Public Transport Authority Act 2003

The Authority is the Public Transport Authority of Western Australia, a body corporate that is an agent of the State (ss 5-6). It is governed by its chief executive officer, who is responsible for day-to-day operations and cannot be excluded from the Senior Executive Service under the Public Sector Management Act 1994 (ss 7, 9). Authorised person means a person designated by the chief executive officer under s 56 for the purposes of specified provisions (s 3). Security officer means a person employed by the Authority and designated as a security officer under s 56(2); such persons must be suitably trained (s 56(4)). Authority property is land or other property that belongs to the Authority, is under its care, control or management, or is operated on its behalf (s 3). Public passenger transport service means a service of transporting members of the public by a prescribed means of public passenger transport (road bus, ferry, train, or anything else prescribed) either over a fixed area or route, at fixed fares or free, with fixed timetables, or in other circumstances prescribed by regulations, but excludes services expressly excluded by regulations (s 3). An operational plan is a document prepared under Part 5 Division 1 that sets out the Authority’s objectives, performance targets, resource allocation, functions, income and expenditure estimates, and other matters (s 21). A prohibition order is an order made by the chief executive officer under s 64A(5) prohibiting a person from being on or in a conveyance or facility for a specified period after the person has been found guilty of multiple relevant offences. An infringement notice is a notice given under s 44 by an authorised person or police officer who believes a person has committed a prescribed offence, offering the option to pay a modified penalty to avoid prosecution. The Act defines prescribed means of public passenger transport as a road bus, ferry, railway train, or anything else prescribed by regulations (s 3). The Treasurer means the Treasurer of the State (s 3). Crown land has the meaning given in the Land Administration Act 1997 (s 3). Train has the meaning given in the Rail Safety National Law (WA) section 3 (s 3). The Act also uses the concept of public including any section of the public (s 3).

The Act principally affects the Public Transport Authority itself, its staff and contractors, and persons who use or interact with public passenger transport services in Western Australia. The Authority is structured as an SES organisation under the Public Sector Management Act 1994 (s 8), so the Act affects public sector employees who become staff of the Authority. The chief executive officer is accountable to the Minister and must comply with ministerial directions (s 27). Persons dealing with the Authority are affected by Division 1 of Part 6, which entitles them to make assumptions about the Authority’s compliance with the Act, the proper appointment and authority of its officers, the genuineness and proper sealing of documents, and the proper performance of duties (ss 39-41). However, those assumptions cannot be made if the person has actual knowledge that the assumption would be incorrect, or if by reason of their connection or relationship with the Authority they ought to know (s 42). Passengers and other users of public passenger transport services are affected by the Authority’s enforcement powers. Security officers and authorised persons may investigate offences (s 57), take offenders into custody without warrant in specified circumstances (s 58), search persons and seize property (ss 60-63), and direct persons to leave Authority property (s 65). Persons who commit specified offences on or in conveyances or facilities may be subject to prohibition orders preventing them from using those services for up to three months (s 64A-64B). The Act also affects local governments and water service providers: the Authority is exempt from local government rates and charges and from water charges (except charges assessed by reference to quantity of water or wastewater), but this exemption does not apply to land held under a lease or tenancy agreement from the Authority (s 50). Persons who contract with the Authority are affected by s 53, which prohibits assignment of rights under a contract without the Authority’s consent, and any purported assignment is void. Former bodies that are succeeded by the Authority are affected by the transitional provisions in Part 7: the Minister for Western Australian Government Railways, The Western Australian Government Railways Commission, the Rail Corridor Minister, and the Metropolitan (Perth) Passenger Transport Trust all undergo transfer of assets, liabilities, and proceedings to the Authority (ss 79-91). The Act also affects persons who are required to comply with the Young Offenders Act 1994: security officers and authorised persons performing functions that would subject a police officer to that Act must comply with its obligations (s 67).

The Authority has a duty to provide and operate safe and reliable public passenger transport services (s 12(1)). It must perform its functions in accordance with its operational plan as existing from time to time (s 24). The Authority must prepare and submit a draft operational plan to the Minister each financial year, by the day fixed by the Minister or, if none fixed, two months before the start of the next financial year (s 20). The Authority must consult with the Minister before entering upon a course of action that amounts to a major initiative or is likely to be of significant public interest (s 25(2)). It must keep the Minister reasonably informed of its operations, financial performance and position, give reports and information as required, and promptly inform the Minister of matters that may prevent or significantly affect achievement of its objectives and targets (s 26). The Authority must give effect to written directions from the Minister (s 27) and comply with requests for information (s 28). It must notify the Minister if it forms the opinion that it will be unable to satisfy its financial obligations (s 37(1)). The Authority is required to keep any register that regulations require for borrowing purposes (s 33(2)). The Authority has a right to borrow money, obtain credit, or arrange financial accommodation with the Treasurer’s prior approval (s 33). It may, with Ministerial approval and Treasurer’s concurrence, participate in business concerns and acquire, hold and dispose of shares or interests (s 13(2)(d)). The Authority may grant leases, licences or easements over Crown land of which it has care, control and management, in the name and on behalf of the State, subject to Ministerial approval (unless meeting prescribed criteria), DBNGP corridor approval, and a maximum term of 50 years (s 15). The Authority may make any gift for charitable or community purposes, make ex gratia payments, and accept gifts or payments (s 13(4)). The Authority may extend credit to customers or suppliers in the normal course of business, secured or unsecured (s 36). The Authority is entitled to use the services of public sector officers and employees and facilities of departments or agencies by arrangement (s 11). The Authority may use trading names allowed by the Minister (s 18) and may delegate powers or duties (except under the Public Works Act 1902 or Rail Freight System Act 2000) to a person approved by the Minister if not employed by the Authority (s 19). Persons dealing with the Authority have the right to make assumptions that the Act has been complied with, that persons held out as CEO or staff have been properly appointed and have customary authority, that documents are genuine and properly sealed, and that staff have properly performed their duties (s 41). However, this right is lost if the person has actual knowledge that the assumption would be incorrect or ought to know because of their connection or relationship (s 42). Third parties acquiring title to property from the Authority have similar rights (s 40). A person who pays a modified penalty under an infringement notice is entitled to the benefit that no proceedings will be brought for the alleged offence (s 48). A person subject to a prohibition order may apply to the chief executive officer to revoke the order, make it subject to an exception, or amend an exception (s 64A(8)).

The Act establishes a tiered enforcement regime. For less serious offences, an infringement notice scheme operates (ss 44-49). An authorised person or police officer who believes a person has committed a prescribed offence may give an infringement notice at or about the time of the alleged offence (s 44). An offence cannot be prescribed if it is punishable by imprisonment or if the maximum penalty would depend on a circumstance of commission (s 44(2)). The modified penalty specified in the notice cannot exceed 20% of the maximum court penalty (s 45(3)). Payment of the modified penalty within 28 days (or extended period) prevents prosecution and punishment as if the person had been convicted and punished (s 48(2)), but is not an admission for any civil or criminal proceedings (s 48(3)). The modified penalty is dealt with as if it were a court-imposed penalty (s 49). For more serious breaches, the Act creates specific offences. Contravening a prohibition order under s 64B(1) carries a penalty of imprisonment for 9 months. Sentencing for that offence is restricted: despite the Sentencing Act 1995 s 41(2), a court may use only sentencing options in s 39(2)(d) to (h) of that Act (s 64B(2)). The Young Offenders Act 1994 s 71 does not apply to sentencing a young person for this offence (s 64B(3)). Failing to comply with a direction to leave Authority property is an offence punishable by a fine of $1,000 (s 65(2)). Regulations may create offences with penalties not exceeding $2,000 (s 69(5)). Enforcement powers are extensive. Security officers and police may take offenders into custody without warrant for specified offences under The Criminal Code (sections 74A, 70A, 445) committed on Authority property, or for offences under the Graffiti Vandalism Act 2016 s 5 in relation to Authority property, a conveyance or facility (s 58(2)). They may also take into custody a person who continues or repeats an offence after warning (s 58(3)) or who has committed an offence under s 64B(1) (s 58(4)). Security officers may execute warrants by taking a person on Authority property into custody and delivering them to police (s 59). Security officers may search a person taken into custody to remove dangerous articles, using reasonably necessary force (s 60). They may also stop, detain and search anyone reasonably suspected of possessing anything contrary to regulations under s 69(3), without a warrant (s 61). Searches must be conducted by a person of the same sex (s 62(1)); body cavity searches are not authorised (s 62(3)). Seized property must be recorded and released if not required for an offence (s 63). Unclaimed property may be forfeited to the State: after 24 hours for perishables, 30 days for other property (s 64). The chief executive officer may issue prohibition orders after a show cause process, where a person has been found guilty of at least 2 relevant offences within 12 months or 3 within 18 months (s 64A(5)). The prohibition period is limited: not more than one month for up to 2 offences within 12 months, and not more than 3 months for more than 2 offences within 18 months (s 64A(6)). Multiple offences found at one hearing are treated as one offence (s 64A(7)). Prosecutions can only be commenced by a police officer, security officer, or authorised person (s 66). A security officer may commence a prosecution for an offence for which they took the alleged offender into custody (s 66(2)). Section 68 provides evidentiary shortcuts: an averment in the prosecution notice that a person was an authorised person or security officer, or that a person using public passenger transport had not paid the appropriate fare, is taken as proved absent proof to the contrary. Security officers and authorised persons performing functions under the Act must comply with the Young Offenders Act 1994 obligations that would apply to a police officer (s 67).

Section 4(1) establishes a paramountcy rule: if anything in this Act or its regulations is inconsistent with the Rail Safety National Law (WA) or subsidiary legislation, or the Railways (Access) Act 1998 or subsidiary legislation, those latter enactments prevail. This is significant because the Authority operates trains and manages rail infrastructure, and rail safety and access regimes take precedence over the Authority’s constitutive Act. Section 4(2) provides that the powers given to police officers under this Act are additional to and do not limit their existing powers. The Act integrates with the Public Sector Management Act 1994: the Authority is an SES organisation (s 8); the chief executive officer is a senior executive and cannot be excluded from the SES (s 9); staff employment powers are subject to that Act (s 10); and the Authority may make use of public service officers (s 11). The Financial Management Act 2006 and Auditor General Act 2006 apply to the Authority’s financial administration, audit and reporting (s 38). The Authority must establish a Public Transport Authority Account as an agency special purpose account under the Financial Management Act 2006 s 16, or with Treasurer approval at a bank (s 32). Ministerial directions under s 27 must be included in the annual report submitted under Part 5 of the Financial Management Act 2006 (s 27(3)). The commercially sensitive matters deletion power under s 29 interacts with the Financial Management Act 2006 s 64 reporting obligations. The Act also interacts with the Land Administration Act 1997: Crown land of which the Authority has care, control and management is held under that Act (ss 14-15); transitional provisions deem Crown land to have been reserved under s 41 and placed under the Authority’s care under s 46 (ss 77, 81). The Rail Freight System Act 2000 is relevant: the Authority may use corridor land under that Act (s 17); restrictions on grants of Crown land in the DBNGP corridor reference the Dampier to Bunbury Pipeline Act 1997 (s 15(4)); and transitional provisions transfer assets from the Rail Corridor Minister (ss 86-90). The Criminal Investigation (Identifying People) Act 2002 Part 3 powers are available to security officers and authorised persons, who are prescribed public officers (s 57). The Graffiti Vandalism Act 2016 ss 5 and 35 are incorporated for enforcement and prohibition order purposes (ss 58(2)(d), 64A(3)(da)). The Act exempts the Authority from State tax for transitions under Part 7 (s 92), including stamp duty under the Stamp Act 1921 and any other State tax, duty, fee, levy or charge. The Act also provides that by-laws under the Government Railways Act 1904 s 23 continue as if made by the Authority (s 84), and references in written laws to former bodies are construed as references to the Authority (ss 85, 90). The Young Offenders Act 1994 obligations apply to security officers and authorised persons (s 67), and specific provisions modify its application for prohibition order offences (s 64B(3)-(4)). Section 95 provides a saving provision: the operation of Part 7 transitional provisions is not to be regarded as a breach of contract, confidence, or other civil wrong, or as giving rise to remedies, termination rights, or release of sureties.

The Public Transport Authority Act 2003 (WA) received Royal Assent on 26 May 2003. Part 1 and Part 7 Division 1 commenced on that date; the remaining provisions commenced on 1 July 2003 (Gazette 27 Jun 2003 p 2384). The Act has been amended by several subsequent enactments. The Criminal Law Amendment (Simple Offences) Act 2004 s 82 (No 70 of 2004) amended s 58, effective 31 May 2005. The Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s 80 (No 84 of 2004) amended ss 45, 66 and 68, effective 2 May 2005. The Financial Legislation Amendment and Repeal Act 2006 s 4, 12 and Sch 1 cl 138 (No 77 of 2006) made significant amendments: it inserted the heading for Division 3 in Part 5, inserted ss 32 and 38 (replacing former provisions with references to the Financial Management Act 2006 and Auditor General Act 2006), amended ss 20, 27, 29, 34 and 35 to update references and remove the former Public Transport Authority Account provisions, and made consequent changes. Those amendments commenced on 1 February 2007. The Public Transport Authority Amendment Act 2008 (No 42 of 2008) inserted s 64A (prohibition orders) and s 64B (contravention of prohibition order), and amended s 58. Sections 1 and 2 commenced on 3 July 2008; the remainder on 28 March 2009. The Rail Safety Act 2010 Part 11 Div 3 (No 18 of 2010) amended ss 3 and 4, effective 1 February 2011, updating references from the former Rail Safety Act to what became the Rail Safety National Law (WA). The Rail Safety National Law (WA) Act 2015 Part 5 (No 21 of 2015) further amended ss 3 and 4, effective 2 November 2015. The Graffiti Vandalism Act 2016 Part 5 (No 16 of 2016) amended ss 58 and 64A, inserting references to that Act, effective 12 October 2016. The most recent amendment is by the Rail Safety National Law Application Act 2024 s 58 (No 7 of 2024), effective 1 October 2024, which made further amendments to ss 3 and 4. The compilation table in the Act notes that Reprint 1 was current as at 3 April 2009 (including amendments up to 2008). The Act includes extensive transitional provisions in Part 7 (ss 71-95) that are self-contained and have not been amended, except as noted. The Act also originally contained a Part 8 (ss 96-209) which amended or repealed other Acts; those sections have been omitted under the Reprints Act 1984 s 7(4)(e) and are not part of the current compilation.

The Act itself does not reference any specific litigation. However, several provisions are designed to affect litigation outcomes or limit exposure. Section 30 provides that the Authority or a person performing functions under the Act is not liable in respect of any claim arising from the disclosure of information or documents under the Act, or for doing or omitting a thing required by a direction given under the Act. Section 54 provides a statutory protection from tort liability for persons other than the Authority who act in good faith in the performance or purported performance of a function under the Act (s 54(1)). This protection applies even if the act could have been done without the Act (s 54(2)). However, neither the Authority nor the State is relieved of any liability they might have for another person’s act (s 54(3)). These provisions would likely be raised in any tort claim against individuals acting under the Act. Sections 39-42 create a regime of assumptions in favour of persons dealing with the Authority, which must be disregarded by the courts if the assumptions are incorrect (ss 39(2), 40(2)), unless the person had actual knowledge or ought to have known (s 42). This may prevent the Authority from contesting certain matters in litigation with third parties. Section 48(2) provides that payment of a modified penalty prevents the bringing of proceedings and imposition of penalties to the same extent as if the alleged offender had been convicted and punished, which has implications for subsequent proceedings. Section 48(3) specifies that payment is not an admission for any civil or criminal proceedings. Section 68 provides an evidentiary rule: in proceedings for an offence, an averment in the prosecution notice that a person was an authorised person or security officer, or that a person using a public passenger transport service had not paid the appropriate fare, is taken as proved in the absence of proof to the contrary. This shifts the evidentiary burden in prosecutions. Section 64B(2) imposes specific sentencing restrictions for contravention of a prohibition order, limiting a court’s sentencing options to those in the Sentencing Act 1995 s 39(2)(d) to (h). Section 64B(3) disapplies the Young Offenders Act 1994 s 71 for that offence, which otherwise would restrict sentencing options for young persons. Section 67 imposes obligations on security officers and authorised persons to comply with the Young Offenders Act 1994 as if they were police officers, which could give rise to proceedings if those obligations are not met. Section 76(3) provides protection for persons other than the State, the Authority, or a Minister, officer or agency of the State: an order rectifying an error in a transfer order that has retrospective effect cannot affect their rights prejudicially or impose liabilities for things done before publication of the order. The saving provision in s 95 is also relevant: the operation of Part 7 transitional provisions is not to be regarded as a breach of contract, confidence or other civil wrong, nor as giving rise to a remedy or termination of an instrument. This would be a defence in any litigation challenging the transition.

Several provisions in the Act contain traps for the unwary. Section 4(1) is critical: the Rail Safety National Law (WA) and the Railways (Access) Act 1998 prevail over any inconsistency with the Public Transport Authority Act 2003. This means that powers and obligations under this Act must be exercised and performed subject to those paramount enactments. When dealing with Crown land, section 14(b) prohibits the Authority from doing anything inconsistent with the purpose for which it has care, control and management. The extended purpose in s 14(a) for commercial activities under s 12(3) only applies unless expressly excluded by a Land Administration Act order. Leases and licences over Crown land granted under s 15(1) cannot exceed 50 years, including any option to renew (s 15(6)-(7)). Before granting such interests over land in the DBNGP corridor, the Authority must obtain the written approval of the DBNGP Land Access Minister (s 15(4)). Disposal of any estate in non-Crown land requires the Minister’s written approval unless regulations permit (s 16). The Authority cannot delegate powers under the Public Works Act 1902 or the Rail Freight System Act 2000 (s 19(1)). Delegations to non-employees require Ministerial approval (s 19(3)). Infringement notices cannot be issued for offences punishable by imprisonment or where the maximum penalty depends on a circumstance of commission (s 44(2)). The modified penalty cannot exceed 20% of the maximum court penalty (s 45(3)). An authorised person who gives infringement notices under s 44 is not eligible to be an authorised person for the purposes of ss 45, 46 or 47 (s 56(1)). Security officers must be employed by the Authority, not contractors (s 56(3)), and must be suitably trained (s 56(4)). Searches under the Act must be conducted by a person of the same sex as the person searched (s 62(1)). Body cavity searches are absolutely prohibited (s 62(3)). Property seized must be released if not required for an offence, but this does not prevent seizure, forfeiture or dealing under another law (s 63(4)). Unclaimed perishable property is forfeited after only 24 hours (s 64(5)). Prohibition orders require a show cause notice giving the offender 14 days to respond (s 64A(4)). The order cannot exceed one month for up to 2 relevant offences within 12 months, or 3 months for more than 2 within 18 months (s 64A(6)). Multiple offences dealt with at one hearing are treated as one offence (s 64A(7)). Contravening a prohibition order carries 9 months imprisonment, but sentencing options are restricted to those in the Sentencing Act 1995 s 39(2)(d) to (h) (s 64B(2)), which may limit a court’s ability to impose a fine or conditional order. The Young Offenders Act 1994 s 71 does not apply to sentencing young persons for this offence, meaning standard adult sentencing options may apply (s 64B(3)). The Authority’s exemption from local government rates and water charges does not apply to land held under a lease or tenancy agreement from the Authority (s 50(3)). Section 53 prohibits assignment of contract benefits without the Authority’s consent; any purported assignment is void. The Authority may withhold consent until an acceptable contract is entered into with the proposed assignee or another person (s 53(3)-(4)). Section 67 requires security officers and authorised persons to comply with the Young Offenders Act 1994 when doing anything that would subject a police officer to that Act; failing to do so could result in unlawfulness.

Compliance with the Public Transport Authority Act 2003 requires attention to several distinct areas. Operational planning: the Authority must prepare a draft operational plan each financial year and submit it to the Minister by the day fixed or, if none fixed, two months before the start of the next financial year (s 20). The plan must include objectives, performance targets, resource allocation, functions, income and expenditure estimates, and any other matters directed by the Minister (s 21). The Authority must obtain the Treasurer’s concurrence before the Minister approves the plan (s 20(3)). The Authority must perform its functions in accordance with the plan (s 24). Any modification to the plan requires Ministerial approval, and if the modification could result in financial costs to the State, the Treasurer’s concurrence is required (s 23). Ministerial oversight: the Authority must consult the Minister before entering major initiatives or matters of significant public interest (s 25(2)). It must keep the Minister informed of operations, financial performance and position (s 26), comply with information requests (s 28), and give effect to written directions (s 27). The Authority must notify the Minister immediately if it believes it will be unable to satisfy financial obligations (s 37). Financial management: the Authority must comply with the Financial Management Act 2006 and Auditor General Act 2006 (s 38). A Public Transport Authority Account must be established (s 32). Borrowing requires the Treasurer’s prior approval (s 33). The Authority must keep any register required by regulations (s 33(2)). Guarantees by the Treasurer require the Minister’s recommendation and are subject to terms determined by the Treasurer, with charges fixed after consultation (ss 34-35). Property dealings: the Authority must obtain the Minister’s written approval before granting leases, licences or easements over Crown land unless the grant meets prescribed criteria (s 15(3)). For interests over land in the DBNGP corridor, the DBNGP Land Access Minister’s written approval is also required (s 15(4)). Leases and licences cannot exceed 50 years including renewal options (s 15(6)-(7)). Disposal of non-Crown land requires the Minister’s written approval unless regulations permit (s 16). Enforcement powers: authorised persons and security officers must be properly designated in writing, hold a certificate of designation, and produce it when required (s 56). Security officers must be suitably trained (s 56(4)). Searches must be conducted by a person of the same sex; body cavity searches are never authorised (s 62). When taking a person into custody, security officers may search only to remove dangerous articles using reasonably necessary force (s 60). Infringement notices must be in the prescribed form, correctly specify the modified penalty (which cannot exceed 20% of the court maximum), and allow the prescribed period for payment (s 45). If the modified penalty is paid, the notice must not be withdrawn unless the amount is refunded (s 47). Prohibition orders: before issuing a prohibition order, the chief executive officer must give the offender 14 days’ written notice to show cause why the order should not be given and why exceptions should be specified (s 64A(4)). The order must specify the period and any exceptions, and the period must respect the statutory limits (s 64A(6)). The offender may apply to revoke, amend or add exceptions to the order (s 64A(8)). General compliance: the Authority should ensure that its by-laws and regulations are consistent with the paramountcy of rail safety and access legislation (s 4(1)). Persons dealing with the Authority should be able to rely on the assumptions in ss 39-41, but the Authority must be aware that these assumptions cannot be made if the person has actual knowledge or ought to know otherwise (s 42). The Authority must ensure that any disclosure of information under s 55 is properly approved by the employing authority where required (s 55(5)). For transitional matters, the Authority should maintain records of assets and liabilities transferred and ensure registration of documents with relevant officials (ss 75, 83, 89).