Tourist and Heritage Railways Act 2010

The Act is structured around a small set of durable legal concepts that determine who decides, who pays, and what information must be recorded. Those concepts are: asset, custodian, register, lease, registered operator, and Registrar.

Asset and tourist and heritage rail asset

• A “rail asset” is defined to be infrastructure and rolling stock broadly (structures associated with tracks, signalling, communications, overhead power, buildings, plant and machinery, rolling stock, and anything prescribed) (s 3). The Act expressly ties the statutory meaning of “rolling stock” to the Rail Safety National Law (Victoria) (s 3).
• A “tourist and heritage rail asset” is any rail asset used, controlled or managed by a tourist and heritage railway operator in connection with historical and heritage related rail services (s 3). The Act excludes entirely static or non-operational rail assets and other specified classes (s 4).

Custodian and owner

• “Custodian” is the operator that uses, controls or manages the asset (s 3). The Act distinguishes ownership and custody: an asset can be State-owned but custodied by an operator, or owned by a third party while custodied by an operator. The Act requires owner consent for inclusion of non-State-owned assets in Divisions 2 and 3 (ss 12-14, 13).

Register architecture

• The Tourist and Heritage Rail Asset Register is a tripartite register, with differing rules for entry and access per division (s 9). Each asset gets a unique asset number, description, location, owner, custodian, history and insurance details, plus any other information the Registrar considers appropriate (s 10).
• The Tourist and Heritage Railway Group Register is a voluntary register recording business and contact details, services provided, nominated contact person and a registration number, among other matters (ss 22-24, 23).

Leases and tenure

• VicTrack gets statutory power to grant leases of VicTrack‑vested land and, on behalf of State entities, to grant leases of State-owned rail assets to operators or prospective operators (ss 19-20). Each lease must include prescribed content including maintenance and insurance obligations for State-owned assets (ss 19(2)(f), 20(4)(e)). The statutory cap on rent is that it must not exceed a nominal amount (ss 19(3), 20(5)).
• Transitional protection is written into the repeal of certain provisions of the Transport (Compliance and Miscellaneous) Act 1983 (s 33) and continuation of existing Orders of occupation until lease, revocation or termination under the Order (s 34).

Regulatory reach and enforcement

• The Act confers broad regulation-making power, including the ability to prescribe registration criteria, application fees, safety-related matters, and to confer on operators powers and duties similar to passenger transport companies under the Transport (Compliance and Miscellaneous) Act 1983 (s 31(1)(g)-(h)). Regulations may impose penalties up to 20 penalty units (s 31(2)(g)).

Administrative roles and review

• VicTrack must appoint a Registrar (s 6) whose statutory functions are to compile/maintain the two registers and a leases register (s 7). Decisions on registration and removal are subject to internal notice and reasons requirements, and are reviewable by VCAT (ss 24-29).

Interwoven legal references

• The Act operates with explicit cross-references to other statutes: Transport Integration Act 2010 (declaring the Act to be transport legislation, s 5; registrar appointment cross-reference, s 6), Rail Safety National Law (definition of rolling stock, s 3), Heritage Act 2017 (relationship between the asset register and the Victorian Heritage Register, s 18), and the Transport (Compliance and Miscellaneous) Act 1983 (consequential amendments and potential conferral of duties/powers via regulation, ss 31, 33-34).

These concepts determine the distribution of responsibilities: VicTrack and the Registrar manage records; operators act as custodians and are the primary providers of information and the primary party to leases; owners who are neither State nor custodians must give written election for inclusion; the Minister retains a reserve direction power in relation to fencing liability (s 30).

Primary affected groups

• Tourist and heritage railway operators: the Act’s substantive subjects are non-profit operators that provide historical and heritage related rail services primarily as a tourist activity in Victoria and that are accredited under the Rail Safety National Law (or whose rolling stock is operated by an accredited person) (s 3). These entities are the custodians of many assets, the parties who will apply for leases and who will choose to enter the voluntary registration scheme (ss 9-20, 22-26).
• VicTrack: required to appoint a Registrar (s 6), establish and maintain the asset and group registers (ss 7, 9, 23), accept and grant leases under ss 19-20, and may establish an advisory committee (s 8). VicTrack also must provide assistance to the Registrar to verify asset information (s 14(5)) and supply copies of leases to the Registrar within 14 days of execution (s 21(1)).
• Owners of rail assets who are not the State or the custodian: inclusion of such assets in Divisions 2 and 3 requires the owner’s written election before custodians may provide information to the Registrar (s 13). Owners retain the right to request extracts and correction notifications (s 13(3)).

Secondary affected groups

• State entities: the Act contemplates leases of State-owned assets and land (ss 19-20); it expressly allows VicTrack to act on behalf of State entities when granting asset leases (s 20(2)) and disapplies a provision of the Transport Integration Act 2010 where necessary (s 20(3)).
• Registered operators and potential registrants: operators who choose to participate in the voluntary registration scheme will be recorded in the group register, gain access to some register divisions, and must comply with registration criteria and renewal/notification rules (ss 22-26).
• General public: the Act makes Division 1 of the asset register (State-owned assets) available for public inspection free of charge (s 11(2)). That increases public visibility of State-owned tourist and heritage rail assets.
• Insurers and contractors: lease requirements mandate explicit insurance and maintenance arrangements for State-owned assets that are fixtures and for assets subject to leases (ss 19(2)(f), 20(4)(e)). That creates contractual and administrative obligations relevant to third-party service providers.

Who does not fall within the Act

• Entities that operate only static or non-operational rail assets, underground mine railways, amusement park railways, and the Puffing Billy Railway as defined by the Puffing Billy Railway Act 2022 are excluded (s 4). The regulations may further prescribe exclusions (s 3 defn; s 31(1)(d) permits prescribing registration criteria and potentially who is not a tourist and heritage railway operator).

Who pays and who decides

• Operators will bear most of the compliance burden: providing asset descriptions and histories upon request (s 12), maintaining up-to-date information and notifying changes within 28 days where registration details change (s 15(2); s 26), and taking on maintenance and insurance responsibilities as allocated in leases (ss 19-20). VicTrack decides on registration criteria and the practical operation of the registers and leases, subject to the Act’s statutory requirements; the Registrar makes the operational decisions to accept, refuse, or remove registrations (s 24(3); s 28).

Decision and review pathways

• Registration refusals and removals are subject to internal notice and reason requirements and are reviewable by VCAT within specified timeframes (ss 24(5), 28(6), 29). Enforcement of regulatory obligations may occur via regulations made under s 31, which can include monetary penalties up to 20 penalty units (s 31(2)(g)).

Concentrated benefits and diffuse costs

• The Act concentrates formal tenure benefits on operators that secure leases under ss 19-20 and on operators that successfully register and thereby access programs (s 22(2)). Compliance costs are spread across all custodians who must provide and keep updated asset information, and on those who will be the contracting party for insurance and maintenance under lease terms.

Duties placed on operators and custodians

• Information provision: custodians must supply the Registrar with descriptions, locations, histories and insurance arrangements for State-owned assets they custodian when requested in writing (s 12(1)-(2)). For non-State assets included by owner election, custodians must provide the same information and the name of the believed owner (s 12(3)).
• Owner election for inclusion: custodians must obtain a written election from the owner before providing registrations of assets that are not owned by the State or custodian (s 13(2)). If the asset owner requests, the custodian must provide the owner an extract and notify the Registrar of corrections (s 13(3)).
• Currency and notification: custodians must notify the Registrar in writing of any change to information recorded in the asset register (s 15(2)); the Registrar may request custodians to check information annually but not more than once in any 12 month period (s 15(4)-(5)).
• Application and registration procedural duties: operators applying to the Tourist and Heritage Railway Group Register must use a form approved by VicTrack, pay any prescribed fee (if any), and supply prescribed information (s 24(2)). Registered operators must notify change of recorded details within 28 days (s 26).

Duties placed on VicTrack and the Registrar

• Registrar appointment and functions: VicTrack must appoint a Registrar (s 6). The Registrar must compile and maintain the asset register, a register of leases granted under Part 4, and the group register (s 7).
• Verification assistance: VicTrack must provide the Registrar with information or assistance required to verify asset information (s 14(5)). VicTrack must also provide the Registrar with copies of leases within 14 days after execution (s 21(1)). The Registrar must make Division 1 publicly inspectable and give custodians access to information recorded against their assets (s 11(2), (4)-(5)).
• Procedural fairness: the Registrar must make certain decisions within prescribed timeframes and provide reasons when refusing registration or removing an operator (s 24(3), s 24(5), s 28(2)(b), s 28(5)-(6)). Notice must include reasons and advice about VCAT reviewability where refusal or removal occurs (ss 24(5), 28(6)(b)).

Rights conferred on parties

• Right to include assets: owners (State, custodians acting for themselves, or third-party owners by election) have the right to have assets entered into the register subject to the Registrar’s satisfaction about ownership and accuracy (ss 9-14).
• Right of access: Division 1 is publicly accessible; Divisions 2 and 3 are accessible to registered operators and custodians have access to information recorded against their assets (s 11).
• Tenure and lease rights: operators who obtain leases under ss 19-20 gain formalised rights to occupy and to use State land and State-owned assets for the term and under the renewal and holding-over provisions required by the Act (s 19(2)(c)-(g); s 20(4)(b)-(f)). A relevant pre-existing Order under the now-repealed provisions of the Transport (Compliance and Miscellaneous) Act 1983 remains in force until replaced by a lease, terminates under its own terms, or is revoked (s 34).
• Immunity from fencing liability: operators with a lease or right to occupy under s 34 are, except where the Minister directs otherwise, not required to fence or contribute to fencing the railway and are not liable for damage caused by the railway not being fenced (s 30(2)). Operators remain free to erect fences if they choose (s 30(3)).

Constraints, qualifications and limits

• Register is not proof of ownership: inclusion does not constitute or evidence ownership (s 17). The Registrar must be satisfied as to ownership and accuracy before including assets (s 14).
• Inspections and consent: the Registrar may conduct on-site inspections for compiling or maintaining the asset register (s 16(1)), but not without written notice and written consent of the operator (s 16(3)). The Registrar must be satisfied as to accuracy before listing (s 14(2)-(4)).
• Nominal rent cap: any rent under leases must not exceed a nominal amount (ss 19(3), 20(5)). The Act leaves the term “nominal” without numerical definition, which is a contractual and practical point for negotiating parties.
• Regulatory scope: regulations can impose duties and powers upon operators comparable to passenger transport companies and can prohibit conduct on rolling stock and premises (s 31(1)(g)-(i)). Regulations can also impose penalties not exceeding 20 penalty units (s 31(2)(g)).

Administrative process duties and review

• Timing duties: the Registrar must make a decision to register, refuse or request more information within 28 days of receiving an application (s 24(3)). If refusing, the Registrar must state reasons and notify of VCAT review rights (s 24(5)).
• Removal procedures: where the Registrar proposes removal, the operator has at least 45 days to submit written reasons why they should not be removed; the Registrar must consider such submissions before deciding; a decision on removal must be made within 28 days after submission or expiry (s 28(2)-(4)). Removal decisions must be notified with reasons and rights of review (s 28(5)-(6)).

In short, the Act allocates record-keeping and notification duties primarily to custodians and registered operators, formalises lease content and tenure arrangements for VicTrack-held land and State-owned assets, and vests VicTrack and the Registrar with the administrative powers to maintain registers and make tenure arrangements, subject to statutory safeguards and VCAT review rights.

Statutory penalties within the Act

• The Act itself contains very limited express penal provisions. It does not create criminal offences for failing to provide information or to comply with most duties set out in the Act’s Parts 3-5. Instead, the Act relies on the regulation-making power in s 31 to create offences or penalties. Regulations made under the Act may impose a penalty not exceeding 20 penalty units for contravention of the regulations (s 31(2)(g)). At current rates, penalty units are governed by the Sentencing Act framework; the Act does not state the dollar amount.

Administrative enforcement and remedies

• Administrative remedies within the statutory scheme include refusal to register, removal from the group register, and the exercise of VicTrack’s discretion in lease terms. A refusal to register or a removal from the register must be accompanied by written reasons and advice about reviewability by VCAT (ss 24(5), 28(6)). Those decisions are reviewable by VCAT under s 29, and VCAT timetables and procedures in the Victorian Civil and Administrative Tribunal Act 1998 apply (s 29(3)). A person has 90 days to apply to VCAT for review of a refusal or removal (s 29(2)).

Contractual enforcement under leases

• Leases granted under ss 19-20 will be private law instruments enforceable by contract. The Act mandates certain content for leases, including maintenance responsibilities and insurance arrangements for State-owned assets that are fixtures and for assets subject to leases (s 19(2)(f); s 20(4)(e)). Breach of lease terms will lead to contractual remedies (termination, damages) governed by lease wording, common law and equitable principles, and any applicable statutory regime. The Act requires VicTrack to provide the Registrar with copies of leases within 14 days of execution (s 21(1)); the Registrar must keep a register of leases and include term and renewal dates (s 21(2)), which facilitates oversight and audit.

Inspection powers and constraints

• The Registrar may conduct on-site inspections for the purpose of compiling or maintaining the asset register (s 16(1)). However, inspections require prior written notification and written consent from the operator (s 16(3)). The Act permits the Registrar to authorise others to inspect (s 16(2)). The inspection power is therefore qualified by procedural safeguards.

Regulatory scope and potential future penalties

• The broad regulation-making powers in s 31 cover safety-related matters, conduct on rolling stock, trespass prevention, and conferral of powers and duties comparable to those of passenger transport companies. Regulations can also create or adopt standards and require approval by specified persons (s 31(2)(c)-(d)). Because regulations can impose penalties up to 20 penalty units, much of the enforcement architecture can be placed into subordinate legislation rather than the Act itself. That creates an implementation risk: the enforcement regime and penalty quantum for particular breaches may not be visible until regulations are made.

Practical enforcement channels

• For operators, primary enforcement exposure comes through: (a) contract enforcement under leases; (b) regulatory obligations that may be imposed under s 31 once regulations are drafted and in force; and (c) administrative action under the registration scheme (refusal or removal) with VCAT review. VicTrack’s operational discretion over lease terms and its role as Registrar mean that much enforcement and compliance management will be carried out through administrative and contractual instruments rather than prosecutorial or criminal mechanisms.

Evidence limitations

• The Act expressly states that the asset register does not provide evidence of ownership (s 17). That limits the utility of the register as an enforcement or property title instrument; disputes over ownership will continue to require documentary proof and traditional conveyancing or property law processes, not reliance on an entry in the asset register.

Transport Integration Act 2010

• The Act is declared to be “transport legislation” under the Transport Integration Act 2010 (s 5). That classification imports the Act into the broader transport legislation framework and links certain administrative processes: the Registrar must be a person employed by VicTrack under s 147(7) of the Transport Integration Act 2010 (s 6). Section 20(3) expressly notes that leases of State-owned rail assets are granted despite s 118 of the Transport Integration Act 2010, indicating an intended override to facilitate asset leasing.

Rail Safety National Law (Victoria)

• The Act defines “rolling stock” by reference to the Rail Safety National Law (Victoria) (s 3). The Act therefore presupposes that operators are subject to the Rail Safety National Law’s accreditation and safety framework. Registration and lease conditions may interact with safety obligations under that national law; the Act does not relieve operators of such obligations.

Heritage Act 2017 and Victorian Heritage Register

• The Act explicitly disclaims any effect on the Victorian Heritage Register (s 18(1)) and states that inclusion in the asset register is not intended to imply cultural heritage significance (s 18(2)). That preserves the primacy of the Heritage Act 2017’s statutory protections and processes for heritage listing and approvals where they apply.

Transport (Compliance and Miscellaneous) Act 1983

• The Act repealed sections 247, 248, 249(2) and 255 of the Transport (Compliance and Miscellaneous) Act 1983 (s 33). Section 34 creates transitional provisions preserving existing Orders of occupation made under the repealed section 247: a relevant Order continues in force until a lease is granted under s 19, the Order’s own right to occupy terminates, or the Order is revoked (s 34(3)). Regulations under the Act may, by s 31(1)(g)-(h), confer on a tourist and heritage railway operator any power a passenger transport company may exercise or impose duties upon them analogous to a passenger transport company under that same 1983 Act. This creates potential regulatory alignment or duplication risks that will depend on the content of regulations.

Other statutory regimes

• The Act’s provision that the register does not evidence ownership (s 17) means proprietary regimes (land law, personal property security, leases, vesting instruments) operate independently; the Act provides a descriptive public record rather than a property title system. The asset register may interact with insurance, contract, and tort law in practice because leases and insurance arrangements noted in the register and lease documents allocate risk and ongoing obligations (ss 10, 19(2)(f), 20(4)(e)).

Regulations and standards

• The Act permits regulations to adopt or incorporate external documents and standards, whether wholly or partially and as amended, and to require approvals by specified persons (s 31(2)(d)-(c)). This means safety standards, heritage guidelines, or technical standards from other regimes may be imported into the Act’s regulatory layer. The adoption mechanism increases the need for operators to track subordinate instruments and referenced documents for compliance.

Administrative review and tribunal jurisdiction

• Decisions under the Act about refusal or removal from the group register are reviewable by VCAT under s 29; the Victorian Civil and Administrative Tribunal Act 1998 applies to Act-related reviews (s 29(3)). That situates review processes within Victoria’s established administrative law framework.

Nominal rent and contractual arrangements

• The obligation that rent under leases be no more than a nominal amount (ss 19(3), 20(5)) may affect commercial interactions with other statutory regimes if, for example, rates, local government charges, or taxation treatments depend on the consideration paid. The Act does not specify interaction with local government rating laws or land tax regimes; that will be determined by existing statutes and contractual arrangements.

Excluded entities

• The Act’s exclusions under s 4 (static/non-operational assets, mine railways, amusement park railways, and Puffing Billy Railway) mean those operators are governed elsewhere or are not covered; any cross-claims or interdependencies with those excluded entities will rely on the respective statutory schemes (for example, Puffing Billy Railway Act 2022).

In summary, the Act is designed to sit alongside and interact with a network of transport, safety, heritage, and property laws. It creates administrative and contractual mechanisms rather than replacing substantive property or safety regimes; much of the enforcement and normative content is intended to be specified by regulation and lease terms, which means practice will be shaped significantly by subordinate instruments and interstitial contractual arrangements with VicTrack and third parties.

The Act has been amended multiple times since assent in 2010. The endnotes provide a table of amendments showing the chronology and statutory instruments that altered definitions, administrative arrangements, and cross-references. Key amendments recorded in the published Version No. 016 (incorporating amendments as at 6 August 2025) include:

• Transport Legislation Amendment (Public Transport Development Authority) Act 2011 (No. 61/2011): made several amendments to definitions and administrative provisions, with commencement dates in late 2011 and April 2012. The endnotes list multiple textual changes effected by s 25(Sch. 1 item 12.x).
• Rail Safety National Law Application Act 2013 (No. 22/2013): inserted or amended definitions related to rail assets and rolling stock and adjusted s 31(1)(i) (commenced 19 May 2014).
• Statute Law Revision Act 2013 (No. 70/2013): made textual and housekeeping amendments (commenced 1 December 2013).
• Heritage Act 2017 (No. 7/2017): amended s 18(1) to update the cross-reference and interaction with the Victorian Heritage Register (commenced 1 November 2017).
• Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 (No. 68/2017): substituted s 6 and made other amendments (commenced 2 April 2018).
• Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Act 2019 (No. 41/2019): made further adjustments to definitions and appointments with commencement on 2 December 2019.
• Transport Legislation Amendment Act 2019 (No. 49/2019): inserted amendments that took effect 1 January 2020 and adjusted several administrative provisions.
• Puffing Billy Railway Act 2022 (No. 16/2022): amended s 4 to expressly exclude the Puffing Billy Railway from application of the Act (commenced 1 July 2023).
• Transport Legislation Amendment (Port Reforms and Other Matters) Act 2022 (No. 19/2022): made changes affecting application forms and procedural elements (s 82).
• Roads and Ports Legislation Amendment (Road Safety and Other Matters) Act 2025 (No. 25/2025): latest recorded amendment affecting the definition of State entity and similar cross-references (commenced 6 August 2025).

Form and nature of amendments

• Many amendments are definitional, cross-referential or administrative (appointment of Registrar, alignment of definitions with the Rail Safety National Law, interaction with the Transport Integration Act). Some amendments reflect statutory housekeeping and reallocation of functions between public transport bodies. The Puffing Billy exclusion (2022) is a policy-specific carve-out enacted by separate statute.

Consequences for compliance and interpretation

• Because the Act’s key operational content (registers, leases, and registration schemes) interfaces with definitions and cross-referenced regimes, amendments that change definitions (for example, of “rolling stock” or “State entity”) alter who falls within the Act and the obligations that flow. Practitioners should monitor the consolidated Act and the endnotes table for subsequent changes to definitions and commencement dates that may affect registration eligibility or lease entitlements.

Sources and official materials

• The endnotes indicate the Act’s second-reading speeches and provide authoritative commencement details: the Act was assented on 19 October 2010 and came into operation on 1 October 2011 (Special Gazette references). The endnotes also specify that explanatory details were not entered at the date of publication of this Version.

Practical note

• Given that much of the Act’s operational and enforcement detail will be supplied by regulations and by VicTrack’s implementation (forms, fees, advisory committee composition), the amendment history should be read alongside the Regulations and any VicTrack instruments or policy guidance introduced under s 31 to fully understand current obligations.

The version of the Act provided contains no judicial decisions, reported cases or tribunal determinations that interpret or apply its provisions. The text does not cite any cases. The statutory review pathway established by the Act is administrative review by the Victorian Civil and Administrative Tribunal (VCAT): refusals to register and removals from the Tourist and Heritage Railway Group Register are reviewable by VCAT (s 29). The Act also notes in the endnotes the Minister’s second reading speeches and the dates of assent and commencement, but no litigation history is recorded.

Implications of absence of recorded litigation

• The absence of cases cited in the source material means there is no authoritative judicial gloss within the Act’s text on contentious points such as what constitutes a sufficient owner election under s 13, how “nominal” rent should be quantified under ss 19(3) and 20(5), the standard of the Registrar’s satisfaction under s 14, or the scope of permissible regulations under s 31. Until dispute resolution processes produce VCAT or higher court decisions, those matters will be governed by the plain language of the Act, applicable contract law, and the content of any regulations or lease instruments.

Where disputes would likely be heard

• Administrative disputes about registration decisions are explicitly allocated to VCAT (s 29). Lease disputes and property or contract disputes would proceed through civil courts or arbitration per the lease terms. Regulatory contraventions introduced under s 31 (if they include pecuniary penalties) would proceed by the statutory enforcement mechanism specified in the regulations.

Practical consequence for practitioners

• Because judicial interpretation is not available in the text, operators, VicTrack and owners will need to rely on statutory wording, the Registrar’s administrative practices, VicTrack lease forms, and any regulations made under s 31 to assess risk. Negotiation of lease terms and careful drafting to document parties’ intentions (for example, regarding maintenance, insurance, and holding over) will be important to reduce litigation risk. Parties should preserve documentary evidence of ownership (s 14(3) requires the Registrar to have regard to documentary evidence), and consider using alternative dispute resolution clauses in leases where appropriate.

Monitoring for emerging case law

• Practitioners should monitor VCAT determinations and judicial decisions that may arise from s 29 reviews and from lease-related litigation. Because regulations under s 31 may create new obligations and penalties, regulatory enforcement actions may generate case law that clarifies the Act’s operational contours.

Register is not title or proof of ownership

• The Act expressly provides that listing on the asset register does not constitute evidence of ownership (s 17). Operators and owners should not rely on register entries to establish title or to replace documentary proof. The Registrar must be satisfied as to ownership before including assets (s 14(1)), and will have regard to documentary evidence (s 14(3)). Practical implication: custodians should retain chain-of-title and maintenance funding records; owners who want inclusion must provide written elections (s 13(2)).

Consent required for inspections

• The Registrar may only conduct on-site inspections after written notice and with the operator’s written consent (s 16(3)). An operator can therefore control access timing, which is protective, but an operator that unreasonably withholds consent may frustrate compilation of Division 1 entries for State-owned assets. The Act does not provide a compulsory inspection warrant mechanism for the Registrar.

Owner election and third-party assets

• For assets not owned by the State or custodian, a custodian must have a written election from the owner before submitting information (s 13(2)). That creates potential chain‑of-consent issues where custodians use or store privately owned assets; custodians need to secure owners’ written elections proactively to avoid removal or exclusion from the register.

Division access distinctions

• Division 1 is public; Divisions 2 and 3 are inspectable only by registered operators (s 11(2)-(3)). If a custodian is not a registered operator, the custodian still must be given access to the information recorded against its asset (s 11(4)-(5)). This produces a practical barrier for unaffiliated custodians and could become an operational issue when multiple custodians or community groups have interests in the same asset.

“Nominal” rent is undefined

• The Act caps rent for land and assets at a “nominal amount” (ss 19(3), 20(5)) but does not define “nominal”. In negotiations, parties may have different views about what that means for rates, local government levies, utilities, or other charges. Legal and accounting advice will be needed to quantify and document any consideration and to manage tax or rating implications.

Insurance and maintenance allocation

• Leases must specify insurance arrangements and maintenance responsibilities for State-owned assets that are fixtures and for assets subject to leases (s 19(2)(f), s 20(4)(e)). Operators should ensure these clauses are precise; ambiguity will transfer risk to operators since nominal rent lowers financial consideration but does not remove contractual responsibilities. Arrangements should specify who funds renewals, who approves contractors, and standards required.

Regulations may change obligations materially

• The Act furnishes broad regulation-making powers (s 31). Regulations may impose duties analogous to passenger transport companies, forbid certain conduct on rolling stock and premises, and create penalties up to 20 penalty units (s 31(1)(g)-(i); s 31(2)(g)). Because the regulatory content is not fixed by the Act, compliance risk depends on future subordinate instruments.

Timing traps for registration and removal

• The Registrar has a 28-day period to make a decision on an application (s 24(3)). Where an operator contests a proposed removal, they have 45 days to submit reasons (s 28(2)(c)), and the Registrar must decide within 28 days after receipt or expiry (s 28(4)). Missing these windows can produce procedural default outcomes; operators need deadlines diarised. VCAT review periods are 90 days from notice (s 29(2)). Administrative timings are strict and can determine rights to review.

Transitional Orders persist until lease or revocation

• Pre-existing Orders under the repealed provisions of the Transport (Compliance and Miscellaneous) Act 1983 continue until the earliest of grant of a lease, termination under the Order, or revocation (s 34(3)). Operators occupying under such Orders may have different practical tenure rights until leases are granted, and should track whether and when VicTrack proposes a lease.

Fencing immunity is narrow

• Section 30 protects operators from being required to fence or contribute to fencing, and from liability for damage caused by lack of fencing, unless the Minister directs otherwise (s 30(2)). That immunity is specific to fencing-related duties and does not extend to other safety or negligence liabilities; operators must not assume broad immunities from tort or regulatory liability.

Registrar reliance on VicTrack

• The Registrar must be provided with information and assistance by VicTrack to verify asset information (s 14(5)). Where VicTrack’s records are incomplete or where ownership is unclear, verification may stall. Operators should maintain and disclose documentary evidence proactively.

VCAT is the primary review forum

• Administrative disputes over registration decisions are remitted to VCAT (s 29). Operators considering litigation should be aware that tribunal process and remedies may differ from court remedies, and that VCAT’s factual review will be shaped by the statutory record.

Be aware of excluded entities

• Certain railways are excluded from the Act, including the Puffing Billy Railway per s 4(d) following the Puffing Billy Railway Act 2022. Parties should confirm whether particular railways fall within the Act’s scope before relying on its protections.

Practical checklist for custodians and operators

1. Prepare and maintain documentary evidence of ownership and custody

   • Keep warranty deeds, transfers, vesting orders, donation/loan agreements and invoices for repairs or restorations to support the Registrar’s satisfactions about ownership and accuracy (s 14(3)). Retain maintenance, repair and funding records because the asset “history” includes such details (s 3 defn “history”).

2. Respond promptly to Registrar requests for information

   • The Registrar may request in writing descriptions, locations, histories and insurance details for State-owned assets of which the operator is custodian (s 12(1)-(2)); provide complete written responses within any requested timeframe to avoid delays.

3. Secure written owner elections for third-party assets

   • If custodians manage assets owned by third parties and those owners wish inclusion in Divisions 2 or 3, obtain a written election from the owner before submitting information to the Registrar (s 13(2)). Keep a dated copy of the owner’s election and any subsequent withdrawal instructions.

4. Check and update register entries regularly

   • If listed, custodians must notify the Registrar in writing of any change to information recorded against an asset (s 15(2)). Expect an annual verification request but not more frequently than once every 12 months (s 15(4)-(5)). Consider maintaining a compliance diary and log of changes and notifications.

5. Manage consent for on-site inspections

   • The Registrar must provide written notice and obtain written consent before conducting an on-site inspection (s 16(3)). If an inspection is requested, coordinate schedules, prepare site documentation and ensure that the nominated contact person is available. If you have security or insurance concerns, raise them in writing and record any agreed inspection protocols.

6. Prepare for lease negotiation and drafting

   • If seeking a lease of VicTrack‑vested land or State-owned assets, ensure lease drafts include the mandatory elements: land description, fixture lists, term, renewal process, nominal rent, insurance and maintenance responsibility for State-owned fixtures, holding over, reclamation rights and subletting rules (s 19(2); s 20(4)). Negotiate clear operational standards, inspection rights, allocation of regulatory compliance responsibilities and dispute resolution clauses.

7. Clarify insurance and maintenance responsibilities

   • Document which party is responsible for insuring which assets, the standard of cover required, who pays premiums, and who arranges maintenance and capital renewals. Include schedules and threshold approval procedures for major works, and formalise funding processes for repairs done by volunteers or community groups (s 19(2)(f); s 20(4)(e)).

8. Apply for voluntary registration if beneficial

   • To access programs and demonstrate best practice, apply using VicTrack’s approved form and pay any prescribed fee (s 24(2)). Be aware that the Registrar must decide within 28 days of receiving the application (s 24(3)). If rejected, petition for reasons and consider VCAT review within 90 days (s 24(5); s 29).

9. Keep registration details current and notification-ready

   • Registered operators must notify the Registrar in writing of any change of recorded details within 28 days (s 26). Keep an internal register mirroring the Tourist and Heritage Railway Group Register to ensure timely notifications.

10. Secure legal and insurance advice on “nominal” rent

    • Because rent must be no more than nominal (ss 19(3), 20(5)) but the Act does not define that term, seek tax and rating advice on how nominal consideration interacts with property rates, land tax or GST consequences.

11. Monitor regulations and VicTrack instruments

    • The Act gives the Governor in Council wide powers to make regulations under s 31, including conferring duties like those of passenger transport companies and imposing penalties of up to 20 penalty units. Subscribe to official gazettes, VicTrack notifications and industry group updates to ensure compliance with newly made regulations and standards.

12. Prepare for administrative review scenarios

    • If you receive a notice proposing removal from the group register, you have 45 days to submit reasons (s 28(2)(c)). Prepare documentary materials and submissions promptly, and if removed or refused, consider a VCAT application within 90 days (s 29(2)). Retain evidence of compliance with registration criteria.

13. For operators occupying under pre-existing Orders

    • If occupying under an Order under the repealed provisions of the Transport (Compliance and Miscellaneous) Act 1983, understand that the Order remains in force until a lease is granted, the Order terminates under its terms, or it is revoked (s 34). Negotiate with VicTrack in advance to secure lease terms that reflect existing occupancy and investments.

14. Drafting and records for multi-party custodianship

    • Where assets are shared or used by multiple operators, specify rights of access, maintenance cost-sharing, subletting arrangements, transfer processes, and the mechanics for asset transfer or sharing (s 20(4)(h)). Ensure all parties’ names and contact points are recorded in the group register if relevant (s 23).

15. Safety and third‑party conduct controls

    • Expect regulations to potentially address on-board conduct, trespass prevention and interference with fixtures (s 31(1)(i)-(k)). Develop passenger conduct policies and signage consistent with any adopted standards to reduce risk.

Record-keeping and audit

• Keep a central compliance file containing: the operator’s accreditation documents under the Rail Safety National Law; all lease documents and lease register entries; copies of asset register extracts; written owner elections; insurance policies and schedules; maintenance logs; correspondence with the Registrar; and any VCAT or tribunal procedural materials. VicTrack requires copies of leases within 14 days after execution (s 21(1)); ensure timely provision.

Engage early with VicTrack and the Registrar

• Because VicTrack administers registers and holds the power to grant leases and set forms and fees, early engagement can clarify expectations around lease form, registration criteria, advisory committee membership, and any programs available under the voluntary scheme (ss 6-8, 22). Consider participating in the advisory committee if formed (s 8), as it provides an avenue to influence administrative practice.

In short, compliance requires proactive record-keeping, clear written agreements with owners and co-users, timely administrative responses to the Registrar, careful negotiation of lease terms to allocate insurance and maintenance risk, and ongoing monitoring of regulations and VicTrack practices.