Part 7Review of decisions

Part 7—Review of decisions 215—Reviewable decisions (1) The following table sets out— (a) decisions made under this Law that are reviewable in accordance with this Part (reviewable decisions); and (b) who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision). Item Provision under which reviewable decision is made Eligible person in relation to reviewable decision A1 Section 64 (decision of the Regulator to charge additional application (complex operations) fee) A rail transport operator who is required to pay the additional application (complex operations) fee Section 67 (refusal to accredit or imposing conditions or restrictions on accreditation) A rail transport operator whose application for accreditation is refused or is subject to conditions or restrictions Section 67 (extending the period for determining an application) A rail transport operator who has applied for accreditation Section 69 (refusal to grant variation of accreditation or imposing a condition or restriction) A rail transport operator whose application for variation of accreditation is refused Section 69 (grant of variation of accreditation subject to conditions or restrictions) A rail transport operator whose accreditation is varied subject to a condition or restriction Section 69 (extending the period for determining an application for variation) A rail transport operator who has applied for variation of accreditation Section 71 (refusal to grant variation of a condition or restriction of accreditation) A rail transport operator whose application for variation of a condition or restriction is refused Section 72 (variation or cancellation of a condition or restriction, or imposition of a new condition or restriction) A rail transport operator whose conditions or restrictions of accreditation are changed Section 73 (cancellation or suspension of accreditation) A rail transport operator whose accreditation is cancelled or suspended Section 74 (immediate suspension) A rail transport operator whose accreditation is suspended Section 74 (extension of immediate suspension) A rail transport operator whose accreditation is suspended Section 75 (surrender of accreditation) An accredited person whose application for surrender of accreditation has been refused 11A Section 76 (if the national regulations so provide—decision of the Regulator to charge a particular fee according to a factor determined by the Regulator) An accredited person who is required to pay a particular fee Section 86 (refusal to register or imposing conditions or restrictions on registration) A rail infrastructure manager whose application for registration is refused or is subject to conditions or restrictions Section 86 (extending the period for determining an application) A rail infrastructure manager who has applied for registration Section 88 (refusal to grant variation of registration or imposing a condition or restriction) A rail infrastructure manager whose application for variation of registration is refused Section 88 (grant of variation of registration subject to conditions or restrictions) A rail infrastructure manager whose registration is varied subject to a condition or restriction Section 88 (extending the period for determining an application for variation) A rail infrastructure manager who has applied for variation of registration Section 90 (refusal to grant variation of a condition or restriction of registration) A rail infrastructure manager whose application for variation of a condition or restriction is refused Section 91 (variation or cancellation of a condition or restriction, or imposition of a new condition or restriction) A rail infrastructure manager whose conditions or restrictions of registration are changed Section 92 (cancellation or suspension of registration) A rail infrastructure manager whose registration is cancelled or suspended Section 93 (immediate suspension) A rail infrastructure manager whose registration is suspended Section 93 (extension of immediate suspension) A rail infrastructure manager whose registration is suspended Section 94 (surrender of registration) A registered person whose application for surrender of registration has been refused Section 104 (direction to amend safety management system) A rail transport operator given a direction to amend a safety management system Section 162 (forfeiture of seized thing) A person who is entitled to the thing Section 175 (decision to serve an improvement notice) A person on whom an improvement notice is served Section 178 (extension of time for compliance with improvement notice) A person on whom an improvement notice is served Section 179 (decision to serve a prohibition notice) A person on whom a prohibition notice is served Section 182 (decision to serve a non‑disturbance notice) A person on whom a non‑disturbance notice is served Section 185 (decision to issue subsequent non‑disturbance notice) A person on whom a subsequent non‑disturbance notice is served Section 198 (direction to take specified action following report) A rail transport operator given a direction to take specified action Section 199 (decision to serve notice giving a direction) A person given a direction to stop, alter or not to commence works on or near a railway A rail transport operator given a direction to stop, alter or not to commence railway operations A person given a direction to alter, demolish or take away work Section 205 (refusal to exempt or imposing conditions or restrictions on exemption) A rail transport operator whose application for exemption is refused or is subject to conditions or restrictions Section 205 (extending the period for determining an application) A rail transport operator who has applied for an exemption Section 209 (refusal to grant variation of exemption or imposing a condition or restriction) A rail transport operator whose application for variation of an exemption is refused Section 209 (grant of variation of exemption subject to conditions or restrictions) A rail transport operator whose exemption is varied subject to a condition or restriction Section 209 (extending the period for determining an application for variation) A rail transport operator who has applied for variation of an exemption Section 211 (refusal to grant variation of a condition or restriction of exemption) A rail transport operator whose application for variation of a condition or restriction is refused Section 212 (variation or cancellation of a condition or restriction, or imposition of a new condition or restriction) A rail transport operator whose conditions or restrictions of an exemption are changed Section 213 (cancellation or suspension of exemption) A rail transport operator whose exemption is cancelled or suspended Section 213A (surrender of exemption) A rail transport operator whose notice of surrender of exemption has been refused (2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to— (a) include information about the right to a review under Part 7 of the decision to serve the notice; or (b) state that the notice is served under this section; or (c) making, suspending, cancelling or refusing to make a determination or decision; or (d) giving, suspending, cancelling or refusing to give a direction, approval, consent or permission; or (e) issuing, suspending, cancelling or refusing to issue an accreditation or a registration, or to grant an exemption; or (f) imposing a condition; or (g) making a declaration, demand or requirement; or (h) retaining, or refusing to deliver up, an article; or (i) doing or refusing to do any other act or thing. person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing. 216—Review by Regulator (1) An eligible person— (a) in relation to a reviewable decision made by the Regulator—may, within 28 days after the decision was made, apply to the Regulator for a review of the decision; (b) in relation to a reviewable decision other than a decision made by the Regulator—may apply to the Regulator for review of the decision within— (i) 28 days after the day on which the decision first came to the eligible person's notice; or (ii) such longer period as the Regulator allows. (2) The Regulator may appoint a person to review decisions on applications under subsection (1)(a) (who must not be the person who made the decision the subject of the review). (3) An application for a review must be in the form approved (in writing) by the Regulator. (4) If an application is made to the Regulator in accordance with this section, the Regulator may make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Regulator considers appropriate. (5) The Regulator must give a written notice to the applicant setting out— (a) the Regulator's decision under subsection (4) and the reasons for the decision; and (b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based, and must do so within 14 days after the application is made or, if the reviewable decision was made under Division 1, Division 2 or Division 3 of Part 5, within 7 days after the application is made. (6) If the Regulator has not notified an applicant of a decision in accordance with subsection (5), the Regulator is taken to have made a decision to affirm the reviewable decision. (7) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Regulator, on the Regulator's own initiative or on the application of the applicant for review, stays the operation of the decision (not being an immediate suspension of accreditation or registration, or a prohibition notice) pending the determination of the review. (8) The Regulator must make a decision on an application for a stay by the end of the next business day following the day on which the application is made. (9) If the Regulator has not made a decision in accordance with subsection (8), the Regulator is taken to have made a decision to grant a stay. (10) The Regulator may attach any conditions to a stay of the operation of a reviewable decision that the Regulator considers appropriate. 217—Appeals (1) A person may appeal to the court against— (a) a reviewable decision made by the Regulator; or (b) a decision made, or taken to have been made, by the Regulator under section 216 in respect of a reviewable decision (including a decision concerning a stay of the operation of the reviewable decision), if the person is an eligible person in relation to the reviewable decision. (2) An appeal must be instituted within 28 days of the making of the decision appealed against. Part 8—General liability and evidentiary provisions Division 1—Legal proceedings Subdivision 1—General matters 218—Period within which proceedings for offences may be commenced (1) This section applies to an offence against this Law, other than— (a) an offence prescribed by the national regulations for the purposes of this section; or (b) an offence in respect of which proceedings may only be commenced within a period of less than 2 years after its alleged commission. (2) Despite anything to the contrary in an Act, proceedings for an offence against this Law to which this section applies may be commenced within the latest of the following periods to occur: (a) the period of 2 years after commission of the alleged offence; (b) if evidence of an alleged offence comes to light as a result of an inquiry by a prescribed authority—within 1 year after the report of the inquiry is published; (c) if a rail safety undertaking has been given in relation to the offence—within 6 months after— (i) the undertaking is contravened; or (ii) it comes to the notice of the Regulator that the undertaking has been contravened; or (iii) the Regulator has agreed under section 256 to the withdrawal of the undertaking. (3) A proceeding for a Category 1 offence may be brought after the end of the applicable limitation period in subsection (2) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. prescribed authority means— (a) a coroner of a participating jurisdiction; or (b) a commission of inquiry (by whatever name) established under a law of a participating jurisdiction; or (c) any other relevant authority established under a law of a participating jurisdiction. 219—Multiple contraventions of rail safety duty provision (1) Two or more contraventions of a rail safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more rail safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in respect of 2 or more contraventions of a rail safety duty provision that are charged as a single offence. rail safety duty provision means a provision of Part 3 Division 3. 220—Authority to take proceedings (1) Any legal proceedings to recover any charge, fee or money due under this Law or the national regulations in this jurisdiction may be taken only by the Minister or the Regulator, or by a person authorised by the Minister or the Regulator for the purpose, either generally or in any particular case. (2) Any legal proceedings for an offence against this Law or the national regulations in this jurisdiction may be taken only by the Minister or the Regulator, or by a person authorised by the Minister or the Regulator for the purpose, either generally or in any particular case. (3) In any proceedings referred to in this section, the production of an authority or consent purporting to be signed by the Minister or the Regulator is to be evidence of the authority or consent without proof of the signature of the Minister or the Regulator. (4) The Minister or the Regulator may, for the purposes of this section, authorise any person who is a member of a specified class of persons to take the actions referred to in this section. Subdivision 2—Imputing conduct to bodies corporate 221—Imputing conduct to bodies corporate (1) For the purposes of this Law, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Law requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Law mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. Subdivision 3—Records and evidence 222—Records and evidence from records (1) A certificate purporting to be signed by the Regulator and certifying that— (a) on a date specified in the certificate; or (b) during any period so specified, the particulars set out in the certificate as to any matter required to be recorded in the National Rail Safety Register under section 42 did or did not appear on or from the Register is, for the purposes of any legal proceedings, evidence of what it certifies. (2) Such a certificate is admissible in any proceedings— (a) without proof of the signature of the Regulator; and (b) without production of any record or document on which the certificate is founded. 223—Certificate evidence A statement in a certificate purporting to be issued by the Regulator, a rail safety officer or a police officer as to any matter that appears in, or can be calculated from, records kept or accessed by the Regulator is admissible in any proceedings and is evidence of the matter. 224—Proof of appointments and signatures unnecessary (1) For the purposes of this Law and the national regulations, it is not necessary to prove the appointment of an office holder. (2) For the purposes of this Law, a signature purporting to be the signature of an office holder is evidence of the signature it purports to be. office holder means— (a) a member of ONRSR; or (b) the head of the police force or police service of any participating jurisdiction; or (c) a rail safety officer; or (d) an authorised person; or (e) a police officer of a participating jurisdiction. Division 2—Discrimination against employees 225—Dismissal or other victimisation of employee (1) This section applies to— (a) an employer who dismisses an employee, injures an employee in the employment of the employer or alters the position of an employee to the employee's detriment; and (b) an employer who threatens to do any of those things to an employee; and (c) an employer or prospective employer who refuses or fails to offer employment to a prospective employee, or treats a prospective employee less favourably than another prospective employee would be treated in offering terms of employment. (2) The employer or prospective employer is guilty of an offence if the employer or prospective employer engaged in that conduct because the employee or prospective employee (as the case may be)— (a) has assisted or has given any information to a public agency in respect of a breach or alleged breach of an Australian rail safety law; or (b) has made a complaint about a breach or alleged breach of an Australian rail safety law to the employer, a fellow employee, union, public authority or public official; or (c) assists or has assisted, or gives or has given any information to, a public agency in respect of a breach or alleged breach of an Australian rail safety law; or (d) has made a complaint about a breach or alleged breach of an Australian rail safety law to a former employer, former fellow employee, union, public authority or public official. (3) An employer or prospective employer may be guilty of an offence against subsection (2) only if the reason mentioned in subsection (2)(a), (b), (c) or (d) is the dominant reason why the employer or prospective employer engaged in the conduct. (4) In proceedings for an offence against subsection (2), if all the facts constituting the offence other than the reason for the defendant's conduct are proved, the defendant bears the onus of proving that the reason alleged in the charge was not the dominant reason why the defendant engaged in the conduct. (5) If an employer or prospective employer is convicted or found guilty of an offence against this section, the court may (in addition to imposing a penalty) make either or both of the following orders: (a) an order that the offender pay (within a specified period) such damages to the employee or prospective employee against whom the offender discriminated as the court considers appropriate to compensate him or her; (b) an order that— (i) the employee be reinstated or re‑employed in his or her former position or, if that position is not available, in a similar position; or (ii) the prospective employee be employed in the position for which he or she had applied or a similar position. (6) In this section— employee includes an individual who works under a contract for service; public authority includes ONRSR, the Regulator, a rail safety officer or police officer, and a police officer of another jurisdiction. Division 3—Offences 226—Offence to give false or misleading information (1) A person must not give information in complying or purportedly complying with this Law that the person knows— (a) to be false or misleading in a material particular; or (b) omits any matter or thing without which the information is misleading. (2) A person must not produce a document in complying or purportedly complying with this Law that the person knows to be false or misleading in a material particular without— (a) indicating the respect in which it is false or misleading and, if practicable, providing correct information; or (b) accompanying the document with a written certificate— (i) stating that the document is, to the knowledge of the first‑mentioned person, false or misleading in a material particular; and (ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first‑mentioned person, false or misleading. (3) Subsection (2) places an evidential burden on the accused to show that the accused had indicated the extent to which the document was false or misleading or that the accompanying document sufficiently explained the extent to which the document was false or misleading. 227—Not to interfere with train, tram etc (1) A person must not, without either the permission of an authorised officer or reasonable excuse— (a) move or attempt to move; or (b) interfere or attempt to interfere with; or (c) disable, or attempt to disable; or (d) operate or attempt to operate, any equipment, rail infrastructure or rolling stock owned or operated by a rail transport operator. authorised officer means the rail transport operator, a rail safety officer or a police officer. 228—Applying brake or emergency device (1) A person must not, without reasonable excuse— (a) apply any brake or make use of any emergency device fitted to a train or tram; or (b) make use of any emergency device on railway premises. Emergency devices include an emergency button on a station communication board or on an escalator. 229—Stopping a train or tram (1) A person must not, without reasonable excuse, cause or attempt to cause a train or tram in motion to be stopped. Division 4—Court-based sanctions 230—Commercial benefits order (1) The court that finds a person guilty of an offence against this Law may, on the application of the prosecutor or the Regulator, make an order under this section. (2) The court may make a commercial benefits order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that— (a) was received or receivable, by the person or by an associate of the person, from commission of the offence; and (b) in the case of a journey that was interrupted or not commenced because of action taken by a rail safety officer in connection with commission of the offence, would have been received or receivable, by the person or by an associate of the person—from commission of the offence had the journey been completed. (3) In estimating the gross commercial benefit that was or would have been received or receivable from commission of the offence, the court may take into account— (a) benefits of any kind, whether monetary or otherwise; and (b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of commission of the offence; and (c) any other matters that it considers relevant, including (for example)— (i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and (ii) the distance over which any such goods were or were to be carried. (4) However, in estimating the gross commercial benefit that was or would have been received or receivable from commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (5) Nothing in this section prevents the court from ordering payment of an amount that is— (a) less than 3 times the estimated gross commercial benefit; or (b) less than the estimated gross commercial benefit. (6) For the purposes of this section, a person is an associate of another if— (a) 1 is a spouse, de facto partner, parent, brother, sister or child of the other; or (b) they are members of the same household; or (c) they are partners; or (d) they are both trustees or beneficiaries of the same trust, or 1 is a trustee and the other is a beneficiary of the same trust; or (e) 1 is a body corporate and the other is a director or member of the governing body of the body corporate; or (f) 1 is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or (g) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (h) a chain of relationships can be traced between them under any 1 or more of the above paragraphs. (7) For the purposes of subsection (6), a beneficiary of a trust includes an object of a trust. 231—Supervisory intervention order (1) The court that finds a person guilty of an offence against this Law may, on the application of the prosecutor or the Regulator, if the court considers the person to be a systematic or persistent offender against the Australian rail safety laws, make an order under this section. (2) The court may make a supervisory intervention order requiring the person (at the person's own expense and for a specified period not exceeding 1 year) to do all or any of the following: (a) to do specified things that the court considers will improve the person's compliance with this Law or specified aspects of this Law, including (for example) the following: (i) appointing or removing staff to or from particular activities or positions; (ii) training and supervising staff; (iii) obtaining expert advice as to maintaining appropriate compliance; (iv) installing monitoring, compliance, managerial or operational equipment; (v) implementing monitoring, compliance, managerial or operational practices, systems or procedures; (b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Regulator or a person nominated by the Regulator; (c) to furnish compliance reports to the Regulator or the court or both as specified in the order; (d) to appoint a person to have responsibilities— (i) to assist the person in improving compliance with this Law or specified aspects of this Law; and (ii) to monitor the person's performance in complying with this Law or specified aspects of this Law and in complying with the requirements of the order; and (iii) to furnish compliance reports to the Regulator or the court or both as specified in the order. (3) The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and frequency with which, compliance reports are to be prepared and furnished. (4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form and manner in which, and frequency with which, they are to be made public. (5) The court may only make a supervisory intervention order if it is satisfied that the order is capable of improving the person's ability or willingness to comply with this Law, having regard to— (a) the offences against Australian rail safety laws of which the person has been previously found guilty; and (b) the offences against Australian rail safety laws for which the person has been proceeded against by way of unwithdrawn expiation notices or infringement notices; and (c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations. (6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order. (7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of— (a) the Regulator; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment. (8) A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in a contravention of the requirement. (9) In this section— compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to— (a) the performance of the person in complying with— (i) the rail safety laws or aspects of rail safety laws specified in the order; and (ii) the requirements of the order; and (b) without limiting the above— (i) things done by the person to ensure that any failure by the person to comply with the rail safety laws or the specified aspects of the rail safety laws does not continue; and (ii) the results of those things having been done. 232—Exclusion orders (1) The court that finds a person guilty of an offence against this Law may, on the application of the prosecutor or the Regulator, if the court considers the person to be a systematic or persistent offender against an Australian rail safety law, make an order under this section. (2) For the purpose of restricting opportunities for the person to commit or be involved in commission of further offences against this Law, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from— (a) managing rail infrastructure, or operating rolling stock, or managing or operating a particular type of rail infrastructure or rolling stock; or (b) being a director, secretary or officer concerned in the management of a body corporate involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction; or (c) being involved in managing rail infrastructure that is in this jurisdiction or operating rolling stock in this jurisdiction except by driving a train or rolling stock. (3) The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to— (a) the offences against an Australian rail safety law of which the person has previously been found guilty; and (b) the offences against an Australian rail safety law for which the person has been proceeded against by way of unwithdrawn expiation notices or infringement notices; and (c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with railway operations. (4) A court that has power to make an exclusion order may revoke or amend an exclusion order on the application of— (a) the Regulator; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment. (5) A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.