sample of breath under this section.
    (16) Nothing in sub-section (14) relieves a rail safety
         worker from any penalty under section 76(1)(e)
         for refusing to furnish a sample of breath.
    (17) Evidence derived from a sample of breath
         furnished in accordance with a requirement made
         under this section is not rendered inadmissible by
         a failure to comply with a request under sub-
         section (14) if reasonable efforts were made to
         comply with the request.
    (18) If the question whether a breath analysing
         instrument was incapable of measuring in grams
         per 210 litres of exhaled air the concentration of
         alcohol present in any sample of breath furnished
         by a rail safety worker is relevant on a hearing for
         an offence against section 76(1) then, without


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                  affecting the admissibility of any evidence which
                  might be given apart from the provisions of this
                  sub-section, a document—
                    (a) purporting to be a print-out produced by that
                        instrument in respect of that sample; and
                   (b) purporting to be signed by the person who
                       operated the instrument—
                  is admissible in evidence and, in the absence of
                  evidence to the contrary, is proof of the facts and
                  matters contained in it.
            (19) A document referred to in sub-section (18) does
                 not cease to be admissible in evidence or, in the
                 absence of evidence to the contrary, to be proof of
                 the facts and matters contained in it only because
                 of the fact that it refers to the Road Safety Act
                 1986 and not to the Rail Safety Act 2006 and the
                 reference to the Road Safety Act 1986 in that
                 document and in each other document produced
                 by the breath analysing instrument in respect of
                 the sample of breath must be construed for all
                 purposes as a reference to the Rail Safety Act
                 2006.
        79. Drug assessment
             (1) A transport safety officer may at any time require
                 a rail safety worker whom he or she believes on
                 reasonable grounds is about to carry out, or is
                 carrying out, rail safety work to undergo an
                 assessment of drug impairment if in the opinion of
                 the transport safety officer, that rail safety
                 worker's behaviour or appearance indicates that
                 the rail safety worker may be impaired for a
                 reason other than alcohol alone.




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     (2) A transport safety officer or, subject to sub-
         section (3), a member of the police force, may
         require—
            (a) a rail safety worker whom he or she believes
                on reasonable grounds has within the last
                3 preceding hours carried out rail safety
                work on a railway when an accident or
                irregular incident occurred involving the rail
                safety worker; or
           (b) a rail safety worker whom he or she has
               required under section 77 to undergo a
               preliminary breath test; or
            (c) a rail safety worker required under section 78
                to furnish a sample of breath or from whom a
                sample of blood was required to be taken
                under section 78(9)—
          to undergo an assessment of drug impairment if,
          in the opinion of the transport safety officer or
          member of the police force, that rail safety
          worker's behaviour or appearance indicates that he
          or she may be impaired for a reason other than
          alcohol alone and for that purpose may further
          require the rail safety worker to accompany a
          transport safety officer or member of the police
          force (as the case requires) to a place where the
          assessment is to be carried out and to remain there
          until the assessment has been carried out or until
          3 hours after the carrying out of the rail safety
          work, whichever is sooner.
     (3) A member of the police force only has power to
         require a rail safety worker to undergo an
         assessment of drug impairment under sub-section
         (2)(a) in the case of an irregular incident if—




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                    (a) he or she has contacted a person nominated
                        for the purposes of this provision by the
                        person or body responsible for the operation
                        of the railway; and
                   (b) the person contacted has confirmed that an
                       irregular incident did occur and has agreed
                       that it is appropriate to conduct an
                       assessment of drug impairment.
             (4) A rail safety worker is not obliged to undergo an
                 assessment of drug impairment if more than
                 3 hours have passed since the rail safety worker
                 last carried out rail safety work.
             (5) An assessment of drug impairment must be
                 carried out by—
                    (a) a transport safety officer authorised to do so
                        by the Safety Director; or
                   (b) a member of the police force authorised to
                       do so by the Chief Commissioner of Police.
             (6) An assessment of drug impairment must be
                 carried out in accordance with the procedure
                 specified in a notice under sub-section (7).
             (7) The Safety Director may, by notice published in
                 the Government Gazette, specify the procedure to
                 be followed in assessing drug impairment.
             (8) The carrying out of an assessment of drug
                 impairment on a rail safety worker must be video-
                 recorded if the rail safety worker was involved in
                 an accident or irregular incident unless the
                 prosecution satisfies the court that a video-
                 recording has not been made because of
                 exceptional circumstances.




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     (9) If the rail safety worker on whom an assessment
         of drug impairment was carried out is
         subsequently charged with an offence under
         section 76(1)(b), and the carrying out of the
         assessment of drug impairment is video-recorded,
         a copy of the video-recording must be served with
         the summons or, if a summons is not issued,
         within 7 days after the making of the charge.
    (10) Subject to sub-section (11), the video-recording of
         the carrying out of an assessment of drug
         impairment on a rail safety worker is only
         admissible in a proceeding against that rail safety
         worker for an offence against this Act for the
         purpose of establishing that the assessment of
         drug impairment was carried out in accordance
         with the procedure specified in a notice under sub-
         section (7).
    (11) Evidence obtained as a result of an assessment of
         drug impairment carried out on a rail safety
         worker is inadmissible as part of the prosecution
         case in proceedings against that rail safety worker
         for any offence if the video-recording of the
         assessment and any related material and
         information should have been but has not been
         destroyed as required by section 81.
    (12) In any proceeding under this Act—
            (a) the statement of a transport safety officer
                that on a particular date he or she was
                authorised by the Safety Director under sub-
                section (5)(a) to carry out an assessment of
                drug impairment; or
           (b) the statement of a member of the police force
               that on a particular date he or she was
               authorised by the Chief Commissioner of
               Police under sub-section (5)(b) to carry out
               an assessment of drug impairment; or



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                    (c) a certificate purporting to be signed by the
                        Safety Director that a transport safety officer
                        named in it is authorised by the Safety
                        Director under sub-section (5) to carry out an
                        assessment of drug impairment; or
                   (d) a certificate purporting to be signed by the
                       Chief Commissioner of Police that a member
                       of the police force named in it is authorised
                       by the Chief Commissioner of Police under
                       sub-section (5) to carry out an assessment of
                       drug impairment—
                  is admissible in evidence and, in the absence of
                  evidence to the contrary, is proof of the authority
                  of that transport safety officer or member of the
                  police force (as the case requires).
        80. Blood and urine samples
             (1) If a rail safety worker undergoes an assessment of
                 drug impairment when required under section 79
                 to do so and the assessment, in the opinion of the
                 transport safety officer or member of the police
                 force (as the case requires) carrying it out,
                 indicates that the rail safety worker may be
                 impaired by a drug or drugs, the transport safety
                 officer or member of the police force (as the case
                 requires) may require the rail safety worker to do
                 either or both of the following—
                    (a) allow a registered medical practitioner or an
                        approved health professional nominated by
                        that transport safety officer or member of the
                        police force to take from the rail safety
                        worker a sample of that rail safety worker's
                        blood for analysis;




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           (b) furnish to a registered medical practitioner or
               an approved health professional nominated
               by that transport safety officer or member of
               the police force a sample of that rail safety
               worker's urine for analysis—
          and for that purpose may further require the
          person to accompany the transport safety officer
          or member of the police force to a place where the
          sample is to be taken or furnished and to remain
          there until the sample has been taken or furnished
          or until 3 hours after the carrying out of the rail
          safety work, whichever is sooner.
     (2) A transport safety officer or member of the police
         force must not require a rail safety worker to
         allow a sample of his or her blood to be taken for
         analysis under sub-section (1)(a) if that rail safety
         worker has already had a sample of blood taken
         from him or her under section 78 after carrying
         out rail safety work.
     (3) The registered medical practitioner or approved
         health professional who takes a sample of blood
         or is furnished with a sample of urine under this
         section must deliver a part of the sample to the
         transport safety officer or member of the police
         force who required it to be taken or furnished and
         another part to the rail safety worker from whom
         it was taken or by whom it was furnished.
     (4) A person must not hinder or obstruct a registered
         medical practitioner or an approved health
         professional attempting to take a sample of the
         blood, or be furnished with a sample of the urine,
         of any other person in accordance with this
         section.
          Penalty: 12 penalty units.




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             (5) No action lies against a registered medical
                 practitioner or an approved health professional in
                 respect of anything properly and necessarily done
                 by the practitioner or approved health professional
                 in the course of taking any sample of blood, or
                 being furnished with any sample of urine, which
                 the practitioner or approved health professional
                 believed on reasonable grounds was required to be
                 taken from, or be furnished by, any person under
                 this section.
             (6) If the person on whom an assessment of drug
                 impairment was carried out is subsequently
                 charged with an offence under section 76(1)(b), a
                 copy of a written report on that assessment
                 prepared by the transport safety officer or member
                 of the police force who carried it out and
                 containing the prescribed particulars must be
                 served with the summons or, if a summons is not
                 issued, within 7 days after the making of the
                 charge.
        81. Destruction of identifying information
             (1) In this section, "relevant offence" means—
                    (a) an offence under section 76(1)(b) or (f); or
                   (b) any other offence arising out of the same
                       circumstances; or
                    (c) any other offence in respect of which the
                        evidence obtained as a result of the
                        assessment of drug impairment has probative
                        value.
             (2) If an assessment of drug impairment has been
                 carried out on a rail safety worker under
                 section 79 and—
                    (a) the rail safety worker has not been charged
                        with a relevant offence at the end of the
                        period of 12 months after the assessment; or



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           (b) the rail safety worker has been so charged
               but the charge is not proceeded with or the
               rail safety worker is not found guilty of the
               offence, whether on appeal or otherwise,
               before the end of that period—
          the Safety Director or Chief Commissioner of
          Police (as the case requires) must, subject to sub-
          section (4), destroy, or cause to be destroyed, at
          the time specified in sub-section (3) any video-
          recording made of the assessment and any related
          material and information.
     (3) A video-recording and any related material and
         information referred to in sub-section (2) must be
         destroyed—
            (a) in a case to which sub-section (2)(a) applies,
                immediately after that period of 12 months;
                or
           (b) in a case to which sub-section (2)(b)
               applies—
                  (i) within 1 month after the conclusion of
                      the proceeding and the end of any
                      appeal period; or
                 (ii) if the proceeding has been adjourned
                      under section 75 of the Sentencing Act
                      1991, within 1 month after dismissal
                      under that section.
     (4) A transport safety officer or member of the
         police force (as the case requires) may, before the
         end of a period referred to in sub-section (3)(b),
         apply without notice to the Magistrates' Court for
         an order extending that period and, if the Court
         makes such an order, the reference to the period in
         sub-section (3) is a reference to that period as so
         extended.




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             (5) If the Magistrates' Court makes an order under
                 sub-section (4), it must give reasons for its
                 decision and cause a copy of the order to be
                 served on the person on whom the assessment of
                 drug impairment was carried out.
             (6) If a video-recording or related material and
                 information is required to be destroyed in
                 accordance with this section, the Safety Director
                 or Chief Commissioner of Police (as the case
                 requires) must, if the rail safety worker on whom
                 the assessment was carried out so requests, within
                 14 days after receiving the request, notify that rail
                 safety worker in writing whether the destruction
                 has occurred.
             (7) A person who knowingly—
                    (a) fails to destroy; or
                   (b) uses, or causes or permits to be used—
                  a video-recording or related material and
                  information required by this section to be
                  destroyed is guilty of an offence punishable by a
                  fine of not more than 120 penalty units or to
                  imprisonment for a term of not more than
                  12 months.
             (8) A person who at any time uses, or causes or
                 permits to be used, or otherwise disseminates
                 information derived from any video-recording or
                 related material and information required by this
                 section to be destroyed except in good faith for the
                 purposes of a relevant offence is guilty of an
                 offence punishable by a fine of not more than
                 120 penalty units or to imprisonment for a term of
                 not more than 12 months.




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82. Blood samples to be taken in certain cases
     (1) In this section—
          "doctor" means a registered medical practitioner
              and includes a police surgeon.
     (2) If a rail safety worker enters or is brought to a
         place for examination or treatment in consequence
         of an accident (whether within Victoria or not),
         the rail safety worker must allow a doctor to take
         from the rail safety worker at that place a sample
         of his or her blood for analysis.
          Penalty: For a first offence, 12 penalty units;
                      For a subsequent offence, 25 penalty
                      units or imprisonment for 3 months.
     (3) Sub-section (2) does not apply if—
            (a) in the opinion of the doctor first responsible
                for the examination or treatment of the rail
                safety worker the taking of a blood sample
                from the rail safety worker would be
                prejudicial to his or her proper care and
                treatment; or
           (b) a transport safety officer or a member of the
               police force has notified the doctor first
               responsible for the examination or treatment
               of the rail safety worker, in writing, that the
               rail safety worker has undergone a
               preliminary breath test which did not
               indicate that the prescribed concentration of
               alcohol was exceeded; or
            (c) the doctor first responsible for the
                examination or treatment of the rail safety
                worker believed on reasonable grounds that
                the rail safety worker was not a rail safety
                worker; or




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                   (d) a member of the police force or a doctor has
                       notified the doctor first responsible for the
                       examination or treatment of the rail safety
                       worker, in writing, that a sample of the rail
                       safety worker's blood was taken by a doctor
                       before the person entered or was brought to
                       the place for examination or treatment.
             (4) A rail safety worker to whom sub-section (2)
                 applies and who is unconscious or otherwise
                 unable to communicate must be taken to allow the
                 taking of a sample of his or her blood by a doctor
                 at a place which he or she enters or to which he or
                 she is brought for examination or treatment.
             (5) If a sample of a rail safety worker's blood is taken
                 in accordance with this section, evidence of the
                 taking of it, the analysis of it or the results of the
                 analysis must not be used in evidence in any legal
                 proceeding except—
                    (a) for the purposes of section 83; or
                   (b) for a proceeding for an offence against
                       section 48(2); or
                    (c) for the purposes of the Transport Accident
                        Act 1986—
                  but may be given—
                   (d) to the Transport Accident Commission and,
                       for the purposes of a review under the
                       Transport Accident Act 1986, to the
                       Tribunal; and
                    (e) to the Department for the purposes of
                        accident research.




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     (6) A person must not hinder or obstruct a doctor
         attempting to take a sample of the blood of any
         other person in accordance with this section.
          Penalty: 12 penalty units.
     (7) No action lies against a doctor in respect of
         anything properly and necessarily done by the
         doctor in the course of taking any sample of blood
         which the doctor believes on reasonable grounds
         was required or allowed to be taken from a rail
         safety worker under this section.

          Division 3—Evidentiary Provisions

83. Evidentiary provisions—blood tests
     (1) In this section—
          "approved analyst" means a person who by
              virtue of sub-section (2) is to be taken to be a
              properly qualified analyst for the purposes of
              this section;
          "approved expert" means a person who by
              virtue of sub-section (3) is to be taken to be a
              properly qualified expert for the purposes of
              this section;
          "properly qualified analyst" means—
                 (a) an approved analyst; or
                 (b) a person who is considered by the court
                     to have scientific qualifications,
                     training and experience that qualifies
                     him or her to carry out the analysis and
                     to express an opinion as to the facts and
                     matters contained in a certificate under
                     sub-section (6) or (7), as the case
                     requires;




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                  "properly qualified expert" means—
                         (a) an approved expert; or
                         (b) a person who is considered by the court
                             to have scientific qualifications,
                             training and experience that qualifies
                             him or her to express an opinion as to
                             the facts and matters contained in a
                             certificate under sub-section (8).
             (2) A person who is an approved analyst within the
                 meaning of section 57 of the Road Safety Act
                 1986 is to be taken to be a properly qualified
                 analyst for the purposes of this section.
             (3) A person who is an approved expert within the
                 meaning of section 57 of the Road Safety Act
                 1986 is to be taken to be a properly qualified
                 expert for the purposes of this section.
             (4) If—
                    (a) the question whether a rail safety worker was
                        or was not at any time under the influence of
                        alcohol or any other drug; or
                   (b) the presence of alcohol or any other drug, or
                       the concentration of alcohol in the blood of a
                       rail safety worker at any time; or
                    (c) a finding on the analysis of a blood sample
                        of a rail safety worker—
                  is relevant on a hearing for an offence against
                  section 76(1) or in any proceedings conducted by
                  a coroner then, without affecting the admissibility
                  of any evidence which might be given apart from
                  the provisions of this section, evidence may be
                  given of the taking, within 3 hours after the rail
                  safety worker carried out rail safety work, of a
                  sample of blood from the rail safety worker by a
                  registered medical practitioner or an approved
                  health professional, of the analysis of that sample


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          of blood by a properly qualified analyst within
          12 months after it was taken, of the presence of
          alcohol and, if alcohol is present, of the
          concentration of alcohol expressed in grams per
          100 millilitres of blood found by that analyst to be
          present in that sample of blood at the time of
          analysis and, if a drug is present, evidence may be
          given by a properly qualified expert of the usual
          effect of that drug on behaviour when consumed
          or used (including its effect on a person's ability to
          carry out rail safety work properly).
     (5) A certificate containing the prescribed particulars
         purporting to be signed by a registered medical
         practitioner or an approved health professional is
         admissible in evidence in a proceeding referred to
         in sub-section (4) and, in the absence of evidence
         to the contrary, is proof of the facts and matters
         contained in it.
     (6) A certificate containing the prescribed particulars
         purporting to be signed by an approved analyst as
         to the concentration of alcohol expressed in grams
         per 100 millilitres of blood found in any sample of
         blood analysed by the analyst is admissible
         in evidence in a proceeding referred to in sub-
         section (4) and, in the absence of evidence to the
         contrary, is proof of the facts and matters
         contained in it.
     (7) A certificate containing the prescribed particulars
         purporting to be signed by an approved analyst as
         to the presence in any sample of blood analysed
         by the analyst of a substance that is, or is capable
         of being, a drug for the purposes of this Part is
         admissible in evidence in any proceedings
         referred to in sub-section (4) and, in the absence
         of evidence to the contrary, is proof of the facts
         and matters contained in it.




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             (8) A certificate containing the prescribed particulars
                 purporting to be signed by an approved expert as
                 to the usual effect of a specified substance or
                 substances on behaviour when consumed or used
                 (including its effect on a rail safety worker's
                 ability to carry out rail safety work properly) is
                 admissible in evidence in any proceedings
                 referred to in sub-section (4) and, in the absence
                 of evidence to the contrary, is proof of the facts
                 and matters contained in it.
             (9) A certificate given under this section must not be
                 tendered in evidence in a proceeding referred to in
                 sub-section (4) without the consent of the accused
                 unless a copy of the certificate is proved to have
                 been served on the accused more than 10 days
                 before the day on which the certificate is tendered
                 in evidence.
            (10) A copy of a certificate given under this section
                 may be served on the accused by—
                    (a) delivering it to the accused personally; or
                   (b) leaving it for the accused at his or her last or
                       most usual place of residence or of business
                       with a person who apparently resides or
                       works there and who apparently is not less
                       than 16 years of age.
            (11) An affidavit or statutory declaration by a person
                 who has served a copy of the certificate on the
                 accused is admissible in evidence in a proceeding
                 referred to in sub-section (4) and, as to the service
                 of the copy, is proof, in the absence of evidence to
                 the contrary, of the facts and matters deposed to in
                 the affidavit or stated in the statutory declaration.




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    (12) An accused who has been served with a copy of a
         certificate given under this section may, with the
         leave of the court and not otherwise, require the
         person who has given the certificate or any other
         person employed, or engaged to provide services
         at, the place at which the sample of blood was
         taken to attend at all subsequent proceedings for
         cross-examination and that person must attend
         accordingly.
    (13) The court must not grant leave under sub-
         section (12) unless it is satisfied—
            (a) that the informant has been given at least
                7 days' notice of the hearing of the
                application for leave and has been given an
                opportunity to make a submission to the
                court; and
           (b) that—
                  (i) there is a reasonable possibility that the
                      blood referred to in a certificate given
                      by an analyst under sub-section (6) was
                      not that of the accused; or
                 (ii) there is a reasonable possibility that the
                      blood referred to in a certificate given
                      by a registered medical practitioner or
                      an approved health professional had
                      become contaminated in such a way
                      that the blood alcohol concentration
                      found on analysis was higher than it
                      would have been had the blood not
                      been contaminated in that way; or
                (iii) there is a reasonable possibility that the
                      blood referred to in a certificate given
                      by a registered medical practitioner or
                      an approved health professional had
                      become contaminated in such a way
                      that a drug found on analysis would not



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                              have been found had the blood not been
                              contaminated in that way; or
                         (iv) there is a reasonable possibility that the
                              sample was not taken in accordance
                              with the Code of Practice for Taking
                              Blood Samples from Road Accident
                              Victims; or
                         (v) for some other reason the giving of
                             evidence by the person who gave the
                             certificate or any other person
                             employed, or engaged to provide
                             services at, the place at which the
                             sample of blood was taken would
                             materially assist the court to ascertain
                             relevant facts.
            (14) An accused who has been served with a copy of a
                 certificate given under this section may not
                 require the person who has given the certificate or
                 any other person employed, or engaged to provide
                 services at, the place at which the sample of blood
                 was taken, to attend the court on the hearing of an
                 application for leave under sub-section (12).
            (15) If a registered medical practitioner or an approved
                 health professional is requested to make an
                 examination or to collect a sample of blood for the
                 purposes of this section and if the rail safety
                 worker to be examined or from whom a sample of
                 blood is to be collected has expressed consent to
                 that examination or collection, no action lies
                 against the registered medical practitioner or
                 approved health professional who acts in
                 accordance with that consent even if it
                 subsequently appears that the rail safety worker
                 was in fact incapable by reason of his or her
                 mental condition from effectively giving consent
                 to the examination or collection.




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                                                                 s. 83


    (16) Except as provided in sections 78(9), 80 and 82, a
         blood sample must not be taken and evidence of
         the result of an analysis of a blood sample must
         not be tendered unless the rail safety worker from
         whom the blood has been collected has expressed
         consent to the collection of the blood and the onus
         of proving that expression of consent is on the
         prosecution.
    (17) The mere failure or refusal of a rail safety worker
         to express consent must not be used in evidence
         against the rail safety worker or referred to in any
         way against the rail safety worker's interests in
         any proceeding.
    (18) A certificate purporting to be signed by a
         person—
            (a) who took a blood sample; or
           (b) who analysed a blood sample—
          in accordance with the provisions of an Act of
          another State or a Territory that substantially
          corresponds to section 82 of this Act and in
          accordance with any regulations made under the
          corresponding Act is admissible in evidence in a
          proceeding referred to in sub-section (4) and, in
          the absence of evidence to the contrary, is proof of
          the facts and matters contained in it.
    (19) Sub-sections (7), (10), (11) and (12) apply in
         respect of a certificate referred to in sub-
         section (18) as if the certificate was given under
         this section.




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        Part 6—Alcohol and Other Drug Controls for Rail Safety Workers
s. 84


        84. Evidentiary provisions—urine tests
             (1) In this section—
                  "approved analyst" means a person who by
                      virtue of sub-section (2) is to be taken to be a
                      properly qualified analyst for the purposes of
                      this section;
                  "approved expert" means a person who by
                      virtue of sub-section (3) is to be taken to be a
                      properly qualified expert for the purposes of
                      this section;
                  "properly qualified analyst" means—
                         (a) an approved analyst; or
                         (b) a person who is considered by the court
                             to have scientific qualifications,
                             training and experience that qualifies
                             him or her to carry out the analysis and
                             to express an opinion as to the facts and
                             matters contained in a certificate under
                             sub-section (6);
                  "properly qualified expert" means—
                         (a) an approved expert; or
                         (b) a person who is considered by the court
                             to have scientific qualifications,
                             training and experience that qualifies
                             him or her to express an opinion as to
                             the facts and matters contained in a
                             certificate under sub-section (7).
             (2) A person who is an approved analyst within the
                 meaning of section 57A of the Road Safety Act
                 1986 is to be taken to be a properly qualified
                 analyst for the purposes of this section.




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                                                                 s. 84


     (3) A person who is an approved expert within the
         meaning of section 57A of the Road Safety Act
         1986 is to be taken to be a properly qualified
         expert for the purposes of this section.
     (4) If a question as to the presence of a drug in the
         body of a rail safety worker at any time is relevant
         on a hearing for an offence against section 76(1)
         then, without affecting the admissibility of any
         evidence which might be given apart from the
         provisions of this section, evidence may be
         given—
            (a) of the furnishing by that rail safety worker,
                within 3 hours after that rail safety worker
                carried out rail safety work, of a sample of
                urine to a registered medical practitioner or
                an approved health professional;
           (b) of the analysis of that sample of urine by a
               properly qualified analyst within 12 months
               after it was taken;
            (c) of the presence of a drug in that sample of
                urine at the time of analysis;
           (d) by a properly qualified expert of the usual
               effect of that drug on behaviour when
               consumed or used (including its effect on a
               rail safety worker's ability to carry out rail
               safety work properly).
     (5) A certificate containing the prescribed particulars
         purporting to be signed by a registered medical
         practitioner or an approved health professional is
         admissible in evidence in any hearing referred to
         in sub-section (4) and, in the absence of evidence
         to the contrary, is proof of the facts and matters
         contained in it.




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             (6) A certificate containing the prescribed particulars
                 purporting to be signed by an approved analyst as
                 to the presence in any sample of urine analysed by
                 the analyst of a substance that is, or is capable of
                 being, a drug for the purposes of this Part is
                 admissible in evidence in any hearing referred to
                 in sub-section (4) and, in the absence of evidence
                 to the contrary, is proof of the facts and matters
                 contained in it.
             (7) A certificate containing the prescribed particulars
                 purporting to be signed by an approved expert as
                 to the usual effect of a specified substance or
                 substances on behaviour when consumed or used
                 (including its effect on a rail safety worker's
                 ability to carry out rail safety work properly) is
                 admissible in evidence in any hearing referred to
                 in sub-section (4) and, in the absence of evidence
                 to the contrary, is proof of the facts and matters
                 contained in it.
             (8) A certificate given under this section must not be
                 tendered in evidence at a hearing referred to in
                 sub-section (4) without the consent of the accused
                 unless a copy of the certificate is proved to have
                 been personally served on the accused more than
                 10 days before the day on which the certificate is
                 tendered in evidence.
             (9) An affidavit or statutory declaration by the person
                 who has personally served a copy of the certificate
                 on the accused is admissible in evidence at a
                 hearing referred to in sub-section (4) and, as to the
                 service of the copy, is proof, in the absence of
                 evidence to the contrary, of the facts and matters
                 deposed to in the affidavit or stated in the
                 statutory declaration.




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                                                                   s. 84


    (10) An accused who has been served with a copy of a
         certificate given under this section may, with the
         leave of the court and not otherwise, require the
         person who has given the certificate or any person
         employed, or engaged to provide services at, the
         place at which the sample of urine was furnished,
         to attend at all subsequent proceedings for cross-
         examination and that person must attend
         accordingly.
    (11) The court must not grant leave under sub-
         section (10) unless it is satisfied—
            (a) that the informant has been given at least
                7 days' notice of the hearing of the
                application for leave and has been given an
                opportunity to make a submission to the
                court; and
           (b) that—
                  (i) there is a reasonable possibility that the
                      urine referred to in a certificate given
                      by an analyst under sub-section (6) was
                      not that of the accused; or
                 (ii) there is a reasonable possibility that the
                      urine referred to in a certificate given
                      by a registered medical practitioner or
                      an approved health professional had
                      become contaminated in such a way
                      that a drug found on analysis would not
                      have been found had the urine not been
                      contaminated in that way; or
                (iii) for some other reason the giving of
                      evidence by the person who gave the
                      certificate would materially assist the
                      court to ascertain relevant facts.




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s. 85


            (12) An accused who has been served with a copy of a
                 certificate given under this section may not
                 require the person who has given the certificate or
                 any person employed, or engaged to provide
                 services at, the place at which the sample of urine
                 was furnished, to attend the court on the hearing
                 of an application for leave under sub-section (10).
        85. Evidentiary provisions—breath tests
             (1) If—
                    (a) the question whether a rail safety worker was
                        or was not at any time under the influence of
                        alcohol; or
                   (b) the presence, or the concentration, of alcohol
                       in the breath of a rail safety worker at any
                       time; or
                    (c) a result of a breath analysis of a rail safety
                        worker—
                  is relevant on a hearing for an offence against
                  section 76(1) then, without affecting the
                  admissibility of any evidence which might be
                  given apart from the provisions of this section,
                  evidence may be given of the concentration of
                  alcohol indicated to be present in the breath of that
                  person by a breath analysing instrument operated
                  by a person authorised to do so by the Chief
                  Commissioner of Police under section 78 and the
                  concentration of alcohol so indicated is, subject to
                  compliance with section 78(4), evidence of the
                  concentration of alcohol present in the breath of
                  that person at the time his or her breath is
                  analysed by the instrument.
             (2) A document purporting to be a certificate
                 containing the prescribed particulars produced
                 by a breath analysing instrument of the
                 concentration of alcohol indicated by the analysis
                 to be present in the breath of a person and


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                     Act No. 9/2006
Part 6—Alcohol and Other Drug Controls for Rail Safety Workers
                                                                    s. 85


          purporting to be signed by the person who
          operated the instrument is admissible in evidence
          in a proceeding referred to in sub-section (1) and,
          subject to sub-section (8), is conclusive proof of—
            (a) the facts and matters contained in it; and
           (b) the fact that the instrument used was a breath
               analysing instrument within the meaning of
               this Act; and
            (c) the fact that the person who operated the
                instrument was authorised to do so by the
                Chief Commissioner of Police under
                section 78; and
           (d) the fact that all relevant regulations relating
               to the operation of the instrument were
               complied with; and
            (e) the fact that the instrument was in proper
                working order and properly operated; and
            (f) the fact that the certificate is identical in its
                terms to another certificate produced by the
                instrument in respect of the sample of breath
                and that it was signed by the person who
                operated the instrument and given to the
                accused person as soon as practicable after
                the sample of breath was analysed—
          unless the accused person gives notice in writing
          to the informant not less than 28 days before the
          hearing, or any shorter period ordered by the court
          or agreed to by the informant, that he or she
          requires the person giving the certificate to be
          called as a witness or that he or she intends to
          adduce evidence in rebuttal of any such fact or
          matter.




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s. 85


             (3) A certificate referred to in sub-section (2) does not
                 cease to be admissible in evidence or to be
                 conclusive proof of the facts and matters referred
                 to in that sub-section only because of the fact that
                 it refers to the Road Safety Act 1986 and not to
                 the Rail Safety Act 2006 and the reference to the
                 Road Safety Act 1986 in that certificate and in
                 each other certificate produced by the breath
                 analysing instrument in respect of the sample of
                 breath must be construed for all purposes as a
                 reference to the Rail Safety Act 2006.
             (4) A notice under sub-section (2) must specify any
                 fact or matter with which issue is taken and
                 indicate the nature of any expert evidence which
                 the accused person intends to have adduced at the
                 hearing.
             (5) The accused person may not, except with the
                 leave of the court, introduce expert evidence at the
                 hearing if the nature of that evidence was not
                 indicated in a notice under sub-section (2).
             (6) If an accused person gives notice to the informant
                 in accordance with sub-section (2) that he or she
                 requires the person giving a certificate to be called
                 as a witness and the court is satisfied that that
                 person—
                    (a) is dead; or
                   (b) is unfit by reason of his or her bodily or
                       mental condition to testify as a witness; or
                    (c) has ceased to be a member of the police
                        force or is out of Victoria and it is not
                        reasonably practicable to secure his or her
                        attendance; or
                   (d) cannot with reasonable diligence be found—
                  the court must order that sub-section (2) has effect
                  as if the notice had not been given.



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Part 6—Alcohol and Other Drug Controls for Rail Safety Workers
                                                                 s. 85


     (7) A certificate referred to in sub-section (2) remains
         admissible in evidence even if the accused person
         gives a notice under that sub-section but, in that
         event, the certificate ceases to be conclusive proof
         of the facts and matters referred to in that sub-
         section.
     (8) Nothing in sub-section (2) prevents the informant
         adducing evidence to explain any fact or matter
         contained in a certificate referred to in sub-
         section (2) and, if the informant does so, the
         certificate remains admissible in evidence but
         ceases to be conclusive proof of that fact or matter
         only.
     (9) In any proceeding under this Act—
            (a) the statement of any person that on a
                particular date he or she was authorised by
                the Chief Commissioner of Police under
                section 78(4) to operate breath analysing
                instruments; or
           (b) a certificate purporting to be signed by the
               Chief Commissioner of Police that a person
               named in it is authorised by the Chief
               Commissioner of Police under section 78(4)
               to operate breath analysing instruments—
          is admissible in evidence and, in the absence of
          evidence to the contrary, is proof of the authority
          of that person.
    (10) Evidence by a person authorised to operate a
         breath analysing instrument under section 78—
            (a) that an apparatus used by him or her on any
                occasion under that section was a breath
                analysing instrument;
           (b) that the breath analysing instrument was on
               that occasion in proper working order and
               properly operated by him or her;



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s. 86


                    (c) that, in relation to the breath analysing
                        instrument, all regulations with respect to
                        breath analysing instruments were complied
                        with—
                  is, in the absence of evidence to the contrary,
                  proof of those facts.
            (11) The statement on oath of a person authorised to
                 operate a breath analysing instrument under
                 section 78 when called as a witness that any
                 apparatus used by him or her on any occasion
                 under section 78 had written, inscribed or
                 impressed on some portion of it or on a plate
                 attached to it the expressions "Alcotest 7110" and
                 "3530791" whether with or without other
                 expressions or abbreviations of expressions,
                 commas, full stops, hyphens or other punctuation
                 marks and whether or not all or any of the
                 numbers are boxed in is, in the absence of
                 evidence to the contrary, proof that the apparatus
                 is a breath analysing instrument within the
                 meaning of this Part.

                       Division 4—Other Matters

        86. Approvals
             (1) An authority given under or for the purposes of—
                    (a) section 78 or 79(5)(b) by the Chief
                        Commissioner of Police; or
                   (b) section 79(5)(a) by the Safety Director—
                  may be revoked at any time in the manner in
                  which it was given and on revocation ceases to
                  have any effect.




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                     Act No. 9/2006
Part 6—Alcohol and Other Drug Controls for Rail Safety Workers
                                                                 s. 86


     (2) If it is provided by or under this Part that the
         Minister or the Chief Commissioner of Police or
         any other person may approve of any type or kind
         of apparatus or equipment—
            (a) the approval must be given by notice
                published in the Government Gazette; and
           (b) any withdrawal of approval must be made by
               notice published in the Government Gazette.
                  __________________




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                                   Rail Safety Act 2006
                                     Act No. 9/2006
                                 Part 7—Review of Decisions
  s. 87



                         PART 7—REVIEW OF DECISIONS

                 87. Reviewable decisions
                     (1) The following table sets out—
                          (a) decisions made under this Act that are
                              reviewable in accordance with this Part
                              ("reviewable decisions"); and
                          (b) who is eligible to apply for a review of a
                              reviewable decision (the "eligible person"
                              in relation to the reviewable decision).
                     (2) To avoid doubt, sections 4 and 5 of the Victorian
                         Civil and Administrative Tribunal Act 1998
                         apply for the purposes of this Act.
                         Note: Under section 4 of that Act, a person makes a
                               decision if the person refuses to make a decision
                               or an instrument, imposes a condition or restriction
                               or does or refuses to do any other act or thing.
                               Section 5 of that Act sets out when a person's
                               interests are affected by a decision.

S. 87(2) Table                    Provision under
amended by                        which reviewable        Eligible person in relation
No. 47/2006
                          Item    decision is made        to reviewable decision
s. 44.
                          1.      Division 2 of Part 5    (1) A rail infrastructure
                                  (refusal to accredit)       manager who has
                                                              applied to be
                                                              accredited in respect of
                                                              the rail infrastructure
                                                              operations the rail
                                                              infrastructure manager
                                                              carries out.
                                                          (2) A rolling stock
                                                              operator who has
                                                              applied to be
                                                              accredited in respect of
                                                              the rolling stock
                                                              operations the rolling
                                                              stock operator carries
                                                              out.




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           Act No. 9/2006
       Part 7—Review of Decisions
                                                              s. 87


        Provision under
        which reviewable        Eligible person in relation
Item    decision is made        to reviewable decision
2.      Section 42(2) (issue       A rolling stock
        of written notice)         operator and rail
                                   infrastructure manager
                                   to whom a written
                                   notice has been issued.
3.      Section 42(4)              A person given a
        (direction)                direction under
                                   section 42.
4.      Section 43 (direction      A person given a
        to co-ordinate             direction under
        accreditation              section 43.
        applications)
5.      Section 44 (failure        A rail infrastructure
        to accredit within         manager who has
        period of time             applied to be
        specified in the           accredited in respect of
        section or the             the rail infrastructure
        extended period)           operations the rail
                                   infrastructure manager
                                   carries out.
                                   A rolling stock
                                   operator who has
                                   applied to be
                                   accredited in respect of
                                   the rolling stock
                                   operations the rolling
                                   stock operator carries
                                   out.
6.      Section 46 (decision       An accredited rail
        to impose conditions       operator whose
        or restrictions of         interests are affected
        accreditation)             by the decision.
7.      Section 53 (refusal        An accredited rail
        to grant variation of      operator whose
        condition or               interests are affected
        restriction of             by the decision.
        accreditation)




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                   Act No. 9/2006
               Part 7—Review of Decisions
s. 87


                Provision under
                which reviewable        Eligible person in relation
        Item    decision is made        to reviewable decision
        8.      Section 53 (refusal        An accredited rail
                to agree to                operator whose
                revocation of              interests are affected
                condition or               by the decision.
                restriction of
                accreditation)
        9.      Section 54 (refusal        An accredited rail
                to grant variation of      operator whose
                accreditation)             interests are affected
                                           by the decision.
        10.     Section 55 (variation      An accredited rail
                of condition or            operator whose
                restriction of             interests are affected
                accreditation)             by the decision.
        11.     Section 55                 An accredited rail
                (revocation of             operator whose
                condition or               interests are affected
                restriction of             by the decision.
                accreditation)
        12.     Section 55                 An accredited rail
                (imposition of new         operator whose
                condition or               interests are affected
                restriction of             by the decision.
                accreditation)
        13.     Section 56 (refusal        An accredited rail
                to consent to              operator whose
                surrender of               interests are affected
                accreditation)             by the decision.
        14.     Section 58                 An accredited rail
                (immediate                 operator whose
                suspension of              interests are affected
                accreditation)             by the decision.




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           Act No. 9/2006
       Part 7—Review of Decisions
                                                              s. 87


        Provision under
        which reviewable       Eligible person in relation
Item    decision is made       to reviewable decision
15.     Section 59(3)          (1) An accredited rail
        (decision as to any        operator whose
        one or more of the         interests are affected
        things listed in           by the decision.
        section 59(3)—for
                               (2) A person who was
        example, suspend or
                                   previously an
        immediately cancel
                                   accredited rail operator
        an accreditation or
                                   whose interests are
        disqualify a person
                                   affected by the
        from holding an
                                   decision.
        accreditation)
15A.    Section 62A(3)             A rail operator who
        (Safety Director not       has applied for
        acting in accordance       accreditation under
        with guidelines)           Division 2, or for
                                   variation of
                                   accreditation or the
                                   conditions or
                                   restrictions of
                                   accreditation under
                                   Division 4.
16.     Section 63 (refusal    (1) A rail infrastructure
        to grant exemption)        manager who carries
                                   out rail infrastructure
                                   operations using or in
                                   relation to a private
                                   siding.
                               (2) A rolling stock
                                   operator who carries
                                   out rolling stock
                                   operations in a private
                                   siding.
17.     Section 64 (decision   (1) An exempted rail
        to revoke exemption        infrastructure manager
        granted under              (within the meaning of
        section 63)                section 64(4)) whose
                                   interests are affected
                                   by the decision.




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                             Act No. 9/2006
                         Part 7—Review of Decisions
s. 88


                         Provision under
                         which reviewable      Eligible person in relation
                  Item   decision is made      to reviewable decision
                                               (2) An exempted rolling
                                                   stock operator (within
                                                   the meaning of section
                                                   64(4)) whose interests
                                                   are affected by the
                                                   decision.
                  18.    Section 66 (refusal      An accredited tourist
                         to grant exemption)      and heritage railway
                                                  operator (within the
                                                  meaning of section
                                                  66(1)) whose interests
                                                  are affected by the
                                                  decision.

        88. Internal review
             (1) An eligible person in relation to a reviewable
                 decision, other than a decision made by the Safety
                 Director, may apply to the Safety Director for
                 review of the decision within—
                  (a) 28 days after the day on which the decision
                      first came to the eligible person's notice; or
                  (b) such longer period as the Safety Director
                      allows.
             (2) The application must be in the form approved (in
                 writing) by the Safety Director.
             (3) If an application is made to the Safety Director in
                 accordance with this section, the Safety Director
                 must make a decision—
                  (a) to affirm or vary the reviewable decision; or
                  (b) to set aside the reviewable decision and
                      substitute another decision that the Safety
                      Director considers appropriate.




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              Act No. 9/2006
          Part 7—Review of Decisions
                                                            s. 88


(4) The Safety Director must give a written notice to
    the applicant setting out—
     (a) the Safety Director's decision under
         sub-section (3) and the reasons for the
         decision; and
     (b) the findings on material questions of fact that
         led to the decision, referring to the evidence
         or other material on which those findings
         were based—
    and must do so within 28 days after the
    application is made.
(5) If the Safety Director has not notified an applicant
    of a decision in accordance with sub-section (4),
    the Safety Director is taken to have made a
    decision to affirm the reviewable decision.
(6) An application under this section does not affect
    the operation of the reviewable decision or
    prevent the taking of any action to implement it
    unless the Safety Director, on his or her own
    initiative or on the application of the applicant for
    review, stays the operation of the decision
    pending the determination of the review.
(7) The Safety Director must make a decision on an
    application for a stay within 24 hours after the
    making of the application.
(8) If the Safety Director has not made a decision in
    accordance with sub-section (7), the Safety
    Director is taken to have made a decision to grant
    a stay.
(9) The Safety Director may attach any conditions to
    a stay of the operation of a reviewable decision
    that he or she considers appropriate.




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                          Act No. 9/2006
                      Part 7—Review of Decisions
s. 89


        89. Review by the Tribunal
            (1) A person may apply to the Tribunal for review
                of—
                 (a) a reviewable decision made by the Safety
                     Director; or
                 (b) a decision made, or taken to have been made,
                     by the Safety Director under section 88 in
                     respect of a reviewable decision (including a
                     decision concerning a stay of the operation
                     of the reviewable decision)—
                if the person is an eligible person in relation to the
                reviewable decision.
            (2) To avoid doubt, sub-section (1) does not apply to
                a decision of the Safety Director to hold an
                inquiry under section 59.
            (3) The application must be made—
                 (a) within 28 days after the day on which the
                     decision first came to the applicant's notice;
                     or
                 (b) if the Safety Director is required by the
                     Victorian Civil and Administrative
                     Tribunal Act 1998 to give the applicant a
                     statement of reasons, within 28 days after the
                     day on which the applicant is given the
                     statement—
                whichever period ends last.




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                   Act No. 9/2006
               Part 7—Review of Decisions
                                                                  s. 90


90. Special right of review concerning interstate
    applicants
     (1) This section only applies if—
          (a) a rail operator who applies to the Safety
              Director for accreditation and—
                (i) is not a company that is taken to be
                    registered in Victoria under the
                    Corporations Act; or
                (ii) does not have his or her principal place
                     of residence in Victoria, in the case of a
                     natural person; and
          (b) the Safety Director refuses to accredit the rail
              operator or does not accredit the rail
              operator—
                (i) within 6 months after the rail operator
                    applies for accreditation; or
                (ii) if the Safety Director extends the period
                     of time within which he or she may
                     decide to accredit the applicant under
                     section 44—within that extended
                     period.
     (2) The rail operator may, by notice, require the
         Safety Director to have the refusal or failure
         independently mediated or conciliated or both by
         a mediator or conciliator agreed upon by the rail
         operator and the Safety Director.
     (3) The Safety Director must comply with such a
         notice as soon as is practicable after receiving it.
     (4) The right conferred on a rail operator by this
         section is in addition to a right of review conferred
         by section 88 or 89.




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                    Rail Safety Act 2006
                      Act No. 9/2006
                  Part 7—Review of Decisions
s. 90


        (5) However, the right conferred on a rail operator
            under this section can only be exercised before the
            Tribunal gives a final decision in relation to the
            matter.
                   __________________




                            124
                  Rail Safety Act 2006
                    Act No. 9/2006
                 Part 8—Codes of Practice
                                                                   s. 91



          PART 8—CODES OF PRACTICE

91. Codes of practice
     (1) For the purpose of providing practical guidance to
         accredited rail operators and any other person who
         may be placed under an obligation by or under
         this Act, the Minister may, subject to section 95,
         approve one or more codes of practice.
     (2) A code of practice—
          (a) may consist of any code, standard, rule,
              specification or provision relating to any
              aspect of rail infrastructure operations or
              rolling stock operations; and
          (b) may apply, incorporate or refer to any
              document formulated or published by any
              body or authority as in force at the time the
              code of practice is approved, or as amended,
              formulated or published from time to time.
     (3) The approval of a code of practice takes effect on
         the day on which notice of the approval is
         published in the Government Gazette, or on any
         later day specified in the notice.
         Note: A code of practice approved under this section is
               disallowable by either House of Parliament: see
               section 104.
92. Revisions to approved codes of practice
     (1) Subject to section 95, the Minister may—
          (a) approve any revision of the whole, or any
              part, of an approved code of practice;
          (b) revoke the approval of a code of practice.




                            125
                         Rail Safety Act 2006
                           Act No. 9/2006
                        Part 8—Codes of Practice
s. 93


             (2) The approval of a revision to an approved code of
                 practice takes effect on the day on which notice of
                 the approval of the revision is published in the
                 Government Gazette, or on any later day specified
                 in the notice.
        93. Revocation of approvals of codes of practice
                 The approval of an approved code of practice
                 ceases to be of effect at the end of the day on
                 which notice of the revocation of the approval is
                 published in the Government Gazette, or on any
                 later day specified in the notice.
        94. Availability of approved codes of practice
                 The Minister must cause—
                  (a) a current copy of every approved code of
                      practice; and
                  (b) a copy of every document applied,
                      incorporated or referred to in an approved
                      code of practice (in the form in which that
                      document has effect in the approved code of
                      practice)—
                 to be made available for inspection by members of
                 the public without charge at the office of the
                 Safety Director during normal office hours.
        95. Minister must consult before approving code of
            practice or revision to code of practice
                 Before the Minister approves a code of practice or
                 any revision of the whole, or any part, of an
                 approved code of practice under section 91 or 92,
                 the Minister must consult with any person or body
                 that may be affected by the approved code of
                 practice, or revision of an approved code of
                 practice, to be approved.




                                 126
                 Rail Safety Act 2006
                   Act No. 9/2006
                Part 8—Codes of Practice
                                                                  s. 96


96. Effect of approved code of practice
         A person is not liable to any civil or criminal
         proceedings by reason only that he, she or it has
         failed to observe any provision of an approved
         code of practice.
         Note: A person who complies with a compliance code may
               however, be taken to have complied with this Act
               (see section 102).
                __________________




                          127
                         Rail Safety Act 2006
                           Act No. 9/2006
                             Part 9—General
s. 97



                         PART 9—GENERAL

             Division 1—Offences by Bodies Corporate

        97. Imputing conduct to bodies corporate
                 For the purposes of this Act and the regulations,
                 any conduct engaged in or on behalf of a body
                 corporate by an employee, agent or officer
                 (within the meaning given by section 9 of the
                 Corporations Act) of the body corporate acting
                 within the actual or apparent scope of his or her
                 employment, or within his or her actual or
                 apparent authority, is conduct also engaged in by
                 the body corporate.
        98. Liability of officers of bodies corporate
             (1) If a body corporate (including a body corporate
                 representing the Crown) contravenes a provision
                 of this Act or the regulations and the
                 contravention is attributable to an officer of the
                 body corporate failing to take reasonable care, the
                 officer is guilty of an offence and liable to a fine
                 not exceeding the maximum fine for an offence
                 constituted by a contravention by a natural person
                 of the provision contravened by the body
                 corporate.
             (2) An offence against sub-section (1) is summary or
                 indictable in nature according to whether the
                 offence constituted by the contravention by the
                 body corporate is summary or indictable.




                                  128
             Rail Safety Act 2006
               Act No. 9/2006
                 Part 9—General
                                                                  s. 98


(3) In determining whether an officer of a body
    corporate is guilty of an offence, regard must be
    had to—
     (a) what the officer knew about the matter
         concerned; and
     (b) the extent of the officer's ability to make, or
         participate in the making of, decisions that
         affect the body corporate in relation to the
         matter concerned; and
     (c) whether the contravention by the body
         corporate is also attributable to an act or
         omission of any other person; and
     (d) any other relevant matter.
(4) An officer of a body corporate may be convicted
    or found guilty of an offence in accordance with
    sub-section (1) whether or not the body corporate
    has been convicted or found guilty of the offence
    committed by it.
(5) An officer of a body corporate (including a body
    corporate representing the Crown) who is a
    volunteer is not liable to be prosecuted under this
    section for anything done or not done by him or
    her as a volunteer.
  Note 1: "Officer" of a body corporate includes a person who
          makes or participates in the making of decisions that
          affect the whole or a substantial part of the body
          corporate's business and a person who has the
          capacity to affect significantly the body corporate's
          financial standing (see section 3).
  Note 2: For "volunteer", see section 3.




                       129
                           Rail Safety Act 2006
                             Act No. 9/2006
                               Part 9—General
s. 99


        Division 2—Offences by Partnerships and Unincorporated
                        Bodies or Associations

          99. Liability of officers of partnerships and
              unincorporated bodies or associations
               (1) Subject to sub-section (2), if—
                    (a) this Act imposes a duty on a person or
                        provides that a person is guilty of an offence;
                        and
                    (b) the person is a partnership or an
                        unincorporated body or association
                        (including a partnership or an unincorporated
                        body or association representing the
                        Crown)—
                   the reference to the person is taken to be instead a
                   reference to each officer of the partnership, body
                   or association (as the case may be).
               (2) If an offence against this Act is committed by an
                   officer of a partnership or an unincorporated body
                   or association because of the effect of
                   sub-section (1), the officer is only guilty of the
                   offence if the commission of the offence is
                   attributable to the officer failing to take reasonable
                   care.
               (3) The penalty to which an officer of a partnership or
                   an unincorporated body or association is liable for
                   an offence committed by him or her because of
                   the effect of sub-section (1) is a fine not exceeding
                   the maximum fine that could be imposed by a
                   court on a natural person found guilty of the same
                   offence committed at the same time (otherwise
                   than because of the effect of sub-section (1)).
               (4) In determining whether an officer of a partnership
                   or unincorporated body or association is guilty of
                   an offence, regard must be had to—



                                    130
                   Rail Safety Act 2006
                     Act No. 9/2006
                       Part 9—General
                                                                          s. 100


           (a) what the officer knew about the matter
               concerned; and
           (b) the extent of the officer's ability to make, or
               participate in the making of, decisions that
               affect the partnership, body or association in
               relation to the matter concerned; and
           (c) whether the commission of the offence is
               also attributable to an act or omission of any
               other person; and
           (d) any other relevant matter.
     (5) An officer of a partnership or unincorporated body
         or association who is a volunteer is not liable to be
         prosecuted under this section for anything done or
         not done by him or her as a volunteer.
        Note 1: "Officer" of a partnership or unincorporated body or
                association includes a person who makes or
                participates in the making of decisions that affect the
                whole or a substantial part of the business of the
                partnership, body or association and a person who
                has the capacity to affect significantly the financial
                standing of the partnership, body or association
                (see section 3).
        Note 2: For "volunteer", see section 3.

     Division 3—Proceedings against the Crown

100. Responsible agency for the Crown
     (1) If proceedings are brought against the Crown for
         an offence against this Act or the regulations the
         responsible agency in respect of the offence may
         be specified in any document initiating, or relating
         to, the proceedings.
     (2) In this section, the "responsible agency" in
         respect of an offence is the agency of the
         Crown—




                             131
                            Rail Safety Act 2006
                              Act No. 9/2006
                                Part 9—General
s. 101


                    (a) whose acts or omissions are alleged to
                        constitute the offence; or
                    (b) if that agency has ceased to exist, that is the
                        successor of that agency; or
                    (c) if that agency has ceased to exist and there is
                        no clear successor, that the court declares to
                        be the responsible agency.
               (3) The responsible agency in respect of an offence is
                   entitled to act in proceedings against the Crown
                   for the offence and, subject to any relevant rules
                   of court, the procedural rights and obligations of
                   the Crown as the accused in the proceedings are
                   conferred or imposed on the responsible agency.
               (4) The person prosecuting the offence may change
                   the responsible agency during the proceedings
                   with the court's leave.
               (5) In this section—
                   "agency" includes the Director within the
                       meaning of the Transport Act 1983.

                       Division 4—Other Matters

         101. Interaction with the Occupational Health and Safety
              Act 2004
               (1) If a provision of the Occupational Health and
                   Safety Act 2004 or the regulations made under
                   that Act ("OHS provision") applies to an activity
                   in respect of which a duty is imposed under
                   Division 2 or 3 of Part 3, the OHS provision
                   continues to apply, and must be observed in
                   addition to Division 2 or 3 of Part 3 and any
                   regulations made under this Act made for the
                   purposes of those Divisions.
                   Note: See also section 51 of the Interpretation of
                         Legislation Act 1984.




                                      132
                  Rail Safety Act 2006
                    Act No. 9/2006
                      Part 9—General
                                                                  s. 102


      (2) If a provision of this Act or the regulations made
          under this Act is inconsistent with a provision of
          the Occupational Health and Safety Act 2004 or
          the regulations made under that Act, the
          Occupational Health and Safety Act 2004 or the
          regulations made under it prevail to the extent of
          the inconsistency.
      (3) Compliance with this Act or the regulations made
          under this Act, or with any requirement imposed
          under this Act or the regulations, is not in itself a
          defence in any proceedings for an offence against
          the Occupational Health and Safety Act 2004 or
          the regulations made under that Act.
      (4) Evidence of a relevant contravention of this Act or
          the regulations made under this Act is admissible
          in any proceedings for an offence against the
          Occupational Health and Safety Act 2004 or the
          regulations made under that Act.
102. Effect of compliance with regulations or approved
     codes of practice
          If—
           (a) the regulations or an approved code of
               practice make provision for or with respect
               to a duty or obligation imposed by this Act
               or the regulations; and
           (b) a person complies with the regulations or the
               approved code of practice to the extent that it
               makes that provision—
          the person is, for the purposes of this Act and the
          regulations, taken to have complied with this Act
          or the regulations in relation to that duty or
          obligation.




                           133
                           Rail Safety Act 2006
                             Act No. 9/2006
                                 Part 9—General
s. 103


         103. Fees for service
                   The Safety Director may charge the prescribed fee
                   (if any) for any safety audit conducted under
                   Part 3, or other service supplied, by her or him
                   under Part 5.
         104. Tabling and disallowance of certain Orders, notices
              and approved codes of practice
               (1) In this section—
                   "disallowable instrument" means—
                          (a) an Order under section 4;
                         (b) a notice under section 79(7);
                          (c) an approved code of practice.
               (2) On or before the 6th sitting day after a
                   disallowable instrument is published in the
                   Government Gazette, the Minister must ensure
                   that a copy of that instrument is laid before each
                   House of the Parliament.
               (3) A failure to comply with sub-section (2) does not
                   affect the operation or effect of the disallowable
                   instrument but the Scrutiny of Acts and
                   Regulations Committee of the Parliament may
                   report the failure to each House of the Parliament.
               (4) A disallowable instrument may be disallowed in
                   whole or in part by either House of Parliament.
               (5) Part 5 of the Subordinate Legislation Act 1994
                   applies a disallowable instrument as if—
                    (a) a reference in that Part to a "statutory rule"
                        were a reference to a disallowable
                        instrument; and
                    (b) a reference in section 23(1)(c) of that Act to
                        "section 15(1)" were a reference to sub-
                        section (1).




                                      134
                  Rail Safety Act 2006
                    Act No. 9/2006
                     Part 9—General
                                                                s. 105


      (6) A reference to a disallowable instrument in this
          section includes a reference to any amendment to,
          or revision of the whole or any part of, a
          disallowable instrument.

               Division 5—Regulations

105. Accreditation
          The Governor in Council may make regulations
          for or with respect to—
           (a) exempting any person or class of persons
               from the requirement to be accredited;
           (b) accreditation fees, including annual             S. 105(b)
                                                                amended by
               accreditation fees and additional fees for the   No. 47/2006
               late payment of annual accreditation fees;       s. 45(1).

           (c) investigations carried out by accredited rail
               operators under section 67.
106. Safety duties and risk management requirements
     and minimisation
          The Governor in Council may make regulations
          for or with respect to—
           (a) the way in which duties or obligations
               imposed by this Act or the regulations are
               performed;
           (b) regulating or prohibiting specified rail
               operations or a specified class of rail
               operations—
                 (i) at railway premises or a specified class
                     of railway premises; or
                (ii) by a specified class of persons on
                     whom duties or obligations are imposed
                     by this Act—
               to eliminate or reduce risks to safety;




                          135
                                Rail Safety Act 2006
                                  Act No. 9/2006
                                    Part 9—General
  s. 107


                          (c) regulating or requiring the taking of any
                              action to avoid a hazard or incident
                              (including a major incident) at railway
                              premises or while rail operations are being
                              carried out;
                          (d) regulating, requiring or prohibiting the
                              taking of any action in the event of an
                              incident (including a major incident) at
                              railway premises or while rail operations are
                              being carried out;
                          (e) regulating or requiring the examination,
                              testing, maintenance or repair of rail
                              infrastructure or rolling stock.
               107. Safety management systems
                        The Governor in Council may make regulations
                        for or with respect to—
                          (a) the preparation of safety management
                              systems;
                          (b) the matters and information that safety
                              management systems must contain;
                          (c) how safety management systems are to be
                              kept and maintained.
               108. Rail safety work
                        The Governor in Council may make regulations
                        for or with respect to—
S. 108(a)                 (a) a scheme for certificates of competence
amended by
No. 47/2006                   (or provisional certificates of competence)
s. 45(2)(a).                  for rail safety workers employed or engaged
                              to carry out rail safety work, and for the
                              duration, variation, suspension and
                              cancellation of those certificates;




                                         136
       Rail Safety Act 2006
         Act No. 9/2006
          Part 9—General
                                                     s. 108


(b) prohibiting the carrying out of rail safety
    work by a person—
      (i) who does not hold an appropriate
          certificate of competence; or
     (ii) who does not hold specified
          qualifications, training or experience;
          or
    (iii) who is not supervised by a person
          holding an appropriate certificate of
          competence or specified qualifications,
          training or experience;
(c) requiring a rail operator to ensure that rail    S. 108(c)
                                                     substituted by
    safety workers employed or engaged by            No. 47/2006
    them or employed or engaged by a rail            s. 45(2)(b).

    contractor engaged directly or indirectly by
    the rail operator to supply rail operations to
    that rail operator—
      (i) are fit to carry out rail safety work;
     (ii) are competent or appropriately trained
          or qualified to carry out rail safety
          work;
(d) the testing, assessment and monitoring of rail   S. 108(d)
                                                     amended by
    safety workers employed or engaged to carry      No. 47/2006
    out rail safety work to ensure that those rail   s. 45(2)(c).

    safety workers are fit to carry out that work;
(e) application fees and fees for the issuing and
    holding of certificates of competence.




                137
                          Rail Safety Act 2006
                            Act No. 9/2006
                              Part 9—General
s. 109


         109. Alcohol and other drug controls
                  The Governor in Council may make regulations
                  for or with respect to—
                    (a) devices for the purposes of section 77
                        including—
                         (i) the handling, storage, use and
                             maintenance of those devices;
                         (ii) the precautions to be taken and the
                              procedures and methods to be
                              employed in the use of those devices
                              for ensuring that they give accurate and
                              reliable results;
                   (b) the handling, storage, use and maintenance
                       of breath analysing instruments used for the
                       purposes of section 78 and the procedures
                       and methods to be employed in the use of
                       those instruments for ensuring that they give
                       accurate and reliable results;
                    (c) the methods and conditions to be observed
                        by registered medical practitioners and
                        approved health professionals in collecting
                        blood samples or urine samples;
                   (d) the persons responsible for the safe-keeping
                       of samples of blood taken under section 78,
                       79, 80 or 82 and the methods of storage to be
                       used by them;
                    (e) the delivering of portions of a sample of
                        blood taken under section 78, 79, 80 or 82 to
                        the rail safety worker from whom it was
                        taken and to the person who required it to be
                        taken or a member of the police force;
                    (f) the methods to be used by analysts in
                        determining the concentration of alcohol in a
                        blood sample;



                                   138
                 Rail Safety Act 2006
                   Act No. 9/2006
                    Part 9—General
                                                                s. 110


          (g) the methods to be used by analysts in
              determining the presence of a substance in a
              blood or urine sample;
          (h) the procedures to be adopted in transmitting
              samples of blood or urine to an analyst for
              analysis;
          (i) the regulation and control of people
              concerned in the taking, safe-keeping,
              delivering and analysis of blood or urine
              samples.
110. General regulation making powers
     (1) The Governor in Council may make regulations
         for or with respect to—
          (a) requiring records of prescribed activities,
              matters or things to be kept by prescribed
              persons;
          (b) requiring notice of, reports and information      S. 110(1)(b)
                                                                substituted by
              about, prescribed activities, matters or things   No. 47/2006
              to be given to the Safety Director or a           s. 45(3).

              transport safety officer;
         (ba) the content, manner and form of a notice,         S. 110(1)(ba)
                                                                inserted by
              reports and information referred to in            No. 47/2006
              paragraph (b) to be given to the Safety           s. 45(3).

              Director or a transport safety officer;
         (bb) interface co-ordination plans, including—         S. 110(1)(bb)
                                                                inserted by
                                                                No. 47/2006
                (i) requiring a rail operator to develop        s. 45(3).
                    interface co-ordination plans;
               (ii) the matters or things that interface
                    co-ordination plans developed by a rail
                    operator must identify or specify;
              (iii) requiring a rail operator to keep a
                    register of interface co-ordination plans
                    the rail operator has developed;



                         139
                           Rail Safety Act 2006
                             Act No. 9/2006
                              Part 9—General
  s. 110


S. 110(1)(bc)      (bc) requiring a rail operator to undertake reviews
inserted by             about rail operations the rail operator carries
No. 47/2006
s. 45(3).               out, including—
                          (i) the subject matter of the reviews;
                         (ii) requiring the rail operator to give
                              reports to the Safety Director of
                              findings made in the reviews;
                    (c) fees for the purposes of this Act and the
                        refund or waiver of such fees;
                    (d) any matter or thing required or permitted by
                        this Act to be prescribed or necessary to be
                        prescribed to give effect to this Act.
                (2) Regulations made under this Act—
                    (a) may be of general or limited application; and
                    (b) may differ according to differences in time,
                        place or circumstance; and
                    (c) may require a matter affected by the
                        regulations to be—
                          (i) in accordance with a specified standard
                              or specified requirement; or
                         (ii) approved by or to the satisfaction of a
                              specified person or a specified class of
                              person; or
                        (iii) as specified in both sub-paragraphs (i)
                              and (ii); and
                    (d) may apply, adopt or incorporate any matter
                        contained in any document whether—
                          (i) wholly or partially or as amended by
                              the regulations; or
                         (ii) as in force at a particular time or as in
                              force from time to time; and




                                   140
            Rail Safety Act 2006
              Act No. 9/2006
               Part 9—General
                                                          s. 110


     (e) may confer a discretionary authority or
         impose a duty on a specified person or a
         specified class of person; and
     (f) may provide in a specified case or class of
         case for the exemption of persons or things
         or a class of persons or things from any of
         the provisions of the regulations, whether
         unconditionally or on specified conditions
         and either wholly or to such an extent as is
         specified; and
     (g) may impose a penalty not exceeding
         20 penalty units for a contravention of the
         regulations; and
     (h) may provide that an application may be
         made to the Tribunal for the review of a
         decision made under the regulations.
(3) A power conferred by this Act to make
    regulations providing for the imposition of fees
    may be exercised by providing for all or any of
    the following matters—
     (a) specific fees;
     (b) maximum or minimum fees;
     (c) maximum and minimum fees;
     (d) the payment of fees either generally or under
         specified conditions or in specified
         circumstances;
     (e) the reduction, waiver or refund, in whole or
         in part, of the fees.
(4) If under sub-section (3)(e) regulations provide for
    a reduction, waiver or refund, in whole or in part,
    of a fee, the reduction, waiver or refund may be
    expressed to apply either generally or
    specifically—




                    141
                 Rail Safety Act 2006
                   Act No. 9/2006
                    Part 9—General
s. 110


          (a) in respect of certain accreditations or classes
              of accreditations; or
          (b) in respect of certain audits of medical
              records under section 30 or classes of such
              audits; or
          (c) in respect of certificates of compliance
              referred to in section 108 or classes of such
              certificates; or
          (d) when an event happens; or
          (e) in respect of certain persons or classes of
              persons; or
          (f) in respect of any combination of such
              accreditations, audits, certificates, events or
              persons—
         and may be expressed to apply subject to specified
         conditions or in the discretion of any specified
         person or body.
                _________________




                         142
                    Rail Safety Act 2006
                      Act No. 9/2006
         Part 10—Amendment of Transport Act 1983
                                                                   s. 111



 PART 10—AMENDMENT OF TRANSPORT ACT 1983                           See:
                                                                   Act No.
                                                                   9921.
111. Definitions                                                   Reprint No. 10
                                                                   as at
          In section 2(1) of the Transport Act 1983 insert         1 July 2004
                                                                   and
          the following definitions—                               amending
                                                                   Act Nos
          ' "accredited rail operator" has the same                54/2002,
               meaning as in the Rail Safety Act 2006;             69/2003,
                                                                   94/2003,
                                                                   101/2003,
          "Director, Public Transport Safety" or "Safety           108/2004,
              Director" means the person appointed under           110/2004,
                                                                   19/2005,
              section 9L;                                          25/2005 and
                                                                   45/2005.
          "improvement notice" means a notice served               LawToday:
              under section 228ZZC;                                www.dms.
                                                                   dpc.vic.
          "mandatory rail safety decision" means—                  gov.au

                   (a) a decision of the Safety Director under
                       the Rail Safety Act 2006 whether to—
                        (i) accredit or refuse to accredit—
                             (A) the rail infrastructure
                                 operations carried out by a
                                 rail infrastructure manager;
                                 or
                             (B) the rolling stock operations
                                 carried out by a rolling stock
                                 operator; or
                        (ii) to impose, vary or revoke a
                             condition or restriction on an
                             accreditation of an accredited rail
                             operator; or
                       (iii) to vary an accreditation of an
                             accredited rail operator; or




                             143
                 Rail Safety Act 2006
                   Act No. 9/2006
         Part 10—Amendment of Transport Act 1983
s. 111


                (b) a decision of the Safety Director or a
                    transport safety officer to—
                      (i) serve an improvement notice; or
                     (ii) amend an improvement notice
                          under section 228ZZF; or
                (c) a decision of the Safety Director or a
                    transport safety officer to—
                      (i) serve a prohibition notice; or
                     (ii) amend a prohibition notice under
                          section 228ZZL;
         "prohibition notice" means a notice served
             under section 228ZZJ;
         "rail infrastructure manager" has the same
              meaning as in the Rail Safety Act 2006;
         "rail infrastructure operations" has the same
              meaning as in the Rail Safety Act 2006;
         "rail operations" has the same meaning as in the
              Rail Safety Act 2006;
         "rail safety recommendation" means a
              recommendation by the Safety Director to
              the Director for the Director to undertake or
              fund a relevant rail safety project;
         "relevant rail safety project" means any project
              undertaken relating to, or connected with, the
              provision, or operation, of a passenger
              service or rail freight service;
         "relevant transport safety law" means—
                (a) Divisions 4B and 6 of Part VII or any
                    regulations made under this Act for the
                    purposes of those Divisions;
                (b) the Rail Safety Act 2006 or any
                    regulations made under that Act;



                          144
                 Rail Safety Act 2006
                   Act No. 9/2006
         Part 10—Amendment of Transport Act 1983
                                                             s. 112


                (c) section 93A, 93B or 93C of the
                    Electricity Industry Act 2000;
                (d) section 149A, 149B or 149C of the Gas
                    Industry Act 2001;
                (e) Division 4A of Part 4 of the Road
                    Management Act 2004;
                (f) section 137A, 137B or 137C of the
                    Water Act 1989;
                (g) section 62A, 62B or 62C of the Water
                    Industry Act 1994;
                (h) section 23 of the Crimes Act 1958 but
                    only in relation to conduct engaged in
                    by a person on or at, or in the
                    immediate vicinity of, rail
                    infrastructure or rolling stock that
                    places or may place another person in
                    danger of serious injury;
          "rolling stock operations" has the same meaning
               as in the Rail Safety Act 2006;
          "rolling stock operator" has the same meaning
               as in the Rail Safety Act 2006;
          "transport safety officer" means a person
               appointed under section 228T;'.
112. New Subdivision 1 heading inserted into Division 1
     of Part II
          Before section 4 of the Transport Act 1983
          insert—

                    "Subdivision 1—General".




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              113. Objects and functions of the Department
                        After section 4(2)(c) of the Transport Act 1983
                        insert—
                       "(ca) to develop policy for—
                              (i) public transport safety regulation and
                                  related matters; and
                              (ii) the development of legislation relating
                                   to public transport safety regulation and
                                   related matters;".
              114. New Subdivision 2 heading inserted into Division 1
                   of Part II
                        After section 7A of the Transport Act 1983
                        insert—

                              "Subdivision 2—Director of Public
                                         Transport".

              115. Functions and powers of Director
                        After section 9(4) of the Transport Act 1983
                        insert—
                      "(4A) The Director must perform or exercise his or
                            her functions referred to in this section in a
                            safe, efficient and commercial manner.".
S. 116        116. New sections 9AA to 9AC inserted
amended by
No. 47/2006
s. 53(1).
                        After section 9 of the Transport Act 1983
                        insert—
                     "9AA. Contingency planning for exercise of
                           certain powers
                             The Director must develop and maintain a
                             contingency plan for the possible exercise of
                             a power under section 9(4).




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9AB. Director to conduct cost-benefit analysis
     of relevant rail safety projects
  (1) This section applies to a relevant rail safety
      project—
       (a) in relation to which the Safety Director
           makes a rail safety recommendation;
           and
       (b) the Director considers may have the
           effect of resulting in significant costs or
           expenses being incurred by the Crown.
  (2) The Director, before undertaking or funding
      a relevant rail safety project the subject of a
      rail safety recommendation, must—
       (a) conduct or cause to be conducted a
           cost-benefit analysis of the relevant rail
           safety project; and
       (b) consult with—
             (i) the Premier, the Treasurer and any
                 other Minister whose area of
                 responsibility may be affected by
                 the proposed rail safety project;
                 and
             (ii) any other person specified in
                  guidelines prepared under
                  section 9AC.
  (3) The cost-benefit analysis and consultation
      must be conducted—
       (a) in accordance with guidelines prepared
           under section 9AC; and
       (b) before the Director undertakes or funds
           the relevant rail safety project.




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                  9AC. Guidelines for cost-benefit analysis and
                       consultation
                    (1) The Minister may prepare guidelines for the
                        purposes of cost-benefit analyses and
                        consultation conducted under section 9AB.
                    (2) Before preparing guidelines under this
                        section the Minister must consult with the
                        Premier and the Treasurer.
                    (3) Guidelines prepared under this section
                        may—
                         (a) include guidelines about the
                             methodology to be applied in a cost-
                             benefit analysis conducted under
                             section 9AB;
                         (b) require the Director to obtain an
                             independent assessment about the
                             methodology to be applied in a cost-
                             benefit analysis that is conducted under
                             section 9AB;
                         (c) include guidelines about the procedure
                             for consultation under section 9AB.".
         117. New Subdivision 3 of Division 1 of Part II inserted
                   After section 9J of the Transport Act 1983
                   insert—

                     "Subdivision 3—Director, Public Transport
                                     Safety

                   9K. Director, Public Transport Safety
                        There is to be a Director, Public Transport
                        Safety.




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 9L. Appointment and terms and conditions
 (1) The Director, Public Transport Safety is to
     be appointed by the Governor in Council,
     and may be appointed for a period of up to
     5 years.
 (2) A person appointed as the Director, Public
     Transport Safety is to hold office on the
     terms and conditions (including
     remuneration and allowances) set out in the
     instrument by which he or she was
     appointed.
 (3) A person who holds, or has held, the office
     of Director, Public Transport Safety may be
     re-appointed.
 (4) A person who is the Director, Public
     Transport Safety is not, in respect of his or
     her office as the Director, Public Transport
     Safety, subject to the Public Administration
     Act 2004.
9M. When the Safety Director ceases to hold
    office
     A person ceases to be the Director, Public
     Transport Safety—
       (a) at the expiry of his or her term of
           office; or
       (b) if he or she resigns in accordance with
           section 9N; or
       (c) if he or she ceases to hold office under
           section 9O; or
       (d) if he or she becomes an insolvent under
           administration within the meaning of
           the Corporations Act; or




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                (e) if he or she is convicted of an indictable
                    offence or of an offence which, if
                    committed in Victoria, would be an
                    indictable offence; or
                (f) if he or she nominates for election as a
                    member of the Parliament of any
                    jurisdiction.
         9N. Resignation
              The Director, Public Transport Safety may
              resign from office by notice in writing signed
              by him or her and delivered to the Minister.
         9O. Suspension and removal from office for
             misconduct etc.
          (1) The Governor in Council may suspend a
              person from office as the Director, Public
              Transport Safety on the recommendation of
              the Minister.
          (2) The Minister may make such a
              recommendation if he or she is of the
              opinion that the person—
                (a) is incapable (because of disability or
                    otherwise) of performing his or her
                    functions or duties as the Director,
                    Public Transport Safety; or
                (b) has refused or neglected to perform his
                    or functions or duties as the Director,
                    Public Transport Safety; or
                (c) has engaged in misconduct; or
                (d) is otherwise unfit to continue to be the
                    Director, Public Transport Safety.




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 (3) Before making such a recommendation in
     relation to a person, the Minister must—
       (a) give the person written notice that the
           Minister is considering making such a
           recommendation, together with details
           of the reasons why the recommendation
           is being considered; and
       (b) consider any submissions made to him
           or her by, or on behalf of, the person in
           response to the notice.
 (4) If the Governor in Council suspends a person
     as the Director, Public Transport Safety, the
     Minister must, on or before the 3rd sitting
     day of each House of Parliament after that
     suspension, ensure that a statement of the
     grounds for the making of the
     recommendation that the person be
     suspended is laid before the House.
 (5) A person ceases to hold office as the
     Director, Public Transport Safety if each
     House of Parliament declares by resolution,
     passed within 7 sitting days of the House
     after the laying before it of the statement,
     that he or she should cease to hold office.
 (6) The suspension of a person as the Director,
     Public Transport Safety ceases—
       (a) if a resolution that he or she should
           cease to hold office is defeated before
           either House of Parliament; or
       (b) if such a resolution is not passed by
           each House of Parliament within
           7 sitting days of the House after the
           laying before it of the statement.




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          (7) If a person is suspended from office under
              this section, he or she remains entitled to his
              or her remuneration and allowances as the
              Director, Public Transport Safety during the
              period of suspension.
          9P. Acting appointment
          (1) The Governor in Council may appoint a
              person to act in the office of Director, Public
              Transport Safety—
                (a) during a vacancy in that office; or
                (b) during a period or all periods when the
                    person holding that office is absent
                    from duty or is, for any reason, unable
                    to perform the duties of the office.
          (2) An appointment under sub-section (1) is for
              the period, not exceeding 6 months, that is
              specified in the instrument of appointment.
          (3) The Governor in Council may at any time
              remove the acting Director, Public Transport
              Safety from office.
          (4) While a person is acting in the office of the
              Director, Public Transport Safety in
              accordance with this section, the person—
                (a) has, and may exercise, all the powers
                    and must perform all the duties of that
                    office under this Act, the Rail Safety
                    Act 2006, the Public Transport
                    Competition Act 1995 or any other
                    Act; and
                (b) is entitled to be paid the remuneration
                    and allowances that the Director, Public
                    Transport Safety would have been
                    entitled to for performing those duties.




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9Q. Validity of acts and decisions
     An act or decision of the Director, Public
     Transport Safety or acting Director, Public
     Transport Safety is not invalid only
     because—
       (a) of a defect or irregularity in or in
           connection with his or her appointment;
           or
       (b) in the case of an acting Director, Public
           Transport Safety, that the occasion for
           so acting had not arisen or had ceased.
9R. Safety Director not subject to Ministerial
    direction or control
     Subject to sections 9U(2) and 9W, the
     Director, Public Transport Safety, when
     performing or exercising his or her functions
     or powers, is not subject to the direction and
     control of the Minister.
 9S. Immunity
 (1) The Director, Public Transport Safety, or
     acting Director, Public Transport Safety, is
     not personally liable for anything done or
     omitted to be done in good faith—
       (a) in the exercise of a power or the
           discharge of a duty under a relevant
           transport safety law; or
       (b) in the reasonable belief that the act or
           omission was in the exercise of a power
           or the discharge of a duty under a
           relevant transport safety law.
 (2) Any liability resulting from an act or
     omission that would, but for sub-section (1),
     attach to the Director, Public Transport
     Safety or acting Director, Public Transport
     Safety attaches instead to the Crown.


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          9T. Functions of Safety Director
          (1) The Director, Public Transport Safety has the
              following functions—
                (a) any functions conferred on the Director,
                    Public Transport Safety by—
                      (i) this Act, the Rail Safety Act
                          2006, the Public Transport
                          Competition Act 1995 or any
                          other Act;
                     (ii) regulations made under this Act,
                          the Rail Safety Act 2006, the
                          Public Transport Competition
                          Act 1995 or any other Act;
                (b) make recommendations to the Minister
                    with respect to—
                      (i) the operation, administration and
                          enforcement of this Subdivision
                          and Divisions 4B, 6 and 7 of
                          Part VII and regulations made
                          under this Act for the purposes of
                          this Subdivision or those
                          Divisions;
                     (ii) the operation, administration and
                          enforcement of the Rail Safety
                          Act 2006 and regulations made
                          under that Act;
                    (iii) regulations that the Minister may
                          make under the Rail Safety Act
                          2006 or under this Act for the
                          purposes of this Subdivision or
                          Divisions 4B, 6 and 7 of Part VII;




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            (iv) codes of practice that the Minister
                 proposes to approve under Part 8
                 of the Rail Safety Act 2006 or
                 Part 2 of the Public Transport
                 Competition Act 1995;
       (c) advise and make recommendations to
           the Minister in respect of matters
           relating to the safe operation of public
           transport in the State;
       (d) investigate and report on public
           transport safety matters;
       (e) prepare—
             (i) codes of practice (including codes
                 of practice for approval by the
                 Minister under Part 8 of the Rail
                 Safety Act 2006 or Part 2 of the
                 Public Transport Competition
                 Act 1995); and
            (ii) guidelines—
           to provide practical guidance to
           accredited rail operators and any other
           person who may be placed under an
           obligation or duty by or under a
           relevant transport safety law;
       (f) promote education and training by—
             (i) devising, in co-operation with
                 educational and other bodies,
                 courses in public transport safety;
                 and
            (ii) approving courses in public
                 transport safety (whether or not
                 devised in co-operation with
                 another body); and
           (iii) facilitating access to those
                 courses; and


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                     (iv) initiating or promoting events
                          such as conferences and forums,
                          and the publication of
                          information, relating to public
                          transport safety;
                (g) collect information and data relating to
                    public transport safety matters;
                (h) promote awareness in the rail transport
                    industry (including rail safety workers)
                    and among the public about rail safety
                    initiatives;
                (i) develop policy in relation to the
                    administration of public transport safety
                    regulation.
          (2) The functions of the Director, Public
              Transport Safety do not include the function
              of developing policy for—
                (a) public transport safety regulation and
                    related matters; and
                (b) the development of legislation relating
                    to public transport safety regulation and
                    related matters.
          (3) However, the Director, Public Transport
              Safety may advise or comment on the
              development of policy referred to in sub-
              section (2).
         9U. Powers of Safety Director
          (1) The Director, Public Transport Safety may
              do all things that are necessary or convenient
              to enable him or her to carry out his or her
              functions.
          (2) Subject to the approval of the Minister, the
              Director, Public Transport Safety may on
              behalf of the Crown—



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       (a) acquire, hold or dispose of real or
           personal property;
       (b) enter into any agreement, lease or
           licence;
       (c) participate in the formation of a
           corporation, trust, partnership or other
           body;
       (d) subscribe for or otherwise acquire, and
           hold and dispose of, shares in or
           debentures or other securities of, a
           corporation;
       (e) become a member of a company
           limited by guarantee;
       (f) subscribe for or otherwise acquire, and
           hold and dispose of, units in a trust;
       (g) acquire, and hold and dispose of, an
           interest in a partnership or other body;
       (h) enter into partnership or into any
           arrangement for sharing of profits,
           union of interest, co-operation, joint
           venture, reciprocal concession or
           otherwise, with any person or body
           carrying on or engaged in, or about to
           carry on or engage in, any business or
           transaction whether within or outside
           Victoria relating to, or connected with,
           any function of the Director, Public
           Transport Safety;
       (i) engage consultants, contractors or
           agents.
 (3) The Director, Public Transport Safety may
     perform or exercise his or her functions or
     powers within or outside Victoria.




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         9V. Safety Director to have regard to certain
             objectives
              In performing or exercising his or her
              functions or powers, the Director, Public
              Transport Safety must have regard to—
                (a) ensuring that the public transport
                    system achieves the highest safety
                    standards reasonably practicable; and
                (b) ensuring that societal costs are assessed
                    and considered such that the benefits
                    resulting from performing or exercising
                    a function or power are proportionate to
                    those costs; and
                (c) the objects of the Rail Safety Act 2006
                    set out in section 11 of that Act.
         9W. Ministerial direction to investigate public
             transport safety matters
          (1) The Minister may direct the Director, Public
              Transport Safety to investigate a public
              transport safety matter.
          (2) The Minister must not give a direction under
              this section—
                (a) that directs the Director, Public
                    Transport Safety as to how to conduct
                    an investigation into a public transport
                    safety matter; or
                (b) that directs the Director, Public
                    Transport Safety as to which persons
                    the Director, Public Transport Safety
                    may request or direct to assist him or
                    her in investigating a public transport
                    safety matter; or




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       (c) about the outcome of any investigation
           into a public transport safety matter; or
       (d) that directs the Director, Public
           Transport Safety to stop investigating
           any public transport safety matter.
 (3) A direction under this section—
       (a) must be published in the Government
           Gazette; and
       (b) takes effect on it being published in the
           Government Gazette.
 (4) The Minister must cause to be laid before
     each House of Parliament a copy of a
     direction under this section on or before the
     3rd sitting day of the House after the
     direction is published in the Government
     Gazette.
 (5) The Director, Public Transport Safety must
     comply with a direction given under this
     section.
9X. Staff
     There may be employed under Part 3 of the
     Public Administration Act 2004 any
     employees that are necessary to enable the
     Director, Public Transport Safety to carry out
     his or her functions.
9Y. Delegation
     The Director, Public Transport Safety may,
     by instrument, delegate any of his or her
     powers under this Act, the Rail Safety Act
     2006 or the Public Transport Competition
     Act 1995 (other than this power of
     delegation) to—
       (a) a transport safety officer; or



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                (b) any employee employed under Part 3 of
                    the Public Administration Act 2004 to
                    enable the Director, Public Transport
                    Safety to carry out his or her functions;
                    or
                (c) a consultant, contractor or agent
                    engaged by him or her.
          9Z. Information disclosure by Safety Director
           (1) The Safety Director may, if the Safety
               Director thinks it necessary for the safe
               operation of public transport, disclose
               information obtained or collected by the
               Safety Director in the performance or
               exercise of his or her functions or powers
               under this or any other Act to any other
               person.
           (2) The Safety Director may, if he or she thinks
               it desirable for the promotion of the safe
               operation of public transport, publish any
               information, including a report arising out
               of—
                (a) an investigation by him or her of a
                    public transport safety matter; or
                (b) an inquiry under section 59 of the Rail
                    Safety Act 2006.
           (3) A publication under sub-section (2) must not
               identify a person by name.
         9ZA. Safety Director to conduct cost-benefit
              analysis of and consult about mandatory
              rail safety decisions
           (1) This section applies to a mandatory rail
               safety decision that may result in significant
               costs or expenses being incurred by a person
               whose interests are affected by the decision.



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 (2) The Safety Director must—
       (a) conduct or cause to be conducted a
           cost-benefit analysis of a mandatory
           rail safety decision; and
       (b) consult with—
             (i) the Premier, the Treasurer and any
                 other Minister whose area of
                 responsibility may be affected by
                 a mandatory rail safety decision;
                 and
            (ii) the person whose interests are
                 affected by a mandatory rail safety
                 decision.
 (3) The cost-benefit analysis and consultation
     must be conducted—
       (a) in accordance with guidelines prepared
           under section 9ZB; and
       (b) before a mandatory rail safety decision
           is made unless the Safety Director
           considers the mandatory rail safety
           decision must be made immediately to
           protect public safety.
 (4) If a mandatory rail safety decision is made
     immediately to protect public safety, the
     cost-benefit analysis and consultation must
     be conducted as soon as practicable after the
     decision is made.
9ZB. Guidelines
 (1) The Minister may prepare guidelines for the
     purposes of cost-benefit analyses and
     consultation conducted under section 9ZA.
 (2) Before preparing guidelines under this
     section the Minister must consult with the
     Premier and the Treasurer.


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          (3) Guidelines prepared under this section—
                (a) may include guidelines about the
                    methodology to be applied in an
                    analysis conducted under section 9ZA;
                    and
                (b) may require the Safety Director to
                    obtain an independent assessment about
                    the methodology to be applied in a
                    cost-benefit analysis conducted under
                    section 9ZA; and
                (c) must include guidelines about the
                    procedure for consultation under
                    section 9ZA.
         9ZC. Memoranda of understanding
          (1) The Safety Director may enter into a
              memorandum of understanding with the
              Chief Investigator, or any other person or
              body that is permitted by the regulations,
              about the performance or exercise of their
              respective functions or powers.
          (2) A memorandum of understanding—
                (a) must include such matters, if any,
                    required by the regulations; and
                (b) may include any other matters that the
                    parties to the memorandum consider
                    appropriate.
          (3) The Safety Director must ensure that a
              memorandum of understanding that he or she
              enters into is published—
                (a) in the Government Gazette; and
                (b) on the internet.




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        9ZD. Power to give advice on compliance
           (1) The Safety Director may give advice to a
               person who has a duty or obligation under a
               relevant transport safety law about
               complying with that duty or obligation.
           (2) The giving of such advice by the Safety
               Director does not give rise to—
                (a) any liability of, or other claim against,
                    the Safety Director; or
                (b) any right, expectation, duty or
                    obligation that would not otherwise be
                    conferred or imposed on the person
                    given the advice; or
                (c) any defence that would not otherwise
                    be available to that person.
           (3) The Safety Director's power under this
               section to give advice may also be exercised
               by a transport safety officer or, if the Safety
               Director authorises any other person to
               exercise the power, that other person.".
118. New Subdivision 4 heading inserted into Division 1
     of Part II
          Before section 10 of the Transport Act 1983
          insert—

              "Subdivision 4—Provisions relating to
                      Passenger Services".

119. Repeal
          Divisions 2 and 3 of Part VI of the Transport Act
          1983 are repealed.




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         120. Amendment of heading to Part VII
                   In the heading to Part VII of the Transport Act
                   1983, after "PENALTIES" insert "AND
                   OTHER MATTERS".
         121. Definition
                   In section 208 of the Transport Act 1983, in the
                   definition of "safety work infringement"—
                    (a) for "94(1)(a), (d) or (e)" substitute
                        "76(1)(a), (g) or (h) of the Rail Safety Act
                        2006";
                    (b) in paragraph (b), for "93(7)" substitute
                        "74 of the Rail Safety Act 2006".
         122. New Division 4AAA of Part VII inserted
                   After section 221T of the Transport Act 1983
                   insert—

                    'Division 4AAA—Transport Safety Offences

                            Subdivision 1—Interpretation

                 221U. Definitions
                        In this Division—
                        "authorised person" means—
                              (a) a person employed by a passenger
                                  transport company or a bus
                                  company who has duties in
                                  relation to the operation of a road
                                  vehicle or a rail vehicle operated
                                  by the passenger transport
                                  company or bus company; or
                              (b) a member of the police force; or




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            (c) an authorised officer; or
            (d) a transport safety officer; or
            (e) any other person appointed in
                writing by a passenger transport
                company, a rail freight operator,
                Rail Track or the Director for the
                purposes of this Division;
     "bicycle" means a vehicle with one or more
          wheels that is built to be propelled by
          human power through a belt, chain or
          gears (whether or not it has an auxiliary
          motor), and—
            (a) includes a pedicab, penny-
                farthing, scooter, tricycle and
                unicycle;
            (b) does not include a wheelchair,
                wheeled recreational device,
                wheeled toy, or any vehicle with
                an auxiliary motor capable of
                generating a power output over
                200 watts (whether or not the
                motor is operating);
     "commercial passenger vehicle" has the
         same meaning as in section 86(1);
     "container weight declaration" for a
         freight container means a declaration
         that states, or that purports to state, the
         weight of the container and its contents;
     "freight container" has the same meaning
          as in the Road Safety Act 1986;




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              "level crossing" means—
                     (a) an area where a road and railway
                         tracks cross at substantially the
                         same level, whether or not there is
                         a level crossing sign on the road at
                         all or any of the entrances to the
                         area; or
                     (b) an area where a road and tramway
                         tracks cross at substantially the
                         same level and that has a level
                         crossing sign on the road at each
                         entrance to the area;
                    Note: Rule 120 of the Road Rules includes
                          diagrams of level crossing signs. As to
                          what are the Road Rules, see the Road
                          Safety (Road Rules) Regulations 1999.
              "operator", in relation to a vehicle, means a
                  person who is responsible for
                  controlling or directing the operations
                  of the vehicle in connection with a
                  business for, or involving, the transport
                  of goods or passengers by road but does
                  not include a person who merely—
                     (a) arranges for the registration of the
                         vehicle; or
                     (b) maintains, or arranges for the
                         maintenance of, the vehicle;
              "private omnibus" means a motor vehicle
                   that is used for operating a private bus
                   service within the meaning of the
                   Public Transport Competition Act
                   1995;




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     "rail premises" means any land, building,
          premises or structure owned, occupied
          or leased by—
            (a) a passenger transport company or
                the Director in connection with
                their capacity as providers of
                passenger services; or
            (b) a rail freight operator in
                connection with its capacity as a
                provider of a rail freight service;
                or
            (c) Rail Track;
     "railway track" means a railway used by a
          passenger transport company, rail
          freight operator or the Director to
          operate a railway for the carriage of
          passengers or freight;
     "rail vehicle" means a vehicle that operates
          on or uses a railway track for the
          carriage of passengers or freight and
          includes a train, carriage and wagon;
     "road vehicle" means any vehicle propelled
         by any form of motive power that is
         used or intended for use by a passenger
         transport company, bus company or rail
         freight operator for the carriage of
         passengers or freight on any road and
         includes—
            (a) a tram that operates on or uses a
                tramway track;
            (b) a commercial passenger vehicle
                that is not a taxi-cab;
            (c) a private omnibus;
     "taxi-cab" has the same meaning as in
          section 86(1);


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              "tramway track" means a railway used by
                  a passenger transport company or the
                  Director to operate a tramway for the
                  carriage of passengers;
              "vehicle" means a conveyance that is
                  designed to be propelled or drawn by
                  any means, whether or not capable of
                  being so propelled or drawn, and
                  includes—
                     (a) a motor vehicle;
                     (b) a trailer;
                     (c) a tram;
                     (d) a train;
                     (e) a bicycle;
                      (f) an air-cushion vehicle;
                     (g) an animal that is being ridden or is
                         drawing a vehicle;
                     (h) a combination of motor vehicles
                         consisting of a motor vehicle
                         connected to one or more
                         vehicles—
                    but does not include—
                      (i) a wheelchair other than a
                          motorised wheelchair capable of a
                          speed of 10 kilometres per hour or
                          more; or
                      (j) a wheeled recreational device; or
                     (k) a wheeled toy;
              "wheeled recreational device" means a
                  wheeled device, built to transport a
                  person, propelled by human power or
                  gravity, and ordinarily used for
                  recreation or play, and—


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              (a) includes rollerblades, rollerskates,
                  a skateboard or similar wheeled
                  device;
              (b) does not include a golf buggy,
                  pram, stroller or trolley, or a
                  bicycle, wheelchair or wheeled
                  toy;
       "wheeled toy" means a child's pedal car,
           scooter or tricycle or a similar toy.
221V. Exclusion of mistake of fact defence
   (1) This section applies if a provision of this
       Division states that a person does not have
       the benefit of the mistake of fact defence for
       an offence.
   (2) It is not a defence to a charge for the offence
       for the person to prove that, at or before the
       time of the conduct constituting the offence,
       the person was under a mistaken but honest
       and reasonable belief about facts which, had
       they existed, would have meant that the
       conduct would not have constituted an
       offence.
221W. Statement that mistake of fact defence
      does not apply not to affect other offences
       A statement in this Division that a person
       does not have the benefit of the mistake of
       fact defence is solely intended for the
       purposes of this Division, and it is not
       intended to affect the question of whether
       that defence is, or is not, available to a
       person in relation to any offence outside this
       Division.




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                       Subdivision 2—Offences

         221X. Overdimensional vehicles crossing tracks
           (1) A person must not, without the written
               permission of the Director, drive or attempt
               to drive or convey across a railway track—
                 (a) a vehicle with a mass limit that exceeds
                     a mass limit for that vehicle under the
                     Road Safety (Vehicles) Regulations
                     1999; or
                 (b) a vehicle which, either by itself or in
                     combination with any load carried by it,
                     exceeds—
                       (i) the maximum allowable length; or
                      (ii) the maximum allowable height
                           (when measured from the highest
                           surface of the track to be crossed);
                           or
                     (iii) the maximum allowable width—
                     specified by notice under section
                     221ZA; or
                 (c) a vehicle which may obstruct, displace
                     or interfere with—
                       (i) the track to be crossed; or
                      (ii) any overhead power line of a
                           rolling stock operator in the
                           vicinity of the track.
               Penalty: 20 penalty units.




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 (2) A person must not, without the written
     permission of the Director, drive or attempt
     to drive or convey across a tramway track—
       (a) a vehicle with a mass limit that exceeds
           a mass limit for that vehicle under the
           Road Safety (Vehicles) Regulations
           1999; or
       (b) a vehicle which, either by itself or in
           combination with any load carried by it,
           exceeds—
             (i) the maximum allowable length; or
             (ii) the maximum allowable height
                  (when measured from the highest
                  surface of the track to be crossed);
                  or
            (iii) the maximum allowable width—
           specified by notice under section
           221ZA; or
       (c) a vehicle which may obstruct, displace
           or interfere with the track to be crossed
           or with any overhead power line or
           support wires of a rolling stock operator
           in the vicinity of the track.
     Penalty: 20 penalty units.
 (3) A person charged with an offence under sub-
     section (1) or (2) does not have the benefit of
     the mistake of fact defence.
      Note: Section 221V sets out how sub-section (3)
            operates.




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          (4) If a vehicle that exceeds a mass limit for that
              vehicle under the Road Safety (Vehicles)
              Regulations 1999 is driven or attempted to
              be driven or conveyed—
                (a) across a railway track in contravention
                    of sub-section (1); or
                (b) across a tramway track in contravention
                    of sub-section (2)—
              the person charged with an offence under
              sub-section (1) or (2) has the benefit of the
              reasonable steps defence so far as it relates to
              reliance on the weight stated in a container
              weight declaration.
               Note: Section 221Z sets out how this defence
                     operates.
          (5) The Director may grant permission under
              sub-section (1) or (2) and may impose
              conditions on that permission.
          (6) A person must comply with any conditions
              imposed by the Director in granting
              permission under sub-section (1) or (2).
              Penalty: 20 penalty units.
          (7) The fee for the granting of permission is the
              fee specified by notice under section 221ZA.
          (8) If, in the Director's opinion, one or more of
              the Department's employees or passenger
              transport company, rail freight operator or
              Rail Track employees or agents must, in the
              interests of safety, be present when the
              vehicle crosses the railway track or the
              tramway track the Director may, in addition
              to the fee referred to in sub-section (6)
              impose the further charge specified by notice
              under section 221ZA.




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  (9) The Director may—
        (a) refund, in whole or in part, any fee or
            charge paid, under this section; or
        (b) waive, in whole or in part, any fee or
            charge payable, under this section.
221Y. Operators of overdimensional vehicles
      crossing tracks without permission also
      guilty of offence
  (1) If a vehicle is driven or attempted to be
      driven or conveyed—
        (a) across a railway track in contravention
            of section 221X(1); or
        (b) across a tramway track in contravention
            of section 221X(2); or
        (c) not in accordance with a condition
            imposed by the Director on a
            permission under section 221X(1)
            or (2)—
      the operator of the vehicle is guilty of an
      offence and is liable to a penalty not
      exceeding 20 penalty units.
  (2) A person charged with an offence under this
      section does not have the benefit of the
      mistake of fact defence.
       Note: Section 221V sets out how sub-section (2)
             operates.
  (3) If a vehicle that exceeds a mass limit for that
      vehicle under the Road Safety (Vehicles)
      Regulations 1999 is driven or attempted to
      be driven or conveyed—
        (a) across a railway track in contravention
            of section 221X(1); or




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                 (b) across a tramway track in contravention
                     of section 221X(2)—
               the person charged with an offence under
               sub-section (1)(a) or (b) has the benefit of
               the reasonable steps defence so far as it
               relates to reliance on the weight stated in a
               container weight declaration.
                Note: Section 221Z sets out how this defence
                      operates.
         221Z. Reasonable steps defence—reliance on
               container weight declaration
           (1) This section applies if—
                 (a) a person is charged with an offence
                     under section 221X(1) or (2); or
                 (b) the operator of a vehicle is charged
                     with an offence under section
                     221Y(1)(a) or (b)—
               and the person or operator has (as the case
               requires) the benefit, under section 221X(4)
               or 221Y(3), of the reasonable steps defence
               so far as it relates to reliance on the weight
               stated in a container weight declaration.
           (2) To the extent that the weight of a freight
               container and its contents is relevant to the
               offence, the person charged may rely on the
               weight stated in the relevant container
               weight declaration, unless it is established
               that the person knew, or ought reasonably to
               have known, that—
                 (a) the stated weight was lower than the
                     actual weight; or




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          (b) the distributed weight of the container
              and its contents, together with—
                (i) the mass or location of any other
                    load; or
               (ii) the mass of the vehicle or any part
                    of it—
              would result in the breach of a mass
              limit under the Road Safety (Vehicles)
              Regulations 1999.
221ZA. Specification of vehicle limits and fees for
       overdimensional vehicles crossing tracks
    (1) The Director, by notice published in the
        Government Gazette, may specify—
          (a) the maximum allowable length, height
              or width for a vehicle either by itself or
              in combination with any load carried by
              it for the purposes of section 221X(1)
              or (2);
          (b) the fee payable for the granting of
              permission under section 221X;
          (c) the further charge payable for the
              purposes of section 221X(8).
    (2) The further charge specified by notice under
        this section for the purposes of section
        221X(8) may differ according to differences
        in time, place or circumstance.
221ZB. Animals on railway tracks
        A person must not take or attempt to take an
        animal across railway tracks at a pedestrian
        or level crossing—
          (a) when warning signals or devices are
              operating at the crossing; or




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                  (b) when gates at the crossing are closed or
                      locked; or
                  (c) when a rail vehicle is entering the
                      crossing; or
                  (d) when a rail vehicle can be seen or heard
                      approaching and there would be a
                      danger of a collision with the animal if
                      it entered the crossing; or
                  (e) if the crossing or the path beyond the
                      crossing is blocked; or
                   (f) when directed not to do so by an
                       authorised person.
                 Penalty: 20 penalty units.
         221ZC. Placing things on tracks
                 A person must not place any thing on a
                 railway track or a tramway track unless the
                 person is driving a vehicle and places the
                 vehicle on a railway track or tramway track
                 in the normal course of driving.
                 Penalty: 20 penalty units.
         221ZD. Mounting a place not intended for
                travel etc.
             (1) A person must not, without reasonable
                 excuse, mount or attempt to mount a part of
                 a locomotive, rail vehicle or road vehicle not
                 intended for the purpose of travel by
                 passengers.
                 Penalty: 15 penalty units.
                 Example
                 Mounting roof of a rail vehicle or road vehicle,
                 leading brake van of a rail vehicle, brake van of a rail
                 vehicle, driver's cabin of a road vehicle, coupling or
                 communication platform of a rail vehicle.




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    (2) A person must not, without reasonable
        excuse, walk or climb on any part of rail
        premises not intended for use by passengers
        or the public.
        Penalty: 15 penalty units.
221ZE. Travelling in a place not intended for
       travel etc.
    (1) A person must not, without reasonable
        excuse, travel or attempt to travel on a part
        of a locomotive, rail vehicle or road vehicle
        not intended for the purpose of travel.
        Penalty: 20 penalty units.
        Example
        Travelling on the roof of a rail vehicle or road vehicle,
        leading brake van of a rail vehicle, brake van of a rail
        vehicle, driver's cabin of a road vehicle, coupling or
        communication platform of a rail vehicle.
    (2) A rider of a bicycle or a person in or on a
        wheeled recreational device or wheeled toy
        must not attach or attempt to attach himself
        or herself or another person or the bicycle,
        wheeled recreational device or wheeled toy
        to the exterior of a rail vehicle or road
        vehicle for any purpose.
        Penalty: 20 penalty units.
        Example
        A bicycle rider attached to a tram to enable the rider
        and the bicycle to be pulled along behind the tram.




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         221ZF. Applying brake or emergency device
                 A person must not, without reasonable
                 excuse—
                   (a) apply any brake or make use of any
                       emergency device fitted to a rail vehicle
                       or road vehicle; or
                   (b) make use of any emergency device on
                       rail premises.
                 Penalty: 20 penalty units.
                 Example
                 Emergency devices include an emergency button on a
                 station communication board or on an escalator.
         221ZG. Stopping a rail vehicle or road vehicle
                 A person must not, without reasonable
                 excuse, cause or attempt to cause a rail
                 vehicle or road vehicle in motion to be
                 stopped.
                 Penalty: 20 penalty units.
         221ZH. Operating equipment
             (1) A person must not, without the permission of
                 an authorised person—
                   (a) move or attempt to move;
                   (b) interfere or attempt to interfere with;
                   (c) tamper or attempt to tamper with;
                   (d) operate or attempt to operate—
                 any equipment, rail vehicle or road vehicle,
                 owned or operated by a passenger transport
                 company, bus company or the Director in
                 connection with the operation of a passenger
                 service.
                 Penalty: 20 penalty units.



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           (2) A person must not, without the permission of
               an authorised person—
                (a) move or attempt to move;
                (b) interfere or attempt to interfere with;
                (c) tamper or attempt to tamper with;
                (d) operate or attempt to operate—
               any equipment, rail vehicle, owned or
               operated by a rail freight operator in
               connection with its rail freight service or by
               Rail Track.
               Penalty: 20 penalty units.
       221ZI. Permitting drainage
               A person must not cause or permit drainage
               or sewage to flow or empty from any
               premises occupied by the person onto land or
               premises the property of Rail Track.
               Penalty: 20 penalty units.'.
123. Repeal of certain offences
          Section 222 of the Transport Act 1983 is
          repealed.
124. New section 223 substituted
          For section 223 of the Transport Act 1983
          substitute—
        "223. Offence to trespass on land or premises of
              Roads Corporation or Rail Track
               A person must not wilfully trespass on any
               land or premises owed or occupied by the
               Roads Corporation or Rail Track.
               Penalty: 20 penalty units.".




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S. 125        125. New Division 4B of Part VII inserted
amended by
No. 47/2006            After section 228R of the Transport Act 1983
ss 46–49,              insert—
53(2).

                           'Division 4B—Enforcement of Relevant
                                    Transport Safety Laws

                                 Subdivision 1—Interpretation

                      228S. Definitions
                         (1) In this Division—
                            "approved code of practice" has the same
                                meaning as in the Rail Safety Act
                                2006;
                            "compliance and investigative purposes"
                                includes purposes—
                                   (a) related to ascertaining whether a
                                       relevant transport safety law has
                                       been or is being complied with,
                                       including whether an offence has
                                       been committed against a relevant
                                       transport safety law;
                                   (b) related to ascertaining whether an
                                       approved compliance code has
                                       been or is being complied with;
                                   (c) related to an investigation into a
                                       public transport safety matter;
                                   (d) related to an audit under
                                       Division 5 of Part 3 of the Rail
                                       Safety Act 2006;




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     "contractor", in relation to an accredited
         rail operator, means a person engaged
         directly or indirectly by the accredited
         rail operator to supply rail
         infrastructure operations or rolling
         stock operations to that accredited rail
         operator, and includes a sub-contractor;
     "major incident" has the same meaning as
         in the Rail Safety Act 2006;
     "officer" has the same meaning as in the
           Rail Safety Act 2006;
     "person" has the same meaning as in the
          Rail Safety Act 2006;
     "premises" includes any structure, building
         or place (whether built on or not), and
         any part of such structure, building or
         place;
     "rail infrastructure" has the same meaning
          as in the Rail Safety Act 2006;
     "railway" has the same meaning as in the
          Rail Safety Act 2006;
     "rail operations" means rail infrastructure
          operations or rolling stock operations;
     "railway premises" has the same meaning
          as in the Rail Safety Act 2006;
     "rail safety worker" has the same meaning
          as in the Rail Safety Act 2006;
     "relevant person" means—
            (a) a rail operator or an accredited rail
                operator; or
            (b) an employee of a rail operator or
                accredited rail operator; or




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                     (c) a contractor of an accredited rail
                         operator; or
                     (d) a rail safety worker; or
                     (e) a utility; or
                      (f) an employee of a utility; or
                     (g) a works contractor within the
                         meaning of section 85 of the
                         Electricity Industry Act 2000,
                         section 48A of the Road
                         Management Act 2004, section
                         137A(4) of the Water Act 1989
                         or section 62A(4) of the Water
                         Industry Act 1994; or
                     (h) a person authorised in writing by a
                         gas distribution company or gas
                         transmission company under
                         section 148(7) or 149(6) of the
                         Gas Industry Act 2001;
                      (i) a person whom the Safety
                          Director or a transport safety
                          officer believes on reasonable
                          grounds may be able to provide
                          information, documents or
                          assistance for compliance and
                          investigative purposes;
              "residential premises" means premises, or
                   a part of premises, that is used for
                   predominantly residential purposes;
              "retention period" means a period of
                   90 days after the seizure of a thing
                   under Subdivision 4 or a search warrant
                   executed in accordance with
                   Subdivision 5;




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       "rolling stock" has the same meaning as in
            the Rail Safety Act 2006;
       "utility" means—
              (a) an entity (whether publicly or
                  privately owned) which provides,
                  or intends to provide, water,
                  sewerage, drainage, gas,
                  electricity, telephone,
                  telecommunication or other like
                  services under the authority of an
                  Act of Victoria or the
                  Commonwealth;
              (b) a road authority within the
                  meaning of the Road
                  Management Act 2004;
       "volunteer" has the same meaning as in the
            Rail Safety Act 2006.
   (2) For the purposes of this Division, a premises
       or a part of a premises, that is used for the
       carrying out of rail operations, is not to be
       taken to be residential premises merely
       because sleeping or other accommodation is
       provided there to rail safety workers.
228SA. Crown to be bound
   (1) This Division binds the Crown, not only in
       right of Victoria but also, so far as the
       legislative power of the Parliament permits,
       the Crown in all its other capacities.
   (2) To avoid doubt, the Crown is a body
       corporate for the purposes of this Division.




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                Subdivision 2—Transport Safety Officers

           228T. Appointment
         (1) The Safety Director, by instrument, may appoint
             as a transport safety officer any person (including
             any person employed in the Department under
             Part 3 of the Public Administration Act 2004)
             who is suitably qualified or trained to exercise the
             powers of a transport safety officer under a
             relevant transport safety law.
         (2) An appointment under this section is for a term,
             and subject to the conditions, specified in the
             instrument.
         (3) Without limiting the conditions to which the
             appointment of a transport safety officer may be
             subject, a condition may specify one or more of
             the following—
              (a) the functions and powers under a relevant
                  transport safety law that may not be
                  exercised by the transport safety officer;
              (b) the only functions and powers under a
                  relevant transport safety law that may be
                  exercised by the transport safety officer;
              (c) the circumstances or manner in which a
                  function or power under a relevant transport
                  safety law may be performed by the transport
                  safety officer.
           228U. Identity cards
              (1) The Safety Director must issue an identity
                  card to a transport safety officer appointed
                  under section 228T.
              (2) An identity card must—
                    (a) contain the name and a photograph of
                        the transport safety officer to whom it
                        is issued; and


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         (b) identify the transport safety officer to
             whom it is issued as a transport safety
             officer appointed under this Division.
228V. Return of identity cards
       If a person to whom an identity card has
       been issued ceases to be a transport safety
       officer, the person must return the identity
       card to the Safety Director as soon as
       practicable.
       Penalty: 5 penalty units.
228W. Production of identity card
   (1) A transport safety officer must produce his
       or her identity card for inspection—
         (a) before exercising a power under a
             relevant transport safety law; or
         (b) if asked to do so by any person at any
             time during the exercise of a power
             under a relevant transport safety law.
   (2) However, a transport safety officer need not
       produce his or her identity card when asked
       to do so if—
         (a) the officer reasonably believes that the
             production of his or her identity card
             would—
               (i) affect the safety or welfare of any
                   person; or
              (ii) frustrate the effective exercise of a
                   power under a relevant transport
                   safety law; or
         (b) the request to produce his or her
             identity card is made by a person to
             whom the officer has already produced
             that identity card on the same day



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                     before exercising a power under a
                     relevant transport safety law.
            (3) Any action taken or thing done by a transport
                safety officer under a relevant transport
                safety law is not invalidated by his or her
                failure to produce his or her identity card.
         228X. Transport safety officers subject to Safety
               Director's direction
            (1) The Safety Director may give a direction to a
                transport safety officer in relation to that
                officer's performance or exercise of a
                function or power under a relevant transport
                safety law.
            (2) A direction under sub-section (1) may be of
                general nature or may relate to a specified
                matter or class of matter.
         228Y. Investigation by Ombudsman of actions
               etc. of transport safety officers
            (1) The Ombudsman may enquire into or
                investigate—
                 (a) any action taken by a person who is a
                     relevant transport safety officer who in
                     the person's capacity as a transport
                     safety officer; and
                 (b) any matter relating to such an action.
            (2) For the purposes of sub-section (1), the
                Ombudsman Act 1973 applies as if—
                 (a) the employer of the person was a public
                     statutory body within the meaning of
                     that Act; and
                 (b) the senior executive officer of the
                     employer (by whatever title he or she is
                     known) was the principal officer of that
                     public statutory body.


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    (3) In this section—
        "relevant transport safety officer" means a
             transport safety officer employed by
             any person other than a public statutory
             body within the meaning of the
             Ombudsman Act 1973.

           Subdivision 3—Powers of Entry

 228Z. Power of entry
        A transport safety officer may, for
        compliance and investigative purposes—
         (a) enter, without consent, any railway
             premises at any time during which rail
             operations or other related activities are
             being carried out or are usually carried
             out in or on the railway premises; or
         (b) enter any railway premises or
             residential premises at any time if—
               (i) the occupier of the railway
                   premises or residential premises
                   consents to the entry of those
                   premises; or
              (ii) the transport safety officer is
                   authorised to do so under a search
                   warrant.
228ZA. Procedure for entry with consent
    (1) This section applies if a transport safety
        officer intends to ask an occupier of a
        railway premises or residential premises to
        consent to that officer entering the railway
        premises or residential premises in
        accordance with section 228Z(b)(i).




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          (2) Before asking for the consent, the officer
              must inform the occupier—
                (a) of 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 acknowledgment of
              the consent.
          (4) The acknowledgment must state—
                (a) that the occupier has been informed—
                      (i) of 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 Division; and
                (d) the time and date the consent was
                    given.
          (5) If the occupier signs the acknowledgment,
              the transport safety officer must immediately
              give a copy to the occupier.
          (6) If, in any proceeding, an acknowledgment of
              the consent is not produced to the court, it
              must be presumed, until the contrary is
              proved, that the occupier did not consent to
              the entry by a transport safety officer and the
              exercise of powers by that officer under this
              Division.




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   Subdivision 4—Inspection, Inquiry, Search and
                 Seizure Powers

228ZB. General inspection, inquiry and search
       powers
    (1) A transport safety officer who enters railway
        premises or residential premises under this
        Division may, for compliance and
        investigative purposes, do any of the
        following—
         (a) inspect rail infrastructure or a part of
             rail infrastructure, rolling stock or any
             other thing in or on the railway
             premises;
         (b) inquire into any railway accident or
             other incident affecting the—
               (i) safe operation, construction,
                   maintenance, repair or alteration
                   of rail infrastructure in or on the
                   railway premises; or
              (ii) safe operation, maintenance,
                   repair or alteration of rolling stock
                   in or on the railway premises;
         (c) take measurements, make surveys and
             take levels and, for those purposes, dig
             trenches, break up the soil and set up
             any posts, stakes or markers in or on
             the railway premises;
         (d) make tests or sketches in connection
             with any inspection or inquiry;
         (e) take samples, photographs or film,
             videotape or otherwise record images
             or record sound in connection with any
             inspection or inquiry;




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                   (f) search for any thing that may be
                       evidence of the commission of an
                       offence against a relevant transport
                       safety law or a breach of the conditions
                       or restrictions of an accreditation of an
                       accredited rail operator;
                  (g) search for and inspect relevant
                      documents;
                  (h) require a person in or on the railway
                      premises to produce to the officer, any
                      relevant documents in the person's
                      custody or under the person's control;
                   (i) make copies of, or take extracts from,
                       any document kept in or on the railway
                       premises;
                   (j) exercise any other power conferred on
                       the officer by this Act.
             (2) In doing any thing referred to in sub-
                 section (1), a transport safety officer may be
                 assisted by any person.
             (3) A film, photograph, videotape or image
                 taken under sub-section (1)(e) of rolling
                 stock, or of any part of rolling stock, is not
                 inadmissible as evidence by reason only of
                 the fact that it includes the likeness of one or
                 more of the rolling stock's passengers if the
                 capturing of that likeness does not appear to
                 have been the main reason for the taking of
                 the film, photograph, videotape or image.
         228ZC. Securing a site
             (1) A transport safety officer may take all
                 reasonable steps to secure the perimeter of
                 any site at a railway premises entered into
                 under this Division if he or she believes on
                 reasonable grounds that it is necessary—



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          (a) for the purpose of ascertaining whether
              an offence has been committed against
              a relevant transport safety law; or
          (b) to preserve evidence relating to the
              commission of an offence against a
              relevant transport safety law.
    (2) The perimeter of a site secured under this
        section may be for a period that the transport
        safety officer considers appropriate or the
        Safety Director specifies.
228ZD. Offence to enter secured site
        A person must not enter a site the perimeter
        of which has been secured under section
        228ZC unless the person has a reasonable
        excuse.
        Penalty: 60 penalty units.
228ZE. Seizure power
        A transport safety officer who enters railway
        premises or residential premises under this
        Division may seize any thing at that premises
        if that officer reasonably believes that the
        seizure of the thing is necessary for
        compliance and investigative purposes.
228ZF. Use of equipment to examine or process
       things
    (1) A transport safety officer may bring on to
        any railway premises or residential premises
        any equipment reasonably necessary for the
        examination or processing of things found at
        the railway premises or residential premises
        in order to determine whether they are things
        that may be seized.




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             (2) The transport safety officer, or a person
                 assisting the transport safety officer, may
                 operate equipment already at the railway
                 premises or residential premises to carry out
                 the examination or processing of a thing
                 found at the railway premises or residential
                 premises in order to determine whether it is a
                 thing that may be seized, if the transport
                 safety officer or person assisting believes on
                 reasonable grounds that—
                  (a) the equipment is suitable for the
                      examination or processing; and
                  (b) the examination or processing can be
                      carried out without damage to the
                      equipment or the thing.

                   Subdivision 5—Search Warrants

         228ZG. Search warrant
             (1) A transport safety officer may apply to a
                 magistrate for the issue of a search warrant
                 in relation to particular railway premises or
                 residential premises if the transport safety
                 officer believes on reasonable grounds that
                 there is, or may be within the next 72 hours,
                 in, or on, the railway premises or residential
                 premises evidence of the commission of an
                 offence against a relevant transport safety
                 law.
             (2) If a magistrate is satisfied that there are
                 reasonable grounds for suspecting that there
                 is, or may be within the next 72 hours, in or
                 on railway premises or residential premises a
                 thing or things of a particular kind that may
                 be evidence of the commission of an offence
                 against relevant transport safety law, the
                 magistrate may issue a search warrant
                 authorising a transport safety officer named


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     in the warrant and any assistants the
     transport safety officer considers
     necessary—
       (a) to enter the railway premises or
           residential premises, or the part of
           railway premises or residential
           premises, named or described in the
           warrant; and
       (b) to search for and seize any thing named
           or described in the warrant.
 (3) In addition to any other requirement, a
     search warrant issued under this section must
     state—
       (a) the offence suspected; and
       (b) the railway premises or residential
           premises to be searched; and
       (c) a description of the thing for which the
           search is to be made; and
       (d) any conditions to which the warrant is
           subject; and
       (e) whether entry is authorised to be made
           at any time or during stated hours; and
       (f) a day, not later than 7 days after the
           issue of the warrant, on which the
           warrant ceases to have effect.
 (4) A search warrant must be issued in
     accordance with the Magistrates' Court Act
     1989 and in the form set out in the
     regulations under that Act.
 (5) Despite section 78 of the Magistrates'
     Court Act 1989, a search warrant must not
     authorise a transport safety officer to arrest a
     person.



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             (6) Subject to any provision to the contrary in
                 this Division, the rules to be observed with
                 respect to search warrants mentioned in the
                 Magistrates' Court Act 1989 extend and
                 apply to warrants under this section.
         228ZH. Seizure of things not mentioned in the
                warrant
                 A search warrant authorises the transport
                 safety officer executing the warrant, in
                 addition to the seizure of any thing of the
                 kind described in the warrant, to seize any
                 thing which is not of the kind described in
                 the warrant if—
                   (a) the transport safety officer believes, on
                       reasonable grounds, that the thing—
                         (i) is of a kind which could have been
                             included in a warrant issued under
                             this Division; or
                        (ii) will afford evidence about the
                             commission of an offence against
                             a relevant transport safety law;
                             and
                   (b) in the case of seizure, the transport
                       safety officer believes, on reasonable
                       grounds, that it is necessary to seize
                       that thing in order to prevent its
                       concealment, loss or destruction or its
                       use in the commission of an offence
                       against a relevant transport safety law.
         228ZI. Announcement before entry
             (1) Before executing a search warrant, the
                 transport safety officer named in the warrant
                 or a person assisting the transport safety
                 officer must announce that he or she is
                 authorised by the warrant to enter the railway
                 premises or residential premises and give


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        any person at the railway premises or
        residential premises an opportunity to allow
        entry to the railway premises or residential
        premises.
    (2) The transport safety officer or a person
        assisting the transport safety officer need not
        comply with sub-section (1) if he or she
        believes on reasonable grounds that
        immediate entry to the railway premises or
        residential premises is required to ensure—
         (a) the safety of any person; or
         (b) that the effective execution of the
             search warrant is not frustrated.
228ZJ. Copy of warrant to be given to occupier
        If the occupier or another person who
        apparently represents the occupier is present
        at any railway premises or residential
        premises when a search warrant is being
        executed, the transport safety officer must—
         (a) identify himself or herself to that
             person by producing his or her identity
             card for inspection by that person; and
         (b) give to that person a copy of the
             execution copy of the warrant.

              Subdivision 6—Directions

228ZK. Power to require production of documents
       and related items
    (1) A transport safety officer may, for
        compliance and investigative purposes,
        direct a relevant person to provide to the
        transport safety officer—
         (a) any document required to be kept under
             a relevant transport safety law; and


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                (b) any documents, devices or other things
                    in his, her or its possession or control
                    relating to rail operations.
          (2) The direction must state where and to whom
              the documents, devices or other things are to
              be produced.
          (3) In giving a direction, the transport safety
              officer may specify particular documents,
              devices or other things, or particular classes
              of documents, devices or other things.
          (4) The transport safety officer may do any or all
              of the following—
                (a) inspect any documents, devices or other
                    things that are produced;
                (b) copy any documents, devices or other
                    things that are produced;
                (c) seize and remove any documents,
                    devices or other things that are
                    produced that the transport safety
                    officer believes on reasonable grounds
                    provide, or may on further inspection
                    provide, evidence of a contravention of
                    a relevant transport safety law.
          (5) A relevant person must not refuse or fail to
              comply with a direction under sub-
              section (1) unless the relevant person has a
              reasonable excuse.
               Penalty: 60 penalty units.
         Note: Section 228ZY sets out the manner in which a
               direction may be given under this Division by a
               transport safety officer.




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228ZL. Direction to provide reasonable assistance
    (1) A transport safety officer may direct a
        relevant person to provide assistance to the
        transport safety officer to enable the
        transport safety officer effectively to exercise
        a power under this Division.
    (2) Without limiting sub-section (1), the
        transport safety officer may direct the person
        to do any or all of the following—
          (a) to find and gain access to electronically
              stored information;
          (b) to find and gain access to any
              information relating to rail operations
              in a useable form for the purpose of
              ascertaining compliance with any
              requirements imposed by or under a
              relevant transport safety law;
    (3) A relevant person must not refuse or fail to
        comply with a direction under sub-
        section (1) unless the person has a reasonable
        excuse.
         Penalty: 60 penalty units.
    (4) In proceedings for an offence against sub-
        section (3), it is a defence if the person
        charged establishes that—
          (a) the direction was unreasonable; or
          (b) without limiting paragraph (a), the
              direction or its subject-matter was
              outside the scope of the business or
              other activities of the person.
   Note: Section 228ZY sets out the manner in which a
         direction may be given under this Division by a
         transport safety officer.




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         228ZM. Direction to provide certain information
             (1) A transport safety officer may direct, for
                 compliance and investigative purposes, a rail
                 operator or a rail safety worker who is
                 associated with particular rolling stock—
                   (a) to state the name, home address and
                       business address of any other person
                       who is associated with the rolling stock;
                   (b) to give any information that it is within
                       the power of the person to give that
                       may lead to the identification of the
                       owner or operator of the rolling stock
                       on any occasion.
             (2) A person must not refuse or fail to comply
                 with a direction under sub-section (1).
                 Penalty: 5 penalty units.
             (3) In this section—
                 "associated with" means the owner or
                      operator of, or in charge or apparently
                      in charge of.
         228ZN. Direction to state name and address
             (1) A transport safety officer may, for
                 compliance and investigative purposes,
                 direct an individual whom the transport
                 safety officer believes on reasonable grounds
                 is, or may be, a relevant person to state his or
                 her name, home address and business
                 address.
             (2) A person must comply immediately with a
                 direction.
                 Penalty: 5 penalty units.




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    (3) A person must not, in purported compliance
        with a direction, knowingly provide a false
        name or address.
         Penalty: 5 penalty units.
    (4) In proceedings against a person for an
        offence of failing to state the person's
        business address, it is a defence if the person
        charged establishes that the person did not
        have a business address or that the person's
        business address was not connected (directly
        or indirectly) with rail operations or works
        carried out by, or on behalf of, a utility.
    (5) This section does not affect any other law
        that requires a person to state the person's
        name or address.
   Note: Section 228ZY sets out the manner in which a
         direction may be given under this Division by a
         transport safety officer.
228ZO. Directions for the protection of evidence
    (1) For the purpose of protecting evidence that
        might be relevant for compliance or
        investigative purposes, a transport safety
        officer may direct the person in control of a
        specified thing or class of specified things
        that the specified thing, or specified class of
        things, must not be removed or interfered
        with except with the permission of the
        transport safety officer.
    (2) A person must not fail or refuse to comply
        with a direction under sub-section (1).
         Penalty: 60 penalty units.
    (3) Sub-section (2) does not apply if the conduct
        concerned was necessary—
          (a) to ensure the safety of persons, animals
              or property; or


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                   (b) for the movement of deceased persons
                       or animals; or
                   (c) to move rolling stock, or the wreckage
                       of rolling stock, to a safe place; or
                   (d) to protect the environment from
                       significant damage or pollution.
             (4) A transport safety officer must not
                 unreasonably withhold his or her permission
                 under sub-section (1).
             (5) In this section—
                  "in control", in relation to a thing or a
                       specified class of things, means having,
                       or reasonably appearing to a transport
                       safety officer as having, authority to
                       exercise control over the thing or
                       specified class of things.
            Note: Section 228ZY sets out the manner in which a
                  direction may be given under this Division by a
                  transport safety officer.

              Subdivision 7—Seized Things and Samples
                              Taken

         228ZP. Securing seized things
                  On seizing a thing under this Division, a
                  transport safety officer may—
                   (a) move the thing from the railway
                       premises or residential premises where
                       it was seized (the "place of seizure");
                       or
                   (b) leave the thing at the place of seizure
                       but take steps to restrict access to it; or
                   (c) in relation to equipment that is seized—
                       make the equipment inoperable.




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228ZQ. Offence to tamper with seized thing
    (1) If a transport safety officer restricts access to
        a seized thing, a person must not tamper, or
        attempt to tamper, with the thing, or
        something restricting access to the thing,
        without a transport safety officer's
        permission.
        Penalty: 60 penalty units.
    (2) If a transport safety officer makes seized
        equipment inoperable, a person must not
        tamper, or attempt to tamper, with the
        equipment, without a transport safety
        officer's permission.
        Penalty: 60 penalty units.
228ZR. Powers to support seizure
    (1) To enable a thing to be seized under this
        Division, a transport safety officer may
        direct the person in control of it—
          (a) to take it to a specified place within a
              specified time; and
          (b) if necessary, to remain in control of it at
              the specified place for a period
              specified in the direction.
    (2) A further direction may be made under this
        section about the thing if it is necessary and
        reasonable to make the further direction.
        Example
        A further direction may be that the thing be
        transported during stated off-peak hours, be
        transported along a particular route, or be transported
        in a particular way.




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             (3) A person given a direction under sub-
                 section (1) or (2) must not refuse or fail to
                 comply with that direction unless the person
                 has a reasonable excuse.
                  Penalty: 60 penalty units.
             (4) Without limiting what may be a reasonable
                 excuse under sub-section (3), it is a
                 reasonable excuse for a person in control of a
                 thing to not comply with a direction under
                 sub-section (1) or (2) if in all the
                 circumstances, the direction was
                 unreasonable.
             (5) The cost of complying with sub-section (1)
                 or (2) must be borne by the person.
             (6) In this section—
                  "in control", in relation to a thing, means
                       having, or reasonably appearing to a
                       transport safety officer as having,
                       authority to exercise control over the
                       thing.
            Note: Section 228ZY sets out the manner in which a
                  direction may be given under this Division by a
                  transport safety officer.
         228ZS. Transport safety officer may direct a
                thing's return
             (1) If a transport safety officer has directed a
                 person to take a thing to a specified place
                 within a specified time under section
                 228ZR(1), the officer may direct the person
                 to return the thing to the place from which it
                 was taken.




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    (2) A person given a direction under sub-
        section (1) must not refuse or fail to comply
        with that direction unless the person has a
        reasonable excuse.
         Penalty: 60 penalty units.
    (3) The cost of complying with a direction under
        sub-section (1) must be borne by the person.
   Note: Section 228ZY sets out the manner in which a
         direction may be given under this Division by a
         transport safety officer.
228ZT. Receipt for seized things
    (1) If a transport safety officer seizes a thing, or
        takes a sample of, or from, a thing at railway
        premises or residential premises under this
        Division, the officer must give a receipt for
        the thing to the person in charge of the thing
        or the railway premises or residential
        premises from which it was taken.
    (2) A receipt must—
          (a) identify the thing seized or sample
              taken; and
          (b) state the name of the transport safety
              officer who seized the thing or took the
              sample and the reason why the thing
              was seized or the sample was taken.
    (3) If for any reason it is not practicable for a
        transport safety officer to comply with sub-
        section (1), the transport safety officer
        may—
          (a) leave the receipt at the railway premises
              or residential premises in a conspicuous
              position and in a reasonably secure
              way; or




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                   (b) send the receipt, by post, to the
                       occupier of the railway premises or
                       residential premises from where the
                       thing was seized or the sample was
                       taken.
         228ZU. Copies of certain seized things to be given
             (1) If, under this Division, a transport safety
                 officer seizes—
                   (a) a document; or
                   (b) a thing that can be readily copied; or
                   (c) a storage device containing information
                       that can be readily copied—
                 the transport safety officer must give a copy
                 of the thing or information to the owner or
                 custodian of the document, thing or device as
                 soon as practicable after the seizure.
             (2) Sub-section (1) does not apply—
                   (a) to any document, thing or device
                       moved under section 228ZP(a) or
                       228ZR; or
                   (b) if the transport safety officer is unable
                       to discover the identity of the owner or
                       custodian of any document, thing or
                       device seized.
         228ZV. Return of seized things
             (1) If a transport safety officer seizes a thing
                 under this Division, the transport safety
                 officer must take reasonable steps to return
                 the thing to the person from whom it was
                 seized if the reason for its seizure no longer
                 exists.




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    (2) If the thing has not been returned before the
        end of the retention period, the transport
        safety officer must take reasonable steps to
        return it unless—
          (a) proceedings have commenced within
              the retention period and those
              proceedings (including any appeal)
              have not been completed; or
          (b) the Magistrates' Court makes an order
              under section 228ZW extending the
              retention period; or
          (c) the thing has been forfeited to the State
              under an order under section 228ZX.
228ZW. Magistrates' Court may extend period
    (1) A transport safety officer may apply to the
        Magistrates' Court within the retention
        period or within a period extended by the
        Court under this section for an extension of
        that period.
    (2) The Magistrates' Court may order such an
        extension if satisfied that retention of the
        thing is necessary—
          (a) for the purposes of an investigation into
              whether an offence has been committed
              against a relevant transport safety law;
              or
          (b) to enable evidence of an offence against
              a relevant transport safety law to be
              obtained for the purposes of a
              prosecution; or




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         (c) because the thing is, or is likely to be,
             required for the purposes of—
               (i) an investigation into a public
                   transport safety matter; or
              (ii) an audit under Division 5 of Part 3
                   of the Rail Safety Act 2006.
    (3) The Court may adjourn an application to
        enable notice of the application to be given
        to any person.
228ZX. Magistrates' Court may order forfeiture
       of thing in certain cases
    (1) A transport safety officer may apply to the
        Magistrates' Court within the retention
        period or within a period extended by the
        Court under section 228ZW for an order that
        a thing seized under this Division is forfeited
        to the State.
    (2) The Magistrates' Court may order that a
        thing seized under this Division is forfeited
        to the State if the Court is satisfied—
         (a) the transport safety officer that seized
             the thing cannot find the thing's owner
             despite making reasonable enquiries; or
         (b) it is necessary for the thing to be
             forfeited to the State to prevent the
             commission of an offence against a
             relevant transport safety law.
    (3) The Court may adjourn an application to
        enable notice of the application to be given
        to any person.




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      Subdivision 8—Miscellaneous Provisions
         Relating to Enforcement Powers

228ZY. Manner in which transport safety officers
       may give directions under this Division
    (1) A transport safety officer may give a
        direction under this Division orally or in
        writing.
    (2) If giving a direction orally, the transport
        safety officer giving the direction—
         (a) must state whether it is to be complied
             with immediately or within a specified
             period; and
         (b) must warn the person to whom the
             direction is given that it is an offence
             under this Act to fail to comply with a
             direction.
    (3) If giving a direction in writing, the transport
        safety officer must ensure that the
        direction—
         (a) states the period within which it is to be
             complied with; and
         (b) states that it is an offence under this Act
             to fail to comply with a direction.
    (4) A written direction may be given to, or sent
        by post to, the person to whom it is directed.
228ZZ. Use of force
        A power conferred by this Division to enter
        railway premises or residential premises, or
        to do anything in, at or on any railway
        premises or residential premises, may not be
        exercised unless the transport safety officer
        proposing to exercise the power uses no
        more force than is reasonably necessary to



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                  effect the entry or do the thing for which
                  entry is effected.
         228ZZA. Use or seizure of electronic equipment
              (1) If—
                    (a) a thing found at any railway premises
                        or residential premises is or includes a
                        disk, tape or other device for the
                        storage of information; and
                    (b) equipment at the railway premises or
                        residential premises may be used with
                        the disk, tape or other storage device;
                        and
                    (c) a transport safety officer believes on
                        reasonable grounds that the information
                        stored on the disk, tape or other storage
                        device is relevant to determine whether
                        a provision of a relevant transport
                        safety law or conditions or restrictions
                        of an accredited rail operator's
                        accreditation have been breached—
                  the transport safety officer, or a person
                  assisting the transport safety officer, may
                  operate, or may require the occupier or an
                  employee of the occupier to operate, the
                  equipment to access the information.
              (2) If the transport safety officer, or a person
                  assisting the transport safety officer, finds
                  that a disk, tape or other storage device at the
                  railway premises or residential premises
                  contains information of the kind referred to
                  in sub-section (1)(c), he or she may—
                    (a) put the information in documentary
                        form and seize the documents so
                        produced; or




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           (b) copy the information to another disk,
               tape or other storage device and remove
               that storage device from the railway
               premises or residential premises; or
           (c) if it is not practicable to put the
               information in documentary form nor to
               copy the information, seize the disk,
               tape or other storage device and the
               equipment that enables the information
               to be accessed.
     (3) A transport safety officer, or a person
         assisting a transport safety officer, must not
         operate or seize equipment for the purpose
         mentioned in this section unless the transport
         safety officer or person assisting believes on
         reasonable grounds that the operation or
         seizure of the equipment can be carried out
         without damage to the equipment.
228ZZB. Compensation for damage caused during
        exercise of powers under this Division
     (1) The Safety Director must pay compensation
         for any damage caused by a transport safety
         officer, or a person assisting a transport
         safety officer, in exercising (or purporting to
         exercise) any power conferred by this
         Division.
     (2) However, the Safety Director is not liable to
         pay compensation to a person for any
         damage caused during any inspection or
         search conducted under Subdivision 4, or
         under a search warrant executed in
         accordance with Subdivision 5, if—
           (a) the thing that was the object of the
               inspection or search is found and that
               thing provides evidence of—




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                          (i) the commission of an offence
                              against a relevant transport safety
                              law; or
                         (ii) non-compliance with a relevant
                              transport safety law or an
                              approved code of practice; and
                    (b) the damage caused was no more than
                        was reasonably necessary in searching
                        for the thing.
              (3) In determining the amount of compensation
                  payable in relation to any damage caused to
                  electronic equipment, regard is to be had to
                  whether the occupier of the railway premises
                  or residential premises and the employees
                  and agents of the occupier, if they were
                  available at the time, had provided any
                  warning or guidance as to the operation of
                  the equipment that was appropriate in the
                  circumstances.

                   Subdivision 9—Improvement Notices

         228ZZC. Improvement notices
              (1) The Safety Director or a transport safety
                  officer may serve on a relevant person an
                  improvement notice if the Safety Director or
                  transport safety officer believes on
                  reasonable grounds that the relevant
                  person—
                    (a) is contravening a provision of a
                        relevant transport safety law; or
                    (b) has contravened a provision of a
                        relevant transport safety law in
                        circumstances that make it likely the
                        contravention will continue or be
                        repeated; or



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       (c) in the case of a relevant person who is
           an accredited rail operator—
             (i) is contravening a condition or
                 restriction of the operator's
                 accreditation; or
            (ii) has contravened a condition or
                 restriction of the operator's
                 accreditation in circumstances that
                 make it likely the contravention
                 will continue or be repeated.
 (2) The Safety Director or the transport safety
     officer may serve on the relevant person an
     improvement notice requiring the relevant
     person to remedy the contravention or likely
     contravention, or the matters or activities
     occasioning the contravention or likely
     contravention, within the period specified in
     the notice.
 (3) A transport safety officer must, before
     serving an improvement notice under this
     section, inform the Safety Director of his or
     her intention to do so.
 (4) An improvement notice must—
       (a) state the basis for the Safety Director's
           or transport safety officer's belief on
           which the service of the notice is based;
           and
       (b) specify the provision of the relevant
           transport safety law in respect of which
           that belief is held; and
       (c) specify a date (with or without a time)
           by which the relevant person is required
           to remedy the contravention or likely
           contravention or the matters or
           activities causing the contravention or
           likely contravention, that the transport


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                    safety officer considers is reasonable;
                    and
                (d) include information about obtaining a
                    review of the decision to serve the
                    notice; and
                (e) set out the penalty for contravening the
                    notice; and
                (f) include a statement of the effect of
                    section 228ZZI (proceedings for
                    offences not affected by improvement
                    notices); and
                (g) state that it is served under this section.
          (5) An improvement notice may include
              directions concerning the measures to be
              taken to remedy the contravention or likely
              contravention, or the matters or activities
              causing the contravention or likely
              contravention, to which the notice relates.
          (6) Without limiting sub-section (5), an
              improvement notice may include a direction
              that if the relevant person has not remedied
              the contravention, likely contravention,
              matters or activities (as the case may be) by
              the date and time (if any) specified in the
              notice, an activity to which the notice relates
              is to cease until the Safety Director or a
              transport safety officer has certified in
              writing that the contravention, likely
              contravention, matters or activities have been
              remedied.




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228ZZD. Improvement notices—closures of level
        crossings, bridges or other structures
     (1) Without limiting section 228ZZC, an
         improvement notice may require a relevant
         person to close a level crossing, a bridge or
         other structure passing over or under a
         railway—
           (a) that the relevant person owns or
               controls; or
           (b) for which the relevant person is
               responsible.
     (2) If an improvement notice requires a relevant
         person to close a level crossing or a bridge or
         other structure passing over or under a
         railway, the relevant person must publish a
         notice of the required closure in a newspaper
         circulating—
           (a) generally in the State; and
           (b) in the area in which the level crossing
               or bridge or other structure is located.
     (3) In this section "level crossing" has the same
         meaning as in section 221U.
228ZZE. Contravention of improvement notice
     (1) A relevant person on whom an improvement
         notice has been served must not refuse or fail
         to comply with the notice unless the relevant
         person has a reasonable excuse.
         Penalty: In the case of a natural person,
                  500 penalty units;
                     In the case of a body corporate,
                     2500 penalty units.




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              (2) An offence against sub-section (1) is an
                  indictable offence.
                  Note: However, the offence may be heard and
                        determined summarily (see section 53 of, and
                        Schedule 4 to, the Magistrates' Court Act
                        1989).
         228ZZF. Amendment of improvement notices
              (1) An improvement notice served by the Safety
                  Director may be amended by the Safety
                  Director.
              (2) An improvement notice served by a transport
                  safety officer may be amended by any
                  transport safety officer or the Safety
                  Director.
              (3) An amendment of an improvement notice is
                  effected by service on the relevant person
                  affected of a notice stating the terms of the
                  amendment.
              (4) An amendment of an improvement notice is
                  ineffective if it purports to deal with a
                  contravention of a different provision of a
                  relevant transport safety law from that dealt
                  with in the improvement notice as first
                  served.
              (5) A notice of an amendment of an
                  improvement notice must—
                   (a) state the reasons for the amendment;
                       and
                   (b) include information about obtaining a
                       review of the decision to amend the
                       notice; and
                   (c) state that it is served under this section.




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228ZZG. Cancellation of improvement notices
     (1) An improvement notice served on a relevant
         person may only be cancelled by the Safety
         Director.
     (2) Notice of cancellation of an improvement
         notice is required to be served on the
         relevant person affected.
228ZZH. Clearance certificates for improvement
        notices
     (1) The Safety Director or a transport safety
         officer may issue a clearance certificate to
         the effect that all or any specified
         requirements of an improvement notice have
         been complied with.
     (2) A requirement of an improvement notice
         ceases to be operative on receipt, by the
         relevant person on whom the notice was
         served, of a clearance certificate to the effect
         that—
           (a) all requirements of the notice have been
               complied with; or
           (b) the specific requirement has been
               complied with.
228ZZI. Proceedings for offences not affected by
        improvement notices
         The service, amendment or cancellation of
         an improvement notice does not affect any
         proceedings for an offence against a relevant
         transport safety law in connection with any
         matter in respect of which the improvement
         notice was served.




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                   Subdivision 10—Prohibition Notices

         228ZZJ. Prohibition notice
              (1) This section applies if—
                   (a) an activity is occurring at railway
                       premises that involves or will involve
                       an immediate risk to the safety of a
                       person; or
                   (b) an activity may occur at railway
                       premises that, if it occurs, will involve
                       an immediate risk to the safety of a
                       person; or
                   (c) an activity may occur at, on, or in the
                       immediate vicinity of, rail
                       infrastructure or rolling stock that, if it
                       occurs, will involve an immediate risk
                       to the safety of rail operations.
              (2) If the Safety Director or a transport safety
                  officer believes on reasonable grounds that
                  an activity referred to in sub-section (1) is
                  occurring or may occur, the Safety Director
                  or transport safety officer may serve on a
                  person who has or appears to have control
                  over the activity a prohibition notice
                  prohibiting the carrying on of the activity, or
                  the carrying on of the activity in a specified
                  way, until the Safety Director or transport
                  safety officer has certified in writing that the
                  matters that give or will give rise to the risk
                  have been remedied.
              (3) A transport safety officer must, before
                  serving a prohibition notice under this
                  section, inform the Safety Director of his or
                  her intention to do so.




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 (4) A prohibition notice must—
       (a) state the basis for the Safety Director's
           or transport safety officer's belief on
           which the service of the notice is based;
           and
       (b) specify the activity which the Safety
           Director or transport safety officer
           believes involves or will involve the
           risk and the matters which give or will
           give rise to the risk; and
       (c) if the Safety Director or transport safety
           officer believes that the activity
           involves a contravention or likely
           contravention of a provision of a
           relevant transport safety law, specify
           that provision and state the basis for
           that belief; and
       (d) set out the penalty for contravening the
           notice; and
       (e) include information about obtaining a
           review of the decision to serve the
           notice; and
       (f) include a statement of the effect of
           section 228ZZO (proceedings for
           offences not affected by prohibition
           notices); and
       (g) state that it is served under this section.
 (5) A prohibition notice may include directions
     on the measures to be taken to remedy the
     risk, activities or matters to which the notice
     relates, or the contravention or likely
     contravention mentioned in sub-
     section (4)(c).




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              (6) A prohibition notice that prohibits the
                  carrying on of an activity in a specified way
                  may do so by specifying one or more of the
                  following—
                    (a) a railway premises, or part of a railway
                        premises, at which the activity is not to
                        be carried out;
                    (b) rail infrastructure, part of rail
                        infrastructure or a place in the
                        immediate vicinity of rail infrastructure
                        or rolling stock at which the activity is
                        not to be carried out;
                    (c) any thing that is not to be used in
                        connection with the activity;
                    (d) any procedure that is not to be followed
                        in connection with the activity.
         228ZZK. Contravention of prohibition notice
              (1) A person on whom a prohibition notice is
                  served must not refuse or fail to comply with
                  the notice unless the person has a reasonable
                  excuse.
                  Penalty: In the case of a natural person,
                           500 penalty units;
                               In the case of a body corporate,
                               2500 penalty units.
              (2) An offence against sub-section (1) is an
                  indictable offence.
                   Note: However, the offence may be heard and
                         determined summarily (see section 53 of, and
                         Schedule 4 to, the Magistrates' Court Act
                         1989).




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228ZZL. Amendment of prohibition notice
      (1) A prohibition notice served by the Safety
          Director may be amended by the Safety
          Director.
      (2) A prohibition notice served by a transport
          safety officer may be amended by any
          transport safety officer or the Safety
          Director.
      (3) An amendment of a prohibition notice served
          is effected by service on the relevant person
          affected of a notice stating the terms of the
          amendment.
      (4) An amendment of a prohibition notice served
          is ineffective if it purports to prohibit the
          carrying on of an activity that is different
          from the activity prohibited by the
          prohibition notice as first served.
      (5) A notice of an amendment of a prohibition
          notice must—
           (a) state the reasons for the amendment;
               and
           (b) include information about obtaining a
               review of the decision to amend the
               notice; and
           (c) state that it is served under this section.
228ZZM. Withdrawal of prohibition notices
      (1) A prohibition notice served on a relevant
          person may only be withdrawn by the Safety
          Director.
      (2) Notice of the withdrawal of a prohibition
          notice is required to be served on the
          relevant person affected.




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         228ZZN. Certificates that matters that give rise to
                 immediate risks to safety remedied
               (1) The Safety Director or a transport safety
                   officer may issue a certificate to the effect
                   that the matters that gave, or will give, rise to
                   an immediate risk to the safety of a person
                   because of the carrying on of the activity
                   specified in a prohibition notice have been
                   remedied.
               (2) A prohibition notice ceases to be operative
                   on receipt, by the relevant person on whom
                   the notice was served, of a certificate to the
                   effect that—
                    (a) all requirements of the notice have been
                        complied with; or
                    (b) the specific requirement has been
                        complied with.
         228ZZO. Proceedings for offences not affected by
                 prohibition notices
                   The service of a prohibition notice does not
                   affect any proceedings for an offence against
                   a relevant transport safety law in connection
                   with any matter in respect of which the
                   prohibition notice was served.

                      Subdivision 11—Other Matters

         228ZZP. Self-incrimination not an excuse
               (1) A person is not excused from complying
                   with a direction given under this Division on
                   the ground that complying with the direction
                   may result in information being provided
                   that—




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       (a) might incriminate the person; or
       (b) may make the person liable to a
           penalty.
 (2) Any information obtained from a natural
     person under a direction given under this
     Division—
       (a) is not admissible in evidence against
           the person in criminal proceedings
           other than in proceedings in respect of
           the provision of false information; or
       (b) must not be used in any action,
           proceeding or process that may make a
           person liable to a penalty.
 (3) Despite sub-section (2)(a), any information
     obtained from a person under section
     228ZK(1) is admissible in evidence against
     the person in criminal proceedings.
 (4) Despite sub-section (2), any information
     obtained from a person under this Division
     that is contained in any document or item—
       (a) that the person is required to keep
           under a relevant transport safety law; or
       (b) that was obtained without the direct
           assistance of the person—
     is admissible in evidence against the person
     in criminal proceedings or may be used in
     any action, proceeding or process that may
     make a person liable to a penalty.
 (5) For the purposes of sub-section (4), a person
     provides direct assistance in the obtaining of
     a document or item if the person is required
     to identify, to reveal the location of, or to
     explain the contents of, the document or
     item.



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              Subdivision 12—Review of Decisions Relating
                to Improvement and Prohibition Notices

         228ZZQ. Reviewable decisions
              (1) The following table sets out—
                      (a) decisions made under Subdivisions 10
                          and 11 that are reviewable in
                          accordance with this Subdivision
                          ("reviewable decisions"); and
                      (b) who is eligible to apply for review of a
                          reviewable decision (the "eligible
                          person" in relation to the reviewable
                          decision).
              (2) To avoid doubt, sections 4 and 5 of the
                  Victorian Civil and Administrative
                  Tribunal Act 1998 apply for the purposes of
                  this Act.
                     Note: Under section 4 of that Act, a person makes a
                           decision if the person refuses to make a
                           decision or an instrument, imposes a condition
                           or restriction or does or refuses to do any other
                           act or thing. Section 5 of that Act sets out
                           when a person's interests are affected by a
                           decision.

                       Provision under
                       which reviewable        Eligible person in relation
              Item     decision is made        to reviewable decision
              1.       Section 228ZZC          The person on whom the
                       (service of             improvement notice is
                       improvement notice)     served.
              2.       Section 228ZZF          The person served with the
                       (amendment of           improvement notice that is
                       improvement notice)     being amended.




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            Provision under
            which reviewable         Eligible person in relation
     Item   decision is made         to reviewable decision
     3.     Section 228ZZH           The person on whom the
            (clearance certificate   improvement notice was
            to the effect that all   served.
            or any specified
            requirements of
            improvement notice
            have been complied
            with)
     4.     Section 228ZZJ           The person on whom the
            (service of              prohibition notice is
            prohibition notice)      served.
     5.     Section 228ZZL           The person served with the
            (amendment of            prohibition notice that is
            prohibition notice)      being amended.
     6.     Section 228ZZN           The person on whom the
            (certificate that        prohibition notice was
            matters have been        served.
            remedied)

228ZZR. Review by the Safety Director
     (1) An eligible person—
            (a) in relation to a reviewable decision
                made by the Safety Director may,
                within 28 days after the decision was
                made, apply to the Safety Director for a
                review of the decision;
            (b) in relation to a reviewable decision,
                other than a decision made by the
                Safety Director, may apply to the
                Safety Director for review of the
                decision within—
                  (i) 28 days after the day on which the
                      decision first came to the eligible
                      person's notice; or
                 (ii) such longer period as the Safety
                      Director allows.


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          (2) The application must be in the form
              approved (in writing) by the Safety Director.
          (3) If an application is made to the Safety
              Director in accordance with this section, the
              Safety Director must make a decision—
                (a) to affirm or vary the reviewable
                    decision; or
                (b) to set aside the reviewable decision and
                    substitute another decision that the
                    Safety Director considers appropriate.
          (4) The Safety Director must give a written
              notice to the applicant setting out—
                (a) the Safety Director's decision under
                    sub-section (3) and the reasons for the
                    decision; and
                (b) the findings on material questions of
                    fact that led to the decision, referring to
                    the evidence or other material on which
                    those findings were based—
              and must do so within 28 days after the
              application is made or, if the reviewable
              decision was made under section 228ZZC(5)
              or 228ZZJ(1) within 7 days after the
              application is made.
          (5) If the Safety Director has not notified an
              applicant of a decision in accordance with
              sub-section (4), the Safety Director is taken
              to have made a decision to affirm the
              reviewable decision.
          (6) An application under this section does not
              affect the operation of the reviewable
              decision or prevent the taking of any action
              to implement it unless the Safety Director,
              on his or her own initiative or on the
              application of the applicant for review, stays


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         the operation of the decision pending the
         determination of the review.
     (7) The Safety Director must make a decision on
         an application for a stay within 24 hours
         after the making of the application.
     (8) If the Safety Director has not made a
         decision in accordance with sub-section (7),
         the Safety Director is taken to have made a
         decision to grant a stay.
     (9) The Safety Director may attach any
         conditions to a stay of the operation of a
         reviewable decision that he or she considers
         appropriate.
228ZZS. Review by the Tribunal
     (1) A person may apply to the Tribunal for
         review of—
          (a) a reviewable decision made by the
              Safety Director; or
          (b) a decision made, or taken to have been
              made, by the Safety Director under
              section 228ZZR in respect of a
              reviewable decision (including a
              decision concerning a stay of the
              operation of the reviewable decision)—
         if the person is an eligible person in relation
         to the reviewable decision.
     (2) The application must be made—
          (a) within 28 days after the day on which
              the decision first came to the applicant's
              notice; or




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                         (b) if the Safety Director is required by the
                             Victorian Civil and Administrative
                             Tribunal Act 1998 to give the
                             applicant a statement of reasons, within
                             28 days after the day on which the
                             applicant is given the statement—
                       whichever period ends last.'.
         126. New section 229A and 229B inserted
                  After section 229 of the Transport Act 1983
                  insert—
               "229A. Who may only bring proceedings for
                      offences against relevant transport safety
                      laws
                   (1) Proceedings for an offence against a relevant
                       transport safety law may be brought only
                       by—
                         (a) the Safety Director; or
                         (b) a transport safety officer with the
                             written authorisation of the Safety
                             Director (either generally or in a
                             particular case).
                   (2) An authorisation under sub-section (1)(b) is
                       sufficient authority to continue proceedings
                       in any case where the court amends the
                       charge, warrant or summons.
                   (3) A transport safety officer who brings
                       proceedings may conduct the proceedings
                       before the court.
                   (4) Nothing in this section affects the ability of
                       the Director of Public Prosecutions to bring
                       proceedings for an indictable offence against
                       a relevant transport safety law.




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        229B. Limitation period for prosecutions for
              indictable offences against relevant
              transport safety laws
               Proceedings for an indictable offence against
               a relevant transport safety law may be
               brought—
                (a) within 3 years after the offence is
                    committed or the Safety Director
                    becomes aware the offence was
                    committed; or
                (b) at any time with the written
                    authorisation of the Director of Public
                    Prosecutions.".
127. New section 230A and Divisions 6 and 7 of Part VII          S. 127
                                                                 amended by
     inserted                                                    No. 47/2006
                                                                 ss 50, 51.
         After section 230 of the Transport Act 1983
         insert—
       '230A. Evidentiary certificates—relevant
              transport safety laws
           (1) In any proceeding for an offence against a
               relevant transport safety law, a certificate
               signed, or purporting to be signed, by the
               Safety Director or a transport safety officer
               stating any of the following matters shall be
               admissible in evidence and, in the absence of
               evidence to the contrary, shall be proof of the
               matters stated—
                (a) a stated document is one of the
                    following things made, given, served or
                    issued under a relevant transport safety
                    law or regulations made under a
                    relevant transport safety law—
                      (i) an appointment or a decision;
                     (ii) a notice, notification, direction or
                          requirement;


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                    (iii) an accreditation or exemption;
                     (iv) an improvement notice or an
                          amendment to an improvement
                          notice already served;
                     (v) a prohibition notice or an
                         amendment to a prohibition notice
                         already served;
                     (vi) a clearance certificate issued
                          under section 228ZZH;
                    (vii) a certificate issued under section
                          228ZZN;
                (b) a stated document is a copy of a thing
                    referred to in paragraph (a);
                (c) on a stated day, or during a stated
                    period, a stated person—
                      (i) was or was not accredited; or
                     (ii) held or did not hold an exemption;
                (d) on a stated day, or during a stated
                    period, an accreditation or exemption—
                      (i) was or was not in force; or
                     (ii) was or was not subject to a stated
                          term, condition, limitation or
                          restriction;
                (e) on a stated day, or during a stated
                    period, an accreditation was suspended;
                (f) on a stated day an accreditation was
                    cancelled, varied or surrendered;
                (g) on a stated day a condition or
                    restriction on an accreditation was
                    varied or revoked;
                (h) on a stated day an exemption was
                    revoked;



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       (i) on a stated day or during a stated
           period, an appointment as a transport
           safety officer was, or was not, in force
           for a stated person;
       (j) on a stated day a stated person was
           given a stated notice, notification or
           direction under a relevant transport
           safety law;
       (k) on a stated day a person was served—
             (i) an improvement notice or
                 prohibition notice; or
            (ii) amendment to an improvement
                 notice or prohibition notice
                 already served;
       (l) on a stated day—
             (i) an improvement notice was
                 cancelled; or
            (ii) a prohibition notice was
                 withdrawn;
      (m) on a stated day a clearance certificate
          under section 228ZZH was issued;
       (n) on a stated day a certificate under
           section 228ZZN was issued;
       (o) on a stated day a stated requirement
           was made of a stated person;
       (p) that a stated amount is payable under
           the Rail Safety Act 2006 by a stated
           person and has not been paid.




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           (2) In this section—
               "accreditation" has the same meaning as in
                   the Rail Safety Act 2006;
               "exemption" means an exemption under—
                      (a) section 63 or 66 of the Rail Safety
                          Act 2006; or
                      (b) regulations made under the Rail
                          Safety Act 2006.

            Division 6—Sentencing Orders in relation to
                  Relevant Transport Safety Laws

         230B. Commercial benefits penalty order
           (1) A court that finds a person guilty of an
               offence against a relevant transport safety
               law may, on the application of the prosecutor
               or the Safety Director, make an order under
               this section.
           (2) The court may make a commercial benefits
               penalty order requiring the person to pay, as
               a fine, an amount not exceeding 3 times the
               amount estimated by the court to be the gross
               commercial benefit that—
                 (a) was obtained or obtainable, by the
                     person or by an associate of the person,
                     from the commission of the offence;
                     and
                 (b) in the case of a journey that was
                     interrupted or not commenced because
                     of action taken by a transport safety
                     officer in connection with the
                     commission of the offence—would
                     have been obtained or obtainable, by
                     the person or by an associate of the
                     person, from the commission of the



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Part 10—Amendment of Transport Act 1983
                                                      s. 127


           offence had the journey been
           completed.
 (3) In estimating the gross commercial benefit
     that was or would have been obtained or
     obtainable from the commission of the
     offence, the court may take into account—
       (a) benefits of any kind, whether monetary
           or otherwise; and
       (b) monetary savings or a reduction in any
           operating or capital expenditure of any
           kind achieved because of the
           commission of the offence; and
       (c) any other matters that it considers
           relevant, including (for example)—
             (i) the value per tonne or per
                 kilometre of the carriage of the
                 goods involved in the offence as
                 freight; and
            (ii) the distance over which any such
                 goods were or were to be carried.
 (4) However, in estimating the gross commercial
     benefit that was or would have been obtained
     or obtainable from the commission of the
     offence, the court is required to disregard
     any costs, expenses or liabilities incurred by
     the person or by an associate of the person.
 (5) Nothing in this section prevents the court
     from ordering payment of an amount that
     is—
       (a) less than 3 times the estimated gross
           commercial benefit; or
       (b) less than the estimated gross
           commercial benefit.




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s. 127


         230C. Supervisory intervention order
           (1) A court that finds a person guilty of an
               offence against a relevant transport safety
               law may, on the application of the prosecutor
               or the Safety Director, if the court considers
               the person to be a systematic or persistent
               offender against a relevant transport safety
               law, make an order under this section.
           (2) The court may make a supervisory
               intervention order requiring the person (at
               the person's own expense and for a specified
               period not exceeding one year) to do all or
               any of the following—
                 (a) to do specified things that the court
                     considers will improve the person's
                     compliance with relevant transport
                     safety laws or specified aspects of a
                     relevant transport safety law, including
                     (for example) the following—
                       (i) appointing or removing staff to or
                           from particular activities or
                           positions;
                      (ii) training and supervising staff;
                     (iii) obtaining expert advice as to
                           maintaining appropriate
                           compliance;
                      (iv) installing, monitoring,
                           compliance, managerial or
                           operational equipment;
                      (v) implementing, monitoring,
                          compliance, managerial or
                          operational practices, systems or
                          procedures;




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                                                       s. 127


       (b) to conduct specified monitoring,
           compliance, managerial or operational
           practices, systems or procedures subject
           to the direction of the Safety Director
           or a person nominated by the Safety
           Director;
       (c) to furnish compliance reports to the
           Safety Director or the court or both as
           specified in the order;
       (d) to appoint a person to have
           responsibilities—
             (i) to assist the person in improving
                 compliance with a relevant
                 transport safety law or specified
                 aspects of a relevant transport
                 safety law; and
            (ii) to monitor the person's
                 performance in complying with a
                 relevant transport safety law or
                 specified aspects of a relevant
                 transport safety law and in
                 complying with the requirements
                 of the order; and
           (iii) to furnish compliance reports to
                 the Safety Director or the court or
                 both as specified in the order.
 (3) The court may specify matters that are to be
     dealt with in compliance reports and the
     form, manner and frequency in which
     compliance reports are to be prepared and
     furnished.
 (4) The court may require that compliance
     reports or aspects of compliance reports be
     made public, and may specify the form,
     manner and frequency in which they are to
     be made public.


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                   Act No. 9/2006
         Part 10—Amendment of Transport Act 1983
s. 127


          (5) The court may only make a supervisory
              order if it is satisfied that the order is capable
              of improving the person's ability or
              willingness to comply with the relevant
              transport safety law, having regard to—
                (a) the offences against a relevant transport
                    safety law of which the person has been
                    previously found guilty; and
                (b) the offences against a relevant transport
                    safety law for which the person has
                    been proceeded against by way of
                    unwithdrawn infringement notices; and
                (c) any other offences or other matters that
                    the court considers to be relevant to the
                    conduct of the person in connection
                    with rail transport.
          (6) The order may direct that any other penalty
              or sanction imposed for the offence by the
              court is suspended until the court determines
              that there has been a substantial failure to
              comply with the order.
          (7) A court that has power to make supervisory
              intervention orders may revoke or amend a
              supervisory intervention order on the
              application of—
                (a) the Safety Director; or
                (b) the person in respect of whom the order
                    was made, but in that case only if the
                    court is satisfied that there has been a
                    change of circumstances warranting
                    revocation or amendment.




                          234
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           Act No. 9/2006
 Part 10—Amendment of Transport Act 1983
                                                        s. 127


  (8) In this section—
      "compliance report", in relation to a person
          in respect of whom a supervisory
          intervention order is made, means a
          report relating to—
             (a) the performance of the person in
                 complying with—
                   (i) a relevant transport safety
                       law or specified aspects of a
                       relevant transport safety law
                       specified in the order; and
                   (ii) the requirements of the
                        order; and
             (b) without limiting the above—
                   (i) things done by the person to
                       ensure that any failure by the
                       person to comply with the
                       relevant transport safety law
                       or the specified aspects of
                       the relevant transport safety
                       law does not continue; and
                   (ii) the results of those things
                        having been done.
230D. Contravention of supervisory intervention
      order
      A person who is subject to a requirement of a
      supervisory intervention order must not
      engage in conduct that results in
      contravention of the requirement.
      Penalty: In the case of a natural person,
               120 penalty units;
                  In the case of a body corporate,
                  600 penalty units.



                  235
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                    Act No. 9/2006
          Part 10—Amendment of Transport Act 1983
s. 127


         230E. Release on the giving of a safety
               undertaking
           (1) If a court convicts a person or finds a person
               guilty of an offence against a relevant
               transport safety law the court may (with or
               without recording a conviction) adjourn the
               proceeding for a period of up to 2 years and
               make an order for the release of the offender
               on the offender giving an undertaking with
               specified conditions.
           (2) An undertaking must specify the following
               conditions—
                 (a) that the offender appears before the
                     court if called on to do so during the
                     period of the adjournment and, if the
                     court so specifies, at the time to which
                     the further hearing is adjourned;
                 (b) that the offender does not commit,
                     during the period of the adjournment,
                     any offence against a relevant transport
                     safety law;
                 (c) that the offender observes any special
                     conditions imposed by the court.
           (3) Without limiting sub-section (2)(c), the court
               may impose on an offender special
               conditions that the offender—
                 (a) engage a consultant, who is approved in
                     writing by the Safety Director, to
                     advise on or assist with safety matters;
                     and
                 (b) develop and implement a systematic
                     approach to managing risks to safety
                     that arise or may arise in the conduct of
                     the offender's undertaking; and




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Part 10—Amendment of Transport Act 1983
                                                        s. 127


       (c) arrange for the carrying out of an audit
           of the offender's undertaking in relation
           to safety by an independent person who
           is approved in writing by the Safety
           Director.
 (4) An offender who has given an undertaking
     under this section may be called on to appear
     before the court—
       (a) by order of the court; or
       (b) by notice issued by the proper officer
           (within the meaning of section 72(4) of
           the Sentencing Act 1991) of the court.
 (5) An order or notice under sub-section (4)
     must be served on the offender not less than
     4 days before the time specified in it for the
     appearance.
 (6) If the court is satisfied at the time to which a
     further hearing of a proceeding is adjourned
     that the offender has observed the conditions
     of the undertaking, it must discharge the
     offender without any further hearing of the
     proceeding.
 (7) The court may make an order under this
     section in relation to an offender in addition
     to or instead of—
       (a) imposing a penalty on the offender; or
       (b) making any other order that the court
           may make in relation to the offence.




                 237
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                    Act No. 9/2006
          Part 10—Amendment of Transport Act 1983
s. 127


         230F. Variation or breach of orders under
               section 230E
               Sections 78 and 79 of the Sentencing Act
               1991 (and any definitions in that Act of
               terms used in those sections) apply to an
               order under section 230E for the release of
               an offender as though they were incorporated
               into this Act and as though—
                 (a) a reference to Subdivision (2) or (3)
                     were instead a reference to section
                     230E; and
                 (b) a reference to a prescribed person, a
                     member of a prescribed class of
                     persons, the informant or a police
                     prosecutor were instead a reference to
                     the Safety Director; and
                 (c) the reference in section 79(4) of the
                     Sentencing Act 1991 to a level 10 fine
                     were instead a reference to a fine not
                     exceeding 10 penalty units for a natural
                     person or 50 penalty units for a body
                     corporate; and
                 (d) any other necessary modifications were
                     made.

                     Division 7—Other Matters

                    Subdivision 1—Interpretation

         230G. Definitions
               In this Subdivision—
               "improvement or prohibition notice
                  contravention provision" means
                  section 228ZE(1) or 228ZK(1);




                           238
          Rail Safety Act 2006
            Act No. 9/2006
 Part 10—Amendment of Transport Act 1983
                                                       s. 127


       "relevant rail protection law" means—
             (a) section 93B or 93C(1) of the
                 Electricity Industry Act 2000;
             (b) section 149B or 149C(1) of the
                 Gas Industry Act 2001;
             (c) section 48E or 48F of the Road
                 Management Act 2004;
             (d) section 137B(1) or 137C(1) of the
                 Water Act 1989;
             (e) section 62B(1) or 62C(1) of the
                 Water Industry Act 1994;
       "relevant rail safety duty law" means—
             (a) section 93A(1) or (2) of the
                 Electricity Industry Act 2000;
             (b) section 149A(1) or (2) of the Gas
                 Industry Act 2001;
             (c) section 48B, 48C or 48D of the
                 Road Management Act 2004;
             (d) section 137A(1) or (2) of the
                 Water Act 1989;
             (e) section 62A(1) or (2) of the
                 Water Industry Act 1994.

              Subdivision 2—Liability

230H. Civil liability not affected by a relevant
      rail safety duty law
       Nothing in a relevant rail safety duty law is
       to be construed as—
        (a) conferring a right of action in civil
            proceedings in respect of a
            contravention of a relevant rail safety
            duty law; or



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         Part 10—Amendment of Transport Act 1983
s. 127


                (b) conferring a defence to an action in
                    civil proceedings or otherwise affecting
                    a right of action in civil proceedings.
         230I. Interaction with the Occupational Health
               and Safety Act 2004
           (1) If a provision of the Occupational Health
               and Safety Act 2004 or the regulations made
               under that Act applies to an activity in
               respect of which a duty under a relevant rail
               safety duty law is imposed, that provision
               continues to apply, and must be observed in
               addition to the relevant rail safety duty law.
               Note: See also section 51 of the Interpretation of
                     Legislation Act 1984.
           (2) If a relevant rail safety duty law is
               inconsistent with a provision of the
               Occupational Health and Safety Act 2004
               or the regulations made under that Act, the
               Occupational Health and Safety Act 2004
               or the regulations made under it prevail to
               the extent of the inconsistency.
           (3) Compliance with a relevant rail safety duty
               law, or with any requirement imposed under
               a relevant rail safety duty law, is not in itself
               a defence in any proceedings for an offence
               against the Occupational Health and
               Safety Act 2004 or the regulations made
               under that Act.
           (4) Evidence of a relevant contravention of a
               relevant rail safety duty law is admissible in
               any proceedings for an offence against the
               Occupational Health and Safety Act 2004
               or the regulations made under that Act.




                           240
                  Rail Safety Act 2006
                    Act No. 9/2006
         Part 10—Amendment of Transport Act 1983
                                                                 s. 128


        230J. Offences by bodies corporate, officers of
              bodies corporate, partnerships etc.
           (1) Divisions 1 to 3 of Part 9 of the Rail Safety
               Act 2006 apply to the commission of an
               offence against a relevant rail protection law
               or an improvement or prohibition notice
               contravention provision in the same way as
               those Divisions apply to the commission of
               an offence against a provision of the Rail
               Safety Act 2006 (other than an offence
               against a provision in Division 2 or 3 of
               Part 3 of that Act).
           (2) Divisions 1 to 3 of Part 9 of the Rail Safety
               Act 2006 apply to the commission of an
               offence against a relevant rail safety duty law
               in the same way as those Divisions apply to
               the commission of an offence against a
               provision of Division 2 or 3 of Part 3 of the
               Rail Safety Act 2006 or regulations made
               under that Act for the purposes of Division 2
               or 3 of Part 3 of that Act.'.
128. Service
      (1) In section 250 of the Transport Act 1983, after
          "Act" insert "or the Rail Safety Act 2006".
      (2) In section 251 of the Transport Act 1983, after
          "Act" insert "or the Rail Safety Act 2006".
129. Statute law revision
          In section 246CF of the Transport Act 1983, in
          the notes at the foot of that section, for "Note 2"
          (where first occurring) substitute "Note 1".
                 __________________




                            241
                                      Rail Safety Act 2006
                                        Act No. 9/2006
                    Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 130



                PART 11—OTHER AMENDMENTS TO ACTS, SAVINGS AND
                               TRANSITIONALS

See:            Division 1—Amendment of Public Transport Competition
Act No.
68/1995.                            Act 1995
Reprint No. 2
as at
17 June 2004.     130. Application for accreditation
LawToday:
www.dms.                (1) In section 7(1) and (2) of the Public Transport
dpc.vic.                    Competition Act 1995, for "Secretary" substitute
gov.au
                            "Safety Director".
                        (2) In section 7(3) of the Public Transport
                            Competition Act 1995, for "Secretary" (where
                            twice occurring) substitute "Safety Director".
                  131. Matters to be considered
                        (1) Insert the following heading to section 8 of the
                            Public Transport Competition Act 1995—
                             "Matters to be considered by Safety Director".
                        (2) In section 8(1) of the Public Transport
                            Competition Act 1995, for "Secretary" (where
                            twice occurring) substitute "Safety Director".
                        (3) In section 8(2) of the Public Transport
                            Competition Act 1995, for "Secretary" substitute
                            "Safety Director".
                  132. Giving or refusal of accreditation
                        (1) In section 9(1) and (2) of the Public Transport
                            Competition Act 1995, for "Secretary" substitute
                            "Safety Director".
                        (2) In section 9(3) and (4) of the Public Transport
                            Competition Act 1995, for "Secretary" (where
                            twice occurring) substitute "Safety Director".




                                               242
                    Rail Safety Act 2006
                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                s. 133


133. Conditions of accreditation
           In section 10(1)(c), (2) and (3) of the Public
           Transport Competition Act 1995, for
           "Secretary" substitute "Safety Director".
134. Change of conditions etc.
           In section 11(1), (2), (3) and (4) of the Public
           Transport Competition Act 1995, for
           "Secretary" (wherever occurring) substitute
           "Safety Director".
135. Duration of accreditation
           In section 12(2) of the Public Transport
           Competition Act 1995, for "Secretary" substitute
           "Safety Director".
136. Requirement to notify of charges etc.
      (1) Insert the following heading to section 13 of the
          Public Transport Competition Act 1995—
           "Requirement to notify Safety Director of
           charges etc.".
      (2) In section 13 of the Public Transport
          Competition Act 1995, for "Secretary" (where
          twice occurring) substitute "Safety Director".
137. Periodical returns
           In section 14(1) and (2) of the Public Transport
           Competition Act 1995, for "Secretary" substitute
           "Safety Director".
138. Application for renewal of accreditation
           In section 15(1), (2), (3)(a), (5) and (6) of the
           Public Transport Competition Act 1995, for
           "Secretary" substitute "Safety Director".




                             243
                             Rail Safety Act 2006
                               Act No. 9/2006
           Part 11—Other Amendments to Acts, Savings and Transitionals
s. 139


         139. Renewal of accreditation
               (1) In section 16(1), (2) and (3) of the Public
                   Transport Competition Act 1995, for
                   "Secretary" substitute "Safety Director".
               (2) In section 16(5) of the Public Transport
                   Competition Act 1995, for "Secretary" (where
                   twice occurring) substitute "Safety Director".
         140. Nature of accreditation
                    In section 17(3) of the Public Transport
                    Competition Act 1995, for "Secretary" substitute
                    "Safety Director".
         141. Safety Director not liable for giving accreditation
               (1) Insert the following heading to section 19 of the
                   Public Transport Competition Act 1995—
                    "Safety Director not liable for giving
                    accreditation".
               (2) In section 19 of the Public Transport
                   Competition Act 1995, for "Secretary" substitute
                   "Safety Director".
         142. Supervision of accredited persons
               (1) In section 20(1) and (4) of the Public Transport
                   Competition Act 1995, for "Secretary" substitute
                   "Safety Director".
               (2) In section 20(3) of the Public Transport
                   Competition Act 1995, for "Secretary" (wherever
                   occurring) substitute "Safety Director".
         143. Procedure and powers
               (1) In section 21(1) and (3) of the Public Transport
                   Competition Act 1995, for "Secretary" substitute
                   "Safety Director".
               (2) In section 21(2) of the Public Transport
                   Competition Act 1995, for "Secretary" (where
                   twice occurring) substitute "Safety Director".


                                      244
                    Rail Safety Act 2006
                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                s. 144


144. Immediate power of suspension
      (1) In section 22(1) and (3) of the Public Transport
          Competition Act 1995, for "Secretary" (where
          twice occurring) substitute "Safety Director".
      (2) In section 22(2), (4) and (6) of the Public
          Transport Competition Act 1995, for
          "Secretary" substitute "Safety Director".
145. Review by Victorian Civil and Administrative
     Tribunal
            In section 24(1) of the Public Transport
            Competition Act 1995, for "Secretary" substitute
            "Safety Director".
146. Codes of practice
            In section 24A(7) of the Public Transport
            Competition Act 1995, for "Secretary" substitute
            "Safety Director".
147. Fees
      (1) In section 34(1) and (3) of the Public Transport
          Competition Act 1995 after "Secretary" insert
          "or Safety Director".
      (2) In section 34(2) of the Public Transport
          Competition Act 1995—
             (a) after "Secretary" (where first occurring)
                 insert "or Safety Director";
             (b) after "Secretary" (where secondly occurring)
                 insert "or the Safety Director (as the case
                 requires)".
      (3) In section 34(5) and (6) of the Public Transport
          Competition Act 1995, after "Secretary" insert
          "or Safety Director (as the case requires)".




                             245
                             Rail Safety Act 2006
                               Act No. 9/2006
           Part 11—Other Amendments to Acts, Savings and Transitionals
s. 148


         148. Delegation
                    After section 35(2) of the Public Transport
                    Competition Act 1995 insert—
                    "(3) The Safety Director may, by instrument,
                         delegate to—
                           (a) an officer or other person by name; or
                           (b) the holder of an office or position; or
                           (c) a body—
                          any power of the Safety Director under this
                          Act other than this power of delegation.".
         149. No compensation payable
               (1) In section 36(1) of the Public Transport
                   Competition Act 1995, paragraphs (a) to (i) are
                   repealed.
               (2) After section 36(1A) of the Public Transport
                   Competition Act 1995 insert—
                  "(1B) No compensation is payable to any person in
                        respect of or as a consequence of any
                        decision of the Safety Director under this
                        Act—
                           (a) to give or refuse to give an
                               accreditation in relation to any kind of
                               road transport passenger service;
                           (b) to impose a condition on an
                               accreditation;
                           (c) to vary the kind of road transport
                               passenger service to which an
                               accreditation relates;
                           (d) to vary or revoke a condition of an
                               accreditation or impose a new
                               condition;
                           (e) to give a temporary accreditation;



                                      246
                    Rail Safety Act 2006
                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                s. 150


                  (f) to renew or refuse to renew an
                      accreditation;
                  (g) to consent or refuse to consent to the
                      surrender of an accreditation;
                  (h) to exercise a power under section 20;
                   (i) to suspend an accreditation under
                       section 22.".

Division 2—Amendment of Rail Corporations Act 1996              See:
                                                                Act No.
                                                                79/1996.
150. New definition inserted                                    Reprint No. 3
                                                                as at
           In section 3(1) of the Rail Corporations Act         15 July 2003
                                                                and
           1996 insert the following definition—                amending
                                                                Act Nos
           ' "Safety Director" means the Director, Public       73/2003,
                                                                12/2004,
                Transport Safety appointed under section 9L     49/2004,
                of the Transport Act 1983;'.                    108/2004,
                                                                110/2004 and
151. Objective of Rail Track                                    25/2005.
                                                                LawToday:
           In section 10 of the Rail Corporations Act 1996,     www.dms.
                                                                dpc.vic.
           for "an" substitute "a safe,".                       gov.au

152. Functions and powers of Rail Track
           For section 11(1)(ba)(i) of the Rail Corporations
           Act 1996 substitute—
            "(i) operate rolling stock for the purposes of
                 providing passenger services;".
153. New section 12 inserted
           After section 11 of the Rail Corporations Act
           1996 insert—
           '12. Contingency planning for exercise of
                certain powers
            (1) Rail Track must develop and maintain a
                contingency plan for the possible carrying
                out of rail operations by it in the event
                another person carrying out such operations


                             247
                             Rail Safety Act 2006
                               Act No. 9/2006
           Part 11—Other Amendments to Acts, Savings and Transitionals
s. 154


                          using railways and rail infrastructure
                          established, owned, managed or maintained
                          by Rail Track does not want, or is unable, to
                          do so.
                     (2) In this section—
                          "rail operations" has the same meaning as
                               in the Rail Safety Act 2006.'.
         154. Definition of "access provider" amended and new
              definitions inserted
                    In section 38A of the Rail Corporations Act
                    1996—
                     (a) in the definition of "access provider", for
                         paragraphs (a) and (b) substitute—
                          "(a) a rail infrastructure manager who is
                               accredited under Part 5 of the Rail
                               Safety Act 2006 in respect of rail
                               infrastructure operations the manager
                               carries out;
                           (b) a rail infrastructure manager who is
                               exempted under section 63 of the Rail
                               Safety Act 2006, or regulations made
                               under that Act, from the requirement to
                               be accredited under that Act in respect
                               of rail infrastructure operations the
                               manager carries out;";
                     (b) insert the following definitions—
                          ' "rail infrastructure manager" has the
                                same meaning as in the Rail Safety Act
                                2006;
                          "rail infrastructure operations" has the
                               same meaning as in the Rail Safety Act
                               2006;'.




                                      248
                    Rail Safety Act 2006
                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                s. 155


155. Decisions not to interfere with certain directions of
     the Safety Director
           In section 38ZZE of the Rail Corporations Act
           1996—
            (a) for "Secretary" (where twice occurring)
                substitute "Safety Director";
            (b) for "section 115B of the Transport Act
                1983" substitute "section 42 of the Rail
                Safety Act 2006".
156. Statute law revision
      (1) In the heading to section 38ZJ of the Rail
          Corporations Act 1996 omit "proposed".
      (2) In section 38ZZZB(3)(a) of the Rail
          Corporations Act 1996, after "access" (where
          secondly occurring) insert "provider".

            Division 3—Other Amendments

157. Electricity Industry Act 2000 amendment—New                See:
                                                                Act No.
     section 85 substituted and new sections 93A to 93C         68/2000.
     inserted                                                   Reprint No. 3
                                                                as at
                                                                14 July 2005
      (1) For section 85 of the Electricity Industry Act        and
          2000 substitute—                                      amending
                                                                Act Nos
           '85. Definitions                                     39/2005 and
                                                                65/2005.
                 In this Part—                                  LawToday:
                                                                www.dms.
                                                                dpc.vic.
                 "electricity corporation" means VENCorp,       gov.au
                      a distribution company, a transmission
                      company or a generation company;
                 "rail infrastructure" has the same meaning
                      as in the Rail Safety Act 2006;
                 "rail operations" has the same meaning as
                      in the Rail Safety Act 2006;
                 "rail operator" has the same meaning as in
                      the Rail Safety Act 2006;


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                           Rail Safety Act 2006
                             Act No. 9/2006
         Part 11—Other Amendments to Acts, Savings and Transitionals
s. 157


                        "rolling stock" has the same meaning as in
                             the Rail Safety Act 2006;
                        "works contractor" means a person
                            engaged directly or indirectly by an
                            electricity corporation to carry out an
                            activity referred to in section 93 on
                            behalf of the electricity corporation,
                            and includes a sub-contractor.'.
             (2) After section 93 of the Electricity Industry Act
                 2000 insert—
                '93A. Safety duties in relation to works on or in
                      immediate vicinity of rail infrastructure
                      or rolling stock
                   (1) An electricity corporation must, when
                       exercising a power under section 93 on or in
                       the immediate vicinity of rail infrastructure
                       or rolling stock, ensure, so far as is
                       reasonably practicable, that it exercises the
                       power safely.
                        Penalty: 9000 penalty units.
                   (2) A works contractor must, when carrying out
                       an activity referred to in section 93 on or in
                       the immediate vicinity of rail infrastructure
                       or rolling stock, ensure, so far as is
                       reasonably practicable, that he, she or it
                       carries out the activity safely.
                        Penalty: In the case of a natural person,
                                 1800 penalty units;
                                    In the case of a body corporate,
                                    9000 penalty units.
                   (3) An offence against sub-section (1) or (2) is
                       an indictable offence.
                  Note: However, the offence may be heard and determined
                        summarily (see section 53 of, and Schedule 4 to, the
                        Magistrates' Court Act 1989).



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                                                                  s. 157


        93B. Notification of owners or occupiers of land
             on which there is rail infrastructure or
             rolling stock
               An electricity corporation must, before
               exercising a power under section 93 on land
               on which there is rail infrastructure or rolling
               stock, notify the owner or occupier of that
               land of the intended exercise of the power if
               the exercise of that power will threaten, or is
               likely to threaten, the safety of that rail
               infrastructure or rolling stock.
               Penalty: 300 penalty units.
        93C. Notification of electricity corporations
             before rail operations carried out
          (1) A rail operator must, before carrying out rail
              operations that will threaten, or are likely to
              threaten, the safety of an electricity
              corporation's works, or the safe provision by
              the electricity corporation of electricity or
              other like services, notify that electricity
              corporation of the rail operator's intention to
              carry out those operations.
               Penalty: In the case of a natural person,
                        60 penalty units;
                          In the case of a body corporate,
                          300 penalty units.
          (2) In this section—
               "works" includes power lines, equipment,
                   devices, structures or undertakings.'.




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  s. 158


See:            158. Gas Industry Act 2001 amendment—New sections
Act No.              147A and 149A to 149C inserted
31/2001.
Reprint No. 2         (1) Before section 148 of the Gas Industry Act 2001
as at
1 March 2005              insert—
and
amending                '147A. Definitions
Act Nos
25/2004,                         In this Division—
108/2004,
33/2005,
39/2005 and
                                 "rail infrastructure" has the same meaning
61/2005.                              as in the Rail Safety Act 2006;
LawToday:
www.dms.                         "rail operations" has the same meaning as
dpc.vic.
gov.au
                                      in the Rail Safety Act 2006;
                                 "rail operator" has the same meaning as in
                                      the Rail Safety Act 2006;
                                 "rolling stock" has the same meaning as in
                                      the Rail Safety Act 2006.'.
                      (2) After section 149 of the Gas Industry Act 2001
                          insert—
                        '149A. Safety duties in relation to works on or in
                               immediate vicinity of rail infrastructure
                               or rolling stock
                            (1) A gas distribution company or gas
                                transmission company must, when exercising
                                a power under this Division on or in the
                                immediate vicinity of rail infrastructure or
                                rolling stock, ensure, so far as is reasonably
                                practicable, that they safely exercise the
                                power.
                                 Penalty: 9000 penalty units.




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                                                                      s. 158


          (2) A person authorised in writing by a gas
              distribution company or gas transmission
              company under section 148(7) or 149(6) to
              exercise a power of the gas distribution
              company or gas transmission company under
              those sections must, when exercising the
              power on or in the immediate vicinity of rail
              infrastructure or rolling stock, ensure, so far
              as is reasonably practicable, that they safely
              exercise the power.
               Penalty: In the case of a natural person,
                        1800 penalty units;
                           In the case of a body corporate,
                           9000 penalty units.
          (3) An offence against sub-section (1) or (2) is
              an indictable offence.
         Note: However, the offence may be heard and determined
               summarily (see section 53 of, and Schedule 4 to, the
               Magistrates' Court Act 1989).
       149B. Notification of owners or occupiers of land
             on which there is rail infrastructure or
             rolling stock
               A gas distribution company or gas
               transmission company must, before
               exercising a power under this Division on
               land on which there is rail infrastructure or
               rolling stock, notify the owner or occupier of
               that land of the intended exercise of the
               power if the exercise of that power will
               threaten, or is likely to threaten, the safety of
               that rail infrastructure or rolling stock.
               Penalty: 300 penalty units.




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  s. 159


                          149C. Notification of gas distribution and
                                transmission companies before rail
                                operations carried out
                             (1) A rail operator must, before carrying out rail
                                 operations that will threaten, or are likely to
                                 threaten, the safety of a gas distribution
                                 company's or gas transmission company's
                                 works, or the safe provision by a gas
                                 distribution company or gas transmission
                                 company of gas or other like services, notify
                                 that gas distribution company or gas
                                 transmission company of the rail operator's
                                 intention to carry out those operations.
                                  Penalty: In the case of a natural person,
                                           60 penalty units;
                                              In the case of a body corporate,
                                              300 penalty units.
                             (2) In this section—
                                  "works" includes pipes, equipment, devices,
                                      structures, pipelines or undertakings.'.
See:             159. Magistrates' Court Act 1989 amendment—Certain
Act No.
51/1989.              indictable offences triable summarily etc.
Reprint No. 11
as at                  (1) In Schedule 4 to the Magistrates' Court Act
1 July 2005
and
                           1989—
amending
Act Nos                      (a) after clause 55 insert—
77/2004,
2/2005,                         "55A. Rail Safety Act 2006
16/2005,
18/2005,
                                        Indictable offences under the Rail Safety Act
19/2005,                                2006 but the maximum penalty that the Court
45/2005 and                             may impose is—
62/2005.
LawToday:                                 (a) in the case of a natural person,
www.dms.                                      240 penalty units; and
dpc.vic.
gov.au                                    (b) in the case of a body corporate,
                                              1200 penalty units.




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                    Act No. 9/2006
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                                                                      s. 159

               55B. Road Management Act 2004
                     Indictable offences under section 48B, 48C
                     or 48D of the Road Management Act 2004 but
                     the maximum penalty that the Court may
                     impose is—
                       (a) in the case of a natural person,
                           240 penalty units; and
                       (b) in the case of a body corporate,
                           1200 penalty units.";
          (b) for clause 56C substitute—
             "56C. Electricity Industry Act 2000
                     Offences by a body corporate under section
                     97(7) of the Electricity Industry Act 2000,
                     offences under section 93A(1) or (2) or 97(11)
                     of that Act but the maximum penalty that the
                     Court may impose in respect of offences under
                     section 93A(1) or (2) is—
                       (a) in the case of a natural person,
                           240 penalty units; and
                       (b) in the case of a body corporate,
                           1200 penalty units.";
          (c) for clause 56E substitute—
              "56E. Gas Industry Act 2001
                     Offences by a body corporate under section
                     208(5) of the Gas Industry Act 2001 and
                     offences under section 149A(1) or (2), 186(9)
                     or 210(1) of that Act but the maximum penalty
                     that the Court may impose in respect of
                     offences under section 149A(1) or (2) is—
                       (a) in the case of a natural person,
                           240 penalty units; and
                       (b) in the case of a body corporate,
                           1200 penalty units.";
          (d) after clause 56F insert—
             "56G. Water Act 1989
                     Indictable offences under section 137A(1)
                     or (2) of the Water Act 1989 but the maximum
                     penalty that the Court may impose is—



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  s. 160

                                          (a) in the case of a natural person,
                                              240 penalty units; and
                                         (b) in the case of a body corporate,
                                             1200 penalty units.
                                 56H. Water Industry Act 1994
                                       Indictable offences under section 62A(1) or (2)
                                       of the Water Industry Act 1994 but the
                                       maximum penalty that the Court may impose
                                       is—
                                          (a) in the case of a natural person,
                                              240 penalty units; and
                                         (b) in the case of a body corporate,
                                             1200 penalty units.".
                      (2) In Schedule 5 to the Magistrates' Court Act
                          1989, before clause 8(1)(b)(vii) insert—
                          "(vih) a transport safety officer within the meaning of the
                                 Transport Act 1983; or".
See:            160. Road Management Act 2004 amendment—New
Act No.
12/2004.             Division 4A of Part 4 of that Act inserted
Reprint No. 1
as at                      After section 48 of the Road Management Act
1 July 2004
and
                           2004 insert—
amending
Act Nos
39/2004,
                               'Division 4A—Safety Duties in relation to
108/2004,                        Works on or near Rail Infrastructure
110/2004,
14/2005,
24/2005 and               48A. Definitions
61/2005.
LawToday:                        In this Division—
www.dms.
dpc.vic.                         "rail infrastructure" has the same meaning
gov.au
                                      as in the Rail Safety Act 2006;
                                 "rail operations" has the same meaning as
                                      in the Rail Safety Act 2006;
                                 "rail operator" has the same meaning as in
                                      the Rail Safety Act 2006;
                                 "rolling stock" has the same meaning as in
                                      the Rail Safety Act 2006;



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                                                                 s. 160


               "works contractor" means a person
                   engaged directly or indirectly by a State
                   road authority or an infrastructure
                   manager or works manager to carry out
                   works on behalf of the State road
                   authority or infrastructure manager or
                   works manager, and includes a sub-
                   contractor.
        48B. State road authority duty in relation to
             works on or in immediate vicinity of rail
             infrastructure or rolling stock
               A State road authority must, when exercising
               a power or performing a duty under this Act
               on or in the immediate vicinity of rail
               infrastructure or rolling stock, ensure, so far
               as is reasonably practicable, that it exercises
               the power or performs the duty safely.
               Penalty: 9000 penalty units.
        48C. Infrastructure manager or works
             manager duties in relation to works on or
             in immediate vicinity of rail infrastructure
             or rolling stock
               An infrastructure manager or works manager
               must, when exercising a power or
               performing a duty under this Act on or in the
               immediate vicinity of rail infrastructure or
               rolling stock, ensure, so far as is reasonably
               practicable, that he, she or it exercises the
               power or performs the duty safely.
               Penalty: In the case of a natural person,
                        1800 penalty units;
                          In the case of a body corporate,
                          9000 penalty units.




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                             Act No. 9/2006
         Part 11—Other Amendments to Acts, Savings and Transitionals
s. 160


                 48D. Works contractor duty in relation to
                      works on or in immediate vicinity of rail
                      infrastructure or rolling stock
                        A works contractor must, when carrying out
                        works on or in the immediate vicinity of rail
                        infrastructure or rolling stock, ensure, so far
                        as is reasonably practicable, that he, she or it
                        carries out the works safely.
                        Penalty: In the case of a natural person,
                                 1800 penalty units;
                                   In the case of a body corporate,
                                   9000 penalty units.
                 48E. Notification of owners or occupiers of land
                      on which there is rail infrastructure or
                      rolling stock
                        A State road authority must, before
                        exercising a power under this Act on land on
                        which there is rail infrastructure or rolling
                        stock, notify the owner or occupier of that
                        land of the intended exercise of the power if
                        the exercise of that power will threaten, or is
                        likely to threaten, the safety of that rail
                        infrastructure or rolling stock.
                        Penalty: 300 penalty units.




                                    258
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                     Act No. 9/2006
 Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                       s. 161


         48F. Notification of road authorities before rail
              operations carried out
                A rail operator must, before carrying out rail
                operations that will threaten, or are likely to
                threaten, the safety of a road authority's road
                infrastructure, notify that road authority of
                the rail operator's intention to carry out those
                operations.
                Penalty: In the case of a natural person,
                         60 penalty units;
                            In the case of a body corporate,
                            300 penalty units.
         48G. Certain offences in this Division are
              indictable offences
                An offence against section 48B, 48C or 48D
                is an indictable offence.
          Note: However, the offence may be heard and determined
                summarily (see section 53 of, and Schedule 4 to, the
                Magistrates' Court Act 1989).'.
161. Water Act 1989 amendment—New sections 137A                        See:
                                                                       Act No.
     to 137C inserted                                                  80/1989.
                                                                       Reprint No. 7
          After section 137 of the Water Act 1989 insert—              as at
                                                                       1 December
       '137A. Safety duties in relation to works on or in              2003
                                                                       and
              immediate vicinity of rail infrastructure                amending
              or rolling stock                                         Act Nos
                                                                       46/2003,
           (1) An Authority must, when carrying out any                48/2003,
                                                                       12/2004,
               works on or in the immediate vicinity of rail           81/2004,
               infrastructure or rolling stock, ensure, so far         82/2004,
                                                                       108/2004 and
               as is reasonably practicable, that it carries           48/2005.
               out those works safely.                                 LawToday:
                                                                       www.dms.
                                                                       dpc.vic.
                Penalty: 9000 penalty units.                           gov.au
           (2) A works contractor must, when carrying out
               works on or in the immediate vicinity of rail
               infrastructure or rolling stock, ensure, so far


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                             Act No. 9/2006
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s. 161


                        as is reasonably practicable, that he, she or it
                        carries out those works safely.
                        Penalty: In the case of a natural person,
                                 1800 penalty units;
                                    In the case of a body corporate,
                                    9000 penalty units.
                   (3) An offence against sub-section (1) or (2) is
                       an indictable offence.
                  Note: However, the offence may be heard and determined
                        summarily (see section 53 of, and Schedule 4 to, the
                        Magistrates' Court Act 1989).
                   (4) In this section—
                        "rail infrastructure" has the same meaning
                             as in the Rail Safety Act 2006;
                        "rolling stock" has the same meaning as in
                             the Rail Safety Act 2006;
                        "works contractor" means a person
                            engaged directly or indirectly by an
                            Authority to carry out works on behalf
                            of the Authority, and includes a sub-
                            contractor.
                137B. Notification of owners or occupiers of land
                      on which there is rail infrastructure or
                      rolling stock
                   (1) An Authority must, before carrying out
                       works on land on which there is rail
                       infrastructure or rolling stock, notify the
                       owner or occupier of that land of the
                       Authority's intention to carry out those works
                       if the carrying out of those works will
                       threaten, or is likely to threaten, the safety of
                       that rail infrastructure or rolling stock.
                        Penalty: 300 penalty units.




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                                                                  s. 162


           (2) In this section—
                "rail infrastructure" has the same meaning
                     as in the Rail Safety Act 2006;
                "rolling stock" has the same meaning as in
                     the Rail Safety Act 2006.
        137C. Notification of Authorities before rail
              operations carried out
           (1) A rail operator must, before carrying out rail
               operations that will threaten, or are likely to
               threaten, the safety of an Authority's works,
               notify the Authority of the rail operator's
               intention to carry out those operations.
                Penalty: In the case of a natural person,
                         60 penalty units;
                           In the case of a body corporate,
                           300 penalty units.
           (2) In this section—
                "rail operations" has the same meaning as
                     in the Rail Safety Act 2006;
                "rail operator" has the same meaning as in
                     the Rail Safety Act 2006.'.
162. Water Industry Act 1994 amendment—New                        See:
                                                                  Act No.
     sections 62A to 62C inserted                                 121/1994.
                                                                  Reprint No. 5
          After section 62 of the Water Industry Act 1994         as at
                                                                  28 April 2005
          insert—                                                 and
                                                                  amending
        '62A. Safety duties in relation to works on or in         Act No.
              immediate vicinity of rail infrastructure           48/2003.
                                                                  LawToday:
              or rolling stock                                    www.dms.
                                                                  dpc.vic.
           (1) A licensee must, when carrying out any             gov.au
               works it is empowered under this Act to
               carry out on or in the immediate vicinity of
               rail infrastructure or rolling stock, ensure, so




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s. 162


                        far as is reasonably practicable, that it carries
                        out those works safely.
                        Penalty: 9000 penalty units.
                   (2) A works contractor must, when carrying out
                       works on or in the immediate vicinity of rail
                       infrastructure or rolling stock, ensure, so far
                       as is reasonably practicable, that he, she or it
                       carries out those works safely.
                        Penalty: In the case of a natural person,
                                 1800 penalty units;
                                    In the case of a body corporate,
                                    9000 penalty units.
                   (3) An offence against sub-section (1) or (2) is
                       an indictable offence.
                  Note: However, the offence may be heard and determined
                        summarily (see section 53 of, and Schedule 4 to, the
                        Magistrates' Court Act 1989).
                   (4) In this section—
                        "rail infrastructure" has the same meaning
                             as in the Rail Safety Act 2006;
                        "rolling stock" has the same meaning as in
                             the Rail Safety Act 2006;
                        "works contractor" means a person
                            engaged directly or indirectly by a
                            licensee to carry out works on behalf of
                            the licensee, and includes a sub-
                            contractor.




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                    Act No. 9/2006
Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                 s. 162


        62B. Notification of owners or occupiers of land
             on which there is rail infrastructure or
             rolling stock
          (1) A licensee must, before carrying out works
              on land on which there is rail infrastructure
              or rolling stock, notify the owner or occupier
              of that land of the licensee's intention to
              carry out those works if the carrying out of
              those works will threaten, or is likely to
              threaten, the safety of that rail infrastructure
              or rolling stock.
               Penalty: 300 penalty units.
          (2) In this section—
               "rail infrastructure" has the same meaning
                    as in the Rail Safety Act 2006;
               "rolling stock" has the same meaning as in
                    the Rail Safety Act 2006.
        62C. Notification of licensees before rail
             operations carried out
          (1) A rail operator must, before carrying out rail
              operations that will threaten, or are likely to
              threaten, the safety of a licensee's works,
              notify the licensee of the rail operator's
              intention to carry out those operations.
               Penalty: In the case of a natural person,
                        60 penalty units;
                          In the case of a body corporate,
                          300 penalty units.
          (2) In this section—
               "rail operations" has the same meaning as
                    in the Rail Safety Act 2006;
               "rail operator" has the same meaning as in
                    the Rail Safety Act 2006.'.



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                                     Rail Safety Act 2006
                                       Act No. 9/2006
                   Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 163


Pt 11 Div. 4        Division 4—Savings and Transitional Provisions
(Heading and
ss 163–170)
substituted as
Pt 11 Div. 4
(Heading and
ss 163–182)
by
No. 47/2006
s. 52.

S. 163           163. Definitions
substituted by
No. 47/2006
s. 52.
                            In this Division—
                            "accredited commercial rail operator" means a
                                person (other than an accredited tourist and
                                heritage rail operator) who—
                                    (a) under a transitional accreditation carries
                                        out rail infrastructure operations or
                                        rolling stock operations; or
                                    (b) by operation of section 170(4) holds a
                                        post new scheme accreditation under
                                        which the person carries out rail
                                        infrastructure operations or rolling
                                        stock operations;
                            "accredited tourist and heritage rail operator"
                                means a person who—
                                    (a) under a transitional accreditation carries
                                        out rail infrastructure operations or
                                        rolling stock operations—
                                         (i) that are tourist and heritage rail
                                             operations; or
                                         (ii) for the purpose of operating a
                                              tourist and heritage railway; or
                                    (b) by operation of section 170(4) holds a
                                        post new scheme accreditation under
                                        which the person carries out rail
                                        infrastructure operations or rolling
                                        stock operations—



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                    Act No. 9/2006
Part 11—Other Amendments to Acts, Savings and Transitionals
                                                               s. 163


                      (i) that are tourist and heritage rail
                          operations; or
                      (ii) for the purpose of operating a
                           tourist and heritage railway;
         "commencement day" means the day on which
             section 119 comes into operation;
         "manage", in relation to rail infrastructure, has
            the meaning given to it by section 107 of the
            Transport Act 1983 (as in force
            immediately before the commencement day);
         "old accreditation" means an accreditation under
              Division 3 of Part VI of the Transport Act
              1983;
         "operate", in relation to rolling stock, has the
             meaning given to it by section 109(2) of the
             Transport Act 1983 (as in force
             immediately before the commencement day);
         "post new scheme accreditation" means an
             accreditation under Part 5 referred to in
             section 170(4);
         "private siding" has the same meaning as in
              section 104(1) of the Transport Act 1983
              (as in force immediately before the
              commencement day);
         "provide", in relation to rolling stock, has the
             meaning given to it by section 109(1) of the
             Transport Act 1983 (as in force
             immediately before the commencement day);
         "rail infrastructure" has the same meaning as in
              section 104(1) of the Transport Act 1983
              (as in force immediately before the
              commencement of section 119);




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                                       Act No. 9/2006
                   Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 164


                            "railway" has the same meaning as in section
                                 104(1) of the Transport Act 1983 (as in
                                 force immediately before the commencement
                                 day);
                            "rolling stock" has the same meaning as in
                                 section 104(1) of the Transport Act 1983
                                 (as in force immediately before the
                                 commencement day);
                            "tourist and heritage rail operations" means
                                rail infrastructure operations or rolling stock
                                operations carried out by a person named in
                                an Order under section 166 that have been
                                declared under that Order to be tourist and
                                heritage rail operations;
                            "tourist and heritage railway" means a railway
                                named in an Order under section 166 that is
                                declared under that Order to be a tourist and
                                heritage railway;
                            "transitional accreditation" has the meaning
                                 given by section 172(1).
S. 164           164. General transitional provision
substituted by
No. 47/2006
s. 52.
                            This Division does not affect or take away from
                            the Interpretation of Legislation Act 1984.
S. 165           165. Savings and transitional regulations
substituted by
No. 47/2006
s. 52.
                            The regulations may contain provisions of a
                            savings or transitional nature consequent on the
                            enactment of this Act and the repeal of
                            Divisions 2 and 3 of Part VI of the Transport Act
                            1983.




                                              266
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                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                  s. 166


166. Declaration Order in relation to tourist and heritage        S. 166
     operation and railways                                       substituted by
                                                                  No. 47/2006
           The Minister, by Order published in the                s. 52.

           Government Gazette, may, for the purposes of this
           Division, declare—
            (a) rail infrastructure operations or rolling stock
                operations carried out by a person named in
                the Order to be tourist and heritage rail
                operations;
            (b) a railway named in the Order to be a tourist
                and heritage railway.
167. Orders and approvals relating to alcohol and other           S. 167
                                                                  substituted by
     drug controls under the Transport Act 1983                   No. 47/2006
                                                                  s. 52.
           On the commencement day—
            (a) an Order made under section 93(1AA) of the
                Transport Act 1983, and in force
                immediately before the commencement day,
                is deemed to be an Order made under
                section 4 and may be amended or revoked
                accordingly;
            (b) an approval under section 93(1A) of the
                Transport Act 1983, and in force
                immediately before the commencement day,
                is deemed to be an Order made under
                section 8 and may be amended or revoked
                accordingly;
            (c) an Order made under the Transport Act
                1983 for the purposes of the definition of
                "corresponding law" as defined by section
                93(1) of that Act, and in force immediately
                before the commencement day, is deemed to
                be an Order made under section 9 and may
                be amended or revoked accordingly.




                             267
                                     Rail Safety Act 2006
                                       Act No. 9/2006
                   Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 168


S. 168           168. Authorities for the purposes of Part 6
substituted by
No. 47/2006                 On the commencement day—
s. 52.
                             (a) an authority given under or for the purposes
                                 of section 96(3) of the Transport Act 1983
                                 by the Chief Commissioner of Police, and in
                                 force immediately before the commencement
                                 day, is deemed to be an authority given
                                 under or for the purposes of section 78(4) by
                                 the Chief Commissioner of Police and may
                                 be amended or revoked accordingly;
                             (b) an authority given under or for the purposes
                                 of section 96A(5)(b) of the Transport Act
                                 1983 by the Chief Commissioner of Police,
                                 and in force immediately before the
                                 commencement day, is deemed to be an
                                 authority given under or for the purposes of
                                 section 79(5)(b) by the Chief Commissioner
                                 of Police and may be amended or revoked
                                 accordingly;
                             (c) an authority given under or for the purposes
                                 of section 96A(5)(a) of the Transport Act
                                 1983 by the Secretary, and in force
                                 immediately before the commencement day,
                                 is deemed to be an authority given under or
                                 for the purposes of section 79(5)(a) by the
                                 Safety Director and may be amended or
                                 revoked accordingly.
S. 169           169. Specified procedures for carrying out assessment of
substituted by
No. 47/2006           drug impairment
s. 52.
                            On the commencement day, a procedure for the
                            carrying out of an assessment of drug impairment
                            specified by the Secretary under section 96A(7) of
                            the Transport Act 1983, and in force
                            immediately before the commencement day, is
                            deemed to be a procedure for the carrying out of
                            an assessment of drug impairment specified by the



                                              268
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                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                 s. 170


           Safety Director under section 79(7) and may be
           amended or revoked accordingly.
170. Existing applications for accreditation                     S. 170
                                                                 substituted by
                                                                 No. 47/2006
      (1) Despite section 119, an application under section      s. 52.
          111 of the Transport Act 1983—
            (a) for accreditation as a manager of rail
                infrastructure by a person who manages or
                proposes to manage rail infrastructure; and
            (b) in respect of which the Secretary has not
                made a decision under Division 3 of Part VI
                of that Act to accredit or refuse to accredit
                the person as a manager of rail infrastructure
                before the commencement day—
           must, on and from the commencement day, be
           dealt with and decided by the Safety Director
           under Division 3 of Part VI of that Act as if—
            (c) Division 3 of Part VI of the Transport Act
                1983 was not repealed by section 119; and
            (d) a reference to the Secretary in Division 3 of
                Part VI of the Transport Act 1983 were a
                reference to the Safety Director.
      (2) Despite section 119, an application under
          section 111 of the Transport Act 1983—
            (a) for accreditation as a provider of rolling
                stock by a person who provides, or proposes
                to provide, rolling stock; and
            (b) in respect of which the Secretary has not
                made a decision under Division 3 of Part VI
                of that Act to accredit or refuse to accredit
                the person as a provider of rolling stock
                before the commencement day—
           must, on and from the commencement day, be
           dealt with and decided by the Safety Director
           under Division 3 of Part VI of that Act as if—


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         Part 11—Other Amendments to Acts, Savings and Transitionals
s. 170


                   (c) Division 3 of Part VI of the Transport Act
                       1983 was not repealed by section 119; and
                   (d) a reference to the Secretary in Division 3 of
                       Part VI of the Transport Act 1983 were a
                       reference to the Safety Director.
             (3) Despite section 119, an application under
                 section 111 of the Transport Act 1983—
                   (a) for accreditation as an operator of rolling
                       stock by a person who operates, or proposes
                       to operate, rolling stock; and
                   (b) in respect of which the Secretary has not
                       made a decision under Division 3 of Part VI
                       of that Act to accredit or refuse to accredit
                       the person as an operator of rolling stock
                       before the commencement day—
                  must, on and from the commencement day, be
                  dealt with and decided by the Safety Director
                  under Division 3 of Part VI of that Act as if—
                   (c) Division 3 of Part VI of the Transport Act
                       1983 was not repealed by section 119; and
                   (d) a reference to the Secretary in Division 3 of
                       Part VI of the Transport Act 1983 were a
                       reference to the Safety Director.
             (4) If, by force of sub-section (1), (2) or (3), the
                 Safety Director decides to accredit a person who
                 made an application referred to in those sub-
                 sections, that person is deemed, on the
                 accreditation of that person, to hold—
                   (a) in the case of a person accredited as a
                       manager of rail infrastructure and who is a
                       rail infrastructure manager, an accreditation
                       under Part 5 in respect of the rail
                       infrastructure operations the person carries
                       out;



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  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                   s. 171


            (b) in the case of a person accredited as a
                provider of rolling stock and who is a rolling
                stock operator, an accreditation under Part 5
                in respect of the rolling stock operations the
                person carries out;
            (c) in the case of a person accredited as an
                operator of rolling stock and who is a rolling
                stock operator, an accreditation under Part 5
                in respect of the rolling stock operations the
                person carries out.
171. Review of decisions in relation to applications of            S. 171
                                                                   inserted by
     accreditation transitioned under this Division                No. 47/2006
                                                                   s. 52.
           Despite section 119, section 129B of the
           Transport Act 1983 applies to an application
           referred to in section 170 as if—
            (a) section 129B of that Act were not repealed;
                and
            (b) a reference to the Secretary in section 129B
                of that Act were a reference to the Safety
                Director.
172. Existing accreditations deemed to be accreditations           S. 172
                                                                   inserted by
     under this Act                                                No. 47/2006
                                                                   s. 52.
      (1) A person who, immediately before the
          commencement day, held an old accreditation is,
          on the commencement day, deemed to hold an
          accreditation under Part 5 ("transitional
          accreditation") as an accredited rail operator—
            (a) if the person is a rail infrastructure manager,
                in respect of the rail infrastructure operations
                the operator carries out;
            (b) if the person is a rolling stock operator, in
                respect of the rolling stock operations the
                operator carries out.




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                                    Act No. 9/2006
                Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 173


                    (2) Subject to this Division, the transitional
                        accreditation is deemed to be subject to the
                        conditions and restrictions—
                          (a) to which the old accreditation was subject
                              immediately before the commencement day;
                              and
                          (b) that are not inconsistent with this Act.
                    (3) However, the conditions set out in section 117(4)
                        and (4A) of the Transport Act 1983 and any
                        condition specified in the regulations made under
                        that Act applying to an old accreditation do not
                        continue to apply to the transitional accreditation.
                    (4) To avoid doubt, the conditions set out in section
                        46(4) and (5), and any condition specified in the
                        regulations, apply to the transitional accreditation.
S. 173        173. Expiry of transitional accreditations and post new
inserted by
No. 47/2006        scheme accreditations
s. 52.
                         Despite anything to the contrary in Part 5, on the
                         making of an Order under section 166, a
                         transitional accreditation or post new scheme
                         accreditation—
                          (a) held by an accredited commercial operator
                              expires on the second anniversary of the
                              commencement day;
                          (b) held by an accredited tourist and heritage rail
                              operator expires on the third anniversary of
                              the commencement day.




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                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                  s. 174


174. Conditions and restrictions of transitional                  S. 174
     accreditations may be varied in accordance with              inserted by
                                                                  No. 47/2006
     Division 4 of Part 5                                         s. 52.

           To avoid doubt, the conditions or restrictions to
           which a transitional accreditation is subject may
           be varied or revoked by the Safety Director under
           sections 53 and 55 as if those conditions or
           restrictions had been imposed by the Safety
           Director under section 46.
175. Transitional accreditations may be surrendered               S. 175
                                                                  inserted by
                                                                  No. 47/2006
           To avoid doubt, a transitional accreditation may       s. 52.
           be surrendered to the Safety Director in
           accordance with section 56 as if that accreditation
           were an accreditation under Part 5.
176. Existing application for changes of conditions or            S. 176
                                                                  inserted by
     restrictions of accreditation                                No. 47/2006
                                                                  s. 52.
      (1) An application under section 119 of the
          Transport Act 1983—
            (a) for a variation of (as the case requires) a
                restriction or condition of an old
                accreditation; and
            (b) in respect of which the Secretary has not,
                before the commencement day, made a
                decision under that section whether to vary
                the restriction or condition the subject of the
                application—
           is deemed, on and from the commencement day,
           to be an application under section 53 for a
           variation of (as the case requires) a restriction or
           condition of an accreditation.




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                                    Act No. 9/2006
                Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 177


                    (2) An application under section 119 of the
                        Transport Act 1983—
                          (a) for the revocation of (as the case requires) a
                              restriction or condition of an old
                              accreditation; and
                          (b) in respect of which the Secretary has not,
                              before the commencement day, made a
                              decision under that section whether to revoke
                              the restriction or condition the subject of the
                              application—
                         is deemed, on and from the commencement day,
                         to be an application under section 53 for a
                         revocation of (as the case requires) a restriction or
                         condition of an accreditation.
                    (3) This Act applies to an application referred to in
                        sub-section (1) or (2).
S. 177        177. Change of conditions or restrictions on accreditation
inserted by
No. 47/2006        on initiative of Secretary
s. 52.
                    (1) A variation or revocation of (as the case requires)
                        a restriction or condition of an old accreditation
                        proposed by the Secretary under section 119 of
                        the Transport Act 1983, and in respect of which
                        the Secretary has not varied or revoked (as the
                        case requires) the restriction or condition of the
                        old accreditation, is deemed, on and from the
                        commencement day, to be a proposal by the
                        Safety Director, under section 55, to vary or
                        revoke (as the case requires) a restriction or
                        condition of an accreditation.
                    (2) This Act applies to an application referred to in
                        sub-section (1).




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                      Act No. 9/2006
  Part 11—Other Amendments to Acts, Savings and Transitionals
                                                                  s. 178


178. Compliance with certain provisions not required              S. 178
     while accreditations under Division are in force             inserted by
                                                                  No. 47/2006
           Despite anything to the contrary in this Act, a rail   s. 52.

           operator who holds a transitional accreditation or
           post new scheme accreditation is not required to
           comply with any of the following while the
           transitional accreditation or post new scheme
           accreditation is in force—
            (a) Division 4 of Part 3;
            (b) section 54.
179. Accreditations transitioned under Division not               S. 179
                                                                  inserted by
     Part 5 accreditations for purposes of section 65             No. 47/2006
                                                                  s. 52.
           Despite anything to the contrary in this Act, a
           transitional accreditation or post new scheme
           accreditation is not be taken to be an accreditation
           for the purposes of section 65.
180. Private sidings                                              S. 180
                                                                  inserted by
                                                                  No. 47/2006
      (1) A person who, immediately before the                    s. 52.
          commencement day, was registered under
          regulation 12 of the Transport (Rail Safety)
          Regulations 1998 to manage a private siding is, on
          the commencement day, deemed to have been
          granted an exemption under section 63.
      (2) An exemption referred to in sub-section (1) is
          subject to the same conditions that—
            (a) applied to the registration under
                regulation 12 of the Transport (Rail Safety)
                Regulations 1998 immediately before the
                commencement day; and
            (b) are not inconsistent with this Act.
      (3) However, despite anything to the contrary in
          section 63 or 64, an exemption referred to in sub-
          section (1), expires on the second anniversary of
          the commencement day.


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                                  Rail Safety Act 2006
                                    Act No. 9/2006
                Part 11—Other Amendments to Acts, Savings and Transitionals
  s. 181


S. 181        181. References to Secretary in transitional
inserted by        accreditations to be read as references to Safety
No. 47/2006
s. 52.             Director
                         On and from the commencement day, every
                         reference in a transitional accreditation to the
                         Secretary is to be read as the Safety Director
                         unless the context otherwise requires.
S. 182        182. Codes of Practice
inserted by
No. 47/2006
s. 52.
                         On the commencement day, a code of practice
                         approved by the Minister under section 129WA of
                         the Transport Act 1983, and in force
                         immediately before the commencement day, is
                         deemed to be an approved code of practice and
                         may be amended or revoked accordingly.
                                 ═══════════════




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                                                                                      Endnotes



                                   ENDNOTES

1. General Information
  Minister's second reading speech—
  Legislative Assembly: 6 October 2005
  Legislative Council: 28 March 2006
  The long title for the Bill for this Act was "to provide for safe rail operations
  in Victoria, to amend the Transport Act 1983, the Public Transport
  Competition Act 1995, the Rail Corporations Act 1996, the Electricity
  Industry Act 2000, the Gas Industry Act 2001, the Magistrates' Court
  Act 1989, the Road Management Act 2004, the Water Act 1989, the
  Water Industry Act 1994 and for other purposes."
  The Rail Safety Act 2006 was assented to on 4 April 2006 and came into
  operation as follows:
  Section 156(1) on 1 January 2006: section 2(3); sections 129 and 156(2) on
  5 April 2006: section 2(2); section 147 on 25 July 2006; rest of Act (except
  sections 122 and 123) on 1 August 2006: Special Gazette No. 181, 25 July
  2006 page 1.




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                                           Act No. 9/2006

Endnotes


           2. Table of Amendments
             This Version incorporates amendments made to the Rail Safety Act 2006 by
             Acts and subordinate instruments.
             –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
             Transport Legislation (Further Amendment) Act 2006, No. 47/2006
                 Assent Date:              25.7.06
                 Commencement Date:        Ss 39–53 on 26.7.06: s. 2(1)
                 Current State:            This information relates only to the provision/s
                                           amending the Rail Safety Act 2006
             –––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––




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                             Rail Safety Act 2006
                               Act No. 9/2006

                                                    Endnotes


3. Explanatory Details
  No entries at date of publication.




                                       279

				
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