Part 10General

Part 10—General Division 1—Delegation by Minister 243—Delegation by Minister (1) The Minister 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 Minister under this Law. (2) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. Division 2—Confidentiality of information 244—Confidentiality of information (1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Law. (2) The person must not do any of the following: (a) disclose to anyone else— (i) the information; or (ii) the contents of or information contained in the document; (b) give access to the document to anyone else; (c) use the information or document for any purpose. (3) Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document— (a) about a person, with the person's consent; or (b) that is necessary for the exercise of a function or power under this Law; or (c) that is made or given by ONRSR, a member of ONRSR, or a person authorised by ONRSR, if ONRSR reasonably believes the disclosure, access or use— (i) is necessary for administering, or monitoring or enforcing compliance with, this Law; or (ii) is necessary for the administration or enforcement of an Act prescribed by the national regulations; or (iii) is necessary for the administration or enforcement of an Act or other law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety; or (d) that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions; or (da) that is made or given in accordance with the Freedom of Information Act 1991 of South Australia as applied by this Law (including any provisions of the national regulations made under section 263); or (e) that is required or authorised under any other law; or (f) to a Minister of a participating jurisdiction. (4) A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless— (a) the disclosure is made with the consent of the complainant; or (b) the disclosure is required under a law. (5) Nothing in this section prevents information being used to enable ONRSR to accumulate aggregate data and to enable ONRSR to authorise use of the aggregate data for the purposes of research or education. Division 3—Law does not affect legal professional privilege 245—Law does not affect legal professional privilege Nothing in this Law requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege. Division 4—Civil liability 246—Civil liability not affected by Part 3 Division 3 or Division 6 Nothing in Part 3 Division 3 or Part 3 Division 6 is to be construed— (a) as conferring a right of action in civil proceedings in respect of a contravention (whether by act or omission) of any provisions of those Divisions; or (b) as conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or (c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, with respect to breaches of duties or obligations imposed by the national regulations. 247—Protection from personal liability for persons exercising functions (1) A person who is or was a protected person is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a function under this Law; or (b) in the reasonable belief that the act or omission was the exercise of a function under this Law. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to a protected person attaches instead to ONRSR. protected person means any of the following: (a) a member of ONRSR; (b) a member of a committee of ONRSR; (c) a member of the staff of ONRSR; (d) a rail safety officer; (e) an authorised person; (f) a person to whom ONRSR has delegated any of its functions; (g) a person to whom an entity, or the chief executive of an entity or department of government, of a participating jurisdiction has subdelegated a function delegated to the chief executive by ONRSR; (h) a member of the staff of an entity or department referred to in paragraph (g); (i) a person acting under the authority or direction of a person referred to in paragraphs (a) to (h). 248—Immunity for reporting unfit rail safety worker (1) No action may be taken against a person to whom this section applies who, in good faith, reports to— (a) ONRSR; or (b) a member of ONRSR; or (c) a rail transport operator; or (d) any other person who is employed or engaged by ONRSR or a rail transport operator, any information which discloses that a person is unfit to carry out rail safety work or certain types of rail safety work or that it may be dangerous to allow that person to carry out rail safety work or certain types of rail safety work. (2) No action may be taken against a person to whom this section applies who, in good faith, reports— (a) the results of a test or examination carried out under this Law or the national regulations; or (b) an opinion formed by that person as a result of conducting such a test or examination, to a person referred to in subsection (1)(a), (b), (c) or (d). person to whom this section applies means— (a) a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); or (b) a person registered under the Health Practitioner Regulation National Law to practise in the nursing profession as a nurse (other than as a student); or (c) a person registered under the Health Practitioner Regulation National Law to practise in the optometry profession (other than as a student); or (d) a person registered under the Health Practitioner Regulation National Law to practise in the physiotherapy profession (other than as a student); or (e) a person brought within the ambit of this definition by the national regulations. Division 5—Codes of practice 249—Approved codes of practice (1) The responsible Ministers may approve a code of practice for the purposes of this Law and may vary or cancel an approved code of practice. (2) The responsible Ministers may only approve, vary or cancel a code of practice under subsection (1) if that code of practice, variation or cancellation was developed by a process that involved consultation among— (a) each participating jurisdiction; and (b) rail transport operators and any relevant employer organisation; and (c) rail safety workers and any relevant union. (3) A code of practice may apply, adopt or incorporate any matter contained in a document formulated, issued or published by a person or body whether— (a) with or without modification; or (b) as in force at a particular time or from time to time. (4) An approval of a code of practice, or a variation or cancellation of an approved code of practice— (a) is to be published on the NSW legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales; and (b) will commence on the day or days specified in the approval, variation or cancellation for its commencement (being not earlier than the date it is published); and (c) is to be published by the Regulator on ONRSR's website. (5) The Regulator must ensure that a copy of— (a) each code of practice that is currently approved; and (b) each document applied, adopted or incorporated (to any extent) by an approved code of practice, is available for inspection by members of the public without charge at ONRSR's office during normal business hours. 250—Use of codes of practice in proceedings (1) This section applies in a proceeding for an offence against this Law. (2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Law has been complied with. (3) The court may— (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates; and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. See section 47 for the meaning of reasonably practicable. (4) Nothing in this section prevents a person from introducing evidence of compliance with this Law in a manner that is different from the code but provides a standard of rail work safety that is equivalent to or higher than the standard required in the code. Division 6—Enforceable voluntary undertakings 251—Enforceable voluntary undertaking (1) The Regulator may accept (by written notice) a written undertaking (a rail safety undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Law. (2) A rail safety undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence. (3) The giving of a rail safety undertaking does not constitute an admission of guilt by the person giving it in respect of the contravention or alleged contravention to which the undertaking relates. 252—Notice of decisions and reasons for decision (1) The Regulator must give the person seeking to make a rail safety undertaking written notice of the Regulator's decision to accept or reject the undertaking and of the reasons for the decision. (2) The Regulator must publish, on the Register, notice of a decision to accept a rail safety undertaking and the reasons for that decision. 253—When a rail safety undertaking is enforceable A rail safety undertaking takes effect and becomes enforceable when the Regulator's decision to accept the undertaking is given to the person who made the undertaking or at any later date specified by the Regulator. 254—Compliance with rail safety undertaking A person must not contravene a rail safety undertaking made by that person that is in effect. 255—Contravention of rail safety undertaking (1) If the Regulator considers that a person has contravened an undertaking accepted by the Regulator, the Regulator may apply to the court for enforcement of the undertaking. (2) If the court is satisfied that the person has contravened the undertaking, the court, in addition to the imposition of any penalty, may make any of the following orders: (a) an order that the person must comply with the undertaking or take specified action to comply with the undertaking; (b) an order discharging the undertaking; (c) an order directing the person to pay to the Regulator— (i) the costs of the proceedings; and (ii) the reasonable costs of the Regulator in monitoring compliance with the rail safety undertaking in the future; (d) any other order that it considers appropriate in the circumstances. (3) A person must not fail to comply with an order under this section. (4) Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Law to which the rail safety undertaking relates. 256—Withdrawal or variation of rail safety undertaking (1) A person who has made a rail safety undertaking may, at any time, with the written agreement of the Regulator— (a) withdraw the undertaking; or (b) vary the undertaking. (2) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Law. (3) The Regulator must publish, on the Register, notice of the withdrawal or variation of a rail safety undertaking. 257—Proceedings for alleged contravention (1) Subject to this section, no proceedings for a contravention or alleged contravention of this Law may be brought against a person if a rail safety undertaking is in effect in relation to that contravention. (2) No proceedings may be brought for a contravention or alleged contravention of this Law against a person who has made a rail safety undertaking in respect of that contravention and has completely discharged the rail safety undertaking. (3) The Regulator may accept a rail safety undertaking in respect of a contravention or alleged contravention before proceedings in respect of that contravention have been finalised. (4) If the Regulator accepts a rail safety undertaking before the proceedings are finalised, the Regulator must take all reasonable steps to have the proceedings discontinued as soon as possible. 258—Service of documents (1) A notice or document required or authorised by or under this Law to be given or served on a person may be served on the person— (a) by delivering it personally to the person; or (b) by sending it by post addressed to the person to the person's last known address; or (c) if the person holds an accreditation or registration, or has been granted an exemption, under this Law— (i) by sending it by post addressed to the person to that person's address for service; or (ii) be left for the person at the person's address for service with someone apparently over the age of 16 years; or (d) be transmitted by fax or email to a fax number or email address provided by the person for that purpose (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) The address for service of a person is the address last provided by the person in writing to the Regulator as the address for service. 259—Recovery of certain costs The Regulator may recover as a debt from a rail transport operator the reasonable costs of the entry and inspection of railway infrastructure, rolling stock or railway premises in respect of which the person is accredited, other than the costs of an inspection of an accredited person under Part 3 Division 11. 260—Recovery of amounts due Every fee, charge or other amount of money payable under this Law may be recovered by the Regulator as a debt due to the Regulator in a court of competent jurisdiction. 260A—Payment of portion of fines to ONRSR A court by which a person is convicted of an offence against this Law may make an order directing that a portion (not exceeding one‑half) of any fine imposed as a penalty against the offender by the court be paid to ONRSR. 261—Compliance with conditions of accreditation or registration (1) If— (a) a condition or restriction to which the accreditation of a person is subject makes provision for or with respect to a duty or obligation imposed by this Law; and (b) the accredited person complies with the condition or restriction to the extent that it makes that provision, the accredited person is, for the purposes of this Law, taken to have complied with this Law in relation to that duty or obligation. (2) If— (a) a condition or restriction to which the registration of a person is subject makes provision for or with respect to a duty or obligation imposed by this Law; and (b) the registered person complies with the condition or restriction to the extent that it makes that provision, the registered person is, for the purposes of this Law, taken to have complied with this Law in relation to that duty or obligation. 262—Contracting out prohibited A term of any contract or agreement that purports to exclude, limit or modify the operation of this Law or any duty under this Law or to transfer to another person any duty owed under this Law is void. Division 8—Application of certain South Australian Acts to this Law 263—Application of certain South Australian Acts to this Law (1) The following Acts (as in force from time to time) apply as laws of a participating jurisdiction for the purposes of this Law: (a) the Freedom of Information Act 1991 of South Australia; (b) the Ombudsman Act 1972 of South Australia; (c) the Public Finance and Audit Act 1987 of South Australia; (d) the State Records Act 1997 of South Australia. (2) However, subject to subsection (4), the Acts referred to in subsection (1) do not apply for the purposes of this Law to the extent that functions are being exercised under this Law by a State or Territory entity, other than a South Australian entity. (3) The national regulations may modify any such Act for the purposes of this Law. (4) Without limiting subsection (3), the national regulations may— (a) provide that the Act applies as if a provision of the Act specified in the national regulations were omitted; or (b) provide that the Act applies as if an amendment to the Act made by a law of South Australia, and specified in the national regulations, had not taken effect; or (c) confer a function on a State or Territory entity; or (d) confer jurisdiction on a tribunal or court of a participating jurisdiction. (5) An Act referred to in subsection (1) applies for the purposes of this Law as if the Minister responsible for a government agency were the Minister in relation to a body established by this Law. Division 9—National regulations 264—National regulations (1) For the purposes of this section, the designated authority is the Governor of the State of South Australia, or other officer for the time being administering the Government of that State, acting with the advice and consent of the Executive Council of that State. (2) The designated authority, on the unanimous recommendation of the responsible Ministers, may make regulations (national regulations) as contemplated by this Law, or as necessary or expedient for the purposes of this Law, including regulations that make provision for or in relation to any of the matters specified in Schedule 1 to this Law. (3) Where the national regulations refer to or incorporate a code, standard or other document prepared or published by a prescribed body— (a) a copy of the code, standard or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at the office or offices specified in the regulations; and (b) in legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document purporting to be certified by or on behalf of the Regulator as a true copy of the code, standard or other document; and (c) the code, standard or other document has effect as if it were a regulation made under this Law. 265—Publication of national regulations (1) The national regulations are to be published on the NSW legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales. (2) A regulation commences on the day or days specified in the regulation for its commencement (being not earlier than the date it is published).