Division Division 7 - National Transport Commission (Model Legislation - Rail Safety Bill) Regulations 2006 - Audit and inspections by Rail Safety Regulator | Zoe

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National Transport Commission (Model Legislation - Rail Safety Bill) Regulations 2006

Division 7Audit and inspections by Rail Safety Regulator

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Introductory note from the National Transport Commission

This Bill is intended to provide model rail safety legislative provisions for nationally consistent implementation in each State and Territory. The Bill is in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available—for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation. The model provisions may be varied where necessary to conform to local legal policy requirements and legislative drafting practice. Also, some of the model provisions have been classified as ‘non‑core’. These are considered valuable and desirable provisions for inclusion in best practice national rail safety legislation but their implementation in all jurisdictions is not regarded as essential for nationally consistent rail safety outcomes. Maximum penalty levels for rail safety offences have not been specified in the model Bill due to the need for penalty levels to be consistent with each State’s and Territory’s monetary penalty policy.

A Bill for an Act to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws and for other purposes

Part 1—Preliminary

1 Purpose

The purpose of this Act is to make provision for rail safety and other matters that form part of a system of nationally consistent rail safety laws.

Note: This section will provide for the short title or long title as appropriate for each jurisdiction.

2 Commencement

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

Note: Commencement of the Act will be as determined by the jurisdiction.

3 Objects of Act

Having regard to the importance of rail safety and regulatory efficiency, the objects of this Act are— (a) to provide for improvement of the safe carrying out of railway operations; (b) to provide for the management of risks associated with railway operations; (c) to make special provision for the control of particular risks arising from railway operations; (d) to promote public confidence in the safety of transport of persons or freight by rail.

4 Definitions

In this Act:

accredited person means a rail transport operator who is accredited under this Act but does not include person whose accreditation under this Act—

(a) has been surrendered or revoked or has otherwise ceased to have effect under this Act; or
(b) is suspended under this Act;

(a) the law of another jurisdiction corresponding, or substantially corresponding, to this Act; or
(b) a law of another jurisdiction that is declared under the regulations to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act;

(a) the Rail Safety Regulator within the meaning of a corresponding rail safety law (except in the case of a jurisdiction for which a person is prescribed under paragraph (b)); or
(b) a person prescribed by the regulations as the corresponding Rail Safety Regulator for another jurisdiction for the purposes of this Act;

(a) a substance that is a drug for the purposes of this Act by virtue of a declaration under section 5; and
(b) any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;

(a) that has, or could have, caused:
(i) significant property damage; or
(ii) serious injury; or
(iii) death; or
(b) that is, or is of a class that is, prescribed by the regulations to be a notifiable occurrence or class of notifiable occurrence;

(a) a marshalling yard;
(b) a crossing loop;
(c) a passenger terminal;
(d) a freight terminal;
(e) a siding, or a siding of a class, prescribed by the regulations not to be a private siding;

(a) a place that—
(i) the public is entitled to use; or
(ii) is open to members of the public; or
(iii) is used by the public—
whether or not on payment of money; or
(b) a place that the occupier allows members of the public to enter, whether or not on payment of money;

(a) railway tracks and associated track structures;
(b) service roads, signalling systems, communications systems, rolling stock control systems and data management systems;
(c) notices and signs;
(d) electrical power supply and electric traction systems;
(e) associated buildings, workshops, depots and yards;
(f) plant, machinery and equipment:

(g) rolling stock; or
(h) any facility, or facility of a class, that is prescribed by the regulations not to be rail infrastructure;

(a) owns the rail infrastructure; or
(b) has a statutory or contractual right to use the rail infrastructure or to control, or provide, access to it;

(a) a rail infrastructure manager; or
(b) a rolling stock operator; or
(c) a person who is both a rail infrastructure manager and a rolling stock operator;

(a) a heavy railway;
(b) a light railway;
(c) a monorail;
(d) an inclined railway;
(e) a tramway;
(f) a railway within a marshalling yard or a passenger or freight terminal;
(g) a private siding;
(h) a guided system, or guided system of a class, prescribed by the regulations to be a railway;

(a) the construction of a railway, railway tracks and associated track structures or rolling stock;
(b) the management, commissioning, maintenance, repair, modification, installation, operation or decommissioning of rail infrastructure;
(c) the commissioning, maintenance, repair, modification or decommissioning of rolling stock;
(d) the operation or movement, or causing the operation or movement by any means, of rolling stock on a railway (including for the purposes of construction or restoration of rail infrastructure);
(e) the movement, or causing the movement, of rolling stock for the purposes of operating a railway service;

(a) land (including any premises on land) on or in which is situated rail infrastructure;
(b) land (including any premises on land) on or in which is situated any over‑track or under‑track structure or part of an over track or under track structure;
(c) freight centres or depots used in connection with the carrying out of railway operations;
(d) workshops or maintenance depots used in connection with the carrying out of railway operations;
(e) premises including an office, building or housing used in connection with the carrying out of railway operations;
(f) rolling stock or other vehicles associated with railway operations;

(a) railway tracks and associated track structures and works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works);
(b) over‑track structures and under‑track structures (including tunnels under tracks);

(a) in relation to goods—supply or resupply by way of sale, exchange, lease, hire or hire purchase, whether as principal or agent;
(b) in relation to services—provide, grant or confer, whether as principal or agent;

(a) two or more units of rolling stock coupled together, at least one of which is a locomotive or other self‑propelled unit; or
(b) a unit of rolling stock that is a locomotive or other self propelled unit;

(1) Subject to sub‑section (2), any of the following classes of work is rail safety work for the purposes of this Act— (a) driving or despatching rolling stock or any other activity which is capable of controlling or affecting the movement of rolling stock; (b) signalling (and signalling operations), receiving or relaying communications or any other activity which is capable of controlling or affecting the movement of rolling stock; (c) coupling or uncoupling rolling stock; (d) maintaining, repairing, modifying, monitoring, inspecting or testing— (i) rolling stock, including checking that the rolling stock is working properly before being used; or (ii) rail infrastructure; or (e) installation of components in relation to rolling stock; (f) work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used; (g) installation or maintenance of— (i) a telecommunications system relating to rail infrastructure or used in connection with rail infrastructure; or (ii) the means of supplying electricity directly to rail infrastructure or to any rolling stock using rail infrastructure or to a telecommunications system; (h) work involving certification as to the safety of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock; (i) work involving the decommissioning of rail infrastructure or rolling stock or any part or component of rail infrastructure or rolling stock; (j) work involving the development, management or monitoring of safe working systems for railways; (k) work involving the management or monitoring of passenger safety on, in or at any railway; (l) any other work that is prescribed by the regulations to be rail safety work. (2) The following are not rail safety work for the purposes of this Act— (a) any work that involves the driving of a road vehicle or rolling stock on a road or road related area within the meaning of the Road Safety Act 1986 [local variations]; (b) any work prescribed by the regulations not to be rail safety work.

(2) Without limiting sub‑section (1), a rail transport operator contravenes that sub‑section if the operator fails to do any of the following— (a) develop and implement, so far as is reasonably practicable, safe systems for the carrying out of the operator’s railway operations; (b) ensure, so far as is reasonably practicable, that each rail safety worker who is to perform rail safety work in relation to the operator’s railway operations— (i) is of sufficient good health and fitness to carry out that work safely; and (ii) is competent to undertake that work; (c) ensure, so far as is reasonably practicable, that rail safety workers do not carry out rail safety work in relation to the operator’s railway operations, and are not on duty, while more than the relevant concentration of alcohol is present in their blood or breath or while impaired by a drug; (d) ensure, so far as is reasonably practicable, that rail safety workers who perform rail safety work in relation to the operator’s railway operations comply with the operator’s fatigue management program in force under section 67; (e) provide, so far as is reasonably practicable, adequate facilities for the safety of persons at any railway premises under the control or management of the operator; (f) provide, so far as is reasonably practicable— (i) such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator’s railway operations in a way that is safe; and (ii) such information to rail transport operators and other persons on railway premises under the control or management of the operator as is necessary to enable those persons to ensure their safety. (3) Without limiting sub‑section (1), a rail infrastructure manager contravenes that sub‑section if the manager fails to do any of the following— (a) ensure, so far as is reasonably practicable, that any use, installation, modification, design, construction, commissioning, maintenance or decommissioning of the manager’s rail infrastructure is done or carried out in a way that ensures, so far as is reasonably practicable, the safety of railway operations; (b) establish, so far as is reasonably practicable, such systems and procedures for the scheduling, control and monitoring of railway operations that ensure, so far as is reasonably practicable, the safety of the manager’s railway operations. (4) Without limiting sub‑section (1), a rolling stock operator contravenes that sub‑section if the rolling stock operator fails to do any of the following— (a) provide or maintain rolling stock that, so far as is reasonably practicable, is safe; (b) ensure, so far as is reasonably practicable, that any maintenance, commissioning, modification, construction, repair or cleaning of rolling stock is carried out in a way that, so far as is reasonably practicable, ensures safety; (c) comply, so far as is reasonably practicable, with such rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager’s rail infrastructure by the rolling stock operator; (d) so far as is reasonably practicable, establish and maintain equipment, procedures and systems to minimise risks to the safety of the operator’s railway operations; (e) make arrangements for ensuring, so far as is reasonably practicable, safety in connection with the use, operation and maintenance of the operator’s rolling stock. (5) For the purposes of this section, the duties of a rail transport operator under this section extend to a contractor engaged by the operator, and any employees of the contractor, in relation to matters over which the operator has control or would have control if not for any agreement purporting to limit or remove that control.

(1) This section applies in respect of an accredited person if— (a) the Rail Safety Regulator considers that the accredited person— (i) is no longer able to demonstrate to the satisfaction of the Rail Safety Regulator the matters referred to in section 34 or to satisfy the conditions of the accreditation; or (ii) is not managing the rail infrastructure, or is not operating rolling stock in relation to any rail infrastructure, to which the accreditation relates and has not done so for at least the preceding 12 months; or (b) the accredited person contravenes this Act or the regulations. (2) The Rail Safety Regulator— (a) may suspend the accreditation, or part of the accreditation, of the accredited person for a period determined by the Rail Safety Regulator; or (b) may revoke the accreditation of the accredited person wholly, or in respect of particular railway operations specified in the notice, with immediate effect or with effect from a specified future date; or (c) may impose conditions or restrictions on the accreditation; or (d) may vary conditions or restrictions to which the accreditation is subject— and, if the Rail Safety Regulator revokes the accreditation, the Rail Safety Regulator may declare that the accredited person is disqualified from applying for accreditation, or for accreditation in relation to specified railway operations, during a specified period. (3) Before making a decision under sub‑section (2), the Rail Safety Regulator— (a) must notify the person in writing— (i) that the Rail Safety Regulator is considering making a decision under sub‑section (2) of the kind, and for the reasons, specified in the notice; and (ii) that the person may, within 28 days or such longer period as is specified in the notice, make representations to the Rail Safety Regulator showing cause why the decision should not be made; and (b) must consider any representations made under paragraph (a)(ii) and not withdrawn. (4) If the Rail Safety Regulator suspends or revokes the accreditation of the accredited person wholly, or in respect of specified railway operations, the Rail Safety Regulator must include in the notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 6. (5) If the Rail Safety Regulator suspends or revokes the accreditation of a person who is accredited in another jurisdiction, the Rail Safety Regulator must give notice of the suspension or revocation to the relevant corresponding Rail Safety Regulator.

(a) related to ascertaining whether a rail safety law has been or is being complied with, including whether an offence has been committed against a rail safety law;
(b) related to ascertaining whether the terms of, or a condition or restriction of, an accreditation has been or is being complied with.

(f) take, or authorise another person to take, for analysis a thing, or a sample of or from the thing, at the place;
(g) seize anything that the rail safety officer suspects on reasonable grounds is connected with an offence against this Act or the regulations or to secure any such thing against interference;
(h) mark, tag or otherwise identify rolling stock, a road vehicle or other thing at the place;
(i) take a copy of the whole or any part of a document at the place or in rolling stock or a road vehicle at the place;
(j) take all necessary steps to allow a power under paragraphs (a) to (i) to be exercised.

(1) A rail safety officer may apply to a magistrate for the issue of a search warrant in relation to particular railway premises or residential premises if the rail safety officer believes on reasonable grounds that there is, or may be within the next 72 hours, in, or on, railway premises of residential premises a thing or things of a kind that may be evidence of the commission of an offence against a relevant rail safety law. (2) If a magistrate is satisfied that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, in, or on, the railway premises or residential premises evidence of the commission of an offence against a relevant rail safety law, the magistrate may issue a search warrant authorising a rail safety officer named in the warrant and any assistants the rail safety officer considers necessary— (a) to enter the railway premises or residential premises named or described in the warrant; and (b) to search for and seize any thing named or described in the warrant. (3) In addition to any other requirement, a search warrant issued under this section must state— (a) the offence suspected; and (b) the railway premises or residential premises to be searched; and (c) a description of the thing for which the search is to be made; and (d) any conditions to which the warrant is subject; and (e) whether entry is authorised to be made at any time or during stated hours; and (f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (4) A search warrant must be issued in accordance with the Magistrates’ Court Act 1989 and in the form set out in the regulation sunder that Act. (5) Despite section 78 of the Magistrates’ Court Act 1989, a search warrant must not authorise a rail safety officer to arrest a person. (6) Subject to any provision to the contrary in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates’ Court Act 1989 extend and apply to warrants under this section.

(a) assistance to enable the rail safety officer to find and gain access to electronically stored material and information;
(b) unloading rolling stock;
(c) running the engine of a locomotive;
(d) driving a train;
(e) giving the rail safety officer assistance to enter any rail infrastructure or any part of rail infrastructure or open rolling stock or any part of rolling stock.

(1) A rail safety officer may serve an improvement notice on a person if the officer believes on reasonable grounds that the person— (a) is contravening a provision of a rail safety law; or (b) has contravened a provision of a rail safety law and it is likely that the contravention will continue or be repeated; or (c) is carrying out or has carried out railway operations that threaten safety. (2) The rail safety officer may serve on a person an improvement notice requiring the person, within the period specified in the notice— (a) to undertake remedial rail safety work or do any other thing to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention; or (b) to carry out railway operations so that safety is not threatened or likely to be threatened. (3) The period within which a person is required by the improvement notice to comply with the notice must be at least 7 days after service of the notice. (4) An improvement notice must— (a) state the reasons for the service of the notice; and (b) in the case of an improvement notice served in respect of a contravention or likely contravention of a rail safety law, specify the provision of the rail safety law in respect of which that belief is held; and (c) in the case of an improvement notice served on a person who is carrying out or has carried out railway operations that threaten safety, specify the operations in respect of which that belief is held; and (d) include information about the right to a review under Part 6 of the decision to serve the notice; and (e) set out the penalty for contravening the notice; and (f) include a statement of the effect of section 103 (proceedings for offences not affected by improvement notices); and (g) state that it is served under this section. (5) An improvement notice served on a person on a ground stated in sub‑section (1)(a) or (b)— (a) may specify a method by which the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention are to be remedied; and (b) may offer the person on whom the notice has been served a choice of ways by which an alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention may be remedied; and (c) may specify that a person provide the Rail Safety Regulator with a program of rail safety work that the person proposes to carry out to remedy the alleged contravention or likely contravention, or the matters or activities occasioning the alleged contravention or likely contravention. (6) An improvement notice served on a person on the ground stated in sub‑section (1)(c)— (a) may specify a method by which railway operations may be carried out so that safety is not threatened or likely to be threatened; and (b) may offer the person on whom the notice has been served a choice of ways by which railway operations may be carried out so that safety is not threatened or likely to be threatened; (c) may specify that the person provide the Rail Safety Regulator with a program of railway operations that the person proposes to carry out to remedy the threat or likely threat to the safety. (7) A program referred to in sub‑section (5)(c) or (6)(c) may include a timetable for the completion of the program of rail safety work.

(1) This section applies if an activity— (a) is occurring in relation to railway operations or railway premises that involves or will involve an immediate risk to safety; or (b) may occur in relation to railway operations or railway premises that, if it occurs, will involve an immediate risk to safety; or (c) may occur at, on, or in the immediate vicinity of, rail infrastructure or rolling stock that, if it occurs, will involve an immediate risk to safety. (2) If a rail safety officer believes on reasonable grounds that an activity referred to in sub‑section (1) is occurring or may occur, the rail safety officer may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until the rail safety officer has certified in writing that the matters that give or will give rise to the risk have been remedied. (3) A prohibition notice has effect upon being served or, if the notice specifies a later date, on that later date. (4) A prohibition notice must— (a) state the basis for the rail safety officer’s belief on which the service of the notice is based; and (b) specify the activity which the rail safety officer believes involves or will involve the risk and the matters which give or will give rise to the risk; and (c) if the rail safety officer believes that the activity involves a contravention or likely contravention of a provision of a rail safety law, specify that provision and state the basis for that belief; and (d) include information about the right to a review under Part 6 of the decision to serve the notice; and (e) set out the penalty for contravening the notice; and (f) include a statement of the effect of section 109 (proceedings for offences not affected by prohibition notices); and (g) state that it is served under this section. (5) A prohibition notice may include directions on the measures to be taken to minimise or eliminate the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in sub‑section (4)(c). (6) A direction in a prohibition notice may— (a) require that measures be taken in accordance with a compliance code; or (b) offer the person on whom the notice has been served a choice of ways to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in sub‑section (4)(c). (7) A prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following— (a) a place, or part of a place, at which the activity is not to be carried out; (b) any thing that is not to be used in connection with the activity; (c) any procedure that is not to be followed in connection with the activity.

Item	Provision under which reviewable decision is made	Eligible person in relation to reviewable decision
1	Section 36(3) (Rail Safety Regulator not acting in accordance with guidelines)	A rail transport operator who has applied for accreditation.
2	Section 37(1) (refusal to accredit or imposing conditions or restrictions on accreditation)	A rail transport operator whose application for accreditation is refused or is subject to conditions or restrictions.
3	Section 37 (extending the period for determining an application)	A rail transport operator who has applied for accreditation.
4	Section 44 (revocation or suspension of accreditation)	A rail transport operator whose accreditation is revoked or suspended.
5	Section 45(1) (immediate suspension)	A rail transport operator whose accreditation is suspended.
6	Section 45 (extension of immediate suspension)	A rail transport operator whose accreditation is suspended.
7	Section 49(1) (refusal to grant variation of accreditation or imposing a condition or restriction)	A rail transport operator whose application for variation of accreditation is refused.
8	Section 49(2) (grant of variation of accreditation subject to conditions or restrictions)	A rail transport operator whose accreditation is varied subject to a condition or restriction.
9	Section 49 (extending the period for determining an application for variation)	A rail transport operator who has applied for variation of accreditation.
10	Section 51(1) (direction to amend safety management plan)	A rail transport operator given a direction to amend a safety management system.
11	Section 52(3) (refusal to grant variation of condition or restriction of accreditation)	A rail transport operator whose application for variation of a condition or restriction is refused.
12	Section 53 (variation or revocation of a condition or restriction, or imposition of a new condition or restriction)	A rail transport operator whose conditions or restrictions of accreditation are changed.
13	Section 92(1)(c) (retention of sample or seized thing to prevent commission of offence)	A person who is the owner within the meaning of section 92(4) of the sample or thing.
14	Section 100(1) (decision to serve an improvement notice)	A person on whom an improvement notice is served.
15	Section 102(1) (decision to amend improvement notice)	A person on whom a notice of amendment of an improvement notice is served.
16	Section 105(2) (decision to serve a prohibition notice)	A person on whom a prohibition notice is served.
17	Section 108(1) (decision to amend a prohibition notice)	A person on whom a notice of amendment of a prohibition notice is served.

(1) An eligible person— (a) in relation to a reviewable decision made by the Rail Safety Regulator may, within 28 days after the decision was made, apply to the Rail Safety Regulator for a review of the decision; (b) in relation to a reviewable decision, other than a decision made by the Rail Safety Regulator, may apply to the Rail Safety Regulator for review of the decision within— (i) 28 days after the day on which the decision first came to the eligible person’s notice; or (ii) such longer period as the Rail Safety Regulator allows. (2) The application must be in the form approved (in writing) by accordance with this section, the Rail Safety Regulator must make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Rail Safety Regulator considers appropriate. (3) If an application is made to the Rail Safety Regulator in accordance with this section, the Rail Safety Regulator must make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Rail Safety Regulator considers appropriate. (4) The Rail Safety Regulator must give a written notice to the applicant setting out— (a) the Rail Safety Regulator’s decision under sub‑section (3) and the reasons for the decision; and (b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based— and must do so within 14 days after the application is made or, if the reviewable decision was made under section 100, 105 or 108, within 7 days after the application is made. (5) If the Rail Safety Regulator has not notified an applicant of a decision in accordance with sub‑section (4), the Rail Safety Regulator is taken to have made a decision to affirm the reviewable decision. (6) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Rail Safety Regulator, on the Rail Safety Regulator’s own initiative or on the application of the applicant for review, stays the operation of the decision (not being a prohibition notice) pending the determination of the review. (7) The Rail Safety Regulator must make a decision on an application for a stay within 24 hours after the making of the application. (8) If the Rail Safety Regulator has not made a decision in accordance with sub‑section (7), the Rail Safety Regulator is taken to have made a decision to grant a stay. (9) The Rail Safety Regulator may attach any conditions to a stay of the operation of a reviewable decision that the Rail Safety Regulator considers appropriate.

(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.

(1) If a body corporate commits an offence against a rail safety law, each director of the body corporate, and each person concerned in the management of the body corporate, is taken to have committed the offence and is punishable accordingly. (2) If a person who is a partner in a partnership commits an offence against a rail safety law in the course of the activities of the partnership, each other person who is a partner in the partnership, and each person concerned in the management of the partnership, is taken to have committed the offence and is punishable accordingly. (3) If a person who is concerned in the management of an unincorporated association commits an offence against a rail safety law in the course of the activities of the unincorporated association, each other person concerned in the management of the unincorporated association is taken to have committed the offence and is punishable accordingly. (4) Sub‑sections (1), (2) and (3) do not affect the liability of the person who actually committed the offence. (5) If an employee commits an offence against a rail safety law, the employer is taken to have committed the offence and is punishable accordingly. (6) A person may be proceeded against and found guilty of an offence arising under this section whether or not the body corporate or other person who actually committed the offence has been proceeded against or been found guilty of the offence. (7) It is a defence to a charge for an offence arising under sub‑section (1) if the defendant establishes that— (a) the defendant was not in a position to influence the conduct of the body corporate in relation to the actual offence; or (b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. (8) It is a defence to a charge for an offence arising under sub‑section (2) or (3) if the defendant establishes that— (a) the defendant was not in a position to influence the conduct of the person who actually committed the offence; or (b) the defendant, being in such a position, took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. (9) It is a defence to a charge for an offence arising under sub‑section (5) if the defendant establishes that— (a) the defendant had no knowledge of the actual offence; or (b) the defendant took reasonable precautions and exercised due diligence to prevent the commission of the actual offence. (10) An officer— (a) of a body corporate (including a body corporate representing the Crown); or (b) of a partnership or unincorporated body or association— who is a volunteer is not liable to be prosecuted under this section for anything done or not done by him or her as a volunteer. (11) In this section—

(1) The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, make an order under this section. (2) The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that— (a) was received or receivable, by the person or by an associate of the person, from the commission of the offence; and (b) in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with the commission of the offence, would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed. (3) In estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court may take into account— (a) benefits of any kind, whether monetary or otherwise; and (b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and (c) any other matters that it considers relevant, including (for example)— (i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and (ii) the distance over which any such goods were or were to be carried. (4) However, in estimating the gross commercial benefit that was or would have been received or receivable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (5) Nothing in this section prevents the court from ordering payment of an amount that is— (a) less than 3 times the estimated gross commercial benefit; or (b) less than the estimated gross commercial benefit. (6) For the purposes of this section, a person is an associate of another if— (a) one is a spouse, parent, brother, sister or child of the other; or (b) they are members of the same household; or (c) they are partners; or (d) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or (e) one is a body corporate and the other is a director or member of the governing body of the body corporate; or (f) one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or (g) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (h) a chain of relationships can be traced between them under any one or more of the above paragraphs. (7) For the purposes of sub‑section (6), a beneficiary of a trust includes an object of a trust.

(1) The court that finds a person guilty of an offence against a rail safety law may, on the application of the prosecutor or the Rail Safety Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section. (2) The court may make a supervisory intervention order requiring the person (at the person’s own expense and for a specified period not exceeding one year) to do all or any of the following— (a) to do specified things that the court considers will improve the person’s compliance with rail safety laws or specified aspects of rail safety laws, including (for example) the following— (i) appointing or removing staff to or from particular activities or positions; (ii) training and supervising staff; (iii) obtaining expert advice as to maintaining appropriate compliance; (iv) installing monitoring, compliance, managerial or operational equipment; (v) implementing monitoring, compliance, managerial or operational practices, systems or procedures; (b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Rail Safety Regulator or a person nominated by the Rail Safety Regulator; (c) to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order; (d) to appoint a person to have responsibilities— (i) to assist the person in improving compliance with rail safety laws or specified aspects of rail safety laws; and (ii) to monitor the person’s performance in complying with rail safety laws or specified aspects of rail safety laws and in complying with the requirements of the order; and (iii) to furnish compliance reports to the Rail Safety Regulator or the court or both as specified in the order. (3) The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and frequency with which, compliance reports are to be prepared and furnished. (4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form and manner in which, and frequency with which, they are to be made public. (5) The court may only make a supervisory order if it is satisfied that the order is capable of improving the person’s ability or willingness to comply with the rail safety laws, having regard to— (a) the offences against Australian rail safety laws of which the person has been previously found guilty; and (b) the offences against Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn infringement notices; and (c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations. (6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order. (7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of— (a) the Rail Safety Regulator; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment. (8) In this section,

(a) the performance of the person in complying with
(i) the rail safety laws or aspects of rail safety laws specified in the order; and
(ii) the requirements of the order; and
(b) without limiting the above—
(i) things done by the person to ensure that any failure by the person to comply with the rail safety laws or the specified aspects of the rail safety laws does not continue; and
(ii) the results of those things having been done.

(a) a registered medical practitioner within the meaning of the Medical Practice Act 1994;
(b) a registered optometrist within the meaning of the Optometrists Registration Act 1996;
(c) a registered physiotherapist within the meaning of the Physiotherapists Registration Act 1998.

Division 7Audit and inspections by Rail Safety Regulator

Get a plain-English read of Division 7

Part 1—Preliminary

1 Purpose

2 Commencement

3 Objects of Act

4 Definitions

5 Declaration of substance to be a drug

6 Railways to which this Act does not apply

7 The concept of ensuring safety

8 Rail safety work

9 Examples [local variations]

10 Notes [local variations]

11 Crown to be bound

Part 2—Occupational Health and Safety legislation

12 Act adds to protection provided by OHS legislation

13 OHS legislation prevails

14 Compliance with this Act is no defence to prosecution under OHS legislation.

15 Relationship between duties under this Act and OHS legislation

16 No double jeopardy

Part 3—Administration

Division 1—The Rail Safety Regulator

17 The Rail Safety Regulator

18 Functions

19 Information to be included in annual reports

20 Delegation

21 Rail Safety Regulator may exercise functions of rail safety officers

Division 2—Rail Safety Officers

22 Appointment

23 Reciprocal powers of rail safety officers

24 Identification cards for rail safety officers

25 Rail safety officer must not exercise functions without identification card

26 Display and production of identification card

27 Return of identification cards

Part 4—Rail Safety

Division 1—General safety duties

28 Safety duties of rail transport operators

29 Duties of designers, manufacturers, suppliers etc

Division 2—Accreditation

30 Purpose of accreditation

31 Accreditation required for railway operations

32 Purpose for which accreditation may be granted

33 Application for accreditation

34 What applicant for accreditation must demonstrate

35 Rail Safety Regulator may direct applicants to co‑ordinate and co‑operate in applications

36 Co‑ordination between Rail Safety Regulators

37 Determination of application

38 Prescribed conditions and restrictions

39 Penalty for breach of condition or restriction

40 Annual fees

41 Late payment fees

42 Waiver of fees

43 Surrender of accreditation

44 Revocation or suspension of accreditation

45 Immediate suspension of accreditation

46 Keeping and making available documents for public inspection

47 Application for variation of accreditation

48 Where application relates to co‑operative railway operations or operations in another jurisdiction

49 Determination of application for variation

50 Prescribed conditions and restrictions

51 Rail Safety Regulator may direct amendment of a safety management system

52 Variation of conditions and restrictions

53 Rail Safety Regulator may make changes to conditions or restrictions

54 Accreditation cannot be transferred or assigned

55 Sale or transfer of railway operations by accredited person

Division 3—Private sidings

56 Exemption from accreditation

Division 4—Safety management

57 Safety management system

58 Compliance with safety management system

59 Review of safety management system

60 Safety performance reports

61 Interface co‑ordination

62 Security management plan

63 Emergency plan

64 Health and fitness management program

65 Alcohol and drug management program

66 Testing for presence of alcohol or drugs

67 Fatigue management program

68 Assessment of competence