Tourist and Heritage Railways Regulations 2021

The regulations operate within the framework of the Tourist and Heritage Railways Act 2010 (“the Act”). The central concept is the advisory committee established under section 8 of the Act. The regulations give it a specific composition: a maximum of eight members, with the Registrar as chair, and VicTrack as the appointing body. The committee is not a decision-making body for operators; it is an advisory body that presumably advises the Registrar or VicTrack on sector matters. The nomination process divides operators into four groups by track gauge and usage: broad gauge (1435 mm or more), mainline (track also used by a passenger transport company), narrow gauge (600 mm to 1067 mm), and tramway (reg 7(1)). Each group can nominate one person, who must be a member of the committee/board/governing body of one of the operators in that group, and must have majority agreement from operators in that group (reg 7(2)). Sector representatives are nominated by “any person involved in the tourist and heritage railway sector” (reg 7(3)). Importantly, VicTrack retains a gatekeeping power: it may decline any nomination if it is not satisfied that the nominee is consistent with the requirement that appointed representatives collectively have skills in operations, business, conservation, and engineering (reg 7(5), reg 8(3)). This means VicTrack effectively controls who sits on the committee, and the collective skills requirement gives it a broad discretion to reject nominees without needing to show the nominee individually lacks skill.

The second key concept is the Tourist and Heritage Railway Group Register. The Act presumably establishes this register under Part 5; the regulations add the information to be recorded and the criteria for registration. The criteria focus on the operator’s legal form and governance. The operator must be either an incorporated association (under the Associations Incorporation Reform Act 2012) or a company limited by guarantee. Unincorporated bodies, sole traders, partnerships, or other company types are ineligible. The operator must have a committee, board or governing body, a working with children policy, a business plan, an asset conservation plan, and a marketing strategy. The requirement for an asset conservation plan reflects the heritage nature of the rolling stock and infrastructure; the business plan and marketing strategy reflect a commercial or operational sustainability expectation. The transitional provision for plans under development is a pragmatic concession but uses the vague term “reasonable time”, which creates uncertainty.

The third set of concepts are the offences in Part 4. The key concept of “tourist and heritage rail asset” and “railway premises” are not defined in the regulations but must be defined in the Act. The offences cover typical public order and property matters. “Mark graffiti” is defined by reference to the Graffiti Prevention Act 2007; that Act defines it broadly to include painting, drawing, marking, scratching, or etching on property without consent. The consent provisions are notable: for graffiti and interfering with equipment, the consent must be “express” - implied consent does not suffice. For graffiti, consent must come from the owner or custodian of the asset, or owner/occupier/lessee of premises. For interfering with equipment, consent must come from owner/occupier/lessee. The trespass offence is “wilful” - a mental element, but the other offences appear to be strict liability subject to any defences in the Act or at common law. The penalty levels are modest but not trivial: 10 penalty units (approx $1,817.40 in 2021-22) and 20 units ($3,634.80). These are criminal penalties, not civil fines.

The regulations directly affect three categories of persons. First, tourist and heritage railway operators seeking inclusion on the Tourist and Heritage Railway Group Register. Only operators that are incorporated associations or companies limited by guarantee can meet the registration criteria. This excludes many smaller volunteer groups that may operate as unincorporated associations. Operators must prepare and maintain a business plan, asset conservation plan, and marketing strategy, and must have a working with children policy. These are ongoing compliance requirements. Operators may also wish to be involved in nominating representatives for the advisory committee; only operators in the four designated groups can nominate group representatives, and they must secure majority agreement within the group. This creates a coordination burden for small operators. For operators that use track shared with a passenger transport company (mainline group), the definition of “passenger transport company” is imported from the Transport (Compliance and Miscellaneous) Act 1983 - those operators have additional constraints.

Second, VicTrack (the Victorian Rail Track Corporation) is the principal administrative body under these regulations. It appoints advisory committee members, seeks nominations, declines nominations if not satisfied, and determines the terms and conditions of appointments. Crucially, VicTrack may specify what information must be contained in a business plan, asset conservation plan, or marketing strategy (reg 10(3)). This gives VicTrack significant power over the content of operator documents, which could become a source of regulatory creep if requirements become prescriptive. VicTrack must also ensure the collective skills requirement is met - this is a structural constraint on its appointing discretion.

Third, all persons - including visitors, volunteers, employees, and members of the public - are subject to the Part 4 offences. These are not limited to operators. A volunteer using offensive language on a heritage train, a tourist dropping rubbish, or a child interfering with a sign could all commit an offence. The “prohibited language” and “prohibited behaviour” provisions are broad and subjective: “offensive” language or behaviour depends on the standards of a reasonable person, which could catch casual swearing or boisterous behaviour. The trespass offence is wilful, so accidental trespass is not caught, but refusal to leave when requested makes it an offence regardless of the original entry. The consent provisions for graffiti and interfering with equipment are mitigations but place the burden on the person to obtain express consent in advance.

Additionally, government departments are affected: the Secretary to the Department of Jobs, Precincts and Regions, the Chief Executive of Regional Development Victoria, and the Secretary to the Department of Transport each have the right to nominate one person to the advisory committee. These nominees are not required to have any expertise in heritage railways; they need only have “skills, knowledge or acumen in the area of tourism” (for DJPR), or general skills for RDV, or any (no criteria stated for Transport nominee). This ensures bureaucratic representation on an advisory body that influences the sector.

The regulations impose duties and confer rights on several parties. Duties of VicTrack: it must seek nominations from the four operator groups (reg 7(1)) and from the sector generally (reg 7(3)) before appointing representatives. It must ensure that appointed operator and sector representatives collectively have skills in four specified areas (reg 8(3)). It may determine terms and conditions of appointments (reg 8(2)). It may decline a nomination if not satisfied that the nominee is consistent with the skills requirement (reg 7(5)). It may specify content for business plans, asset conservation plans and marketing strategies (reg 10(3)). It also must maintain the register presumably under the Act, and record the additional information prescribed in regulation 9.

Duties of operators: to be eligible for registration, operators must have the requisite legal form, governing structure, working with children policy, and the three plans (business, asset conservation, marketing). If plans are not yet finalised, the operator must complete drafting within a reasonable time after inclusion in the register (reg 10(2)). Where content has been specified by VicTrack, the plan must contain that information. Operators may also have a duty to nominate representatives if they wish to participate in the advisory committee process; however, there is no duty to nominate - it is optional.

Duties of all persons: no person may mark graffiti without express consent of owner/custodian/occupier (reg 11). No person may use indecent, obscene, offensive or threatening language in or on a tourist and heritage rail asset or railway premises (reg 12). No person may behave in an obscene, offensive, threatening, disorderly or riotous manner (reg 13). No person may wilfully trespass on railway premises or refuse to leave when requested by the owner or occupier (reg 14). No person may deposit solid or liquid domestic or commercial waste, refuse, debris or rubbish on railway premises except in a provided receptacle (reg 15). No person may interfere with or attempt to interfere with any guide-post, bridge hand-rail, sign, notice, light or other fixture or equipment on railway premises without express consent of owner, occupier or lessee (reg 16). No person may damage or attempt to damage such fixtures or equipment (except by graffiti, which is separately covered) (reg 17). These duties apply to everyone, not just operators or employees.

Rights: the owner, occupier or lessee of railway premises has the right to request a trespasser to leave (reg 14). The owner or custodian of a tourist and heritage rail asset, and the owner, occupier or lessee of railway premises, have the right to grant or withhold express consent for graffiti (reg 11(1)) and for interference with fixtures/equipment (reg 16). The owner or occupier has the right to demand that a person not deposit rubbish except in a receptacle (reg 15). These rights are not absolute: the consent must be express, and there is no provision for implied or deemed consent. Failure to obtain consent before acting is an offence even if the owner would have consented. Persons subject to a request to leave from the owner/occupier must comply or risk a trespass offence (reg 14). There is no right to remain on premises after a request, even if the original entry was lawful.

Rights of operators: the right to be considered for registration if they meet the prescribed criteria. The right to nominate representatives for the advisory committee, subject to majority agreement within the group and VicTrack’s veto. The right to have a transitional period to complete asset conservation and marketing plans if they have commenced drafting (reg 10(2)). This transitional period is not a right to indefinite delay; “reasonable time” is undefined.

The regulations create seven criminal offences, each with a fixed penalty in penalty units. The value of a penalty unit for the 2021-2022 financial year is $181.74 (Endnotes, explanatory details). Thus the monetary equivalents are:

• Graffiti (reg 11): 10 units = approx $1,817.40
• Prohibited language (reg 12): 10 units = approx $1,817.40
• Prohibited behaviour (reg 13): 10 units = approx $1,817.40
• Trespassing (reg 14): 20 units = approx $3,634.80
• Rubbish dumping (reg 15): 20 units = approx $3,634.80
• Interfering with equipment (reg 16): 20 units = approx $3,634.80
• Damaging equipment (reg 17): 20 units = approx $3,634.80

The penalty amounts are moderate but not trivial. For a volunteer worker on a heritage railway, a fine of $1,800 for using offensive language could be a significant financial blow. The offences are likely summary offences, heard in the Magistrates’ Court. The regulations do not specify who can enforce them. Typically, enforcement would be by Victoria Police or possibly by authorised officers under the Act or under the Tourist and Heritage Railways Act 2010 (which may provide for infringement notices). The Act itself is not reproduced, so the enforcement mechanism is unclear. The regulation notes that penalties are to be calculated under the Monetary Units Act 2004, which adjusts the penalty unit value annually. This means the dollar amount increases over time without legislative amendment, which is a feature of Victorian penalty unit indexing.

The graffiti offence is separately carved out from the damaging equipment offence by the note to regulation 17: “It is an offence to mark graffiti on any tourist and heritage rail asset or railway premises - see regulation 11.” This indicates that a person who marks graffiti cannot also be charged under regulation 17 for damaging equipment by the same act; the graffiti offence is the specific provision. However, a person who both marks graffiti and does other damage (e.g., breaks a sign while spray-painting) could be charged with both.

The trespass offence requires a “wilful” act, meaning the person must intend to trespass or be reckless. The other offences do not specify a mental element. Under Victorian criminal law, unless the provision indicates a contrary intention, strict liability may apply. A person could be convicted even if they did not know their language was offensive, or that they were interfering with a fixture. The only defences would be those available under general criminal law (e.g., honest and reasonable mistake of fact, if not excluded by the Act). The consent defences for graffiti and interference are elements of the offence: the prosecution must prove that consent was not obtained. This places a legal burden on the prosecution, but the defendant may raise evidence of consent.

The regulations do not provide for infringement notices (on-the-spot fines) - that would require a separate provision in the Act or another regulation. Provided that is not present, enforcement requires a court process. The cost of prosecution may be disproportionate for minor offences.

The regulations sit within a web of Victorian legislation. The primary parent statute is the Tourist and Heritage Railways Act 2010 (the Act). The regulations are made under section 31 of that Act and implement sections 8 and 23(1)(g) and Part 5 of the Act. The Act itself is not provided, but the regulations reference its section numbers. The advisory committee is established under section 8 of the Act; regulations 6-8 fill in the composition, nomination and appointment details. The Tourist and Heritage Railway Group Register is created under Part 5 of the Act; regulation 9 prescribes additional information for section 23(1)(g), and regulation 10 prescribes criteria for registration under Part 5. The Act must contain the core definitions of “tourist and heritage rail asset”, “railway premises”, “Registrar”, and the offence provisions may be framework only, with the regulations providing the specific offences. However, the regulations themselves create the offences in Part 4; it is possible the Act does not create further offences. The regulations also rely on external Acts for definitions.

Specifically, the Associations Incorporation Reform Act 2012 provides the definitions of “incorporated association” and “public officer” (reg 5). This means only associations incorporated under that Victorian Act qualify; incorporated associations from other states or Territories would not qualify unless the Act otherwise provides. A company limited by guarantee is defined under the Corporations Act 2001 (Commonwealth), but the regulations do not cite that; the term is assumed to have its standard meaning.

The Graffiti Prevention Act 2007 is incorporated for the definition of “mark graffiti” (reg 11(2)). That Act defines it to include painting, drawing, marking, scratching or etching, and also includes the use of aerosol cans, markers, and other instruments. This is a broad definition that could cover a child scratching initials on a train.

The Transport (Compliance and Miscellaneous) Act 1983 provides the definition of “passenger transport company” for the mainline group (reg 7(6)). This definition likely refers to operators of public passenger services. The interaction means that mainline group operators share track with commercial passenger services, which may impose safety and scheduling obligations beyond these regulations.

The Sentencing Act 1991 and Monetary Units Act 2004 govern penalty unit calculation and indexation. The Endnotes explicitly state that the amount is to be calculated by multiplying the number of penalty units by the relevant value, and that the value for 2021-22 is $181.74. The Subordinate Legislation Act 1994 provides the sunset provision: these regulations automatically expire ten years after making, on 21 September 2031, unless remade (Endnotes, General information). This creates a periodic review requirement.

The regulations also revoke three earlier instruments: the Tourist and Heritage Railways Regulations 2011, the 2014 Amendment Regulations, and the 2019 Amendment Regulations (reg 4). There are no amendments to date (Table of Amendments is empty). The regulations do not interact directly with workplace health and safety laws, but the working with children policy requirement (reg 10(1)(c)) intersects with the Worker Screening Act 2020 (Victoria) and the Working with Children Act 2005 (Victoria) - though not explicitly referenced. Operators must have a policy; they do not necessarily need WWC checks for all volunteers under these regulations, but other laws may require that.

The Tourist and Heritage Railways Regulations 2021 is the current and only version as at 21 September 2021 (Version No. 001). The regulations were made on 21 September 2021 and commenced on the same day. They revoked and replaced three earlier sets of regulations: the Tourist and Heritage Railways Regulations 2011 (S.R. No. 102/2011 as amended by S.R. Nos 198/2014 and 167/2019), the Tourism and Heritage Railways Amendment Regulations 2014 (S.R. No. 198/2014), and the Tourism and Heritage Railways Amendment Regulations 2019 (S.R. No. 167/2019) (reg 4; Endnotes, explanatory detail 1). This means that the 2011 regulations had been amended twice before being consolidated and revoked in 2021. The Table of Amendments in the Endnotes states that there are no amendments made to this 2021 version by any subsequent statutory rules, subordinate instruments or Acts. The Amendments Not in Operation section is also empty. Thus the regulation is in its original form. It has a sunset date of 21 September 2031 under the Subordinate Legislation Act 1994. There is no indication of any pending amendments. The regulation was made by the Governor in Council on the recommendation of the responsible minister, as per standard subordinate legislation procedure. The explanatory details note that the 2011 regulations had been amended by the 2014 and 2019 amendments, but the content of those amendments is not revealed.

There is no litigation history disclosed in the regulations themselves. The instrument is a subsidiary statutory rule with no case references, and the endnotes do not mention any judicial decisions. Given the low-level nature of the offences and the relatively obscure sector, it is unlikely that any reported decisions have considered these specific regulations. However, the definitions incorporated from other Acts (such as “mark graffiti” from the Graffiti Prevention Act 2007) have been the subject of litigation in other contexts; that case law would be persuasive in interpreting regulation 11. Similarly, the meaning of “offensive” language in regulation 12 may draw on the extensive case law under the Summary Offences Act 1966 (Vic) or similar provisions regarding offensive behaviour in public. Regulation 14’s “wilfully trespass” element has been interpreted in property law and criminal law cases. But there are no cases that directly interpret these regulations. The litigator should be aware that the absence of litigation history means there is no judicial guidance on ambiguities such as “reasonable time” in regulation 10(2) or what constitutes “interfering with” equipment in regulation 16. Any prosecution or dispute would be a case of first impression on these specific provisions.

Several provisions contain traps for the unwary. First, the registration criteria in regulation 10(1) require an operator to be either an incorporated association or a company limited by guarantee. Unincorporated groups, even if they have been operating for decades, cannot register. Many small volunteer heritage railway societies operate as unincorporated associations; they would need to incorporate to gain the benefits of registration (which may include safety accreditation exemptions or grant eligibility under the Act). The transition provision in regulation 10(2) only assists with plans, not with legal structure.

Second, VicTrack may specify content for business plans, asset conservation plans and marketing strategies (reg 10(3)). This is an open-ended power. If VicTrack imposes detailed or onerous requirements, operators have no statutory right to challenge them in these regulations. The “reasonable time” to complete plans after inclusion in the register is also vague. An operator that includes a plan “under development” may later be found to have taken too long, jeopardising its registration.

Third, the offences apply to everyone - not just operators or employees. A volunteer who uses colourful language within earshot of the public, or a child who throws rubbish on the tracks, can be charged. The term “offensive” in regulation 12 is not defined. What is offensive to a heritage railway enthusiast may differ from what offends a paying visitor. There is no defence of reasonable excuse for language or behaviour - even if the person was provoked or using the language in a private conversation, it could still be an offence.

Fourth, consent for graffiti (reg 11) and for interfering with equipment (reg 16) must be “express”. Oral consent is probably sufficient, but it must be clearly communicated. The owner/occupier/lessee may not be present to give consent. The operator or volunteer cannot rely on a general permission or policy. A volunteer changing a light bulb without specific consent from the lessee could commit an offence under regulation 16, even if they are authorised by the operator.

Fifth, the trespass offence (reg 14) requires that the person “refuse to leave when requested by the owner or occupier” - but only the owner or occupier can make the request. A volunteer station master or guard cannot request a trespasser to leave unless they are the owner/occupier or have delegated authority, which the regulation does not provide. This could impede swift removal of trespassers.

Sixth, the rubbish dumping offence (reg 15) defines “deposit” as “permanently part with possession of a thing”. This excludes temporary dropping or leaving something for later collection. A person who leaves a lunch bag on a bench intending to return for it does not deposit it permanently, so the offence may not apply. This could create enforcement difficulties.

Seventh, the penalty unit value is fixed each financial year and is not stated in the regulations. The Endnotes provide the value for 2021-22 only. A person charged in a later year must ascertain the current value from the Government Gazette. The penalty amounts can increase each year without notice to the accused.

Eighth, the advisory committee composition gives government representatives (Registrar, DJPR nominee, RDV nominee, Transport nominee) a likely majority even if all four operator representatives are appointed. The sector representatives are discretionary (up to one or more), and VicTrack can decline nominations. This structure means the committee’s advice may reflect bureaucratic rather than sector interests. Operators have limited representation.

Ninth, definition of “mainline group” (reg 7(1)(b)) includes operators operating on a railway track that is also used by a passenger transport company. This means if any part of the operator’s track is shared with, say, a V/Line passenger service, the operator falls into the mainline group regardless of whether the heritage train itself ever uses that shared section. This could pull small heritage tramways into the mainline group.

Finally, the sunset provision means the regulations expire on 21 September 2031. If the sector relies on these regulations for safety accreditation or registration under the Act, failure to remake them before that date could leave a regulatory gap. Operators should monitor the remaking process.

For tourist and heritage railway operators seeking to be included on the Tourist and Heritage Railway Group Register, compliance requires the following steps. First, ensure the operator’s legal structure is either an incorporated association under the Associations Incorporation Reform Act 2012 or a company limited by guarantee. If currently operating as an unincorporated association, incorporation is necessary. Second, ensure the operator has a committee, board or governing body (reg 10(1)(b)). Most incorporated associations will already have a committee. Third, adopt a working with children policy (reg 10(1)(c)). This policy does not need to comply with any specified standard in these regulations, but should reflect the requirements of the Worker Screening Act 2020 and other child safety laws. Fourth, prepare a business plan. VicTrack may specify what it must contain (reg 10(3)); contact VicTrack to obtain any template or requirements. Fifth, prepare an asset conservation plan. This is critical for heritage rolling stock and infrastructure. Again, VicTrack may specify content. Sixth, prepare a marketing strategy. If any of these plans are not yet finalised, an operator can still apply for registration if it has commenced drafting the relevant plan and completes it within a reasonable time after inclusion (reg 10(2)). The operator should document the date of commencement and track progress to show “reasonable time” later. The operator must also ensure that for each incorporated association, the name of its public officer or secretary is provided to the Registrar (reg 9(a)); for a company limited by guarantee, the name of its secretary (reg 9(b)). The operator should also consider whether it wishes to participate in the nomination of advisory committee representatives. If so, it must engage with other operators in its group (broad gauge, mainline, narrow gauge, or tramway) to secure majority agreement on a nominee, and ensure the nominee is a member of the operator’s committee/board/governing body (reg 7(2)). Operators who are not part of the four groups can still nominate a sector representative under regulation 7(3), but that nomination is open to any person involved in the sector, not just operators.

For VicTrack, compliance requires following the nomination and appointment procedures in Part 2. VicTrack must seek nominations from each of the four operator groups (reg 7(1)) and from the sector generally (reg 7(3)) before making appointments. It must ensure that the appointed operator and sector representatives collectively have skills in tourist and heritage railway operations, business, conservation, and civil or mechanical engineering (reg 8(3)). It may specify the form of nominations (reg 7(4)). If VicTrack is not satisfied that a nominee meets the skill requirements, it may decline and request another nomination (reg 7(5)). VicTrack must also specify any content required for business plans, asset conservation plans and marketing strategies if it chooses to do so (reg 10(3)). It should publish these requirements to give operators certainty.

For all persons (including volunteers, contractors, and visitors), compliance with Part 4 is straightforward in principle but requires care. Do not mark any graffiti on heritage assets or railway premises without first obtaining the express consent of the owner/custodian/occupier (reg 11). Do not use indecent, obscene, offensive or threatening language (reg 12) - avoid swear words, racial slurs, and aggressive language. Do not behave in an obscene, offensive, threatening, disorderly or riotous manner (reg 13). Do not trespass and, if asked to leave by the owner or occupier, leave immediately (reg 14). Do not deposit any rubbish except in a designated receptacle (reg 15). Do not interfere with any guide-post, bridge hand-rail, sign, notice, light, or other fixture or equipment unless you have express consent from the owner/occupier/lessee (reg 16). Do not damage such fixtures or equipment (reg 17) - note that graffiti is dealt with separately but other damage is covered here. The safest approach is to treat all heritage railway property as requiring authorisation before any alteration or use beyond normal access.

For owners/occupiers/lessees of railway premises, ensure that persons wishing to mark graffiti or interfere with equipment give express consent in writing or clear verbal form. Consider providing signage indicating consent procedures. Also ensure that receptacles for rubbish are clearly provided and adequate.

For legal practitioners advising operators, ensure that the operator’s plans comply with any VicTrack content specifications. Document the “reasonable time” for plan completion in the operator’s minutes. Check that the operator’s legal structure is correct. Review the working with children policy for compliance with other laws. Monitor the sunset date and the remaking process. Advise clients that the offence provisions are strict liability for most and that reliance on implied consent for graffiti or interference is dangerous.