Part 1 Preliminary

Part 1 Preliminary

1 Short title

1 Short title

This Law may be cited as the Rail Safety National Law (NSW).

2 Commencement

2 Commencement

This Law commences in a participating jurisdiction as provided by the application Act of the jurisdiction.

3 Purpose, objects and guiding principles of Law

3 Purpose, objects and guiding principles of Law

(1) The main purpose of this Law is to provide for safe railway operations in Australia.

(2) The objects of this Law are—

(a) to establish the Office of the National Rail Safety Regulator (the ONRSR); and

(b) to make provision for the appointment, functions and powers of the National Rail Safety Regulator (the Regulator); and

(c) to make provision for a national system of rail safety, including by providing a scheme for national accreditation of rail transport operators in respect of railway operations; and

(d) to provide for the effective management of safety risks associated with railway operations; and

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

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

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

(h) to promote public confidence in the safety of transport of persons or freight by rail; and

(i) to promote the provision of advice, information, education and training for safe railway operations; and

(j) to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations.

(3) The guiding principles under this Law are—

(a) to assist rail transport operators to achieve productivity by the provision of a national scheme for rail safety; and

(b) to operate the national scheme in a timely, transparent, accountable, efficient, effective, consistent and fair way; and

(c) that fees required to be paid for the provision of the national scheme are to be reasonable having regard to the efficient and effective operation of the scheme.

(4) The Parliament does not intend by this section to create in any person any legal right or give rise to any civil cause of action.

4 Interpretation

4 Interpretation

(1) In this Law, unless the contrary intention appears—

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

(a) has been surrendered or cancelled or has otherwise ceased to have effect under this Law; or

(b) is suspended under this Law;

Acting Regulator means an Acting National Rail Safety Regulator appointed under Part 2 Division 2;

amusement structure means a structure or device operated for hire or reward, or provided on hire or lease—

(a) that is used or designed to be used for amusement or entertainment and on which persons may be moved, carried, raised, lowered or supported by any part of the structure or device; and

(b) that is an arrangement of structural or mechanical elements (or both) that has as its prime function the provision of movement of a passenger or passengers in a controlled manner so that the passenger or passengers are not necessarily required to move themselves to obtain the desired effect;

application Act means the Act of a jurisdiction that applies the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia as a law of the jurisdiction;

approved code of practice means a code of practice approved under section 249;

associated railway track structures includes—

(a) associated works (such as cuttings, sidings, tunnels, bridges, stations, platforms, tram stops, excavations, land fill, track support earthworks and drainage works); and

(b) over-track structures and under-track structures (including tunnels under tracks);

Australian Accounting Standards means Accounting Standards issued by the Australian Accounting Standards Board;

Australian rail safety law means this Law or a corresponding previous enactment in a participating jurisdiction corresponding, or substantially corresponding, to this Law;

authorised person means—

(a) a police officer; or

(b) a person appointed under section 124;

Category 1 offence—see section 58;

Category 2 offence—see section 59;

Category 3 offence—see section 60;

commercial benefits order means an order under section 230;

designated provision of this Law—see section 204;

drug means—

(a) a substance declared by the national regulations to be a drug for the purposes of this Law; and

(b) a substance declared under section 6 to be a drug for the purposes of this Law; and

(c) any other substance (other than alcohol) that, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;

emergency services means—

(a) the NSW Police Force; or

(b) Fire and Rescue NSW; or

(b1) the Ambulance Service of NSW; or

(c) any other person or body prescribed by the regulations under the application Act for the purposes of this definition;

Note—

This definition is an additional New South Wales provision.

employee means a person employed under a contract of employment or contract of training;

employer means a person who employs 1 or more other persons under contracts of employment or contracts of training;

exercise, for a function, includes perform;

footpath means an area open to the public that is designated for, or 1 of its main uses is, use by pedestrians;

Fund means the National Rail Safety Regulator Fund established under Part 2 Division 4;

Gazette means the New South Wales Government Gazette;

Note—

This definition is an additional New South Wales provision.

Health Practitioner Regulation National Law means—

(a) the Health Practitioner Regulation National Law—

(i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland; and

(ii) as it applies as a law of New South Wales or another State or a Territory; or

(b) the law of another State or a Territory that substantially corresponds to the law referred to in paragraph (a);

Note—

This definition is an additional New South Wales provision.

improvement notice means a notice under Part 5 Division 1;

infringement penalty provision has the meaning given by section 233;

interface agreement means an agreement made under Part 3 Division 6 Subdivision 2 about managing risks to safety identified and assessed in accordance with that Subdivision;

jurisdiction means a State or Territory;

level crossing includes each of the following areas—

(a) an area where a road and a railway (other than a tramway) meet at substantially the same level, whether or not there is a level crossing sign on the road at all or any of the entrances to the area;

(b) an area where a road and a tramway meet at substantially the same level and that has a level crossing sign on the road at each entrance to the area;

(c) a pedestrian crossing—

(i) being an area where a footpath or shared path crosses a railway (other than a tramway) at substantially the same level, whether or not there is a level crossing sign on the path at all or any of the entrances to the area; or

(ii) being an area where a footpath or shared path crosses a tramway at substantially the same level and that has a level crossing sign on the path at each entrance to the area;

member, of ONRSR, means the Regulator, an Acting Regulator or a non-executive member appointed under Part 2 Division 2;

national regulations means the regulations made under section 264;

non-disturbance notice means a notice under Part 5 Division 3;

notifiable occurrence means an accident or incident associated with railway operations—

(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 national regulations to be a notifiable occurrence or class of notifiable occurrence,

but does not include an accident or incident, or class of accident or incident, that is prescribed by the national regulations not to be a notifiable occurrence;

occupational health and safety legislation means legislation relating to occupational health and safety prescribed by the national regulations for the purposes of this definition;

Office of the National Rail Safety Regulator or ONRSR means the Office of the National Rail Safety Regulator established under Part 2 Division 1;

officer—

(a) in relation to a body corporate, has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth;

(b) in relation to any other person, means an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the person;

participating jurisdiction means a jurisdiction in which—

(a) this Law applies as a law of the jurisdiction; or

(b) a law that substantially corresponds to the provisions of this Law has been enacted; or

(c) a law prescribed by the national regulations for the purposes of this definition has been enacted;

police officer means a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990;

Note—

This definition is an additional New South Wales provision.

prescribed drug—see section 128;

private siding means a siding that is owned, controlled or managed by a person, other than a person who manages the rail infrastructure with which the siding connects or to which it has access, but does not include—

(a) a marshalling yard; or

(b) a crossing loop; or

(c) a passenger terminal; or

(d) (Repealed)

(e) a siding under the control and management of an accredited rail infrastructure manager; or

(f) a siding, or a siding of a class, prescribed by the national regulations not to be a private siding;

prohibition notice means a notice under Part 5 Division 2;

public place means—

(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;

public road means a public road within the meaning of the Roads Act 1993 (other than a Crown road within the meaning of that Act);

Note—

This definition is an additional New South Wales provision.

public sector auditor means—

(a) the Auditor-General (however described) of a participating jurisdiction; or

(b) an auditor employed, appointed or otherwise engaged, by an Auditor-General of a participating jurisdiction;

rail infrastructure means the facilities that are necessary to enable a railway to operate safely and includes—

(a) railway tracks and associated railway track structures; and

(b) service roads, signalling systems, communications systems, rolling stock control systems, train control systems and data management systems; and

(c) notices and signs; and

(d) electrical power supply and electric traction systems; and

(e) associated buildings, workshops, depots and yards; and

(f) plant, machinery and equipment,

but does not include—

(g) rolling stock; or

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

rail infrastructure manager, in relation to rail infrastructure of a railway, means the person who has effective control and management of the rail infrastructure, whether or not the person—

(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;

rail or road crossing includes each of the following—

(a) a level crossing;

(b) an area where a road and a tramway meet at substantially the same level, where there is no level crossing sign on the road at all or any of the entrances to the area;

(c) an area where a footpath or shared path crosses a tramway at substantially the same level, where there is no level crossing sign on the path at all or any of the entrances to the area;

(d) a bridge carrying a road over a railway;

(e) a bridge carrying a railway over a road;

(f) a lane of a road on which rolling stock moves alongside road vehicles on the road;

rail safety officer means a person holding an appointment as a rail safety officer under Part 4 Division 2;

rail safety undertaking—see Part 10 Division 6;

rail safety work—see section 8;

rail safety worker means an individual who has carried out, is carrying out, or is about to carry out, rail safety work;

rail transport operator means—

(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;

rail workplace means a place where rail safety work is carried out, and includes any place where a rail safety worker goes, or is likely to be, while doing rail safety work;

railway means a guided system, or proposed guided system, designed for the movement of rolling stock having the capability of transporting passengers or freight (or both) on a railway track with a gauge of 600 millimetres or more, together with its rail infrastructure and rolling stock, and includes the following—

(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 national regulations to be a railway;

Note.

See section 7 for railways to which this Law does not apply.

railway operations means any of the following—

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

(b) the construction of rolling stock;

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

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

(e) 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);

(f) the movement, or causing the movement, of rolling stock for the purposes of operating a railway service;

(g) the scheduling, control and monitoring of rolling stock being operated or moved on rail infrastructure;

railway premises means—

(a) land (including any premises on land) on or in which is situated rail infrastructure; or

(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; or

(c) freight centres or depots used in connection with the carrying out of railway operations; or

(d) workshops or maintenance depots used in connection with the carrying out of railway operations; or

(e) premises (including an office, building or housing) used in connection with the carrying out of railway operations; or

(f) rolling stock or other vehicles associated with railway operations; or

(g) any other rail workplace;

reasonably practicable—see section 47;

Register means the National Rail Safety Register established under section 42;

registered person means a rail infrastructure manager who is registered under this Law, but does not include a person whose registration under this Law—

(a) has been surrendered or cancelled or has otherwise ceased to have effect under this Law; or

(b) is suspended under this Law;

Regulator means the National Rail Safety Regulator or an Acting National Rail Safety Regulator appointed under Part 2 Division 2;

responsible Minister means the Minister administering the Rail Safety (Adoption of National Law) Act 2012;

Note—

This definition is an additional New South Wales provision.

road has the same meaning as it has in the Roads Act 1993;

Note—

This definition is an additional New South Wales provision.

road infrastructure includes—

(a) a road, including its surface or pavement; and

(b) anything under or supporting a road or its surface or pavement; and

(c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of a road system or supporting a road; and

(d) any bridge or other work or structure located above, in or on a road; and

(e) any traffic control devices, electricity equipment, emergency telephone systems or any other facilities (whether of the same or a different kind) in, on, over, under or connected with anything referred to in paragraphs (a) to (d); and

(f) anything prescribed by the national regulations to be road infrastructure,

but does not include rail infrastructure or anything that is prescribed by the national regulations not to be road infrastructure;

road manager—

(a) in relation to a private road—means the owner, or other person responsible for the care, control and management, of the road; or

(b) in relation to a public road—means an authority, person or body responsible for the care, control or management of the road;

road vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle;

Note—

This definition is an additional New South Wales provision.

rolling stock means a vehicle that operates on or uses a railway, and includes a locomotive, carriage, rail car, rail motor, light rail vehicle, train, tram, light inspection vehicle, self propelled infrastructure maintenance vehicle, trolley, wagon or monorail vehicle, but does not include a vehicle designed to operate both on and off a railway when the vehicle is not operating on a railway;

rolling stock operator means a person who has effective control and management of the operation or movement of rolling stock on rail infrastructure for a railway, but does not include a person by reason only that the person drives the rolling stock or controls the network or the network signals;

running line means a railway track used primarily for the through movement of trains;

safety means the safety of people, including rail safety workers, passengers, other users of railways, users of rail or road crossings and the general public;

safety duty—see section 57;

safety management system—see Part 3 Division 6;

shared path has the same meaning as in the Road Rules 2014;

Note—

This definition is an additional New South Wales provision.

siding means a portion of railway track, connected by points to a running line or another siding, on which rolling stock can be placed clear of the running line;

South Australian Minister means the responsible Minister for South Australia;

substance means substance in any form (whether gaseous, liquid, solid or other), and includes material, preparation, extract and admixture;

supervisory intervention order—see section 231;

supply includes—

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

(b) in relation to services—provide, grant or confer, whether as principal or agent;

Territory means the Australian Capital Territory or the Northern Territory;

this Law means—

(a) this Law as it applies as a law of a participating jurisdiction; or

(b) a law of a participating jurisdiction that—

(i) substantially corresponds to the provisions of this Law; or

(ii) is prescribed by the national regulations for the purposes of paragraph (c) of the definition of participating jurisdiction;

train means—

(a) 2 or more units of rolling stock coupled together, at least 1 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;

train safety recording—see section 130;

union means—

(a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or

(b) an association of employees or independent contractors (or both) that is registered or recognised as such an association (however described) under a State or Territory industrial law.

(2) In this Law—

(a) a reference to this Law extends to a statutory instrument made under this Law, or a provision of this Law or a statutory instrument made under this Law; and

(b) a reference to the responsible Ministers is a reference to a group of Ministers consisting of—

(i) the responsible Minister for each participating jurisdiction; and

(ii) a Commonwealth Minister nominated by the Commonwealth as the responsible Minister for the Commonwealth for the purposes of this Law (the Commonwealth Minister).

(3) The Commonwealth Minister has complete discretion as to whether or not to exercise a function or power given to the responsible Ministers under this Law and so, for the purposes of this Law, a recommendation of the responsible Ministers that is required to be unanimous will be taken to be unanimous if the Commonwealth Minister declines to exercise the function or power and the responsible Minister for each participating jurisdiction agrees with the recommendation.

(3A) In this Law, a reference to a court—

(a) in sections 197 and 255, is a reference to the District Court; and

(b) in section 217, in relation to a decision set out in items 1–23, 30 and 32–39 of the table to section 215(1), is a reference to the Civil and Administrative Tribunal; and

(c) in section 217, in relation to a decision set out in items 24–29 and 31 of the table to section 215(1), is a reference to the Industrial Relations Commission.

Note—

This subsection is an additional New South Wales provision.

s 4: Am 2013 No 95, Sch 2.125; 2014 (762), Sch 1; 2015 No 5, sec 5; 2016 No 31, sec 4; 2018 (396), Sch 1; 2019 No 4, sec 4; 2020 No 17, sec 4; 2023 No 14, sec 4; 2025 No 61, Sch 2.79[1].

5 Interpretation generally

5 Interpretation generally

Schedule 2 to this Law applies in relation to this Law.

6 Declaration of substance to be drug

6 Declaration of substance to be drug

(1) The responsible Ministers may declare a substance to be a drug for the purposes of this Law.

(2) A declaration under subsection (1)—

(a) is to be published on the NSW legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales; and

(b) will commence on the day specified in the declaration for its commencement (being not earlier than the date it is published); and

(c) is to be published by ONRSR on its website.

7 Railways to which this Law does not apply

7 Railways to which this Law does not apply

(1) This Law does not apply to or in relation to—

(a) a railway in a mine that is underground, or chiefly underground, and that is used in connection with the performance of mining operations; or

(b) a slipway; or

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

(d) an aerial cable operated system; or

(e) a railway used only by a horse-drawn tram; or

(f) a railway used only for a static display; or

(g) any other railway, or class of railway, prescribed by the national regulations to be a railway, or railway of a class, to which this Law does not apply.

(2) This Law does not apply to or in relation to the following railways—

(a) a railway that—

(i) is privately owned and operated as a hobby; and

(ii) is operated only on private property; and

(iii) does not operate on or cross a public road; and

(iv) is not operated for hire or reward, or provided on hire or lease; and

(v) to which members of the public do not have access (whether by invitation or otherwise);

(b) a railway that—

(i) is used only for the purposes of an amusement structure; and

(ii) is operated only within an amusement park; and

(iii) does not operate on or cross a public road; and

(iv) is not connected with another railway in respect of which a rail transport operator is required to be accredited or registered under this Law.

(3) Despite subsection (2)(b), the national regulations may prescribe a specified railway of a class referred to in that paragraph to be a railway to which or in relation to which this Law applies.

8 Meaning of rail safety work

8 Meaning of rail safety work

(1) Subject to subsection (2), any of the following classes of work is rail safety work for the purposes of this Law—

(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) constructing, 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, including checking that the rail infrastructure is working properly before being used;

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

(f) work on or about rail infrastructure or associated works or equipment that places, or may place, the person performing the work at risk of exposure to moving rolling stock;

(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, any rolling stock using rail infrastructure or 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 national regulations to be rail safety work.

(2) For the purposes of this Law, rail safety work does not include any work, or any class of work, prescribed by the national regulations not to be rail safety work.

s 8: Am 2020 No 17, sec 5.

9 Single national entity

9 Single national entity

(1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by this Law is 1 single national entity, with functions conferred by this Law as so applied.

(2) An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.

(3) An entity established by this Law may exercise its functions in relation to—

(a) 1 participating jurisdiction; or

(b) 2 or more or all participating jurisdictions collectively.

(4) In this section, a reference to this Law as applied by an Act of a jurisdiction includes—

(a) a reference to a law that substantially corresponds to this Law enacted in a jurisdiction; and

(b) a law prescribed by the national regulations for the purposes of the definition of a participating jurisdiction.

10 Extraterritorial operation of Law

10 Extraterritorial operation of Law

It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—

(a) things situated in or outside the territorial limits of this jurisdiction;

(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.

11 Crown to be bound

11 Crown to be bound

(1) This Law binds the Crown, in right of this jurisdiction and, insofar as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.

(2) No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this Law.

Part 2 Office of the National Rail Safety Regulator

Part 2 Office of the National Rail Safety Regulator

Division 1 Establishment, functions, objectives, etc

Division 1 Establishment, functions, objectives, etc

12 Establishment

12 Establishment

(1) The Office of the National Rail Safety Regulator (ONRSR) is established.

(2) ONRSR—

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name.

(3) ONRSR represents the Crown.

13 Functions and objectives

13 Functions and objectives

(1) In addition to any other function conferred on ONRSR by this Law or an Act, ONRSR has the following functions—

(a) to administer, audit and review the accreditation regime under this Law;

(b) to work with rail transport operators, rail safety workers, and others involved in railway operations, to improve rail safety nationally;

(c) to conduct research, collect and publish information relating to rail safety;

(d) to provide, or facilitate the provision of, advice, education and training in relation to rail safety;

(e) to monitor, investigate and enforce compliance with this Law;

(f) to engage in, promote and coordinate the sharing of information to achieve the objects of this Law, including the sharing of information with a prescribed authority;

(g) at the request of the Commonwealth or a jurisdiction—to carry out any other function as agreed between ONRSR and the jurisdiction.

(2) In exercising its functions, ONRSR must—

(a) facilitate the safe operations of rail transport in Australia; and

(b) exhibit independence, rigour and excellence in carrying out its regulatory functions; and

(c) promote safety and safety improvement as a fundamental objective in the delivery of rail transport in Australia.

(3) In this section—

prescribed authority means—

(a) the Australian Transport Safety Bureau established under the Transport Safety Investigation Act 2003 of the Commonwealth; and

(ab) Rail Industry Safety and Standards Board (RISSB) Limited; and

(b) any other relevant authority established under a law of a participating jurisdiction.

s 13: Am 2017 No 14, sec 4.

14 Independence of ONRSR

14 Independence of ONRSR

Except as provided under this Law or an Act, ONRSR is not subject to Ministerial direction in the exercise of its functions or powers.

15 Powers

15 Powers

(1) ONRSR has all the powers of an individual and, in particular, may—

(a) enter into contracts; and

(b) acquire, hold, dispose of, and deal with, real and personal property; and

(c) do anything necessary or convenient to be done in the exercise of its functions.

(2) Without limiting subsection (1), ONRSR may enter into an agreement (a service agreement) with a State or Territory that makes provision for—

(a) the State or Territory to provide services to ONRSR that assist ONRSR in exercising its functions; or

(b) ONRSR to provide services to the State or Territory.

Division 2 Office of the National Rail Safety Regulator

Division 2 Office of the National Rail Safety Regulator

pt.2-div.2-sdiv.1 Constitution of ONRSR

Subdivision 1 Constitution of ONRSR

16 Constitution of ONRSR

16 Constitution of ONRSR

(1) ONRSR consists of—

(a) a person appointed by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers as the National Rail Safety Regulator (the Regulator); and

(b) 2 non-executive members (full-time or part-time) as are appointed by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers.

(2) The exercise of a function or power of ONRSR is not affected by a vacancy in the membership of ONRSR.

pt.2-div.2-sdiv.2 National Rail Safety Regulator

Subdivision 2 National Rail Safety Regulator

17 Appointment of Regulator

17 Appointment of Regulator

(1) A person may be appointed as the National Rail Safety Regulator who is qualified for appointment because the person has a high level of expertise in 1 or more areas relevant to ONRSR’s functions.

(2) The Regulator will be appointed for a term not exceeding 5 years on terms and conditions determined by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers.

(3) The Regulator is entitled to be paid the remuneration and allowances decided by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers from time to time.

(4) In setting the remuneration and allowances for the Regulator, regard must be had to relevant rates (if any) published by the Remuneration Tribunal of the Commonwealth from time to time.

(5) At the expiration of a term of appointment, the Regulator will be eligible for reappointment.

(6) The conditions of appointment of the Regulator must not, without the consent of the Regulator, be varied while the Regulator is in office so as to become less favourable to the Regulator.

(7) The Regulator must not engage, without the written consent of the South Australian Minister acting on the unanimous recommendation of the responsible Ministers, in any other remunerated employment.

18 Acting National Rail Safety Regulator

18 Acting National Rail Safety Regulator

(1) The South Australian Minister may appoint an Acting National Rail Safety Regulator (who may, or may not, be a non-executive member or a member of the staff of ONRSR) to act in the office of the Regulator and a person so appointed has, while so acting, all the functions and powers of the Regulator.

(2) An Acting Regulator may act in the office of the Regulator—

(a) during a vacancy in the office of the Regulator (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Regulator—

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to exercise the duties of the office; or

(c) if the Regulator is disqualified from acting in relation to a particular matter—in relation to that matter.

(3) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because—

(a) the occasion for the appointment had not arisen; or

(b) there is a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

19 Functions of Regulator

19 Functions of Regulator

(1) The functions of the Regulator include—

(a) being the chief executive of ONRSR; and

(b) exercising the functions of ONRSR conferred on the Regulator under this Law or an Act; and

(c) otherwise acting on behalf of ONRSR in appropriate cases.

(2) An act of the Regulator will be taken to be an act of ONRSR.

(3) Except as provided under this Law or an Act of a participating jurisdiction, the Regulator is not subject to direction in the exercise of his or her functions or powers.

(4) The Regulator must act consistently with the policies determined by ONRSR.

20 Power of Regulator to obtain information

20 Power of Regulator to obtain information

(1) This section applies if the Regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Law or that will assist to monitor or enforce compliance with this Law.

(2) The Regulator may, by written notice served on the person, require the person to do 1 or more of the following—

(a) to give the Regulator in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge;

(b) to produce to the Regulator, in accordance with the notice, those documents;

(c) to appear before a person appointed by the Regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(3) The notice must—

(a) state that the requirement is made under this section; and

(b) contain a statement to the effect that a failure to comply with a requirement is an offence; and

(c) if the notice requires the person to provide information or documents or answer questions—

(i) contain a statement about the effect of sections 155 and 245; and

(ii) state that the person may attend with a legal practitioner.

(4) (Repealed)

(5) A person must not, without reasonable excuse, fail to comply with a requirement under this section.

Maximum penalty—

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

(6) Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7) Section 155 (with any necessary changes) applies to a requirement under this section.

s 20: Am 2015 No 5, sec 6.

pt.2-div.2-sdiv.3 Non-executive members

Subdivision 3 Non-executive members

21 Appointment of non-executive members

21 Appointment of non-executive members

(1) A person may be appointed as a non-executive member of ONRSR who is qualified for appointment because the person has a high level of expertise in 1 or more areas relevant to ONRSR’s functions.

(2) A non-executive member will be appointed for a term not exceeding 4 years on terms and conditions determined by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers.

(3) A non-executive member is entitled to be paid the remuneration and allowances decided by the South Australian Minister acting on the unanimous recommendation of the responsible Ministers from time to time.

(4) In setting the remuneration and allowances for a non-executive member regard must be had to relevant rates (if any) published by the Remuneration Tribunal of the Commonwealth from time to time.

(5) At the expiration of a term of appointment, a non-executive member will be eligible for reappointment.

(6) The conditions of appointment of a non-executive member must not, without the consent of the member, be varied while the member is in office so as to become less favourable to the member.

pt.2-div.2-sdiv.4 Miscellaneous provisions relating to membership

Subdivision 4 Miscellaneous provisions relating to membership

22 Vacancy in or removal from office

22 Vacancy in or removal from office

(1) The office of a member of ONRSR becomes vacant if the member—

(a) completes a term of office; or

(b) resigns by written notice given to the responsible Ministers; or

(c) has been found guilty of an offence, whether in a participating jurisdiction or elsewhere, that the responsible Ministers consider renders the member unfit to continue to hold the office of member; or

(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration for their benefit; or

(e) is absent, without leave first being granted by the relevant entity from 3 or more consecutive meetings of ONRSR of which reasonable notice has been given to the member personally or by post; or

(f) is removed from office by the South Australian Minister under this section; or

(g) dies.

(2) The South Australian Minister may remove a member of ONRSR from office if the responsible Ministers recommend the removal of the member on the basis that the member has engaged in misconduct or has failed to or is unable to properly exercise the member’s functions as a member of ONRSR.

(3) In this section—

relevant entity means—

(a) for the Regulator—the responsible Ministers; or

(b) for a non-executive member—the Regulator.

23 Member to give responsible Ministers notice of certain events

23 Member to give responsible Ministers notice of certain events

A member of ONRSR must, within 7 days of either of the following events occurring, give the responsible Ministers notice of the event—

(a) the member is convicted of an offence;

(b) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration for their benefit.

24 Extension of term of office during vacancy in membership

24 Extension of term of office during vacancy in membership

(1) If the office of a member of ONRSR becomes vacant because the member has completed the member’s term of office, the member is taken to continue to be a member during that vacancy until the date on which the vacancy is filled, whether by reappointment of the member or appointment of a successor to the member.

(2) However, this section ceases to apply to the member if—

(a) the member resigns the member’s office by signed notice given to the responsible Ministers; or

(b) the responsible Ministers decide the services of the member are no longer required.

(3) The maximum period for which a member of ONRSR is taken to continue to be a member under this section after completion of the member’s term of office is 6 months.

25 Members to act in public interest

25 Members to act in public interest

A member of ONRSR is to act impartially and in the public interest in the exercise of the member’s functions as a member.

26 Disclosure of conflict of interest

26 Disclosure of conflict of interest

(1) If a member of ONRSR has a direct or indirect pecuniary or other interest that conflicts or may conflict with the exercise of the member’s functions as a member, the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the member’s interest and the conflict to—

(a) for the Regulator—the responsible Ministers; or

(b) for a non-executive member—the Regulator.

(2) If a disclosure is made under subsection (1), the entity to whom the disclosure is made must notify ONRSR of the disclosure.

(3) Particulars of any disclosure made under subsection (1) must be recorded by ONRSR in a register of interests kept for the purpose.

(4) After a member of ONRSR has disclosed the nature of an interest and conflict or potential conflict under subsection (1), the member must not be present during any deliberation of ONRSR with respect to any matter that is, or may be, affected by the conflict, or take part in any decision of ONRSR with respect to any matter that is, or may be, affected by the conflict, unless—

(a) for the Regulator, the responsible Ministers otherwise decide; or

(b) for a non-executive member, ONRSR otherwise decides.

(5) For the purposes of the making of a decision by ONRSR under subsection (4) in relation to a matter, a member of ONRSR who has a direct or indirect pecuniary or other interest that conflicts or may conflict with the exercise of the member’s functions as a member with respect to the matter must not—

(a) be present during any deliberation of ONRSR for the purpose of making the decision; or

(b) take part in the making of the decision by ONRSR.

(6) A contravention of this section does not invalidate any decision of ONRSR but if ONRSR becomes aware a member of ONRSR contravened this section, ONRSR must reconsider any decision made by ONRSR in which the member took part in contravention of this section.

Division 3 Procedures

Division 3 Procedures

27 Times and places of meetings

27 Times and places of meetings

(1) The Regulator must hold such meetings as he or she considers necessary for the efficient exercise of ONRSR’s functions.

(2) Meetings are to be held at such times and places as the Regulator decides.

28 Conduct of meetings

28 Conduct of meetings

(1) The Regulator is to preside at all meetings of ONRSR at which he or she is present.

(2) If the Regulator is not present at a meeting, a person appointed to act as the Regulator must be present and preside.

(3) A quorum of ONRSR consists of 2 members.

(4) A decision supported by a majority of the votes cast at a meeting of ONRSR at which a quorum is present is the decision of ONRSR.

(5) The person presiding at a meeting of ONRSR has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.

(6) Subject to this Division, ONRSR may regulate its own procedures.

(7) ONRSR must ensure that minutes of its meetings are kept.

29 Defects in appointment of members

29 Defects in appointment of members

A decision of ONRSR is not invalidated by any defect or irregularity in the appointment of a member.

30 Decisions without meetings

30 Decisions without meetings

(1) A decision is taken to have been made at a meeting of ONRSR if—

(a) without meeting, a majority of the members indicate agreement with the proposed decision in accordance with the method determined under this section; and

(b) all members were informed, or reasonable efforts were made to inform all members, of the proposed decision.

(2) Subsection (1) applies only if ONRSR—

(a) has determined that it applies; and

(b) has determined the method by which members are to indicate agreement with proposed decisions.

(3) ONRSR must keep a record of decisions made under this section.

31 Common seal and execution of documents

31 Common seal and execution of documents

(1) The common seal of ONRSR must not be affixed to a document except in pursuance of a decision of ONRSR, and the affixing of the seal must be attested by the signature of the Regulator or Acting Regulator.

(2) ONRSR may, by instrument under ONRSR’s common seal, authorise an employee of ONRSR (whether nominated by name or by office or title) or any other person to execute documents on behalf of ONRSR subject to conditions and limitations (if any) specified in the instrument of authority.

(3) Without limiting subsection (2), an authority may be given so as to authorise 2 or more persons to execute documents jointly on behalf of ONRSR.

(4) A document is duly executed by ONRSR if—

(a) the common seal of ONRSR is affixed to the document in accordance with this section; or

(b) the document is signed on behalf of ONRSR by a person or persons in accordance with an authority conferred under this section.

(5) Where an apparently genuine document purports to bear the common seal of ONRSR, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of ONRSR has been duly affixed to that document.

Division 4 Finance

Division 4 Finance

32 Establishment of Fund

32 Establishment of Fund

(1) The National Rail Safety Regulator Fund is established.

(2) The Fund is to be administered by ONRSR.

(3) ONRSR may establish accounts with any financial institution for money in the Fund.

(4) The Fund does not form part of the consolidated fund or consolidated account of a participating jurisdiction or the Commonwealth.

33 Payments into Fund

33 Payments into Fund

There is payable into the Fund—

(a) all money appropriated by the Parliament of any participating jurisdiction or the Commonwealth for the purposes of the Fund; and

(b) all fees, charges, costs and expenses paid to or recovered by ONRSR under this Law; and

(ba) all infringement penalties paid to or recovered by ONRSR; and

(bb) all portions of fines paid to ONRSR by order of a court under section 260A; and

(c) the proceeds of the investment of money in the Fund; and

(d) all grants, gifts and donations made to ONRSR, but subject to any trusts declared in relation to the grants, gifts or donations; and

(e) all money directed or authorised to be paid into the Fund under this Law, any law of a participating jurisdiction or any law of the Commonwealth; and

(f) any other money or property received by ONRSR in connection with the exercise of its functions; and

(g) any money paid to ONRSR for the provision of services to a State or Territory under an agreement mentioned in section 15(2)(b).

s 33: Am 2016 No 31, sec 5.

34 Payments out of Fund

34 Payments out of Fund

Payments may be made from the Fund for the purpose of—

(a) paying any costs or expenses, or discharging any liabilities, incurred in the administration or enforcement of this Law, including (for example) payments made to a State or Territory for the provision of services under an agreement mentioned in section 15(2)(a); and

(b) paying any money directed or authorised to be paid out of the Fund under this Law; and

(c) any other payments recommended by ONRSR and approved by the responsible Ministers.

35 Investment of money in Fund

35 Investment of money in Fund

(1) ONRSR must invest its funds in a way that is secure and provides a low risk so that ONRSR’s exposure to the loss of funds is minimised.

(2) ONRSR must keep records that show it has invested in a way that complies with subsection (1).

36 Financial management duties of ONRSR

36 Financial management duties of ONRSR

ONRSR must—

(a) ensure its operations are carried out efficiently, effectively and economically; and

(b) keep proper books and records in relation to the Fund and other money received by ONRSR; and

(c) ensure expenditure is made from the Fund for lawful purposes only and, as far as possible, reasonable value is obtained for money expended from the Fund; and

(d) ensure its procedures, including internal control procedures, afford adequate safeguards with respect to—

(i) the correctness, regularity and propriety of payments made from the Fund; and

(ii) receiving and accounting for payments made to the Fund; and

(iii) prevention of fraud or mistake; and

(e) take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in its annual report; and

(f) take any action necessary to facilitate the audit of those financial statements under this Law; and

(g) arrange for any further audit by a qualified person of the books and records kept by ONRSR in relation to the Fund, if directed to do so by the responsible Ministers.

Division 5 Staff

Division 5 Staff

37 Chief executive

37 Chief executive

(1) The Regulator is the chief executive of ONRSR responsible for—

(a) the day to day management of ONRSR; and

(b) carrying out any other function conferred on the chief executive under this Law, an Act or by ONRSR.

(2) The chief executive must act consistently with the policies determined by ONRSR.

38 Staff

38 Staff

(1) ONRSR may, for the purpose of exercising its functions, employ staff.

(2) The staff of ONRSR are to be employed on the terms and conditions decided by ONRSR from time to time.

(3) Subsection (2) is subject to any relevant industrial award or agreement that applies to the staff.

39 Secondments to ONRSR

39 Secondments to ONRSR

ONRSR may make arrangements for the services of a person who is a member of the staff of a government agency of a participating jurisdiction or the Commonwealth to be made available to ONRSR in connection with the exercise of its functions.

40 Consultants and contractors

40 Consultants and contractors

(1) ONRSR may engage persons with suitable qualifications and experience as consultants or contractors.

(2) The terms and conditions of engagement of consultants or contractors are as decided by ONRSR from time to time.

Division 6 Miscellaneous

Division 6 Miscellaneous

41 Regulator may be directed to investigate rail safety matter

41 Regulator may be directed to investigate rail safety matter

(1) The responsible Minister for a participating jurisdiction may give a written direction to the Regulator to investigate, or provide advice or information about, a rail safety matter relating to the participating jurisdiction.

(2) A direction may not be given under this section—

(a) that directs the Regulator as to how to conduct an investigation into a rail safety matter; or

(b) that directs the Regulator as to which persons the Regulator may request or direct to provide assistance in investigating a rail safety matter; or

(c) about the outcome of any such investigation; or

(d) that directs the Regulator to stop any such investigation.

(3) The Regulator must cause a direction given under this section to be published in ONRSR’s next annual report.

42 National Rail Safety Register

42 National Rail Safety Register

(1) The Regulator must establish and maintain the National Rail Safety Register for the purposes of this Law.

(2) The Regulator must ensure that the following matters are recorded in the Register—

(a) the accreditation of a rail transport operator under Part 3 Division 4;

(b) the variation, cancellation, suspension or expiry of the accreditation of a rail transport operator under Part 3 Division 4;

(ba) the rail transport operators determined by the Regulator to be tourist and heritage railway operators for the purposes of section 76(1a)(a) (Annual fees) and section 95(1a)(b) (Annual fees) of the Law;

(c) the registration of a rail infrastructure manager of a private siding under Part 3 Division 5;

(d) the variation, cancellation, suspension or expiry of the registration of a rail infrastructure manager of a private siding under Part 3 Division 5;

(e) an exemption from this Law or specified provisions of this Law conferred on a person and details of the exemption;

(f) a decision to accept a rail safety undertaking and the reasons for that decision under Part 10 Division 6;

(g) a decision to withdraw or vary a rail safety undertaking under Part 10 Division 6;

(h) the issuing of an improvement notice to a person;

(i) the variation, cancellation or expiry of an improvement notice;

(j) the issuing of a prohibition notice to a person;

(k) the variation, cancellation or expiry of a prohibition notice;

(l) the issuing of a non-disturbance notice to a person;

(m) the variation, cancellation or expiry of a non-disturbance notice;

(n) any other matter that is prescribed in the national regulations to be included in the Register.

(3) The Register will be kept in the form of a computer record and published on ONRSR’s website.

(4) The Register is to be available for inspection, without fee, during ordinary office hours at a public office, or public offices, determined by the Regulator.

s 42: Am 2023 No 14, sec 5.

43 Annual report

43 Annual report

(1) The Regulator must, on or before 30 September in each year, deliver to the responsible Ministers a report on ONRSR’s activities for the financial year ending on the preceding 30 June.

(2) The annual report must include—

(a) information on the development of rail safety (including an aggregation of statistics of a prescribed class reported to ONRSR under this Law for the relevant financial year); and

(b) information on any improvements and important changes in relation to the regulation of rail safety for the relevant financial year; and

(c) details of all rail safety issues brought to the attention of ONRSR during the relevant financial year and the action (if any) taken in relation to each such issue; and

(d) if, at the start of the relevant financial year, there are still outstanding any rail safety issues that previously had been brought to the attention of ONRSR—details of the action (if any) taken in respect of each such issue; and

(e) details about any significant activity undertaken in each participating jurisdiction during the relevant financial year by, or on behalf of, ONRSR; and

(f) the financial statement in respect of the relevant financial year; and

(g) the report on the financial statement made by the auditor who conducted the audit; and

(h) any other information required to be included in the report by another provision under this Law or by the responsible Ministers.

(3) The national regulations may make provision in relation to the preparation and auditing of financial statements.

(4) The responsible Ministers must make arrangements for the tabling of ONRSR’s annual report in the Parliament of each participating jurisdiction.

(5) The responsible Ministers may extend, or further extend, the period for submission of an annual report to the responsible Ministers by a total period of up to 3 months.

(6) As soon as practicable after the annual report has been tabled in at least 1 House of the Parliament of a participating jurisdiction, the Regulator must publish a copy of the report on ONRSR’s website.

s 43: Am 2019 No 4, sec 5.

44 Other reporting requirements

44 Other reporting requirements

The national regulations may require ONRSR to deliver to a prescribed body or person, at prescribed intervals, a report containing prescribed matters.

45 Delegation

45 Delegation

(1) ONRSR may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of ONRSR under this Law or an Act.

(2) The Regulator may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Regulator under this Law or an Act.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

Part 3 Regulation of rail safety

Part 3 Regulation of rail safety

46 Management of risks

46 Management of risks

A duty imposed on a person under this Law to ensure, so far as is reasonably practicable, safety requires the person—

(a) to eliminate risks to safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to safety, to minimise those risks so far as is reasonably practicable.

47 Meaning of reasonably practicable

47 Meaning of reasonably practicable

In this Part—

reasonably practicable, in relation to a duty to ensure safety, means that which is (or was at a particular time) reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters, including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

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

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk (including whether the cost is grossly disproportionate to the risk).

48 Relationship between this Law and OHS legislation

48 Relationship between this Law and OHS legislation

(1) If a provision of the occupational health and safety legislation applies to railway operations, that provision continues to apply, and must be observed, in addition to this Law.

(2) If a provision of this Law is inconsistent with a provision of the occupational health and safety legislation, the provision of the occupational health and safety legislation prevails to the extent of any inconsistency.

Note.

For example, if a provision of this Law deals with a certain matter and a provision of the occupational health and safety legislation deals with the same matter and it is impossible to comply with both provisions, a person must comply with the occupational health and safety legislation and not with this Law. If provisions of both this Law and the occupational health and safety legislation deal with the same matter but it is possible to comply with both provisions, a person must comply with both.

(3) Compliance with this Law or with any requirement imposed under this Law is not in itself a defence in any proceedings for an offence against the occupational health and safety legislation.

(4) Evidence of a relevant contravention of this Law is admissible in any proceedings for an offence against the occupational health and safety legislation.

49 No double jeopardy

49 No double jeopardy

Where an act or omission constitutes an offence—

(a) under this Law; and

(b) under the occupational health and safety legislation,

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

pt.3-div.3-sdiv.1 Principles

Subdivision 1 Principles

50 Principles of shared responsibility, accountability, integrated risk management, etc

50 Principles of shared responsibility, accountability, integrated risk management, etc

(1) Rail safety is the shared responsibility of—

(a) rail transport operators; and

(b) rail safety workers; and

(c) other persons who—

(i) design, commission, construct, manufacture, supply, install, erect, maintain, repair, modify or decommission rail infrastructure or rolling stock; or

(ii) supply rail infrastructure operations or rolling stock operations to rail operators; or

(iii) in relation to the transport of freight by railway—load or unload freight on or from rolling stock; and

(d) the Regulator; and

(e) ONRSR; and

(f) the public.

(2) The level and nature of responsibility that a person referred to in subsection (1), or falling within a class of person referred to in that subsection, has for rail safety is dependent on the nature of the risk to rail safety that the person creates from the carrying out of an activity (or the making of a decision) and the capacity that person has to control, eliminate or mitigate those risks.

(3) The persons and classes of persons referred to in subsection (1) should—

(a) participate in or be able to participate in; and

(b) be consulted on; and

(c) be involved in the formulation and implementation of,

measures to manage risks to safety associated with railway operations.

(4) Managing risks associated with the carrying out of rail infrastructure operations or rolling stock operations is the responsibility of the person best able to control those risks.

(5) If approaches to managing risks associated with any particular railway have potential impacts on any other railway or a railway network of which the railway is a part, the best practicable rail safety outcome should be sought.

51 Principles applying to rail safety duties

51 Principles applying to rail safety duties

(1) A duty under this Law cannot be transferred to another person.

(2) A person can have more than 1 duty under this Law by virtue of being in more than 1 class of duty holder.

(3) More than 1 person can concurrently have the same duty under this Law and each duty holder must comply with that duty to the standard required by this Law even if another duty holder has the same duty.

(4) If more than 1 person has a duty for the same matter, each person—

(a) retains responsibility for the person’s duty in relation to the matter; and

(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter (or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity).

pt.3-div.3-sdiv.2 Duties

Subdivision 2 Duties

52 Duties of rail transport operators

52 Duties of rail transport operators

(1) A rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator’s railway operations.

(2) Without limiting subsection (1), a rail transport operator must ensure, so far as is reasonably practicable—

(a) that safe systems for the carrying out of the operator’s railway operations are developed and implemented; and

(b) 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; and

(c) 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 impaired by alcohol or a drug; and

(d) that rail safety workers who perform rail safety work in relation to the operator’s railway operations do not carry out rail safety work while impaired by fatigue or if they may become so impaired; and

(e) the provision of adequate facilities for the safety of persons at any railway premises under the control or management of the operator; and

(f) the provision of—

(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 subsection (1), a rail infrastructure manager must ensure, so far as is reasonably practicable—

(a) the provision or maintenance of rail infrastructure that is safe; and

(b) that any design, construction, commissioning, use, installation, modification, maintenance, repair or decommissioning of the manager’s rail infrastructure is done or carried out in a way that ensures the safety of railway operations; and

(c) that systems and procedures for the scheduling, control and monitoring of railway operations are established and maintained so as to ensure the safety of the manager’s railway operations; and

(d) that communications systems and procedures are established and maintained so as to ensure the safety of the manager’s railway operations.

(4) Without limiting subsection (1), a rolling stock operator must ensure, so far as is reasonably practicable—

(a) the provision or maintenance of rolling stock that is safe; and

(b) that any design, construction, commissioning, use, modification, maintenance, repair or decommissioning of the operator’s rolling stock is done or carried out in a way that ensures safety; and

(c) compliance with the 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; and

(d) that equipment, procedures and systems are established and maintained so as to minimise risks to the safety of the operator’s railway operations; and

(e) that arrangements are made for ensuring safety in connection with the use, operation and maintenance of the operator’s rolling stock; and

(f) that communications systems and procedures are established and maintained so as to ensure the safety of the operator’s railway operations.

(5) This section applies to a person (other than a rail transport operator) who carries out railway operations in the same way as it applies to a rail transport operator, but does not apply if the person carries out those operations as a rail safety worker or an employee.

53 Duties of designers, manufacturers, suppliers etc

53 Duties of designers, manufacturers, suppliers etc

(1) A person—

(a) who designs, commissions, manufactures, supplies, installs or erects any thing; and

(b) who knows, or ought reasonably to know, that the thing is to be used as or in connection with rail infrastructure or rolling stock,

must—

(c) ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected; and

(d) ensure, so far as is reasonably practicable, that such testing and examination of the thing as may be necessary for compliance with this section is carried out; and

(e) take such action as is necessary to ensure, so far as is reasonably practicable, that there will be available in connection with the use of the thing adequate information about—

(i) the use for which the thing was designed, commissioned, manufactured, supplied, installed or erected; and

(ii) the results of any testing or examination referred to in paragraph (d); and

(iii) any conditions necessary to ensure, so far as is reasonably practicable, that the thing is safe if it is used for a purpose for which it was designed, commissioned, manufactured, supplied, installed or erected.

(2) For the purposes of subsection (1), if the person who supplies the thing—

(a) carries on the business of financing the acquisition of the thing by customers; and

(b) has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and

(c) has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer,

the reference in that subsection to the person who supplies that thing is instead taken to be a reference to the third person.

(3) A person who decommissions any rail infrastructure or rolling stock must ensure, so far as is reasonably practicable—

(a) that the decommissioning is carried out safely; and

(b) such testing and examination as may be necessary for compliance with this section is carried out.

54 Duties of persons loading or unloading freight

54 Duties of persons loading or unloading freight

A person who loads or unloads freight on or from rolling stock in relation to the transport of the freight by railway must ensure, so far as is reasonably practicable, that the loading or unloading is carried out safely and so as to ensure the safe operation of the rolling stock.

55 Duty of officers to exercise due diligence

55 Duty of officers to exercise due diligence

(1) If a person has a duty or obligation under this Law, an officer of the person must exercise due diligence to ensure that the person complies with that duty or obligation.

(2) An officer of a person referred to in subsection (1) may be convicted or found guilty of an offence under this Law relating to a duty under this section whether or not the person has been convicted or found guilty of an offence under this Law relating to the duty or obligation.

(3) In this section—

due diligence includes taking reasonable steps—

(a) to acquire and keep up-to-date knowledge of rail safety matters; and

(b) to gain an understanding of the nature of the railway operations of the person and, generally, of the risks associated with those operations; and

(c) to ensure that the person has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to safety from the railway operations of the person; and

(d) to ensure that the person has appropriate processes for receiving and considering information regarding incidents and risks and responding in a timely way to that information; and

(e) to ensure that the person has, and implements, processes for complying with any duty or obligation of the person under this Law; and

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

56 Duties of rail safety workers

56 Duties of rail safety workers

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

(a) take reasonable care for his or her own safety; and

(b) take reasonable care that his or her acts or omissions do not adversely affect the safety of other persons; and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction given by the rail transport operator to allow the operator to comply with this Law.

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

(a) in the interests of safety; or

(b) under this Law.

(3) A rail safety worker must not, when carrying out rail safety work, wilfully or recklessly place the safety of another person on or in the immediate vicinity of rail infrastructure at risk.

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

pt.3-div.3-sdiv.3 Offences and penalties

Subdivision 3 Offences and penalties

57 Meaning of safety duty

57 Meaning of safety duty

In this Subdivision—

safety duty means a duty imposed under Subdivision 2.

58 Failure to comply with safety duty—reckless conduct—Category 1

58 Failure to comply with safety duty—reckless conduct—Category 1

(1) A person commits a Category 1 offence if—

(a) the person has a safety duty; and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c) the person is reckless as to the risk to an individual of death or serious injury or illness.

Maximum penalty—

(a) in the case of an individual—$300 000 or imprisonment for 5 years, or both;

(b) in the case of a body corporate—$3 000 000.

(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

59 Failure to comply with safety duty—Category 2

59 Failure to comply with safety duty—Category 2

A person commits a Category 2 offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

60 Failure to comply with safety duty—Category 3

60 Failure to comply with safety duty—Category 3

A person commits a Category 3 offence if—

(a) the person has a safety duty; and

(b) the person fails to comply with that duty.

Maximum penalty—

(a) in the case of an individual—$50 000;

(b) in the case of a body corporate—$500 000.

pt.3-div.4-sdiv.1 Purpose and requirement for accreditation

Subdivision 1 Purpose and requirement for accreditation

61 Purpose of accreditation

61 Purpose of accreditation

The purpose of accreditation of a rail transport operator in respect of railway operations is to attest that the rail transport operator has demonstrated to the Regulator the competence and capacity to manage risks to safety associated with those railway operations.

62 Accreditation required for railway operations

62 Accreditation required for railway operations

(1) A person must not carry out any railway operations unless the person—

(a) is a rail transport operator who—

(i) is accredited under this Part in respect of those operations; or

(ii) is exempt under this Law from compliance with this section in respect of those operations; or

(b) is carrying out those operations for or on behalf of—

(i) a rail transport operator who is accredited under this Part in respect of those operations; or

(ii) a rail transport operator who is exempt under this Law from compliance with this section in respect of those operations; or

(c) is exempt under this Law from compliance with this section in respect of those operations.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

Note.

If a body corporate and related bodies corporate are involved, an exemption may be given so that only 1 of the bodies need be accredited (related body corporate meaning related by virtue of section 50 of the Corporations Act 2001 of the Commonwealth).

(2) Subsection (1) does not apply to a rail safety worker, not being a rail transport operator, carrying out rail safety work for or on behalf of a rail transport operator who—

(a) is accredited under this Part; or

(b) is exempt under this Law from compliance with this section,

in relation to that rail safety work.

63 Purposes for which accreditation may be granted

63 Purposes for which accreditation may be granted

(1) Accreditation may be granted to a rail transport operator for any 1 or more of the following purposes—

(a) for the carrying out of railway operations for the part or parts of a railway specified in the accreditation, or for a part or parts having the scope or characteristics so specified;

(b) for any service or aspect, or part of a service or aspect, of railway operations specified in the accreditation;

(c) for specified railway operations to permit any 1 or more of the following—

(i) construction of rail infrastructure;

(ii) restoration or repair work;

(iii) testing of railway tracks or other infrastructure;

(iv) other activities relating to railway operations considered appropriate by the Regulator and specified in the accreditation.

(2) Accreditation may be granted for railway operations carried out, or proposed to be carried out, in 1 or more jurisdictions by a rail transport operator.

(3) If the applicant so requests, accreditation may be granted for a specified period only.

pt.3-div.4-sdiv.2 Procedures for granting accreditation

Subdivision 2 Procedures for granting accreditation

64 Application for accreditation

64 Application for accreditation

(1) A rail transport operator may apply to the Regulator for accreditation in respect of specified railway operations carried out, or proposed to be carried out, by or on behalf of that operator.

(2) An application must be made in the manner and form approved by the Regulator and—

(a) must specify the scope and nature of the railway operations in respect of which accreditation is sought; and

(b) must include a description of the safety management system (including a description of the measures to be taken to manage identified risks) relating to those railway operations; and

(c) must contain the prescribed information; and

(d) must be accompanied by the application fee prescribed by the national regulations.

(3) The Regulator may require a rail transport operator who has applied for accreditation—

(a) to supply further information requested by the Regulator; and

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

(4) If the Regulator, on receiving an application for accreditation, is of the opinion that the scope and nature of the railway operations in respect of which accreditation is sought is such that the scale and complexity of the regulatory oversight that will be required by the Regulator in respect of the operations will be significant, the Regulator—

(a) must notify the rail transport operator in writing—

(i) that, in addition to the application fee referred to in subsection (2)(d), the Regulator is considering charging the operator the application (complex operations) fee prescribed by the national regulations; and

(ii) that the operator may, within 7 days or such longer period as is specified in the notice, make written representations to the Regulator showing cause why the application (complex operations) fee should not be charged; and

(b) must consider any representations made under paragraph (a)(ii) and not withdrawn.

(5) If the Regulator proceeds with a decision to charge a rail transport operator the application (complex operations) fee, the Regulator must notify the operator of that fact and include in the notice—

(a) the reasons why the Regulator is charging the fee; and

(b) the date on or before which the fee is to be paid; and

(c) information about the right of review under Part 7.

s 64: Am 2017 No 14, sec 5.

65 What applicant must demonstrate

65 What applicant must demonstrate

The Regulator must not grant accreditation to an applicant unless satisfied that the applicant has demonstrated—

(a) that the applicant is, or is to be, a rail infrastructure manager or rolling stock operator in respect of the railway operations for which accreditation is sought; and

(b) that the applicant has the competence and capacity to manage risks to safety associated with the railway operations for which accreditation is sought; and

(c) that the applicant—

(i) has the competence and capacity to implement the proposed safety management system; and

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

(iii) has met the consultation requirements set out in Division 6 in relation to the applicant’s safety management system; and

(iv) has complied with the requirements prescribed by the national regulations (if any) for the purposes of this section.

66 Regulator may direct applicants to coordinate applications

66 Regulator may direct applicants to coordinate applications

(1) If the Regulator—

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

(b) believes that coordinated preparation of the applications is necessary to ensure railway operations of the applicants are carried out safely,

the Regulator may give a direction in writing to each of the applicants to coordinate their applications (a coordination direction).

(2) A coordination direction—

(a) may be given to rail transport operators carrying out, or proposing to carry out, railway operations in different jurisdictions; and

(b) may require each rail transport operator subject to the direction to provide to each other rail transport operator subject to the direction information concerning any circumstances in relation to the carrying out of railway operations by the first mentioned operator that could constitute a risk to safety in relation to the carrying out of railway operations by another operator subject to the direction.

(3) A rail transport operator to whom a coordination direction has been given under this section must comply with the direction.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

(4) A rail transport operator who has coordinated the preparation of an application with other rail transport operators in accordance with a coordination direction under this section must include in the application reference to—

(a) information given by the operator to each other operator subject to the direction; and

(b) information given to the operator by each other operator subject to the direction.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

67 Determination of application

67 Determination of application

(1) Subject to this section, the Regulator must, within the relevant period—

(a) if the Regulator is satisfied as to the matters referred to in section 65 and (if applicable) section 66—notify the applicant that accreditation has been granted, with or without conditions or restrictions; or

(b) if the Regulator is not so satisfied—notify the applicant that the application has been refused.

(2) Accreditation under this Law is subject to—

(a) any conditions or restrictions prescribed by the national regulations for the purposes of this section that are applicable to the accreditation; and

(b) any other condition or restriction imposed on the accreditation by the Regulator.

(3) Before imposing a condition or restriction on the accreditation of an applicant, the Regulator must, if the imposition of the intended condition or restriction is likely to result in significant costs or expenses to the applicant or any other person—

(a) conduct or cause to be conducted a cost-benefit analysis of the effect of imposing the intended condition or restriction on the accreditation; and

(b) consult with the Premier or Chief Minister, the Treasurer, and any other Minister, of a participating jurisdiction whose area of responsibility is likely to be affected by the imposition of the intended condition or restriction on the accreditation.

(4) Notification under this section—

(a) must be in writing and given to the applicant; and

(b) if accreditation has been granted, must specify—

(i) the prescribed details of the applicant; and

(ii) the scope and nature of the railway operations, and the manner in which they are to be carried out, in respect of which the accreditation is granted; and

(iii) any condition or restriction imposed by the Regulator under this section on the grant of accreditation; and

(iv) any other prescribed information; and

(c) if a condition or restriction has been imposed on the accreditation, must include—

(i) the reasons for imposing the condition or restriction, including (if applicable) the results of any cost-benefit analysis carried out under this section; and

(ii) information about the right of review under Part 7; and

(d) if the application has been refused, must include—

(i) the reasons for the decision to refuse to grant the application; and

(ii) information about the right of review under Part 7; and

(e) if the relevant period in relation to the application has been extended, must include information about the right of review under Part 7.

(5) In this section—

relevant period, in relation to an application, means—

(a) 6 months after the application was received by the Regulator; or

(b) if the Regulator requested further information, 6 months, or such other period, as is agreed between the Regulator and the applicant, after the Regulator receives the last information so requested; or

(c) if the Regulator, by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,

whichever is the longer.

pt.3-div.4-sdiv.3 Variation of accreditation

Subdivision 3 Variation of accreditation

68 Application for variation of accreditation

68 Application for variation of accreditation

(1) An accredited person may, at any time, apply to the Regulator for variation of the accreditation.

(2) An accredited person must apply to the Regulator for variation of the accreditation if—

(a) the applicant proposes to vary the scope and nature of the railway operations in respect of which the applicant is accredited; or

(b) the applicant no longer has the competence or capacity to manage risks to safety associated with the railway operations in respect of which the applicant is accredited; or

(c) any other variation is proposed in respect of the railway operations in respect of which the applicant is accredited that should be reflected in the accreditation.

(3) An application for variation must be made in the manner and form approved by the Regulator and—

(a) must specify the details of the variation being sought; and

(b) must contain the prescribed information; and

(c) (Repealed)

(4) The Regulator may require an accredited person who has applied for a variation—

(a) to supply further information requested by the Regulator; and

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

(5) Section 66 applies to an application for variation as if a reference in that section to accreditation were a reference to variation of accreditation.

s 68: Am 2023 No 14, sec 6.

69 Determination of application for variation

69 Determination of application for variation

(1) Subject to this section, the Regulator must, within the relevant period—

(a) if the Regulator is satisfied as to the matters referred to in sections 65 and 66 (so far as they are applicable to the proposed variation)—notify the applicant that the accreditation has been varied, with or without conditions or restrictions; or

(b) if the Regulator is not so satisfied—notify the applicant that the application has been refused.

(2) Notification under this section—

(a) must be in writing and given to the applicant; and

(b) if the accreditation has been varied, must specify—

(i) the prescribed details of the applicant; and

(ii) the variation to the accreditation so far as it applies to the scope and nature of the railway operations, or the manner in which they are to be carried out; and

(iii) any conditions and restrictions imposed by the Regulator on the accreditation as varied; and

(iv) any other prescribed information; and

(c) if a condition or restriction has been imposed on the accreditation as varied, must include—

(i) the reasons for imposing the condition or restriction; and

(ii) information about the right of review under Part 7; and

(d) if the application to vary an accreditation has been refused, must include—

(i) the reasons for the decision to refuse to grant the application; and

(ii) information about the right of review under Part 7; and

(e) if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7.

(3) In this section—

relevant period, in relation to an application, means—

(a) 6 months after the application was received by the Regulator; or

(b) if the Regulator requested further information, 6 months, or such other period, as is agreed between the Regulator and the applicant, after the Regulator receives the last information so requested; or

(c) if the Regulator, by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,

whichever is the longer.

70 Prescribed conditions and restrictions

70 Prescribed conditions and restrictions

The accreditation of a person that is varied under this Part is subject to any conditions or restrictions prescribed by the national regulations that are applicable to the accreditation as varied.

71 Variation of conditions and restrictions

71 Variation of conditions and restrictions

(1) An accredited person may, at any time, apply to the Regulator for a variation of a condition or restriction imposed by the Regulator to which the accreditation is subject.

(2) An application for variation of a condition or restriction must be made as if it were an application for variation of accreditation (and section 68 applies accordingly).

(3) The Regulator must consider the application and, if satisfied as to the matters referred to in sections 65 and 66 (so far as they are applicable to the proposed variation), notify the accredited person in accordance with the provisions of this Division applicable to a grant of accreditation (so far as is practicable) that the variation has been granted or refused.

(4) Notification under subsection (3) that a variation has been refused must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 7.

72 Regulator may make changes to conditions or restrictions

72 Regulator may make changes to conditions or restrictions

(1) The Regulator may, subject to this section, at any time, vary or cancel a condition or restriction imposed by the Regulator to which the accreditation of an accredited person is subject or impose a new condition or restriction.

(2) Before taking action under this section, the Regulator must—

(a) give the accredited person written notice of the action that the Regulator proposes to take; and

(b) allow the accredited person to make written representations about the intended action within 28 days (or any other period that the Regulator and the accredited person agree on); and

(c) consider any representations made under paragraph (b) and not withdrawn; and

(d) if the intended action is likely to result in significant costs or expenses to the accredited person or any other person—

(i) conduct or cause to be conducted a cost-benefit analysis of the effect of the intended action; and

(ii) consult with the Premier or Chief Minister, the Treasurer, and any other Minister, of a participating jurisdiction whose area of responsibility is likely to be affected by the intended action.

(3) Subsection (2)(d) does not apply if the Regulator considers it necessary to take immediate action in the interests of safety but, if the action is likely to result in significant costs or expenses to the accredited person or any other person, the Regulator must, as soon as practicable after taking the action—

(a) conduct or cause to be conducted a cost-benefit analysis of the effect of the action; and

(b) consult with the Premier or Chief Minister, the Treasurer, and any other Minister, of a participating jurisdiction whose area of responsibility is likely to be affected by the action.

(4) The Regulator must, by written notice given to the accredited person, provide—

(a) details of any action taken under this section; and

(b) a statement of reasons for any action taken under this section, including (if applicable) the results of any cost-benefit analysis carried out; and

(c) information about the right of review under Part 7.

s 72: Am 2015 No 5, sec 7.

pt.3-div.4-sdiv.4 Cancellation, suspension or surrender of accreditation

Subdivision 4 Cancellation, suspension or surrender of accreditation

pt 3, div 4, sdiv 4, hdg: Am 2015 No 5, sec 8.

73 Cancellation or suspension of accreditation

73 Cancellation or suspension of accreditation

(1) This section applies in respect of an accredited person if—

(a) the Regulator considers that the accredited person—

(i) is no longer able to demonstrate to the satisfaction of the Regulator the matters referred to in section 65 or to satisfy the conditions, or to comply with the restrictions, 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 Law.

(2) The Regulator may—

(a) suspend the accreditation, or part of the accreditation, of the accredited person for a period determined by the Regulator; or

(b) cancel the accreditation of the accredited person, wholly or in part, or in respect of particular railway operations specified in the notice, with immediate effect or with effect from a specified future date; or

(c) impose conditions or restrictions on the accreditation; or

(d) vary conditions or restrictions to which the accreditation is subject,

and, if the Regulator cancels the accreditation, the Regulator may declare that the accredited person is disqualified from applying for accreditation, or for accreditation in respect of specified railway operations, during a specified period.

(3) Before making a decision under subsection (2), the Regulator—

(a) must notify the person in writing—

(i) that the Regulator is considering making a decision under subsection (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 written representations to the 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 Regulator suspends or cancels the accreditation of the accredited person, wholly or in part, or in respect of specified railway operations, the Regulator must include in the notice of suspension or cancellation the reasons for the suspension or cancellation and information about the right of review under Part 7.

(5) The Regulator may withdraw a suspension of the accreditation of a person by written notice given to the person.

s 73: Am 2015 No 5, sec 9.

74 Immediate suspension of accreditation

74 Immediate suspension of accreditation

(1) If the Regulator considers that there is, or would be, an immediate and serious risk to safety unless an accreditation is suspended immediately, the Regulator may, without complying with section 73(3) or (4), by written notice given to the accredited person, immediately suspend the accreditation of the person—

(a) wholly or in part, or in respect of particular railway operations specified in the notice; and

(b) for a specified period, not exceeding 6 weeks.

(2) The Regulator may, by written notice given to a person whose accreditation is suspended, wholly or in part, or in respect of particular railway operations—

(a) reduce the period of suspension specified in a notice under subsection (1); or

(b) extend the period of suspension specified in a notice under subsection (1) but not so that the suspension continues for more than 6 weeks after the date of the notice under that subsection.

(3) The Regulator may withdraw a suspension of the accreditation of a person by written notice given to the person.

(4) Before making a decision under subsection (2)(b) to extend a period of suspension, the Regulator—

(a) must notify the person in writing—

(i) that the Regulator is considering extending the period of suspension for the reasons specified in the notice; and

(ii) that the person may, within 7 days or such longer period as is specified in the notification, make written representations to the Regulator showing cause why the suspension should not be extended; and

(b) must consider any representations made under paragraph (a)(ii) and not withdrawn.

(5) If the Regulator extends the suspension of the person, the Regulator must notify the person in writing that the suspension is being extended and include in the notice the reasons for the extension and information about the right of review under Part 7.

75 Surrender of accreditation

75 Surrender of accreditation

(1) Accreditation may only be surrendered in accordance with this section.

(2) If an accredited person intends to surrender accreditation, the accredited person must—

(a) give the Regulator written notice of the intention to surrender the accreditation; and

(b) provide the Regulator with details as to the arrangements proposed in relation to the cessation of the person’s railway operations.

(3) If the Regulator is satisfied as to the arrangements proposed in relation to the cessation of the accredited person’s railway operations, the Regulator must, as soon as reasonably practicable, by written notice given to the person, inform the person that the person’s accreditation may be surrendered in accordance with the proposed arrangements on the date specified in the notice.

(4) If the Regulator is not satisfied as to the arrangements proposed in relation to the cessation of the accredited person’s railway operations, the Regulator must, as soon as reasonably practicable, by written notice given to the person, inform the person—

(a) that the Regulator is not satisfied as to the proposed arrangements; and

(b) of the reasons for the Regulator’s dissatisfaction; and

(c) that the person’s accreditation may not be surrendered until the Regulator is satisfied as to the proposed arrangements.

pt.3-div.4-sdiv.5 Miscellaneous

Subdivision 5 Miscellaneous

76 Annual fees

76 Annual fees

(1) An accredited person must pay the annual fee prescribed by the national regulations.

(1a) Subsection (1) does not apply to or in respect of—

(a) an accredited person determined by the Regulator to be a tourist and heritage railway operator, as recorded in the Register; or

(b) an accredited person, or an accredited person of a class, prescribed by the national regulations.

(2) The annual fee must be paid by an accredited person at the time accreditation is granted and thereafter on an annual basis on or before the prescribed date.

(3) However, the Regulator may accept payment of an annual fee in accordance with an agreement (that provides, for example, for the payment of fees by instalments) made with the person who is liable to pay the fee.

(3a) The Regulator may, by written notice given to an accredited person, suspend the accreditation of the person for failure to pay the annual fee on or before the prescribed date, or in accordance with an agreement under subsection (3), until the fee is paid.

(3b) Before making a decision under subsection (3a), the Regulator must notify the person in writing that the Regulator is considering suspending the person’s accreditation for non-payment of the annual fee or for an instalment of the fee (as the case may be) if the person does not, within the period specified in the notice—

(a) where the person has been paying the whole of the annual fee in 1 instalment—

(i) pay the fee; or

(ii) negotiate an agreement with the Regulator in relation to payment of the fee and make a payment accordingly; or

(b) where the person has been paying the annual fee in accordance with an agreement under subsection (3)—

(i) make a payment in accordance with the agreement; or

(ii) re-negotiate the agreement relating to payment of the annual fee with the Regulator and make a payment accordingly.

(3c) The Regulator may withdraw a suspension of the accreditation of a person by written notice given to the person.

(4) The national regulations may—

(a) fix different fees for different kinds of accreditations; and

(b) fix various methods for the calculation of various fees; and

(c) fix fees which may be differential, varying according to any factor determined by the Regulator; and

(d) impose additional fees for the late payment of fees under this section; and

(e) make provision for the decision of the Regulator to charge a particular fee according to a factor determined by the Regulator to be a reviewable decision under Part 7.

s 76: Am 2015 No 5, sec 10; 2017 No 14, sec 6; 2023 No 14, sec 7.

76A Increase in fee amounts

76A Increase in fee amounts

(1) Without limiting section 76(4), the national regulations may provide that the amount of any fee payable under this Division may be increased from the amount that applied in relation to the period immediately prior to the period in respect of which the fee is payable in accordance with a method prescribed by the national regulations for the purposes of this section.

(2) A method prescribed by the national regulations for the purposes of subsection (1)—

(a) may operate to increase a fee whose amount has already been increased by a previous application or applications of that method; and

(b) may operate such that it results in no increase occurring in relation to a particular period in respect of which the fee is payable.

(3) As soon as practicable, but before 1 July of each year, the Regulator must publish the amounts of each fee that apply following the application of the prescribed method as from that date—

(a) by notice in the South Australian Government Gazette; and

(b) on the ONRSR’s website; and

(c) if the Regulator considers it appropriate—in such other manner as determined by the Regulator.

s 76A: Ins 2023 No 14, sec 8.

77 Waiver of fees

77 Waiver of fees

The Regulator may waive, or refund, the whole or part of any fee payable under this Division.

78 Penalty for breach of condition or restriction

78 Penalty for breach of condition or restriction

An accredited person must not contravene a condition or restriction of accreditation applying under this Part.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

79 Accreditation cannot be transferred or assigned

79 Accreditation cannot be transferred or assigned

(1) An accreditation—

(a) is personal to the person who holds it; and

(b) is not capable of being transferred or assigned to any other person or otherwise dealt with by the person who holds it; and

(c) does not vest by operation of law in any other person.

(2) A purported transfer or assignment of an accreditation or any other purported dealing with an accreditation by the person who holds it is of no effect.

(3) This section has effect despite anything in this Law, an Act or a rule of law to the contrary.

80 Sale or transfer of railway operations by accredited person

80 Sale or transfer of railway operations by accredited person

(1) If an accredited person proposes to sell or otherwise transfer any railway operations for which the person is accredited, the Regulator may, on an application for accreditation being made by the proposed transferee, waive compliance by the proposed transferee with any 1 or more of the requirements of this Part.

(2) However, the Regulator must not waive compliance with any such requirements unless the proposed transferee demonstrates, to the satisfaction of the Regulator, that the proposed transferee has the competence and capacity to comply with the relevant requirements of this Part that apply to applicants for accreditation of the appropriate kind.

(3) A waiver of compliance with requirements may be given subject to such conditions and restrictions (if any) as appear to the Regulator to be necessary.

81 Keeping and making available records for public inspection

81 Keeping and making available records for public inspection

(1) A person must ensure that—

(a) if the person is an accredited person or has an exemption under this Law—the current notice of accreditation or exemption; and

(b) any other document prescribed by the national regulations for the purposes of this section,

are available for inspection—

(c) if the person is a body corporate—at the person’s registered office during ordinary business hours;

(d) if the person is not a body corporate—at the person’s principal place of business during ordinary business hours (or, if the Regulator approves another place and time, at that place and time).

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

(2) A person who is required under subsection (1) to make available documents for inspection must maintain a register of those documents for inspection.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

pt.3-div.5-sdiv.1 Exemptions relating to certain private sidings

Subdivision 1 Exemptions relating to certain private sidings

82 Exemption from accreditation in respect of certain private sidings

82 Exemption from accreditation in respect of certain private sidings

(1) A rail infrastructure manager of a private siding is not required to be accredited under this Part in respect of railway operations (other than those involving the operation of rolling stock) carried out in the private siding.

(2) Subject to section 83(2), a rail infrastructure manager of a private siding is not required to comply with Division 6, Division 7 or Division 8 of this Part in relation to the private siding in respect of railway operations (other than those involving the operation of rolling stock) carried out in the private siding.

83 Requirement for managers of certain private sidings to be registered

83 Requirement for managers of certain private sidings to be registered

(1) A rail infrastructure manager of a private siding that is to be (or continue to be) connected with, or to have access to, a railway of an accredited person or another private siding, must be registered in respect of the private siding in accordance with this Division.

Maximum penalty—

(a) in the case of an individual—$20 000;

(b) in the case of a body corporate—$100 000.

(2) A rail infrastructure manager of a private siding that is to be (or continue to be) connected with, or to have access to, a railway of an accredited person or another private siding must—

(a) comply with the requirements of Division 6 Subdivision 2 of this Part insofar as they are relevant to the railway operations carried out in the private siding; and

(b) seek to enter into an interface agreement with the accredited person or rail infrastructure manager of the other private siding (as the case may be).

Maximum penalty—

(a) in the case of an individual—$20 000;

(b) in the case of a body corporate—$100 000.

pt.3-div.5-sdiv.2 Procedures for granting registration

Subdivision 2 Procedures for granting registration

84 Application for registration

84 Application for registration

(1) A rail infrastructure manager of a private siding to which section 83 applies may apply to the Regulator for registration in respect of the private siding.

(2) An application must be made in the manner and form approved by the Regulator and—

(a) must contain—

(i) details about the scale and complexity of the private siding; and

(ii) details about the extent of the railway track layout and other rail infrastructure of the private siding; and

(iii) details about the railway operations to be carried out in the private siding; and

(iv) if the private siding is to be (or continue to be) connected with, or to have access to—

(A) a railway of an accredited person—the prescribed details about the railway and the accredited person; or

(B) another private siding—the prescribed details about that siding and the rail infrastructure manager of that siding; and

(v) any other prescribed information; and

(b) must be accompanied by the prescribed application fee.

(3) The Regulator may require an applicant for registration—

(a) to supply further information requested by the Regulator; and

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

85 What applicant must demonstrate

85 What applicant must demonstrate

The Regulator must not grant registration to an applicant unless satisfied that the applicant has demonstrated—

(a) that the applicant is, or is to be, the rail infrastructure manager of the private siding; and

(b) that the railway operations to be carried out (or continue to be carried out) in the private siding are such that registration of the applicant (rather than accreditation of the applicant in respect of the railway operations) is, in the opinion of the Regulator, the appropriate action; and

(c) that the applicant has complied with the requirements prescribed by the national regulations (if any) for the purposes of this section.

86 Determination of application

86 Determination of application

(1) Subject to this section, the Regulator must, within the relevant period—

(a) if the Regulator is satisfied as to the matters referred to in section 85—notify the applicant that registration has been granted, with or without conditions or restrictions; or

(b) if the Regulator is not so satisfied—notify the applicant that the application has been refused.

(2) Registration under this Law is subject to—

(a) any conditions or restrictions prescribed by the national regulations for the purposes of this section; and

(b) any other condition or restriction imposed on the registration by the Regulator.

(3) Notification under this section—

(a) must be in writing and given to the applicant; and

(b) if registration has been granted, must specify—

(i) the prescribed details of the applicant; and

(ii) the prescribed details of the private siding; and

(iii) any conditions and restrictions imposed by the Regulator on the registration; and

(iv) any other prescribed information; and

(c) if a condition or restriction has been imposed on the registration, must include—

(i) the reasons for imposing the condition or restriction; and

(ii) information about the right of review under Part 7; and

(d) if the application has been refused, must include—

(i) the reasons for the decision to refuse to grant the application; and

(ii) information about the right of review under Part 7; and

(e) if the relevant period in relation to the application has been extended, must include information about the right of review under Part 7.

(4) In this section—

relevant period, in relation to an application, means—

(a) 6 months after the application was received by the Regulator; or

(b) if the Regulator requested further information, 6 months, or such other period, as is agreed between the Regulator and the applicant, after the Regulator receives the last information so requested; or

(c) if the Regulator, by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,

whichever is the longer.

pt.3-div.5-sdiv.3 Variation of registration

Subdivision 3 Variation of registration

87 Application for variation of registration

87 Application for variation of registration

(1) A registered person may, at any time, apply to the Regulator for a variation of the registration.

(2) A registered person must apply to the Regulator for a variation of the registration if—

(a) the applicant proposes to vary the scale and complexity of the private siding in respect of which the applicant is registered; or

(b) the applicant proposes to vary the railway operations to be carried out in the private siding in respect of which the applicant is registered; or

(c) any other variation is proposed in relation to the private siding in respect of which the applicant is registered that should be reflected in the registration.

(3) An application for variation must be made in the manner and form approved by the Regulator and—

(a) must specify the details of the variation being sought; and

(b) must contain the prescribed information; and

(c) (Repealed)

(4) The Regulator may require a registered person who has applied for a variation under this section—

(a) to supply further information requested by the Regulator; and

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

s 87: Am 2023 No 14, sec 9.

88 Determination of application for variation

88 Determination of application for variation

(1) Subject to this section, the Regulator must, within the relevant period—

(a) if the Regulator is satisfied as to the matters referred to in section 85 (so far as they are applicable to the proposed variation), notify the applicant that registration has been varied, with or without conditions or restrictions; or

(b) if the Regulator is not so satisfied—notify the applicant that the application has been refused.

(2) Notification under this section—

(a) must be in writing and given to the applicant; and

(b) if registration has been varied, must specify—

(i) the prescribed details of the applicant; and

(ii) the variation to the registration; and

(iii) any conditions and restrictions imposed by the Regulator on the registration as varied; and

(iv) any other prescribed information; and

(c) if a condition or restriction has been imposed on the registration as varied, must include—

(i) the reasons for imposing the condition or restriction; and

(ii) information about the right of review under Part 7; and

(d) if the application has been refused, must include—

(i) the reasons for the decision to refuse to grant the application; and

(ii) information about the right of review under Part 7; and

(e) if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7.

(3) In this section—

relevant period, in relation to an application, means—

(a) 6 months after the application was received by the Regulator; or

(b) if the Regulator requested further information, 6 months, or such other period, as is agreed between the Regulator and the applicant, after the Regulator receives the last information so requested; or

(c) if the Regulator, by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period,

whichever is the longer.

89 Prescribed conditions and restrictions

89 Prescribed conditions and restrictions

The registration of a person that is varied under this Division is subject to any conditions or restrictions prescribed by the national regulations that are applicable to the registration as varied.

90 Variation of conditions and restrictions

90 Variation of conditions and restrictions

(1) A registered person may, at any time, apply to the Regulator for a variation of a condition or restriction imposed by the Regulator to which the registration is subject.

(2) An application for variation of a condition or restriction must be made as if it were an application for variation of registration (and section 87 applies accordingly).

(3) The Regulator must consider the application and, if satisfied as to the matters referred to in section 86 (so far as they are applicable to the proposed variation), notify the registered person in accordance with the provisions of this Division applicable to a grant of registration (so far as is practicable), that the variation has been granted or refused.

(4) Notification under subsection (3) that a variation has been refused must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 7.

91 Regulator may make changes to conditions or restrictions

91 Regulator may make changes to conditions or restrictions

(1) The Regulator may, subject to this section, at any time, vary or cancel a condition or restriction imposed by the Regulator to which the registration of a registered person is subject or impose a new condition or restriction.

(2) Before taking action under this section, the Regulator must—

(a) give the registered person written notice of the action that the Regulator proposes to take; and

(b) allow the registered person to make written representations about the intended action within 28 days (or any other period that the Regulator and the registered person agree on); and

(c) consider any representations made under paragraph (b) and not withdrawn.

(3) Subsection (2) does not apply if the Regulator considers it necessary to take immediate action in the interests of safety.

(4) The Regulator must, by written notice given to the registered person, provide—

(a) details of any action taken under subsection (1); and

(b) a statement of reasons for any action taken under subsection (1); and

(c) information about the right of review under Part 7.

s 91: Am 2015 No 5, sec 11.

pt.3-div.5-sdiv.4 Cancellation, suspension or surrender of registration

Subdivision 4 Cancellation, suspension or surrender of registration

pt 3, div 5, sdiv 4, hdg: Am 2015 No 5, sec 12.

92 Cancellation or suspension of registration

92 Cancellation or suspension of registration

(1) This section applies in respect of a registered person if—

(a) the Regulator considers that the registered person—

(i) is no longer able to demonstrate to the satisfaction of the Regulator the matters referred to in section 85 or to satisfy the conditions, or to comply with the restrictions, of the registration; or

(ii) is not controlling or managing the private siding and has not done so for at least the preceding 12 months; or

(b) the registered person contravenes this Law.

(2) The Regulator may—

(a) suspend the registration of the registered person for a period determined by the Regulator; or

(b) cancel the registration of the registered person with immediate effect or with effect from a specified future date; or

(c) impose conditions or restrictions on the registration; or

(d) vary conditions or restrictions to which the registration is subject.

(3) Before making a decision under subsection (2), the Regulator—

(a) must notify the person in writing—

(i) that the Regulator is considering making a decision under subsection (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 written representations to the 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 Regulator suspends or cancels the registration of the registered person, the Regulator must include in the notice of suspension or cancellation the reasons for the suspension or cancellation and information about the right of review under Part 7.

(5) The Regulator may withdraw a suspension of the registration of a person by written notice given to the person.

s 92: Am 2015 No 5, sec 13.

93 Immediate suspension of registration

93 Immediate suspension of registration

(1) If the Regulator considers that there is, or would be, an immediate and serious risk to safety unless a registration is suspended immediately, the Regulator may, without complying with section 92(3) or (4), by written notice given to the registered person, immediately suspend the registration of the person for a specified period, not exceeding 6 weeks.

(2) The Regulator may, by written notice given to a person whose registration is suspended—

(a) reduce the period of suspension specified in a notice under subsection (1); or

(b) extend the period of suspension specified in a notice under subsection (1) but not so that the suspension continues for more than 6 weeks after the date of the notice under that subsection.

(3) The Regulator may withdraw a suspension of the registration of a person by written notice given to the person.

(4) Before making a decision under subsection (2)(b) to extend a period of suspension, the Regulator—

(a) must notify the person in writing—

(i) that the Regulator is considering extending the period of suspension for the reasons specified in the notification; and

(ii) that the person may, within 7 days or such longer period as is specified in the notification, make written representations to the Regulator showing cause why the suspension should not be extended; and

(b) must consider any representations made under paragraph (a)(ii) and not withdrawn.

(5) If the Regulator extends the suspension of the person, the Regulator must notify the person in writing that the suspension is being extended and include in the notice the reasons for the extension and information about the right of review under Part 7.

94 Surrender of registration

94 Surrender of registration

(1) Registration may only be surrendered in accordance with this section.

(2) If a registered person intends to surrender registration in respect of a private siding, the registered person must—

(a) give the Regulator written notice of the intention to surrender the registration; and

(b) provide the Regulator with details as to the arrangements proposed in relation to the cessation of the person’s railway operations carried out in the private siding.

(3) If the Regulator is satisfied as to the proposed arrangements, the Regulator must, as soon as reasonably practicable, by written notice given to the person, inform the person that the person’s registration in respect of the relevant private siding may be surrendered in accordance with the proposed arrangements on the date specified in the notice.

(4) If the Regulator is not satisfied as to the proposed arrangements, the Regulator must, as soon as reasonably practicable, by written notice given to the person, inform the person—

(a) that the Regulator is not satisfied as to the proposed arrangements; and

(b) of the reasons for the Regulator’s dissatisfaction; and

(c) that the person’s registration in respect of the relevant private siding may not be surrendered until the Regulator is satisfied as to the proposed arrangements.

s 94: Am 2017 No 14, sec 7.

pt.3-div.5-sdiv.5 Miscellaneous

Subdivision 5 Miscellaneous

95 Annual fees

95 Annual fees

(1) A registered person must pay the annual fee prescribed by the national regulations.

(1a) Subsection (1) does not apply to or in respect of—

(a) a registered person who is also an accredited person; or

(b) a registered person determined by the Regulator to be a tourist and heritage operator, as recorded in the Register; or

(c) a registered person, or a registered person of a class, prescribed by the national regulations.

(2) The annual fee must be paid by a registered person at the time registration is granted and thereafter on an annual basis on or before the prescribed date.

(3) However, the Regulator may accept payment of an annual fee in accordance with an agreement (that provides, for example, for the payment of fees by instalments) made with the person who is liable to pay the fee.

(4) The national regulations may—

(a) fix different fees for different kinds of registration; and

(b) fix various methods for the calculation of various fees; and

(c) fix fees which may be differential, varying according to any factor determined by the Regulator; and

(d) impose additional fees for the late payment of fees under this section.

s 95: Am 2023 No 14, sec 10.

95A Increase in fee amounts

95A Increase in fee amounts

(1) Without limiting section 95(4), the national regulations may provide that the amount of any fee payable under this Division may be increased from the amount that applied in relation to the period immediately prior to the period in respect of which the fee is payable in accordance with a method prescribed by the national regulations for the purposes of this section.

(2) A method prescribed by the national regulations for the purposes of subsection (1)—

(a) may operate to increase a fee whose amount has already been increased by a previous application or applications of that method; and

(b) may operate such that it results in no increase occurring in relation to a particular period in respect of which the fee is payable.

(3) As soon as practicable, but before 1 July of each year, the Regulator must publish the amounts of each fee that apply following the application of the prescribed method as from that date—

(a) by notice in the South Australian Government Gazette; and

(b) on the ONRSR’s website; and

(c) if the Regulator considers it appropriate—in such other manner as determined by the Regulator.

s 95A: Ins 2023 No 14, sec 11.

96 Waiver of fees

96 Waiver of fees

The Regulator may waive, or refund, the whole or part of any fee payable under this Division.

96A Annual activity statements

96A Annual activity statements

(1) A rail infrastructure manager must give the Regulator an annual activity statement about the manager’s railway operations carried out in a private siding to which section 83 applies for each reporting period that—

(a) is in a form approved by the Regulator; and

(b) complies with the requirements (if any) prescribed by the national regulations for the purposes of this section; and

(c) contains—

(i) a description of the railway operations carried out in the private siding; and

(ii) details of any changes to the railway operations, rolling stock or rail infrastructure; and

(iii) a description of risk management processes applicable to the private siding.

(2) A rail infrastructure manager must submit a statement in accordance with this section within 7 days after the end of each reporting period or as otherwise agreed with the Regulator.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

(3) In this section—

reporting period means a financial year or such other period as is agreed from time to time by the Regulator and the rail infrastructure manager.

s 96A: Ins 2015 No 5, sec 14.

97 Registration cannot be transferred or assigned

97 Registration cannot be transferred or assigned

(1) Registration—

(a) is personal to the person who holds it; and

(b) is not capable of being transferred or assigned to any other person or otherwise dealt with by the person who holds it; and

(c) does not vest by operation of law in any other person.

(2) A purported transfer or assignment of a registration or any other purported dealing with a registration by the person who holds it is of no effect.

(3) This section has effect despite anything in this Law, an Act or a rule of law to the contrary.

98 Offences relating to registration

98 Offences relating to registration

(1) A registered person must not contravene a condition or restriction of the registration.

Maximum penalty—

(a) in the case of an individual—$50 000;

(b) in the case of a body corporate—$500 000.

(2) A registered person must ensure that the notice of registration, and any other document prescribed by the national regulations for the purposes of this section, is available for inspection—

(a) if the person is a body corporate—at the person’s registered office during ordinary business hours;

(b) if the person is not a body corporate—at the person’s principal place of business during ordinary business hours (or, if the Regulator approves another place and time, at that place and time).

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

(3) A person who is required under subsection (2) to make available documents for inspection must maintain a register of those documents for inspection.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

pt.3-div.6-sdiv.1 Safety management systems

Subdivision 1 Safety management systems

99 Safety management system

99 Safety management system

(1) A rail transport operator must have a safety management system for railway operations in respect of which the operator is required to be accredited that—

(a) is in a form approved by the Regulator; and

(b) provides for systems and procedures for compliance with the risk management obligations under this Law; and

(c) identifies any risks to safety in relation to railway operations in respect of which the operator is required to be accredited; and

(d) provides for the comprehensive and systematic assessment of any identified risks; and

(e) specifies the controls (including audits, expertise, resources and staff) that are to be used by the operator to manage identified risks and to monitor safety in relation to those railway operations; and

(f) includes procedures for monitoring, reviewing and revising the adequacy of those controls; and

(g) addresses and includes any other matter prescribed by the national regulations that is relevant to the railway operations for which the rail transport operator is accredited.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

(2) The safety management system for a rail transport operator must also include the following matters prepared in accordance with the requirements of this Division—

(a) measures to manage identified risks to safety for the purposes of interface agreements;

(b) a security management plan;

(c) an emergency management plan;

(d) a health and fitness management program;

(e) a drug and alcohol management program;

(f) a fatigue risk management program.

(3) Before establishing a safety management system in relation to railway operations in respect of which a rail transport operator is required to be accredited or reviewing or varying any such safety management system, the operator must, so far as is reasonably practicable—

(a) consult with—

(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator’s railway premises or with the operator’s rolling stock; and

(ii) health and safety representatives (within the meaning of the occupational health and safety legislation) representing any of the persons referred to in subparagraph (i); and

(iii) any union representing any of the persons referred to in subparagraph (i); and

(iv) any other rail transport operator with whom the first mentioned operator is required to enter into an interface agreement relating to risks to safety of railway operations carried out by or on behalf of either of them; and

(v) the public, as appropriate; and

(b) provide the persons consulted with a reasonable opportunity to make submissions on the proposed safety management system; and

(c) advise those persons in a timely manner of the outcome of the consultation process.

(4) If the safety management system of a rail transport operator and the safety management system of another rail transport operator who has an agreement referred to in subsection (3)(a)(iv) with the first mentioned operator, when taken as 1 system, comply with this Law, both safety management systems are taken to comply with this Law.

(5) A safety management system must be evidenced in writing and must identify—

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

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

100 Conduct of assessments for identified risks

100 Conduct of assessments for identified risks

(1) In conducting an assessment for the purposes of section 99(1)(d), the rail transport operator must—

(a) examine and analyse each identified risk, including—

(i) the nature of the risk; and

(ii) the likelihood of the risk occurring; and

(iii) the magnitude and severity of the consequences should a risk be realised; and

(iv) the range of control measures available and considered to eliminate or minimise the risk; and

(b) consider risks cumulatively as well as individually; and

(c) use assessment methodologies that are appropriate to the risks under consideration.

(2) The rail transport operator must keep a detailed record of all aspects of the assessment process, including—

(a) the risks considered; and

(b) the likelihood, severity of consequences and control measures considered, including reasons for selecting certain control measures and rejecting others.

101 Compliance with safety management system

101 Compliance with safety management system

(1) A rail transport operator must implement the operator’s safety management system.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

(2) A rail transport operator must not, without reasonable excuse, fail to comply with the operator’s safety management system for the operator’s railway operations.

Maximum penalty—

(a) in the case of an individual—$150 000;

(b) in the case of a body corporate—$1 500 000.

(3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse.

102 Review of safety management system

102 Review of safety management system

A rail transport operator must review the operator’s safety management system in accordance with the national regulations at such times or within such periods as are prescribed (or, if no times or periods are prescribed, at least once each year or at such other time as is agreed between the operator and the Regulator).

Maximum penalty—

(a) in the case of an individual—$10 000;

(b) in the case of a body corporate—$50 000.

103 Safety performance reports

103 Safety performance reports

(1) A rail transport operator must give the Regulator a safety performance report about the operator’s railway operations in respect of which the operator is required to be accredited for each reporting period that—

(a) is in a form approved by the Regulator; and

(b) complies with the requirements (if any) prescribed by the national regulations for the purposes of this section; and

(c) contains—

(i) a description and assessment of the safety performance of the operator’s railway operations; and

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

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

(iv) any other information or performance indicators prescribed by the national regulations for the purposes of this section.

(2) A rail transport operator must submit a report in accordance with this section within 6 months after the end of each reporting period.

Maximum penalty—

(a) in the case of an individual—$5 000;

(b) in the case of a body corporate—$25 000.

(3) In this section—

reporting period means a financial year or such other period as is agreed from time to time by the Regulator and the rail transport operator.

104 Regulator may direct amendment of safety management system

104 Regulator may direct amendment of safety management system

(1) The Regulator may, by written notice given to an accredited person, direct the person to amend the person’s safety management system in a specified manner within a specified period, being not less than 28 days after the giving of the direction.

(2) Before giving a direction to amend a safety management system under subsection (1), the Regulator must, if the intended amendment is likely to result in significant costs or expenses to the accredited person or any other person—

(a) conduct or cause to be conducted a cost-benefit analysis of the effect of the intended amendment; and

(b) consult with the Premier or Chief Minister, the Treasurer, and any other Minister, of a participating jurisdiction whose area of responsibility is likely to be affected by the intended amendment.

(3) A direction under subsection (1)—

(a) must state the reasons why the Regulator considers it necessary for the rail transport operator to amend the safety management system; and

(b) must include (if applicable) the results of any cost-benefit analysis carried out under this section; and

(c) must include information about the right of review under Part 7.

(4) An accredited person must not, without reasonable excuse, fail to comply with a direction under subsection (1).

Maximum penalty—

(a) in the case of an individual—$50 000;

(b) in the case of a body corporate—$500 000.

(5) Subsection (4) places an evidential burden on the accused to show a reasonable excuse.