48ADefinitions

48A Definitions S. 48A def. of *rail infrastructure* substituted by No. 41/2019 s. 117(Sch. 1 item 11.2(a)). ***rail infrastructure*** has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria); S. 48A def. of *rail transport operator* substituted by No. 41/2019 s. 117(Sch. 1 item 11.2(b)). ***rail transport operator*** has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria); S. 48A def. of *railway operations* substituted by No. 41/2019 s. 117(Sch. 1 item 11.2(c)). ***railway operations*** has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria); S. 48A def. of *rolling stock* substituted by No. 41/2019 s. 117(Sch. 1 item 11.2(d)). ***rolling stock*** has the same meaning as in section 4(1) of the Rail Safety National Law (Victoria); ***works contractor*** means a person engaged directly or indirectly by a responsible road authority or an infrastructure manager or works manager to carry out works on behalf of the responsible road authority or infrastructure manager or works manager, and includes a sub-contractor. S. 48B inserted by No. 9/2006 s. 160, substituted by No. 17/2009 s. 17, amended by No. 41/2019 s. 117(Sch. 1 item 11.4) (ILA s. 39B(1)). 48B Duty of responsible road authority, infrastructure manager or works manager in relation to works on or in immediate vicinity of rail infrastructure or rolling stock (1) A responsible road authority or an infrastructure manager or works manager must, when exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, ensure, so far as is reasonably practicable, that he, she or it exercises the power or performs the duty safely. S. 48B(2) inserted by No. 41/2019 s. 117(Sch. 1 item 11.4). (2) Nothing in subsection (1) is to be construed as— (a) conferring a right of action in a civil proceeding in respect of a contravention of that subsection; or (b) conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding. Note to s. 48B inserted by No. 19/2010 s. 44, amended by Nos 22/2013 s. 68, 41/2019 s. 117(Sch. 1 item 11.3). See also Subdivision 2 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). S. 48C inserted by No. 9/2006 s. 160, repealed by No. 17/2009 s. 17. S. 48D inserted by No. 9/2006 s. 160, amended by No. 41/2019 s. 117(Sch. 1 item 11.5) (ILA s. 39B(1)). 48D Works contractor duty in relation to works on or in immediate vicinity of rail infrastructure or rolling stock (1) A works contractor must, when carrying out works on or in the immediate vicinity of rail infrastructure or rolling stock, ensure, so far as is reasonably practicable, that he, she or it carries out the works safely. S. 48D(2) inserted by No. 41/2017 s. 117(Sch. 1 item 11.5). (2) Nothing in subsection (1) is to be construed as— (a) conferring a right of action in a civil proceeding in respect of a contravention of that subsection; or (b) conferring a defence to an action in a civil proceeding or otherwise affecting a right of action in a civil proceeding. S. 48DA inserted by No. 17/2009 s. 18. 48DA Only one offence committed If both sections 48B and 48D apply to a person in respect of a failure to exercise a power or perform a duty safely, the person can only be convicted of an offence under one of those sections in respect of that failure. S. 48DB (Heading) amended by No. 22/2013 s. 69(1). S. 48DB inserted by No. 17/2009 s. 18, amended by No. 22/2013 s. 69(2). 48DB Duty of rail transport operator in relation to works on or in immediate vicinity of road infrastructure A rail transport operator must, when exercising a power or performing a duty under this Act on or in the immediate vicinity of road infrastructure, ensure, so far as is reasonably practicable, that he, she or it exercises the power or performs the duty safely. Note to s. 48DB inserted by No. 19/2010 s. 45, amended by Nos 22/2013 s. 69(3), 41/2019 s. 117(Sch. 1 item 11.6). See also Subdivision 2 of Division 6 of Part 3 of the Rail Safety National Law (Victoria). S. 48DC inserted by No. 17/2009 s. 18. 48DC Exercising a power or performing a duty safely (1) To avoid doubt, a duty imposed on a person under this Division to ensure, so far as is reasonably practicable, that a power is exercised, or a duty is performed, safely requires the person to— (a) eliminate risks to safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable. (2) To avoid doubt, for the purposes of this Division, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring that a power is exercised, or a duty is performed, safely— (a) the likelihood of the hazard or risk concerned eventuating; (b) the degree of harm that would result if the hazard or risk eventuated; (c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; (d) the availability and suitability of ways to eliminate or reduce the hazard or risk; (e) the cost of eliminating or reducing the hazard or risk. S. 48E inserted by No. 9/2006 s. 160, substituted by No. 17/2009 s. 19. 48E Only one offence committed If more than of one of sections 48EA, 48EB, 48EC and 48F apply to a person in respect of a failure to give the required notification, the person can only be convicted of an offence under one of those sections in respect of that failure. S. 48EA inserted by No. 17/2009 s. 19, amended by No. 17/2009 s. 20(1) (ILA s. 39B(1)). 48EA Notification by responsible road authority, infrastructure manager or works manager S. 48EA(1) amended by No. 17/2009 s. 21. (1) A responsible road authority or an infrastructure manager or works manager must, before exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, notify the owner or occupier of the land on which the rail infrastructure or rolling stock is located and any relevant provider of public transport of the intended exercise of the power or the performance of the duty if the exercise of the power or performance of the duty will threaten, or is likely to threaten, the safety of the rail infrastructure or rolling stock. S. 48EA(2) inserted by No. 17/2009 s. 20(1). (b) unless subsection (3) applies, at least 28 days before the proposed exercise of the power or the performance of the duty. S. 48EA(3) inserted by No. 17/2009 s. 20(1). (3) If the proposed exercise of the power or the performance of the duty is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes to s. 48EA(3) amended by Nos 22/2013 s. 70, 41/2019 s. 117(Sch. 1 item 11.7). S. 48EB inserted by No. 17/2009 s. 19, amended by No. 17/2009 s. 20(2) (ILA s. 39B(1)). 48EB Notification by works contractor S. 48EB(1) amended by No. 17/2009 s. 21. (1) A works contractor must, before carrying out works on or in the immediate vicinity of rail infrastructure or rolling stock, notify the owner or occupier of the land on which the rail infrastructure or rolling stock is located and any relevant provider of public transport of the intention to carry out the works if the carrying out of the works will threaten, or is likely to threaten, the safety of the rail infrastructure or rolling stock. S. 48EB(2) inserted by No. 17/2009 s. 20(2). (b) unless subsection (3) applies, at least 28 days before the proposed carrying out of the works. S. 48EB(3) inserted by No. 17/2009 s. 20(2). (3) If the proposed carrying out of the works is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes to s. 48EB(3) amended by Nos 22/2013 s. 70, 41/2019 s. 117(Sch. 1 item 11.8). S. 48EC (Heading) amended by No. 22/2013 s. 71(1). S. 48EC inserted by No. 17/2009 s. 19, amended by No. 17/2009 s. 20(3) (ILA s. 39B(1)). 48EC Notification by rail transport operator S. 48EC(1) amended by No. 22/2013 s. 71(2). (1) A rail transport operator must, before exercising a power or performing a duty under this Act on or in the immediate vicinity of a road authority's road infrastructure, notify that road authority of the intended exercise of the power or the performance of the duty if the exercise of the power or performance of the duty will threaten, or is likely to threaten, the safety of the road infrastructure. S. 48EC(2) inserted by No. 17/2009 s. 20(3). (b) unless subsection (3) applies, at least 28 days before the proposed exercise of the power or the performance of the duty. S. 48EC(3) inserted by No. 17/2009 s. 20(3). (3) If the proposed exercise of the power or the performance of the duty is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes to s. 48EC(3) amended by Nos 22/2013 s. 71(3), 41/2019 s. 117(Sch. 1 item 11.9). S. 48F (Heading) amended by No. 22/2013 s. 72(1). S. 48F inserted by No. 9/2006 s. 160, amended by No. 17/2009 s. 20(4) (ILA s. 39B(1)).