Part 5—Transitional provisions
24—Interpretation
In this Part—
Rail Safety National Law or Law means the Rail Safety National Law, as amended from time to time, set out in the Schedule;
relevant day means the day on which the Rail Safety Act 2007 is repealed;
repealed Act means the Rail Safety Act 2007.
Division 3—Transitional provisions
26—Accreditation
(1) An application for accreditation, or variation of accreditation, made but not determined under the repealed Act immediately before the relevant day, will be taken to be an application for accreditation, or variation of accreditation, under the Rail Safety National Law and will, accordingly, be determined in accordance with the Law.
(2) A rail transport operator that, immediately before the relevant day, holds an accreditation under the repealed Act in respect of railway operations carried out by or on behalf of the operator will be taken, on the relevant day, to hold an accreditation in respect of those railway operations under the Rail Safety National Law subject to such conditions and restrictions as applied to the accreditation under the repealed Act.
(3) If, immediately before the relevant day, the accreditation, or part of the accreditation, of a rail transport operator has been suspended under the repealed Act, the accreditation under the Rail Safety National Law that the operator will be taken to have by virtue of subsection (2) will be subject to the same suspension as applied to the accreditation under the repealed Act.
27—Registration
(1) A rail infrastructure manager of a private siding that, immediately before the relevant day, is registered under the repealed Act will be taken, on the relevant day, to be registered under the Rail Safety National Law in respect of the private siding.
(2) A registration under subsection (1) will be subject to such conditions as applied to the registration under the repealed Act, subject to any variations, or new conditions, as the Regulator may, by notice in writing to the relevant rail infrastructure manager, determine.
(3) Notification under subsection (2)—
(a) must be in writing and given to the rail infrastructure manager; and
(b) if a condition or restriction has been imposed on the registration, must include—
(ii) information about the right of review under Part 7 of the Law.
28—Notifiable occurrences
(1) A report of a notifiable occurrence made under Part 4 Division 6 of the repealed Act immediately before the relevant day will have effect as if it were a report of a notifiable occurrence made under Part 3 Division 8 of the Rail Safety National Law.
(2) A notifiable occurrence that is being investigated under Part 4 Division 6 of the repealed Act immediately before the relevant day will continue as if it were an investigation under Part 3 Division 8 of the Rail Safety National Law.
29—Notices
(1) An improvement notice in force under Part 5 Division 7 of the repealed Act immediately before the relevant day will continue to have force and effect as if it were an improvement notice under Part 5 Division 1 of the Rail Safety National Law.
(2) A prohibition notice in force under Part 5 Division 8 of the repealed Act immediately before the relevant day will continue to have force and effect as if it were a prohibition notice under Part 5 Division 2 of the Rail Safety National Law.
30—Reviews and appeals
(1) If an application for accreditation, or variation of accreditation, has been refused under the repealed Act and the period within which the applicant could have applied for a review of the decision had that Act not been repealed has not, immediately before the relevant day, expired, the applicant may, before the expiry of that period, apply for a review of the decision under the Rail Safety National Law as if the decision had been made under the Law.
(2) A person who is to be granted accreditation as the result of a review of, or appeal against, a decision made under the repealed Act who has not, immediately before the relevant day, been accredited, will be granted accreditation under the Rail Safety National Law subject to such conditions and restrictions as would have applied to the accreditation under the repealed Act.
31—Provision of information and assistance by Rail Safety Regulator
(1) Despite any other Act or law, the Rail Safety Regulator under the repealed Act is authorised, on his or her own initiative or at the request of ONRSR—
(a) to provide ONRSR with such information (including information given in confidence) in the possession or control of the Rail Safety Regulator that is reasonably required by ONRSR for the purposes of this Act or the Rail Safety National Law; and
(b) to provide ONRSR with such other assistance as is reasonably required by ONRSR to exercise a function or power under this Act or the Rail Safety National Law.
(2) Despite any other Act or law, the Rail Safety Regulator under the repealed Act may authorise ONRSR to disclose information provided under subsection (1) even if the information was given to the Rail Safety Regulator in confidence.
(3) Nothing done, or authorised to be done, by the Rail Safety Regulator in acting under subsection (1) or (2)—
(a) constitutes a breach of, or default under, an Act or other law; or
(b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or
(c) constitutes a breach of duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or
(f) releases a surety or any other obligee wholly or in part from an obligation.
32—Regulations—saving and transitional provisions
(1) The Governor may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of this Act, including any repeals and amendments made as a result of the enactment of this Act.
(2) Regulations made under this section may—
(a) have a retrospective effect to a day on or from a date not earlier than the day on which this Act receives Royal Assent; and
(b) be of limited or general application; and
(c) leave any matter or thing to be decided by a specified person or class of person.
(3) Regulations under this section have effect despite anything to the contrary in any Act (other than this Act) or in any statutory instrument.
Schedule—Rail Safety National Law
1—Short title
This Law may be cited as the Rail Safety National Law.
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
(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
(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;
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;
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;
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
(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 any road other than a private road;
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;
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, for a participating jurisdiction, means the Minister of that jurisdiction nominated by that jurisdiction as its responsible Minister for the purposes of this Law;
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;
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;
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.
5—Interpretation generally