Div 6Miscellaneous

Division 6—Miscellaneous 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 (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 granted under Part 6 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. 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. 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 (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 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 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). Division 2—Occupational health and safety and railway operations 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. 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 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. Division 3—Rail safety duties Subdivision 1—Principles 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 (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). Subdivision 2—Duties 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 (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 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 (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. 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 (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. Subdivision 3—Offences and penalties 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 (1) A person commits a Category 1 offence if— (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. (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 A person commits a Category 2 offence if— (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. (b) in the case of a body corporate—$1 500 000. 60—Failure to comply with safety duty—Category 3 A person commits a Category 3 offence if— (b) the person fails to comply with that duty. Division 4—Accreditation Subdivision 1—Purpose and requirement for 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 (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. 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 (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. Subdivision 2—Procedures for granting 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. (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— (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 (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 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 (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. (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. 67—Determination of application (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 (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— (b) if accreditation has been granted, must specify— (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 (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 (e) if the relevant period in relation to the application has been extended, must include information about the right of review under Part 7. (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, Subdivision 3—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. (b) must contain the prescribed information. (4) The Regulator may require an accredited person who has applied for a variation— (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. 69—Determination of application for variation (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 accreditation has been varied, must specify— (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 (c) if a condition or restriction has been imposed on the accreditation as varied, must include— (d) if the application to vary an accreditation has been refused, must include— (e) if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7. (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, 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 (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 (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. (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— (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 Subdivision 4—Cancellation, suspension or surrender 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. (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. (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 (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. 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— (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 (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 (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— (c) that the person's accreditation may not be surrendered until the Regulator is satisfied as to the proposed arrangements. 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. 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. (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— 77—Waiver of fees 78—Penalty for breach of condition or restriction An accredited person must not contravene a condition or restriction of accreditation applying under this Part. 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 (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 (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). (2) A person who is required under subsection (1) to make available documents for inspection must maintain a register of those documents for inspection. Division 5—Registration of rail infrastructure managers of private sidings Subdivision 1—Exemptions relating to 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 (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. (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). Subdivision 2—Procedures for granting 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. (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— 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 (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 (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— (b) if registration has been granted, must specify— (ii) the prescribed details of the private siding; and (iii) any conditions and restrictions imposed by the Regulator on the registration; and (c) if a condition or restriction has been imposed on the registration, must include— (e) if the relevant period in relation to the application has been extended, must include information about the right of review under Part 7. (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, Subdivision 3—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. (b) must contain the prescribed information. (4) The Regulator may require a registered person who has applied for a variation under this section— 88—Determination of application for variation (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 registration has been varied, must specify— (ii) the variation to the registration; and (iii) any conditions and restrictions imposed by the Regulator on the registration as varied; and (c) if a condition or restriction has been imposed on the registration as varied, must include— (e) if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7. (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, 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 (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 (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. (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 Subdivision 4—Cancellation, suspension or surrender 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. (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. (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 (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. 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— (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 (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 (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— (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. 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. 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. (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— 96—Waiver of fees 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— (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. 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. 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 (1) A registered person must not contravene a condition or restriction of the registration. (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). (3) A person who is required under subsection (2) to make available documents for inspection must maintain a register of those documents for inspection. Division 6—Safety management Subdivision 1—Safety management systems 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— (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. (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 (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 (1) A rail transport operator must implement the operator's safety management system. (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. (3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse. 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). 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— (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. 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 (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). Subdivision 2—Interface agreements 105—Requirements for and scope of interface agreements (1) An interface agreement must include provisions for— (a) implementing and maintaining measures to manage risks identified under section 99(1)(c) associated with the interface; and (b) the evaluation, testing and (where appropriate) revision of measures in relation to identified risks and incidents considered; and (c) the respective roles and responsibilities of each party to the agreement in relation to those measures; and (d) procedures by which the parties to the agreement will exchange information about, and monitor compliance with, their obligations under the agreement; and (e) a process for keeping the agreement under review and its revision. (2) An interface agreement may— (a) be entered into by 2 or more rail transport operators or by 1 or more rail transport operators and 1 or more road managers; and (b) include measures to manage any number of risks to safety that may arise because of, or partly because of, any railway operations; and (c) include measures to manage any number of risks to safety that may arise from any railway operations because of, or partly because of, the existence or use of any road infrastructure; and (d) make provision for or in relation to any matter by applying, adopting or incorporating any matter contained in any document; and (e) consist of 2 or more documents. 106—Interface coordination—rail transport operators A rail transport operator must— (a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out by or on behalf of the operator because of, or partly because of, railway operations carried out by or on behalf of any other rail transport operator; and (c) for the purpose of managing those risks—seek to enter into an interface agreement with the other rail transport operator or rail transport operators. 107—Interface coordination—rail infrastructure and public roads (1) A rail infrastructure manager must— (a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out on or in relation to the manager's rail infrastructure because of, or partly because of— (i) the existence of road infrastructure of a prescribed public road; or (ii) the existence or use of any rail or road crossing that is part of the road infrastructure of a public road; and (c) for the purpose of managing those risks—seek to enter into an interface agreement with the road manager of that road. (2) The road manager of a public road must— (a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from the existence or use of any rail or road crossing that is part of the road infrastructure of the road because of, or partly because of— (i) the existence of road infrastructure of a prescribed public road; or (ii) the existence or use of any rail or road crossing that is part of the road infrastructure of a public road; and (c) for the purpose of managing those risks—seek to enter into an interface agreement with the rail infrastructure manager of the rail infrastructure. (3) Nothing in this section authorises or requires a road manager to act inconsistently with, or without regard to, the functions, obligations or powers conferred on it by or under an Act or law. 108—Interface coordination—rail infrastructure and private roads (1) A rail infrastructure manager must— (a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from railway operations carried out on or in relation to the manager's rail infrastructure because of, or partly because of, the existence or use of any rail or road crossing that is part of the road infrastructure of a private road; and (b) consider the extent to which those risks are managed by any prescribed protocols; and (c) consider whether it is necessary to manage those risks in conjunction with the road manager of that road and— (i) if the rail infrastructure manager is of the opinion that it is necessary that those risks be managed in conjunction with the road manager—give written notice of that opinion to the road manager and determine measures to manage, so far as is reasonably practicable, those risks; or (ii) if the rail infrastructure manager is of the opinion that the management of those risks does not need to be carried out in conjunction with the road manager—keep a written record of that opinion; and (d) unless paragraph (c)(ii) applies—for the purpose of managing those risks, seek to enter into an interface agreement with the road manager. (2) If a rail infrastructure manager gives a road manager of a private road a written notice under subsection (1)(c)(i), the road manager must— (a) identify and assess, so far as is reasonably practicable, risks to safety that may arise from the existence or use of any rail or road crossing that is part of the road infrastructure of the road because of, or partly because of, railway operations; and (c) for the purpose of managing those risks—seek to enter into an interface agreement with the rail infrastructure manager. 109—Identification and assessment of risks A rail transport operator, rail infrastructure manager or road manager that is required under this Subdivision to identify and assess risks to safety that may arise from operations carried out by another person may do so— (a) by itself identifying and assessing those risks; or (b) by identifying and assessing those risks jointly with the other person; or (c) by adopting the identification and assessment of those risks carried out by the other person. 110—Regulator may give directions (1) This section applies if the Regulator is satisfied that a rail transport operator, rail infrastructure manager or road manager referred to in this Subdivision— (a) is unreasonably refusing or failing to enter into an interface agreement with another person as required under this Subdivision; or (b) is unreasonably delaying the negotiation of such an agreement. (2) The Regulator may give a written notice to the rail transport operator, rail infrastructure manager or road manager (as the case requires) and the other person that— (a) warns of the Regulator's powers under this section, including the power to issue a direction under subsection (3) at any time after a specified date; and (b) includes a copy of this section; and (c) may contain suggested terms for inclusion in an interface agreement. (3) If the Regulator gives a notice under subsection (2) to a rail transport operator, rail infrastructure manager or road manager, the Regulator may, in writing, require the operator or manager to provide such information as the Regulator reasonably requires for the purposes of making a direction under this section. (4) If a notice is given under subsection (2) and an interface agreement has not been entered into by or on the date specified in the notice, the Regulator— (a) may determine the arrangements that are to apply in relation to the management of risks to safety referred to in section 106, 107 or 108 (as the case requires); and (b) may direct any of the persons to whom the notice is issued to give effect to those arrangements; and (c) must specify the time within which a direction is to be complied with. (5) A direction under subsection (4)— (a) must be in writing; and (b) must set out any arrangements determined by the Regulator under that subsection. (6) A person to whom a notice or direction is given under this section must comply with the notice or direction within the time specified in the notice or direction. 111—Register of interface agreements (1) A rail transport operator must maintain a register of— (a) interface agreements to which it is a party; and (b) arrangements determined by the Regulator under section 110, that are applicable to the operator's railway operations. (2) A road manager must maintain a register of— (a) interface agreements to which it is a party; and (b) arrangements determined by the Regulator under section 110, that are applicable to any road in relation to which it is the road manager. Subdivision 3—Other safety plans and programs 112—Security management plan (1) A rail transport operator must have a security management plan for railway operations in respect of which the operator is required to be accredited that— (a) incorporates measures to protect people from theft, assault, sabotage, terrorism and other criminal acts of other parties and from other harm; and (b) complies with this Law and any requirements prescribed by the national regulations. (2) The rail transport operator must ensure— (a) that the security management plan is implemented; and (b) that appropriate response measures of the security management plan are implemented without delay if an incident of a kind referred to in subsection (1)(a) occurs. 113—Emergency management plan (1) A rail transport operator must have an emergency management plan that complies with subsection (2) for railway operations in respect of which the operator is required to be accredited. (2) The emergency management plan must— (a) address and include the matters that are prescribed; and (b) be prepared— (i) so far as is reasonably practicable—in conjunction with any of the emergency services that would be expected to attend in the event of a significant incident involving the operator's railway operations and any other person who is prescribed; and (ii) in accordance with the national regulations; and (c) be kept and maintained in accordance with the national regulations; and (d) be provided to the relevant emergency services and any other person who is prescribed; and (e) be tested in accordance with the national regulations. (3) A rail transport operator must ensure that the appropriate response measures of the emergency management plan are implemented if an emergency occurs. 114—Health and fitness management program A rail transport operator must prepare and implement a health and fitness program for rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to health and fitness programs. 115—Drug and alcohol management program A rail transport operator must prepare and implement a drug and alcohol management program for rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to drug and alcohol management programs. 116—Fatigue risk management program A rail transport operator must prepare and implement a program, in accordance with the prescribed requirements, for the management of fatigue of rail safety workers who carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited that complies with the prescribed requirements relating to fatigue risk management programs. Subdivision 4—Provisions relating to rail safety workers 117—Assessment of competence (1) A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to railway operations in respect of which the operator is required to be accredited has the competence to carry out that work. (2) For the purposes of subsection (1), the competence of a rail safety worker to carry out rail safety work— (a) must be assessed— (i) in accordance with any qualification and units of competence recognised under the AQF applicable to that rail safety work; or (ii) if subparagraph (i) does not apply—in accordance with any qualifications or competencies prescribed by the national regulations; and (b) must be assessed by reference to the knowledge and skills of the worker that would enable the worker to carry out the rail safety work safely. (3) A certificate purporting to have been issued under the AQF to a rail safety worker certifying that the worker has certain qualifications or units of competence is evidence that the worker has those qualifications or units of competence. (4) Subsection (2) does not apply if— (a) it is not reasonably practicable for a rail transport operator to assess the competence of a rail safety worker to carry out rail safety work in relation to the operator's rail infrastructure or rolling stock in accordance with that subsection; and (b) the operator satisfies the Regulator that— (i) the worker has otherwise acquired the necessary qualifications and competencies applicable to that rail safety work; and (ii) the worker has the knowledge and skills that would enable the worker to carry out the rail safety work safely. (5) Nothing in this section prevents a rail transport operator from requiring a rail safety worker to undertake further training before carrying out rail safety work. (6) A rail transport operator must maintain records in accordance with the national regulations of the competence of rail safety workers who carry out rail safety work on or in relation to the operator's rail infrastructure or rolling stock. (6a) A person who provides a document or information in relation to the assessment by a rail transport operator of the competency of that person to carry out rail safety work that the person knows— (a) is false or misleading in a material particular; or (b) omits any matter or thing without which the document or information is misleading, is guilty of an offence. (7) In this section, a reference to the AQF is a reference to the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003 of the Commonwealth as in force from time to time, and includes a reference to any national policy that may be made in substitution for the Australian Qualifications Framework as in force from time to time. 118—Identification of rail safety workers (1) A rail transport operator must ensure that each rail safety worker who is to carry out rail safety work in relation to the operator's railway operations has a form of identification that is sufficient to enable the type of competence and training of the worker for that rail safety work to be checked by a rail safety officer. (2) A rail safety worker who is carrying out rail safety work must, when requested by a rail safety officer to do so, produce the identification provided in accordance with subsection (1) to the officer. Maximum penalty: $2 500.