Docstoc
EXCLUSIVE OFFER FOR DOCSTOC USERS
Try the all-new QuickBooks Online for FREE.  No credit card required.

Rail Safety Bill 2009

Document Sample
Rail Safety Bill 2009 Powered By Docstoc
					                                    Western Australia


                                         DRAFT 2

                            Rail Safety Bill 2009




                                         ft
                                         CONTENTS


                   Part 1 — Preliminary
       1.          Short title                                          2
       2.          Commencement                                         2
       3.          Terms used (Model Bill cl. 4)                        2
       4.          Declaration of substance to be a drug (Model Bill
   a               cl. 5)                                              13
       5.          Railways to which this Act does not apply (Model
                   Bill cl. 6)                                         13
       6.          The concept of ensuring safety (Model Bill cl. 7)   14
       7.          Rail safety work (Model Bill cl. 8)                 14
       8.          Relationship to Government Railways Act 1904
Dr
                   (RSA s. 5)                                          16
       9.          State or other jurisdiction bound by the Act        16
                   Part 2 — Relationship to
                        Occupational Safety and Health
                        Act 1984
       10.         Act adds to protection provided by Occupational
                   Safety and Health Act 1984 (Model Bill cl. 12)      17
       11.         Occupational Safety and Health Act 1984 prevails
                   (Model Bill cl. 13)                                 17
       12.         Compliance with this Act is no defence to
                   prosecution under Occupational Safety and Health
                   Act 1984 (Model Bill cl. 14)                        17



DRAFT 2 8 May 2009 1:41                                                page i
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



       13.         Relationship between duties under this Act and
                   Occupational Safety and Health Act 1984 (Model
                   Bill cl. 15)                                              17
       14.         No double jeopardy (Model Bill cl. 16)                    17
                   Part 3 — Administration
                   Division 1 — The Rail Safety Regulator




                                         ft
       15.         Rail Safety Regulator (local)                             19
       16.         Functions of the Rail Safety Regulator (Model Bill
                   cl. 18)                                                   19
       17.         Information to be included in annual report (Model
                   Bill cl. 19 and local)                                    20
       18.         Delegation (local)                                        20
       19.         Rail Safety Regulator may exercise functions of
                   rail safety officers (Model Bill cl. 21)                  21
                   Division 2 — Rail safety officers
       20.         Designation of public service officer as a rail
                   safety officer (local)                                    21
       21.         Appointment of rail safety officers (Model Bill
   a               cl. 22)                                                   23
       22.         Reciprocal powers of rail safety officers (Model
                   Bill cl. 23)                                              23
       23.         Identification cards for rail safety officers (Model
                   Bill cl. 24)                                              24
Dr
       24.         Rail safety officer must not exercise functions
                   without identification card (Model Bill cl. 25)           24
       25.         Display and production of identification card
                   (Model Bill cl. 26)                                       25
       26.         Return of identification cards (Model Bill cl. 27)        25
                   Part 4 — Rail safety
                   Division 1 — General safety duties
       27.         Safety duties of rail transport operators (Model
                   Bill cl. 28)                                              26
       28.         Duties of rail transport operators extend to
                   contractors (Model Bill Amend No. 1 cl. 28A)              29
       29.         Duties of designers, manufacturers, suppliers etc.
                   (Model Bill cl. 29)                                       29



page ii                                                     DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                             Rail Safety Bill 2009



                                                                         Contents



                   Division 2 — Accreditation
       30.         Purpose of accreditation (Model Bill cl. 30)             31
       31.         Accreditation required for railway operations
                   (Model Bill cl. 31)                                      31
       32.         Purpose for which accreditation may be granted
                   (Model Bill cl. 32)                                      33
       33.         Application for accreditation (Model Bill cl. 33)        33




                                         ft
       34.         What applicant for accreditation must demonstrate
                   (Model Bill cl. 34)                                      34
       35.         Rail Safety Regulator may direct applicants to
                   coordinate and cooperate in applications (Model
                   Bill cl. 35)                                             35
       36.         Coordination between Rail Safety Regulators
                   (Model Bill cl. 36)                                      36
       37.         Determination of application (Model Bill cl. 37)         36
       38.         Prescribed conditions and restrictions (Model Bill
                   cl. 38)                                                  38
       39.         Penalty for breach of condition or restriction
                   (Model Bill cl. 39)                                      38
   a   40.         Annual fees (Model Bill cl. 40 and local)                38
       41.         Late payment fees (Model Bill cl. 41)                    39
       42.         Rail Safety Accreditation Account (RSA s. 23)            39
       43.         Periodic returns (based on RSA s. 24)                    39
       44.         Surrender of accreditation (Model Bill cl. 43)           40
       45.         Revocation or suspension of accreditation (Model
Dr
                   Bill cl. 44)                                             40
       46.         Immediate suspension of accreditation (Model Bill
                   cl. 45)                                                  42
       47.         Keeping and making available documents for
                   public inspection (Model Bill cl. 46)                    43
       48.         Application for variation of accreditation (Model
                   Bill cl. 47)                                             44
       49.         Application that relates to cooperative railway
                   operations or operations in another jurisdiction
                   (Model Bill cl. 48)                                      44
       50.         Determination of application for variation (Model
                   Bill cl. 49)                                             45
       51.         Prescribed conditions and restrictions (based on
                   Model Bill cl. 50)                                       46


DRAFT 2 8 May 2009 1:41                                                   page iii
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



       52.         Rail Safety Regulator may direct amendment of a
                   safety management system (Model Bill cl. 51)              46
       53.         Variation of conditions and restrictions (Model
                   Bill cl. 52)                                              47
       54.         Rail Safety Regulator may make changes to
                   conditions or restrictions (Model Bill cl. 53)            47
       55.         Accreditation cannot be transferred or assigned




                                         ft
                   (Model Bill cl. 54)                                       48
       56.         Sale or transfer of railway operations by accredited
                   person (Model Bill cl. 55)                                49
                   Division 3 — Private sidings
       57.         Exemption from accreditation (Model Bill cl. 56
                   & Amend No. 2)                                            49
                   Division 4 — Safety management
       58.         Safety management system (Model Bill cl. 57)              51
       59.         Compliance with safety management system
                   (Model Bill cl. 58)                                       53
       60.         Review of safety management system (Model Bill
   a   61.
                   cl. 59)
                   Safety performance reports (Model Bill cl. 60)
                                                                             54
                                                                             55
       62.         Interface coordination — rail transport operators
                   (Model Bill Amend No. 2 cl. 61)                           56
       63.         Interface coordination — rail infrastructure
                   manager — public roads (Model Bill Amend No. 2
Dr
                   cl. 61A)                                                  57
       64.         Interface coordination — rail infrastructure
                   manager —roads other than public roads (Model
                   Bill Amend No. 2 cl. 61B)                                 57
       65.         Interface coordination — road manager — public
                   roads and other roads (Model Bill Amend No. 2
                   cl. 61C)                                                  58
       66.         Identification and assessment of risks (Model Bill
                   Amend No. 2 cl. 61D)                                      59
       67.         Scope of interface agreements (Model Bill Amend
                   No. 2 cl. 61E)                                            60
       68.         Rail Safety Regulator may give directions (Model
                   Bill Amend No. 2 cl. 61F)                                 60
       69.         Register of interface agreements (Model Bill
                   Amend No. 2 cl. 61G)                                      62


page iv                                                     DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                             Rail Safety Bill 2009



                                                                         Contents



       70.         Security management plan (Model Bill cl. 62)             62
       71.         Emergency management plan (Model Bill cl. 63)            63
       72.         Health and fitness management programme
                   (Model Bill cl. 64)                                      65
       73.         Alcohol and drug management programme
                   (Model Bill cl. 65)                                      65
       74.         Testing for presence of alcohol or drugs (Model




                                         ft
                   Bill cl. 66)                                             66
       75.         Fatigue management programme (Model Bill
                   cl. 67)                                                  66
       76.         Assessment of competence (Model Bill cl. 68 and
                   SA Bill)                                                 66
       77.         Identification for rail safety workers (Model Bill
                   cl. 69)                                                  68
       78.         Duties of rail safety workers (Model Bill cl. 70)        68
       79.         Contractors to comply with safety management
                   system (Model Bill cl. 71)                               69
                   Division 5 — Information about rail safety
       80.         Rail transport operators to provide information
   a               (Model Bill cl. 72)                                      70
                   Division 6 — Investigating and reporting by rail
                           transport operators
       81.         Notification of certain occurrences (Model Bill cl.
                   73)                                                      71
Dr
       82.         Investigation of notifiable occurrences (Model Bill
                   cl. 74)                                                  72
                   Division 7 — Audit by Rail Safety Regulator
       83.         Audit of railway operations of rail transport
                   operators (Model Bill cl. 75)                            73
                   Part 5 — Enforcement
                   Division 1 — Entry to places by rail safety
                         officers
       84.         Power to enter places (Model Bill cl. 76)                75
       85.         Limitation on entry powers: places used for
                   residential purposes (Model Bill cl. 77)                 76
       86.         Notice of entry (Model Bill cl. 78)                      76



DRAFT 2 8 May 2009 1:41                                                    page v
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



                   Division 2 — General enforcement powers
       87.         General powers after entering a place (Model Bill
                   cl. 79)                                                  77
       88.         Use of assistants and equipment (Model Bill
                   cl. 80)                                                  78
       89.         Use of electronic equipment (Model Bill cl. 81)          78
       90.         Use of equipment to examine or process things




                                         ft
                   (Model Bill cl. 82)                                      79
       91.         Securing a site (Model Bill cl. 83)                      79
                   Division 3 — Search warrants
       92.         Search warrant (based on Model Bill cl. 84)              80
       93.         Issue of search warrant                                  81
       94.         Execution of warrant                                     82
       95.         Seizure of things not mentioned in the warrant
                   (Model Bill cl. 85)                                      82
                   Division 4 — Powers to support seizure
       96.         Directions relating to seizure (Model Bill cl. 86)       83
       97.         Rail safety officer may direct a thing’s return
   a   98.
                   (Model Bill cl. 87)
                   Receipt for seized things (Model Bill cl. 88)
                                                                            84
                                                                            84
       99.         Access to seized thing (Model Bill cl. 89)               85
       100.        Embargo notices (Model Bill cl. 90)                      85
                   Division 5 — Forfeiture
       101.        Return of seized things (Model Bill cl. 91)              86
Dr
       102.        Forfeiture (Model Bill cl. 92)                           87
       103.        Dealing with forfeited sample or thing (Model Bill
                   cl. 94)                                                  88
       104.        Forfeiture on conviction (local based on Gene
                   Technology Act 2006 s. 148)                              88
                   Division 6 — Directions
       105.        Rail safety officers may direct certain persons to
                   give assistance (Model Bill cl. 95)                      89
       106.        Power to direct name and address be given (Model
                   Bill cl. 96)                                             90
       107.        Failure to give name or address (Model Bill cl. 97)      90
       108.        Power to direct production of documents (Model
                   Bill cl. 98)                                             91
       109.        Failure to produce document (Model Bill cl. 99)          91


page vi                                                    DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                              Rail Safety Bill 2009



                                                                          Contents



                   Division 7 — Improvement notices
       110.        Improvement notices (Model Bill cl. 100)                  91
       111.        Contravention of improvement notice (Model Bill
                   cl. 101)                                                  94
       112.        Withdrawal or amendment of improvement notices
                   (Model Bill cl. 102)                                      95
       113.        Proceedings for offences not affected by




                                         ft
                   improvement notices (Model Bill cl. 103)                  95
       114.        Rail Safety Regulator to arrange for rail safety
                   work required by improvement notice to be carried
                   out (Model Bill cl. 104)                                  96
                   Division 8 — Prohibition notices
       115.        Prohibition notice (Model Bill cl. 105)                   96
       116.        Contravention of prohibition notice (Model Bill
                   cl. 106)                                                  98
       117.        Oral direction before prohibition notice served
                   (Model Bill cl. 107)                                      99
       118.        Withdrawal or amendment of prohibition notice
                   (Model Bill cl. 108)                                      99
   a   119.        Proceedings for offences not affected by
                   prohibition notices (Model Bill cl. 109)                 100
                   Division 9 — Miscellaneous
       120.        Directions may be given under more than one
                   provision (Model Bill cl. 110)                           100
Dr
       121.        Temporary closing of railway crossings, bridges
                   etc. (Model Bill cl. 111)                                101
       122.        Restoring rail infrastructure and rolling stock etc.
                   to original condition after action taken (Model Bill
                   cl. 112)                                                 101
       123.        Use of force (Model Bill cl. 113)                        102
       124.        Power to use force against persons to be exercised
                   only by police officers (Model Bill cl. 114)             102
       125.        Protection from incrimination (Model Bill cl. 115)       102
                   Part 6 — Investigations
                   Division 1 — Independent investigators
       126.        Appointment of independent investigator (based on
                   RSA 41)                                                  104
       127.        Conduct of investigation (based on RSA 42(1))            105

DRAFT 2 8 May 2009 1:41                                                    page vii
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



       128.        Advise as to immediate action that is required            106
       129.        Release of information in the interests of rail safety
                   (based on Vic TA s. 85D)                                  106
       130.        Investigation may continue despite other
                   proceedings (based on RSA 44)                             106
       131.        Draft report or excerpt (TSIA s. 26)                      106
       132.        Report (based on RSA 43)                                  108




                                         ft
       133.        Reports not admissible in evidence (TSIA s. 27)           108
       134.        Response to report: installation of safety or
                   protective devices (based on RSA 28)                      109
       135.        Appointment of authorised officers (based on RSA
                   45)                                                       109
       136.        Delegation by independent investigator                    109
       137.        Certificate of appointment for independent
                   investigators and authorised officers                     110
       138.        Independent investigators and authorised officers
                   must not exercise functions without a certificate of
                   appointment                                               110
       139.        Production of a certificate of appointment                110
   a   140.        Return of certificate of appointment                      111
                   Division 2 — Investigation powers
       141.        Securing a site (based on Model Bill cl. 83)              111
       142.        Power to obtain information (based on N & MWA
                   s. 75)                                                    112
       143.        Other powers (based on RSA 46)                            113
Dr
       144.        Limitation on entry powers: places used for
                   residential purposes (based on Model Bill cl. 77)         115
       145.        Occupier entitled to be present during inspection
                   (based on TSIA s. 38)                                     115
       146.        Use of equipment (based on Model Bill cl. 80)             115
       147.        Occupier to provide independent investigator with
                   facilities and assistance (based on TSIA s. 37)           115
       148.        Use of electronic equipment (based on Model Bill
                   cl. 81)                                                   116
       149.        Use of equipment to examine or process things
                   (based on Model Bill cl. 82)                              116
       150.        Notices relating to exercise of powers                    117
       151.        Protection orders by Rail Safety Regulator or
                   independent investigator (based on TSIA s. 43)            117
       152.        Medical examination                                       118

page viii                                                    DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                             Rail Safety Bill 2009



                                                                         Contents



       153.        Analysis                                                120
       154.        Regulations relating to medical examinations and
                   analysis                                                122
       155.        Independent investigator not to use force against
                   persons (based on Model Bill cl. 114)                   123
                   Division 3 — Search warrants
       156.        Search warrant                                          123




                                         ft
       157.        Issue of search warrant                                 124
       158.        Execution of warrant                                    124
       159.        Seizure of things not mentioned in the warrant          125
                   Division 4 — Seized things and samples taken
       160.        Provisions relating to seizure (based on RSA 48)        125
       161.        Securing seized things (based on Vic TA s. 228ZP)       126
       162.        Powers to support seizure (based on Vic TA
                   s. 228ZR)                                               126
       163.        Independent investigator may direct a thing’s
                   return (based on Vic TA s. 228ZS)                       127
       164.        Manner in which independent investigator may
   a               give directions under this Division (based on Vic
                   TA s. 228ZY)                                            128
       165.        Receipt for seized things or sample (based on Vic
                   TA s. 228ZT)                                            128
       166.        Copies of certain seized things to be given (based
                   on Vic TA s. 228ZU)                                     129
Dr
       167.        Transfer of seized thing to independent
                   investigator                                            130
       168.        Transfer of seized thing to a rail safety officer       130
                   Division 5 — Provisions relating to
                          investigations
       169.        Offences in relation to investigation                   131
       170.        Offence to hinder persons appointed under this
                   Part (based on RSA 49)                                  132
       171.        Incriminating information, questions or documents       132
       172.        Legal professional privilege                            133
       173.        Certification of independent investigator’s or
                   authorised officer’s involvement in investigation
                   (based on TSIA s. 65)                                   133
       174.        Independent investigator and authorised officer not
                   compellable as witnesses (based on TSIA s. 66)          133

DRAFT 2 8 May 2009 1:41                                                   page ix
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



                   Division 6 — Protection of restricted
                           information
       175.        Limitations on disclosure etc. of restricted
                   information (based on TSIA s. 60)                         134
       176.        Disclosure of restricted information in the interests
                   of rail safety (based on TSIA s. 61)                      135
                   Part 7 — Review of decisions




                                         ft
       177.        Terms used                                                136
       178.        Application of Parliamentary Commissioner
                   Act 1971 to Rail Safety Regulator and rail safety
                   officers (Model Bill cl. 116)                             136
       179.        Reviewable decisions (Model Bill cl. 117)                 136
       180.        Review by the Rail Safety Regulator (Model Bill
                   cl. 118)                                                  139
       181.        Review by the State Administrative Tribunal
                   (Model Bill cl. 119)                                      140
                   Part 8 — General liability and
   a                    evidentiary provisions
                   Division 1 — General
       182.        Period within which proceedings for offences may
                   be commenced (Model Bill cl. 121)                         142
       183.        Authority to take proceedings (Model Bill cl. 122)        143
Dr
       184.        Vicarious responsibility (Model Bill cl. 123)             143
       185.        Records and evidence from records (Model Bill
                   cl. 124)                                                  144
       186.        Certificate evidence (Model Bill cl. 125)                 145
       187.        Proof of appointments and signatures unnecessary
                   (Model Bill cl. 126)                                      145
       188.        Offences by bodies corporate, partnerships,
                   associations and employees (Model Bill cl. 128)           146
                   Division 2 — Discrimination against employees
       189.        Dismissal or other victimisation of employee
                   (Model Bill cl. 129)                                      148
       190.        Defendant bears onus of proof (Model Bill
                   cl. 130)                                                  149
       191.        Order for damages or reinstatement (Model Bill
                   cl. 131)                                                  149

page x                                                       DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009



                                                                           Contents



                   Division 3 — False or misleading information
       192.        False or misleading information provided to Rail
                   Safety Regulator or officials (Model Bill cl. 132)        150
                   Division 4 — Other offences
       193.        Obstructing or hindering rail safety officers
                   (Model Bill cl. 133)                                      152
       194.        Offence to impersonate rail safety officer (Model




                                         ft
                   Bill cl. 134)                                             152
       195.        Not to interfere with rail infrastructure etc. (Model
                   Bill cl. 135)                                             152
       196.        Applying brake or emergency device (Model Bill
                   cl. 136)                                                  153
       197.        Stopping a train or tram (Model Bill cl. 137)             153
                   Division 5 — Enforceable voluntary
                           undertakings
       198.        Rail Safety Regulator may accept undertakings
                   (Model Bill cl. 140)                                      153
       199.        Enforcement of undertakings (Model Bill cl. 141)          154
   a               Division 6 — Court based sanctions
       200.        Daily penalty for continuing offences (Model Bill
                   cl. 143)                                                  154
       201.        Commercial benefits order (Model Bill cl. 144)            155
       202.        Exclusion orders (Model Bill cl. 147)                     157
       203.        Contravention of exclusion order (Model Bill
Dr
                   cl. 148)                                                  158
                   Division 7 — Undertakings
       204.        Court may allow offender to make election                 158
       205.        Making of election                                        160
       206.        Failure to enter into undertaking                         160
       207.        Time for payment of fine                                  160
       208.        Nature and terms of undertaking                           161
       209.        What may be included in undertaking                       162
       210.        Effect of undertaking                                     163
       211.        Failure to comply with undertaking                        164
       212.        Amendment of undertaking                                  165
       213.        Compliance report                                         165




DRAFT 2 8 May 2009 1:41                                                     page xi
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



                   Part 9 — General
                   Division 1 — Confidentiality
       214.        Confidentiality (Model Bill cl. 149)                      166
                   Division 2 — Civil liability
       215.        Civil liability not affected by Part 4 Division 1 or 4
                   (Model Bill cl. 150)                                      167




                                         ft
       216.        Immunity from tortious liability                          167
       217.        Immunity for reporting unfit rail safety worker
                   (Model Bill cl. 152)                                      168
                   Division 3 — Compliance codes and guidelines
       218.        Approval of compliance codes and guidelines
                   (Model Bill cl. 153)                                      169
       219.        Effect of compliance code or guidelines (Model
                   Bill cl. 154)                                             170
       220.        Effect of complying with a compliance code
                   (Model Bill cl. 155)                                      170
       221.        Disallowance of compliance codes (local)                  170
   a   222.
                   Division 4 — Miscellaneous
                   Recovery of certain costs (Model Bill cl. 157)            171
       223.        Recovery of amounts due (Model Bill cl. 158)              171
       224.        Compliance with conditions of accreditation
                   (Model Bill cl. 159)                                      171
       225.        Prescribed persons (Model Bill cl. 160)                   171
Dr
       226.        Contracting out prohibited (Model Bill cl. 161)           172
       227.        Regulations (Model Bill cl. 162)                          172
       228.        Repeals                                                   174
                   Part 10 — Transitional
       229.        Terms used                                                175
       230.        Interpretation Act 1984 not affected                      175
       231.        Authorised officer                                        175
       232.        Accreditation                                             175
       233.        Interim accreditation                                     176
       234.        Temporary accreditation                                   176
       235.        Annual fees                                               176
       236.        Private siding                                            177
       237.        Suspension of accreditation                               177
       238.        Safety management plan                                    177


page xii                                                     DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009



                                                                            Contents



       239.        Emergency Management Plan                                  178
       240.        Health and fitness management programme                    179
       241.        Alcohol and drug management programme                      180
       242.        Fatigue management programme                               180
       243.        Assessment of competence                                   181
       244.        Identification for rail safety workers                     181
       245.        Installation of safety or protective devices               181




                                         ft
       246.        Closing railway crossings, bridges etc.                    182
       247.        Direction to stop, alter or not to start the works         182
       248.        Direction to undertake remedial safety work                182
       249.        Safety reports                                             182
       250.        Supply of information                                      183
       251.        Notifiable occurrences and other incidents                 183
       252.        Report from owner or operator                              183
       253.        Request for certain details                                184
       254.        Inquiries                                                  184
       255.        Evidentiary provision                                      184
       256.        Powers in relation to transitional provision               184
                   Part 11 — Consequential
   a
                        amendments
                   Division 1 — Government Railways Act 1904
                         amended
       257.        Act amended                                                186
Dr
       258.        Section 2A amended                                         186
       259.        Section 13 amended                                         186
       260.        Section 61 amended                                         186
                   Division 2 — Mines Safety and Inspection
                         Act 1994 amended
       261.        Act amended                                                186
       262.        Section 7 amended                                          186
                   Division 3 — Public Transport Authority
                         Act 2003 amended
       263.        Act amended                                                187
       264.        Section 3 amended                                          187
       265.        Section 4 amended                                          187




DRAFT 2 8 May 2009 1:41                                                     page xiii
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009



Contents



                   Division 4 — Rail Freight System Act 2000
                         amended
       266.        Act amended                                          187
       267.        Section 9 amended                                    187
                   Division 5 — Railways (Access) Act 1998
                         amended
       268.        Act amended                                          188




                                         ft
       269.        Section 8 amended                                    188




   a
Dr


page xiv                                                DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                   CONFIDENTIAL

                                    Western Australia




                                         ft
                     LEGISLATIVE ASSEMBLY/COUNCIL

                                         DRAFT 2



                            Rail Safety Bill 2009
   a
                                         A Bill for


An Act to make provision for rail safety and other matters that form
Dr
part of a system of nationally consistent rail safety laws and as a
consequence to —
• repeal the Rail Safety Act 1998; and
• amend certain other Acts,
and for other purposes.



The Parliament of Western Australia enacts as follows:




DRAFT 2 8 May 2009 1:41                                       page 1
Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 1



1                                 Part 1 — Preliminary
2    1.          Short title
3                This is the Rail Safety Act 2009.

4    2.          Commencement




                                              ft
5                This Act comes into operation as follows —
6                 (a) sections 1 and 2 — on the day on which this Act
7                       receives the Royal Assent;
8                 (b) the rest of the Act other than sections 62, 63, 64
9                       and 65 — on a day fixed by proclamation, and different
10                      days may be fixed for different provisions;
11                (c) section 62 — on the day 12 months after the day on
12                      which section 3 comes into operation;
13                (d) sections 63, 64 and 65 — on the day 36 months after the
14
        a               day on which section 3 comes into operation.

15   3.          Terms used (Model Bill cl. 4)
16               In this Act, unless the contrary intention appears —
17               accreditation means accreditation under Part 4;
     Dr
18               accredited person means a rail transport operator who is
19               accredited under this Act but does not include a person whose
20               accreditation under this Act —
21                 (a) has been surrendered or revoked or has otherwise ceased
22                       to have effect under this Act; or
23                 (b) is suspended under this Act;
24               Australian rail safety law means a rail safety law or a
25               corresponding rail safety law;
26               Australian Rail Safety Regulator means the Rail Safety
27               Regulator or a corresponding Rail Safety Regulator;
28               authorised officer means a person appointed as an authorised
29               officer under section 135;

     page 2                                              DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                        Preliminary           Part 1

                                                                                s. 3



1                CEO means the chief executive officer of the department of the
2                Public Service principally assisting the Minister in the
3                administration of this Act;
4                commercial benefits order means an order under section 201;
5                Commissioner of Police means the person holding or acting in
6                the office of Commissioner of Police under the Police Act 1892;




                                              ft
7                compliance code means a compliance code approved by the
8                Minister under Part 9 Division 3;
9                corresponding law means —
10                 (a) the law of another jurisdiction corresponding, or
11                       substantially corresponding, to this Act; or
12                 (b) a law of another jurisdiction that is declared under the
13                       regulations to be a corresponding law, whether or not
14                       the law corresponds, or substantially corresponds, to this
15                       Act;
                 corresponding rail safety law means a rail safety law as defined
16
17
        a        in a corresponding law;
18               corresponding Rail Safety Regulator means —
19                 (a) the Rail Safety Regulator within the meaning of a
20                       corresponding rail safety law (except in the case of a
     Dr
21                       jurisdiction for which a person is prescribed under
22                       paragraph (b)); or
23                 (b) a person prescribed by the regulations as the
24                       corresponding Rail Safety Regulator for another
25                       jurisdiction for the purposes of this Act;
26               document includes any record of information accessible only
27               through the use of a computer or other device;
28               drug means —
29                 (a) a substance that is a drug for the purposes of this Act by
30                       virtue of a declaration under section 4; and
31                 (b) any other substance (other than alcohol) which, when
32                       consumed or used by a person, deprives that person


     DRAFT 2 8 May 2009 1:41                                                 page 3
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 3



1                        (temporarily or permanently) of any of his or her normal
2                        mental or physical faculties;
3                embargo notice means a notice under section 100;
4                employee means a person employed under a contract of
5                employment or contract of training;
6                employer means a person who employs one or more other




                                              ft
7                persons under contracts of employment or contracts of training;
8                exercise includes perform;
9                footpath has the meaning given in the Road Traffic Code 2000
10               regulation 3(1);
11               guidelines means guidelines approved by the Minister under
12               Part 9 Division 3;
13               improvement notice means a notice under section 110;
14               independent investigator means a person appointed as an
15               independent investigator under section 126;
16
        a        infringement notice means an infringement notice under the
17               Criminal Procedure Act 2004 Part 2;
18               interface agreement means an agreement in writing about
19               managing risks to safety identified and assessed under Part 4
20               Division 4 that includes provisions for —
     Dr
21                 (a) implementing and maintaining measures to manage
22                       those risks; and
23                 (b) the evaluation, testing and, where appropriate, revision,
24                       of those measures; and
25                 (c) the respective roles and responsibilities of each party to
26                       the agreement in relation to those measures; and
27                 (d) procedures by which each party to the agreement will
28                       monitor compliance with the obligations under the
29                       agreement; and
30                 (e) a process for keeping the agreement under review and
31                       its revision;
32               jurisdiction means a State or Territory;

     page 4                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                        Preliminary           Part 1

                                                                                s. 3



1                level crossing has the meaning given in the Road Traffic
2                Code 2000 regulation 3(1);
3                notifiable occurrence means an accident or incident associated
4                with railway operations —
5                  (a) that has, or could have, caused —
6                           (i) significant property damage; or




                                              ft
7                          (ii) serious injury; or
8                         (iii) death;
9                        or
10                 (b) that is, or is of a class that is, prescribed by the
11                       regulations to be a notifiable occurrence or class of
12                       notifiable occurrence,
13               but does not include an accident or incident, or class of accident
14               or incident, that is prescribed by the regulations not to be a
15               notifiable occurrence;
16
        a        personal information has the meaning given in the Freedom of
17               Information Act 1992 Glossary clause 1;
18               private siding means a siding that is managed, owned or
19               controlled by a person, other than a person who manages the rail
20               infrastructure with which the siding connects or to which it has
     Dr
21               access, but does not include —
22                 (a) a marshalling yard; or
23                 (b) a crossing loop; or
24                 (c) a passenger terminal; or
25                 (d) a freight terminal; or
26                 (e) a siding, or a siding of a class, prescribed by the
27                       regulations not to be a private siding;
28               prohibition notice means a notice under section 115;
29               public place means —
30                 (a) a place that —
31                          (i) the public is entitled to use; or

     DRAFT 2 8 May 2009 1:41                                                 page 5
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 3



1                           (ii) is open to members of the public; or
2                          (iii) is used by the public,
3                         whether or not on payment of money; or
4                  (b) a place that the occupier allows members of the public
5                         to enter, whether or not on payment of money;
6                public road means a road as defined in the Road Traffic




                                              ft
7                Act 1974 section 5(1);
8                rail infrastructure means the facilities that are necessary to
9                enable a railway to operate safely and includes, but is not
10               limited to —
11                 (a) railway tracks and associated track structures; or
12                 (b) service roads, signalling systems, communications
13                        systems, rolling stock control systems and data
14                        management systems; or
15                 (c) notices and signs; or
16
        a          (d) electrical power supply and electric traction systems; or
17                 (e) associated buildings, workshops, depots and yards; or
18                  (f) plant, machinery and equipment,
19               but does not include —
     Dr
20                 (g) rolling stock; or
21                 (h) any facility, or facility of a class, that is prescribed by
22                        the regulations not to be rail infrastructure;
23               rail infrastructure manager, in relation to rail infrastructure of
24               a railway, means the person who has effective management and
25               control of the rail infrastructure, whether or not the person —
26                 (a) owns the rail infrastructure; or
27                 (b) has a statutory or contractual right to use the rail
28                        infrastructure or to control, or provide, access to it;
29               rail or road crossing means a railway crossing, a bridge
30               carrying a road over a railway or a bridge carrying a railway
31               over a road;


     page 6                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Preliminary           Part 1

                                                                                  s. 3



1                rail safety law means this Act or a provision of this Act;
2                rail safety matter means —
3                  (a) an occurrence involving rolling stock or rail
4                        infrastructure that resulted in, or that had the potential to
5                        result in, the death of, or injury to, any person, or in
6                        damage to any property or equipment including, for




                                              ft
7                        example —
8                            (i) a derailment of rolling stock; or
9                           (ii) a collision involving rolling stock; or
10                         (iii) an accident or incident resulting from the
11                                construction, maintenance or operation of a
12                                railway; or
13                         (iv) a failure of any part of rail infrastructure or any
14                                rolling stock or any part of any rolling stock; or
15                          (v) a failure or breach of any practice or procedure
                                  involving rolling stock; or
16
        a
17                         (vi) a fire, explosion or other similar occurrence
18                                involving rolling stock; or
19                        (vii) an accident or incident in which there is evidence
20                                of systematic safety deficiencies;
     Dr
21                       or
22                 (b) any other occurrence or any state of affairs involving, or
23                       in relation to, rolling stock or rail infrastructure that is
24                       specified by the regulations for the purposes of this
25                       definition;
26               rail safety officer means a person designated or appointed by
27               the Rail Safety Regulator to be a rail safety officer under Part 3
28               Division 2;
29               Rail Safety Regulator means the person referred to in
30               section 15(2);
31               rail safety work has the meaning given in section 7;



     DRAFT 2 8 May 2009 1:41                                                   page 7
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 3



1                rail safety worker means an individual who has carried out, is
2                carrying out or is about to carry out, rail safety work;
3                rail transport operator means —
4                  (a) a rail infrastructure manager; or
5                  (b) a rolling stock operator; or
6                  (c) a person who is both a rail infrastructure manager and a




                                              ft
7                         rolling stock operator;
8                railway means a monorail or proposed monorail or a guided
9                system, or proposed guided system, designed for the movement
10               of rolling stock having the capability of transporting passengers
11               or freight, or both, on a railway track with a gauge of 600 mm
12               or more, together with its rail infrastructure and rolling stock
13               and includes the following —
14                 (a)  a heavy railway;
15                 (b)  a light railway;
16
        a          (c)  an inclined railway;
17                 (d)  a tramway;
18                 (e)  a railway within a marshalling yard or a passenger or
19                      freight terminal;
20                  (f) a private siding;
     Dr
21                 (g) a guided system, or guided system of a class, prescribed
22                      by the regulations to be a railway;
23               railway crossing means —
24                 (a) a level crossing; or
25                 (b) any area where a footpath or shared path crosses a
26                      railway at substantially the same level;
27               railway operations means —
28                 (a) the construction of a railway, railway tracks and
29                      associated track structures or rolling stock; or




     page 8                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                        Preliminary           Part 1

                                                                                s. 3



1                  (b)  the management, commissioning, maintenance, repair,
2                       modification, installation, operation or decommissioning
3                       of rail infrastructure; or
4                  (c) the commissioning, maintenance, repair, modification or
5                       decommissioning of rolling stock; or
6                  (d) the operation or movement, or causing the operation or




                                              ft
7                       movement by any means, of rolling stock on a railway
8                       (including for the purposes of construction or restoration
9                       of rail infrastructure); or
10                 (e) the movement, or causing the movement, of rolling
11                      stock for the purposes of operating a railway service;
12               railway premises means —
13                 (a)  land (including any premises on land) on or in which is
14                      situated rail infrastructure; or
15                 (b) land (including any premises on land) on or in which is
16                      situated any over track or under track structure or part of
17
        a               an over track or under track structure; or
18                 (c) freight centres or depots used in connection with the
19                      carrying out of railway operations; or
20                 (d) workshops or maintenance depots used in connection
                        with the carrying out of railway operations; or
     Dr
21

22                 (e) premises including an office, building or housing used
23                      in connection with the carrying out of railway
24                      operations; or
25                  (f) rolling stock or other vehicles associated with railway
26                      operations;
27               railway tracks and associated track structures means —
28                 (a) railway tracks and associated track structures and works
29                      (such as cuttings, sidings, tunnels, bridges, stations,
30                      platforms, tram stops, excavations, land fill, track
31                      support earthworks and drainage works); or
32                 (b) over track structures and under track structures
33                      (including tunnels under tracks);

     DRAFT 2 8 May 2009 1:41                                                 page 9
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 3



1                restricted information, in relation to an investigation under
2                Part 6, means any one or more of the following —
3                  (a) a statement, whether oral or in writing, obtained from a
4                        person in the course of an investigation, including any
5                        record of the statement;
6                  (b) all information recorded in the course of an




                                              ft
7                        investigation;
8                  (c) information in a document or thing created by an
9                        independent investigator or an authorised officer during
10                       the course of an investigation;
11                 (d) all communications in the course of an investigation
12                       with a person involved in the operation of rolling stock
13                       that is or was the subject of the investigation;
14                 (e) medical or private information (including information
15                       obtained from an alcohol or drug test under section 153)
16                       regarding persons, including deceased persons, involved
17
        a                in an occurrence that is or has been the subject of an
18                       investigation;
19                  (f) in relation to rolling stock that is or was the subject of an
20                       investigation, information recorded for the purposes of
21                       monitoring or directing the progress of the rolling stock
     Dr
22                       from one place to another or information recorded about
23                       the operation of the rolling stock;
24                 (g) records of the analysis of information or anything else
25                       obtained in the course of an investigation, including
26                       opinions expressed by a person in that analysis;
27                 (h) any information prescribed for the purpose of this
28                       paragraph collected for the purpose of an investigation,
29               but does not include a train safety recording or a transcript of a
30               train safety recording;
31               road infrastructure means —
32                 (a) the infrastructure which forms part of a road, footpath or
33                       shoulder, including —


     page 10                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                         Preliminary           Part 1

                                                                                 s. 3



1                            (i)   structures forming part of the road, footpath or
2                                  shoulder; or
3                            (ii) materials from which a road, footpath or
4                                  shoulder is made;
5                  (b)     the road-related infrastructure including infrastructure
6                          which is installed or constructed to —




                                              ft
7                             (i) facilitate the operation or use of the road or
8                                  footpath; or
9                            (ii) support or protect the road or footpath;
10                 (c)     all bridges (including any bridge over or under which a
11                         road passes), viaducts, tunnels, culverts, grids,
12                         approaches and other things appurtenant to the road or
13                         footpath or used in connection with the road or footpath;
14               road manager —
15                 (a) in relation to a public road, means a local government,
                          regional local government or the Commissioner of Main
16
17
        a                 Roads;
18                 (b) in relation to a road other than a public road, means the
19                        owner of, or person responsible for, the road;
20               road vehicle means a vehicle as defined in the Road Traffic
     Dr
21               Act 1974 section 5(1);
22               rolling stock means a vehicle that operates on or uses a railway
23               and includes a locomotive, carriage, rail car, rail motor, light
24               rail vehicle, train, tram, light inspection vehicle, self propelled
25               infrastructure maintenance vehicle, trolley, wagon or monorail
26               vehicle, but does not include a vehicle designed to operate both
27               on and off a railway when the vehicle is not operating on a
28               railway;
29               rolling stock operator means a person who has effective
30               management and control of the operation or movement of
31               rolling stock on rail infrastructure for a particular railway but
32               does not include a person by reason only that the person drives
33               the rolling stock or controls the network or the network signals;


     DRAFT 2 8 May 2009 1:41                                                page 11
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 3



1                safety means the safety of people, including rail safety workers,
2                passengers, other users of railways, users of rail or road
3                crossings and the general public;
4                safety management plan means a document describing a safety
5                management system;
6                safety management system means a rail transport operator’s




                                              ft
7                safety management system under section 58;
8                security management plan means a rail transport operator’s
9                security management plan under section 70;
10               shared path has the meaning given in the Road Traffic
11               Code 2000 regulation 3(1);
12               siding means a portion of railway track, connected by points to
13               a running line or another siding, on which rolling stock can be
14               placed clear of the running line;
15               substance means a substance in any form (whether gaseous,
16               liquid, solid or other) and includes material, preparation, extract
17
        a        and admixture;
18               supply includes —
19                 (a) in relation to goods, supply or resupply by way of sale,
20                        exchange, lease, hire or hire purchase, whether as
                          principal or agent; or
     Dr
21

22                 (b) in relation to services, provide, grant or confer, whether
23                        as principal or agent;
24               train means —
25                 (a) 2 or more units of rolling stock coupled together, at least
26                        one of which is a locomotive or other self propelled unit;
27                        or
28                 (b) a unit of rolling stock that is a locomotive or other self
29                        propelled unit;
30               train safety recording means a recording consisting of, or
31               mainly of, sounds or images or data, or any combination of
32               sounds, images or data, produced by a device installed in a train,
33               a signal box, a train control complex or other railway premises

     page 12                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                        Preliminary           Part 1

                                                                                s. 4



1                for the purpose of recording operational activities carried out by
2                persons operating a train.

3    4.          Declaration of substance to be a drug (Model Bill cl. 5)
4                The Minister may, by order published in the Gazette, declare
5                any substance to be a drug for the purposes of this Act.




                                              ft
6    5.          Railways to which this Act does not apply (Model Bill cl. 6)
7         (1)    This Act does not apply to the following —
8                 (a) a railway in a mine that is underground, or chiefly
9                       underground, and that is used in connection with the
10                      performance of mining operations;
11                (b) a slipway;
12                (c) a railway used only to guide a crane;
13                (d) an aerial cable operated system;
14
        a         (e) a railway, or class of railway, prescribed to be a railway
15                      to which this Act does not apply.
16        (2)    The Minister may, by notice published in the Gazette and on
17               such conditions, if any, as are specified, exempt from this Act,
18               or specified provisions of this Act —
     Dr
19                 (a) specified persons or persons of a specified class; or
20                 (b) specified railways or railways of a specified class.
21        (3)    In subsection (2) —
22               specified means specified in the notice.
23        (4)    The Minister may amend or repeal a notice at any time by
24               subsequent notice published in the Gazette.
25        (5)    The Interpretation Act 1984 sections 41 and 42 apply to and in
26               relation to a notice under subsection (2) or (4) as if the notice
27               were a regulation.
28        (6)    A person must not contravene a condition imposed under
29               this section.

     DRAFT 2 8 May 2009 1:41                                                page 13
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 6



1                Penalty: a fine of $20 000.

2    6.          The concept of ensuring safety (Model Bill cl. 7)
3           (1) A duty imposed on a person under this Act to ensure, so far as
4               is reasonably practicable, safety requires the person —
5                (a) to eliminate risks to safety so far as is reasonably




                                              ft
6                      practicable; and
7                (b) if it is not reasonably practicable to eliminate risks to
8                      safety, to reduce those risks so far as is reasonably
9                      practicable.
10        (2)    For the purposes of this Act, regard must be had to the
11               following matters in determining what is, or was at a particular
12               time, reasonably practicable in relation to ensuring safety —
13                 (a) the likelihood of the risk concerned eventuating;
14                 (b) the degree of harm that would result if the risk
15                       eventuated;
        a
16                 (c) what the person concerned knows or ought reasonably to
17                       know, about the risk and any ways of eliminating or
18                       reducing the risk;
19                 (d) the availability and suitability of ways to eliminate or
     Dr
20                       reduce the risk;
21                 (e) the cost of eliminating or reducing the risk.

22   7.          Rail safety work (Model Bill cl. 8)
23        (1)    Subject to subsection (2), any of the following classes of work
24               is rail safety work for the purposes of this Act —
25                  (a) driving or despatching rolling stock or any other activity
26                        which is capable of controlling or affecting the
27                        movement of rolling stock;
28                 (b) signalling, signalling operations, receiving or relaying
29                        communications or any other activity which is capable
30                        of controlling or affecting the movement of rolling
31                        stock;

     page 14                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Preliminary           Part 1

                                                                                  s. 7



1                  (c)     coupling or uncoupling rolling stock;
2                  (d)     maintaining, repairing, modifying, monitoring,
3                          inspecting or testing —
4                             (i) rolling stock, including checking that the rolling
5                                  stock is working properly before being used; or
6                            (ii) rail infrastructure;




                                              ft
7                  (e)     installation of components in relation to rolling stock;
8                  (f)     work on or about rail infrastructure relating to the
9                          design, construction, repair, modification, maintenance,
10                         monitoring, upgrading, inspection or testing of the rail
11                         infrastructure or associated works or equipment,
12                         including checking that the rail infrastructure is working
13                         properly before being used;
14                 (g)     installation or maintenance of —
15                            (i) a telecommunications system relating to rail
                                    infrastructure or used in connection with rail
16
17
        a                           infrastructure; or
18                           (ii) the means of supplying electricity directly to rail
19                                  infrastructure or to any rolling stock using rail
20                                  infrastructure or to a telecommunications system;
     Dr
21                 (h)     work involving certification as to the safety of rail
22                         infrastructure or rolling stock or any part or component
23                         of rail infrastructure or rolling stock;
24                  (i)    work involving the decommissioning of rail
25                         infrastructure or rolling stock or any part or component
26                         of rail infrastructure or rolling stock;
27                  (j)    work involving the development, management or
28                         monitoring of safe working systems for railways;
29                 (k)     work involving the management or monitoring of
30                         passenger safety on, in or at any railway;
31                  (l)    any other work that is prescribed to be rail safety work.



     DRAFT 2 8 May 2009 1:41                                                 page 15
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 1            Preliminary

     s. 8



1         (2)    Work, or any class of work, prescribed not to be rail safety work
2                is not rail safety work for the purposes of this Act.

3    8.          Relationship to Government Railways Act 1904 (RSA s. 5)
4                If there is a conflict or inconsistency between a provision of this
5                Act, or subsidiary legislation made under this Act, and the




                                              ft
6                Government Railways Act 1904, or subsidiary legislation made
7                under that Act, the provision of this Act or subsidiary legislation
8                made under this Act prevails to the extent of the conflict or
9                inconsistency.

10   9.          State or other jurisdiction bound by the Act
11               This Act binds the State and, so far as the legislative power of
12               the State permits, the Crown in all its other capacities.
        a
     Dr


     page 16                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
            Relationship to Occupational Safety and Health Act 1984            Part 2

                                                                                s. 10



1          Part 2 — Relationship to Occupational Safety and
2                          Health Act 1984
3    10.         Act adds to protection provided by Occupational Safety and
4                Health Act 1984 (Model Bill cl. 12)
5                If a provision of the Occupational Safety and Health Act 1984




                                              ft
6                applies to railway operations, that provision continues to apply,
7                and must be observed, in addition to this Act.

8    11.         Occupational Safety and Health Act 1984 prevails (Model
9                Bill cl. 13)
10               If a provision of this Act is inconsistent with a provision of the
11               Occupational Safety and Health Act 1984, the provision of that
12               Act prevails to the extent of any inconsistency.

13   12.         Compliance with this Act is no defence to prosecution under
14
        a        Occupational Safety and Health Act 1984 (Model Bill cl. 14)
15               Compliance with this Act, or with any requirement imposed
16               under this Act, is not in itself a defence in any proceedings for
17               an offence against the Occupational Safety and Health
18               Act 1984.
     Dr
19   13.         Relationship between duties under this Act and
20               Occupational Safety and Health Act 1984 (Model Bill cl. 15)
21               Evidence of a relevant contravention of this Act is admissible in
22               any proceedings for an offence against the Occupational Safety
23               and Health Act 1984.

24   14.         No double jeopardy (Model Bill cl. 16)
25               If an act or omission constitutes an offence —
26                 (a) under this Act; and
27                 (b) under the Occupational Safety and Health Act 1984,



     DRAFT 2 8 May 2009 1:41                                                page 17
     Stn3\D02 Rail Safety Bill 2009copy.doc
    Rail Safety Bill 2009
    Part 2            Relationship to Occupational Safety and Health Act 1984

    s. 14



1               the offender is not liable to be punished twice in respect of the
2               offence.




       a                                     ft
    Dr


    page 18                                                 DRAFT 2 8 May 2009 1:41
    Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                         Administration           Part 3
                                              The Rail Safety Regulator      Division 1
                                                                                    s. 15



1                              Part 3 — Administration
2                      Division 1 — The Rail Safety Regulator
3    15.         Rail Safety Regulator (local)
4          (1)   A Director Rail Safety is to be appointed.




                                              ft
5          (2)   The Director Rail Safety or a person acting in the position of
6                Director Rail Safety is the Rail Safety Regulator.
7          (3)   Despite any other written law, the Rail Safety Regulator is not
8                subject to the direction or control of any person in relation to the
9                manner in which the Regulator performs his or her functions
10               under this Act.

11   16.         Functions of the Rail Safety Regulator (Model Bill cl. 18)
12         (1)   In addition to any other functions conferred on the Rail Safety
13
        a        Regulator by this Act, the Rail Safety Regulator has the
14               following functions —
15                 (a) to administer, audit and review the accreditation regime
16                       under this Act;
17                 (b) to work with rail transport operators, rail safety workers,
     Dr
18                       others involved in railway operations and corresponding
19                       Rail Safety Regulators to improve rail safety in this
20                       jurisdiction and nationally;
21                 (c) to provide information to corresponding Rail Safety
22                       Regulators, including information about causal factors
23                       of rail incidents, accreditation processes, investigation
24                       methods and risk assessment methodologies;
25                 (d) to collect and publish information relating to rail safety;
26                 (e) to provide, or facilitate the provision of, advice,
27                       education and training in relation to rail safety;
28                  (f) to monitor, investigate and enforce compliance with
29                       this Act.


     DRAFT 2 8 May 2009 1:41                                                    page 19
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 3            Administration
     Division 1        The Rail Safety Regulator
     s. 17



1          (2)   The functions of the Rail Safety Regulator under this Act are in
2                addition to any function that the Rail Safety Regulator has under
3                any other Act or law.

4    17.         Information to be included in annual report (Model Bill
5                cl. 19 and local)




                                              ft
6          (1)   The Rail Safety Regulator, not later than 31 October in each
7                year, is to make and submit to the Minister an annual report for
8                the preceding year ending on 30 June.
9          (2)   The Rail Safety Regulator must in each annual report include —
10                (a) information on the development of rail safety including
11                      an aggregation of statistics of a prescribed class reported
12                      to the Rail Safety Regulator under this Act in respect of
13                      that year; and
14                (b) information on any improvements and important
15                      changes in relation to the regulation of rail safety.
16
        a  (3)   Subsection (1) is in addition to any other requirement under any
17               other Act or law to make a report or publish information.
18         (4)   The Minister is to cause a copy of the Rail Safety Regulator’s
19               annual report submitted under subsection (1) to be laid before
     Dr
20               each House of Parliament within 21 sitting days of that House
21               after receipt of the report by the Minister.
22         (5)   The Rail Safety Regulator is to ensure that after subsection (4)
23               has been complied with copies of the report are available on
24               request for inspection at the Regulator’s principal place of
25               business.

26   18.         Delegation (local)
27         (1)   The Rail Safety Regulator may delegate to a person any power
28               or duty of the Rail Safety Regulator under another provision of
29               this Act other than a function referred to in section 126(2).



     page 20                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                       Administration             Part 3
                                                   Rail safety officers      Division 2
                                                                                    s. 19



1          (2)   The delegation must be in writing signed by the Rail Safety
2                Regulator.
3          (3)   A person to whom a power or duty is delegated under this
4                section cannot delegate that power or duty.
5          (4)   A person exercising or performing a power or duty that has been
6                delegated to the person under this section is to be taken to do so




                                              ft
7                in accordance with the terms of the delegation unless the
8                contrary is shown.
9          (5)   Nothing in this section limits the ability of the Rail Safety
10               Regulator to perform a function through an officer or agent.

11   19.         Rail Safety Regulator may exercise functions of rail safety
12               officers (Model Bill cl. 21)
13         (1)   The Rail Safety Regulator may exercise any function conferred
14               on a rail safety officer under this Act.
15
        a  (2)   In this Act, other than this Part, a reference to a rail safety
16               officer includes a reference to the Rail Safety Regulator.

17                           Division 2 — Rail safety officers
     Dr
18   20.         Designation of public service officer as a rail safety officer
19               (local)
20         (1)   In this section —
21               department means the department of the Public Service
22               principally assisting in the administration of this Act;
23               departmental officer means a public service officer employed
24               in the department;
25               designation means a designation under subsection (2);
26               employed in the department includes seconded to perform
27               functions or services for, or duties in the service of, the
28               department;



     DRAFT 2 8 May 2009 1:41                                                    page 21
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 3            Administration
     Division 2        Rail safety officers
     s. 20



1                public service officer has the meaning given in the Public
2                Sector Management Act 1994 section 3(1).
3        (2)     The chief executive officer may designate a departmental
4                officer with appropriate qualifications or experience to be a rail
5                safety officer.
6        (3)     There are to be as many rail safety officers as are necessary to




                                              ft
7                perform the functions conferred on a rail safety officer by this
8                Act or any other written law.
9        (4)     A person ceases to be a rail safety officer if the designation of
10               the person is revoked or ceases to have effect.
11       (5)     The power to make a designation includes —
12                (a) the power to revoke a designation previously made; and
13                (b) the power to designate a person to perform functions of
14                     another person who has that designation when it is
                       impractical for that other person to perform the
15
16
        a              functions; and
17                (c) the power to specify one or more of the following —
18                        (i) functions under this Act that may not be
19                             exercised by the person designated;
     Dr
20                       (ii) the only functions under this Act that may be
21                             exercised by the person designated;
22                      (iii) the circumstances or manner in which a function
23                             under this Act may be performed by the person
24                             designated.
25       (6)     A designation ceases to have effect if the person designated
26               ceases to be a departmental officer.
27       (7)     The chief executive officer may delegate the power to make a
28               designation to another person.
29       (8)     The following are to be in writing —
30                (a) a designation;


     page 22                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                       Administration             Part 3
                                                   Rail safety officers      Division 2
                                                                                    s. 21



1                  (b)     a revocation of a designation;
2                  (c)     a delegation of the power to make a designation.

3    21.         Appointment of rail safety officers (Model Bill cl. 22)
4          (1)   The Rail Safety Regulator, by instrument in writing, may
5                appoint a person, or person of a prescribed class, other than a




                                              ft
6                public service officer to be a rail safety officer for a term, and
7                subject to the conditions, specified in the instrument.
8          (2)   The Rail Safety Regulator must not appoint a person under
9                subsection (1) unless the Rail Safety Regulator is satisfied the
10               person holds appropriate qualifications, or has appropriate
11               experience, to perform the functions of a rail safety officer
12               under this Act.
13         (3)   Without limiting the conditions to which the appointment of a
14               rail safety officer may be subject, a condition may specify one
15               or more of the following —
        a
16                 (a) functions under this Act that may not be exercised by
17                        the rail safety officer;
18                 (b) the only functions under this Act that may be exercised
19                        by the rail safety officer;
     Dr
20                 (c) the circumstances or manner in which a function under
21                        this Act may be performed by the rail safety officer.

22   22.         Reciprocal powers of rail safety officers (Model Bill cl. 23)
23         (1)   This section has effect in relation to another jurisdiction while
24               there is in force a corresponding rail safety law that contains
25               provisions corresponding to this section.
26         (2)   The Minister may enter into an agreement with a Minister of
27               another jurisdiction for the purposes of this section, including an
28               agreement to amend or revoke any such agreement.
29         (3)   To the extent envisaged by an agreement —



     DRAFT 2 8 May 2009 1:41                                                    page 23
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 3            Administration
     Division 2        Rail safety officers
     s. 23



1                  (a)     rail safety officers of this jurisdiction may, in this
2                          jurisdiction or the other jurisdiction, exercise functions
3                          conferred on rail safety officers of the other jurisdiction
4                          under the corresponding rail safety law of that other
5                          jurisdiction; and
6                  (b)     rail safety officers of that other jurisdiction may, in this
                           jurisdiction or that other jurisdiction, exercise functions




                                              ft
7
8                          conferred on rail safety officers under this Act.
9          (4)   Anything done or omitted to be done by a rail safety officer of
10               this jurisdiction under subsection (3) is taken to have been done
11               under this Act as well as under the corresponding rail safety
12               law.
13         (5)   The regulations may make provision for or with respect to the
14               exercise of functions under this section.
15         (6)   Nothing in this section affects the appointment under section 21
                 of persons as rail safety officers for the purposes of this Act.
16
        a
17   23.         Identification cards for rail safety officers (Model Bill
18               cl. 24)
19               The Rail Safety Regulator must —
     Dr
20                (a) issue a rail safety officer with an identification card; or
21                (b) designate a card issued to a rail safety officer by a
22                      corresponding Rail Safety Regulator or by a person,
23                      body or authority, whether or not of this jurisdiction, as
24                      an identification card for the purposes of this Act.

25   24.         Rail safety officer must not exercise functions without
26               identification card (Model Bill cl. 25)
27               A rail safety officer must not exercise a function conferred
28               under this Act unless an identification card has been issued to,
29               or designated for, the officer by the Rail Safety Regulator.




     page 24                                                    DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                    Rail Safety Bill 2009
                                                        Administration             Part 3
                                                    Rail safety officers      Division 2
                                                                                     s. 25



1    25.         Display and production of identification card (Model Bill
2                cl. 26)
3          (1)   In this section —
4                approved, in relation to a uniform or badge worn by a rail safety
5                officer, means a uniform or badge approved by the Rail Safety
6                Regulator.




                                              ft
7          (2)   This section applies to a rail safety officer who is exercising, or
8                about to exercise, a function under this Act.
9          (3)   A rail safety officer must —
10                (a) display his or her identification card if the officer is not
11                       wearing an approved uniform or badge; or
12                (b) produce his or her identification card if requested to do
13                       so by a person in relation to whom the officer is
14                       exercising, or about to exercise, the function.
15
        a  (4)   If it is not practical for a rail safety officer to produce his or her
16               identification card on being requested to do so, the rail safety
17               officer must produce his or her identification card as soon as
18               practicable after the request is made.

19   26.         Return of identification cards (Model Bill cl. 27)
     Dr
20               A person who has ceased to be a rail safety officer must not,
21               without reasonable excuse, refuse or fail to return to the Rail
22               Safety Regulator, within such period as is specified by the Rail
23               Safety Regulator in a request for return of the card, any
24               identification card issued to the person by the Rail Safety
25               Regulator.
26               Penalty: a fine of $1 650.




     DRAFT 2 8 May 2009 1:41                                                     page 25
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 1        General safety duties
     s. 27



1                                  Part 4 — Rail safety
2                            Division 1 — General safety duties
3    27.         Safety duties of rail transport operators (Model Bill cl. 28)
4          (1)   A rail transport operator must ensure, so far as is reasonably




                                              ft
5                practicable, the safety of the operator’s railway operations.
6          (2)   An offence under subsection (1) is a crime.
7                Penalty:
8                    (a) for an individual —
9                            (i) for a first offence, a fine of $55 000;
10                          (ii) for a second or subsequent offence, a fine of
11                                $82 500 or imprisonment for 2 years;
12                     (b)     for a body corporate —
                                  (i) for a first offence, a fine of $550 000;
13
        a
14                               (ii) for a second or subsequent offence, a fine of
15                                     $825 000.
16         (3)   Without limiting subsection (1), a rail transport operator
17               contravenes that subsection if the operator fails to do any of the
     Dr
18               following —
19                 (a) develop and implement, so far as is reasonably
20                      practicable, safe systems for the carrying out of the
21                      operator’s railway operations;
22                 (b) ensure, so far as is reasonably practicable, that each rail
23                      safety worker who is to perform rail safety work in
24                      relation to the operator’s railway operations —
25                         (i) is of sufficient good health and fitness to carry
26                              out that work safely; and
27                        (ii) is competent to undertake that work;
28                 (c) ensure, so far as is reasonably practicable, that rail
29                      safety workers do not carry out rail safety work in


     page 26                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                           Rail safety           Part 4
                                                 General safety duties      Division 1
                                                                                   s. 27



1                          relation to the operator’s railway operations, and are not
2                          on duty —
3                             (i) while there is present in his or her blood, alcohol
4                                   of, or greater than, the concentration prescribed;
5                                   or
6                            (ii) while affected by a drug in a way which could




                                              ft
7                                   detrimentally affect the person’s ability to
8                                   perform that work;
9                  (d)     ensure, so far as is reasonably practicable, that rail
10                         safety workers who perform rail safety work in relation
11                         to the operator’s railway operations comply with the
12                         operator’s fatigue management programme in force
13                         under section 75;
14                 (e)     provide, so far as is reasonably practicable, adequate
15                         facilities for the safety of persons at any railway
16                         premises under the control or management of the
17
        a                  operator;
18                  (f)    provide, so far as is reasonably practicable —
19                            (i) such information and instruction to, and training
20                                  and supervision of, rail safety workers as is
21                                  necessary to enable those workers to perform rail
     Dr
22                                  safety work in relation to the operator’s railway
23                                  operations in a way that is safe; and
24                           (ii) such information to rail transport operators and
25                                  other persons on railway premises under the
26                                  control or management of the operator as is
27                                  necessary to enable those persons to ensure their
28                                  safety.
29       (4)     Without limiting subsection (1), a rail infrastructure manager
30               contravenes that subsection if the manager fails to do any of the
31               following —
32                 (a) ensure, so far as is reasonably practicable, that any
33                      design, construction, commissioning, use, installation,
34                      modification, maintenance, repair or decommissioning

     DRAFT 2 8 May 2009 1:41                                                   page 27
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 1        General safety duties
     s. 27



1                          of the manager’s rail infrastructure is done or carried out
2                          in a way that ensures, so far as is reasonably practicable,
3                          the safety of railway operations;
4                  (b)     establish, so far as is reasonably practicable, such
5                          systems and procedures for the scheduling, control and
6                          monitoring of railway operations that ensure, so far as is
                           reasonably practicable, the safety of the manager’s




                                              ft
7
8                          railway operations.
9        (5)     Without limiting subsection (1), a rolling stock operator
10               contravenes that subsection if the rolling stock operator fails to
11               do any of the following —
12                 (a) provide or maintain rolling stock that, so far as is
13                      reasonably practicable, is safe;
14                 (b) ensure, so far as is reasonably practicable, that any
15                      design, construction, commissioning, use, modification,
16                      maintenance, repair, cleaning or decommissioning of
17
        a               rolling stock is done or carried out in a way that, so far
18                      as is reasonably practicable, ensures safety;
19                 (c) comply, so far as is reasonably practicable, with such
20                      rules and procedures for the scheduling, control and
21                      monitoring of rolling stock that have been established by
     Dr
22                      a rail infrastructure manager in relation to the use of the
23                      manager’s rail infrastructure by the rolling stock
24                      operator;
25                 (d) so far as is reasonably practicable, establish and
26                      maintain equipment, procedures and systems to
27                      minimise risks to the safety of the operator’s railway
28                      operations;
29                 (e) make arrangements for ensuring, so far as is reasonably
30                      practicable, safety in connection with the use, operation
31                      and maintenance of the operator’s rolling stock.




     page 28                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                General safety duties      Division 1
                                                                                  s. 28



1    28.         Duties of rail transport operators extend to contractors
2                (Model Bill Amend No. 1 cl. 28A)
3          (1)   The duties of a rail transport operator under section 27 extend to
4                a person who, not being an employee employed to carry out
5                railway operations, undertakes railway operations on or in
6                relation to rail infrastructure or rolling stock of the operator, and




                                              ft
7                any employee of the person, in relation to matters over which
8                the operator has control or would have control if not for any
9                agreement purporting to limit or remove that control.
10         (2)   A person to whom the duties under section 27 extend by reason
11               of subsection (1) must comply with those duties in respect of
12               railway operations referred to in that subsection undertaken by
13               the person.
14               Penalty:
15                    (a) for an individual —
                              (i) for a first offence, a fine of $55 000;
16
        a
17                           (ii) for a second or subsequent offence, a fine of
18                                 $82 500 or imprisonment for 2 years;
19                    (b) for a body corporate —
20                            (i) for a first offence, a fine of $550 000;
     Dr
21                           (ii) for a second or subsequent offence, a fine of
22                                 $825 000.

23   29.         Duties of designers, manufacturers, suppliers etc. (Model
24               Bill cl. 29)
25         (1)   A person who —
26                (a) designs, commissions, manufactures, supplies, installs
27                      or erects any thing; and
28                (b) knows, or ought reasonably to know, that the thing is to
29                      be used as or in connection with rail infrastructure or
30                      rolling stock,
31               must —

     DRAFT 2 8 May 2009 1:41                                                  page 29
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 1        General safety duties
     s. 29



1                  (c)     ensure, so far as is reasonably practicable, that the thing
2                          is safe if it is used for a purpose for which it was
3                          designed, commissioned, manufactured, supplied,
4                          installed or erected; and
5                  (d)     carry out, or arrange the carrying out, of such testing and
6                          examination of the thing as may be necessary for
                           compliance with this section; and




                                              ft
7

8                  (e)     take such action as is necessary to ensure, so far as is
9                          reasonably practicable, that there will be available in
10                         connection with the use of the thing adequate
11                         information about —
12                            (i) the use for which the thing was designed,
13                                  commissioned, manufactured, supplied, installed
14                                  or erected; and
15                           (ii)   the results of any testing or examination referred
16                                  to in paragraph (d); and
17
        a                   (iii)   any conditions necessary to ensure, so far as is
18                                  reasonably practicable, the thing is safe if it is
19                                  used for a purpose for which it was designed,
20                                  commissioned, manufactured, supplied, installed
21                                  or erected.
     Dr
22       (2)     A person who decommissions any rail infrastructure or rolling
23               stock must —
24                 (a) ensure, so far as is reasonably practicable, that the
25                      decommissioning is carried out safely; and
26                 (b) carry out, or arrange the carrying out of, such testing and
27                      examination as may be necessary for compliance with
28                      this section.
29       (3)     An offence under subsection (1) or (2) is a crime.
30               Penalty:
31                   (a) for an individual —
32                           (i) for a first offence, a fine of $55 000;


     page 30                                                    DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                           Rail safety           Part 4
                                                         Accreditation      Division 2
                                                                                   s. 30



1                               (ii)   for a second or subsequent offence, a fine of
2                                      $82 500;
3                      (b)     for a body corporate —
4                                 (i) for a first offence, a fine of $550 000;
5                                (ii) for a second or subsequent offence, a fine of
6                                      $825 000.




                                              ft
7          (4)   For the purposes of subsection (1), if the person who supplies
8                the thing —
9                  (a) carries on the business of financing the acquisition of
10                       the thing by customers; and
11                 (b) has, in the course of that business, acquired an interest in
12                       the thing solely for the purpose of financing its
13                       acquisition by a customer from a third person or its
14                       provision to a customer by a third person; and
15                 (c) has not taken possession of the thing or has taken
16
        a                possession of it solely for the purpose of passing
17                       possession to that customer,
18               the reference in subsection (1) to the person who supplies that
19               thing is instead taken to be a reference to the third person.
     Dr
20                              Division 2 — Accreditation
21   30.         Purpose of accreditation (Model Bill cl. 30)
22               The purpose of accreditation of a rail transport operator in
23               relation to railway operations is to attest that the rail transport
24               operator has demonstrated to the Rail Safety Regulator the
25               competence and capacity to manage risks to safety associated
26               with those railway operations.

27   31.         Accreditation required for railway operations (Model Bill
28               cl. 31)
29         (1)   A person must not carry out, or cause or permit to be carried
30               out, any railway operations unless the person —

     DRAFT 2 8 May 2009 1:41                                                   page 31
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 31



1                  (a)   is a rail transport operator who —
2                           (i) is accredited under this Part in relation to those
3                                  operations; or
4                          (ii) is exempt under this Act from compliance with
5                                  this section in relation to those operations;
6                        or




                                              ft
7                 (b) is carrying out those operations, or causing or permitting
8                        those operations to be carried out, for or on behalf of —
9                           (i) a rail transport operator who is accredited under
10                                 this Part in relation to those operations; or
11                         (ii) a rail transport operator who is exempt under this
12                                 Act from compliance with this section in relation
13                                 to those operations;
14                       or
15                 (c) is exempt under this Act from compliance with this
16
        a                section in relation to those operations.
17               Penalty:
18                    (a) for an individual —
19                              (i) for a first offence, a fine of $55 000;
     Dr
20                             (ii) for a second or subsequent offence, a fine of
21                                     $82 500 or imprisonment for 2 years;
22                    (b) for a body corporate —
23                              (i) for a first offence, a fine of $550 000;
24                             (ii) for a second or subsequent offence, a fine of
25                                     $825 000.
26       (2)     Subsection (1) does not apply to a rail safety worker, not being a
27               rail transport operator, carrying out rail safety work for or on
28               behalf of a rail transport operator who —
29                 (a) is accredited under this Part; or
30                 (b) is exempt under this Act from compliance with this
31                        section in relation to that rail safety work.

     page 32                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                    Rail Safety Bill 2009
                                                             Rail safety           Part 4
                                                           Accreditation      Division 2
                                                                                     s. 32



1    32.         Purpose for which accreditation may be granted (Model
2                Bill cl. 32)
3          (1)   An accreditation may be granted to a rail transport operator for
4                any one or more of the following purposes —
5                  (a) for the carrying out of railway operations for the part or
6                       parts of a railway designated in the notice of




                                              ft
7                       accreditation under section 37(1), or for a part or parts
8                       having the scope or characteristics so designated;
9                  (b) for any service or aspect, or part of a service or aspect,
10                      of railway operations designated in the notice of
11                      accreditation;
12                 (c) for specified railway operations to permit any one or
13                      more of the following —
14                            (i)   site preparation;
15                           (ii)   construction of rail infrastructure;
16
        a                   (iii)   restoration or repair work;
17                          (iv)    testing of railway track or other infrastructure;
18                           (v)    other activities relating to railway operations
19                                  considered appropriate by the Rail Safety
20                                  Regulator and designated in the notice of
     Dr
21                                  accreditation.
22         (2)   If the applicant so requests, accreditation may be granted for a
23               specified period only.

24   33.         Application for accreditation (Model Bill cl. 33)
25         (1)   A rail transport operator may apply to the Rail Safety Regulator
26               for accreditation in respect of specified railway operations
27               carried out, or proposed to be carried out, by, or on behalf of,
28               that operator.
29         (2)   An application must be made in the manner and form approved
30               by the Rail Safety Regulator and —



     DRAFT 2 8 May 2009 1:41                                                     page 33
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 34



1                  (a)     must specify the scope and nature of the railway
2                          operations in respect of which accreditation is sought;
3                          and
4                  (b)     must include a safety management plan relating to those
5                          railway operations; and
6                  (c)     must specify whether or not the applicant is accredited,




                                              ft
7                          or has applied for accreditation, under a corresponding
8                          law; and
9                  (d)     must contain the prescribed information; and
10                 (e)     must be accompanied by the application fee, if any,
11                         prescribed.
12         (3)   The Rail Safety Regulator may require a rail transport operator
13               who has applied for accreditation —
14                (a) to supply further information requested by the Rail
15                      Safety Regulator; and
16
        a         (b) to verify by statutory declaration any information
17                      supplied to the Rail Safety Regulator.

18   34.         What applicant for accreditation must demonstrate (Model
19               Bill cl. 34)
     Dr
20               The Rail Safety Regulator must not grant accreditation to an
21               applicant unless satisfied, having regard to the guidelines
22               applicable to this section, that the applicant has demonstrated —
23                 (a) that the applicant is or is to be a rail infrastructure
24                      manager or rolling stock operator in relation to the
25                      railway operations for which accreditation is sought; and
26                 (b) that the applicant has the competence and capacity to
27                      manage risks to safety associated with the railway
28                      operations for which accreditation is sought; and
29                 (c) that the applicant —
30                         (i) has the competence and capacity to implement
31                               the proposed safety management system; and


     page 34                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                    Rail Safety Bill 2009
                                                             Rail safety           Part 4
                                                           Accreditation      Division 2
                                                                                     s. 35



1                            (ii)   has the financial capacity, or has public risk
2                                   insurance arrangements, to meet reasonable
3                                   potential accident liabilities arising from the
4                                   railway operations;
5                          and
6                  (d)     that the applicant has met the consultation requirements




                                              ft
7                          of this Act in relation to the applicant’s safety
8                          management system; and
9                  (e)     that the applicant has complied with the requirements
10                         prescribed, if any, for the purposes of this section.

11   35.         Rail Safety Regulator may direct applicants to coordinate
12               and cooperate in applications (Model Bill cl. 35)
13         (1)   If the Rail Safety Regulator —
14                 (a) receives applications from 2 or more rail transport
15                       operators for accreditation; and
16
        a          (b) believes that coordinated preparation of the applications
17                       is necessary to ensure that the railway operations of the
18                       applicants are carried out safely,
19               the Rail Safety Regulator may give a direction in writing to the
     Dr
20               rail transport operators to coordinate their applications.
21         (2)   A direction under this section may require each rail transport
22               operator that is the subject of the direction to provide to each
23               other rail transport operator that is the subject of the direction
24               information concerning any circumstances in relation to the
25               carrying out of railway operations by the first mentioned rail
26               transport operator that could constitute a risk to safety in
27               relation to the carrying out of rail operations by another rail
28               transport operator that is the subject of the direction.
29         (3)   A rail transport operator that is given a direction under
30               subsection (1) must comply with the direction.
31               Penalty: a fine of $5 500.


     DRAFT 2 8 May 2009 1:41                                                     page 35
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 36



1          (4)   A rail transport operator that has coordinated the preparation of
2                an application in accordance with this section must include in
3                the application reference to information given by the rail
4                transport operator to each other rail transport operator, and
5                information given to the rail transport operator by each other
6                rail transport operator, in accordance with a direction under this
7                section.




                                              ft
8                Penalty: a fine of $5 500.

9    36.         Coordination between Rail Safety Regulators (Model Bill
10               cl. 36)
11         (1)   This section applies if the Rail Safety Regulator receives an
12               application for accreditation, or for variation of accreditation or
13               the conditions or restrictions of accreditation, that indicates that
14               the applicant is accredited, or is seeking accreditation, under a
15               corresponding law of one or more other jurisdictions, whether
16               or not contiguous with this jurisdiction.
        a
17         (2)   The Rail Safety Regulator must, as soon as possible and before
18               deciding whether or not to grant the application, consult with
19               the relevant corresponding Rail Safety Regulator, or Regulators,
20               in relation to the application with a view to the outcome of the
                 application being consistent with the outcome of applications
     Dr
21
22               made in the other jurisdiction or jurisdictions.
23         (3)   The Rail Safety Regulator, in complying with subsection (2),
24               must take into account any guidelines applicable to this section.
25         (4)   If the Rail Safety Regulator does not, in relation to an
26               application, act consistently with the provisions of the
27               guidelines, the Rail Safety Regulator must give the applicant
28               reasons for not so acting.

29   37.         Determination of application (Model Bill cl. 37)
30         (1)   Subject to this section, the Rail Safety Regulator must give to
31               the applicant, within the relevant period —


     page 36                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                           Rail safety           Part 4
                                                         Accreditation      Division 2
                                                                                   s. 37



1                  (a)     if the Rail Safety Regulator is satisfied as to the matters
2                          referred to in section 34 and, if applicable, section 35,
3                          notice in writing granting accreditation to the applicant
4                          with or without any conditions or restrictions; or
5                  (b)     if the Rail Safety Regulator is not so satisfied, notice in
6                          writing refusing the application.




                                              ft
7        (2)     A notice under subsection (1) granting an application must
8                specify —
9                  (a) the prescribed details of the applicant; and
10                 (b) the scope and nature of the railway operations, and the
11                       manner in which they are to be carried out, in respect of
12                       which the accreditation is granted; and
13                 (c) any conditions and restrictions imposed by the Rail
14                       Safety Regulator on the grant of accreditation; and
15                 (d) any other prescribed information.
16
        a(3)     A notice —
17                (a) under subsection (1) refusing an application, or
18                      imposing a condition or restriction, must include —
19                         (i) the reasons for the decision to refuse to grant the
20                             application or impose the condition or restriction;
     Dr
21                             and
22                        (ii) information about the right of review under
23                             Part 7;
24                      and
25                (b) under subsection (4)(c) extending a period, must include
26                      information about the right of review under Part 7.
27       (4)     In this section, the relevant period, in relation to an application,
28               is —
29                  (a) 6 months after the application was received by the Rail
30                        Safety Regulator; or



     DRAFT 2 8 May 2009 1:41                                                   page 37
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 38



1                  (b)     if the Rail Safety Regulator requested further
2                          information, 6 months, or such other period, as is agreed
3                          between the Rail Safety Regulator and the applicant,
4                          after the Rail Safety Regulator receives the last
5                          information so requested; or
6                  (c)     if the Rail Safety Regulator, by notice in writing given
                           to the applicant before the expiry of the relevant




                                              ft
7
8                          6 months, specifies another period, that period,
9                whichever is the longer.

10   38.         Prescribed conditions and restrictions (Model Bill cl. 38)
11               Accreditation granted to a person under this Part is subject to
12               any conditions or restrictions prescribed for the purposes of this
13               section and that are applicable to the grant of accreditation.

14   39.         Penalty for breach of condition or restriction (Model Bill
15
        a        cl. 39)
16               An accredited person must not fail to comply with a condition
17               or restriction of accreditation applying under this Part.
18               Penalty:
19                    (a) a fine of $50 000;
     Dr
20                    (b) for a second or subsequent offence, a fine of $75 000.

21   40.         Annual fees (Model Bill cl. 40 and local)
22         (1)   Such annual fee as is prescribed must be paid by a rail transport
23               operator at the time of accreditation and in each subsequent year
24               on or before the anniversary of the person’s accreditation for the
25               particular railway operation.
26         (2)   The Rail Safety Regulator may accept payment of an annual
27               accreditation fee due and payable by an accredited person in
28               accordance with an agreement made with the person, whether
29               for payment by instalments or otherwise.


     page 38                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                        Accreditation      Division 2
                                                                                  s. 41



1          (3)   If an accreditation is varied, such additional annual fee as is
2                prescribed in respect of the variation is to be paid.
3          (4)   Different fees may be prescribed for different kinds of
4                accreditation and for different classes of rail transport operators.
5          (5)   The regulations may prescribe various methods for the
6                calculation of various fees.




                                              ft
7    41.         Late payment fees (Model Bill cl. 41)
8          (1)   The regulations may impose additional fees for late payment of
9                fees after the due date for payment.
10         (2)   A fee for late payment of fees may be, but is not required to be,
11               calculated on a daily basis.

12   42.         Rail Safety Accreditation Account (RSA s. 23)
13         (1)   The account called the “Rail Safety Accreditation Account” is a
14
        a        continuation of the account established under the Rail Safety
15               Act 1998 section 23 and is as an agency special purpose account
16               under the Financial Management Act 2006 section 16.
17         (2)   The account is to be credited with —
                  (a) all fees and charges collected under this Act; and
     Dr
18

19                (b) any amount appropriated by Parliament to, or otherwise
20                      lawfully received for, the account.
21         (3)   The account is to be charged with the costs of administering
22               this Act.

23   43.         Periodic returns (based on RSA s. 24)
24         (1)   An accredited person must, for each period prescribed, not later
25               than the relevant day for the accreditation, as determined in
26               accordance with the regulations, lodge with the Rail Safety
27               Regulator a return containing the information prescribed.



     DRAFT 2 8 May 2009 1:41                                                  page 39
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 44



1          (2)   If an accredited person fails to comply with subsection (1), the
2                Rail Safety Regulator may, by written notice given to the
3                accredited person, require him or her to do so and in that notice
4                is to advise the person of the effect of subsections (3) and (4).
5          (3)   If an accredited person fails to comply with a notice under
6                subsection (2) within 14 days after service of the notice, the




                                              ft
7                accreditation is, by force of this section, suspended, unless
8                otherwise determined in writing by the Rail Safety Regulator.
9          (4)   If an accredited person fails to comply with a notice under
10               subsection (2) within 2 months after service of the notice, the
11               accreditation is, by force of this section, cancelled, unless
12               otherwise determined in writing by the Rail Safety Regulator.

13   44.         Surrender of accreditation (Model Bill cl. 43)
14               An accredited person may, in accordance with the regulations,
15               surrender the person’s accreditation.
        a
16   45.         Revocation or suspension of accreditation (Model Bill
17               cl. 44)
18         (1)   This section applies in respect of an accredited person if —
19                (a) the Rail Safety Regulator considers that the accredited
     Dr
20                       person —
21                         (i) is no longer able to demonstrate to the
22                              satisfaction of the Rail Safety Regulator the
23                              matters referred to in section 34 or to satisfy the
24                              conditions, or to comply with the restrictions, of
25                              the accreditation; or
26                        (ii) is not managing the rail infrastructure, or is not
27                              operating rolling stock in relation to any rail
28                              infrastructure, to which the accreditation relates
29                              and has not done so for at least the preceding
30                              12 months;
31                       or


     page 40                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                        Accreditation      Division 2
                                                                                  s. 45



1                  (b)     the accredited person contravenes this Act.
2        (2)     The Rail Safety Regulator —
3                 (a) may suspend the accreditation, or part of the
4                       accreditation, of the accredited person for a period
5                       determined by the Rail Safety Regulator; or
6                 (b) may revoke the accreditation of the accredited person




                                              ft
7                       wholly or in part, or in respect of particular railway
8                       operations specified in the notice, with immediate effect
9                       or with effect from a specified future date; or
10                (c) may impose conditions or restrictions on the
11                      accreditation; or
12                (d) may vary conditions or restrictions to which the
13                      accreditation is subject.
14       (3)     If the Rail Safety Regulator revokes the accreditation, the Rail
15               Safety Regulator may declare that the accredited person is
16
        a        disqualified from applying for accreditation, or for accreditation
17               in relation to specified railway operations, during a specified
18               period.
19       (4)     The Rail Safety Regulator may withdraw a suspension of the
20               accreditation of a person by written notice given to the person.
     Dr
21       (5)     Before making a decision under subsection (2), the Rail Safety
22               Regulator —
23                (a) must notify the person in writing —
24                        (i) that the Rail Safety Regulator is considering
25                            making a decision under subsection (2) of the
26                            kind, and for the reasons, specified in the notice;
27                            and
28                       (ii) that the person may, within 28 days or such
29                            longer period as is specified in the notice, make
30                            written representations to the Rail Safety
31                            Regulator showing cause why the decision
32                            should not be made;

     DRAFT 2 8 May 2009 1:41                                                  page 41
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 46



1                          and
2                  (b)     must consider any representations made under
3                          paragraph (a)(ii) and not withdrawn.
4          (6)   If the Rail Safety Regulator suspends or revokes the
5                accreditation of the accredited person wholly or in part, or in
6                respect of specified railway operations, the Rail Safety




                                              ft
7                Regulator must include in the notice of suspension or revocation
8                the reasons for the suspension or revocation and information
9                about the right of review under Part 7.
10         (7)   If the Rail Safety Regulator suspends or revokes the
11               accreditation of a person who is accredited in another
12               jurisdiction, the Rail Safety Regulator must give notice of the
13               suspension or revocation to the relevant corresponding Rail
14               Safety Regulator.

15   46.         Immediate suspension of accreditation (Model Bill cl. 45)
16
        a  (1)   If the Rail Safety Regulator considers that there is, or would be,
17               an immediate and serious risk to safety unless an accreditation
18               is suspended immediately, the Rail Safety Regulator may,
19               without complying with section 45(5) or (6), by written notice
20               given to the accredited person, immediately suspend the
     Dr
21               accreditation of the person —
22                  (a) wholly or in part, or in respect of particular railway
23                       operations specified in the notice; and
24                 (b) for a specified period, not exceeding 6 weeks.
25         (2)   The Rail Safety Regulator may, by notice in writing given to a
26               person whose accreditation is suspended wholly or in part or in
27               respect of specified railway operations —
28                 (a) reduce the period of suspension specified in a notice
29                       under subsection (1); or
30                 (b) extend the period of suspension specified in a notice
31                       under subsection (1) but not so that the suspension


     page 42                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                        Accreditation      Division 2
                                                                                  s. 47



1                          continues for more than 6 weeks after the date of the
2                          notice under that subsection.
3          (3)   The Rail Safety Regulator may withdraw a suspension of the
4                accreditation of a person by written notice given to the person.
5          (4)   Before making a decision under subsection (2)(b) to extend a
6                period of suspension, the Rail Safety Regulator —




                                              ft
7                  (a) must notify the person in writing —
8                          (i) that the Rail Safety Regulator is considering
9                               extending the period of suspension for the
10                              reasons specified in the notification; and
11                        (ii) that the person may, within 7 days or such longer
12                              period as is specified in the notification, make
13                              written representations to the Rail Safety
14                              Regulator showing cause why the suspension
15                              should not be extended;
16
        a                and
17                 (b) must consider any representations made under
18                       paragraph (a)(ii) and not withdrawn.
19         (5)   If the Rail Safety Regulator extends the suspension of the
20               person, the Rail Safety Regulator must include in the notice
     Dr
21               extending the suspension the reasons for the extension and
22               information about the right of review under Part 7.

23   47.         Keeping and making available documents for public
24               inspection (Model Bill cl. 46)
25               A rail transport operator must ensure that —
26                (a) if the operator is an accredited person or has an
27                        exemption under this Part, the current notice of
28                        accreditation or an exemption under this Part; and
29                (b) if the operator is a rail infrastructure manager of a
30                        private siding registered with the Rail Safety Regulator,
31                        the notice of registration; and


     DRAFT 2 8 May 2009 1:41                                                  page 43
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 48



1                  (c)     any other document prescribed for the purposes of this
2                          section,
3                are available for inspection —
4                  (d) if the operator is a body corporate, at the operator’s
5                        registered office during ordinary business hours; or
6                  (e) if the operator is not a body corporate, at the operator’s




                                              ft
7                        principal place of business or, if the Rail Safety
8                        Regulator approves another place and time, at that place
9                        and time.
10               Penalty: a fine of $2 750.

11   48.         Application for variation of accreditation (Model Bill cl. 47)
12         (1)   An accredited person may apply to the Rail Safety Regulator, in
13               the manner and form approved by the Rail Safety Regulator, for
14               a variation of the accreditation.
15
        a  (2)   An application for variation —
16                (a) must specify the details of the variation being sought;
17                      and
18                (b) must contain the prescribed information.
     Dr
19         (3)   The Rail Safety Regulator may require an accredited person
20               who has applied for a variation —
21                (a) to supply further information requested by the Rail
22                      Safety Regulator; and
23                (b) to verify by statutory declaration any information
24                      supplied to the Rail Safety Regulator.

25   49.         Application that relates to cooperative railway operations or
26               operations in another jurisdiction (Model Bill cl. 48)
27               Sections 35 and 36 apply to an application for variation as if a
28               reference in those sections to accreditation were a reference to
29               variation of accreditation.


     page 44                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                        Accreditation      Division 2
                                                                                  s. 50



1    50.         Determination of application for variation (Model Bill
2                cl. 49)
3          (1)   Subject to this section, the Rail Safety Regulator must, within
4                the relevant period, give to the applicant —
5                  (a) if the Rail Safety Regulator is satisfied as to the matters
6                        referred to in sections 34 and 35 so far as they are




                                              ft
7                        applicable to the proposed variation, notice in writing
8                        varying the accreditation, with or without any conditions
9                        or restrictions; or
10                 (b) if the Rail Safety Regulator is not so satisfied, notice in
11                       writing refusing the application.
12         (2)   A notice under subsection (1) varying an accreditation must
13               specify —
14                 (a) the prescribed details of the applicant; and
15                 (b) the variation to the accreditation so far as it applies to
16
        a                the scope and nature of the railway operations, or the
17                       manner in which they are to be carried out; and
18                 (c)     any conditions and restrictions imposed by the Rail
19                         Safety Regulator on the accreditation as varied; and
20                 (d)     any other prescribed information.
     Dr
21         (3)   A notice —
22                (a) under subsection (1) refusing an application, or
23                      imposing a condition or restriction, must include —
24                         (i) the reasons for the decision to refuse to grant the
25                             application for variation or imposing the
26                             condition or restriction; and
27                        (ii) information about the right of review under
28                             Part 7;
29                (b) under subsection (4)(c) extending a period, must include
30                      information about the right of review under Part 7.



     DRAFT 2 8 May 2009 1:41                                                  page 45
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 51



1          (4)   In this section, the relevant period, in relation to an application,
2                is —
3                   (a) 6 months after the application was received by the Rail
4                         Safety Regulator; or
5                  (b) if the Rail Safety Regulator requested further
6                         information, 6 months, or such other period, as is agreed




                                              ft
7                         between the Rail Safety Regulator and the applicant,
8                         after the Rail Safety Regulator receives the last
9                         information so requested; or
10                  (c) if the Rail Safety Regulator, by notice in writing given
11                        to the applicant before the expiry of the relevant
12                        6 months, specifies another period, that period,
13               whichever is the longer.

14   51.         Prescribed conditions and restrictions (based on Model Bill
15               cl. 50)
16
        a        The accreditation of a person that is varied under this Part is
17               subject to any conditions or restrictions prescribed under
18               section 38 that are applicable to the accreditation as varied.

19   52.         Rail Safety Regulator may direct amendment of a safety
     Dr
20               management system (Model Bill cl. 51)
21         (1)   The Rail Safety Regulator may direct a rail transport operator,
22               by notice in writing, to amend the operator’s safety management
23               system within a specified period, being not less than 28 days
24               after the giving of the direction.
25         (2)   A direction under subsection (1) must state the reasons why the
26               Rail Safety Regulator considers it is necessary for the rail
27               transport operator to amend the safety management system.
28         (3)   The rail transport operator must not, without reasonable excuse,
29               fail to comply with a direction under subsection (1).
30               Penalty: in the case of an individual, a fine of $82 500;
31               Penalty: in the case of a body corporate, a fine of $825 000.

     page 46                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                         Rail safety           Part 4
                                                       Accreditation      Division 2
                                                                                 s. 53



1    53.         Variation of conditions and restrictions (Model Bill cl. 52)
2          (1)   An accredited person may apply to the Rail Safety Regulator for
3                a variation of any condition or restriction to which the
4                accreditation is subject and that was imposed by the Rail Safety
5                Regulator.
6          (2)   An application for variation of a condition or restriction must be




                                              ft
7                made as if it were an application for variation of accreditation
8                and section 48 applies accordingly.
9          (3)   The Rail Safety Regulator must consider the application and, if
10               satisfied as to the matters referred to in sections 34 and 35 so far
11               as they are applicable to the proposed variation, may, by notice
12               given to the accredited person and in accordance with the
13               provisions of this Part so far as they are applicable, grant or
14               refuse to grant the variation.
15         (4)   A notice under subsection (3) refusing to grant a variation of a
16
        a        condition or restriction must include the reasons for the decision
17               to refuse to grant the variation and information about the right
18               of review under Part 7.

19   54.         Rail Safety Regulator may make changes to conditions or
20               restrictions (Model Bill cl. 53)
     Dr
21         (1)   The Rail Safety Regulator may, subject to this section, at any
22               time and in the discretion of the Rail Safety Regulator, vary or
23               revoke a condition or restriction imposed by the Rail Safety
24               Regulator to which the accreditation of an accredited person is
25               subject or impose a new condition or restriction.
26         (2)   Before taking action under this section, the Rail Safety
27               Regulator must —
28                (a) give the accredited person written notice of the action
29                      that the Rail Safety Regulator proposes to take; and
30                (b) allow the accredited person to make written
31                      representations about the intended action within 14 days


     DRAFT 2 8 May 2009 1:41                                                 page 47
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 2        Accreditation
     s. 55



1                          or any other period that the Rail Safety Regulator and
2                          the accredited rail operator agree upon; and
3                  (c)     consider any representations made under paragraph (b)
4                          and not withdrawn.
5          (3)   Subsection (2) does not apply if the Rail Safety Regulator
6                considers it necessary to take immediate action in the interests




                                              ft
7                of safety.
8          (4)   The Rail Safety Regulator must —
9                 (a) give, in writing, to the accredited person —
10                         (i) details of any action taken under subsection (1);
11                             and
12                        (ii) a statement of reasons for any action taken under
13                             subsection (1);
14                         and
                   (b)     notify, in writing, the accredited person that the person
15
16
        a                  has a right of review of the decision under Part 7.

17   55.         Accreditation cannot be transferred or assigned (Model Bill
18               cl. 54)
           (1)   An accreditation —
     Dr
19

20                (a) is personal to the person who holds it; and
21                (b) is not capable of being transferred or assigned to any
22                      other person or otherwise dealt with by the person who
23                      holds it; and
24                (c) does not vest by operation of law in any other person.
25         (2)   A purported transfer or assignment of an accreditation or any
26               other purported dealing with an accreditation by the person who
27               holds it is of no effect.
28         (3)   This section has effect despite anything in any Act or rule of
29               law to the contrary.



     page 48                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                         Rail safety           Part 4
                                                     Private sidings      Division 3
                                                                                 s. 56



1    56.         Sale or transfer of railway operations by accredited person
2                (Model Bill cl. 55)
3          (1)   If an accredited person proposes to sell or otherwise transfer any
4                railway operations for which the person is accredited, the Rail
5                Safety Regulator may, on an application for accreditation under
6                this Part being made by the proposed transferee, waive




                                              ft
7                compliance by the proposed transferee with any one or more of
8                the requirements of this Division.
9          (2)   The Rail Safety Regulator is not to waive compliance with any
10               such requirements unless the proposed transferee demonstrates,
11               to the satisfaction of the Rail Safety Regulator, that the
12               proposed transferee has the competence and capacity to comply
13               with the relevant requirements of this Division that apply to
14               applicants for accreditation of the appropriate kind.
15         (3)   A waiver of compliance with requirements may be given subject
16               to such conditions and restrictions, if any, as appear to the Rail
17
        a        Safety Regulator to be necessary.

18                              Division 3 — Private sidings
19   57.         Exemption from accreditation (Model Bill cl. 56 & Amend
     Dr
20               No. 2)
21         (1)   A rail infrastructure manager of a private siding —
22                (a) is not required to be accredited under this Part in respect
23                        of railway operations carried out in the private siding;
24                        and
25                (b) except to the extent that the regulations or a condition
26                        referred to in subsection (2) otherwise provides, is not
27                        required to comply with Division 4, 5 or 6 in relation to
28                        the private siding.
29         (2)   Despite subsection (1), if the rail infrastructure manager wishes
30               the private siding to be, or to continue to be, connected with, or



     DRAFT 2 8 May 2009 1:41                                                 page 49
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 3        Private sidings
     s. 57



1                to have access to, a railway or siding of an accredited person,
2                the rail infrastructure manager must —
3                  (a) register the private siding with the Rail Safety Regulator
4                         and pay the prescribed annual fee, if any; and
5                  (b) comply with conditions imposed by the Rail Safety
6                         Regulator from time to time or prescribed by the




                                              ft
7                         regulations with respect to the safe construction,
8                         maintenance and operation of the private siding; and
9                  (c) comply with the provisions of section 62 in relation to
10                        the management of the interface with the railway of the
11                        accredited person; and
12                 (d) notify the accredited person in writing of any railway
13                        operations affecting or relating to the safety of the
14                        railway or siding of the accredited person.
15               Penalty:
16                    (a) for an individual —
17
        a                       (i) for a first offence, a fine of $20 000;
18                             (ii) for a second or subsequent offence, a fine of
19                                   $30 000;
20                    (b) for a body corporate —
     Dr
21                              (i) for a first offence, a fine of $200 000;
22                             (ii) for a second or subsequent offence, a fine of
23                                   $300 000.
24       (3)     Conditions and regulations referred to in subsection (2) may
25               establish requirements that are the same as, or similar to, any
26               provisions of Division 4, 5 or 6.
27       (4)     The Rail Safety Regulator must issue a notice of registration to
28               a rail infrastructure manager who registers a private siding with
29               the Rail Safety Regulator.
30       (5)     If the regulations so prescribe, the Rail Safety Regulator must
31               make prescribed particulars of a registration under
32               subsection (2) available for public inspection at the Rail Safety

     page 50                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                        Rail safety           Part 4
                                               Safety management         Division 4
                                                                                s. 58



1                Regulator’s office or a prescribed place, during ordinary
2                business hours.

3                           Division 4 — Safety management
4    58.         Safety management system (Model Bill cl. 57)
           (1)   A rail transport operator must have a safety management system




                                              ft
5
6                for railway operations, other than railway operations in respect
7                of which the operator is not required to be accredited, carried
8                out on or in relation to the rail transport operator’s rail
9                infrastructure or rolling stock that —
10                 (a) is in a form approved by the Rail Safety Regulator; and
11                 (b) complies with the relevant prescribed requirements and
12                        the prescribed risk management principles, methods and
13                        procedures; and
14                 (c) identifies and assesses any risks to safety that have
15
        a                 arisen or may arise from the carrying out of railway
16                        operations on or in relation to the rail transport
17                        operator’s rail infrastructure or rolling stock; and
18                 (d) specifies the controls, including audits, expertise,
19                        resources and staff, that are to be used by the rail
     Dr
20                        transport operator to manage risks to safety and to
21                        monitor safety in relation to those railway operations;
22                        and
23                 (e) includes procedures for monitoring, reviewing and
24                        revising the adequacy of those controls; and
25                  (f) includes —
26                           (i) measures to manage risks to safety identified
27                                under section 62, 63 or 64; and
28                          (ii) a security management plan in accordance with
29                                section 70; and
30                         (iii) an Emergency Management Plan in accordance
31                                with section 71; and


     DRAFT 2 8 May 2009 1:41                                                 page 51
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 58



1                            (iv)   a health and fitness management programme in
2                                   accordance with section 72; and
3                            (v)    an alcohol and drug management programme in
4                                   accordance with section 73; and
5                            (vi)   a fatigue management programme in accordance
6                                   with section 75.




                                              ft
7                Penalty:
8                    (a)       for an individual —
9                                 (i) for a first offence, a fine of $55 000;
10                               (ii) for a second or subsequent offence, a fine of
11                                     $82 500;
12                     (b)     for a body corporate —
13                                (i) for a first offence, a fine of $550 000;
14                               (ii) for a second or subsequent offence, a fine of
15                                     $825 000.
        a
16       (2)     A rail transport operator, before establishing a safety
17               management system in relation to railway operations in respect
18               of which the operator is required to be accredited or reviewing
19               or varying any such safety management system, must consult,
20               so far as is reasonably practicable, with —
     Dr
21                 (a) persons likely to be affected by the safety management
22                        system or its review or variation, being persons who
23                        carry out those railway operations or work on or at the
24                        rail transport operator’s railway premises or with the rail
25                        transport operator’s rolling stock; and
26                 (b) a safety and health representative as defined in the
27                        Occupational Safety and Health Act 1984 section 3(1)
28                        representing any of the persons referred to in
29                        paragraph (a); and
30                 (c) any union representing any of the persons referred to in
31                        paragraph (a); and



     page 52                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                           Rail safety           Part 4
                                                  Safety management         Division 4
                                                                                   s. 59



1                  (d)     any other rail transport operator with whom the first
2                          mentioned operator has an interface coordination plan
3                          under section 62 relating to risks to safety of railway
4                          operations carried out by or on behalf of either of them;
5                          and
6                  (e)     the public, as appropriate.




                                              ft
7          (3)   If the safety management system of a rail transport operator and
8                the safety management system of another rail transport operator
9                who has a plan referred to in subsection (2)(d) with the first
10               mentioned rail transport operator, when taken as one system,
11               comply with this Act, both safety management systems are
12               taken to comply with this Act.
13         (4)   A safety management system must be evidenced in writing
14               and —
15                 (a) must identify each person responsible for preparing any
16                      part of the safety management system; and
17
        a          (b) must identify the person, or class of persons, responsible
18                      for implementing the system.

19   59.         Compliance with safety management system (Model Bill
20               cl. 58)
     Dr
21         (1)   A rail transport operator must implement the rail transport
22               operator’s safety management system.
23               Penalty:
24                    (a) for an individual —
25                             (i) for a first offence, a fine of $55 000;
26                            (ii) for a second or subsequent offence, a fine of
27                                  $82 500;
28                    (b) for a body corporate —
29                             (i) for a first offence, a fine of $550 000;
30                            (ii) for a second or subsequent offence, a fine of
31                                  $825 000.

     DRAFT 2 8 May 2009 1:41                                                   page 53
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 60



1          (2)   A rail transport operator must not, without reasonable excuse,
2                fail to comply with the rail transport operator’s safety
3                management system for the rail transport operator’s railway
4                operations.
5                Penalty:
6                      (a) for an individual —




                                              ft
7                              (i) for a first offence, a fine of $55 000;
8                             (ii) for a second or subsequent offence, a fine of
9                                   $82 500;
10                     (b) for a body corporate —
11                             (i) for a first offence, a fine of $550 000;
12                            (ii) for a second or subsequent offence, a fine of
13                                  $825 000.
14         (3)   It is a reasonable excuse if the rail transport operator —
                   (a)     complies with the safety management system to the
15
16
        a                  extent practicable while complying with a condition or
17                         restriction of accreditation; or
18                 (b)     demonstrates that compliance with the system in
19                         particular circumstances would have increased the
20                         likelihood of a notifiable occurrence happening.
     Dr
21         (4)   Subsection (3) does not limit the excuses that may be reasonable
22               excuses.

23   60.         Review of safety management system (Model Bill cl. 59)
24               A rail transport operator must review the rail transport
25               operator’s safety management system in accordance with the
26               regulations at such times or within such periods as are
27               prescribed or, if no times or periods are prescribed, at least once
28               each year or at such other time as is agreed between the rail
29               transport operator and the Rail Safety Regulator.
30               Penalty:
31                    (a) for an individual —

     page 54                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                            Rail safety           Part 4
                                                   Safety management         Division 4
                                                                                    s. 61



1                                (i)   for a first offence, a fine of $27 500;
2                               (ii)   for a second or subsequent offence, a fine of
3                                      $41 250;
4                      (b)     for a body corporate —
5                                 (i) for a first offence, a fine of $55 000;
6                                (ii) for a second or subsequent offence, a fine of




                                              ft
7                                      $82 500.

8    61.         Safety performance reports (Model Bill cl. 60)
9          (1)   In this section —
10               reporting period means a calendar year or such other period as
11               is agreed from time to time by the Rail Safety Regulator and the
12               rail transport operator.
13         (2)   A rail transport operator must give the Rail Safety Regulator a
14               safety performance report in respect of each reporting period
15
        a        that —
16                 (a) is in a form approved by the Rail Safety Regulator; and
17                 (b) complies with the requirements, if any, prescribed for
18                        the purposes of this section; and
                   (c) contains —
     Dr
19

20                           (i) a description and assessment of the safety
21                               performance of the rail transport operator’s
22                               railway operations; and
23                          (ii) comments on any deficiencies in, and any
24                               irregularities in, the railway operations that may
25                               be relevant to the safety of the railway; and
26                         (iii) a description of any safety initiatives in relation
27                               to the railway operations undertaken during the
28                               reporting period or proposed to be undertaken in
29                               the next reporting period; and
30                         (iv) any other information or performance indicators
31                               prescribed for the purpose of this section.

     DRAFT 2 8 May 2009 1:41                                                    page 55
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 62



1          (3)   A rail transport operator must submit a report in accordance
2                with this section within 6 months after the end of each reporting
3                period.
4                Penalty:
5                     (a) for an individual —
6                              (i) for a first offence, a fine of $27 500;




                                              ft
7                             (ii) for a second or subsequent offence, a fine of
8                                   $41 250;
9                     (b) for a body corporate —
10                             (i) for a first offence, a fine of $55 000;
11                            (ii) for a second or subsequent offence, a fine of
12                                  $82 500.

13   62.         Interface coordination — rail transport operators (Model
14               Bill Amend No. 2 cl. 61)
15
        a  (1)   A rail transport operator —
16                (a) must identify and assess, so far as is reasonably
17                        practicable, risks to safety that may arise from railway
18                        operations carried out by or on behalf of the operator
19                        because of, or partly because of, railway operations
     Dr
20                        carried out by or on behalf of any other rail transport
21                        operator; and
22                (b) must determine measures to manage, so far as is
23                        reasonably practicable, those risks; and
24                (c) must, for the purpose of managing those risks, seek to
25                        enter into an interface agreement with the other rail
26                        transport operator or rail transport operators.
27         (2)   Except to the extent that the regulations otherwise provide,
28               subsection (1)(c) does not apply if none of the rail transport
29               operators is a rail infrastructure manager.




     page 56                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                 Safety management         Division 4
                                                                                  s. 63



1    63.         Interface coordination — rail infrastructure manager —
2                public roads (Model Bill Amend No. 2 cl. 61A)
3                A rail infrastructure manager —
4                 (a) must identify and assess, so far as is reasonably
5                         practicable, risks to safety that may arise from railway
6                         operations carried out on or in relation to the manager’s




                                              ft
7                         rail infrastructure and that may so arise because of, or
8                         partly because of —
9                            (i) the existence of road infrastructure of a
10                                 prescribed public road; and
11                          (ii) the existence or use of any rail or road crossing
12                                 that is part of the road infrastructure of any
13                                 public road;
14                         and
15                 (b)     must determine measures to manage, so far as is
                           reasonably practicable, those risks; and
16
        a
17                 (c)     must, for the purpose of managing those risks, seek to
18                         enter into an interface agreement with the road manager
19                         in relation to that road.

20   64.         Interface coordination — rail infrastructure manager —
     Dr
21               roads other than public roads (Model Bill Amend No. 2
22               cl. 61B)
23               A rail infrastructure manager —
24                (a) must identify and assess, so far as is reasonably
25                        practicable, risks to safety that may arise from railway
26                        operations carried out on or in relation to the manager’s
27                        rail infrastructure and that may so arise because of, or
28                        partly because of, the existence or use of any rail or road
29                        crossing that is part of the road infrastructure of any
30                        road, other than a public road; and




     DRAFT 2 8 May 2009 1:41                                                  page 57
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 65



1                  (b)     must consider whether it is necessary to manage those
2                          risks in conjunction with the road manager in relation to
3                          that road and —
4                             (i) if the rail infrastructure manager is of the opinion
5                                  that it is necessary that those risks be managed in
6                                  conjunction with the road manager, must give
                                   written notice of that opinion to the road




                                              ft
7
8                                  manager and must determine measures to
9                                  manage, so far as is reasonably practicable, those
10                                 risks; or
11                           (ii) if the rail infrastructure manager is of the opinion
12                                 that the management of those risks does not need
13                                 to be carried out in conjunction with the road
14                                 manager, must keep a written record of that
15                                 opinion;
16                         and
17
        a          (c)     unless paragraph (b)(ii) applies, must, for the purpose of
18                         managing those risks, seek to enter into an interface
19                         agreement with the road manager in relation to that road.

20   65.         Interface coordination — road manager — public roads and
21               other roads (Model Bill Amend No. 2 cl. 61C)
     Dr
22         (1)   The road manager in relation to a public road —
23                (a) must identify and assess, so far as is reasonably
24                      practicable, risks to safety that may arise from the
25                      existence or use of any rail or road crossing that is part
26                      of the road infrastructure of that public road because of,
27                      or partly because of, railway operations carried out on or
28                      in relation to any rail infrastructure; and
29                (b) must determine measures to manage, so far as is
30                      reasonably practicable, those risks; and
31                (c) must, for the purpose of managing those risks, seek to
32                      enter into an interface agreement with the rail
33                      infrastructure manager of the rail infrastructure.

     page 58                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                         Rail safety           Part 4
                                                Safety management         Division 4
                                                                                 s. 66



1          (2)   If, under section 64(b), a rail infrastructure manager gives a
2                written notice to a road manager in relation to a road that is not
3                a public road of an opinion that certain risks need to be
4                managed in conjunction with the road manager, the road
5                manager —
6                   (a) must identify and assess, so far as is reasonably
                         practicable, risks to safety that may arise from the




                                              ft
7
8                        existence or use of any rail or road crossing that is part
9                        of the road infrastructure of the road because of, or
10                       partly because of, railway operations; and
11                 (b) must determine measures to manage, so far as is
12                       reasonably practicable, those risks; and
13                  (c) must, for the purpose of managing those risks, seek to
14                       enter into an interface agreement with the rail
15                       infrastructure manager.
16         (3)   Nothing in this section authorises or requires a road manager to
17
        a        act inconsistently with, or without regard to, the functions,
18               obligations or powers conferred on it under an Act other than
19               this Act.

20   66.         Identification and assessment of risks (Model Bill Amend
                 No. 2 cl. 61D)
     Dr
21

22               A rail transport operator, rail infrastructure manager or road
23               manager which is required under section 62, 63, 64 or 65 to
24               identify and assess risks to safety that may arise from operations
25               carried out by another person may do so —
26                 (a) by itself identifying and assessing those risks; or
27                 (b) by identifying and assessing those risks jointly with the
28                        other person; or
29                 (c) by adopting the identification and assessment of those
30                        risks carried out by the other person.




     DRAFT 2 8 May 2009 1:41                                                 page 59
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 67



1    67.         Scope of interface agreements (Model Bill Amend No. 2
2                cl. 61E)
3                An interface agreement under this Division —
4                 (a) may be entered into by 2 or more rail transport operators
5                       or by one or more rail transport operators and one or
6                       more road managers; and




                                              ft
7                 (b) may include measures to manage any number of risks to
8                       safety that may arise because of, or partly because of,
9                       any railway operations; and
10                (c) may include measures to manage any number of risks to
11                      safety that may arise from any railway operations
12                      because of, or partly because of, the existence or use of
13                      any road infrastructure; and
14                 (d)     may make provision for or in relation to any matter by
15                         applying, adopting or incorporating any matter
16                         contained in any document; and
17
        a          (e)     may consist of 2 or more documents.

18   68.         Rail Safety Regulator may give directions (Model Bill
19               Amend No. 2 cl. 61F)
     Dr
20         (1)   This section applies if the Rail Safety Regulator is satisfied that
21               a rail transport operator, rail infrastructure manager or road
22               manager referred to in section 62, 63, 64 or 65 —
23                 (a) is unreasonably refusing or failing to enter into an
24                        interface agreement with another person as required
25                        under this Division; or
26                 (b) is unreasonably delaying the negotiation of such an
27                        agreement.
28         (2)   The Rail Safety Regulator may issue a written notice to the rail
29               transport operator, the rail infrastructure manager or the road
30               manager, as the case requires, and the other person that —




     page 60                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                 Safety management         Division 4
                                                                                  s. 68



1                  (a)     warns of the Rail Safety Regulator’s powers under this
2                          section, including the power to issue a direction under
3                          subsection (4) at any time after a specified date; and
4                  (b)     includes a copy of this section; and
5                  (c)     may contain suggested terms for inclusion in an
6                          interface agreement.




                                              ft
7        (3)     If the Rail Safety Regulator issues a notice under subsection (2)
8                to a rail transport operator, rail infrastructure manager or road
9                manager, the Rail Safety Regulator may, in writing, request the
10               manager to provide such information as the Rail Safety
11               Regulator reasonably requires for the purposes of making a
12               direction under subsection (4).
13       (4)     If a notice is issued under subsection (2) and an interface
14               agreement has not been entered into by or on the date specified
15               in the notice, the Rail Safety Regulator —
                   (a) may determine the arrangements that are to apply in
16
17
        a                 relation to the management of risks to safety referred to
18                        in section 62, 63, 64 or 65, as the case requires; and
19                 (b) may direct either or both persons to whom the notice is
20                        issued to give effect to those arrangements; and
     Dr
21                 (c) must specify by when a direction must be complied
22                        with.
23       (5)     A direction under subsection (4) —
24                (a) must be in writing; and
25                (b) must set out any arrangements determined by the Rail
26                      Safety Regulator under that subsection.
27       (6)     A person to whom a direction under subsection (4) is given
28               must comply with the direction.
29               Penalty:
30                   (a) for an individual —
31                           (i) for a first offence, a fine of $5 000;


     DRAFT 2 8 May 2009 1:41                                                  page 61
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 69



1                               (ii)   for a second or subsequent offence, a fine of
2                                      $7 500;
3                      (b)     for a body corporate —
4                                 (i) for a first offence, a fine of $50 000;
5                                (ii) for a second or subsequent offence, a fine of
6                                      $75 000.




                                              ft
7    69.         Register of interface agreements (Model Bill Amend No. 2
8                cl. 61G)
9          (1)   A rail transport operator must maintain a register of —
10                (a) interface agreements to which it is a party; and
11                (b) arrangements determined by the Rail Safety Regulator
12                        under section 68,
13               that are applicable to its railway operations.
           (2)   A road manager must maintain a register of —
14
        a
15                (a) interface agreements to which it is a party; and
16                (b) arrangements determined by the Rail Safety Regulator
17                      under section 68,
18               that are applicable to any road in relation to which it is the road
     Dr
19               manager.
20               Penalty: for an individual, a fine of $275.
21               Penalty: for a body corporate, a fine of $2 750.

22   70.         Security management plan (Model Bill cl. 62)
23               A rail transport operator —
24                (a) must have a security management plan for railway
25                        operations carried out by or on behalf of the operator on
26                        or in relation to the operator’s rail infrastructure or
27                        rolling stock that —
28                          (i) incorporates measures to protect people from
29                                theft, assault, sabotage, terrorism and other

     page 62                                                    DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                            Rail safety           Part 4
                                                   Safety management         Division 4
                                                                                    s. 71



1                                   criminal acts of other parties and from other
2                                   harm; and
3                          (ii)     complies with this Act;
4                        and
5                 (b) must ensure that the security management plan is
6                        implemented; and




                                              ft
7                  (c) must ensure that the appropriate response measures of
8                        the security management plan are implemented without
9                        delay if an incident of a kind referred to in paragraph (a)
10                       occurs.
11               Penalty:
12                    (a) for an individual —
13                               (i) for a first offence, a fine of $55 000;
14                              (ii) for a second or subsequent offence, a fine of
15                                   $82 500;
16
        a             (b) for a body corporate —
17                               (i) for a first offence, a fine of $550 000;
18                              (ii) for a second or subsequent offence, a fine of
19                                   $825 000.
     Dr
20   71.         Emergency management plan (Model Bill cl. 63)
21         (1)   A rail transport operator must have an emergency management
22               plan for railway operations carried out by or on behalf of the
23               operator on or in relation to the operator’s railway operations
24               that complies with subsection (2).
25               Penalty:
26                    (a) for an individual —
27                             (i) for a first offence, a fine of $55 000;
28                            (ii) for a second or subsequent offence, a fine of
29                                  $82 500;
30                    (b) for a body corporate —


     DRAFT 2 8 May 2009 1:41                                                    page 63
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 71



1                                (i)    for a first offence, a fine of $550 000;
2                               (ii)    for a second or subsequent offence, a fine of
3                                       $825 000.
4        (2)     The emergency management plan must —
5                 (a) address and include the matters that are prescribed; and




                                              ft
6                 (b) be prepared —
7                         (i) in conjunction with emergency services and any
8                              other person who is prescribed; and
9                        (ii) in accordance with the regulations;
10                     and
11                (c) be kept and maintained in accordance with the
12                     regulations; and
13                 (d)     be provided to the emergency services and any other
14                         person who is prescribed; and
15
        a          (e)     be tested in accordance with the regulations.
16       (3)     A rail transport operator must ensure that the appropriate
17               response measures of the emergency management plan are
18               implemented if an emergency occurs.
19               Penalty:
     Dr
20                    (a) for an individual —
21                             (i) for a first offence, a fine of $55 000;
22                            (ii) for a second or subsequent offence, a fine of
23                                  $82 500;
24                    (b) for a body corporate —
25                             (i) for a first offence, a fine of $550 000;
26                            (ii) for a second or subsequent offence, a fine of
27                                  $825 000.




     page 64                                                     DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                         Rail safety           Part 4
                                                Safety management         Division 4
                                                                                 s. 72



1    72.         Health and fitness management programme (Model Bill
2                cl. 64)
3                A rail transport operator must have and implement a health and
4                fitness programme for rail safety workers who carry out rail
5                safety work on or in relation to the rail transport operator’s rail
6                infrastructure or rolling stock that complies with the prescribed




                                              ft
7                requirements relating to health and fitness programmes.
8                Penalty:
9                     (a) for an individual —
10                             (i) for a first offence, a fine of $10 000;
11                            (ii) for a second or subsequent offence, a fine of
12                                  $25 000;
13                    (b) for a body corporate —
14                             (i) for a first offence, a fine of $25 000;
15                            (ii) for a second or subsequent offence, a fine of
16
        a                           $31 250.

17   73.         Alcohol and drug management programme (Model Bill
18               cl. 65)
19               A rail transport operator must prepare and implement an alcohol
     Dr
20               and drug management programme for rail safety workers who
21               carry out railway operations in relation to the rail transport
22               operator’s rail infrastructure or rolling stock that complies with
23               this Act.
24               Penalty:
25                    (a) for an individual —
26                             (i) for a first offence, a fine of $100 000;
27                            (ii) for a second or subsequent offence, a fine of
28                                   $125 000;
29                    (b) for a body corporate —
30                             (i) for a first offence, a fine of $200 000;


     DRAFT 2 8 May 2009 1:41                                                 page 65
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 74



1                               (ii)    for a second or subsequent offence, a fine of
2                                       $250 000.

3    74.         Testing for presence of alcohol or drugs (Model Bill cl. 66)
4                The Rail Safety Regulator may arrange with a rail transport
5                operator or a person undertaking railway operations on or in




                                              ft
6                relation to the rail transport operator’s rail infrastructure or
7                rolling stock for the testing for the presence of alcohol or any
8                other drug, in accordance with the regulations, of any person on
9                duty for the purpose of carrying out rail safety work.

10   75.         Fatigue management programme (Model Bill cl. 67)
11               A rail transport operator must prepare and implement a
12               programme, in accordance with the prescribed requirements, for
13               the management of fatigue of rail safety workers who carry out
14               railway operations in relation to the rail transport operator’s rail
15               infrastructure or rolling stock.
16
        a        Penalty:
17                    (a) for an individual —
18                             (i) for a first offence, a fine of $250 000;
19                            (ii) for a second or subsequent offence, a fine of
     Dr
20                                  $312 500;
21                    (b) for a body corporate —
22                             (i) for a first offence, a fine of $500 000;
23                            (ii) for a second or subsequent offence, a fine of
24                                  $625 000.

25   76.         Assessment of competence (Model Bill cl. 68 and SA Bill)
26         (1)   A rail transport operator must ensure that each rail safety
27               worker who is to carry out rail safety work in relation to the rail
28               transport operator’s rail infrastructure or rolling stock has the
29               competence to carry out that work.



     page 66                                                     DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                     Rail Safety Bill 2009
                                                              Rail safety           Part 4
                                                     Safety management         Division 4
                                                                                      s. 76



1                Penalty:
2                    (a)         for an individual —
3                                   (i) for a first offence, a fine of $250 000;
4                                  (ii) for a second or subsequent offence, a fine of
5                                        $312 500;
6                        (b)     for a body corporate —




                                              ft
7                                   (i) for a first offence, a fine of $500 000;
8                                  (ii) for a second or subsequent offence, a fine of
9                                        $625 000.
10       (2)     For the purposes of subsection (1), the competence of a rail
11               safety worker to carry out rail safety work must be assessed —
12                 (a) by reference to any qualification or any units of
13                       competence recognised under the regulations applicable
14                       to the rail safety work to be carried out; and
                   (b)         by reference to the knowledge and skills of the rail
15
16
        a                      safety worker that would enable the worker to carry out
17                             the rail safety work safely.
18       (3)     A certificate purporting to have been issued to a rail safety
19               worker certifying that the worker has any qualification or units
     Dr
20               of competence recognised under subsection (2)(a) is evidence
21               that the worker has those qualifications or units of competence.
22       (4)     Nothing in this section prevents a rail transport operator from
23               requiring a rail safety worker to undertake further training
24               before carrying out rail safety work.
25       (5)     A rail transport operator must maintain records in accordance
26               with the regulations of the competence of rail safety workers
27               who carry out rail safety work on or in relation to the rail
28               transport operator’s rail infrastructure or rolling stock.
29               Penalty:
30                    (a) for an individual —
31                            (i) for a first offence, a fine of $10 000;

     DRAFT 2 8 May 2009 1:41                                                      page 67
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 4        Safety management
     s. 77



1                               (ii)   for a second or subsequent offence, a fine of
2                                      $15 000;
3                      (b)     for a body corporate —
4                                 (i) for a first offence, a fine of $30 000;
5                                (ii) for a second or subsequent offence, a fine of
6                                      $35 000.




                                              ft
7    77.         Identification for rail safety workers (Model Bill cl. 69)
8          (1)   A rail transport operator must ensure that each rail safety
9                worker who is to carry out rail safety work in relation to the rail
10               transport operator’s railway operations has a form of
11               identification that is sufficient to enable the type of competence
12               and training of the rail safety worker for that rail safety work to
13               be checked by a rail safety officer.
14               Penalty: in the case of an individual, a fine of $2 750;
15               Penalty: in the case of a body corporate, a fine of $13 750.
        a
16         (2)   A rail safety worker who is carrying out rail safety work must,
17               when requested by a rail safety officer to do so, produce the
18               identification provided in accordance with subsection (1) to the
19               rail safety officer.
     Dr
20               Penalty: a fine of $2 750.

21   78.         Duties of rail safety workers (Model Bill cl. 70)
22         (1)   A rail safety worker, when carrying out rail safety work must —
23                (a) take reasonable care for his or her own safety; and
24                (b) take reasonable care for the safety of persons who may
25                       be affected by the rail safety worker’s acts or omissions;
26                       and
27                (c) cooperate with the rail transport operator with respect to
28                       any action taken by the rail transport operator to comply
29                       with a requirement imposed under this Act.



     page 68                                                    DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                          Rail safety           Part 4
                                                 Safety management         Division 4
                                                                                  s. 79



1          (2)   A rail safety worker, when carrying out rail safety work, must
2                not intentionally or recklessly interfere with or misuse anything
3                provided to the worker by the rail transport operator —
4                  (a) in the interests of safety; or
5                  (b) under this Act.
6          (3)   A rail safety worker, when carrying out rail safety work, must




                                              ft
7                not wilfully or recklessly place the safety of another person on
8                or in the immediate vicinity of rail infrastructure at risk.
9          (4)   An offence under subsection (1), (2) or (3) is a crime.
10               Penalty:
11                   (a) for a first offence, a fine of $100 000;
12                   (b) for a second or subsequent offence, a fine of
13                         $125 000.
14         (5)   For the purposes of subsection (1)(a) or (b), in determining
15
        a        whether a rail safety worker failed to take reasonable care,
16               regard must be had to what the rail safety worker knew about
17               the relevant circumstances.

18   79.         Contractors to comply with safety management system
19               (Model Bill cl. 71)
     Dr
20               A person, not being an employee employed to carry out railway
21               operations, who undertakes railway operations on or in relation
22               to rail infrastructure or rolling stock of a rail transport operator
23               must comply with the safety management system of the rail
24               transport operator to the extent that it applies to those railway
25               operations.
26               Penalty:
27                     (a) for an individual —
28                              (i) for a first offence, a fine of $100 000;
29                             (ii) for a second or subsequent offence, a fine of
30                                   $125 000;


     DRAFT 2 8 May 2009 1:41                                                  page 69
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 5        Information about rail safety
     s. 80



1                      (b)     for a body corporate —
2                                 (i) for a first offence, a fine of $200 000;
3                                (ii) for a second or subsequent offence, a fine of
4                                      $250 000.

5                    Division 5 — Information about rail safety




                                              ft
6    80.         Rail transport operators to provide information (Model Bill
7                cl. 72)
8          (1)   The Rail Safety Regulator may, by notice in writing given to a
9                rail transport operator, require the operator to provide to the Rail
10               Safety Regulator on or before a specified date and in a manner
11               and form approved by the Rail Safety Regulator, any or all of
12               the following —
13                 (a) information concerning measures taken by the rail
14                        transport operator to promote rail safety;
15
        a          (b) information concerning matters, including matters
16                        relating to the financial capacity or insurance
17                        arrangements of the rail transport operator, relating to
18                        rail safety or the accreditation of the rail transport
19                        operator that the Rail Safety Regulator reasonably
     Dr
20                        requires;
21                 (c) information prescribed for the purposes of this
22                        subsection.
23         (2)   The rail transport operator must comply with a notice given to
24               the operator under subsection (1).
25               Penalty:
26                    (a) for an individual —
27                             (i) for a first offence, a fine of $27 500;
28                            (ii) for a second or subsequent offence, a fine of
29                                  $41 250;
30                    (b) for a body corporate —


     page 70                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                    Rail Safety Bill 2009
                                                             Rail safety           Part 4
                 Investigating and reporting by rail transport operators      Division 6
                                                                                     s. 81



1                                (i)    for a first offence, a fine of $55 000;
2                               (ii)    for a second or subsequent offence, a fine of
3                                       $82 500.
4          (3)   A rail transport operator must provide to the Rail Safety
5                Regulator, in a manner and form approved by the Rail Safety
6                Regulator and at the prescribed times and in respect of the




                                              ft
7                prescribed periods, information prescribed for the purposes of
8                this subsection relating to rail safety or accreditation.
9                Penalty:
10                     (a) for an individual —
11                             (i) for a first offence, a fine of $27 500;
12                            (ii) for a second or subsequent offence, a fine of
13                                  $41 250;
14                     (b) for a body corporate —
15                             (i) for a first offence, a fine of $55 000;
16
        a                     (ii) for a second or subsequent offence, a fine of
17                                  $82 500.

18               Division 6 — Investigating and reporting by rail
19                             transport operators
     Dr
20   81.         Notification of certain occurrences (Model Bill cl. 73)
21         (1)   A rail transport operator must report to the Rail Safety
22               Regulator or another authority specified by the Rail Safety
23               Regulator within the time, and in the manner, prescribed, all
24               notifiable occurrences that happen on, or in relation to, the rail
25               transport operator’s railway premises or railway operations.
26               Penalty:
27                    (a) for a first offence, a fine of $100 000;
28                    (b) for a second or subsequent offence, a fine of
29                          $150 000.



     DRAFT 2 8 May 2009 1:41                                                     page 71
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 6        Investigating and reporting by rail transport operators
     s. 82



1          (2)   Two or more rail transport operators may make a joint report
2                with respect to a notifiable occurrence affecting them.
3          (3)   In addition to the matters specified in subsection (1), the Rail
4                Safety Regulator may, by notice in writing, require a rail
5                transport operator to report to the Rail Safety Regulator or
6                another authority specified by the Rail Safety Regulator, any




                                              ft
7                other occurrence or type of occurrence which endangers or
8                could endanger the safe operation of any railway operations.
9          (4)   The Rail Safety Regulator may require information in a report
10               under this section to be verified by statutory declaration.
11         (5)   A rail transport operator to whom a requirement under
12               subsection (3) applies must comply with the requirement.
13               Penalty:
14                    (a) for an individual —
15                             (i) for a first offence, a fine of $100 000;
16
        a                     (ii) for a second or subsequent offence, a fine of
17                                  $150 000;
18                    (b) for a body corporate —
19                             (i) for a first offence, a fine of $500 000;
     Dr
20                            (ii) for a second or subsequent offence, a fine of
21                                  $750 000.

22   82.         Investigation of notifiable occurrences (Model Bill cl. 74)
23         (1)   The Rail Safety Regulator may, by written notice to a rail
24               transport operator, require the rail transport operator to
25               investigate notifiable occurrences, or any other occurrences, that
26               have endangered or that may endanger the safe operation of the
27               railway operations carried out by the rail transport operator.
28         (2)   The level of investigation must be determined by the severity
29               and potential consequences of the notifiable occurrence as well
30               as by other similar occurrences and its focus should be to


     page 72                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                         Rail Safety Bill 2009
                                                                  Rail safety           Part 4
                                              Audit by Rail Safety Regulator       Division 7
                                                                                          s. 83



1                determine the cause and contributing factors, rather than to
2                apportion blame.
3          (3)   The rail transport operator must ensure that the investigation is
4                conducted in a manner approved by the Rail Safety Regulator
5                and within the period specified by the Rail Safety Regulator.
6                Penalty:




                                              ft
7                    (a) for a first offence, a fine of $50 000;
8                    (b) for a second or subsequent offence, a fine of $75 000.
9          (4)   A rail transport operator who has carried out an investigation
10               under this section must report to the Rail Safety Regulator on
11               the investigation within the period specified by the Rail Safety
12               Regulator.
13               Penalty:
14                    (a) for a first offence, a fine of $50 000;
                      (b) for a second or subsequent offence, a fine of $75 000.
15
        a
16                 Division 7 — Audit by Rail Safety Regulator
17   83.         Audit of railway operations of rail transport operators
18               (Model Bill cl. 75)
     Dr
19         (1)   In this section —
20               rail transport operator includes a person, not being an
21               employee employed to carry out railway operations, who
22               undertakes railway operations on or in relation to rail
23               infrastructure or rolling stock of a rail transport operator.
24         (2)   The Rail Safety Regulator —
25                (a) may audit the railway operations of a rail transport
26                      operator; and
27                (b) may prepare and implement a programme (an audit
28                      programme) for each year for inspecting the railway
29                      operations of rail transport operators; and


     DRAFT 2 8 May 2009 1:41                                                          page 73
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 4            Rail safety
     Division 7        Audit by Rail Safety Regulator
     s. 83



1                  (c)     may, for the purposes of an audit, inspect the railway
2                          operations of a rail transport operator whether or not
3                          under an audit programme.
4        (3)     Without limiting subsection (2)(b), an audit programme may
5                focus on one or more of the following —
6                  (a) particular rail transport operators;




                                              ft
7                  (b) particular criteria relating to rail transport operators;
8                  (c) particular aspects of rail safety;
9                  (d) particular aspects of railway operations.
10       (4)     The Rail Safety Regulator must give not less than 24 hours
11               notice in writing to a rail transport operator before inspecting
12               the operator’s railway operations under this section.
13       (5)     The regulations may establish procedures for the conduct of
14               audits under this section, including procedures to ensure the
                 confidentiality of records.
15
        a
     Dr


     page 74                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                        Rail Safety Bill 2009
                                                              Enforcement              Part 5
                                     Entry to places by rail safety officers      Division 1
                                                                                         s. 84



1                                Part 5 — Enforcement
2                Division 1 — Entry to places by rail safety officers
3    84.          Power to enter places (Model Bill cl. 76)
4          (1)    In this section —




                                              ft
5                 compliance and investigative purposes includes purposes —
6                   (a) related to ascertaining whether a rail safety law has been
7                          or is being complied with, including whether an offence
8                          has been committed against a rail safety law; or
9                   (b) related to ascertaining whether the terms of, or a
10                         condition or restriction of, an accreditation has been or
11                         is being complied with.
12         (2)    A rail safety officer may, for compliance and investigative
13                purposes or in an emergency, enter a place if —
14
        a           (a) the place is a public place and the entry is made when
15                        the place is open to the public; or
16                 (b)     the occupier of the place consents to the entry; or
17                 (c)     the entry to the place is authorised by a warrant under
18                         section 92; or
     Dr
19                 (d)     the place is railway premises and the entry is made when
20                         the place is —
21                            (i) open for carrying on activities by reason of
22                                 which the place is railway premises; or
23                           (ii) otherwise open for entry; or
24                          (iii) not open as mentioned in subparagraph (i) or (ii)
25                                 but the entry is urgently required to investigate
26                                 the circumstances of a notifiable occurrence at
27                                 any time during which railway operations are
28                                 being carried out or are usually carried out.




     DRAFT 2 8 May 2009 1:41                                                         page 75
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 1        Entry to places by rail safety officers
     s. 85



1          (3)   A rail safety officer who enters railway premises under
2                subsection (2)(d) must not unnecessarily impede any activities
3                being conducted at the premises.

4    85.         Limitation on entry powers: places used for residential
5                purposes (Model Bill cl. 77)




                                              ft
6                Despite anything to the contrary in this Part, the powers of a rail
7                safety officer under this Part in relation to entering a place are
8                not exercisable in respect of any place that is used only for
9                residential purposes except —
10                 (a) with the consent of the occupier of the place; or
11                 (b) under the authority conferred by a warrant under
12                       section 92.

13   86.         Notice of entry (Model Bill cl. 78)
14               Before a rail safety officer enters railway premises, not being a
15
        a        public place, under section 84, the rail safety officer must give
16               the occupier of the railway premises reasonable notice of the
17               intention to enter unless —
18                 (a) the giving of the notice would be reasonably likely to
19                       defeat the purpose for which it is intended to enter the
     Dr
20                       premises; or
21                 (b) entry to the premises is made with the consent of the
22                       occupier of the premises; or
23                 (c) entry is required in circumstances where the rail safety
24                       officer reasonably believes there is an immediate risk to
25                       safety because of the carrying out of railway operations
26                       at the premises; or
27                 (d) entry is authorised by a warrant under section 92.




     page 76                                                     DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                     Rail Safety Bill 2009
                                                             Enforcement            Part 5
                                              General enforcement powers       Division 2
                                                                                      s. 87



1                    Division 2 — General enforcement powers
2    87.         General powers after entering a place (Model Bill cl. 79)
3          (1)   A rail safety officer who enters a place under this Part, may do
4                any of the following —
5                  (a) search and inspect any part of the place and any rail




                                              ft
6                        infrastructure, rolling stock or road vehicle or any other
7                        thing at the place;
8                  (b) enter or open, using reasonable force, rail infrastructure,
9                        rolling stock, a road vehicle or other thing at the place to
10                       examine the structure, rolling stock, road vehicle or
11                       other thing;
12                 (c) take measurements, make surveys and take levels and,
13                       for those purposes, dig trenches, break up the soil and
14                       set up any posts, stakes or markers;
15                 (d) test any part of rail infrastructure or rolling stock for the
16
        a                purpose of identifying quality or faults;
17                 (e) inspect, film, photograph, videotape or otherwise record
18                       an image of —
19                          (i) rail infrastructure or rolling stock, or a road
20                               vehicle or other thing, at the place;
     Dr
21                         (ii) a document at the place or in rolling stock or a
22                               road vehicle at the place;
23                  (f) take, or authorise another person to take, for analysis a
24                       thing, or a sample of or from the thing, at the place;
25                 (g) seize anything that the rail safety officer suspects on
26                       reasonable grounds is connected with an offence against
27                       this Act or to secure any such thing against interference;
28                 (h) mark, tag or otherwise identify rolling stock, a road
29                       vehicle or other thing at the place;
30                  (i) take a copy of the whole or any part of a document at
31                       the place or in rolling stock or a road vehicle at the
32                       place;

     DRAFT 2 8 May 2009 1:41                                                      page 77
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 2        General enforcement powers
     s. 88



1                   (j)    take all necessary steps to allow a power under
2                          paragraphs (a) to (i) to be exercised.
3          (2)   A film, photograph, videotape or image taken under
4                subsection (1)(e) of rail infrastructure, or of any part of rail
5                infrastructure, is not inadmissible as evidence by reason only of
6                the fact that it includes the likeness of one or more persons if the




                                              ft
7                capturing of that likeness does not appear to have been the main
8                reason for the taking of the film, photograph, videotape or
9                image.

10   88.         Use of assistants and equipment (Model Bill cl. 80)
11         (1)   A rail safety officer may exercise powers under this Part with
12               the aid of such assistants and equipment as the officer considers
13               reasonably necessary in the circumstances.
14         (2)   Powers that may be exercised by a rail safety officer under this
15               Part may be exercised by an assistant authorised and supervised
16
        a        by the officer, but only if the officer considers that it is
17               reasonably necessary in the circumstances that the powers be
18               exercised by an assistant.

19   89.         Use of electronic equipment (Model Bill cl. 81)
     Dr
20         (1)   Without limiting section 87, if —
21                (a) a thing found in or on rolling stock or a road vehicle, or
22                     at a place, is, or includes, a disk, tape or other device for
23                     the storage of information; and
24                (b) the equipment in or on the rolling stock or road vehicle,
25                     or at the place, may be used with the disk, tape or other
26                     device,
27               the rail safety officer may operate the equipment to access the
28               information.
29         (2)   A rail safety officer must not operate or seize equipment for the
30               purpose mentioned in this section unless the officer believes on


     page 78                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                     Rail Safety Bill 2009
                                                             Enforcement            Part 5
                                              General enforcement powers       Division 2
                                                                                      s. 90



1                reasonable grounds that the operation or seizure of the
2                equipment can be carried out without damage to the equipment.

3    90.         Use of equipment to examine or process things (Model Bill
4                cl. 82)
5          (1)   Without limiting section 88, a rail safety officer exercising a




                                              ft
6                power under this Part may bring to, onto, or into, rolling stock, a
7                road vehicle or a place any equipment reasonably necessary for
8                the examination or processing of things found at, on or in the
9                rolling stock, road vehicle or place in order to determine
10               whether they are things that may be seized.
11         (2)   The rail safety officer may operate equipment already in or on
12               the rolling stock or road vehicle, or at the place, to carry out the
13               examination or processing of a thing found in or on the rolling
14               stock or road vehicle, or at the place in order to determine
15               whether it is a thing that may be seized, if the officer believes
                 on reasonable grounds that —
16
        a
17                 (a) the equipment is suitable for the examination or the
18                        processing; and
19                 (b) the examination or processing can be carried out without
20                        damage to the equipment.
     Dr
21   91.         Securing a site (Model Bill cl. 83)
22         (1)   For the purpose of protecting evidence that might be relevant
23               for compliance or investigative purposes, a rail safety officer
24               may secure the perimeter of any site at a place by whatever
25               means the rail safety officer considers appropriate.
26         (2)   A person must not, without the permission of a rail safety
27               officer, enter or remain at a site the perimeter of which is
28               secured under this section.
29               Penalty: a fine of $22 000.
30         (3)   Subsection (2) does not apply if the person enters the site or
31               remains at the site —

     DRAFT 2 8 May 2009 1:41                                                      page 79
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 3        Search warrants
     s. 92



1                  (a)     to ensure the safety of persons; or
2                  (b)     to remove deceased persons or animals from the site; or
3                  (c)     to move a road vehicle, or the wreckage of a road
4                          vehicle, to a safe place; or
5                  (d)     to protect the environment from significant damage or
6                          pollution.




                                              ft
7          (4)   A rail safety officer must not unreasonably withhold a
8                permission referred to in subsection (2).

9                             Division 3 — Search warrants
10   92.         Search warrant (based on Model Bill cl. 84)
11         (1)   A rail safety officer may apply to a justice for the issue of a
12               search warrant in relation to particular railway premises or
13               residential premises if the rail safety officer believes on
14               reasonable grounds that there is, or may be within the next
15
        a        72 hours, in, or on, railway premises or residential premises a
16               thing or things of a kind that may be evidence of the
17               commission of an offence against a rail safety law.
18         (2)   An application for a search warrant must —
     Dr
19                (a) be in writing; and
20                (b) set out the grounds for seeking the warrant; and
21                (c) the offence suspected; and
22                (d) the railway premises or residential premises to be
23                      searched; and
24                (e) a description of the thing for which the search is to be
25                      made.
26         (3)   A justice to whom an application is made under this section is to
27               refuse it if —
28                 (a) the application does not comply with the requirements
29                        of this Act; or


     page 80                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Enforcement            Part 5
                                                     Search warrants      Division 3
                                                                                 s. 93



1                  (b)     when required to do so by the justice, the rail safety
2                          officer does not give to the justice more information
3                          about the application.
4          (4)   The information in an application or given to a justice under this
5                section must be verified before the justice on oath or affirmation
6                or by affidavit, and the justice may for that purpose administer




                                              ft
7                an oath or affirmation or take an affidavit.

8    93.         Issue of search warrant
9          (1)   If a justice is satisfied that there are reasonable grounds for
10               suspecting that there is, or may be within the next 72 hours, in,
11               or on, the railway premises or residential premises evidence of
12               the commission of an offence against a rail safety law, the
13               justice may issue a search warrant authorising a rail safety
14               officer named in the warrant and any assistants the rail safety
15               officer considers necessary —
16
        a          (a) to enter the railway premises or residential premises
17                        named or described in the warrant; and
18                 (b) to search for and seize any thing named or described in
19                        the warrant.
20         (2)   In addition to any other requirement, a search warrant issued
     Dr
21               under this section must state —
22                 (a) the offence suspected; and
23                 (b) the railway premises or residential premises to be
24                       searched; and
25                 (c) a description of the thing for which the search is to be
26                       made; and
27                 (d) any conditions to which the warrant is subject; and
28                 (e) whether entry is authorised to be made at any time or
29                       during stated hours; and
30                  (f) a day, not later than 7 days after the issue of the warrant,
31                       on which the warrant ceases to have effect.


     DRAFT 2 8 May 2009 1:41                                                  page 81
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 3        Search warrants
     s. 94



1          (3)   A justice who issues a warrant is to cause a record to be made of
2                particulars of the grounds that the justice has relied on to justify
3                the issue of the warrant.

4    94.         Execution of warrant
5          (1)   If asked to do so by an occupier, or a person in charge, of




                                              ft
6                premises, the person executing a warrant at those premises is to
7                produce it for inspection.
8          (2)   A warrant ceases to have effect —
9                 (a) on the day stated in the warrant as the day on which it
10                      ceases to have effect; or
11                (b) if it is withdrawn by the justice who issued it; or
12                (c) when it is executed,
13               whichever occurs first.

14   95.
        a        Seizure of things not mentioned in the warrant (Model Bill
15               cl. 85)
16               A search warrant authorises the rail safety officer executing the
17               warrant, in addition to the seizure of any thing of the kind
18               described in the warrant, to seize any thing which is not of the
     Dr
19               kind described in the warrant if —
20                 (a) the rail safety officer believes, on reasonable grounds,
21                      that the thing —
22                         (i) is of a kind which could have been included in a
23                              warrant issued under this Division; or
24                        (ii) will afford evidence about the commission of an
25                              offence against a rail safety law;
26                      and
27                 (b) in the case of seizure, the rail safety officer believes, on
28                      reasonable grounds, that it is necessary to seize that
29                      thing in order to prevent its concealment, loss or



     page 82                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                          Enforcement             Part 5
                                              Powers to support seizure      Division 4
                                                                                    s. 96



1                          destruction or its use in the commission of an offence
2                          against a rail safety law.

3                      Division 4 — Powers to support seizure
4    96.         Directions relating to seizure (Model Bill cl. 86)
           (1)   In this section —




                                              ft
5

6                in control, in relation to a thing, means having, or reasonably
7                appearing to a rail safety officer as having, authority to exercise
8                control over the thing.
9          (2)   To enable a thing to be seized under this Part, a rail safety
10               officer may direct the person in control of it —
11                 (a) to take it to a specified place within a specified time;
12                       and
13                 (b) if necessary, to remain in control of it at the specified
14                       place for a period specified in the direction.
        a
15         (3)   A direction under subsection (2) —
16                (a) must be given by signed notice in writing given to the
17                      person; or
18                (b) if for any reason it is not practicable to give a signed
     Dr
19                      notice in writing to the person, may be given orally and
20                      confirmed by signed notice in writing given to the
21                      person as soon as is practicable.
22         (4)   A further direction may be made under this section about the
23               thing if it is necessary and reasonable to make the further
24               direction.
25         (5)   A person given a direction under subsection (2) or (4) must
26               comply with that direction unless the person has a reasonable
27               excuse.
28               Penalty: a fine of $11 000.
29         (6)   Without limiting what may otherwise be a reasonable excuse
30               under subsection (5), it is a reasonable excuse for a person in

     DRAFT 2 8 May 2009 1:41                                                    page 83
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 4        Powers to support seizure
     s. 97



1                control of a thing not to comply with a direction under
2                subsection (2) or (4) if, in all the circumstances, the direction
3                was unreasonable.

4    97.         Rail safety officer may direct a thing’s return (Model Bill
5                cl. 87)




                                              ft
6          (1)   If a rail safety officer has directed a person to take a thing to a
7                specified place within a specified time under section 96(2), a
8                rail safety officer may direct the person to return the thing to the
9                place from which it was taken.
10         (2)   A person given a direction under subsection (1) must comply
11               with that direction unless the person has a reasonable excuse.
12               Penalty: in the case of an individual, a fine of $11 000;
13               Penalty: in the case of a body corporate, a fine of $55 000.

14   98.         Receipt for seized things (Model Bill cl. 88)
15
        a  (1)   After a rail safety officer seizes a thing under this Part, the
16               officer must give a receipt for it to the person from whom the
17               thing was seized or the owner of the thing.
18         (2)   Despite subsection (1), if for any reason it is not practicable to
     Dr
19               comply with that subsection, the officer must leave the receipt at
20               the place of seizure in a conspicuous position and in a
21               reasonably secure way.
22         (3)   The receipt must describe generally the thing seized and its
23               condition.
24         (4)   This section does not apply if it would be impracticable or
25               unreasonable to expect the officer to account for the thing, given
26               its condition, nature and value.




     page 84                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                          Enforcement             Part 5
                                              Powers to support seizure      Division 4
                                                                                    s. 99



1    99.         Access to seized thing (Model Bill cl. 89)
2          (1)   Until a seized thing is forfeited or returned, a rail safety officer
3                must allow its owner to inspect it and, if it is a document, to
4                copy it.
5          (2)   Subsection (1) does not apply if it is impracticable or it would
6                be unreasonable to allow the inspection or copying.




                                              ft
7    100.        Embargo notices (Model Bill cl. 90)
8          (1)   This section applies if —
9                 (a) a rail safety officer is authorised to seize any record,
10                       device or other thing under this Part; and
11                (b) the record, device or other thing cannot, or cannot
12                       readily, be physically seized and removed.
13         (2)   A rail safety officer may issue an embargo notice under this
14               section.
        a
15         (3)   An embargo notice is a notice forbidding the use, movement,
16               sale, leasing, transfer, deletion of information from or other
17               dealing with the record, device or other thing, or any part of it,
18               without the written consent of a rail safety officer or the Rail
                 Safety Regulator.
     Dr
19

20         (4)   The embargo notice must —
21                (a) contain the particulars required by the regulations; and
22                (b) list the activities that it forbids; and
23                (c) set out a copy of subsection (9).
24         (5)   On issuing an embargo notice, a rail safety officer must —
25                (a) cause a copy of the notice to be served on the owner of
26                      the record, device or other thing; or
27                (b) if that person cannot be located after all reasonable steps
28                      have been taken to do so, affix a copy of the notice to
29                      the record, device or other thing in a prominent position.


     DRAFT 2 8 May 2009 1:41                                                    page 85
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 5        Forfeiture
     s. 101



1        (6)     A person must not knowingly do anything that is forbidden by
2                an embargo notice.
3                Penalty: a fine of $82 500.
4        (7)     A person must not instruct or request another person to do
5                anything that the first mentioned person knows is forbidden by
6                an embargo notice.




                                              ft
7                Penalty: a fine of $82 500.
8        (8)     It is a defence to a prosecution for an offence against
9                subsection (6) to establish that the person charged —
10                  (a) moved the record, device or other thing, or part of it, for
11                        the purpose of protecting or preserving it; and
12                 (b) notified the rail safety officer who issued the embargo
13                        notice of the move, and of the new location of the
14                        record, device or other thing or part of it, within
15                        48 hours after the move.
16
        a(9)     A person on whom an embargo notice has been served must
17               take reasonable steps to prevent another person from doing
18               anything forbidden by the embargo notice.
19               Penalty: a fine of $82 500.
     Dr
20     (10)      Despite anything to the contrary in any other Act or at law, a
21               sale, lease, transfer or other dealing with a record, device or
22               other thing, or part of it, in contravention of this section is void.

23                                 Division 5 — Forfeiture
24   101.        Return of seized things (Model Bill cl. 91)
25       (1)     As soon as possible after a rail safety officer seizes any thing,
26               including a document, under this Part, the rail safety officer
27               must return the thing to the owner unless —
28                 (a) the rail safety officer considers it necessary to retain the
29                       thing because it may afford evidence in proceedings,



     page 86                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                        Enforcement             Part 5
                                                           Forfeiture      Division 5
                                                                                s. 102



1                          that have been or may be commenced, for an offence
2                          against this Act; or
3                  (b)     the thing is forfeited to the Crown under section 102; or
4                  (c)     the rail safety officer is otherwise authorised by law or
5                          an order of a court to retain, destroy or dispose of the
6                          thing.




                                              ft
7        (2)     The thing may be returned either unconditionally or on such
8                terms and conditions as the rail safety officer considers
9                appropriate to eliminate or reduce any risks to safety.
10       (3)     If the rail safety officer imposes terms or conditions on the
11               return of a thing, the owner must comply with each of those
12               terms and conditions.
13               Penalty: a fine of $11 000.

14   102.        Forfeiture (Model Bill cl. 92)
15
        a(1)     In this section —
16               owner, in relation to a sample or a thing taken for analysis,
17               includes the person in charge of the thing or place from which
18               the sample or thing was taken.
         (2)     A sample or thing taken for analysis or a thing seized under this
     Dr
19
20               Part is forfeited to the Crown if the rail safety officer who took,
21               or arranged the taking of, the sample or thing or who seized the
22               thing —
23                 (a) after making reasonable efforts, cannot return it to its
24                        owner; or
25                 (b) after making reasonable inquiries, cannot find its owner;
26                        or
27                 (c) considers it necessary to retain the sample or thing to
28                        prevent the commission of an offence against this Act.
29       (3)     For purposes of subsection (2), the officer is not required to —



     DRAFT 2 8 May 2009 1:41                                                 page 87
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 5        Forfeiture
     s. 103



1                  (a)     make efforts if it would be unreasonable to make efforts
2                          to return the sample or thing to its owner; or
3                  (b)     make inquiries if it would be unreasonable to make
4                          inquiries to find the owner.
5        (4)     In deciding whether —
6                  (a) it is reasonable to make efforts or inquiries; and




                                              ft
7                  (b) if efforts or inquiries are made, what efforts or inquiries,
8                        including the period over which they are made, are
9                        reasonable,
10               regard must be had to the sample’s or thing’s condition, nature
11               and value.

12   103.        Dealing with forfeited sample or thing (Model Bill cl. 94)
13       (1)     On forfeiture of a sample or thing to the Crown, the sample or
14               thing becomes the Crown’s property and may be dealt with by
15
        a        the Rail Safety Regulator in any way the Rail Safety Regulator
16               considers is appropriate.
17       (2)     Without limiting subsection (1), the Rail Safety Regulator may
18               destroy or dispose of the sample or thing.
     Dr
19       (3)     If a thing is forfeited to the Crown under section 102(2)(c), the
20               rail safety officer must notify the owner in writing accordingly,
21               setting out how the owner may seek review under Part 7 of the
22               decision to forfeit the thing, unless the rail safety officer cannot
23               find the owner despite making reasonable enquiries.

24   104.        Forfeiture on conviction (local based on Gene Technology
25               Act 2006 s. 148)
26       (1)     If a court finds a person guilty of an offence against this Act, the
27               court may order forfeiture to the Crown of any thing used or
28               otherwise involved in the commission of the offence.
29       (2)     A thing ordered by a court to be forfeited under this section
30               becomes the property of the Crown and may be sold or

     page 88                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Enforcement            Part 5
                                                          Directions      Division 6
                                                                               s. 105



1                otherwise dealt with in accordance with the directions of the
2                Rail Safety Regulator.
3        (3)     Until the Rail Safety Regulator gives a direction, the thing must
4                be kept in such custody as the Regulator directs.

5                                  Division 6 — Directions




                                              ft
6    105.        Rail safety officers may direct certain persons to give
7                assistance (Model Bill cl. 95)
8        (1)     In this section —
9                reasonable assistance includes the following —
10                 (a) assistance to enable the rail safety officer to find and
11                        gain access to material and information stored
12                        electronically;
13                 (b) unloading rolling stock;
14
        a          (c) running the engine of a locomotive;
15                 (d) driving a train;
16                 (e) giving the rail safety officer assistance to enter any rail
17                        infrastructure or any part of rail infrastructure or open
18                        rolling stock or any part of rolling stock.
     Dr
19       (2)     A rail safety officer may direct a rail transport operator or a rail
20               safety worker to give the rail safety officer reasonable assistance
21               to enable the officer to exercise a power under this Part.
22       (3)     When giving a direction to a person under subsection (2), the
23               rail safety officer must warn the person that it is an offence to
24               fail to comply with the direction unless the person has a
25               reasonable excuse.
26       (4)     A person given a direction under subsection (2) must comply
27               with the direction unless the person has a reasonable excuse.
28               Penalty: a fine of $55 000.



     DRAFT 2 8 May 2009 1:41                                                 page 89
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 6        Directions
     s. 106



1    106.        Power to direct name and address be given (Model Bill
2                cl. 96)
3        (1)     A rail safety officer may direct a person to state the person’s
4                name and residential or business address if the officer —
5                  (a) finds the person committing an offence against a rail
6                        safety law; or




                                              ft
7                  (b) finds the person in circumstances that lead, or has
8                        information that leads, the officer reasonably to suspect
9                        the person has committed an offence against a rail safety
10                       law; or
11                 (c) finds the person at railway premises and —
12                          (i) reasonably believes the person is carrying out
13                               railway operations for a rail transport operator;
14                               and
15                         (ii) reasonably considers that it is necessary for the
                                 purposes of this Act to know the person’s name
16
17
        a                        and residential or business address.
18       (2)     When giving a direction under subsection (1), the officer must
19               warn the person it is an offence to fail to state the person’s name
20               or address unless the person has a reasonable excuse.
     Dr
21       (3)     The officer may also direct the person to give evidence of the
22               correctness of the stated name or required address if the officer
23               reasonably suspects the stated name or address is false.

24   107.        Failure to give name or address (Model Bill cl. 97)
25               A person given a direction under section 106(1) or (3) must
26               comply with the direction, unless the person has a reasonable
27               excuse.
28               Penalty: a fine of $1 650.




     page 90                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                       Enforcement            Part 5
                                                Improvement notices      Division 7
                                                                              s. 108



1    108.        Power to direct production of documents (Model Bill cl. 98)
2        (1)     A rail safety officer may direct a person to make available for
3                inspection by the officer, or produce to the officer for
4                inspection, at a specified time and place —
5                  (a) a document that is required to be kept by the person
6                        under a rail safety law; or




                                              ft
7                  (b) a document that is prepared by the person under a rail
8                        safety law for the management of rail infrastructure or
9                        the operation of rolling stock that the officer reasonably
10                       believes is necessary for the officer to consider to
11                       understand or verify a document that is required to be
12                       kept under a rail safety law; or
13                 (c)     a document held by, or under the control of, the person
14                         relating to the carrying out of railway operations.
15       (2)     When giving a direction under subsection (1), the rail safety
                 officer must warn the person it is an offence to fail to comply
16
17
        a        with the direction, unless the person has a reasonable excuse.
18       (3)     The rail safety officer may keep the document to copy it but
19               must return the document to the person after copying it.
     Dr
20   109.        Failure to produce document (Model Bill cl. 99)
21               A person given a direction to make available, or produce, for
22               inspection a document under section 108 must comply with the
23               direction, unless the person has a reasonable excuse.
24               Penalty: in the case of an individual, a fine of $25 000;
25               Penalty: in the case of a body corporate, a fine of $100 000.

26                         Division 7 — Improvement notices
27   110.        Improvement notices (Model Bill cl. 100)
28       (1)     A rail safety officer may serve an improvement notice on a
29               person if the officer believes on reasonable grounds that the
30               person —

     DRAFT 2 8 May 2009 1:41                                                page 91
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 7        Improvement notices
     s. 110



1                  (a)     is contravening a provision of a rail safety law; or
2                  (b)     has contravened a provision of a rail safety law and it is
3                          likely that the contravention will continue or be
4                          repeated; or
5                  (c)     is carrying out or has carried out railway operations that
6                          threaten safety.




                                              ft
7        (2)     The rail safety officer may serve on a person an improvement
8                notice requiring the person, within the period specified in the
9                notice —
10                 (a) to undertake remedial rail safety work or do any other
11                       thing to remedy the contravention or likely
12                       contravention, or the matters or activities occasioning
13                       the contravention or likely contravention; or
14                 (b)     to carry out railway operations so that safety is not
15                         threatened or likely to be threatened.
16
        a(3)     The period within which a person is required by the
17               improvement notice to comply with the notice must be at least
18               7 days after service of the notice.
19       (4)     An improvement notice must —
20                (a) state the reasons for the service of the notice; and
     Dr
21                (b) in the case of an improvement notice served in respect
22                     of a contravention or likely contravention of a rail safety
23                     law, specify the provision of the rail safety law in
24                     respect of which that belief is held; and
25                (c) in the case of an improvement notice served on a person
26                     who is carrying out or has carried out railway operations
27                     that threaten safety, specify the operations in respect of
28                     which that belief is held; and
29                (d) include information about the right to a review under
30                     Part 7 of the decision to serve the notice; and
31                (e) set out the penalty for contravening the notice; and



     page 92                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                       Enforcement            Part 5
                                                Improvement notices      Division 7
                                                                              s. 110



1                   (f)    include a statement of the effect of section 113
2                          (proceedings for offences not affected by improvement
3                          notices); and
4                  (g)     state that it is served under this section.
5        (5)     An improvement notice served on a person on a ground stated in
6                subsection (1)(a) or (b) —




                                              ft
7                  (a) may specify a method by which the alleged
8                        contravention or likely contravention, or the matters or
9                        activities occasioning the alleged contravention or likely
10                       contravention are to be remedied; and
11                 (b) may offer the person on whom the notice has been
12                       served a choice of ways by which an alleged
13                       contravention or likely contravention, or the matters or
14                       activities occasioning the alleged contravention or likely
15                       contravention may be remedied; and
16                 (c) may specify that a person provide the Rail Safety
17
        a                Regulator with a programme of rail safety work that the
18                       person proposes to carry out to remedy the alleged
19                       contravention or likely contravention, or the matters or
20                       activities occasioning the alleged contravention or likely
21                       contravention.
     Dr
22       (6)     An improvement notice served on a person on the ground stated
23               in subsection (1)(c) —
24                 (a) may specify a method by which railway operations may
25                       be carried out so that safety is not threatened or likely to
26                       be threatened; and
27                 (b) may offer the person on whom the notice has been
28                       served a choice of ways by which railway operations
29                       may be carried out so that safety is not threatened or
30                       likely to be threatened; and
31                 (c) may specify that the person provide the Rail Safety
32                       Regulator with a programme of railway operations that



     DRAFT 2 8 May 2009 1:41                                                 page 93
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 7        Improvement notices
     s. 111



1                          the person proposes to carry out to remedy the threat or
2                          likely threat to the safety.
3        (7)     A programme referred to in subsection (5)(c) or (6)(c) may
4                include a timetable for the completion of the programme of rail
5                safety work.




                                              ft
6    111.        Contravention of improvement notice (Model Bill cl. 101)
7        (1)     A person on whom an improvement notice has been served
8                must comply with the notice unless the person has a reasonable
9                excuse.
10               Penalty:
11                   (a) for an individual —
12                           (i) for a first offence, a fine of $27 500;
13                          (ii) for a second or subsequent offence, a fine of
14                               $41 250;
15
        a            (b) for a body corporate —
16                           (i) for a first offence, a fine of $55 000;
17                          (ii) for a second or subsequent offence, a fine of
18                               $82 500.
     Dr
19       (2)     In proceedings against a person for an offence of engaging in
20               conduct that results in a contravention of a requirement of an
21               improvement notice served on a ground stated in
22               section 110(1)(a) or (b), it is a defence if the person charged
23               establishes that —
24                 (a) the alleged contravention or likely contravention; or
25                 (b) the matters or activities occasioning the alleged
26                       contravention or likely contravention,
27               were remedied within the period specified in the notice, though
28               by a method different from that specified in the improvement
29               notice.



     page 94                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                       Enforcement            Part 5
                                                Improvement notices      Division 7
                                                                              s. 112



1        (3)     In proceedings for an offence against a person of engaging in
2                conduct that results in a contravention of a requirement of an
3                improvement notice on the ground stated in section 110(1)(c), it
4                is a defence if the person charged establishes that the threat to
5                safety was removed within the period specified in the notice,
6                though by a method different from that specified in the
7                improvement notice.




                                              ft
8    112.        Withdrawal or amendment of improvement notices (Model
9                Bill cl. 102)
10       (1)     An improvement notice served by a rail safety officer —
11                (a) may be withdrawn by notice served by a rail safety
12                     officer on the person affected by the notice; or
13                (b) may be amended by a rail safety officer by notice served
14                     on the person affected by the notice.
15       (2)     An amendment of an improvement notice is effected by service
16
        a        on the person affected of a notice stating the terms of the
17               amendment.
18       (3)     An amendment of an improvement notice served on a person is
19               ineffective if it purports to deal with a contravention of a
20               different provision of a rail safety law from that dealt with in the
     Dr
21               improvement notice as first served.
22       (4)     A notice of an amendment of an improvement notice must —
23                (a) state the reasons for the amendment; and
24                (b) include information about obtaining a review under
25                      Part 7 of the decision to amend the notice; and
26                (c) state that it is served under this section.

27   113.        Proceedings for offences not affected by improvement
28               notices (Model Bill cl. 103)
29               The service, amendment or withdrawal of an improvement
30               notice does not affect any proceedings for an offence against a


     DRAFT 2 8 May 2009 1:41                                                 page 95
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 8        Prohibition notices
     s. 114



1                rail safety law in connection with any matter in respect of which
2                the improvement notice was served.

3    114.        Rail Safety Regulator to arrange for rail safety work
4                required by improvement notice to be carried out (Model
5                Bill cl. 104)




                                              ft
6        (1)     If a person fails to comply with an improvement notice served
7                on the person that requires the person to carry out rail safety
8                work to remedy —
9                  (a) the alleged contravention or likely contravention; or
10                 (b) the matters or activities occasioning the alleged
11                        contravention or likely contravention,
12               the Rail Safety Regulator may arrange for that rail safety work
13               to be carried out.
14       (2)     The Rail Safety Regulator may recover from the person served
15
        a        with an improvement notice referred to in subsection (1) the
16               reasonable costs and expenses incurred by the Rail Safety
17               Regulator for rail safety work carried out.

18                          Division 8 — Prohibition notices
     Dr
19   115.        Prohibition notice (Model Bill cl. 105)
20       (1)     This section applies if an activity —
21                (a) is occurring in relation to railway operations or railway
22                       premises that involves or will involve an immediate risk
23                       to safety; or
24                (b) may occur in relation to railway operations or railway
25                       premises that, if it occurs, will involve an immediate
26                       risk to safety; or
27                (c) may occur at, on, or in the immediate vicinity of, rail
28                       infrastructure or rolling stock that, if it occurs, will
29                       involve an immediate risk to safety.



     page 96                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                         Enforcement              Part 5
                                                    Prohibition notices      Division 8
                                                                                  s. 115



1        (2)     If a rail safety officer believes on reasonable grounds that an
2                activity referred to in subsection (1) is occurring or may occur,
3                the rail safety officer may serve on a person who has or appears
4                to have control over the activity a prohibition notice prohibiting
5                the carrying on of the activity, or the carrying on of the activity
6                in a specified way, until the rail safety officer has certified in
7                writing that the matters that give or will give rise to the risk




                                              ft
8                have been remedied.
9        (3)     A prohibition notice has effect upon being served or, if the
10               notice specifies a later date, on that later date.
11       (4)     A prohibition notice must —
12                (a) state the basis for the rail safety officer’s belief on which
13                      the service of the notice is based; and
14                 (b)     specify the activity which the rail safety officer believes
15                         involves or will involve the risk and the matters which
16                         give or will give rise to the risk; and
17
        a          (c)     if the rail safety officer believes that the activity
18                         involves a contravention or likely contravention of a
19                         provision of a rail safety law, specify that provision and
20                         state the basis for that belief; and
                   (d)     include information about the right to a review under
     Dr
21
22                         Part 7 of the decision to serve the notice; and
23                 (e)     set out the penalty for contravening the notice; and
24                  (f)    include a statement of the effect of section 119; and
25                 (g)     state that it is served under this section.
26       (5)     A prohibition notice may include directions on the measures to
27               be taken to minimise or eliminate the risk, activities or matters
28               to which the notice relates, or the contravention or likely
29               contravention mentioned in subsection (4)(c).
30       (6)     A direction in a prohibition notice may —
31                (a) require that measures be taken in accordance with a
32                      compliance code; or

     DRAFT 2 8 May 2009 1:41                                                   page 97
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 8        Prohibition notices
     s. 116



1                  (b)     offer the person on whom the notice has been served a
2                          choice of ways to remedy the risk, activities or matters
3                          to which the notice relates, or the contravention or likely
4                          contravention mentioned in subsection (4)(c).
5        (7)     A prohibition notice that prohibits the carrying on of an activity
6                in a specified way may do so by specifying one or more of the




                                              ft
7                following —
8                  (a) a place, or part of a place, at which the activity is not to
9                        be carried out;
10                 (b) any thing that is not to be used in connection with the
11                       activity;
12                 (c) any procedure that is not to be followed in connection
13                       with the activity.

14   116.        Contravention of prohibition notice (Model Bill cl. 106)
15               A person on whom a prohibition notice is served must comply
16
        a        with the notice unless the person has a reasonable excuse.
17               Penalty:
18                    (a) for an employee of a rail transport operator —
19                            (i) for a first offence, a fine of $3 300;
     Dr
20                           (ii) for a second or subsequent offence, a fine of
21                                 $4 950;
22                    (b) for any other individual —
23                            (i) for a first offence, a fine of $55 000;
24                           (ii) for a second or subsequent offence, a fine of
25                                 $82 500;
26                    (c) for a body corporate —
27                            (i) for a first offence, a fine of $110 000;
28                           (ii) for a second or subsequent offence, a fine of
29                                 $165 000.



     page 98                                                   DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                        Enforcement              Part 5
                                                   Prohibition notices      Division 8
                                                                                 s. 117



1    117.        Oral direction before prohibition notice served (Model Bill
2                cl. 107)
3        (1)     If a rail safety officer —
4                  (a) believes on reasonable grounds that an activity referred
5                          to in section 115(1) is occurring or may occur; and
6                  (b) that it is not possible or reasonable to serve a prohibition




                                              ft
7                          notice under that section immediately,
8                the officer may direct a person who has or appears to have
9                control over the activity to do or not to do a stated act by telling
10               the person —
11                 (c) to do or not to do the stated act; and
12                 (d) the reason for the officer giving the direction.
13       (2)     A person to whom a direction is given under subsection (1)
14               must comply with it, unless the person has a reasonable excuse.
15
        a        Penalty: in the case of an individual, a fine of $82 500;
16               Penalty: in the case of a body corporate, a fine of $165 000.
17       (3)     It is a reasonable excuse if the rail safety officer did not tell the
18               person that the person commits an offence if the person does not
19               comply with the direction.
     Dr
20       (4)     If a rail safety officer gives a direction under subsection (1) in
21               respect of an activity but does not, within 5 days of giving the
22               direction, serve a prohibition notice in respect of the activity,
23               the direction ceases to have effect.

24   118.        Withdrawal or amendment of prohibition notice (Model
25               Bill cl. 108)
26       (1)     A prohibition notice served by a rail safety officer —
27                (a) may be withdrawn by notice served by a rail safety
28                      officer on the person affected by the notice; or
29                (b) may be amended by notice served by a rail safety officer
30                      on the person affected by the notice.

     DRAFT 2 8 May 2009 1:41                                                  page 99
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 9        Miscellaneous
     s. 119



1        (2)     An amendment of a prohibition notice is effected by service, on
2                the person affected, of a notice stating the terms of the
3                amendment.
4        (3)     An amendment of a prohibition notice is ineffective if it
5                purports to deal with a contravention of a different provision of
6                a rail safety law from that dealt with in the prohibition notice as




                                              ft
7                first served.
8        (4)     A notice of an amendment of a prohibition notice must —
9                 (a) state the reasons for the amendment; and
10                (b) include information about obtaining a review under
11                      Part 7 of the decision to amend the notice; and
12                (c) state that it is served under this section.

13   119.        Proceedings for offences not affected by prohibition notices
14               (Model Bill cl. 109)
15
        a        The service, amendment or withdrawal of a prohibition notice
16               does not affect any proceedings for an offence against a rail
17               safety law in connection with any matter in respect of which the
18               prohibition notice was served.

                                Division 9 — Miscellaneous
     Dr
19


20   120.        Directions may be given under more than one provision
21               (Model Bill cl. 110)
22       (1)     A rail safety officer may, on the same occasion, give directions
23               under one or more provisions of this Part.
24       (2)     Without limiting subsection (1), a rail safety officer may, in the
25               course of exercising powers under a provision of this Part, give
26               either or both of the following —
27                 (a) further directions under the provision;
28                 (b) directions under one or more other provisions of this
29                       Part.


     page 100                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                        Enforcement             Part 5
                                                       Miscellaneous       Division 9
                                                                                s. 121



1    121.        Temporary closing of railway crossings, bridges etc. (Model
2                Bill cl. 111)
3        (1)     In this section —
4                authorised person means —
5                  (a) a person who holds a specific authority from the Rail
6                         Safety Regulator for the purposes of this section; or




                                              ft
7                  (b) a senior manager within the staff of the rail
8                         infrastructure manager who holds a specific authority
9                         issued by the rail infrastructure manager in accordance
10                        with relevant guidelines issued by the Rail Safety
11                        Regulator.
12               railway crossing means a level crossing, bridge or another
13               structure used to cross over or under a railway.
14       (2)     An authorised person may close temporarily or regulate a
15               railway crossing, bridge or other structure for crossing or
16
        a        passing over or under a railway if satisfied it is necessary
17               because of an immediate threat to safety.
18       (3)     If an authorised person decides to close temporarily or regulate
19               a railway crossing, bridge or other structure the authorised
20               person must, as soon as practicable after its closure or
     Dr
21               regulation, notify the person or authority responsible for the
22               railway crossing, bridge or other structure of its closure or
23               regulation.

24   122.        Restoring rail infrastructure and rolling stock etc. to
25               original condition after action taken (Model Bill cl. 112)
26               If —
27                 (a)     a rail safety officer, or a person assisting the officer,
28                         takes any action in the exercise or purported exercise of
29                         any power under this Part in relation to rail
30                         infrastructure or rolling stock, railway premises or a
31                         road vehicle; and


     DRAFT 2 8 May 2009 1:41                                                page 101
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 5            Enforcement
     Division 9        Miscellaneous
     s. 123



1                  (b)     damage was caused by the unreasonable exercise of the
2                          power or by the use of force that was not authorised
3                          under this Part,
4                the Rail Safety Regulator must take reasonable steps to return
5                the rail infrastructure or rolling stock, railway premises or road
6                vehicle to the condition it or they were in immediately before




                                              ft
7                the action was taken.

8    123.        Use of force (Model Bill cl. 113)
9                A power conferred by this Part to enter any railway premises, or
10               to do anything in or on any railway premises, may not be
11               exercised unless the rail safety officer or a person assisting an
12               officer proposing to exercise the power, uses no more force than
13               is reasonably necessary to effect the entry or to do the thing for
14               which the entry is effected.

15   124.        Power to use force against persons to be exercised only by
16
        a        police officers (Model Bill cl. 114)
17               A provision in this Part that authorises a rail safety officer, or a
18               person assisting an officer, to use reasonable force does not
19               authorise a rail safety officer, or a person, who is not a police
                 officer to use force against another person.
     Dr
20


21   125.        Protection from incrimination (Model Bill cl. 115)
22       (1)     An individual is not excused from complying with a direction
23               under Division 4 or 6 —
24                 (a) to give his or her name and residential or business
25                      address; or
26                 (b) to produce a document; or
27                 (c) to give or provide information,
28               on the ground that compliance with the direction may result in
29               information being provided that might incriminate the person or
30               may make the person liable to a penalty.


     page 102                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                      Enforcement             Part 5
                                                     Miscellaneous       Division 9
                                                                              s. 125



1        (2)     Any information obtained or document produced as a direct
2                result of the compliance with the direction is not admissible in
3                evidence against the person in criminal proceedings, other than
4                proceedings in respect of false information, or proceedings that
5                may make the person liable to a penalty —
6                  (a) if the person claims before giving the information or
                         producing the document that it might incriminate the




                                              ft
7
8                        person or make the person liable to a penalty; or
9                  (b) if the person’s entitlement to make a claim of the kind
10                       referred to in paragraph (a) was not drawn to the
11                       person’s attention before the information was given or
12                       the document was produced.
13       (3)     Except as provided in subsection (2), any information given, or
14               document produced, by an individual as a direct result of the
15               compliance with the direction may be used in evidence in any
16               criminal or civil proceedings against the person.
        a
     Dr


     DRAFT 2 8 May 2009 1:41                                              page 103
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 1        Independent investigators
     s. 126



1                               Part 6 — Investigations
2                      Division 1 — Independent investigators
3    126.        Appointment of independent investigator (based on RSA 41)
4        (1)     The CEO may, on the CEO’s own initiative, and must, at the




                                              ft
5                direction of the Minister, appoint an independent investigator to
6                investigate and report on a rail safety matter in accordance with
7                this Part if the matter causes or results in —
8                  (a) a person’s death; or
9                  (b) serious personal injury; or
10                 (c) major property damage.
11       (2)     The CEO or the Rail Safety Regulator may, on the CEO’s or the
12               Rail Safety Regulator’s own initiative, appoint an independent
13               investigator to investigate and report on any other rail safety
                 matter in accordance with this Part.
14
        a
15       (3)     An independent investigator appointed by the CEO or the Rail
16               Safety Regulator is to be appointed on such terms and
17               conditions as are agreed between the CEO or the Rail Safety
18               Regulator and the independent investigator.
     Dr
19       (4)     The Minister, the CEO and the Rail Safety Regulator must not
20               give a direction to an independent investigator relating to the
21               performance of the independent investigator’s functions in
22               relation to an investigation into a rail safety matter including a
23               direction —
24                 (a) on how to conduct the investigation; or
25                 (b) as to which persons the independent investigator may
26                       request or direct to assist the independent investigator in
27                       the investigation; or
28                 (c) as to the outcome of the investigation; or
29                 (d) to stop the investigation.



     page 104                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                        Investigations            Part 6
                                              Independent investigators      Division 1
                                                                                  s. 127



1        (5)     In exercising powers under this Part, the independent
2                investigator must have regard to the desirability of minimising
3                any resulting disruption to railway operations.
4        (6)     The reasonable costs of conducting the investigation are
5                recoverable jointly or severally from any one or more rail
6                transport operators responsible for the railway operations




                                              ft
7                concerned.
8        (7)     The CEO may, in a court of competent jurisdiction, recover the
9                costs that are recoverable under subsection (6) as a debt due to
10               the Crown.

11   127.        Conduct of investigation (based on RSA 42(1))
12       (1)     In conducting an investigation under this Part, an independent
13               investigator —
14                 (a) is to attempt to determine the circumstances surrounding
15                       the rail safety matter to prevent the occurrence of a rail
16
        a                safety matter and is not to apportion blame for the rail
17                       safety matter or determine the liability of any person in
18                       respect of any rail safety matter; and
19                 (b) must consult with the CEO, the Rail Safety Regulator
20                       and any person to whom a report under section 132 may
     Dr
21                       be relevant; and
22                 (c) must follow such procedures as are approved in writing
23                       by the CEO with respect to investigations; and
24                 (d) must act as quickly, and with as little formality and
25                       technicality, as is consistent with a fair and proper
26                       consideration of the issues; and
27                 (e) is not bound by the rules of evidence, but may inform
28                       himself or herself on any matter as the independent
29                       investigator considers appropriate.
30       (2)     Except as provided by this Part, an investigation under this Part
31               is to be conducted in a manner determined by the independent
32               investigator.

     DRAFT 2 8 May 2009 1:41                                                  page 105
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 1        Independent investigators
     s. 128



1    128.        Advise as to immediate action that is required
2                If in the course of an investigation an independent investigator
3                reasonably believes that immediate action is required to prevent
4                an occurrence involving the rolling stock or rail infrastructure of
5                a rail transport operator that could result in, or that has the
6                potential to result in, the death of, or injury to, any person, or in




                                              ft
7                damage to any property or equipment the independent
8                investigator may, in writing, advise the CEO, the Rail Safety
9                Regulator and the rail transport operator that that action is
10               required.

11   129.        Release of information in the interests of rail safety (based
12               on Vic TA s. 85D)
13       (1)     Subject to Division 6, an independent investigator may disclose
14               to any person information acquired by the independent
15               investigator in carrying out his or her functions under this Part if
                 the independent investigator considers that the disclosure is
16
17
        a        necessary or desirable for the purposes of rail safety.
18       (2)     Despite subsection (1), the independent investigator may only
19               disclose information that is, or that contains, personal
20               information in the circumstances allowed by the regulations.
     Dr
21   130.        Investigation may continue despite other proceedings (based
22               on RSA 44)
23               An investigation under this Part may start or continue, and a
24               report may be prepared or given, despite proceedings before a
25               court or tribunal constituted by law, unless a court or tribunal
26               with the necessary jurisdiction orders otherwise.

27   131.        Draft report or excerpt (TSIA s. 26)
28       (1)     Before giving a report under section 132(1), the independent
29               investigator may provide a draft report or an excerpt from a
30               draft report, on a confidential basis, to any person whom the



     page 106                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                        Investigations            Part 6
                                              Independent investigators      Division 1
                                                                                  s. 131



1                independent investigator considers appropriate, for any one or
2                more of the following purposes —
3                  (a) allowing the person to make submissions to the
4                       independent investigator about the draft report or
5                       excerpt;
6                  (b) taking steps to remedy safety deficiencies that are




                                              ft
7                       identified in the draft report or excerpt;
8                  (c) giving the person advance notice of the likely form of
9                       the final report.
10       (2)     A person who receives a draft report or an excerpt under
11               subsection (1) or (3) must not —
12                 (a) make a copy of the whole or any part of the draft report
13                       or excerpt; or
14                 (b) disclose any of the contents of the draft report or excerpt
15                       to any other person or to a court.
16
        a        Penalty: a fine of $5 000.
17       (3)     Subsection (2) does not apply to any copying or disclosure that
18               is necessary for the purpose of —
19                 (a) preparing submissions on the draft report or excerpt; or
     Dr
20                 (b) taking steps to remedy safety deficiencies that are
21                       identified in the draft report or excerpt.
22       (4)     A person who receives a draft report or excerpt under
23               subsection (1) or (3) cannot be required to disclose it to a court.
24       (5)     A person who receives a draft report or excerpt under
25               subsection (1) or (3) is not entitled to take any disciplinary
26               action against an employee of the person on the basis of
27               information in the draft report or excerpt.
28       (6)     A draft report or excerpt provided under subsection (1) must not
29               include the name of an individual unless he or she has consented
30               in writing to that inclusion.



     DRAFT 2 8 May 2009 1:41                                                  page 107
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 1        Independent investigators
     s. 132



1        (7)     The Coroners Act 1996 sections 33(1)(b) and (c) and 46(1)(a)
2                do not apply to a draft report or excerpt.

3    132.        Report (based on RSA 43)
4        (1)     On its completion, an independent investigator must give his or
5                her report to the Minister, the CEO and the Rail Safety




                                              ft
6                Regulator.
7        (2)     The report is to be in a prescribed format, if any, and contain —
8                 (a) details of any advice given under section 128; and
9                 (b) such recommendations, if any, that the independent
10                      investigator considers appropriate; and
11                (c) any other relevant matters.
12       (3)     The independent investigator’s report must be published by
13               electronic or other means by —
14                 (a) the CEO, if the CEO appointed the independent
15
        a                investigator; or
16                 (b) the Rail Safety Regulator, if the Rail Safety Regulator
17                       appointed the independent investigator,
18               within 28 days of receiving the report.
     Dr
19       (4)     A published report must not include the name of an individual
20               unless he or she has consented in writing to that inclusion.

21   133.        Reports not admissible in evidence (TSIA s. 27)
22       (1)     A report under section 132 is not admissible in evidence in any
23               civil or criminal proceedings.
24       (2)     Subsection (1) does not apply to a coronial inquest.
25       (3)     A draft report under section 131 is not admissible in evidence in
26               any civil or criminal proceedings.




     page 108                                               DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                        Investigations            Part 6
                                              Independent investigators      Division 1
                                                                                  s. 134



1    134.        Response to report: installation of safety or protective
2                devices (based on RSA 28)
3        (1)     The Rail Safety Regulator may, if of the opinion as a result of a
4                report under section 132 that action is necessary for the purpose
5                of the safe construction or operation of a railway, direct a rail
6                transport operator, by written notice, to install on or with respect




                                              ft
7                to the infrastructure of the railway, or on or with respect to
8                rolling stock, within the time specified in the notice, safety or
9                protective systems, devices, equipment or appliances specified
10               in the notice.
11       (2)     A rail transport operator must comply with the requirements of
12               the notice.
13               Penalty:
14                   (a)       for an individual —
15                                (i) for a first offence, a fine of $27 500;
16
        a                        (ii) for a second or subsequent offence, a fine of
17                                     $41 250;
18                     (b)     for a body corporate —
19                                (i) for a first offence, a fine of $55 000;
20                               (ii) for a second or subsequent offence, a fine of
     Dr
21                                     $82 000.

22   135.        Appointment of authorised officers (based on RSA 45)
23               An independent investigator may, in writing, appoint a suitable
24               person to be an authorised officer for the purposes of this Part.

25   136.        Delegation by independent investigator
26       (1)     An independent investigator may delegate to an authorised
27               officer any power or duty of the independent investigator under
28               another provision of this Part other than a function referred to in
29               section 135.



     DRAFT 2 8 May 2009 1:41                                                  page 109
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 1        Independent investigators
     s. 137



1        (2)     The delegation must be in writing signed by the independent
2                investigator.
3        (3)     An authorised person to whom a power or duty is delegated
4                under this section cannot delegate that power or duty.
5        (4)     An authorised person exercising or performing a power or duty
6                that has been delegated to the person under this section is to be




                                              ft
7                taken to do so in accordance with the terms of the delegation
8                unless the contrary is shown.
9        (5)     An authorised officer remains subject to the direction and
10               control of the independent investigator.

11   137.        Certificate of appointment for independent investigators
12               and authorised officers
13       (1)     The person who appoints an independent investigator must issue
14               a certificate of appointment to the investigator.
15
        a(2)     An independent investigator must issue an authorised officer
16               appointed by the independent investigator with a certificate of
17               appointment.

18   138.        Independent investigators and authorised officers must not
     Dr
19               exercise functions without a certificate of appointment
20               An independent investigator or authorised officer must not
21               exercise a function under this Act unless a certificate of
22               appointment has been issued to the independent investigator or
23               authorised officer.

24   139.        Production of a certificate of appointment
25       (1)     This section applies to an independent investigator or authorised
26               officer who is exercising, or about to exercise, a function under
27               this Part.
28       (2)     An independent investigator or authorised officer must produce
29               his or her certificate of appointment or a copy or reproduction of


     page 110                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                       Investigations           Part 6
                                                Investigation powers       Division 2
                                                                                s. 140



1                it if requested to do so by a person in relation to whom the
2                officer is exercising, or is about to exercise, the function.
3        (3)     If it is not practical for an independent investigator or authorised
4                officer to produce his or her certificate of appointment or a copy
5                or reproduction of it on being requested to do so, the
6                independent investigator or authorised officer must produce it as




                                              ft
7                soon as practicable after the request is made.

8    140.        Return of certificate of appointment
9                A person who has ceased to be an independent investigator or
10               authorised officer must not, without reasonable excuse, refuse
11               or fail to return to the person who appointed him or her (the
12               appointer), within such period as is specified by the appointer in
13               a request for the return of the certificate of appointment, any
14               certificate of appointment issued by the appointer.
15               Penalty: a fine of $1 500.
        a
16                         Division 2 — Investigation powers
17   141.        Securing a site (based on Model Bill cl. 83)
18       (1)     For the purpose of protecting evidence that might be relevant to
     Dr
19               an investigation of a rail safety matter, the Rail Safety Regulator
20               or an independent investigator may secure the perimeter of any
21               site at a place by whatever means the Rail Safety Regulator or
22               the independent investigator considers appropriate.
23       (2)     A person must not, without the permission of the Rail Safety
24               Regulator or an independent investigator, enter or remain at a
25               site the perimeter of which is secured under this section.
26               Penalty: a fine of $22 000.
27       (3)     Subsection (2) does not apply if the person enters the site or
28               remains at the site —
29                 (a) to ensure the safety of persons; or
30                 (b) to remove deceased persons or animals from the site; or

     DRAFT 2 8 May 2009 1:41                                                page 111
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 142



1                  (c)     to move a road vehicle, or the wreckage of a road
2                          vehicle, to a safe place; or
3                  (d)     to protect the environment from significant damage or
4                          pollution.
5        (4)     The Rail Safety Regulator or an independent investigator must
6                not unreasonably withhold a permission referred to in




                                              ft
7                subsection (2).

8    142.        Power to obtain information (based on N & MWA s. 75)
9        (1)     An independent investigator may, for the purposes of an
10               investigation under this Part —
11                 (a) require a person to produce to the investigator any
12                       document or other thing concerning the investigation
13                       that is in the possession or under the control of the
14                       person; and
15                 (b) require a person —
        a
16                          (i) to give the investigator such information as the
17                                investigator requires; and
18                         (ii) to answer any question put to that person,
19                       in relation to the matter the subject of the investigation.
     Dr
20       (2)     Subsection (1) does not apply to a person in his or her capacity
21               as a coroner.
22       (3)     A requirement made under subsection (1)(a) —
23                (a) must be made by notice in writing given to the person
24                      required to produce the document or other thing; and
25                (b) must specify the time at or within which the document
26                      or other thing is to be produced; and
27                (c) may, by its terms, require that the document or other
28                      thing required be produced at a place and by means
29                      specified in the requirement; and



     page 112                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                       Investigations           Part 6
                                                Investigation powers       Division 2
                                                                                s. 143



1                  (d)     where the document required is not in a readable format,
2                          is to be treated as a requirement to produce —
3                             (i) the document itself; and
4                            (ii) the contents of the document in a readable
5                                  format.
6        (4)     If under subsection (1)(a) an independent investigator requires a




                                              ft
7                person to produce any document or other thing concerning the
8                investigation that is in the possession or under the control of the
9                person, the investigator is to inform that person that the person
10               is required under this Act to produce the document or thing.
11       (5)     If under subsection (1)(b) an independent investigator requires a
12               person to give information or answer a question, the investigator
13               is to inform that person that the person is required under this
14               Act to give the information or answer the question.
15       (6)     If a document or other thing is produced to an independent
16
        a        investigator, the independent investigator may —
17                 (a) inspect it; and
18                 (b) make copies of, photograph or take extracts from, or
19                       test, it.
     Dr
20   143.        Other powers (based on RSA 46)
21       (1)     An independent investigator may, for the purpose of an
22               investigation under this Part, at all reasonable times of the day
23               or night, using reasonable force, enter railway premises or other
24               premises.
25       (2)     An independent investigator may, for the purpose of an
26               investigation under this Part, do any one or more of the
27               following —
28                 (a) having entered a premises under subsection (1), inspect
29                       the premises, or any railway, rail infrastructure or rolling
30                       stock or other thing at the premises;



     DRAFT 2 8 May 2009 1:41                                                page 113
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 143



1                  (b)     give directions with respect to the stopping or movement
2                          of rolling stock;
3                  (c)     take measurements, make surveys and take levels and,
4                          for those purposes, dig trenches, break up soil and set up
5                          any posts, stakes or markers;
6                  (d)     take samples or authorise another person to take samples




                                              ft
7                          of any substance or thing from any place or rolling stock
8                          or other vehicle for analysis;
9                  (e)     mark, tag or otherwise identify rolling stock or other
10                         things at the place;
11                  (f)    take photographs, films, audio, video or other
12                         recordings;
13                 (g)     examine or test any rail infrastructure, rolling stock,
14                         plant, system, device, equipment, appliance, vehicle or
15                         other thing, or cause or require it to be examined or
16                         tested, or seize it or require its production for
17
        a                  examination or testing;
18                 (h)     issue a seizure order under section 160 in respect of
19                         anything that the independent investigator reasonably
20                         believes is relevant to the investigation;
21                  (i)    require a person to produce evidence of an accreditation
     Dr
22                         or qualification required under this Act;
23                  (j)    give directions reasonably required in connection with
24                         the exercise of a power conferred by this subsection or
25                         otherwise in connection with conducting an
26                         investigation;
27                 (k)     exercise other powers as are prescribed for the purposes
28                         of this paragraph.
29       (3)     In the exercise of powers under this section, an independent
30               investigator must do as little damage as possible but may test
31               something even though that might result in damage, destruction
32               or reduction in the value of the thing.



     page 114                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                        Investigations           Part 6
                                                 Investigation powers       Division 2
                                                                                 s. 144



1    144.        Limitation on entry powers: places used for residential
2                purposes (based on Model Bill cl. 77)
3                Despite anything to the contrary in this Part, the powers of an
4                independent investigator under this Part in relation to entering
5                premises are not exercisable in respect of any premises that is
6                used only for residential purposes except —




                                              ft
7                  (a) with the consent of the occupier of the premises; or
8                  (b) under the authority conferred by a warrant under
9                       section 157.

10   145.        Occupier entitled to be present during inspection (based on
11               TSIA s. 38)
12       (1)     If premises are being inspected under section 143 and the
13               occupier of the premises is present at the premises, the occupier
14               is entitled to observe the inspection.
15
        a(2)     The right to observe the inspection ceases if the occupier
16               impedes the inspection.
17       (3)     This section does not prevent 2 or more areas of the premises
18               being inspected at the same time.
     Dr
19   146.        Use of equipment (based on Model Bill cl. 80)
20               An independent investigator may exercise powers under this
21               Part with the aid of such equipment as the independent
22               investigator considers reasonably necessary in the
23               circumstances.

24   147.        Occupier to provide independent investigator with facilities
25               and assistance (based on TSIA s. 37)
26               The occupier of premises being inspected under section 143
27               must provide the independent investigator with all reasonable
28               facilities and assistance for the effective exercise of his or her
29               powers.
30               Penalty: a fine of $16 500.

     DRAFT 2 8 May 2009 1:41                                                 page 115
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 148



1    148.        Use of electronic equipment (based on Model Bill cl. 81)
2        (1)     Without limiting section 143, if —
3                 (a) a thing found in or on rolling stock or a road vehicle, or
4                      at a place, is, or includes, a disk, tape or other device for
5                      the storage of information; and
6                 (b) the equipment in or on the rolling stock or road vehicle,




                                              ft
7                      or at the place, may be used with the disk, tape or other
8                      device,
9                the independent investigator may operate the equipment to
10               access the information.
11       (2)     An independent investigator must not operate equipment for the
12               purpose mentioned in this section unless the independent
13               investigator believes on reasonable grounds that the operation of
14               the equipment can be carried out without —
15                 (a) damage to the equipment; or
16
        a          (b) destroying, erasing or corrupting any information stored
17                       or recorded by the equipment.

18   149.        Use of equipment to examine or process things (based on
19               Model Bill cl. 82)
     Dr
20       (1)     Without limiting section 143, an independent investigator
21               exercising a power under this Part may bring to, onto, or into,
22               rolling stock, a road vehicle or premises any equipment
23               reasonably necessary for the examination or processing of
24               things found at, on or in the rolling stock, a road vehicle or
25               premises in order to determine whether they are things that may
26               be seized.
27       (2)     The independent investigator may operate equipment already in
28               or on the rolling stock, a road vehicle or premises, to carry out
29               the examination or processing of a thing found in or on the
30               rolling stock, a road vehicle or premises, or at the premises in
31               order to determine whether it is a thing that may be seized, if the
32               independent investigator believes on reasonable grounds that —

     page 116                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                       Investigations           Part 6
                                                Investigation powers       Division 2
                                                                                s. 150



1                  (a)     the equipment is suitable for the examination or the
2                          processing; and
3                  (b)     the examination or processing can be carried out without
4                          damage to the equipment.

5    150.        Notices relating to exercise of powers




                                              ft
6                If an independent investigator enters railway premises, not
7                being a public place, under section 143(1), the independent
8                investigator must give the occupier of the railway premises
9                written notice of the entry as soon as practicable after the entry
10               is made.

11   151.        Protection orders by Rail Safety Regulator or independent
12               investigator (based on TSIA s. 43)
13       (1)     For the purpose of protecting evidence that might be relevant to
14               an investigation, the Rail Safety Regulator, before an
                 independent investigator begins conducting an investigation,
15
16
        a        and an independent investigator, after the investigator begins
17               conducting an investigation, may direct that specified things, or
18               things in a specified class of things, must not be removed or
19               interfered with except with the permission of the person giving
20               the direction.
     Dr
21       (2)     The Rail Safety Regulator, before an independent investigator
22               begins conducting an investigation, and the independent
23               investigator, after the investigator begins conducting an
24               investigation, may revoke or vary a direction under
25               subsection (1).
26       (3)     A person must not contravene a direction under subsection (1).
27               Penalty: a fine of $82 500.
28       (4)     Subsection (3) does not apply if the conduct concerned was
29               necessary —
30                 (a) to ensure the safety of persons, animals or property; or



     DRAFT 2 8 May 2009 1:41                                                page 117
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 152



1                  (b)     to remove deceased persons or animals from an accident
2                          site; or
3                  (c)     to move rolling stock, or the wreckage of rolling stock,
4                          to a safe place; or
5                  (d)     to protect the environment from significant damage or
6                          pollution.




                                              ft
7        (5)     The Rail Safety Regulator or an independent investigator must
8                not unreasonably withhold a permission under subsection (1).

9    152.        Medical examination
10       (1)     In this section —
11               employee includes an individual who works under a contract for
12               services;
13               medical practitioner has the meaning given in the Medical
14               Act 1894 section 3(1).
15
        a(2)     If an independent investigator has reason to believe that —
16                 (a) a person caused, or was directly involved in, a rail safety
17                       matter; and
18                 (b) the result of a medical examination of the person may
                         help in determining the circumstances and probable
     Dr
19
20                       cause of the matter,
21               the independent investigator may by written notice direct the
22               person to undergo a medical examination within a period
23               specified by the independent investigator in the notice.
24       (3)     The person is to be examined by a medical practitioner agreed
25               upon by the independent investigator and the person.
26       (4)     If the independent investigator and the person are unable to
27               agree upon the person to conduct the examination, the CEO is to
28               appoint a medical practitioner to perform the examination.




     page 118                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                      Investigations           Part 6
                                               Investigation powers       Division 2
                                                                               s. 152



1        (5)     A medical practitioner who conducts an examination under this
2                section is to give a report of the examination to the independent
3                investigator.
4        (6)     The cost of the examination must be paid —
5                 (a) if the person is an employee of a rail transport operator,
6                       by the rail transport operator; or




                                              ft
7                 (b) in other cases, by the CEO.
8        (7)     A person must comply with a direction under this section,
9                unless the person has a reasonable excuse.
10               Penalty: a fine of $5 000.
11       (8)     It is not a reasonable excuse for a person to fail to comply with
12               the direction that complying with the direction might tend to
13               incriminate the person or make the person liable to a penalty.
14       (9)     Anything obtained under the direction, and any evidence
15
        a        derived directly or indirectly from anything obtained under the
16               direction is not admissible in evidence against a person in any
17               civil or criminal proceeding.
18     (10)      When giving a direction to a person under this section, an
19               independent investigator must —
     Dr
20                 (a) warn the person it is an offence to fail to comply with
21                      the direction unless the person has a reasonable excuse;
22                      and
23                 (b) advise the person that —
24                         (i) it is not a reasonable excuse that complying with
25                              the direction might tend to incriminate the person
26                              or make the person liable to a penalty; and
27                        (ii) anything obtained under the direction, and any
28                              evidence derived directly or indirectly from
29                              anything obtained under the direction, is not
30                              admissible in evidence against the person in any
31                              civil or criminal proceeding.


     DRAFT 2 8 May 2009 1:41                                               page 119
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 153



1    153.        Analysis
2        (1)     In this section —
3                authorised person means —
4                  (a) an authorised officer; or
5                  (b) an independent investigator; or




                                              ft
6                  (c) a police officer; or
7                  (d) a rail safety officer; or
8                  (e) the Rail Safety Regulator;
9                employee includes an individual who works under a contract for
10               services.
11       (2)     If an authorised person has reason to believe that —
12                 (a) a person caused, or was directly involved in, a rail safety
13                       matter; and
14                 (b) the results of a breath test or an analysis may help in
15
        a                determining the circumstances and probable cause of the
16                       matter,
17               the authorised person may direct the person to do one or more
18               of the following —
     Dr
19                 (c) submit to a breath test;
20                 (d) give a sample of the person’s blood or urine for analysis.
21       (3)     The purpose of a test or an analysis is to determine the presence
22               or level of alcohol or any prescribed drug in any form in the
23               breath, blood or urine of the person.
24       (4)     A direction under subsection (2)(d) must —
25                (a) specify the day on which and time and place at which
26                      the person is to attend; and
27                (b) indicate what sample or samples are to be given.
28       (5)     If a direction is given under this section —
29                 (a) any breath test is to be conducted; and

     page 120                                               DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                        Investigations           Part 6
                                                 Investigation powers       Division 2
                                                                                 s. 153



1                  (b)     any sample is to be taken and dealt with,
2                in accordance with regulations referred to in section 154.
3        (6)     The cost of conducting a breath test or obtaining a sample and
4                carrying out the analysis must be paid by —
5                  (a) if the person is an employee of a rail transport operator,




                                              ft
6                        by the rail transport operator; or
7                  (b) in other cases, by the CEO.
8        (7)     A person must comply with a direction under this section,
9                unless the person has a reasonable excuse.
10               Penalty: a fine of $5 000.
11       (8)     It is not a reasonable excuse for a person to fail to comply with
12               the direction that complying with the direction might tend to
13               incriminate the person or make the person liable to a penalty.
14       (9)     The results of a breath test or an analysis under this section are
15
        a        not admissible in evidence against a person in any civil or
16               criminal proceeding.
17     (10)      When making a direction of a person under this section, an
18               authorised person must —
     Dr
19                 (a) warn the person it is an offence to fail to comply with
20                       the direction unless the person has a reasonable excuse;
21                       and
22                 (b) advise the person that —
23                          (i) it is not a reasonable excuse that complying with
24                               the direction might tend to incriminate the person
25                               or make the person liable to a penalty; and
26                         (ii) the results of a breath test or an analysis under
27                               this section are not admissible in evidence
28                               against the person in any civil or criminal
29                               proceeding.




     DRAFT 2 8 May 2009 1:41                                                 page 121
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 2        Investigation powers
     s. 154



1    154.        Regulations relating to medical examinations and analysis
2                Regulations may be made under section 227(1) with respect to
3                examinations and breath tests or analysis under sections 152
4                and 153 including the following —
5                  (a) procedures for medical examinations;
6                  (b) the manner of giving directions under section 153;




                                              ft
7                  (c) prescribing drugs for which a breath test or an analysis
8                       may be conducted pursuant to a direction under
9                       section 153 to submit to a breath test or to give a sample
10                      of the person’s blood or urine for analysis;
11                 (d) regulating the manner of conducting breath tests and
12                      taking and dealing with samples of blood and urine and
13                      their analysis;
14                 (e) providing for the authorisation of persons as analysts for
15                      the purposes of section 153;
16
        a           (f) the analysis of test results;
17                 (g) the reporting of the results of breath tests or blood or
18                      urine analysis;
19                 (h) the collection, keeping and disposal of samples;
20                  (i) the approval of equipment or any apparatus for the
     Dr
21                      purposes of testing or analysis;
22                  (j) the devices used in conducting breath tests and other
23                      tests, including the calibration, inspection and testing of
24                      those devices;
25                 (k) protection against liability for persons administering
26                      tests or taking samples of blood or urine or other body
27                      tissues or fluids.




     page 122                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                      Investigations           Part 6
                                                    Search warrants       Division 3
                                                                               s. 155



1    155.        Independent investigator not to use force against persons
2                (based on Model Bill cl. 114)
3                A provision in this Division that authorises an independent
4                investigator to use reasonable force does not authorise the
5                independent investigator to use force against another person.




                                              ft
6                             Division 3 — Search warrants
7    156.        Search warrant
8        (1)     An independent investigator may apply to a justice for the issue
9                of a search warrant in relation to premises used only for
10               residential purposes if the independent investigator believes on
11               reasonable grounds that there is any thing on the premises that is
12               relevant to his or her investigation.
13       (2)     An application for a search warrant must —
14                (a) be in writing; and
15
        a         (b) set out the grounds for seeking the warrant; and
16                (c) the premises to be searched; and
17                (d) a description of the thing for which the search is to be
18                      made.
     Dr
19       (3)     A justice to whom an application is made under this section is to
20               refuse it if —
21                 (a)     the application does not comply with the requirements
22                         of this Act; or
23                 (b)     when required to do so by the justice, the independent
24                         investigator does not give to the justice more
25                         information about the application.
26       (4)     The information in an application or given to a justice under this
27               section must be verified before the justice on oath or affirmation
28               or by affidavit, and the justice may for that purpose administer
29               an oath or affirmation or take an affidavit.



     DRAFT 2 8 May 2009 1:41                                               page 123
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 3        Search warrants
     s. 157



1    157.       Issue of search warrant
2        (1)     If a justice is satisfied that there is any thing on the premises
3                that might be relevant to the investigation, the justice may issue
4                a search warrant authorising the independent investigator named
5                in the warrant —
6                  (a) to enter the premises named or described in the warrant;




                                              ft
7                         and
8                  (b) to search for and seize any thing named or described in
9                         the warrant.
10       (2)     In addition to any other requirement, a search warrant issued
11               under this section must state —
12                 (a) the premises to be searched; and
13                 (b) a description of the thing for which the search is to be
14                       made; and
15                 (c) any conditions to which the warrant is subject; and
16
        a          (d) whether entry is authorised to be made at any time or
17                       during stated hours; and
18                 (e) a day, not later than 7 days after the issue of the warrant,
19                       on which the warrant ceases to have effect.
     Dr
20       (3)     A justice who issues a warrant is to cause a record to be made of
21               particulars of the grounds that the justice has relied on to justify
22               the issue of the warrant.

23   158.        Execution of warrant
24       (1)     If asked to do so by an occupier, or a person in charge, of
25               premises, the person executing a warrant at those premises is to
26               produce it for inspection.
27       (2)     A warrant ceases to have effect —
28                (a) on the day stated in the warrant as the day on which it
29                      ceases to have effect; or
30                (b) if it is withdrawn by the justice who issued it; or


     page 124                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                                                            Investigations           Part 6
                                         Seized things and samples taken        Division 4
                                                                                     s. 159



1                  (c)     when it is executed,
2                whichever occurs first.

3    159.        Seizure of things not mentioned in the warrant
4                A search warrant authorises the independent investigator
5                executing the warrant, in addition to the seizure of any thing of




                                              ft
6                the kind described in the warrant, to seize any thing which is not
7                of the kind described in the warrant if the independent
8                investigator believes, on reasonable grounds, that the thing is of
9                a kind which could have been included in a warrant issued
10               under this Division.

11                Division 4 — Seized things and samples taken
12   160.        Provisions relating to seizure (based on RSA 48)
13       (1)     A seizure order issued by an independent investigator under
14
        a        section 143(2)(h) —
15                 (a) is to be in the form of a written notice served on the
16                       owner or person in control of the thing to which the
17                       order relates; and
18                 (b) may be varied or revoked by a further such written
     Dr
19                       notice.
20       (2)     If a seizure order is issued, a person must not remove or
21               interfere with the thing to which the order relates without the
22               approval of the independent investigator.
23               Penalty: a fine of $82 500.
24       (3)     If a thing has been seized, the thing must be held pending
25               completion of the independent investigator’s report under
26               section 132 in relation to the investigation in respect of which
27               the thing was seized unless the independent investigator, on
28               application or of his or her own volition, authorises its release to
29               the person from whom it was seized, or to a person who had
30               legal title to it at the time of its seizure, subject to such

     DRAFT 2 8 May 2009 1:41                                                     page 125
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 4        Seized things and samples taken
     s. 161



1                conditions as the independent investigator considers
2                appropriate.
3        (4)     If —
4                  (a)     a report is given under section 132 in relation to the
5                          investigation in respect of which the thing was seized; or
6                  (b)     a report is not given under that section within the




                                              ft
7                          prescribed period after the seizure of the thing or the
8                          issuing of the seizure order,
9                the person from whom the thing was seized, or a person with
10               legal title to it, is entitled to recover the thing from the
11               independent investigator (if necessary, by action in a court of
12               competent jurisdiction) unless the thing has been transferred to a
13               rail safety officer under section 168(1).
14       (5)     In subsection (4) —
15               prescribed period means 6 months, or such longer period not
16
        a        exceeding 12 months as the independent investigator allows.

17   161.        Securing seized things (based on Vic TA s. 228ZP)
18               On seizing a thing under this Part, an independent investigator
19               may —
     Dr
20                (a) move the thing from the place where it was seized (the
21                      place of seizure); or
22                (b) leave the thing at the place of seizure but take steps to
23                      restrict access to it; or
24                (c) in relation to equipment that is seized, make the
25                      equipment inoperable.

26   162.        Powers to support seizure (based on Vic TA s. 228ZR)
27       (1)     In this section —
28               in control, in relation to a thing, means having, or reasonably
29               appearing to an independent investigator as having, authority to
30               exercise control over the thing.

     page 126                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                                                            Investigations           Part 6
                                         Seized things and samples taken        Division 4
                                                                                     s. 163



1        (2)     To enable a thing to be seized under this Part, an independent
2                investigator may direct the person in control of it —
3                  (a) to take it to a specified place within a specified time;
4                        and
5                  (b) if necessary, to remain in control of it at the specified
6                        place for a period specified in the direction.




                                              ft
7        (3)     A further direction may be made under this section about the
8                thing if it is necessary and reasonable to make the further
9                direction.
10       (4)     A person given a direction under subsection (2) or (3) must not
11               without reasonable excuse refuse or fail to comply with that
12               direction.
13               Penalty: a fine of $11 000.
14       (5)     Without limiting what may be a reasonable excuse under
15               subsection (4), it is a reasonable excuse for a person in control
16
        a        of a thing not to comply with a direction under subsection (2)
17               or (3) if in all the circumstances, the direction was
18               unreasonable.
19       (6)     The cost of complying with subsection (2) or (3) must be borne
20               by the person.
     Dr
21   163.        Independent investigator may direct a thing’s return (based
22               on Vic TA s. 228ZS)
23       (1)     If an independent investigator has directed a person to take a
24               thing to a specified place within a specified time under
25               section 162(2), the independent investigator may direct the
26               person to return the thing to the place from which it was taken.
27       (2)     A person given a direction under subsection (1) must not
28               without reasonable excuse, refuse or fail to comply with that
29               direction.
30               Penalty: a fine of $11 000.



     DRAFT 2 8 May 2009 1:41                                                     page 127
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 4        Seized things and samples taken
     s. 164



1        (3)     The cost of complying with a direction under subsection (1)
2                must be borne by the person.
3        (4)     If a person who is not the owner of the thing fails to comply
4                with a direction under subsection (1), the independent
5                investigator may release the thing to its owner or any other
6                person entitled to its possession.




                                              ft
7    164.        Manner in which independent investigator may give
8                directions under this Division (based on Vic TA s. 228ZY)
9        (1)     Unless otherwise provided, an independent investigator may
10               give a direction under this Division orally or in writing.
11       (2)     If giving a direction orally, the independent investigator giving
12               the direction —
13                 (a) must state whether it is to be complied with immediately
14                       or within a specified period; and
15
        a          (b) must warn the person to whom the direction is given that
16                       it is an offence under this Act to fail to comply with a
17                       direction.
18       (3)     If giving a direction in writing, the independent investigator
19               must ensure that the direction —
     Dr
20                 (a) states the period within which it is to be complied with;
21                       and
22                 (b) states that it is an offence under this Act to fail to
23                       comply with a direction.
24       (4)     A written direction may be given to, or sent by post to, the
25               person to whom it is directed.

26   165.        Receipt for seized things or sample (based on Vic TA
27               s. 228ZT)
28       (1)     If an independent investigator seizes a thing, or takes a sample
29               of, or from, a thing at railway premises or residential premises
30               under this Part, the independent investigator must give a receipt


     page 128                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                                                            Investigations           Part 6
                                         Seized things and samples taken        Division 4
                                                                                     s. 166



1                to the person in charge of the thing or the railway premises or
2                residential premises from which it was taken.
3        (2)     A receipt must —
4                 (a) identify the thing seized or sample taken; and
5                 (b) state the name of the independent investigator who
6                       seized the thing or took the sample and the reason why




                                              ft
7                       the thing was seized or the sample was taken.
8        (3)     If for any reason it is not practicable for the independent
9                investigator to comply with subsection (1), the independent
10               investigator may —
11                 (a) leave the receipt at the railway premises or residential
12                        premises in a conspicuous position and in a reasonably
13                        secure way; or
14                 (b) send the receipt, by post, to the occupier of the railway
15                        premises or residential premises from where the thing
16
        a                 was seized or the sample was taken.

17   166.        Copies of certain seized things to be given (based on Vic TA
18               s. 228ZU)
19       (1)     If, under this Part, an independent investigator seizes —
     Dr
20                  (a) a document; or
21                 (b) a thing that can be readily copied; or
22                  (c) a storage device containing information that can be
23                       readily copied,
24               the independent investigator must give a copy of the document,
25               thing or information to the owner or custodian of the document,
26               thing or device as soon as practicable after the seizure.
27       (2)     Subsection (1) does not apply if the independent investigator —
28                (a) has reason to believe that the owner or custodian of the
29                      document, thing or device seized has a copy of the
30                      document, thing or information; or


     DRAFT 2 8 May 2009 1:41                                                     page 129
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 4        Seized things and samples taken
     s. 167



1                  (b)     is unable to discover the identity of the owner or
2                          custodian of any document, thing or device seized.

3    167.        Transfer of seized thing to independent investigator
4                If —
5                  (a)     a thing has been seized by a rail safety officer under the




                                              ft
6                          authority of a warrant issued under section 93; and
7                  (b)     an independent investigator requests the rail safety
8                          officer named in the warrant to transfer the thing to the
9                          investigator,
10               the rail safety officer must —
11                 (c) transfer the thing to the investigator and, for the
12                        purposes of this Act, the thing is to be taken to have
13                        been seized under this Part; and
14                 (d) advise the owner of the thing that it has been transferred
15
        a                 to the investigator.

16   168.        Transfer of seized thing to a rail safety officer
17       (1)     If —
18                 (a)     a thing has been seized by an independent investigator
     Dr
19                         under this Part; and
20                 (b)     the thing could have been seized under the authority of a
21                         warrant issued under section 93; and
22                 (c)     the rail safety officer named in the warrant requests the
23                         independent investigator to transfer the thing to the
24                         officer,
25               the independent investigator must —
26                 (d) transfer the thing to the rail safety officer when his or
27                       her investigation is complete or the investigator is
28                       satisfied that the transfer would not prejudice his or her
29                       investigation; and



     page 130                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                       Rail Safety Bill 2009
                                                             Investigations           Part 6
                                      Provisions relating to investigations      Division 5
                                                                                      s. 169



1                  (e)     advise the owner of the thing that it has been transferred
2                          to the rail safety officer.
3        (2)     If a thing is transferred to a rail safety officer under
4                subsection (1), for the purposes of this Act, the thing is to be
5                taken to have been seized under the authority of the warrant.




                                              ft
6               Division 5 — Provisions relating to investigations
7    169.        Offences in relation to investigation
8        (1)     Where under section 142 a person is required to give any
9                information, answer any question, or produce any document or
10               thing and that person, without reasonable excuse (proof of
11               which lies on the person) —
12                 (a) fails to give that information or answer that question; or
13                 (b) gives any information or answer that is false in any
14                       particular; or
15
        a          (c) omits anything without which the statement is, to the
16                       person’s knowledge, misleading in a material particular;
17                       or
18                 (d) fails to produce that document or thing at or within the
19                       time specified in the requirement,
     Dr
20               the person commits an offence.
21               Penalty: a fine of $11 000.
22       (2)     It is a defence in any proceeding for an offence under
23               subsection (1)(a) or (d) for the accused to show —
24                  (a) that the investigator did not, when making the
25                        requirement, inform the accused that he or she was
26                        required under this Act to give the information or
27                        answer the question, or produce the document or thing,
28                        as the case may be; or
29                 (b) that the time specified in a requirement to produce a
30                        document or thing did not afford the accused sufficient


     DRAFT 2 8 May 2009 1:41                                                      page 131
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 5        Provisions relating to investigations
     s. 170



1                          notice to enable him or her to comply with the
2                          requirement; or
3                  (c)     that, in any case, the investigator did not, before making
4                          the requirement, have reasonable grounds to believe that
5                          compliance with the requirement would materially assist
6                          in the investigation being carried out.




                                              ft
7    170.        Offence to hinder persons appointed under this Part (based
8                on RSA 49)
9                A person must not —
10                 (a) wilfully hinder, obstruct or interfere with an independent
11                      investigator or an authorised person in the exercise of a
12                      power conferred under this Part; or
13                (b) use abusive, threatening or insulting language to an
14                      independent investigator or an authorised person; or
15                 (c) without reasonable excuse, refuse or fail to comply with
16
        a               a requirement or direction of an independent
17                      investigator or an authorised officer under this Part; or
18                (d) falsely represent, by words or conduct, that he or she is
19                      an independent investigator or an authorised person.
20               Penalty: a fine of $11 000.
     Dr
21   171.        Incriminating information, questions or documents
22               An individual is not excused from complying with a
23               requirement under section 142 on the ground that the answer to
24               a question or the production of a document or other thing might
25               incriminate the individual or render the individual liable to a
26               penalty, but neither —
27                 (a) an answer given by the individual that was given to
28                       comply with the requirement; nor
29                 (b) the fact that a document or other thing produced by the
30                       individual to comply with the requirement was
31                       produced,


     page 132                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                       Rail Safety Bill 2009
                                                             Investigations           Part 6
                                      Provisions relating to investigations      Division 5
                                                                                      s. 172



1                is admissible in evidence in any civil or criminal proceedings
2                against the individual other than proceedings for an offence
3                against section 169(1)(b).

4    172.        Legal professional privilege
5                Nothing in this Part prevents a person from refusing to answer a




                                              ft
6                question, provide information or produce a document or other
7                thing because the answer or information would relate to, or the
8                document or thing contains, information in respect of which the
9                person claims legal professional privilege.

10   173.        Certification of independent investigator’s or authorised
11               officer’s involvement in investigation (based on TSIA s. 65)
12               In all courts, a certificate purporting to be issued by the person
13               who appointed an independent investigator or authorised officer
14               stating that a person is or was an independent investigator or an
15               authorised officer in relation to an investigation under this Part
16
        a        is evidence of that matter.

17   174.        Independent investigator and authorised officer not
18               compellable as witnesses (based on TSIA s. 66)
19       (1)     A person who is or has been an independent investigator or
     Dr
20               authorised officer is not obliged to comply with a summons or
21               similar direction of a court to attend and answer questions
22               relating to a rail safety matter or to produce any document or
23               other thing related to an investigation.
24       (2)     An independent investigator or authorised officer is not
25               compellable to give an expert opinion in any civil or criminal
26               proceedings in relation to a matter related to rail safety.
27       (3)     This section does not apply to a coronial inquest.




     DRAFT 2 8 May 2009 1:41                                                      page 133
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 6            Investigations
     Division 6        Protection of restricted information
     s. 175



1               Division 6 — Protection of restricted information
2    175.        Limitations on disclosure etc. of restricted information
3                (based on TSIA s. 60)
4        (1)     A person who is or has been an independent investigator or
5                authorised officer must not —




                                              ft
6                  (a) make a record of restricted information; or
7                  (b) disclose restricted information to a person or a court.
8                Penalty: a fine of $11 000.
9        (2)     A person who has, or had, access to restricted information under
10               section 176 must not —
11                 (a) make a record of the information; or
12                 (b) disclose the information to any person or to a court.
13               Penalty: a fine of $11 000.
14
        a(3)     Subsections (1) and (2) do not apply to —
15                (a) anything done by a person in performing functions
16                      under this Act or in connection with this Act; or
17                (b) disclosure to a court in criminal proceedings for an
18                      offence against this Act; or
     Dr
19                (c) disclosure to a coroner for the purposes of a coronial
20                      inquest.
21       (4)     If a person is prohibited by this section from disclosing
22               restricted information, then —
23                 (a) the person cannot be required by a court to disclose the
24                        information; and
25                 (b) any information disclosed by the person in
26                        contravention of this section is not admissible in any
27                        civil or criminal proceedings, other than proceedings
28                        against the person under this section.




     page 134                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                       Rail Safety Bill 2009
                                                             Investigations           Part 6
                                       Protection of restricted information      Division 6
                                                                                      s. 176



1    176.        Disclosure of restricted information in the interests of rail
2                safety (based on TSIA s. 61)
3        (1)     Subject to subsection (2), the independent investigator may
4                direct that restricted information be disclosed to any person if
5                the independent investigator considers that the disclosure is
6                necessary or desirable —




                                              ft
7                  (a) for the purposes of rail safety; or
8                  (b) for the purpose of an investigation under another Act or
9                         an Act of the Commonwealth, another State or a
10                        Territory.
11       (2)     The independent investigator may only disclose restricted
12               information that is, or that contains, personal information in the
13               circumstances prescribed by the regulations.
        a
     Dr


     DRAFT 2 8 May 2009 1:41                                                      page 135
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 7            Review of decisions

     s. 177



1                          Part 7 — Review of decisions
2    177.          Terms used
3                  In this Part —
4                  reviewable decisions has the meaning given in section 179(a);
                   eligible person in relation to the reviewable decision has the




                                              ft
5
6                  meaning given in section 179(b).

7    178.          Application of Parliamentary Commissioner Act 1971 to Rail
8                  Safety Regulator and rail safety officers (Model Bill cl. 116)
9                  The Parliamentary Commissioner Act 1971 applies to the Rail
10                 Safety Regulator as if —
11                  (a) the Rail Safety Regulator were an authority within the
12                        meaning of that Act; and
13                  (b) rail safety officers exercising functions under this Act
14
        a                 were employees of the Rail Safety Regulator.

15   179.          Reviewable decisions (Model Bill cl. 117)
16                 The Table sets out —
17                  (a) decisions made under this Act that are reviewable under
     Dr
18                       this Part (reviewable decisions); and
19                  (b) who is eligible to apply for review of a reviewable
20                       decision (the eligible person in relation to the
21                       reviewable decision).
22                                              Table
              Item           Provision under        Eligible person in relation to
                             which reviewable       the reviewable decision
                             decision is made
              1.             s. 36(4)               A rail transport operator
                                                    who has applied for
                                                    accreditation.


     page 136                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                          Rail Safety Bill 2009
                                           Review of decisions           Part 7

                                                                           s. 179




         Item           Provision under      Eligible person in relation to
                        which reviewable     the reviewable decision
                        decision is made
         2.             s. 37(1)             A rail transport operator
                                             whose application for
                                             accreditation is refused or is




                                         ft
                                             subject to conditions or
                                             restrictions.
         3.             s. 37(4)             A rail transport operator
                                             who has applied for
                                             accreditation.
         4.             s. 45                A rail transport operator
                                             whose accreditation is
                                             revoked or suspended.
         5.             s. 46(1)             A rail transport operator
   a                                         whose accreditation is
                                             suspended.
         6.             s. 46(2)(b)          A rail transport operator
                                             whose accreditation is
                                             suspended.
Dr
         7.             s. 50(1)             A rail transport operator
                                             whose application for
                                             variation of accreditation is
                                             refused.
         8.             s. 50(1)             A rail transport operator
                                             whose accreditation is
                                             varied subject to a condition
                                             or restriction.
         9.             s. 50(4)             A rail transport operator
                                             who has applied for
                                             variation of accreditation.



DRAFT 2 8 May 2009 1:41                                              page 137
Stn3\D02 Rail Safety Bill 2009copy.doc
Rail Safety Bill 2009
Part 7            Review of decisions

s. 179




         Item           Provision under    Eligible person in relation to
                        which reviewable   the reviewable decision
                        decision is made
         10.            s. 52(1)           A rail transport operator
                                           given a direction to amend a
                                           safety management system.




                                         ft
         11.            s. 53(3)           A rail transport operator
                                           whose application for
                                           variation of a condition or
                                           restriction is refused.
         12.            s. 54              A rail transport operator
                                           whose conditions or
                                           restrictions of accreditation
                                           are changed.
         13.            s. 102(2)(c)       A person who is the owner
   a                                       within the meaning of
                                           section 102(1) of the sample
                                           or thing.
         14.            s. 110(1)          A person on whom an
                                           improvement notice is
Dr
                                           served.
         15.            s. 112(1)(b)       A person on whom a notice
                                           of amendment of an
                                           improvement notice is
                                           served.
         16.            s. 115(2)          A person on whom a
                                           prohibition notice is served.
         17.            s. 118(1)(b)       A person on whom a notice
                                           of amendment of a
                                           prohibition notice is served.




page 138                                             DRAFT 2 8 May 2009 1:41
Stn3\D02 Rail Safety Bill 2009copy.doc
                                                               Rail Safety Bill 2009
                                                Review of decisions           Part 7

                                                                             s. 180



1    180.        Review by the Rail Safety Regulator (Model Bill cl. 118)
2        (1)     An eligible person —
3                 (a) in relation to a reviewable decision made by the Rail
4                       Safety Regulator may, within 28 days after the decision
5                       was made, apply to the Rail Safety Regulator for a
6                       review of the decision; or




                                              ft
7                 (b) in relation to a reviewable decision, other than a
8                       decision made by the Rail Safety Regulator, may apply
9                       to the Rail Safety Regulator for review of the decision
10                      within —
11                         (i) 28 days after the day on which the decision first
12                              came to the eligible person’s notice; or
13                        (ii) such longer period as the Rail Safety Regulator
14                              allows.
15       (2)     The application must be in the form approved in writing by the
16
        a        Rail Safety Regulator.
17       (3)     If an application is made to the Rail Safety Regulator in
18               accordance with this section, the Rail Safety Regulator must
19               make a decision —
20                 (a) to affirm or vary the reviewable decision; or
     Dr
21                 (b) to set aside the reviewable decision and substitute
22                       another decision that the Rail Safety Regulator considers
23                       appropriate.
24       (4)     The Rail Safety Regulator must give a written notice to the
25               applicant setting out —
26                 (a) the Rail Safety Regulator’s decision under
27                      subsection (3) and the reasons for the decision; and
28                 (b) the findings on material questions of fact that led to the
29                      decision, referring to the evidence or other material on
30                      which those findings were based,



     DRAFT 2 8 May 2009 1:41                                              page 139
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 7            Review of decisions

     s. 181



1                and must do so within 14 days after the application is made or,
2                if the reviewable decision was made under section 110, 115
3                or 118, within 7 days after the application is made.
4        (5)     If the Rail Safety Regulator has not notified an applicant of a
5                decision in accordance with subsection (4), the Rail Safety
6                Regulator is taken to have made a decision to affirm the




                                              ft
7                reviewable decision.
8        (6)     An application under this section does not affect the operation
9                of the reviewable decision or prevent the taking of any action to
10               implement it unless the Rail Safety Regulator, on the Rail
11               Safety Regulator’s own initiative or on the application of the
12               applicant for review, stays the operation of the decision, not
13               being a prohibition notice, pending the determination of the
14               review.
15       (7)     The Rail Safety Regulator must make a decision on an
16               application for a stay within 24 hours after the making of the
17
        a        application.
18       (8)     If the Rail Safety Regulator has not made a decision in
19               accordance with subsection (7), the Rail Safety Regulator is
20               taken to have made a decision to grant a stay.
     Dr
21       (9)     The Rail Safety Regulator may attach any conditions to a stay of
22               the operation of a reviewable decision that the Rail Safety
23               Regulator considers appropriate.

24   181.        Review by the State Administrative Tribunal (Model Bill
25               cl. 119)
26       (1)     A person may apply to the State Administrative Tribunal for a
27               review of —
28                 (a) a reviewable decision made by the Rail Safety
29                      Regulator; or
30                 (b) a decision made, or taken to have been made, by the
31                      Rail Safety Regulator under section 180 in respect of a


     page 140                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                 Review of decisions           Part 7

                                                                               s. 181



1                          reviewable decision, including a decision concerning a
2                          stay of the operation of the reviewable decision,
3                if the person is an eligible person in relation to the reviewable
4                decision.
5        (2)     The application must be made —




                                              ft
6                 (a) if the decision is to forfeit a thing, including a document,
7                       seized under Part 5, within 28 days after the day on
8                       which the decision first came to the applicant’s notice;
9                       or
10                (b) in the case of any other decision, within 14 days after
11                      the day on which the decision first came to the
12                      applicant’s notice; or
13                (c) if the Rail Safety Regulator is required by the State
14                      Administrative Tribunal Act 2004 section 21 to give the
15                      applicant a statement of reasons, within 14 days after the
                        day on which the applicant is given the statement,
16
        a
17               whichever period ends last.
     Dr


     DRAFT 2 8 May 2009 1:41                                               page 141
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 1        General
     s. 182



1     Part 8 — General liability and evidentiary provisions
2                                    Division 1 — General
3    182.        Period within which proceedings for offences may be
4                commenced (Model Bill cl. 121)




                                              ft
5        (1)     This section applies to an offence against a rail safety law, other
6                than —
7                  (a) an offence prescribed for the purposes of this section;
8                        and
9                  (b) an offence in respect of which proceedings may only be
10                       commenced within a period of less than 2 years after its
11                       alleged commission.
12       (2)     Despite anything to the contrary in any other Act, proceedings
13               for an offence against a rail safety law to which this section
14               applies may be commenced within —
15
        a          (a) the period of 2 years after the commission of the alleged
16                       offence; or
17                 (b) a further period of one year commencing on the day on
18                       which the Rail Safety Regulator, a rail safety officer or a
                         police officer first obtained evidence of the commission
     Dr
19
20                       of the alleged offence considered reasonably sufficient
21                       by the Rail Safety Regulator or officer to warrant
22                       commencement proceedings.
23       (3)     For the purposes of subsection (2), a certificate purporting to
24               have been issued by the Rail Safety Regulator, a rail safety
25               officer or a police officer as to the date when the Rail Safety
26               Regulator or officer first obtained evidence considered
27               reasonably sufficient by the Rail Safety Regulator or officer to
28               warrant commencing proceedings is admissible in any
29               proceedings and is evidence of the matters stated.




     page 142                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                                  General       Division 1
                                                                                     s. 183



1    183.        Authority to take proceedings (Model Bill cl. 122)
2        (1)     Legal proceedings for an offence against, or to recover any
3                charge, fee or money due under this Act may be taken only by
4                the Rail Safety Regulator or by a person authorised by the Rail
5                Safety Regulator for the purpose, either generally or in any
6                particular case.




                                              ft
7        (2)     In any proceedings referred to in this section, the production of
8                an authority purporting to be signed by the Rail Safety
9                Regulator is to be evidence of the authority without proof of the
10               signature of the Rail Safety Regulator.
11       (3)     The Rail Safety Regulator may, for the purposes of
12               subsection (1), authorise any person who is a member of a
13               specified class of persons to take the actions referred to in that
14               subsection.

15   184.        Vicarious responsibility (Model Bill cl. 123)
16
        a(1)     In this section —
17               director of a body corporate includes a constituent member of a
18               body corporate incorporated for a public purpose by a law of
19               any jurisdiction;
     Dr
20               state of mind of a person includes —
21                 (a) the knowledge, intention, opinion, belief or purpose of
22                        the person; and
23                 (b) the person’s reasons for the intention, opinion, belief or
24                        purpose.
25       (2)     If, in any proceedings for an offence against a rail safety law, it
26               is necessary to establish the state of mind of a body corporate in
27               relation to particular conduct, it is sufficient to show —
28                  (a) that the conduct was engaged in by a director, employee
29                        or agent of the body corporate within the scope of his or
30                        her actual or apparent authority; and



     DRAFT 2 8 May 2009 1:41                                                     page 143
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 1        General
     s. 185



1                  (b)     that the director, employee or agent had the relevant
2                          state of mind.
3        (3)     For the purposes of a prosecution for an offence against a rail
4                safety law, conduct engaged in on behalf of a body corporate by
5                a director, employee or agent of the body corporate within the
6                scope of his or her actual or apparent authority is taken to have




                                              ft
7                been engaged in also by the body corporate unless the body
8                corporate establishes that it took reasonable precautions and
9                exercised due diligence to avoid the conduct.
10       (4)     If, in proceedings for an offence against a rail safety law, it is
11               necessary to establish the state of mind of a person other than
12               the body corporate (the employer) in relation to particular
13               conduct, it is sufficient to show —
14                  (a) that the conduct was engaged in by an employee or
15                        agent of the employer within the scope of his or her
16                        actual or apparent authority; and
17
        a          (b) that the employee or agent had the relevant state of
18                        mind.
19       (5)     For the purposes of a prosecution for an offence against a rail
20               safety law, conduct engaged in on behalf of a person other than
                 a body corporate (the employer) by an employee or agent of the
     Dr
21
22               employer within the scope of his or her actual or apparent
23               authority is taken to have been engaged in also by the employer,
24               unless the employer establishes that the employer took
25               reasonable precautions and exercised due diligence to avoid the
26               conduct.

27   185.        Records and evidence from records (Model Bill cl. 124)
28       (1)     The Rail Safety Regulator must keep records of the grant,
29               refusal, variation, suspension, surrender and revocation of
30               accreditations, and of any conditions or restrictions of
31               accreditations, and of improvement notices and prohibition
32               notices, under this Act.


     page 144                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                                  General       Division 1
                                                                                     s. 186



1        (2)     A certificate purporting to be signed by the Rail Safety
2                Regulator and certifying that —
3                 (a) on a date specified in the certificate; or
4                 (b) during any period so specified,
5                the particulars set out in the certificate as to any matter required
6                to be recorded under this section did or did not appear on or




                                              ft
7                from the records is, for the purposes of any legal proceedings,
8                evidence of what it certifies.
9        (3)     A certificate is admissible in any proceedings —
10                (a) without proof of the signature of the Rail Safety
11                       Regulator; and
12                (b) without production of any record or document on which
13                       the certificate is founded.

14   186.        Certificate evidence (Model Bill cl. 125)
15
        a        A statement in a certificate purporting to be issued by the Rail
16               Safety Regulator, a corresponding Rail Safety Regulator, a rail
17               safety officer or a police officer as to any matter that appears in,
18               or can be calculated from, records kept or accessed by the Rail
19               Safety Regulator is admissible in any proceedings and is
     Dr
20               evidence of the matter.

21   187.        Proof of appointments and signatures unnecessary (Model
22               Bill cl. 126)
23       (1)     In this section —
24               office holder means —
25                 (a) the Rail Safety Regulator; or
26                 (b) a corresponding Rail Safety Regulator; or
27                 (c) the Commissioner of Police; or
28                 (d) the head of the police force or police service of any
29                        other jurisdiction; or
30                 (e) a rail safety officer; or

     DRAFT 2 8 May 2009 1:41                                                     page 145
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 1        General
     s. 188



1                   (f)     a rail safety officer of another jurisdiction; or
2                  (g)     a police officer; or
3                  (h)     a police officer of another jurisdiction.
4        (2)     For the purposes of this Act, it is not necessary to prove the
5                appointment of an office holder.




                                              ft
6        (3)     For the purposes of this Act, a signature purporting to be the
7                signature of an office holder is evidence of the signature it
8                purports to be.

9    188.        Offences by bodies corporate, partnerships, associations and
10               employees (Model Bill cl. 128)
11       (1)     If a body corporate commits an offence against a rail safety law,
12               each director of the body corporate, and each person concerned
13               in the management of the body corporate, is taken to have
14               committed the offence and is punishable accordingly.
15
        a(2)     If a person who is a partner in a partnership commits an offence
16               against a rail safety law in the course of the activities of the
17               partnership, each other person who is a partner in the
18               partnership, and each person concerned in the management of
19               the partnership, is taken to have committed the offence and is
     Dr
20               punishable accordingly.
21       (3)     If a person who is concerned in the management of an
22               unincorporated association commits an offence against a rail
23               safety law in the course of the activities of the unincorporated
24               association, each other person concerned in the management of
25               the unincorporated association is taken to have committed the
26               offence and is punishable accordingly.
27       (4)     Subsections (1), (2) and (3) do not affect the liability of the
28               person who actually committed the offence.
29       (5)     If an employee commits an offence against a rail safety law, the
30               employer is taken to have committed the offence and is
31               punishable accordingly.

     page 146                                                    DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                                  General       Division 1
                                                                                     s. 188



1        (6)     If a person who performs rail safety work on a voluntary or
2                unpaid basis for a rail transport operator commits an offence
3                against a rail safety law, the rail transport operator is taken to
4                have committed the offence and is punishable accordingly.
5        (7)     A person may be proceeded against and found guilty of an
6                offence arising under this section whether or not the body




                                              ft
7                corporate or other person who actually committed the offence
8                has been proceeded against or been found guilty of the offence.
9        (8)     It is a defence to a charge for an offence arising under
10               subsection (1) if the defendant establishes that —
11                  (a) the defendant was not in a position to influence the
12                        conduct of the body corporate in relation to the actual
13                        offence; or
14                 (b)     the defendant, being in such a position, took reasonable
15                         precautions and exercised due diligence to prevent the
16                         commission of the actual offence.
        a
17       (9)     It is a defence to a charge for an offence arising under
18               subsection (2) or (3) if the defendant establishes that —
19                  (a) the defendant was not in a position to influence the
20                        conduct of the person who actually committed the
     Dr
21                        offence; or
22                 (b) the defendant, being in such a position, took reasonable
23                        precautions and exercised due diligence to prevent the
24                        commission of the actual offence.
25     (10)      It is a defence to a charge for an offence arising under
26               subsection (5) or (6) if the defendant establishes that —
27                  (a) the defendant had no knowledge of the actual offence;
28                        or
29                 (b) the defendant took reasonable precautions and exercised
30                        due diligence to prevent the commission of the actual
31                        offence.



     DRAFT 2 8 May 2009 1:41                                                     page 147
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 2        Discrimination against employees
     s. 189



1                Division 2 — Discrimination against employees
2    189.        Dismissal or other victimisation of employee (Model Bill
3                cl. 129)
4        (1)     In this section —
5                employee includes an individual who works under a contract for




                                              ft
6                services;
7                public agency includes an Australian Rail Safety Regulator, a
8                rail safety officer, a police officer and a police officer of another
9                jurisdiction.
10       (2)     This section applies to —
11                (a) an employer who dismisses an employee, injures an
12                       employee in the employment of the employer or alters
13                       the position of an employee to the employee’s
14                       detriment; and
15
        a         (b) an employer who threatens to do any of those things to
16                       an employee; and
17                (c) an employer or prospective employer who refuses or
18                       fails to offer employment to a prospective employee, or
19                       treats a prospective employee less favourably than
     Dr
20                       another prospective employee would be treated in
21                       offering terms of employment.
22       (3)     The employer or prospective employer commits a crime if the
23               employer or prospective employer engaged in that conduct
24               because the employee or prospective employee, as the case may
25               be —
26                 (a) has assisted or has given any information to a public
27                      agency in respect of a breach or alleged breach of an
28                      Australian rail safety law; or
29                 (b) has made a complaint about a breach or alleged breach
30                      of an Australian rail safety law to the employer, a fellow
31                      employee, a union or a public agency; or


     page 148                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                      Discrimination against employees          Division 2
                                                                                     s. 190



1                  (c)  assists or has assisted, or gives or has given any
2                       information to, a public agency in respect of a breach or
3                       alleged breach of an Australian rail safety law; or
4                 (d) has made a complaint about a breach or alleged breach
5                       of an Australian rail safety law to a former employer, a
6                       former fellow employee, a union or a public agency.




                                              ft
7                Penalty:
8                    (a) in the case of an individual, a fine of $5 000;
9                    (b) in the case of a body corporate, a fine of $50 000.
10       (4)     An employer or prospective employer may be guilty of an
11               offence against subsection (3) only if the reason mentioned in
12               subsection (3)(a), (b), (c) or (d) is the dominant reason why the
13               employer or prospective employer engaged in the conduct.

14   190.        Defendant bears onus of proof (Model Bill cl. 130)
15
        a        In proceedings for an offence against section 189, if all the facts
16               constituting the offence other than the reason for the defendant’s
17               conduct are proved, the defendant bears the onus of proving that
18               the reason alleged in the charge was not the dominant reason
19               why the defendant engaged in the conduct.
     Dr
20   191.        Order for damages or reinstatement (Model Bill cl. 131)
21       (1)     In this section —
22               employee includes an individual who works under a contract for
23               services.
24       (2)     If an employer or prospective employer is convicted or found
25               guilty of an offence against section 189, the court may, in
26               addition to imposing a penalty, make either or both of the
27               following orders —
28                 (a) an order that the offender pay, within a specified period,
29                       such damages to the employee or prospective employee
30                       against whom the offender discriminated as the court
31                       considers appropriate to compensate him or her;

     DRAFT 2 8 May 2009 1:41                                                     page 149
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 3        False or misleading information
     s. 192



1                  (b)     an order that —
2                            (i) the employee be reinstated or re-employed in his
3                                 or her former position or, if that position is not
4                                 available, in a similar position; or
5                           (ii) the prospective employee be employed in the
6                                 position for which he or she had applied or a




                                              ft
7                                 similar position.

8                 Division 3 — False or misleading information
9    192.        False or misleading information provided to Rail Safety
10               Regulator or officials (Model Bill cl. 132)
11       (1)     In this section —
12               official means a rail safety officer or a person assisting a rail
13               safety officer.
14       (2)     A person commits an offence if —
15
        a         (a) the person makes a statement to the Rail Safety
16                      Regulator or to an official who is exercising a power
17                      under a rail safety law; and
18                (b) the person knows that the statement is false or
                        misleading in a material particular.
     Dr
19

20       (3)     A person commits an offence if —
21                (a) the person makes a statement to the Rail Safety
22                      Regulator or to an official who is exercising a power
23                      under a rail safety law; and
24                (b) the statement is false or misleading in a material
25                      particular; and
26                (c) the person is reckless as to whether the statement is false
27                      or misleading in a material particular.
28       (4)     A person commits an offence if —




     page 150                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                         False or misleading information        Division 3
                                                                                     s. 192



1                  (a)     the person gives a document to the Rail Safety
2                          Regulator or to an official who is exercising a power
3                          under a rail safety law; and
4                  (b)     the document contains a statement that is false or
5                          misleading in a material particular; and
6                  (c)     the person is reckless as to whether the document




                                              ft
7                          contains a statement that is false or misleading in a
8                          material particular.
9        (5)     Subsection (4) does not apply if, at the time the person gave the
10               document to the Rail Safety Regulator or to an official, the
11               person informed the Rail Safety Regulator or official that the
12               document contained a statement that was false or misleading in
13               a material particular and specified in what respect it was false or
14               misleading.
15       (6)     The penalty for an offence under this section committed in
16               relation to the Rail Safety Regulator or official exercising a
17
        a        power under a rail safety law is —
18                 (a) if there is one offence under the provision of the rail
19                        safety law under which the power is exercised, the
20                        penalty for that offence; or
                   (b) if there is more than one offence under that provision,
     Dr
21
22                        the penalties for those offences if the penalties are the
23                        same, or the lower or lowest of the penalties if they are
24                        different; or
25                 (c) if there is no offence under that provision, the following
26                        penalty —
27               Penalty:
28                     (a) for a first offence, a fine of $10 000;
29                     (b) for a second or subsequent offence, a fine of $15 000.




     DRAFT 2 8 May 2009 1:41                                                     page 151
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 4        Other offences
     s. 193



1                               Division 4 — Other offences
2    193.        Obstructing or hindering rail safety officers (Model Bill
3                cl. 133)
4        (1)     A person must not —
5                  (a) intentionally hinder or obstruct the Rail Safety




                                              ft
6                       Regulator, a rail safety officer or a person assisting the
7                       Rail Safety Regulator or a rail safety officer in the
8                       exercise of his or her functions under this Act, or induce
9                       or attempt to induce any other person to do so; or
10                (b) intentionally conceal from the Rail Safety Regulator, a
11                      rail safety officer or a person assisting the Rail Safety
12                      Regulator or a rail safety officer, the location or
13                      existence of, or fail to comply with a request to produce,
14                      a record, document or any other thing.
15               Penalty: a fine of $16 500.
16
        a(2)     A person must not assault, directly or indirectly intimidate or
17               threaten, or attempt to intimidate or threaten, the Rail Safety
18               Regulator, a rail safety officer or a person assisting the Rail
19               Safety Regulator or a rail safety officer.
20               Penalty: a fine of $33 000.
     Dr
21   194.        Offence to impersonate rail safety officer (Model Bill
22               cl. 134)
23               A person who is not a rail safety officer must not, in any way,
24               hold himself or herself out to be a rail safety officer.
25               Penalty: a fine of $11 000.

26   195.        Not to interfere with rail infrastructure etc. (Model Bill
27               cl. 135)
28       (1)     In this section —
29               authorised person means the rail transport operator, a rail safety
30               officer or a police officer.

     page 152                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                   Enforceable voluntary undertakings           Division 5
                                                                                     s. 196



1        (2)     A person must not, without either the permission of an
2                authorised person or reasonable excuse —
3                  (a) move or attempt to move; or
4                  (b) interfere or attempt to interfere with; or
5                  (c) disable or attempt to disable; or
6                  (d) operate or attempt to operate,




                                              ft
7                any equipment, rail infrastructure or rolling stock owned or
8                operated by a rail transport operator.
9                Penalty: a fine of $40 000.

10   196.        Applying brake or emergency device (Model Bill cl. 136)
11               A person must not, without reasonable excuse —
12                 (a)  apply any brake or make use of any emergency device
13                      fitted to a train or tram; or
                  (b) make use of any emergency device on railway premises.
14
        a
15               Penalty: a fine of $20 000.

16   197.        Stopping a train or tram (Model Bill cl. 137)
17               A person must not, without reasonable excuse, cause or attempt
     Dr
18               to cause a train or tram in motion to be stopped.
19               Penalty: a fine of $20 000.

20             Division 5 — Enforceable voluntary undertakings
21   198.        Rail Safety Regulator may accept undertakings (Model Bill
22               cl. 140)
23       (1)     The Rail Safety Regulator may accept, by written notice, a
24               written undertaking given by a person in connection with a
25               matter relating to a contravention or alleged contravention by
26               the person of this Act.
27       (2)     The person may withdraw or vary the undertaking at any time
28               but only with the Rail Safety Regulator’s written consent.

     DRAFT 2 8 May 2009 1:41                                                     page 153
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 6        Court based sanctions
     s. 199



1        (3)     Neither the Rail Safety Regulator nor a rail safety officer may
2                bring proceedings for an offence against this Act constituted by
3                the contravention or alleged contravention to which the
4                undertaking relates.

5    199.        Enforcement of undertakings (Model Bill cl. 141)




                                              ft
6        (1)     If the Rail Safety Regulator considers that a person has
7                contravened an undertaking accepted by the Rail Safety
8                Regulator, the Rail Safety Regulator may apply to the
9                Magistrates Court for enforcement of the undertaking.
10       (2)     If the Magistrates Court is satisfied that the person has
11               contravened the undertaking, it may make —
12                 (a) an order that the person must comply with the
13                       undertaking or take specified action to comply with the
14                       undertaking; or
15                 (b) any other order that it considers appropriate.
        a
16                        Division 6 — Court based sanctions
17   200.        Daily penalty for continuing offences (Model Bill cl. 143)
18       (1)     If an offence is committed by a person by reason of a
     Dr
19               contravention of a provision of this Act, but not the regulations,
20               under which the person is required or directed to do any act or
21               thing, or to refrain from doing any act or thing, that offence is
22               taken to continue so long as the act or thing so required or
23               directed remains undone, or continues to be done, as the case
24               may be.
25       (2)     A person convicted of such an offence is liable, in addition to
26               the penalty otherwise prescribed for the offence, to a daily
27               penalty not exceeding one fifth of the maximum penalty
28               prescribed for the offence for each day or part of a day during
29               which the offence continues after conviction.




     page 154                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                   Court based sanctions        Division 6
                                                                                     s. 201



1    201.        Commercial benefits order (Model Bill cl. 144)
2        (1)     A court that finds a person guilty of an offence against a rail
3                safety law may, on the application of the prosecutor or the Rail
4                Safety Regulator, make an order under this section.
5        (2)     The court may make a commercial benefits order requiring the
6                person to pay, as a fine, an amount not exceeding 3 times the




                                              ft
7                amount estimated by the court to be the gross commercial
8                benefit that —
9                  (a) was received or receivable, by the person or by an
10                       associate of the person, from the commission of the
11                       offence; and
12                 (b) in the case of a journey that was interrupted or not
13                       commenced because of action taken by a rail safety
14                       officer in connection with the commission of the
15                       offence, would have been received or receivable, by the
16                       person or by an associate of the person, from the
17
        a                commission of the offence had the journey been
18                       completed.
19       (3)     In estimating the gross commercial benefit that was or would
20               have been received or receivable from the commission of the
                 offence, the court may take into account —
     Dr
21

22                 (a) benefits of any kind, whether monetary or otherwise;
23                       and
24                 (b) monetary savings or a reduction in any operating or
25                       capital expenditure of any kind achieved because of the
26                       commission of the offence; and
27                 (c) any other matters that it considers relevant, including,
28                       for example —
29                          (i) the value per tonne or per kilometre of the
30                               carriage of the goods involved in the offence as
31                               freight; and
32                         (ii) the distance over which any such goods were or
33                               were to be carried.

     DRAFT 2 8 May 2009 1:41                                                     page 155
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 6        Court based sanctions
     s. 201



1        (4)     In estimating the gross commercial benefit that was or would
2                have been received or receivable from the commission of the
3                offence, the court is required to disregard any costs, expenses or
4                liabilities incurred by the person or by an associate of the
5                person.
6        (5)     Nothing in this section prevents the court from ordering




                                              ft
7                payment of an amount that is —
8                  (a) less than 3 times the estimated gross commercial
9                       benefit; or
10                 (b) less than the estimated gross commercial benefit.
11       (6)     For the purposes of this section, a person is an associate of
12               another if —
13                 (a) one is a spouse, de facto partner, parent, brother, sister
14                       or child of the other; or
15                 (b) they are members of the same household; or
16
        a          (c) they are partners; or
17                 (d) they are both trustees or beneficiaries of the same trust,
18                       or one is a trustee and the other is a beneficiary of the
19                       same trust; or
20                 (e) one is a body corporate and the other is a director or
     Dr
21                       member of the governing body of the body corporate; or
22                  (f) one is a body corporate, other than a public company
23                       whose shares are listed on a stock exchange, and the
24                       other is a shareholder in the body corporate; or
25                 (g) one is a related body corporate, within the meaning
26                       given in the Corporations Act 2001 (Commonwealth)
27                       section 9, of the other; or
28                 (h) a chain of relationships can be traced between them
29                       under any one or more of the above paragraphs.
30       (7)     For the purposes of subsection (6), a beneficiary of a trust
31               includes an object of a trust.


     page 156                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                   Court based sanctions        Division 6
                                                                                     s. 202



1    202.        Exclusion orders (Model Bill cl. 147)
2        (1)     A court that finds a person guilty of an offence against a rail
3                safety law may, on the application of the prosecutor or the Rail
4                Safety Regulator, if the court considers the person to be a
5                systematic or persistent offender against the Australian rail
6                safety laws, make an order under this section.




                                              ft
7        (2)     For the purpose of restricting opportunities for the person to
8                commit or be involved in the commission of further offences
9                against Australian rail safety laws, the court may, if it considers
10               it appropriate to do so, make an exclusion order prohibiting the
11               person, for a specified period, from —
12                  (a) managing rail infrastructure, or operating rolling stock,
13                       or managing or operating a particular type of rail
14                       infrastructure or rolling stock; or
15                  (b) being a director, secretary or officer concerned in the
16                       management of a body corporate involved in managing
17
        a                rail infrastructure that is in this jurisdiction or operating
18                       rolling stock in this jurisdiction; or
19                  (c) being involved in managing rail infrastructure that is in
20                       this jurisdiction or operating rolling stock in this
21                       jurisdiction except by driving a train or rolling stock.
     Dr
22       (3)     A court may only make an order under this section if it is
23               satisfied that the person should not continue the things the
24               subject of the proposed order, having regard to —
25                 (a) the offences against the Australian rail safety laws of
26                        which the person has previously been found guilty; and
27                 (b) the offences against the Australian rail safety laws of
28                        which the person has been proceeded against by way of
29                        unwithdrawn infringement notices; and
30                 (c) any other offences or other matters that the court
31                        considers to be relevant to the conduct of the person in
32                        connection with railway operations.


     DRAFT 2 8 May 2009 1:41                                                     page 157
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 7        Undertakings
     s. 203



1        (4)     A court that has power to make an exclusion order may revoke
2                or amend an exclusion order on the application of —
3                  (a) the Rail Safety Regulator; or
4                  (b) the person in respect of whom the order was made, but
5                       in that case only if the court is satisfied that there has
6                       been a change of circumstances warranting revocation or




                                              ft
7                       amendment.

8    203.        Contravention of exclusion order (Model Bill cl. 148)
9                A person who is subject to an exclusion order must not engage
10               in conduct that results in a contravention of the order.
11               Penalty: in the case of an individual, a fine of $82 500;
12               Penalty: in the case of a body corporate, a fine of $825 000.

13                              Division 7 — Undertakings
14
        a
     204.        Court may allow offender to make election
15       (1)     If —
16                 (a)     a person (the offender) is found guilty, whether after a
17                         plea of guilty or otherwise, of an offence against a rail
18                         safety law; and
     Dr
19                 (b)     the court has fined the offender; and
20                 (c)     the court considers the person to be a systematic or
21                         persistent offender against the Australian rail safety
22                         laws; and
23                 (d)     the court is satisfied that an undertaking by the offender
24                         is capable of improving the offender’s ability or
25                         willingness to comply with the rail safety laws, having
26                         regard to —
27                            (i) the offences against Australian rail safety laws of
28                                 which the offender has been previously found
29                                 guilty; and



     page 158                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                            Undertakings        Division 7
                                                                                     s. 204



1                            (ii)   the offences against Australian rail safety laws
2                                   for which the offender has been proceeded
3                                   against by way of unwithdrawn infringement
4                                   notices; and
5                           (iii)   any other offences or other matters that the court
6                                   considers to be relevant to the conduct of the
                                    offender in connection with railway operations,




                                              ft
7

8                the court may, subject to subsection (2), make an order allowing
9                the offender to elect either —
10                 (e) to pay the fine; or
11                 (f) as an alternative, to enter into an undertaking with the
12                       Rail Safety Regulator under section 208 not later than a
13                       day specified by the court.
14   [Model Bill cl. 145(1); OSH s. 55I(1)]
15       (2) A court is not to make an order under this section unless the
16
        a    court is satisfied that —
17             (a) the offender wishes an order to be made and the Rail
18                   Safety Regulator does not oppose that being done; and
19             (b) the offender and the Rail Safety Regulator are likely to
20                   reach agreement on the provisions of the proposed
     Dr
21                   undertaking within the time that the court proposes to
22                   specify under subsection (1)(f).
23   [OSH s. 55I(2)(b) and (c)]
24       (3)     After the court has fined the offender, the court may adjourn the
25               proceedings to allow —
26                 (a) the offender time to consider whether the offender
27                       wishes an order to be made; and
28                 (b) the Rail Safety Regulator time to consider whether to
29                       oppose that being done,
30           as mentioned in subsection (2)(a).
31   [OSH s. 55I(3)]


     DRAFT 2 8 May 2009 1:41                                                     page 159
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 7        Undertakings
     s. 205



1        (4) Nothing in this Division limits the powers of a court under the
2            Sentencing Act 1995.
3    [OSH s. 55I(4)]

4    205.        Making of election
5        (1)     An election is made, pursuant to an order under section 204(1),




                                              ft
6                by the offender —
7                  (a) lodging an election in writing with the court in which
8                        the order was made; and
9                 (b) serving a copy of the election on the Rail Safety
10                       Regulator,
11               not later than 28 days after the day on which the order was
12               made.
13       (2)     If —
14                 (a)     an order is made under section 204(1); but
15
        a          (b)     the offender fails to make an election in accordance with
16                         subsection (1),
17           the offender is taken, at the expiry of the period mentioned in
18           subsection (1), to have elected to pay the fine.
     Dr
19   [OSH s. 55J]

20   206.        Failure to enter into undertaking
21           An election under section 205 to enter into an undertaking
22           lapses if the undertaking is for any reason not entered into
23           before the time allowed under section 204(1)(f).
24   [OSH s. 55K]

25   207.        Time for payment of fine
26       (1)     The liability of the offender to pay a fine in connection with
27               which an order is made under section 204(1) is suspended by
28               the making of the order.


     page 160                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                            Undertakings        Division 7
                                                                                     s. 208



1        (2)     If the offender elects to pay the fine, for the purposes of the
2                Fines, Penalties and Infringement Notices Enforcement
3                Act 1994 section 32, the fine is taken to have been imposed on
4                the day on which the election is made.
5        (3)     If the offender is taken by section 205(2) to have elected to pay
6                the fine, for the purposes of the section referred to in




                                              ft
7                subsection (2) the fine is taken to have been imposed at the time
8                mentioned in section 205(2).
9        (4)     If —
10                 (a)     the offender elects to enter into an undertaking; but
11                 (b)     the election lapses under section 206,
12           for the purposes of the section referred to in subsection (2) the
13           fine is taken to have been imposed on the day specified under
14           section 204(1)(f).
15   [OSH s. 55L]
        a
16   208.        Nature and terms of undertaking
17       (1)     An undertaking for the purposes of this Division is a document
18               by which the offender gives undertakings to the Rail Safety
19               Regulator that the offender will —
     Dr
20                 (a) take the action specified in the undertaking; and
21                (b) bear the costs and expenses of doing so; and
22                 (c) complete all of the required action not later than a day
23                      specified in the document.
24       (2)     The action required to be taken by the offender is to come
25               within the provisions described in section 209(2) or (3).
26       (3)     The provisions of the undertaking are to be such as are agreed
27               between the Rail Safety Regulator and the offender.
28       (4)     The Rail Safety Regulator is to furnish a copy of an
29               undertaking, and of any amendment made under section 212, to
30               the court concerned.

     DRAFT 2 8 May 2009 1:41                                                     page 161
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 7        Undertakings
     s. 209



1    [OSH s. 55M]

2    209.        What may be included in undertaking
3        (1)     In this section —
4                specified means specified in the undertaking.
         (2)     An undertaking is to provide for the offender to do one or more




                                              ft
5
6                of the following —
7                  (a) to do specified things that the Rail Safety Regulator
8                        considers will improve the person’s compliance with rail
9                        safety laws or specified aspects of rail safety laws,
10                       including, for example, the following —
11                          (i) appointing or removing staff to or from
12                               particular activities or positions;
13                         (ii) training and supervising staff;
14                        (iii) obtaining expert advice as to maintaining
15
        a                        appropriate compliance;
16                        (iv) installing monitoring, compliance, managerial or
17                               operational equipment;
18                         (v) implementing monitoring, compliance,
19                               managerial or operational practices, systems or
     Dr
20                               procedures;
21                 (b) to conduct specified monitoring, compliance,
22                       managerial or operational practices, systems or
23                       procedures subject to the direction of the Rail Safety
24                       Regulator or a person nominated by the Rail Safety
25                       Regulator;
26                 (c) to furnish compliance reports to the Rail Safety
27                       Regulator as specified;
28                 (d) to appoint a person to have responsibilities —
29                          (i) to assist the person in improving compliance
30                               with rail safety laws or specified aspects of rail
31                               safety laws; and


     page 162                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                            Undertakings        Division 7
                                                                                     s. 210



1                            (ii)   to monitor the person’s performance in
2                                   complying with rail safety laws or specified
3                                   aspects of rail safety laws and in complying with
4                                   the requirements of the undertaking; and
5                           (iii)   to furnish compliance reports to the Rail Safety
6                                   Regulator as specified.




                                              ft
7    [Model Bill cl. 145(3)]
8        (3)     The Rail Safety Regulator may require that an undertaking
9                contain any incidental or supplementary provision that the Rail
10               Safety Regulator considers necessary or expedient to achieve its
11               purpose, including provision for —
12                 (a) the reporting of matters; and
13                 (b) the reporting of compliance under section 213,
14           to the Rail Safety Regulator.
15   [OSH s. 55N(3)]
        a
16       (4)     An undertaking cannot provide for the offender to take any
17               action —
18                 (a)     that the offender has a duty to take in order to comply
19                         with any provision of this Act; or
     Dr
20                 (b)     for the taking of which an improvement notice or a
21                         prohibition notice could be issued.
22   [OSH s. 55N(4)]

23   210.        Effect of undertaking
24           The liability of the offender to pay a fine in connection with
25           which the undertaking is given —
26             (a) is suspended by the giving of the undertaking; and
27             (b) is cancelled by the full discharge of the offender’s
28                   obligations under the undertaking.
29   [OSH s. 55O]



     DRAFT 2 8 May 2009 1:41                                                     page 163
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 8            General liability and evidentiary provisions
     Division 7        Undertakings
     s. 211



1    211.        Failure to comply with undertaking
2        (1)     An offender commits an offence if the offender fails to
3                discharge fully the obligations under an undertaking before the
4                day specified in the undertaking in accordance with
5                section 208(1)(c).
6                Penalty:




                                              ft
7                     (a) if the offence was committed by the offender as an
8                           employee —
9                             (i) for a first offence, a fine of $5 000;
10                           (ii) for a subsequent offence, a fine of $6 250;
11                    (b) if paragraph (a) does not apply —
12                            (i) in the case of an individual —
13                                     (I) for a first offence, a fine of $25 000;
14                                    (II) for a subsequent offence, a fine of
                                            $31 250;
15
        a
16                           (ii) in the case of a body corporate —
17                                     (I) for a first offence, a fine of $50 000;
18                                    (II) for a subsequent offence, a fine of
19                                          $62 500.
     Dr
20       (2)     A court that convicts an offender of an offence against
21               subsection (1) must order that a fine to which the undertaking
22               relates be paid in addition to any penalty imposed for the
23               offence against subsection (1).
24       (3) For the purposes of the Fines, Penalties and Infringement
25           Notices Enforcement Act 1994 section 32, a fine to which an
26           order under subsection (2) applies is taken to be imposed on the
27           day on which that order is made.
28   [OSH s. 55P]




     page 164                                                  DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                      Rail Safety Bill 2009
                              General liability and evidentiary provisions           Part 8
                                                            Undertakings        Division 7
                                                                                     s. 212



1    212.        Amendment of undertaking
2            An undertaking may be amended by an instrument in writing
3            signed by the offender and the Rail Safety Regulator.
4    [OSH s. 55Q]

5    213.        Compliance report




                                              ft
6        (1)     A compliance report required by the Rail Safety Regulator
7                under section 209(3)(b) may require that the offender report
8                on —
9                  (a) the performance of the offender in complying with —
10                         (i) the rail safety laws or aspects of rail safety laws
11                              specified in the undertaking; and
12                        (ii) the requirements of the undertaking;
13                      and
14                 (b) without limiting the above —
15
        a                  (i) things done by the offender to ensure that any
16                              failure by the offender to comply with the rail
17                              safety laws or the specified aspects of the rail
18                              safety laws does not continue; and
                          (ii) the results of those things having been done.
     Dr
19

20       (2)     A requirement of the Rail Safety Regulator may specify matters
21               that are to be dealt with in compliance reports and the form and
22               manner in which, and frequency with which, compliance reports
23               are to be prepared and furnished.
24       (3)     The Rail Safety Regulator may require that compliance reports
25               or aspects of compliance reports be made public, and may
26               specify the form and manner in which, and frequency with
27               which, they are to be made public.




     DRAFT 2 8 May 2009 1:41                                                     page 165
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 9            General
     Division 1        Confidentiality
     s. 214



1                                    Part 9 — General
2                              Division 1 — Confidentiality
3    214.        Confidentiality (Model Bill cl. 149)
4        (1)     This section applies to a person engaged or previously engaged




                                              ft
5                in the administration of this Act and without limiting the
6                foregoing to the following —
7                  (a) a rail safety officer or a person assisting a rail safety
8                        officer;
9                  (b) an independent investigator or authorised officer;
10                 (c) a person authorised by the Rail Safety Regulator or rail
11                       safety officer under a provision of this Act to do the act
12                       or thing provided for in that provision;
13                 (d) a person who is or was a delegate of the Rail Safety
14                       Regulator;
15
        a          (e) a person who is or was employed by, or engaged to
16                       provide services to or on behalf of, the Rail Safety
17                       Regulator;
18                  (f) a person who is or was employed by, or engaged to
                         provide services to, a person or body engaged to provide
     Dr
19
20                       services to the Rail Safety Regulator.
21       (2)     Subject to Part 6 Division 6, a person to whom this section
22               applies must not disclose or communicate information obtained
23               (whether by that person or otherwise) in the administration of
24               this Act except —
25                 (a) as required or authorised under this or any other Act; or
26                 (b) with the consent of the person from whom the
27                       information was obtained or to whom the information
28                       relates; or
29                 (c) in connection with the administration of rail safety laws
30                       or corresponding rail safety laws; or


     page 166                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                            General             Part 9
                                                        Civil liability    Division 2
                                                                                s. 215



1                  (d)  for law enforcement purposes, an investigation under
2                       section 82 or public safety; or
3                  (e) for the purpose of enforcing the provisions of the
4                       Occupational Safety and Health Act 1984; or
5                  (f) to a court or in connection with any legal proceedings;
6                       or




                                              ft
7                 (g) in accordance with the regulations.
8                Penalty: a fine of $5 500.
9        (3)     Nothing in this section prevents information being used to
10               enable an Australian Rail Safety Regulator to accumulate
11               aggregate data and to enable the Australian Rail Safety
12               Regulator to authorise use of the aggregate data for the purposes
13               of research or education.

14                               Division 2 — Civil liability
15
        a
     215.        Civil liability not affected by Part 4 Division 1 or 4 (Model
16               Bill cl. 150)
17       (1)     Nothing in Part 4 Division 1 or 4 is to be construed —
18                (a) as conferring a right of action in any civil proceedings in
                        respect of any contravention, whether by act or
     Dr
19
20                      omission, of any provisions of that Division; or
21                (b) as conferring a defence to an action in any civil
22                      proceedings or as otherwise affecting a right of action in
23                      any civil proceedings.
24       (2)     Subsection (1) does not affect the extent, if any, to which a
25               breach of duty imposed by the regulations is actionable.

26   216.        Immunity from tortious liability
27       (1)     In this section —
28               official means —
29                 (a) the Rail Safety Regulator; or


     DRAFT 2 8 May 2009 1:41                                                page 167
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 9            General
     Division 2        Civil liability
     s. 217



1                  (b)     a rail safety officer; or
2                  (c)     an independent investigator; or
3                  (d)     an authorised officer.
4        (2)     In this section, a reference to the doing of anything includes a
5                reference to an omission to do anything.




                                              ft
6        (3)     An action in tort does not lie against an official for anything that
7                the official has done, in good faith, in the performance or
8                purported performance of a function under this Act.
9        (4)     The protection given by subsection (3) applies even though the
10               thing done as described in that subsection may have been
11               capable of being done whether or not this Act had been enacted.
12       (5)     The State is also relieved of any liability that it might otherwise
13               have had for another person having done anything as described
14               in subsection (3).

15
        a
     217.        Immunity for reporting unfit rail safety worker (Model Bill
16               cl. 152)
17       (1)     In this section —
18               person to whom this section applies means —
     Dr
19                 (a) a medical practitioner within the meaning given in the
20                        Medical Act 1894 section 3(1); or
21                 (b) an optometrist within the meaning given in the
22                        Optometrists Act 2005 section 3; or
23                 (c) a physiotherapist within the meaning given in the
24                        Physiotherapists Act 2005 section 3.
25       (2)     No action may be taken against a person to whom this section
26               applies who, in good faith, reports to —
27                 (a) an independent investigator; or
28                 (b) the Rail Safety Regulator; or
29                 (c) a rail transport operator; or


     page 168                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                               General            Part 9
                                        Compliance codes and guidelines      Division 3
                                                                                  s. 218



1                  (d)     any other person to whom this section applies who is
2                          employed or engaged by the Rail Safety Regulator or a
3                          rail transport operator,
4                any information which discloses that a person is unfit to carry
5                out rail safety work or certain types of rail safety work or that it
6                may be dangerous to allow that person to carry out rail safety




                                              ft
7                work or certain types of rail safety work.
8        (3)     No action may be taken against a person to whom this section
9                applies who, in good faith, reports —
10                 (a) the results of a test or examination carried out under this
11                       Act; or
12                 (b) an opinion formed by that person as a result of
13                       conducting such a test or examination,
14               to a person referred to in subsection (2)(b), (c) or (d).

15
        a         Division 3 — Compliance codes and guidelines
16   218.        Approval of compliance codes and guidelines (Model Bill
17               cl. 153)
18       (1)     For the purpose of providing practical guidance to persons who
     Dr
19               have duties or obligations under this Act, the Minister may
20               make an order —
21                 (a) approving a compliance code; or
22                 (b) approving guidelines.
23       (2)     The Minister may make an order approving the variation of a
24               compliance code or guidelines or revoking the approval of a
25               compliance code or guidelines.
26       (3)     An order approving a compliance code or guidelines, or a
27               variation or revocation order, takes effect when notice of it is
28               published in the Gazette or on such later date as is specified in
29               the order.



     DRAFT 2 8 May 2009 1:41                                                   page 169
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 9            General
     Division 3        Compliance codes and guidelines
     s. 219



1        (4)     As soon as practicable after making an order approving a
2                compliance code or guidelines, or a variation or revocation
3                order, the Minister must ensure that notice of the making of the
4                order is published in the Gazette.
5        (5)     The Minister must ensure that a copy of —
6                 (a) each compliance code that is currently approved; and




                                              ft
7                 (b) guidelines that are currently approved,
8                is or are available for inspection by members of the public
9                without charge at the office of the Rail Safety Regulator during
10               normal business hours.
11       (6)     The Interpretation Act 1984 section 44 applies to a compliance
12               code or guidelines as if the code or guidelines were subsidiary
13               legislation.

14   219.        Effect of compliance code or guidelines (Model Bill cl. 154)
15
        a        A failure to comply with a compliance code or guidelines does
16               not give rise to any civil or criminal liability.

17   220.        Effect of complying with a compliance code (Model Bill
18               cl. 155)
     Dr
19               If —
20                 (a)     a compliance code makes provision for or with respect
21                         to a duty or obligation imposed by this Act; and
22                 (b)     a person complies with the compliance code to the
23                         extent that it makes that provision,
24               the person is, for the purposes of this Act, taken to have
25               complied with this Act in relation to that duty or obligation.

26   221.        Disallowance of compliance codes (local)
27               The Interpretation Act 1984 sections 41 and 42 apply to an
28               order approving a compliance code, or a variation order, as if
29               the order were a regulation having legislative effect.

     page 170                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                              General            Part 9
                                                        Miscellaneous       Division 4
                                                                                 s. 222



1                               Division 4 — Miscellaneous
2    222.        Recovery of certain costs (Model Bill cl. 157)
3                The Rail Safety Regulator may recover as a debt from a rail
4                transport operator the reasonable costs of the entry and
5                inspection of railway infrastructure, rolling stock or railway




                                              ft
6                premises in respect of which the person is accredited, other than
7                the costs of an inspection of an accredited person under
8                section 83.

9    223.        Recovery of amounts due (Model Bill cl. 158)
10               Every fee, charge or other amount of money payable under this
11               Act may be recovered by the Rail Safety Regulator as a debt
12               due to the Crown in a court of competent jurisdiction.

13   224.        Compliance with conditions of accreditation (Model Bill
14               cl. 159)
        a
15               If —
16                 (a)     a condition or restriction to which the accreditation of a
17                         person is subject makes provision for or with respect to
18                         a duty or obligation imposed by this Act; and
     Dr
19                 (b)     the accredited person complies with the condition or
20                         restriction to the extent that it makes that provision,
21               the accredited person is, for the purposes of this Act, taken to
22               have complied with this Act in relation to that duty or
23               obligation.

24   225.        Prescribed persons (Model Bill cl. 160)
25               A person prescribed by the regulations for the purposes of this
26               section must give notice in the prescribed form and within a
27               prescribed period to a rail transport operator of the
28               commencement, or discontinuation, or completion of prescribed
29               operations or activities that may adversely affect the safety of


     DRAFT 2 8 May 2009 1:41                                                 page 171
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 9            General
     Division 4        Miscellaneous
     s. 226



1                any rail infrastructure or rolling stock of a rail transport
2                operator.
3                Penalty:
4                     (a) for an individual —
5                              (i) for a first offence, a fine of $5 000;
6                             (ii) for a second or subsequent offence, a fine of




                                              ft
7                                   $7 500;
8                     (b) for a body corporate —
9                              (i) for a first offence, a fine of $50 000;
10                            (ii) for a second or subsequent offence, a fine of
11                                  $75 000.

12   226.        Contracting out prohibited (Model Bill cl. 161)
13               A term of any contract or agreement that purports to exclude,
14               limit or modify the operation of this Act or of any provision of
15
        a        this Act is void to the extent that it would otherwise have effect.

16   227.        Regulations (Model Bill cl. 162)
17       (1)     The Governor may make regulations prescribing all matters that
18               are required or permitted by this Act to be prescribed, or are
     Dr
19               necessary or convenient to be prescribed for giving effect to the
20               purposes of this Act.
21       (2)     Without affecting the generality of subsection (1), regulations
22               may be made with respect to the following —
23                (a) trespassing on railway tracks, tramway tracks or railway
24                      premises;
25                (b) fees for the purposes of this Act;
26                (c) forms for the purposes of the Act.
27       (3)     Regulations made under this Act —
28                (a) may apply, adopt or incorporate any matter contained in
29                      any document whether —


     page 172                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                   Rail Safety Bill 2009
                                                               General            Part 9
                                                         Miscellaneous       Division 4
                                                                                  s. 227



1                            (i)    wholly or partially or as amended by the
2                                   regulations; or
3                            (ii)   as in force at a particular time or as in force from
4                                   time to time;
5                          and
6                  (b)     may provide that an application may be made to the




                                              ft
7                          State Administrative Tribunal for the review of a
8                          decision made under the regulations.
9        (4)     Regulations made under this Act may impose a penalty for a
10               contravention of the regulations not exceeding —
11                 (a) in the case of an offence committed by a person as an
12                      employee —
13                         (i) for a first offence, a fine of $5 000; and
14                        (ii) for a subsequent offence, a fine of $6 250;
15                 (b) in the case of an offence committed by an individual
16
        a               where paragraph (a) does not apply —
17                         (i) for a first offence, a fine of $25 000; and
18                        (ii) for a subsequent offence, a fine of $31 250;
19                 (c) in the case of an offence committed by a body
     Dr
20                      corporate —
21                         (i) for a first offence, a fine of $50 000; and
22                        (ii) for a subsequent offence, a fine of $62 500,
23               and if the offence is a continuing one a further penalty not
24               exceeding —
25                 (d) $200, in the case of an offence committed by a person as
26                        an employee;
27                 (e) $1 000, in the case of an offence committed by an
28                        individual where paragraph (d) does not apply;
29                  (f) $2 000, in the case of an offence committed by a body
30                        corporate,


     DRAFT 2 8 May 2009 1:41                                                   page 173
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 9            General
     Division 4        Miscellaneous
     s. 228



1                for each day or part of a day during which the offence continues
2                after notice of the offence has been given by a rail safety officer
3                to the offender.
4        (5)     The regulations may exempt, or provide for the exemption of,
5                either absolutely or subject to conditions, any person, railway,
6                part of a railway or operation from all or any of the provisions




                                              ft
7                of this Act.

8    228.        Repeals
9        (1)     The Rail Safety Act 1998 is repealed.
10       (2)     The Rail Safety Regulations 1999 are repealed.
        a
     Dr


     page 174                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Transitional         Part 10

                                                                              s. 229



1                                Part 10 — Transitional
2    229.        Terms used
3                In this Part —
4                commencement day means the day on which section 3 comes
5                into operation;




                                              ft
6                development period means a period of 12 months beginning on
7                the commencement day;
8                the repealed Act means the Rail Safety Act 1998.

9    230.        Interpretation Act 1984 not affected
10               The provisions of this Part do not prejudice or affect the
11               application of the Interpretation Act 1984 to and in relation to
12               the repeals effected by section 228.

13   231.        Authorised officer
        a
14       (1)     A person who was an authorised officer under the repealed Act
15               immediately before the commencement day is to be taken to be
16               a rail safety officer appointed under section 21(1) for a period of
17               2 years beginning on that day on the same conditions and
                 limitations, if any, as applied to his or her appointment as an
     Dr
18
19               authorised officer.
20       (2)     An identity card held by an authorised officer referred to in
21               subsection (1) immediately before the commencement day is to
22               be taken, for a period of 6 months after that day, to be an
23               identification card issued to that person under section 23(a).

24   232.        Accreditation
25               A person accredited under section 8(1) or (2) of the repealed
26               Act immediately before the commencement day is to be taken to
27               have been granted accreditation under section 37 appropriate to
28               the person’s circumstances (unless there is no requirement to
29               hold such an accreditation under this Act), and subject to the


     DRAFT 2 8 May 2009 1:41                                               page 175
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 10           Transitional

     s. 233



1                same conditions as applied to that person’s accreditation under
2                the repealed Act.

3    233.        Interim accreditation
4                A person accredited under section 11(a), (b) or (c) of the
5                repealed Act immediately before the commencement day is, on




                                              ft
6                and after that day, to be taken to be accredited under
7                section 32(1)(c) for a period of 12 months beginning on the
8                commencement day —
9                  (a) for the purpose for which accreditation was granted
10                       under the repealed Act; and
11                 (b) on the same conditions imposed under section 14 of the
12                       repealed Act (if any) as, applied to that person’s
13                       accreditation immediately before the commencement
14                       day.

15   234.        Temporary accreditation
        a
16               A person with temporary accreditation under section 12(2) of
17               the repealed Act immediately before the commencement day is
18               to be taken to be accredited under section 31 —
19                 (a) for the period for which temporary accreditation was
     Dr
20                       granted or for the period of 12 months beginning on the
21                       commencement day, whichever is the longer; and
22                 (b) on the same conditions imposed under section 14 of the
23                       repealed Act (if any) as, applied to that person’s
24                       temporary accreditation immediately before the
25                       commencement day.

26   235.        Annual fees
27               If a person is taken to be accredited under this Act, for the
28               purposes of section 40(1), the person is to be taken to have been
29               accredited on the day on which the person was accredited under
30               the repealed Act.



     page 176                                               DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Transitional         Part 10

                                                                              s. 236



1    236.        Private siding
2        (1)     A private siding registered under section 15(2)(a) of the
3                repealed Act immediately before the commencement day is, on
4                and after that day, to be taken to be registered under
5                section 57(2)(a).
6        (2)     During the development period, section 57(2)(c) does not apply




                                              ft
7                to a rail infrastructure manager’s private siding that is referred
8                to in subsection (1).

9    237.        Suspension of accreditation
10               If immediately before the commencement day a person’s
11               accreditation was suspended under section 18 or 19 of the
12               repealed Act, section 18 or 19, as the case may be, of the
13               repealed Act applies to the person as if it had not been repealed.

14   238.        Safety management plan
15
        a(1)     A safety management plan referred to in section 10 of the
16               repealed Act that exists immediately before the commencement
17               day, is to be taken to be —
18                 (a) a safety management system under section 58 during the
19                        development period; and
     Dr
20                 (b) a security management plan under section 70 during the
21                        development period,
22               to the extent that the safety management plan deals with matters
23               that must be incorporated in a safety management system or a
24               security management plan.
25       (2)     During the development period the Rail Safety Regulator may
26               give a rail transport operator who has a safety management plan
27               referred to in subsection (1) a written instruction relating to the
28               development of a safety management system under section 58
29               or a security management plan under section 70.



     DRAFT 2 8 May 2009 1:41                                               page 177
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 10           Transitional

     s. 239



1        (3)     A rail transport operator must comply with a written instruction
2                given under subsection (2) within any time specified in the
3                instruction.
4                Penalty:
5                     (a) for an individual —
6                              (i) for a first offence, a fine of $55 000;




                                              ft
7                             (ii) for a second or subsequent offence, a fine of
8                                   $82 500;
9                     (b) for a body corporate —
10                             (i) for a first offence, a fine of $550 000;
11                            (ii) for a second or subsequent offence, a fine of
12                                  $825 000.
13       (4)     Subsections (1), (2) and (3) cease to apply to a rail transport
14               operator once the operator has a safety management system
15               under section 58.
        a
16   239.        Emergency Management Plan
17       (1)     Section 71 does not apply to a rail transport operator during the
18               development period.
     Dr
19       (2)     During the development period the Rail Safety Regulator may
20               give a rail transport operator a written instruction relating to the
21               development of an emergency management plan under
22               section 71.
23       (3)     A rail transport operator must comply with a written instruction
24               given under subsection (2) within any time specified in the
25               instruction.
26               Penalty:
27                    (a) for an individual —
28                             (i) for a first offence, a fine of $55 000;
29                            (ii) for a second or subsequent offence, a fine of
30                                  $82 500;


     page 178                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                                          Transitional         Part 10

                                                                                s. 240



1                      (b)     for a body corporate —
2                                 (i) for a first offence, a fine of $550 000;
3                                (ii) for a second or subsequent offence, a fine of
4                                      $825 000.
5        (4)     Subsections (1), (2) and (3) cease to apply to a rail transport
6                operator once the operator has an emergency management plan




                                              ft
7                under section 71.

8    240.        Health and fitness management programme
9        (1)     Section 72 does not apply to a rail transport operator during the
10               development period.
11       (2)     During the development period the Rail Safety Regulator may
12               give a rail transport operator a written instruction relating to the
13               development of a health and fitness management programme
14               under section 72.
15
        a(3)     A rail transport operator must comply with a written instruction
16               given under subsection (2) within any time specified in the
17               instruction.
18               Penalty:
                      (a) for an individual —
     Dr
19

20                             (i) for a first offence, a fine of $10 000;
21                            (ii) for a second or subsequent offence, a fine of
22                                  $25 000;
23                    (b) for a body corporate —
24                             (i) for a first offence, a fine of $25 000;
25                            (ii) for a second or subsequent offence, a fine of
26                                  $31 500.
27       (4)     Subsections (1), (2) and (3) cease to apply to a rail transport
28               operator once the operator has a health and fitness management
29               programme under section 72.



     DRAFT 2 8 May 2009 1:41                                                 page 179
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 10           Transitional

     s. 241



1    241.        Alcohol and drug management programme
2        (1)     Section 73 does not apply to a rail transport operator during the
3                development period.
4        (2)     During the development period the Rail Safety Regulator may
5                give a rail transport operator a written instruction relating to the
6                development of an alcohol and drug management programme




                                              ft
7                under section 73.
8        (3)     A rail transport operator must comply with a written instruction
9                given under subsection (2) within any time specified in the
10               instruction.
11               Penalty:
12                    (a) for an individual —
13                             (i) for a first offence, a fine of $100 000;
14                            (ii) for a second or subsequent offence, a fine of
                                    $125 000;
15
        a
16                    (b) for a body corporate —
17                             (i) for a first offence, a fine of $200 000;
18                            (ii) for a second or subsequent offence, a fine of
19                                  $250 000.
     Dr
20       (4)     Subsections (1), (2) and (3) cease to apply to a rail transport
21               operator once the operator has an alcohol and drug management
22               programme under section 73.

23   242.        Fatigue management programme
24       (1)     Section 75 does not apply to a rail transport operator during the
25               development period.
26       (2)     During the development period the Rail Safety Regulator may
27               give a rail transport operator a written instruction relating to the
28               development of a fatigue management programme under
29               section 75.



     page 180                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                 Rail Safety Bill 2009
                                                         Transitional         Part 10

                                                                               s. 243



1        (3)     A rail transport operator must comply with a written instruction
2                given under subsection (2) within any time specified in the
3                instruction.
4                Penalty:
5                     (a) for an individual —
6                              (i) for a first offence, a fine of $250 000;




                                              ft
7                             (ii) for a second or subsequent offence, a fine of
8                                   $312 500;
9                     (b) for a body corporate —
10                             (i) for a first offence, a fine of $500 000;
11                            (ii) for a second or subsequent offence, a fine of
12                                  $625 000.
13       (4)     Subsections (1), (2) and (3) cease to apply to a rail transport
14               operator once the operator has a fatigue management
15               programme under section 75.
        a
16   243.        Assessment of competence
17               Section 76 does not apply to rail transport operators during the
18               period of 24 months beginning on the commencement day.
     Dr
19   244.        Identification for rail safety workers
20               Section 77 does not apply during the period of 24 months
21               beginning on the commencement day or any other prescribed
22               period beginning on that day.

23   245.        Installation of safety or protective devices
24               If the Director General has given a direction under section 28 of
25               the repealed Act and the person to whom the direction was
26               given has not complied with the direction before the
27               commencement day, that person must comply with the direction
28               on or after the commencement day and that section applies to
29               and in respect of that person and the direction as if the section
30               had not been repealed.

     DRAFT 2 8 May 2009 1:41                                                page 181
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 10           Transitional

     s. 246



1    246.        Closing railway crossings, bridges etc.
2                If immediately before the commencement day, a railway
3                crossing, bridge or other structure is temporarily closed or is
4                regulated under section 29(1) of the repealed Act, on the
5                commencement day section 121 applies to the temporary
6                closure or regulation as if the railway crossing, bridge or other




                                              ft
7                structure were closed temporarily or regulated under
8                section 121.

9    247.        Direction to stop, alter or not to start the works
10               If the Director General has given a direction to a person under
11               section 30 of the repealed Act and the direction is in effect
12               immediately before the commencement day —
13                 (a) the direction and that section apply to and in respect of
14                       that person as if the section had not been repealed; and
15                 (b) a reference in that section to an authorised officer is to
16
        a                be taken to be a reference to a rail safety officer.

17   248.        Direction to undertake remedial safety work
18               If the Director General has directed an accredited person to
19               undertake remedial safety work under section 33 of the repealed
     Dr
20               Act and the direction is in effect immediately before the
21               commencement day, the direction and that section apply to and
22               in respect of the accredited person as if the section had not been
23               repealed.

24   249.        Safety reports
25               If —
26                 (a)     an accredited person is required under section 36(1) of
27                         the repealed Act to submit an annual safety report to the
28                         Director General within the period of 28 days before the
29                         commencement day; and
30                 (b)     the report is not submitted before the commencement
31                         day,

     page 182                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Transitional         Part 10

                                                                              s. 250



1                the accredited person must submit the report as if section 36 of
2                the repealed Act had not been repealed and the reference to the
3                Director General in section 36(1) of the repealed Act were a
4                reference to the Rail Safety Regulator.

5    250.        Supply of information




                                              ft
6                If under section 37(1) of the repealed Act an accredited person
7                has been required by the Director General to provide the
8                Director General with information and that information has not
9                been provided before the commencement day, sections 37 and
10               51(2) of the repealed Act apply to the accredited person as if
11               they had not been repealed.

12   251.        Notifiable occurrences and other incidents
13               If under section 38 of the repealed Act an accredited person is
14               under an obligation or requirement to report to the Director
15               General and the accredited person has not made that report
16
        a        before the commencement day, that report is to be made on or
17               after the commencement day as if the obligation or requirement
18               were an obligation or requirement under section 81.

19   252.        Report from owner or operator
     Dr
20               If a notice has been given to an accredited person under
21               section 39(1) of the repealed Act and the accredited person has
22               not provided a written report under section 39(3) of the repealed
23               Act before the commencement day —
24                 (a) the notice is to be taken to be a notice under
25                        section 82(1); and
26                 (b) a reference in section 82 to a rail transport operator is to
27                        be taken to be a reference to the accredited person; and
28                 (c) a reference in section 82 to a notifiable occurrence is to
29                        be taken to be a reference to the railway accident or
30                        incident or other matter referred to in the notice given
31                        under section 39(1) of the repealed Act.


     DRAFT 2 8 May 2009 1:41                                               page 183
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 10           Transitional

     s. 253



1    253.        Request for certain details
2                If a notice has been given to an accredited person under
3                section 40(1) of the repealed Act and the accredited person has
4                not provided a written report under section 39(3) of the repealed
5                Act before the commencement day, sections 40 and 51(2) of the
6                repealed Act apply to the accredited person as if they had not




                                              ft
7                been repealed.

8    254.        Inquiries
9                If immediately before the commencement day an investigator
10               was conducting an inquiry under Part 5 of the repealed Act but a
11               report had not been furnished under section 43 of the repealed
12               Act before that day, the investigator is to continue to conduct
13               the inquiry as if he or she had been appointed under Part 6.

14   255.        Evidentiary provision
15
        a        In any proceedings under the repealed Act on or after the
16               commencement day, section 57 of the repealed Act applies as if
17               it had not been repealed.

18   256.        Powers in relation to transitional provision
     Dr
19       (1)     If there is no sufficient provision in this Part for dealing with a
20               transitional matter the Governor may make regulations
21               prescribing all matters that are required, necessary or convenient
22               to be prescribed in relation to that matter.
23       (2)     Regulations made under subsection (1) may provide that
24               specific provisions of this Act —
25                 (a) do not apply; or
26                 (b) apply with specific modifications,
27               to or in relation to any matter.
28       (3)     Regulations made under subsection (1) must be made within
29               12 months after the commencement day.


     page 184                                                DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                Rail Safety Bill 2009
                                                        Transitional         Part 10

                                                                              s. 256



1        (4)     If regulations made under subsection (1) provide that a specified
2                state of affairs is to be taken to have existed, or not to have
3                existed, on and from a day that is earlier than the day on which
4                the regulations are published in the Gazette but not earlier than
5                the commencement day, the regulations have effect according to
6                their terms.




                                              ft
7        (5)     In subsection (4) —
8                specified means specified or described in the regulations.
9        (6)     If regulations contain a provision referred to in subsection (4),
10               the provision does not operate so as —
11                 (a) to affect in a manner prejudicial to any person (other
12                       than the State), the right of that person existing before
13                       the day of publication of those regulations; or
14                 (b) to impose liabilities on any person (other than the State
15                       or an authority of the State) in respect of anything done
                         or omitted to be done before the day of publication of
16
17
        a                those regulations.
     Dr


     DRAFT 2 8 May 2009 1:41                                               page 185
     Stn3\D02 Rail Safety Bill 2009copy.doc
     Rail Safety Bill 2009
     Part 11           Consequential amendments
     Division 1        Government Railways Act 1904 amended
     s. 257



1                  Part 11 — Consequential amendments
2           Division 1 — Government Railways Act 1904 amended
3    257.        Act amended
4                This Division amends the Government Railways Act 1904.




                                              ft
5    258.        Section 2A amended
6                In section 2A delete “Rail Safety Act 1998” and insert:
7

8                Rail Safety Act 2009
9


10   259.        Section 13 amended
11               In section 13(1a) delete paragraph (d) and insert:
12
        a
13                         (d)    the Rail Safety Act 2009.
14


15   260.        Section 61 amended
     Dr
16               In section 61(5) delete “Rail Safety Act 1998.” and insert:
17

18               Rail Safety Act 2009.
19


20      Division 2 — Mines Safety and Inspection Act 1994 amended
21   261.        Act amended
22               This Division amends the Mines Safety and Inspection
23               Act 1994.

24   262.        Section 7 amended
25               In section 7(2) delete “Rail Safety Act 1998” and insert:

     page 186                                                 DRAFT 2 8 May 2009 1:41
     Stn3\D02 Rail Safety Bill 2009copy.doc
                                                                  Rail Safety Bill 2009
                                           Consequential amendments            Part 11
                          Public Transport Authority Act 2003 amended       Division 3
                                                                                 s. 263



1

2                Rail Safety Act 2009
3


4        Division 3 — Public Transport Authority Act 2003 amended
     263.        Act amended




                                              ft
5

6                This Division amends the Public Transport Authority Act 2003.

7    264.        Section 3 amended
8                In section 3 in the definition of train delete “Rail Safety
9                Act 1998 section 3(1);” and insert:
10

11               Rail Safety Act 2009 section 3;
12


13
        a
     265.        Section 4 amended
14               In section 4(1)(a) delete “Rail Safety Act 1998” and insert:
15

16               Rail Safety Act 2009
     Dr
17


18            Division 4 — Rail Freight System Act 2000 amended
19   266.        Act amended
20               This Division amends the Rail Freight System Act 2000.

21   267.        Section 9 amended
22               In section 9(1)(a) delete “Rail Safety Act 1998” and insert:
23

24               Rail Safety Act 2009
25



     DRAFT 2 8 May 2009 1:41                                                   page 187
     Stn3\D02 Rail Safety Bill 2009copy.doc
    Rail Safety Bill 2009
    Part 11           Consequential amendments
    Division 5        Railways (Access) Act 1998
    s. 268



1             Division 5 — Railways (Access) Act 1998 amended
2   268.        Act amended
3               This Division amends the Railways (Access) Act 1998.

4   269.        Section 8 amended




                                             ft
5               In section 8 delete “Rail Safety Act 1998.” and insert:
6

7               Rail Safety Act 2009.
8


9      a
    Dr


    page 188                                                DRAFT 2 8 May 2009 1:41
    Stn3\D02 Rail Safety Bill 2009copy.doc
Dr
   aft

				
DOCUMENT INFO
Shared By:
Categories:
Tags: Rail, Safety, Bill, 2009
Stats:
views:21
posted:5/5/2010
language:English
pages:203
Description: Rail Safety Bill 2009