Transport Legislation Amendment (Rail Safety Local …FILE/571273emi… · Web view ·...

Transport Legislation Amendment (Rail Safety Local Operations and Other

Matters) Bill 2013

Introduction Print

EXPLANATORY MEMORANDUM

General Outline

This Bill is a companion proposal to the Rail Safety National Law Application Bill 2013.

Prime purpose

The purpose of the Rail Safety National Law Application Bill is to give effect in Victoria to the national rail safety regulation scheme, including a national rail safety regulator, and a national rail safety investigator as part of the State's intergovernmental obligations.

On the other hand, the prime purpose of the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Bill 2013 is to modify the scope of Victoria's existing rail safety statute—the Rail Safety Act 2006—as a result of Victoria's entry into the national regulation scheme.

Coverage

Some rail operations are local matters which have little or no national strategic or operational importance. Operations in this category include tram and light rail operations which stand-alone from the State's other rail networks. The prime example is Melbourne's light rail and tram system.

Victoria's tram and light rail network is not connected to any national or interstate rail operation. Many tourist and heritage tram operations and heavy railways operating in regional areas of Victoria on dedicated rail lines are in the same position.

571273 BILL LA INTRODUCTION 6/3/20131

These considerations led Victoria to agree with the Commonwealth and other States and Territories to exclude the State's tram and light rail operations and seven tourist and heritage operators that operate on stand-alone lines from the national rail safety scheme and to retain them under local regulation overseen by the Director, Transport Safety or Transport Safety Victoria established under Part 7 of the Transport Integration Act 2010.

General

The prime purpose of the Bill is therefore to confine the scope of the State's Rail Safety Act 2006 to domestic rail operations. A natural consequence of the change is that the Bill renames the Act the Rail Safety (Local Operations) Act 2006 in recognition of its abridged coverage.

A secondary purpose of the Bill is to update Victoria's Rail Safety Act as a result of changes to rail safety regulation negotiated by Victoria and other jurisdictions during the development of the national law. The national law retains and updates the State's existing regulatory framework. While the key features of the local scheme remain unchanged, adjustments and improvements are made to definitions, offences, penalties and other provisions.

A third purpose of the Bill is to make sure that the drug and blood alcohol control provisions in the national law for rail safety workers such as train drivers and signal operators is fused with the drug and alcohol control scheme in Victoria's existing legislation. This is needed so that satisfactory national and local schemes are in place as the national provisions are skeletal and unsatisfactory in this important area. They require extensive supplementation from the State scheme in respect of offences, compliance and enforcement powers and testing requirements in order to set enforceable and workable standards and to maintain proper drug and alcohol controls in the rail industry.

Structure of the Bill

The Bill is divided into 4 parts.

Part 1 deals with formal matters such as purpose, commencement and the identification of the Principal Act amended by the Bill, the Rail Safety Act 2006.

Part 2 contains over one hundred clauses which change Victoria's current statute, the Rail Safety Act 2006. The changes cover much of the ground of the statute and include modifications to interpretative material such as the purpose, objects and definitions, changes to provisions dealing with general duties and accreditation, safety interface agreements, the drug and alcohol management scheme and other matters.

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Part 3 makes consequential changes to the Transport (Compliance and Miscellaneous) Act 1983 to ensure that the terminology in that Act is consistent with the terminology in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Part 4 makes a change to the Bus Safety Act 2009 to enable red tape to be reduced in the bus industry by allowing exemptions to be given to bus operators from accreditation and registration requirements.

Part 5 provides for the repeal of the instrument.

Conclusion

While the Bill is essentially a companion proposal to the Rail Safety National Law Application Bill 2013, it nonetheless makes a mixture of substantive and minor changes which recast the coverage of the Rail Safety Act 2006 and update some of its content.

Many of the changes made by the Bill are technical including those which are of a consequential or transitional nature. Detail on each of the clauses in the Bill is set out in this explanatory memorandum.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purpose of the Bill which is to—

amend the Rail Safety Act 2006—

to facilitate the safe operation of local railways in Victoria to which the Rail Safety National Law (Victoria) does not apply; and

to broadly align the Rail Safety Act 2006 with the Rail Safety National Law (Victoria) to ensure consistency in the regulation of railway operations in Victoria; and

to amend the Bus Safety Act 2009 to provide for a mechanism to exempt operators of bus services from the requirement to be registered or accredited.

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It is noted that while some local operations, including the State's tram and light rail network and seven of the State's tourist and heritage railway operators, will continue to be regulated under the Rail Safety (Local Operations) Act 2006 (as renamed by this Bill), other operations such as Melbourne's metropolitan train operator will transfer to the new national scheme.

Clause 2 provides that Parts 1 and 4 of the Act come into operation on the day after the day on which the Bill receives the Royal Assent.

The remaining provisions come into operation on a day or days to be proclaimed. It is noted that Parts 2 and 3 of the Bill do not have a default commencement date. This is because the commencement of these Parts is aligned with the commencement of the Rail Safety National Law Application Bill 2013. Commencement of that Bill is dependent on a service level agreement and delegations being in place. Although a delay is unlikely an open ended commencement date is necessary and common with national scheme statutes.

PART 2—AMENDMENTS TO THE RAIL SAFETY ACT 2006

Clause 3 provides that in Part 2 of this Bill, the Rail Safety Act 2006 is called the Principal Act.

Clause 4 changes the purpose of the Rail Safety Act 2006 to clarify that the purpose of that Act is now to facilitate the safe operation of local railways in Victoria to which the Rail Safety National Law (Victoria) does not apply.

Clause 5 makes changes to the definitions in section 3 of the Rail Safety Act 2006 to align with the Rail Safety National Law (Victoria).

Clause 5(1)(a) repeals several definitions that are currently contained in section 3(1) of the Rail Safety Act 2006. These definitions are either no longer required, or are not consistent with terminology used in the Rail Safety National Law (Victoria).

For example, the terms rail infrastructure operations and rolling stock operations are being repealed as these terms will be included in the new definition of railway operations adopted from the Rail Safety National Law (Victoria).

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Clause 5(1)(b) inserts the following definitions into the Rail Safety Act 2006—

accredited rail transport operator;

accredited railway operations;

associated railway track structures;

employee;

national regulations, which means the regulations made under section 264 of the Rail Safety National Law (Victoria);

prescribed drug, which has the same meaning as in the Rail Safety National Law (Victoria); that is any of the following substances:

delta-9-tetrahydrocannabinol (cannabis);

Methylamphetamine (Methamphetamine) (speed or ice);

3,4- Methylenedioxymethylamphetamine (MDMA) (ecstasy); and

any other substance declared by the national regulations to be a prescribed drug for the purposes of this section.

prescribed notifiable occurrence has the same meaning as in the national regulations, that is, the following Category A notifiable occurrences—

an accident or incident that has caused death, serious injury or significant property damage;

a running line derailment;

a running line collision between rolling stock;

a collision at a road or pedestrian level crossing between rolling stock and either a road vehicle or a person;

an accident or incident involving a significant failure of a safety management system that could have caused death, serious injury or significant property damage;

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any other accident or incident likely to generate immediate or intense public interest or concern;

rail land;

Rail Track;

rail transport operator;

rail workplace;

railway operations (which replaces the term rail operations);

registered person;

relevant road authority;

road authority;

tourist and heritage railway operator;

works contractor;

works manager.

Clause 5(1)(c) substitutes the definition of corresponding law in the Rail Safety Act 2006.

Clause 5(1)(d) amends the definition of Department in the Rail Safety Act 2006 to reflect that the Department of Infrastructure is now known as the Department of Transport.

Clause 5(1)(e) substitutes the definition of drug in the Rail Safety Act 2006.

Clause 5(1)(f) substitutes the definition of emergency service in the Rail Safety Act 2006.

Clause 5(1)(g) substitutes the definition of prescribed concentration of alcohol in the Rail Safety Act 2006 to have the same meaning as in the Rail Safety National Law (Victoria). That is, that in relation to a rail safety worker, prescribed concentration of alcohol means—

any concentration of alcohol in the blood; or

if some other concentration of alcohol is prescribed in the national regulations (being a specified amount of alcohol in 100 millilitres of blood) for the purposes of this definition—that concentration.

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Clause 5(1)(h) substitutes the definition of public pathway in the Rail Safety Act 2006.

Clause 5(1)(i) substitutes the definition of rail infrastructure in the Rail Safety Act 2006.

Clause 5(1)(j) makes a consequential amendment to the definition of rail safety worker in the Rail Safety Act 2006, to adopt the terminology used in the Rail Safety National Law (Victoria).

Clause 5(1)(k) substitutes the definition of railway premises in the Rail Safety Act 2006.

Clause 5(1)(l) substitutes the definition of Road Rules in the Rail Safety Act 2006.

Clause 5(1)(m) makes consequential amendments to the definition of rolling stock in the Rail Safety Act 2006 to adopt the terminology used in the Rail Safety National Law (Victoria).

Clause 5(1)(n) makes consequential amendments to the definition of safety audit in the Rail Safety Act 2006 to adopt the terminology used in the Rail Safety National Law (Victoria).

Clause 5(2) makes minor amendments to section 3(2) of the Rail Safety Act 2006 to adopt the terminology used in the Rail Safety National Law (Victoria).

Clause 5(3) makes consequential amendments to section 3(3) of the Rail Safety Act 2006 to adopt the terminology used in the Rail Safety National Law (Victoria).



Clause 5(6) makes consequential amendments to the definition of labour-hire contractor in section 3(5) of the Rail Safety Act 2006 to adopt the terminology used in the Rail Safety National Law (Victoria).

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Clause 6 amends section 3B of the Rail Safety Act 2006 to take account of the fact that not all Victorian tourist and heritage railway operators will be regulated under the Rail Safety Act 2006 when the Rail Safety National Law (Victoria) commences, as some have elected to transfer to the new national scheme. The tourist and heritage railway operators who remain under the local scheme may be eligible for an exemption from accreditation as provided by this Bill.

The new exemption process is provided in new Division 5A of Part 5 of the Rail Safety Act 2006 inserted by clause 81 of this Bill.

Clause 7 repeals section 4 of the Rail Safety Act 2006.

This section is repealed as the Rail Safety Act 2006 adopts the definition of drug in the Rail Safety National Law (Victoria). Section 6 of Rail Safety National Law (Victoria) provides that the Ministers may declare a substance to be a drug for the purposes of the Rail Safety National Law (Victoria).

Clause 8 amends section 6 of the Rail Safety Act 2006 to adopt the Rail Safety National Law (Victoria). Section 6 sets out the types of railways to which the Rail Safety Act 2006 does not apply. For example, a railway in an underground mine or a railway operated solely within an amusement or theme park is not covered by the Rail Safety Act 2006 and is regulated under other State laws.

Clause 8(1) substitutes a new section 6(b) of the Rail Safety Act 2006 such that the Rail Safety Act 2006 will now not apply to a railway that—

is used only for the purposes of an amusement structure; and

is operated only within an amusement park; and

does not operate on or cross a public road; and

is not connected with another railway in respect of a rail transport operator which is required to be accredited or registered under this Act.

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Clause 8(3) inserts new section 6(g) into the Rail Safety Act 2006 which provides that the Rail Safety Act 2006 does not apply to a railway to which the Rail Safety National Law (Victoria) applies.

Clause 8(4) inserts new section 6(2) into the Rail Safety Act 2006 which provides a definition of amusement structure for the purposes of that section. The definition mirrors the definition in the Rail Safety National Law (Victoria).

Clause 9 substitutes section 7 of the Rail Safety Act 2006, setting out what is to be considered to be rail safety work for the purposes of the Rail Safety Act 2006. The new definition of rail safety work is consistent with the Rail Safety National Law (Victoria).

Clause 10 makes a consequential amendment to section 9 of the Rail Safety Act 2006 which provides that the Minister may declare an alcohol and drug control law of another State or Territory to be a corresponding law.

The amendment made to section 9 of the Rail Safety Act 2006 enables the Minister to publish an Order in the Government Gazette to declare a law of another State or Territory of the Commonwealth that creates an offence substantially similar to section 77(1).

New section 77(1) is inserted by clause 89 of this Bill and provides for drug and alcohol offences that are not part of the Rail Safety National Law (Victoria), but are an important part of Victorian transport drug and alcohol control legislation.

Clause 11 repeals section 10 of the Rail Safety Act 2006.

Section 10 is being repealed as its effect is already provided in the definition of contravention in section 38 of the Interpretation of Legislation Act 1984 which provides that—

"where a contravention in relation to an Act or subordinate instrument or a provision of an Act or subordinate instrument, includes a failure to comply with the Act or subordinate instrument or provision".

Clause 12 makes consequential amendments to section 11 of the Rail Safety Act 2006 to ensure that the terminology is consistent with the Rail Safety National Law (Victoria).

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Clause 13 substitutes section 11A of the Rail Safety Act 2006 to state that it is the intention of Parliament that the Rail Safety Act 2006 regulates and promotes the safe operation of railways in Victoria in a manner consistent with the new Rail Safety National Law (Victoria). The provision recognises the intention to maintain consistency between State and national rail safety regulation.

Clause 14 inserts new section 12(3) into the Rail Safety Act 2006.

New subsection (3) clarifies that no criminal liability attaches to the Crown itself under the Rail Safety Act 2006, as distinct from its agents, instrumentalities, officers and employees, who are still liable.

Clause 15 makes consequential amendments to section 15 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 15(3) inserts new section 13(1)(c)(iii), which provides that rail safety is also the shared responsibility of other persons who in relation to the transport of freight by railway, load or unload freight on or from rolling stock. This is consistent with the Rail Safety National Law (Victoria).

Clause 16 makes a consequential amendment to section 14 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 17 inserts new paragraph (e) into section 16 of the Rail Safety Act 2006.

New paragraph (e) provides that enforcement of the Rail Safety Act 2006 and the regulations should be undertaken for the purpose of securing compliance with the Rail Safety Act 2006 and the regulations through effective and appropriate compliance and enforcement measures. This is consistent with the existing provision in the Rail Safety Act 2006 but the language is modified to remain consistent with the Rail Safety National Law (Victoria).


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Clause 19 makes a consequential amendment to the heading to Division 1 of Part 3 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 20 Inserts new section 18A into the Rail Safety Act 2006 which sets out principles which apply to rail safety duties. This is consistent with the Rail Safety National Law (Victoria).

New section 18A(1) provides that a duty under the Rail Safety Act 2006 or the regulations cannot be transferred to another person.

New section 18A(2) provides that a person can have more than one duty under the Rail Safety Act 2006 or the regulations by virtue of being in more than one class of duty holder.

New section 18A(3) provides that more than one person can concurrently have the same duty under the Rail Safety Act 2006 or regulations and each duty holder must comply with that duty to the standard required even if another duty holder has the same duty.

New section 18A(4) provides that if more than one person has a duty for the same matter, each person—

retains responsibility for the person's duty in relation to the matter; and

must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter (or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity).


Clause 22 substitutes a new section 20 of the Rail Safety Act 2006 which is consistent with the Rail Safety National Law (Victoria).

New section 20(1) provides that a rail transport operator must ensure, so far as is reasonably practicable, the safety of the operator's railway operations. A penalty of $300 000 or 5 years imprisonment or both applies for a natural person or a penalty of $3 000 000 applies for a body corporate.

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New section 20(2) provides that without limiting subsection (1), a rail transport operator must ensure, so far as is reasonably practicable—

that safe systems for the carrying out of the operator's railway operations are developed and implemented; and

that each rail safety worker who is to perform rail safety work in relation to the operator's railway operations—

is of sufficient good health and fitness to carry out that work safely; and

is competent to undertake that work; and

that rail safety workers do not carry out rail safety work in relation to the operator's rail operations and are not on duty while impaired by alcohol or a drug; and

that rail safety workers who perform rail safety work is relation to the operator's railway operations do not carry out rail safety work while impaired by fatigue or if they may become so impaired; and

the provision of adequate facilities for the safety of persons at railway premises under the operator's control or management; and

the provision of—

such information and instruction to, and training and supervision of, rail safety workers as is necessary to enable those workers to perform rail safety work in relation to the operator's railway operations in a way that is safe; and

such information to rail transport operators and other persons on railway premises under the control or management of the persons to ensure their safety.

New section 20(3) provides that without limiting subsection (1), a rail infrastructure manager must ensure, so far as is reasonably practicable—

the provision or maintenance of rail infrastructure that is safe; and

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that any design, construction, commissioning, use, installation, modification, maintenance, repair or decommissioning of the manager's rail infrastructure is done or carried out in a way that ensures the safety of railway operations; and

that systems and procedures for the scheduling, control and monitoring of railway operations are established and maintained so as to ensure the safety of the manager's railway operations; and

that communications systems and procedures are established and maintained so as to ensure the safety of the manager's railway operations.

New section 20(4) provides that without limiting subsection (1), a rolling stock operator must ensure, so far as is reasonably practicable—

the provision or maintenance of rolling stock that is safe; and

that any design, construction, commissioning, use, modification, maintenance, repair or decommissioning of the operator's rolling stock is done or carried out in a way that ensures safety; and

compliance with the rules and procedures for the scheduling, control and monitoring of rolling stock that have been established by a rail infrastructure manager in relation to the use of the manager's rail infrastructure by the rolling stock operator; and

that equipment, procedures and systems are established and maintained so as to minimise the risks to the safety of the operator's railway operations; and

that arrangements are made for ensuring safety in connection with the use, operation and maintenance of the operator's rolling stock; and

that communications systems and procedures are established and maintained so as to ensure the safety of the operator's railway operations.

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New section 20(5) provides that new section 20 applies to a person (other than a rail transport operator) who carries out railway operations in the same way as it applies to a rail transport operator, but does not apply if the person carries out those operations as a rail safety worker or an employee.

Clause 23 repeals section 21 of the Rail Safety Act 2006. Section 21 sets out the duty of rolling stock operators to ensure the safety of rolling stock operations. This responsibility is provided by new section 20, inserted in the Rail Safety Act 2006 by clause 22.

Clause 24 makes changes to section 22 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 24(1) substitutes a new penalty at the foot of section 22(1), which sets out safety duties for rail contractors. The penalty is $300 000 or imprisonment for 5 years or both in the case of a natural person or $3 000 000 in the case of a body corporate.

Clause 24(2) makes consequential amendments to section 22(2) to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 24(2)(c) substitutes a new penalty at the foot of section 22(2), which sets out safety duties for rail contractors. The penalty is $300 000 or imprisonment for 5 years or both in the case of a natural person or $3 000 000 in the case of a body corporate.

Clause 24(3) makes consequential amendments to section 22(3) to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 25 makes consequential amendments to section 22A of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 26 makes consequential amendments to section 23 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

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Clause 26(2) substitutes a new penalty at the foot of section 23(1), which sets out safety duties for rail safety workers. The new penalty is which is $300 000 or imprisonment for 5 years or both.

Clause 26(3) substitutes a new penalty at the foot of section 23(2), which provides that a rail safety worker must not intentionally or recklessly interfere with or misuse anything provided to them. The new penalty is $300 000 or imprisonment for 5 years or both.

Clause 26(4) substitutes a new penalty at the foot of section 23(3), which provides that a rail safety worker must not wilfully or recklessly place the safety of another person at risk. The new penalty is $300 000 or imprisonment for 5 years or both.

Clause 27 substitutes the penalty at the foot of section 23A(1) of the Rail Safety Act 2006 which sets out the safety duties for persons engaged in loading or unloading goods or freight onto or from rolling stock. The new penalty is $300 000 or imprisonment for 5 years or both for a natural person or $3 000 000 for a body corporate.


Clause 29 substitutes a new section 25(b) of the Rail Safety Act 2006 to make it clear that a safety management system must include risk management provisions.


Clause 30(3) substitutes a new penalty at the foot of section 26, which provides that an accredited rail transport operator must consult before establishing a safety management system is $150 000 for a natural person or $1 500 000 for a body corporate.

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Clause 31(3) substitutes a new penalty at the foot of section 27(1), which provides that an accredited rail transport operator must have a safety management system in place. The new penalty is $150 000 for a natural person or $1 500 000 for a body corporate.


Clause 32(3) substitutes a new penalty at the foot of section 28(1), which provides that an accredited rail transport operator must comply with a safety management system. The new penalty is $150 000 for a natural person or $1 500 000 for a body corporate.

Clause 33 makes a consequential amendment to section 28A of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 34 makes consequential amendments to section 28B of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 34(3)(b) amends section 28B(1) by replacing the reference to "section 63" with a reference to "Division 5A of Part 5 or section 69B".

Division 5A of Part 5 is inserted by clause 81 of this Bill. The Division sets out the process that certain rail transport operators (for example private siding operators or tourist and heritage railway operators) must follow when applying for an exemption from accreditation, as well as the requirements which must be met to obtain an exemption.

New section 69B is inserted by clause 88 of this Bill and provides for exemption from accreditation in respect of certain private sidings.

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The insertion of the new provisions makes current section 63, which provides for accreditation exemptions for private siding operators, redundant and as a consequence it is being repealed by clause 83 of this Bill.

Clause 34(4) inserts new section 28B(5), which provides that a rail transport operator who holds an exemption under Division 5A of Part 5 or section 69B must comply with the system and arrangements established by the rail transport operator under this section. A penalty of $150 000 for a natural person or $1 500 000 for a body corporate applies.

Clause 35 makes a consequential amendment to section 29 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 36 makes consequential amendments to sections 30(1), (2) and (3) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 37 makes a consequential amendment to the heading to Part 4 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).



Clause 40 repeals several definitions in section 33A(1) of the Rail Safety Act 2006.

Clause 40(b) repeals the definitions of rail land, Rail Track, road authority, works contractor and works manager. These definitions have been moved to the general definitions section in section 3 of the Rail Safety Act 2006.

Clause 41 makes consequential changes to section 34 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

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Clause 42 makes changes to section 34A (of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 43 makes consequential amendments to section 34B of the Rail Safety Act to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 43(3) inserts a penalty at the foot of section 34B(1), which provides for safety interface assessments by rail transport operators. The new penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 44 makes consequential amendments to section 34C of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 44(2) inserts a penalty at the foot of section 34C(1), which sets out the process for safety interface assessments by rail infrastructure managers in relation to rail infrastructure and public roadways or pathways. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 45 makes consequential amendments to section 34D of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 45(2) inserts a penalty at the foot of section 34D(1), which provides that a rail infrastructure manager must identify and assess any risks to safety that may arise from rail operations which that rail infrastructure manager is involved in because of the existence or use of any rail or road infrastructure. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 45(4) inserts a penalty at the foot of section 34D(2), which provides that if a rail infrastructure manager is of the opinion that it is necessary to manage identified risks to safety in conjunction with the relevant road authority, the infrastructure

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manager must give the road authority written notice and determine measures to manage the risks. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 45(5) inserts a penalty at the foot of section 34D(3), which provides that if the rail infrastructure manager is of the opinion that risks to safety do not need to be managed in conjunction with the relevant road manager, the rail infrastructure manager must keep a written record of that opinion. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 46 makes consequential amendments to section 34E of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 46(1) replaces the word "road manager" with "road authority" in the heading to section 34E.

Clause 46(2)(a) replaces the words "road manager " with "road authority".

Clause 46(2)(b) replaces the words "rail infrastructure operations" with "railway operations" wherever occurring.

Clause 46(3) inserts a penalty at the foot of section 34E(1), which, provides that a relevant road authority must identify and assess any risks to safety that may arise from the existence or use of any road or rail crossing that is part of the road infrastructure of that public roadway or that is a public pathway because of, or partly because of, rail infrastructure operations. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 47 makes consequential amendments to section 34F of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 47(3) inserts a penalty at the foot of section 34F(1), which provides that if a relevant road authority receives written notice from a rail infrastructure manager that it is necessary to manage risks the rail infrastructure manager has identified that

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may arise from the existence or use of any road or rail crossing that is part of the road infrastructure of that public roadway or that is a public pathway because of, or partly because of, rail infrastructure operations the rail infrastructure manager is carrying out. The penalty is $50 000 for a natural person or $500 000 for a body corporate.

Clause 48 makes consequential amendments to section 34G of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 49 makes consequential amendments to section 34H of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 50 makes consequential amendments to section 34I of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 51 makes consequential amendments to section 34J of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 51(2) substitutes a new penalty at the foot of section 34J(7), which provides that a person who is issued a written direction by the Safety Director regarding the failure of that person to enter into a safety interface agreement must comply with the direction. The new penalty is $20 000 for a natural person or $100 000 for a body corporate.

Clause 52 makes consequential amendments to section 34K of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 52(2) substitutes a new penalty at the foot of section 34K(1) for consistency with the Rail Safety National Law (Victoria). Section 34K(1) provides that a rail transport operator must maintain a register of safety interface agreements to which the rail transport operator is a party and arrangements determined by the Safety Director. The new penalty is $5000 for a natural person or $25 000 for a body corporate applies.

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Clause 53 makes consequential amendments to the heading to Part 5 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).


Clause 55 substitutes a new section 36 of the Rail Safety Act 2006 that is consistent with the Rail Safety National Law (Victoria).

New section 36 provides that a rail transport operator must not carry out railway operations unless the rail transport operator—

is accredited under Part 5 of the Rail Safety Act 2006 in respect of those railway operations; or

holds an exemption granted under Division 5A of Part 5 of the Rail Safety Act 2006; or

is exempted by the regulations from the requirement to be accredited under Part 5.

A penalty of $150 000 for a natural person or $1 500 000 for a body corporate applies.

Clause 56 repeals section 37 of the Rail Safety Act 2006. Section 37 provides that rolling stock operators must not operate rolling stock unless accredited. This is now covered by new section 36 inserted by clause 55 above, as rolling stock operations are covered in the definition of "railway operations".

Clause 57 makes consequential amendments to section 38 of the Rail Safety Act 2006 in order to adopt the terminology used in the Rail Safety National Law (Victoria).


New section 39 provides for criteria on which accreditation applications by rail transport operators are to be assessed.

The Safety Director must accredit a rail transport operator in respect of the railway operations the operator carries out if the Safety Director is satisfied that—

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the rail transport operator—

is accredited in another State or a Territory of the Commonwealth to carry out railway operations of a similar kind in that State or Territory; or

has the competence and capacity to carry out those operations safely; and

the rail transport operator has demonstrated to the Safety Director that—

the rail transport operator has taken all reasonable steps to comply with Division 3; and

the rail transport operator's safety management system complies with Division 4 of Part 3; and

the rail transport operator has complied with section 26; and

the rail transport operator has financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the carrying out of railway operations; and

in the case of a rail transport operator who is a rolling stock operator but is not the rail infrastructure manager who controls the railway on which the rolling stock will be operated—the rail transport operator has an agreement with the rail infrastructure manager who controls the railway on which the operator wishes to operate particular rolling stock, and the agreement includes appropriate arrangements for the safe operation of the rolling stock.

Clause 59 repeals section 40 of the Rail Safety Act 2006. Section 40 provides for the criteria on which accreditation applications by rolling stock operators are to be assessed. This is now covered by new section 39 inserted by clause 58 above, as rolling stock operators are covered by the definition of rail transport operator.


22

Clause 61 makes consequential amendments to section 42(1)(a) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).


Clause 62(2) substitutes a new penalty at the foot of 43(4), which provides that a rail transport operator must comply with a direction to coordinate and cooperate with another applicant on an accreditation application. The new penalty is $20 000 for a natural person or $100 000 for a body corporate.

Clause 62(3) substitutes a new penalty at the foot of 43(5), which provides that a rail transport operator that has coordinated an application must include in the application reference to information given by the operator, or given to, another rail transport operator, in accordance with a direction. The new penalty is $20 000 for a natural person or $100 000 for a body corporate.



Clause 65 makes consequential amendments to section 46B of the Rail Safety Act 2006, which provides for tourist and heritage railway operators to apply for fee exemptions.


Clause 66(2) substitutes a new penalty at the foot of section 48(1), which provides that an accredited rail transport operator must comply with any condition or restriction imposed on the

23

accreditation that the operator has been given notice of. The new penalty is $150 000 for a natural person or $1 500 000 for a body corporate.

Clause 67 repeals section 49 of the Rail Safety Act 2006. Section 49 applies risk management requirements to applicants for accreditation. The section is being repealed, as it is intended that risk management requirements are to apply generally, not just to accredited rail transport operators.


New section 50 provides that—

A rail transport operator must—

identify all incidents which could occur while carrying out any railway operations in respect of which the operator is accredited; and

identify all hazards that could cause, or contribute to causing, those incidents.

A rail transport operator must document all aspects of any identification required by subsection (1), including the methods and criteria used for identifying the incidents and hazards.

A rail transport operator must conduct a comprehensive and systematic assessment in relation to all possible incidents and all hazards identified in accordance with subsection (1).

An assessment must involve an examination and analysis of the hazards and incidents identified so as to provide the rail transport operator with a detailed understanding of all aspects of risk to safety associated with the incidents, including—

the nature of each hazard and incident; and

the likelihood of each hazard causing an incident; and

24

in the event of an incident occurring—

its magnitude; and

the severity of its consequences of the incident; and

the range of control measures considered to eliminate or minimise the risk to safety.

In conducting an assessment, the rail transport operator must—

consider hazards cumulatively as well as individually; and

use assessment methodologies (whether quantitative or qualitative, or both) that are appropriate to the hazards being considered.

The rail transport operator must document all aspects of the assessment, including—

the incidents and hazards considered; and

the likelihood and severity of consequences; and

the range of control measures considered, including—

statements as to their viability and effectiveness; and

reasons for selecting certain control measures and rejecting others.

Clause 69 makes consequential amendments to section 51 of the Rail Safety Act 2006 for consistency with the Rail Safety National Law (Victoria).

Clause 70 substitutes a new section 52(1) and (2) of the Rail Safety Act 2006 which is consistent with the Rail Safety National Law (Victoria).

New section 52(1) provides that a rail transport operator must prepare an emergency plan for—

any rail infrastructure that the operator controls; and

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any railway operations the operator carries out.



Clause 73 makes a consequential amendment to the heading to section 54A of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 74 makes a consequential amendment to section 54B of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 75 makes consequential amendments to section 55 of the Rail Safety Act 2006.

Clause 75(1)(a) corrects a typographical error in the heading to section 55 by inserting the word "of" after the word "conditions".

Clause 75(1)(b) corrects a typographical error in the heading to section 55 by replacing the words "restrictions of" with the words "restrictions on".

Clause 75(2) corrects a typographical error in section 55(1)(a) by replacing the words "condition or restriction of" with the words "condition of or restriction on".

Clause 75(3) corrects a typographical error in section 55(4)(a)(ii) by replacing the words "conditions or restrictions of" with the words "conditions or restrictions on".


Clause 77 substitutes a new penalty at the foot of section 57(1) of the Rail Safety Act 2006, which provides that a person must not provide false or misleading information in an application.

26

The new penalty is $20 000 for a natural person or $100 000 for a body corporate consistent with the Rail Safety National Law (Victoria).

Clause 78 makes a consequential amendment to section 58(4) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 79 makes consequential amendments to section 59 of the Rail Safety Act 2006 to adopt terminology that is used in the Rail Safety National Law (Victoria).

Clause 80 Inserts new Division 5A of Part 5 (sections 61A to 61K) into the Rail Safety Act 2006.

New Division 5A sets out the process that must be followed in the case of rail transport operators who wish to apply to the Safety Director for an exemption from a designated part of that Act.

An example of a rail transport operator who may be eligible for an exemption is a tourist and heritage railway operator or a private siding operator.

New section 61A defines designated provision or the provisions in the Rail Safety Act 2006 from which a rail transport operator may apply for an exemption. The designated provisions are—

Division 4 of Part 3 (safety management systems);

Divisions 1 to 4 of Part 5 (accreditation, risk management requirements and variation and surrender of accreditation); and

regulations made under the Act for the purposes of Division 4 of Part 3 or Divisions 1 to 4 of Part 5).

New section 61B provides that rail transport operators may apply to the Safety Director for an exemption and provides details of the form that an application must take.

New section 61B(1) provides that a rail transport operator may apply to the Safety Director for an exemption from a designated provision of this Act or any regulations made for the purposes of those Divisions in respect of specified railway operations carried out, or proposed to be carried out, by or on behalf of the operator.

27

New section 61B(2) provides that an application must be made in the manner and form approved by the Safety Director and—

must specify the scope and nature of the railway operations in respect of which an exemption is sought; and

if the railway operations include the operation or movement of rolling stock on a railway—must include details about the operation or movement of rolling stock; and

must contain any prescribed information; and

must be accompanied by the prescribed application fee (if any).

New section 61B(3) provides that the Safety Director may require a rail transport operator who has applied for an exemption—

to supply further information requested by the Safety Director; and

to verify by statutory declaration any information supplied to the Safety Director.

New section 61C provides that the Safety Director must not grant an exemption to an applicant unless satisfied that the applicant has demonstrated—

that the applicant is, or is to be, a tourist and heritage railway operator, rail infrastructure manager or rolling stock operator in relation to the railway operations in respect of which the exemption is sought; and

that the applicant—

has the financial capacity, or has public risk insurance arrangements, to meet reasonable potential accident liabilities arising from the railway operations; and

has complied with the requirements prescribed by the regulations (if any) for the purposes of this new section.

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New section 61D provides for the determination of an application for exemption by the Safety Director.

New section 61D(1) provides that subject to this section, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in new section 61C—notify the applicant that an exemption from a designated provision of this Act or the regulations has been granted, with or without conditions or restrictions; or

if the Safety Director is not satisfied as to the matters referred to in new section 61C—notify the applicant that the application has been refused.

New section 61D(2) provides that an exemption under Division 5A is subject to—

any conditions or restrictions prescribed by the regulations for the purposes of this section that are applicable to the exemption; and

any other condition or restriction imposed on the exemption by the Safety Director.

New section 61D(3) provides that notification under this section—

must be in writing and given to the applicant; and

if the exemption has been granted, must specify—

the details of the applicant; and

the scope and nature of the railway operations, and the manner in which they are to be carried out, in respect of which the exemption is granted; and

any condition or restriction imposed by the Safety Director under this section on the exemption; and

any other prescribed information; and

29

if a condition or restriction has been imposed on the exemption, must include—

the reasons for imposing the condition or restriction; and

information about the right of review under Part 7; and

if the application has been refused must include—

the reasons for the decision to refuse to grant the application; and


if the relevant period in relation to an application has been extended, must include information about the right of review under Part 7.

New section 61D(4) provides that in this section, relevant period, in relation to an application, means—

6 months after the application was received by the Safety Director; or

if the Safety Director requested further information, 6 months, or such other period, as is agreed between the Safety Director and the applicant, after the Safety Director receives the last information so requested; or

if the Safety Director, by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period—

whichever is the longer.

New section 61E sets out the process which must be followed by a rail transport operator who wishes to apply for a variation of an exemption.

New section 61E(1) provides that a rail transport operator who has been granted an exemption under new Division 5A may, at any time, apply to the Safety Director for a variation of the exemption.

New section 61E(2) provides that a rail transport operator who has been granted an exemption under new Division 5A must apply to the Safety Director for a variation of the exemption if—

30

the applicant proposes to vary the scope and nature of the railway operations in respect of which the exemption has been granted; or

any other variation is proposed in respect of the railway operations in respect of which the exemption has been granted that should be reflected in the exemption.

New section 61E(3) provides that an application for variation must be made in the manner and form approved by the Safety Director and—

must specify the details of the variation being sought; and



New section 61E(4) provides that the Safety Director may require an applicant for a variation—



New section 61F sets out the process of the determination of an application for variation by the Safety Director.

New section 61F(1) provides that subject to this section, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in section 61C (so far as they are applicable to the proposed variation)—notify the applicant that the exemption has been varied, with or without conditions or restrictions; or

if the Safety Director is not so satisfied—notify the applicant that the application has been refused.

New section 61F(2) states that notification under this section—


if the exemption has been varied, must specify—

31


the variation to the exemption so far as it applies to the scope and nature of the railway operations, or the manner in which they are to be carried out; and

any conditions and restrictions imposed by the Safety Director on the exemption as varied; and


if a condition or restriction has been imposed on the exemption as varied, must include—







New section 61F(3) provides that in new section 61F, relevant period, in relation to an application, means—





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New section 61G provides that an exemption granted to a rail transport operator that is varied under Division 5A of Part 5 is subject to any conditions or restrictions prescribed by the regulations that are applicable to the exemption as varied.

New section 61H provides for the application for a variation of conditions and restrictions on an exemption.

New section 61H(1) provides that a rail transport operator who has been granted an exemption under new Division 5A may, at any time, apply to the Safety Director for a variation of a condition or restriction imposed by the Safety Director to which the exemption is subject.

New section 61H(2) provides that an application for variation of a condition or restriction must be made as if it were an application for variation of an exemption under section 61E.

New section 61H(3) provides that the Safety Director must consider the application and, if satisfied as to the matters referred to in section 61C and 61D (so far as they are applicable to the proposed variation), notify the applicant in accordance with the provisions of new Division 5A applicable to the granting of an exemption (so far as is practicable) that the variation has been granted or refused.

New section 61H(4) states that notification under subsection (3) that a variation has been refused must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 7.

New section 61I states that the Safety Director may make changes to conditions or restrictions of an exemption.

New section 61I(1) provides that the Safety Director may, subject to this section, at any time, vary or revoke a condition or restriction imposed by the Safety Director on an exemption granted to a rail transport operator under this Division or impose a new condition or restriction.

New section 61I(2) provides that before taking action under this section, the Safety Director must—

give the rail transport operator written notice of the action that the Safety Director proposes to take; and

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allow the operator to make written representations about the intended action within 28 days (or any other period that the Safety Director and the operator agree on); and

consider any representations made under paragraph (b) and not withdrawn.

New section 61I(3) provides that the Safety Director must, by written notice given to the rail transport operator, provide—

details of any action taken under this section; and

a statement of reasons for any action taken under this section; and

information about the right of review under Part 7.

New section 61J sets out the process to be followed if the Safety Director decides to revoke or suspend an exemption.

New section 61J(1) provides that this section applies to a rail transport operator who has been granted an exemption under this Division if—

the Safety Director considers that the operator—

is no longer able to demonstrate to the satisfaction of the Safety Director the matters referred to in section 61C or to satisfy the conditions, or to comply with the restrictions, of the exemption; or

is not managing the rail infrastructure, or is not operating rolling stock in relation to any rail infrastructure, to which the exemption relates and has not done so for at least the preceding 12 months; or

the operator contravenes the Rail Safety (Local Operations) Act 2006 or regulations made under that Act.

New section 61J(2) provides that the Safety Director may—

suspend the exemption for a period determined by the Safety Director; or

34

revoke the exemption with immediate effect or with effect from a specified future date; or

impose conditions or restrictions on the exemption; or

vary conditions or restrictions to which the exemption is subject.

New section 61J(3) provides that before making a decision under section 61J(2), the Safety Director—

must notify the rail transport operator in writing—

that the Safety Director is considering making a decision under subsection (2) of the kind, and for the reasons, specified in the notice; and

that the person may, within 28 days or such longer period as is specified in the notice, make written representations to the Safety Director showing cause why the decision should not be made; and

must consider any representations made under paragraph (a)(ii) and not withdrawn.

New section 61J(4) provides that if the Safety Director suspends or revokes the exemption, the Safety Director must include in the notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 7.

New section 61J(5) provides that the Safety Director may withdraw a suspension of the exemption by written notice given to the rail transport operator.

New section 61K sets out the penalty for breach of a condition or restriction of an exemption under new Division 5A of Part 5. A penalty of $20 000 for a natural person or $100 000 for a body corporate applies.

Clause 81 amends the heading of Division 6 to Part 5 to "Miscellaneous provisions regarding accreditation", as the Division only relates to accreditation.

Clause 82 makes a consequential amendment to section 62A(1) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

35

Clause 83 repeals sections 63 to 66 of the Rail Safety Act 2006. These provisions are redundant as they relate to accreditation exemptions, which are now covered in new Division 5A of Part 5 to the Act.


Clause 85 makes consequential amendments to section 68 of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria.

Clause 85(3) substitutes a new penalty at the foot of section 68(1) of the Rail Safety Act 2006, which provides that an accredited rail transport operator who has prepared an emergency plan must put the emergency plan into effect without delay if a major incident occurs or an incident occurs which could reasonably be expected to lead to a major incident. The new penalty is $50 000 for a natural person or $500 000 for a body corporate.


Clause 86(3) substitutes a new the penalty at the foot of section 69(1) of the Rail Safety Act 2006, which provides that an accredited rail transport operator must, immediately after becoming aware of the occurrence of a major incident notify the relevant emergency services, the Safety Director and the Chief Investigator, Transport Safety of the occurrence of that incident. The new penalty is $20 000 for a natural person or $100 000 for a body corporate.

Clause 87 makes consequential amendments to section 69A of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria) and to make the penalties for offences

36

the same as the penalty for equivalent offences in the Rail Safety National Law (Victoria).

Clause 87(3) substitutes a new the penalty at the foot of section 69A(2) of the Rail Safety Act 2006, which provides that, an accredited rail transport operator must comply with a notice given to that operator by the Safety Director. The new penalty is $10 000 for a natural person or $50 000 for a body corporate.

Clause 87(4) substitutes a new penalty at the foot of section 69A(3), which provides that an accredited rail transport operator must provide to the Safety Director certain information prescribed by regulations. The new penalty is $10 000 for a natural person or $50 000 for a body corporate.

Clause 88 Inserts new Division 7 (new sections 69B to 69R) into Part 5 of the Rail Safety Act 2006. The new Division sets out the process of registration of rail transport operators of private sidings and is similar to the process in the Rail Safety National Law (Victoria).

New section 69B provides that a rail transport operator of a private siding is not required to be accredited under Part 5 in respect of railway operations (other than those involving the operation of rolling stock) carried out in the private siding.

New section 69C(1) provides that a rail transport operator of a private siding that is to be (or continue to be) connected with, or to have access to, a railway of an accredited rail transport operator or another private siding, must be registered in respect of the private siding in accordance with Division 7 of Part 5. A penalty of $20 000 for a natural person and $100 000 for a body corporate applies

New section 69C(2) provides that a rail transport operator of a private siding that is to be (or continue to be) connected with, or to have access to, a railway of an accredited person or another private siding must—

comply with the requirements of Division 2 of Part 4 so far as they are relevant to the railway operations carried out in the private siding; and

seek to enter into a safety interface agreement with the accredited rail transport operator or rail transport operator of the other private siding (as the case may be).

37

A penalty of $20 000 for a natural person or $100 000 for a body corporate applies.

New section 69D sets out the process of applying for the registration of a private siding.

New section 69D(1) provides that a rail transport operator of a private siding to which new section 69C above applies may apply to the Safety Director for registration in respect of the private siding.

New section 69D(2) provides that the application must be made in the manner and form approved by the Safety Director and must contain—

details about the scale and complexity of the private siding; and

details about the extent of the railway track layout and other rail infrastructure of the private siding; and

details about the railway operations to be carried out in the private siding; and

if the private siding is to be (or continue to be) connected with, or to have access to—

a railway of an accredited person—the prescribed details about the railway and the accredited person; or

another private siding—the prescribed details about that siding and the rail infrastructure manager of that siding; and


New section 69D(3) provides that an application for registration must be accompanied by the prescribed application fee.

New section 69D(4) provides that the Safety Director may require an applicant for registration—


38


New section 69E sets out what an applicant for registration of a private siding must demonstrate. The Safety Director must not grant registration to an applicant unless satisfied the applicant has demonstrated—

that the applicant is, or is to be, the rail transport operator of the private siding; and

that the railway operations to be carried out (or continue to be carried out) in the private siding are such that registration of the applicant (rather than accreditation of the applicant in respect of the railway operations) is, in the opinion of the Safety Director, the appropriate action; and

that the applicant has complied with the requirements prescribed by the regulations (if any) for the purposes of this section.

New section 69F provides for the determination of an application for registration by the Safety Director.

New section 69F(1) provides that subject to this section, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in section 69E—notify the applicant that registration has been granted, with or without conditions or restrictions; or


New section 69F(2) provides that registration is subject to—

any conditions or restrictions prescribed by the regulation for the purposes of this section; and

any other condition or restriction imposed on the registration by the Safety Director.

New section 69F(3) provides that notification under this section—


if registration has been granted, must specify—

39

the prescribed details of the applicant; and

the prescribed details of the private siding; and

any conditions and restrictions imposed by the Safety Director on the registration; and


if a condition or restriction has been imposed on the registration, must include—



if the application has been refused, must include—



if the relevant period in relation to the application has been extended, must include information about the right of review under Part 7.

New section 69F(4) provides that in section 69F, relevant period, in relation to an application, means—





New section 69G provides for application for variation of registration.

40

New section 69G(1) provides that a registered person may, at any time, apply to the Safety Director for a variation of the registration.

New section 69G(2) provides that a registered person must apply to the Safety Director for a variation of the registration if—

the applicant proposes to vary the scale and complexity of the private siding in respect of which the applicant is registered; or

the applicant proposes to vary the railway operations to be carried out in the private siding in respect of which the applicant is registered; or

any other variation is proposed in relation to the private siding in respect of which the applicant is registered that should be reflected in the registration.

New section 69G(3) provides that an application for variation must be made in the manner and form approved by the Safety Director and—


must contain the prescribed information; and

must be accompanied by the prescribed application fee.

New section 69G(4) provides that the Safety Director may require a registered person who has applied for a variation under section 69G—



New section 69H sets out the process of determination of application for variation to registration.

New section 69H(1) provides that subject to section 69H, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in section 69E (so far as they are applicable to the proposed variation), notify the applicant that

41

registration has been varied, with or without conditions or restrictions; or


New section 69H(2) provides that a notification under section 69H—


if registration has been varied, must specify—

the prescribed details of the applicant; and

the variation to the registration; and

any conditions and restrictions imposed by the Safety Director on the registration as varied; and


if a condition or restriction has been imposed on the registration as varied, must include—







New section 69H(3) provides that in section 69H, relevant period, in relation to an application, means—


if the Safety Director requested further information, 6 months, or such other period, as is agreed between

42

the Safety Director and the applicant, after the Safety Director receives the last information so requested; or

if the Safety Director , by written notice given to the applicant before the expiry of the relevant 6 months, specifies another period, that period—


New section 69I provides that registration of a person that is varied under Division 7 of Part 5 is subject to any conditions or restrictions prescribed by the regulations that are applicable to the registration as varied.

New section 69J provides for application for variation of conditions and restrictions of registration.

New section 69J(1) provides that a registered person may, at any time, apply to the Safety Director for a variation of a condition or restriction imposed by the Safety Director to which the registration is subject.

New section 69J(2) provides that an application for variation of a condition or restriction must be made as if it were an application for variation of registration (and section 69G applies accordingly).

New section 69J(3) provides that the Safety Director must consider the application and, if satisfied as to the matters referred to in section 69E (so far as they are applicable to the proposed variation), notify the registered person in accordance with the provisions of this Division applicable to a grant of registration (so far as is practicable), that the variation has been granted or refused.

New section 69J(4) provides that a notification under subsection (3) that a variation has been refused must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 7.

New section 69K provides that the Safety Director may make changes to conditions or restrictions on registration of private siding operators.

New section 69K(1) provides that Safety Director may, subject to this section, at any time, vary or revoke a condition or restriction imposed by the Safety Director to which the

43

registration of a registered person is subject or impose a new condition or restriction.

New section 69K(2) provides that before taking action under this section, the Safety Director must—

give the registered person written notice of the action that the Safety Director proposes to take; and

allow the registered person to make written representations about the intended action within 28 days (or any other period that the Safety Director and the registered person agree on); and


New section 69K(3) provides that new section 69K(2) above does not apply if the Safety Director considers it necessary to take immediate action in the interests of safety.

New section 69K(4) provides that the Safety Director must, by written notice given to the registered person, provide—

details of any action taken under subsection (1); and

a statement of reasons for any action taken under subsection (1); and


New section 69L sets out the process for revocation or suspension of registration by the Safety Director.

New section 69L(1) provides that this section applies in respect of a registered person if—

the Safety Director considers that the registered person—

is no longer able to demonstrate to the satisfaction of the Safety Director the matters referred to in section 69E or to satisfy the conditions, or to comply with the restrictions, of the registration; or

is not controlling or managing the private siding and has not done so for at least the preceding 12 months; or

44

the registered person contravenes this Act.

New section 69L(2) provides that the Safety Director may—

suspend the registration of the registered person for a period determined by the Safety Director; or

revoke the registration of the registered person with immediate effect or with effect from a specified future date; or

impose conditions or restrictions on the registration; or

vary conditions or restrictions to which the registration is subject.

New section 69L(3) provides that before making a decision under section 69L(2) above, the Safety Director—

must notify the person in writing—

that the Safety Director is considering making a decision under section 69L(2) of the kind, and for the reasons, specified in the notice; and



New section 69L(4) provides that if the Safety Director suspends or revokes the registration of the registered person, the Safety Director must include in the notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 7.

New section 69L(5) states that the Safety Director may withdraw a suspension of the registration of a person by means of written notice given to the person.

New section 69M sets out the process for the immediate suspension of registration of a private siding by the Safety Director.

New section 69M(1) provides that if the Safety Director considers that there is, or would be, an immediate and serious

45

risk to safety unless a registration is suspended immediately, the Safety Director may, without complying with the requirements of section 69L(3) or (4), by written notice given to the registered person, immediately suspend the registration of the person for a specified period, not exceeding 6 weeks.

New section 69M(2) provides that the Safety Director may, by written notice given to a person whose registration is suspended—

reduce the period of suspension specified in a notice under section 69M(1); or

extend the period of suspension specified in a notice under section 69M(1) but not so that the suspension continues for more than 6 weeks after the date of the notice under that subsection.

New section 69M(3) provides that the Safety Director may withdraw a suspension of the registration of a person by written notice given to the person.

New section 69M(4) provides that before making a decision under section 69M(2)(b) to extend a period of suspension, the Safety Director—

must notify the person in writing—

that the Safety Director is considering extending the period of suspension for the reasons specified in the notification; and

that the person may, within 7 days or such longer period as is specified in the notification, make written representations to the Safety Director showing cause why the suspension should not be extended; and


New section 69M(5) provides that if the Safety Director extends the suspension of the person, the Safety Director must notify the person in writing that the suspension is being extended and include in the notice the reasons for the extension and information about the right of review under Part 7.

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New section 69N sets out the process for the surrender of accreditation by rail transport operators of private sidings.

New section 69N(1) provides that registration may only be in accordance with section 69N.

New section 69N(2) provides that if a registered person intends to surrender registration, the registered person must—

give the Safety Director written notice of the intention to surrender the registration; and

provide the Safety Director with details as to the arrangements proposed in relation to the cessation of the person's railway operations in respect of the private siding.

New section 69N(3) provides that if the Safety Director is satisfied as to the arrangements proposed in relation to the cessation of the registered person's railway operations, the Safety Director must, as soon as reasonably practicable, by written notice given to the person, inform the person that the person's registration may be surrendered in accordance with the proposed arrangements on the date specified in the notice.

New section 69N(4) provides that if the Safety Director is not satisfied as to the arrangements proposed in relation to the cessation of the registered person's railway operations, the Safety Director must, as soon as reasonably practicable, by written notice given to the person, inform the person—

that the Safety Director is not satisfied as to the proposed arrangements; and

of the reasons for the Safety Director's dissatisfaction; and

that the person's registration may not be surrendered until the Safety Director is satisfied as to the proposed arrangements.

New section 69O sets out the process for the payment of annual fees by a registered person.

New section 69O(1) states that a registered person must pay the annual fee prescribed by the regulations.

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New section 69O(2) provides that the annual fee must be paid by a registered person at the time registration is granted and thereafter on an annual basis on or before the prescribed date.

New section 69O(3) provides that the Safety Director may accept payment of an annual fee in accordance with an agreement (that provides, for example, for the payment of fees by instalments) made with the person who is liable to pay the fee.

New section 69O(4) sets out what may be included in the regulations such as—

fix different fees for different kinds of registration; and

fix various methods for the calculation of various fees; and

fix fees which may be differential, varying according to any factor determined by the Regulator; and

impose additional fees for the late payment of fees under this section.

New section 69P provides that the Safety Director may waive, or refund, the whole or part of any fee payable under new Division 7 of Part 5.

New section 69Q states that registration cannot be transferred or assigned.

New section 69Q(1) provides that registration—

is personal to the person who holds it; and

is not capable of being transferred or assigned to any other person or otherwise dealt with by the person who holds it; and

does not vest by operation of law in any other person.

New section 69Q(2) provides that (2) a purported transfer or assignment of a registration or any other purported dealing with a registration by the person who holds it is of no effect.

New section 69Q(3) provides that this section has effect despite anything in this Act, an Act or a rule of law to the contrary.

New section 69R makes provision for offences relating to registration.

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New section 69R(1) provides that a registered person must not contravene a condition or restriction of the registration. A penalty of $50 000 for a natural person or $500 000 for a body corporate applies.

New section 69R(2) provides that a registered person must ensure that the notice of registration, and any other document prescribed by the regulations for the purposes of this section, is available for inspection—

if the person is a body corporate—at the person's registered office during ordinary business hours;

if the person is not a body corporate—at the person's principal place of business during ordinary business hours (or, if the Safety Director approves another place and time, at that place and time).

A penalty of $5000 for a natural person or $25 000 for a body corporate applies.

New section 69R(3) provides that a person who is required under new section 69R(2) to make available documents for inspection must maintain a register of those documents. A penalty of $5000 for a natural person or $25 000 for a body corporate applies.

Clause 89 replaces Part 6 of the Rail Safety Act 2006.

The new Part 6 aligns the drug and alcohol provisions in the local law with the relevant provisions in the Rail Safety National Law (Victoria). Along with the provisions in the Rail Safety National Law (Victoria), as adopted by the Rail Safety National Law Application Bill 2013 this new Part also forms part of the National Law in this State. The change is needed as the national provisions are skeletal and require extensive supplementation from the State scheme in respect of offences, compliance and enforcement powers and testing requirements in order to set enforceable and workable standards and to maintain appropriate drug and alcohol controls in the rail industry.

New Division 1 of Part 6 (new sections 70 to 86L) sets out Preliminary matters.

New clause 70 defines terms used in Part 6 of the Rail Safety Act 2006.

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assessment of drug impairment means an assessment under new sections 86B and 86C of the Act. New sections 86B and 86C set out the procedures for drug impairment assessments.

breath analysing instrument means a breath analysing instrument within the meaning of the Road Safety Act 1986.

breath analysis means an analysis of breath by a breath analysing instrument.

drug screening test means a test by means of a device prescribed for the purpose of conducting drug screening tests. This term comes from South Australian legislation upon which the Rail Safety National Law (Victoria) is based. It currently is not defined in Victorian legislation, but for the sake of consistency will need to be used. The device prescribed in regulations will be a device used in Victoria.

oral fluid analysis means an analysis of oral fluid by means of a device prescribed for the purpose of conducting oral fluid analyses. This term comes from South Australian legislation upon which the Rail Safety National Law (Victoria) is based. It currently is not defined in Victorian legislation, but for the sake of consistency will need to be used. The device prescribed in regulations will be a device used in Victoria.

police officer means a member of the police force.

New section 71 provides for presumptions in relation to the presence of concentrations of alcohol and other drugs. The new provisions contain presumptions to be made where a certain concentration of alcohol or drugs is found to be present in a person's blood, breath, body or oral fluid within a certain time after an alleged offence, unless the contrary is proved.

New section 71(1) states that for the purposes of Part 6, if it is established that at any time within 3 hours after an alleged offence against section 76(1)(a) or (c) or 77(1)(a), a certain concentration of alcohol was present in the blood or breath of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the worker's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed.

New section 71(2) provides that for the purposes of Part 6, if it is established that at any time within 3 hours after an alleged

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offence against section 76(1)(b), a certain drug was present in the oral fluid or blood of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the worker's oral fluid or blood at the time at which the offence is alleged to have been committed.

New section 71(3) provides that for the purposes of Part 6, if it is established that at any time within 3 hours after an alleged offence against section 76(1)(c) or 77(1)(b), a certain drug was present in the body of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that the drug was present in the worker's body at the time at which the offence is alleged to have been committed.

New section 71(4) provides that for the purposes of an alleged offence against section 77(1)(f) or (g) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the rail safety worker charged or found by an analyst to be present in the sample of blood taken from the worker charged (as the case requires) was not due solely to the consumption of alcohol after having carried out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

New section 71(5) provides that for the purposes of an alleged offence against section 76(1)(b) or (c) or section 77(1)(b) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid taken from the rail safety worker charged was not due solely to the consumption or use of that drug after carrying out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

New section 72 provides that for the purposes of sections 86B to 86D, a rail safety worker is not to be taken to be impaired unless his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to carry out rail safety work properly.

New section 73 provides that for the purposes of Part 6, a rail safety worker is to be regarded as being about to carry out rail

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safety work if the worker has arrived at his or her place of work but has not yet begun work.

New section 74 provides that if a rail safety worker who is found guilty or convicted of an offence against any one of the paragraphs of section 76(1) or 77(1) or against those sections has at any time been found guilty or convicted of—

an offence against the same or any other of those paragraphs or against either of those sections; or

an offence against any corresponding law—

the finding of guilt, or conviction, of the offence against that paragraph or section is to be taken to be a conviction for a subsequent offence.

New section 75 provides that entry into residential premises by transport safety officers or police officers is restricted, as follows:

Despite anything else in Part 6 of the Rail Safety (Local Operations) Act or Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983, the powers of transport safety officers under this Part or Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 or a police officer in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except—

with the consent of the person with control or management of the place; or

under the authority conferred by a search warrant; or

for the sole purpose of gaining access to suspected railway premises, but only—

if the officer reasonably believes that no reasonable alternative access is available; and

at a reasonable time, having regard to the times at which the officer believes rail safety work is being carried out at the place to which access is sought.

Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 provides for enforcement of relevant transport safety laws, across the entire transport portfolio.

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New Division 2 to Part 6 of the Rail Safety Act 2006 provides for offences and related evidentiary matters.

New section 76 mirrors section 128 of the Rail Safety National Law (Victoria). It provides for the offence relating to prescribed concentration of alcohol or prescribed drugs. The prescribed concentration of alcohol for rail safety workers is zero. The prescribed drugs are methylamphetamine (speed or ice), 3, 4-Methylenedioxy-N-Methylamphetamine (MDMA) (ecstasy) and delta-9-tetrahydrocannabinol (cannabis).

New section 76(1) provides that a rail safety worker must not carry out, or attempt to carry out, rail safety work—

while there is present in his or her blood the prescribed concentration of alcohol; or

while a prescribed drug is present in his or her oral fluid or blood; or

while so much under the influence of alcohol or a drug as to be incapable of effectively discharging a function or duty of a rail safety worker.

A penalty of $10 000 applies.

New section 76(2) provides that for the purposes of subsection (1)(c), a person is incapable of effectively discharging a function or duty of a rail safety worker if, owing to the influence of alcohol or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired (but this subsection does not restrict in any way the operation of subsection (1)(c)).

New section 76(2) provides that subject to subsection (4), it is a defence to a charge of an offence against subsection (1)(b) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.

New section 76(4) provides that subsection (3) does not apply if the defendant consumed the prescribed drug believing that he or she was consuming a substance unlawfully but was mistaken as to, unaware of, or indifferent to, the identity of the prescribed drug.

New section 77 sets out additional offences involving alcohol and drugs, which are not part of the Rail Safety National Law (Victoria), but which are contained in all other Victorian transport drug and alcohol schemes.

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New section 77(1) provides that a rail safety worker is guilty of an offence if he or she—

carries out rail safety work while more than the prescribed concentration of alcohol is present in his or her breath; or

carries out rail safety work while impaired by a drug; or

refuses or fails to comply with a direction under section 85(10)(a request to allow a registered medical practitioner or approved health professional to take a sample of blood); or

refuses to undergo an assessment of drug impairment in accordance with sections 86B and 86C when required under that section to do so or refuses to comply with any other requirement made under section 86B(1) (submit to an assessment of drug impairment upon requires by a transport safety officer or police officer); or

refuses to comply with a requirement made under section 86D(2) (allow a registered medical practitioner or approved health professional to take a sample of blood for analysis); or

within 3 hours after having carried out rail safety work furnishes a sample of breath for analysis by a breath analysing instrument under a direction under section 85 (request to submit for a breath analysis) and—

the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her breath; and

the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after having carried out the rail safety work; or

has had a sample of blood taken from him or her in accordance with section 86H within 3 hours after having carried out rail safety work and—

the sample has been analysed within 12 months after it was taken by a properly qualified analyst

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within the meaning of section 86I and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample; and

the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after having carried out the rail safety work.

New section 77(2) provides that a rail safety worker who is guilty of an offence under subsection (1) is liable to a fine not exceeding $10 000.

New section 77(3) provides that it is a defence to a charge under subsection (1)(f) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.

New section 77(4) provides that it is a defence to a charge under subsection (1)(g) for the person charged to prove that the result of the analysis was not a correct result.

New section 78 provides for additional circumstances where rail safety workers may be convicted or found guilty. A rail safety worker may be convicted or found guilty of an offence under section 83(3), 77(1)(d) or 86A(3) even if—

in the case of an offence under section 83(3) constituted by a failure to submit to a preliminary breath test or breath analysis—

a breath analysing instrument was not available at the place where the requirement was made at the time it was made; or

a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made;

in the case of an offence under section 86A(3) constituted by a failure to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these)—

the transport safety officer or police officer requiring a sample of blood had not nominated a

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registered medical practitioner or approved health professional to take the sample; or

the transport safety officer or police officer requiring a sample of oral fluid had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; or

a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made;

in the case of an offence under section 77(1)(d)—

a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; or

a person authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made;

in the case of an offence under section 86A(3)—

a requirement to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these) was not made at a place where such a test or analysis could have been carried out; or

a person authorised to carry out the drug screening test, oral fluid analysis or blood test was not present at the place where the requirement was made at the time it was made.

New section 79 provides for evidentiary provisions as to the effect of the consumption of alcohol or consumption or use of a drug.

New section 79(1) provides that in any proceedings for an offence under section 77(1)(f) or (g) evidence as to the effect of the consumption of alcohol on the accused is admissible for the

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purpose of rebutting the presumption created by section 71(4) but is otherwise inadmissible.

The presumption created by new section 71(4) is that, for the purposes of an alleged offence of paragraphs (f) or (g) of section 77 of the Rail Safety (Local Operations) Act 2006, it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the rail safety worker charged or found by an analyst to be present in the sample of blood taken from the worker charged was not due solely to the consumption of alcohol after having carried out rail safety work unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

New section 79(2) provides that in any proceedings for an offence against section 76(1)(b) or (c) or 77(1)(b) evidence as to the effect of the consumption or use of a drug on the accused in admissible for the purpose rebutting the presumption created by section 71(5) but is otherwise inadmissible.

The presumption created by new section 71(5) is that, for the purposes of an alleged offence against section 76(1)(b) or (c) or 77(1)(b) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid taken from the rail safety worker charged was not due solely to the consumption or use of that drug after carrying out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

New section 80 provides for the existence of certain facts as proof that a rail safety worker was drug impaired while carrying out rail safety work.

New section 80 provides that in proceedings for an offence under section 77(1)(b), proof that—

the rail safety worker was carrying out rail safety work; and

one or more drugs were present in the rail safety worker's body at the time at which he or she carried out rail safety work; and

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the behaviour of the rail safety worker on an assessment of drug impairment carried out on the worker was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and

the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to carry out rail safety work properly—

is, in the absence of evidence to the contrary, proof that the rail safety worker carried out rail safety work while impaired by a drug.

Section 77(1)(b) provides that a rail safety worker is guilty of an offence if he or she carries out rail safety work while impaired by a drug.

New section 81 provides that on convicting a rail safety worker, or finding a rail safety worker guilty, of an offence under section 76(1) or 77(1), a court must cause to be entered into the records of the court—

in the case of an offence under section 76(1)(a), the level of concentration of alcohol found to be present in that person's blood; and

in the case of an offence under section 77(1)(a), the level of concentration of alcohol found to be present in that person's breath;

in the case of an offence under section 77(1)(f), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and

in the case of an offence under section 77(1)(g), the level of concentration of alcohol found to be present in the sample of blood.

New Division 3 to Part 6 of the Rail Safety Act 2006 sets out the procedures for testing and analysis. New Subdivision 1 provides a general power for the testing of rail safety workers.

New section 82 provides that a rail safety worker may be required to undertake a test for the presence of a drug or alcohol in accordance with Division 3.

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New Subdivision 2 of Division 3 provides for preliminary breath tests or breath analyses.

New section 83 provides that a transport safety officer or police officer may require a rail safety worker to undergo a preliminary breath test or breath analysis.

New section 83(1) provides that subject to section 83, a transport safety officer or police officer may at any time require a rail safety officer who—

is about to carry out rail safety work; or

is carrying out rail safety work; or

is attempting to carry out rail safety work; or

is still on railway premises after carrying out rail safety work; or

without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence; or

is required to undergo an assessment of drug impairment—

to submit to testing by means of a preliminary breath test or breath analysis (or both).

New section 83(2) provides that for the purposes of making a requirement that a rail safety worker submit to a preliminary breath test or breath analysis, a transport safety officer or police officer may—

require the worker to provide the worker's name and residential address; and

give any other reasonable direction to the worker.

The Bill inserts an example that states that a transport safety officer or police officer may direct the rail safety worker to accompany the transport safety officer or police officer and attend at a place specified by the transport safety officer or police officer for the purposes of carrying out the preliminary breath test or breath analysis.

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New section 83(3) provides that a rail safety worker must immediately comply with a direction given by a transport safety officer or police officer for the purpose of requiring the worker to submit to a preliminary breath test or breath analysis. A penalty of $10 000 applies.

New section 84 provides for additional matters for preliminary breath tests which do not form part of the Rail Safety National Law (Victoria), but are an important part of Victorian transport drug and alcohol schemes.

New section 84(1) provides that section 84 applies if a rail safety worker is required by a transport safety officer or police officer to submit to testing by means of a preliminary breath test under section 83(1).

New section 84(2) provides that the rail safety worker must undergo a preliminary breath test by exhaling continuously into a prescribed device to the satisfaction of the transport safety officer or police officer.

New section 84(3) provides that the rail safety worker is not obliged to submit to testing by means of a preliminary breath test under section 83 if more than 3 hours have passed since the rail safety worker last carried out rail safety work.

New section 84(4) provides that a rail safety worker who, in the course of a period of duty is unexpectedly required to carry out rail safety work, may request a transport safety officer to conduct on him or her a preliminary breath test by a prescribed device.

New section 84(5) provides that transport safety officer must comply with a request made under subsection (4). A penalty of $10 000 applies.

New section 84(6) provides that the result of a preliminary breath test conducted under section 83 and this section is not admissible against the rail safety worker tested in a proceeding for an offence against section 76(1) or section 77(1).

New section 84(7) provides that the result of a preliminary breath test that was conducted under section 83 and this section is admissible against the rail safety worker tested in a disciplinary proceeding unless the test was conducted at the request of the rail safety worker under subsection (5).

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New section 84(8) provides that a police officer who conducts a preliminary breath test under this section must ensure that the operation of the railway is disrupted no more than is reasonably necessary as a result of the testing.

New section 85 provides for additional matters for breath analyses, which are not contained in the Rail Safety National Law (Victoria), but are an important feature of Victorian transport drug and alcohol schemes.

New section 85(1) provides that section 85 applies if a rail safety worker is required by a transport safety officer or police officer to submit to testing by means of a breath analysis under section 83(1).

New section 85(2) provides that for the purposes of section 83(1), a requirement of the transport safety officer or police officer under that section may be that the rail safety worker submit to testing by doing one or both of the following—

furnishing a sample of breath for analysis by a breath analysing instrument;

furnishing one or more further samples if it appears to the authorised person that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air—

because the amount of sample furnished was insufficient; or

because of a power failure or malfunctioning of the instrument; or

for any other reason whatsoever.

New section 85(3) provides that in addition to the above, for the purposes of section 83(1)(a) to (e), the transport safety officer or police officer may require the rail safety worker to—

accompany the officer to a police station or other place where the sample of breath may be furnished; and

remain there until he or she has furnished the sample of breath and been given the certificate referred to in

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subsection (8) or until 3 hours after the carrying out of the rail safety work—

whichever is the sooner.

New section 84(4) provides that in addition, for the purposes of section 83(1)(f), the transport safety officer or police officer may require the rail safety worker to remain at the place at which the rail safety worker is required to remain for the purposes of the drug assessment until—

the person has furnished the sample of breath and been given the certificate referred to in subsection (8) and the drug assessment has been carried out; or

3 hours after the carrying out of rail safety work—

whichever is the sooner.

New section 85(5) provides that if the rail safety worker is required to furnish a sample of breath for analysis, the rail safety worker must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.

New section 85(6) provides that, a rail safety worker is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the rail safety worker last carried out rail safety work.

New section 85(7) provides that a breath analysing instrument referred to in this section must be operated by a person authorised to do so by the Chief Commissioner of Police.

New section 85(8) provides that as soon as practicable after a sample of a rail safety worker's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the rail safety worker whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.

New section 85(9) provides that a rail safety worker must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

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New section 85(10) provides that the person who required a sample of breath under section 83(1) from a rail safety worker may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of blood for analysis if it appears to him or her that—

the rail safety worker is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or

the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by the rail safety worker for any reason whatsoever—

and for that purpose may further require that rail safety worker to accompany a transport safety officer or police officer to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

New section 85(11) provides that the registered medical practitioner or approved health professional who takes a sample of blood under subsection (10) must deliver a part of the sample to the person who required it to be taken and another part to the rail safety worker from whom it was taken.

New section 85(12) provides that a rail safety worker who allows the taking of a sample of his or her blood in accordance with subsection (10) must not be convicted or found guilty of refusing to furnish under section 83(1) a sample of breath for analysis.

New section 85(13) provides that a person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with subsection (10). A penalty of $10 000 applies.

New section 85(14) provides that no action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood which the practitioner or approved

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health professional believed on reasonable grounds was allowed to be taken under subsection (10).

New section 86 provides for evidentiary matters relating to breath analysis.

New section 86(1) provides that evidence derived from a sample of breath furnished following a requirement made under section 83(1) is not rendered inadmissible by a failure to comply with a request under section 86E if reasonable efforts were made to comply with the request.

New section 86(2) provides that if the question whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a rail safety worker is relevant on a hearing for an offence against section 76(1) or 77(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this subsection, a document—

purporting to be a print-out produced by that instrument in respect of that sample; and

purporting to be signed by the person who operated the instrument—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

New section 86(3) provides that a document referred to in subsection (2) does not cease to be admissible in evidence or to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety (Local Operations) Act 2006 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety (Local Operations) Act 2006.

New Subdivision 3 of Division 3 of Part 6 to the Rail Safety Act 2006 provides for testing for drugs, oral fluid analyses and breath tests.

New section 86A provides for the circumstances where a transport safety officer or a police officer may require a rail

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safety worker to undergo a drug screening test, oral fluid analysis or blood test.

New section 86A(1) provides that subject to section 86A, a transport safety officer or police officer may at any time require a rail safety worker who—





without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence—

to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these).

New section 86A(2) provides that for the purposes of making a requirement that a rail safety worker submit to a drug screening test, oral fluid analysis or blood test, a transport safety officer or police officer may—

require the worker to provide the worker's name and residential address; and

give any other reasonable direction to the worker.

The Bill inserts an example that states that a transport safety officer or police officer may direct the rail safety worker to accompany the transport safety officer or police officer and attend at a place specified by the transport safety officer or police officer for the purposes of carrying out the drug screening test, oral fluid analysis or blood test.

New section 86A(3) provides that a rail safety worker must immediately comply with a direction given by a transport safety officer or police officer for the purpose of requiring the worker to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these).

New section 86A(4) provides that for the purposes of subsection (1), a requirement to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these) includes a requirement under new section 86D.

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New section 86B provides for assessment of drug impairment.

New section 86B(1) provides that subject to section 86B, a transport safety officer or police officer may at any time direct a rail safety worker who is—





without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence—

to submit to an assessment of drug impairment.

New section 86B(2) provides that subject to section 86B a transport safety officer or police officer may require—

a rail safety worker whom he or she believes on reasonable grounds has within the last 3 preceding hours carried out rail safety work on a railway when a notifiable occurrence or prescribed notifiable occurrence occurred involving the rail safety worker; or

a rail safety worker whom he or she has directed under section 83(3) to submit to a preliminary breath test; or

a rail safety worker required under section 83(3) to furnish a sample of breath—

to undergo an assessment of drug impairment.

New section 86B(3) provides that a transport safety officer or police officer may only give a direction under subsection (1) or (2) if the officer is of the opinion that rail safety worker's behaviour or appearance indicates that the rail safety worker may be impaired for a reason other than alcohol alone.

New section 86B(4) provides that a transport safety officer or police officer may direct a rail safety worker given a direction under subsection (1) or (2) to accompany the officer to a place where the assessment is to be carried out and to remain there

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until the assessment has been carried out or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

New section 86B(5) provides that a rail safety worker is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the rail safety worker last carried out rail safety work.

New section 86C sets out the procedure for assessments of drug impairment.

New section 86C(1) provides that an assessment of drug impairment must be carried out by—

a transport safety officer authorised to do so by the Safety Director in consultation with the Chief Commissioner of Police; or

a police officer authorised to do so by the Chief Commissioner of Police.

New section 86C(2) provides that an assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under subsection (3).

New section 86C(3) provides that the Safety Director may, by noticed published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.

New section 86C(4) provides that the carrying out of an assessment of drug impairment on a rail safety worker must be video-recorded if the rail safety worker was involved in a notifiable occurrence or prescribed notifiable occurrence unless the prosecution satisfies the court that a videorecording has not been made because of exceptional circumstances.

New section 86C(5) provides that if the rail safety worker on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 77(1)(b), and the carrying out of the assessment of drug impairment is video-recorded, a copy of the videorecording must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

New section 86C(6) provides that subject to subsection (7), the video-recording of the carrying out of an assessment of drug

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impairment on a rail safety worker is only admissible in a proceeding against that rail safety worker for an offence against the Rail Safety Act 2006 for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under subsection (3).

New section 86C(7) provides that evidence obtained as a result of an assessment of drug impairment carried out on a rail safety worker is inadmissible as part of the prosecution case in proceedings against that rail safety worker for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 86G.

New section 86C(8) provides that in any proceeding under the Rail Safety Act 2006—

the statement of a transport safety officer that on a particular date he or she was authorised by the Safety Director under subsection (1)(a) to carry out an assessment of drug impairment; or

the statement of a police officer that on a particular date he or she was authorised by the Chief Commissioner of Police under subsection (1)(b) to carry out an assessment of drug impairment; or

a certificate purporting to be signed by the Safety Director that a transport safety officer named in it is authorised by the Safety Director under subsection (1) to carry out an assessment of drug impairment; or

a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised by the Chief Commissioner of Police under subsection (1) to carry out an assessment of drug impairment—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that transport safety officer or police officer (as the case requires).

New section 86D provides for oral fluid analysis and blood tests.

New section 86D(1) provides that section 86D applies if a rail safety worker—

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is required by a transport safety officer or police officer to submit to an oral fluid analysis or blood test (or a combination of these) under section 86A(1); or

undergoes an assessment of drug impairment when required under sections 86B and 86C to do so and the assessment, in the opinion of the transport safety officer or police officer carrying it out, indicates that the rail safety worker may be impaired by a drug or drugs.

New section 86D(2) provides that a transport safety officer or police officer may require the rail safety worker to do either or both of the following—

allow a registered medical practitioner or an approved health professional nominated by the officer to take from the rail safety worker a sample of that rail safety worker's blood for analysis;

furnish to a registered medical practitioner or an approved health professional nominated by the officer a sample of that rail safety worker's oral fluid for analysis—

and for that purpose may further require the rail safety worker to accompany the officer to a place where the sample is to be taken or furnished and to remain there until the sample has been taken or furnished or until 3 hours after the carrying out of the rail safety work, whichever is sooner.

New section 86D(3) provides that a transport safety officer or police officer must not require a rail safety worker to allow a sample of his or her blood to be taken for analysis under subsection (2)(a) if that rail safety worker has already had a sample of blood taken from him or her under section 86E after carrying out rail safety work.

New section 86D(4) provides that the registered medical practitioner or approved health professional who takes a sample of blood or is furnished with a sample of oral fluid under this section must deliver a part of the sample to the transport safety officer or police officer who required it to be taken or furnished and another part to the rail safety worker from whom it was taken or by whom it was furnished.

New section 86D(5) provides that a person must not hinder or obstruct a registered medical practitioner or an approved health

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professional attempting to take a sample of the blood, or be furnished with a sample of oral fluid, of any other person in accordance with this section. A penalty of $10 000 applies.

New section 86D(6) provides that no action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of oral fluid, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.

New section 86D(7) provides that if the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 77(1)(b), a copy of a written report on that assessment prepared by the transport safety officer or police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.

New section 86E provides that a rail safety worker may request a sample of blood to be taken for analysis.

New section 86E(1) provides that section 86E applies if—

a rail safety worker is required under section 83(1) to submit to testing by means of a breath analysis; and

the rail safety worker does so by furnishing a sample of breath for analysis in accordance with section 85.

New section 86E(2) provides that the rail safety worker may, immediately after being given the certificate referred to in section 85(8), request the transport safety officer or police officer making the requirement to arrange for the taking in the presence of a transport safety officer or police officer of a sample of the rail safety worker's blood for analysis at the rail safety worker's own expense by a registered medical practitioner or an approved health professional nominated by the officer.

New section 86E(3) provides that a part of a sample of blood taken under subsection (2) must be delivered to the person who required the sample of breath under this section.

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New section 86E(4) provides that nothing in subsection (2) relieves a rail safety worker from any penalty under section 83(3).

New section 86F states that a sample of oral fluid or blood taken under Part 6 (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test) must not be used for a purpose other than that contemplated by Part 6, in connection with the control or management of any work or activity associated with railway operations, or for the purpose of disciplinary proceedings against a rail safety worker.

New section 86G provides for the destruction of identifying information.

New section 86G(1) defines relevant offence for the purposes of section 86G to mean—

an offence under section 77(1)(b) or (e) or section 86A(3); or

any other offence arising out of the same circumstances; or

any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.

New section 86G(2) provides that if a rail safety worker submits to an oral fluid analysis or blood test (or a combination of these) under section 86A(1) or an assessment of drug impairment has been carried out on the rail safety worker under sections 86B and 86C and—

the rail safety worker has not been charged with a relevant offence at the end of the period of 12 months after the submission to oral fluid analysis or blood test or the assessment of drug impairment (as the case requires; or

the rail safety worker has been so charged but the charge is not proceeded with, the prosecution for the offence is discontinued or the rail safety worker is not found guilty of the offence, whether on appeal or otherwise, before the end of that period—

the Safety Director or Chief Commissioner of Police (as the case requires) must, subject to subsection (4), destroy, or cause to be

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destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.

New section 86G(3) provides that a video-recording and any related material and information referred to in subsection (2) must be destroyed—

in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or

in a case to which subsection (2)(b) applies—

within 1 month after the conclusion of the proceeding and the end of any appeal period; or

if the proceeding has been adjourned under section 75 of the Sentencing Act 1991, within 1 month after dismissal under that section.

New section 86G(4) provides that a transport safety officer or police officer may, before the end of a period referred to in subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in subsection (3) is a reference to that period as so extended.

New section 86G(5) provides that if the Magistrates' Court makes an order under subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.

New section 86G(6) provides that if a video-recording or related material and information is required to be destroyed in accordance with this section, the Safety Director or Chief Commissioner of Police (as the case requires) must, if the rail safety worker on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that rail safety worker in writing whether the destruction has occurred.

New section 85G(7) provides that a person who knowingly—

fails to destroy; or

uses, or causes or permits to be used—

a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable

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by a penalty of up to 120 penalty units or imprisonment for up to 12 months.

New section 86G(8) provides that a person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any videorecording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a penalty of up to 120 penalty units or imprisonment for up to 12 months.

New section 86H provides that blood samples are to be taken in certain cases.

New section 86H(1) provides that for the purposes of section 86H, doctor means a registered medical practitioner and includes a police surgeon.

New section 86H(2) provides that if a rail safety worker enters or is brought to a place for examination or treatment in consequence of a notifiable occurrence (whether within Victoria or not), the rail safety worker must allow a doctor or approved health professional to take from the rail safety worker at that place a sample of his or her blood for analysis. A penalty of $10 000 applies.

New section 86H(3) provides that subsection (2) does not apply if—

in the opinion of the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker the taking of a blood sample from the rail safety worker would be prejudicial to his or her proper care and treatment; or

a transport safety officer or police officer has notified the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker, in writing, that the rail safety worker has undergone a preliminary breath test which did not indicate that the prescribed concentration of alcohol was exceeded; or

the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker believed on reasonable grounds that the rail safety worker was not a rail safety worker; or

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a police officer or a doctor or approved health professional has notified the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker, in writing, that a sample of the rail safety worker's blood was taken by a doctor or approved health professional before the person entered or was brought to the place for examination or treatment.

New section 86H(4) provides that a rail safety worker to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by a doctor or approved health professional at a place which he or she enters or to which he or she is brought for examination or treatment.

New section 86H(5) provides that if a sample of a rail safety worker's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceeding except—

for the purposes of section 86I; or

for a proceeding for an offence against section 48(2); or

for the purposes of the Transport Accident Act 1986—

but may be given—

to the Transport Accident Commission and, for the purposes of a review under the Transport Accident Act 1986, to the Tribunal; and

to the Department for the purposes of accident research.

New section 86H(6) provides that a person must not hinder or obstruct a doctor or approved health professional attempting to take a sample of the blood of any other person in accordance with this section. A penalty of $10 000 applies.

New section 86H(7) provides that no action lies against a doctor or approved health professional in respect of anything properly and necessarily done by the doctor or approved health professional in the course of taking any sample of blood which the doctor or approved health professional believes on

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reasonable grounds was required or allowed to be taken from a rail safety worker under this section.

New Division 4 to Part 6 of the Rail Safety Act 2006 sets out evidentiary provisions for blood and oral fluid tests.

New section 86I sets out detailed evidentiary provisions in respect of blood tests.

New section 86I(1) provides definitions for the purposes of section 86I.

approved analyst means a person who by virtue of new section 86I(2) is taken to be a properly qualified expert for the purpose of the section.

approved expert means a person who by virtue of new section 86I(3) is taken to be a properly qualified expert for the purpose of the section.

properly qualified analyst means—

an approved analyst; or

a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under section 86I(6) or (7) as the case requires;

properly qualified expert means—

an approved expert; or

a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under section 86I (8).

New section 86I(2) provides that a person who is an approved analyst within the meaning of section 57 of the Road Safety Act 1986 is taken to be a properly qualified analyst for the purposes of section 86I.

New section 86I(3) provides that a person who is an approved expert within the meaning of the Road Safety Act 1986 is to be

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taken to be a properly qualified expert for the purposes of section 86I.

New section 86I(4) provides that if—

the question whether a rail safety worker was or was not at any time under the influence of alcohol or any other drug; or

the presence of alcohol or any other drug, or the concentration of alcohol in the blood of a rail safety worker at any time; or

a finding on the analysis of a blood sample of a rail safety worker—

is relevant on a hearing for an offence against section 76 or 77, or in any inquest or investigation held by a coroner then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, within 3 hours after the rail safety worker carried out rail safety work, of a sample of blood from the rail safety worker by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within 12 months after it was taken, of the presence of alcohol and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person's ability to carry out rail safety work properly).

New section 86I(5) provides that a certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

New section 86I(6) provides that a certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in a proceeding referred

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to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

New section 86I(7) provides that a certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of blood analysed by the analyst of a substance that is, or is capable of being, a prescribed drug for the purposes of Part 6 of the Rail Safety (Local Operations) Act 2006 is admissible in evidence in any proceedings referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

New section 86I(8) provides that a certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any proceedings referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

New section 86I(9) provides that a certificate given under this section must not be tendered in evidence in a proceeding referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

New section 86I(10) A copy of a certificate given under section 86 section may be served on the accused by—

delivering it to the accused personally; or

leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

New section 86I(11) provides that an affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence in a proceeding referred to in subsection (4) and, as to the service of the copy, is proof, in

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the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

New section 86I(12) provides that an accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

New section 86I(13) provides that the court must not grant leave under subsection (12) unless it is satisfied—

that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

that—

there is a reasonable possibility that the blood referred to in a certificate given by an analyst under subsection (6) was not that of the accused; or

there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or

there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the blood not been contaminated in that way; or

there is a reasonable possibility that the sample was not taken in accordance with the Code of Practice for Taking Blood Samples from Road Accident Victims; or

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for some other reason the giving of evidence by the person who gave the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken would materially assist the court to ascertain relevant facts.

New section 86I(14) provides that an accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under section 86I(12).

New section 86I(15) provides that if a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the rail safety worker to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the rail safety worker was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.

New section 86I(16) provides that except as provided in sections 86D and 86H, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the rail safety worker from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.

New section 86I(17) provides that the mere failure or refusal of a rail safety worker to express consent must not be used in evidence against the rail safety worker or referred to in any way against the rail safety worker's interests in any proceeding.

New section 86I(18) provides that a certificate purporting to be signed by a person—

who took a blood sample; or

who analysed a blood sample—

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in accordance with the provisions of an Act of another State or a Territory that substantially corresponds to section 86H of the Rail Safety Act 2006 and in accordance with any regulations made under the corresponding Act is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

New section 86I(19) provides that subsections (7), (10), (11) and (12) apply in respect of a certificate referred to in subsection (18) as if the certificate was given under this section.

New section 86J sets out detailed evidentiary provisions in respect of oral fluid samples.

New section 86J(1) provides several definitions for the purposes of the new section.

approved analyst means a person who by virtue of new section 86J(2) is taken to be a properly qualified expert for the purpose of the section.

approved expert means a person who by virtue of new section 86J(3) is taken to be a properly qualified expert for the purpose of the section.

properly qualified analyst means—

an approved analyst; or

a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (6);

properly qualified expert means—

an approved expert; or

a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under subsection (6).

New section 86J(2) provides that a person who is an approved analyst within the meaning of section 57A of the Road Safety

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Act 1986 is taken to be a properly qualified analyst for the purpose of section 86J.

New section 86J(3) provides that a person who is an approved expert within the meaning of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of section 86J.

New section 86J(4) provides that if a question as to the presence of a drug in the body of a rail safety worker at any time is relevant in a hearing for an offence against section 76 or 77 then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

of the furnishing by that rail safety worker, within 3 hours after that rail safety worker carried out rail safety work, of a sample of oral fluid to a registered medical practitioner or an approved health professional;

of the analysis of that sample of oral fluid by a properly qualified analyst within 12 months after it was taken;

of the presence of a drug in that sample of oral fluid at the time of analysis;

by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly).

New section 86J(5) provides that a certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

New section 86J(6) provides that a certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of oral fluid analysed by the analyst of a substance that is, or is capable of being, a prescribed drug for the purposes of this Part is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

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New section 86J(7) provides that a certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in the certificate.

New section 86J(8) provides that a certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been personally served on the accused more than 10 days before the day on which the certificate is tendered in evidence.

New section 86J(9) provides that an affidavit or statutory declaration by the person who has personally served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (4) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.

New section 86J(10) provides that an accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.

New section 86J(11) provides that the court must not grant leave under subsection (10) unless it is satisfied—

that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and

that—

there is a reasonable possibility that the oral fluid referred to in a certificate given by an analyst

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under subsection (6) was not that of the accused; or

there is a reasonable possibility that the oral fluid referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the oral fluid not been contaminated in that way; or

for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.

New section 86J(12) provides that an accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend the court on the hearing of an application for leave under subsection (10).

New section 86K sets out detailed evidentiary provisions for breath tests.

New section 86K(1) provides that if—

the question whether a rail safety worker was or was not at any time under the influence of alcohol; or

the presence, or the concentration, of alcohol in the breath of a rail safety worker at any time; or

a result of a breath analysis of a rail safety worker—

is relevant on a hearing for an offence against section 76 or 77 then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 85 and the concentration of alcohol so indicated is, subject to compliance with section 85(6), evidence of the concentration of alcohol present in the

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breath of that person at the time his or her breath is analysed by the instrument.

New section 86K (2) provides that a document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in a proceeding referred to in subsection (1) and, subject to subsection (8), is conclusive proof of—

the facts and matters contained in it; and

the fact that the instrument used was a breath analysing instrument; and

the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 85; and

the fact that all relevant regulations relating to the operation of the instrument were complied with; and

the fact that the instrument was in proper working order and properly operated; and

the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the breath analysing instrument and given to the accused person as soon as practicable after the sample of breath was analysed—

unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.

New section 86K(3) provides that certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety (Local Operations)

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Act 2006 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety (Local Operations) Act 2006.

New section 86K(4) provides that a notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.

New section 86K(5) provides that the accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).

New section 86K(6) provides that if an accused person gives notice to the informant in accordance with subsection (2) that he or she requires the person giving a certificate to be called as a witness and the court is satisfied that that person—

is dead; or

is unfit by reason of his or her bodily or mental condition to testify as a witness; or

has ceased to be a police officer or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or

cannot with reasonable diligence be found—

the court must order that subsection (2) has effect as if the notice had not been given.

New section 86(7) provides that a certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.

New section 86K(8) provides that nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.

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New section 86K(9) provides that in any proceeding under the Rail Safety (Local Operations) Act 2006—

the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments; or

a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments—

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.

New section 86(10) provides that evidence by a person authorised to operate a breath analysing instrument under section 85—

that an apparatus used by him or her on any occasion under that section was a breath analysing instrument;

that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;

that, in relation to the breath analysing instrument, all regulations with respect to breath analysing instruments were complied with—

is, in the absence of evidence to the contrary, proof of those facts.

New section 86K(11) provides that the statement on oath of a person authorised to operate a breath analysing instrument under section 85 when called as a witness that any apparatus used by him or her on any occasion under section 85 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions—

"Alcotest 7110" and "3530791"; or

"Alcotest 9510AUS" and "8320869"—

whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in

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is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument.

New Division 5 to Part 6 of the Rail Safety Act 2006 provides for approvals given in relation to Part 6.

New section 86L(1) provides that an authority given under or for the purposes of—

section 85 or 86C(1)(b) by the Chief Commissioner of Police; or

section 86C(1)(a) by the Safety Director—

may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.

New section 86L(2) provides that if it is provided by or under this Part that the Minister or the Chief Commissioner of Police or any other person may approve of any type or kind of apparatus or equipment—

the approval must be given by notice published in the Government Gazette; and

any withdrawal of approval must be made by notice published in the Government Gazette.

Clause 90 substitutes a new table in section 87 of the Rail Safety Act 2006 which sets out decisions made under the Act that are reviewable and which identifies the persons who are eligible to apply for a review of a reviewable decision.

Examples of reviewable decisions include—

decisions relating to accreditation;

decisions relating to exemptions; and

decisions relating to registration.

Clause 91 makes consequential amendments to section 89 of the Rail Safety Act 2006 to clarify that the reviewable decisions in Part 7 are to be heard by the Victorian Civil and Administrative Tribunal (VCAT).


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Clause 94 substitutes a new section 98 into the Rail Safety Act 2006. New section 98 provides that if a body corporate commits an offence against a specified provision, an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

This means that the prosecution is required to prove that the body corporate committed the offence. This does not require a prior finding of guilt against the body corporate but requires the prosecution to satisfy the court of the necessary elements constituting the specific offence. The prosecution is then required to prove, beyond reasonable doubt, that the accused failed to exercise due diligence to prevent the commission of the offence by the body corporate.

New section 98(2) specifies the following provisions of the Rail Safety Act 2006 as provisions to which the clause applies—

section 20(1)—offences relating to general duties of rail transport operators.

section 22(1) and (2)—offences relating to the general duties of rail contractors who design, commission, construct, etc or supply railway operations to a rail transport operator.

section 22A(1) and (2)—offences relating to labour hire entities who supply services to a rail transport operator.

section 23(1), (2) and (3)—offences relating to the duties of rail safety workers.

section 23A(1)—offence relating a person who loads or unloads goods or freight to or from rolling stock.

section 26—offence relating to an accredited rail transport operator consulting before establishing a safety management system.

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section 27—offence relating to enacting a safety management system.

sections 28(1)—offence relating to compliance with safety management systems.

section 28A(2)—offence relating to the provision of access to a safety management system to the Safety Director or a transport safety officer.

section 28B(2)—offence relating to requirements of an exempted rail transport operator.

section 33(4) and (5)—offences relating to compliance with a direction given by the Safety Director in relation to utility works or railway operations.

section 34(5)—offence relating to compliance with a direction given by the Safety Director in relation to utility works or railway operations.

section 34J(7)—offence relating to compliance with a direction to make a safety interface agreement.

section 34K(2)—offence relating to a relevant road authority maintaining a register of safety interface agreements.

section 36—offence relating to operating rolling stock, etc without appropriate accreditation or exemption from accreditation.

section 42(6)—offence relating to compliance with a direction given by the Safety Director in relation to rolling stock operator applicants.

section 43(4) and (5)—offences relating to compliance with a direction to coordinate and corporate with another applicant in an accreditation application.

section 48(1)—offence relating to compliance with a condition or restriction imposed on a rail transport operator's accreditation.

section 54(2)—offence relating to variation of accreditation.

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section 57(1)—offence relating to not providing misleading information in an application for an accreditation or variation of an accreditation or a condition.

section 61K—offence relating to a breach of a condition or restriction on an exemption from accreditation.

section 68(1)—offence relating to emergency plans.

section 69(1)—offence relating to notifying emergency services and others after an incident.

section 69A(2) and (3)—offences relating to the provision of information regarding safety and financial capacity.

section 69R(1)—offence relating to contravention of a condition or restriction of a registration of a private siding.

Clause 94(3) provides that, in determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—

what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and

whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and

what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

any other relevant matter.

New section 98(4) provides that, without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

New section 98(5) provides that an officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been

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prosecuted for, or found guilty of, an offence against that provision.

The provision states that an officer may commit an offence whether or not the body corporate has been prosecuted for, or found guilty of, an offence. This means that a finding by a court that an officer has committed an offence for the purposes of this section is not contingent on a prior finding of guilt against the body corporate or prior prosecutorial action being taken against the body corporate for the same offence.

New section 98(6) provides that in new section 98, body corporate has the same meaning as corporation has in section 57A of the Corporations Act.

Clause 95 inserts new sections 101A and 101B into the Rail Safety Act 2006 to clarify that offenders cannot be punished twice for the same offence under different legislation.

New sections 101A and 101B provide for no double jeopardy.

New section 101A provides if—

an act or omission is an offence against the Rail Safety Act 2006 and is also an offence against the Occupational Health and Safety Act 2004; and

the offender has been punished for the offence under the Occupational Health and Safety Act 2004—

the offender is not liable to be punished for the offence against the Rail Safety Act 2006.

New section 101B(1) provides that if—

an act or omission is an offence against this Act and is also an offence against the Rail Safety National Law (Victoria) or the Rail Safety National Law as it applies as a law of another State or a Territory; and

the offender has been punished for the offence under the Rail Safety National Law (Victoria) or that other Law—

the offender is not liable to be punished for the offence against this Act.

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New section 101B(2) provides that in section 101B, Rail Safety National Law means the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Clause 96 inserts definitions into section 104A(7) of the Rail Safety Act 2006 to provide for reciprocal powers of rail safety officers from other States and Territories.

Clause 97 makes a consequential amendment to section 105(c) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 98 makes a consequential amendment to section 106 of the Rail Safety Act 2006 to adopt terminology in the Rail Safety National Law (Victoria).


Clause 100 makes consequential amendments to section 108(c) of the Rail Safety Act 2006 to adopt terminology used in the Rail Safety National Law (Victoria).

Clause 101 makes consequential amendments to section 109 of the Rail Safety Act 2006 following from the substitution of new Part 6.

Clause 102 makes consequential amendments to the regulation-making power set out in section 110 of the Rail Safety Act 2006.

Clause 103 renames the Rail Safety Act 2006 the Rail Safety (Local Operations) Act 2006 to reflect that the scheme now only applies to Victorian regulated rail transport operators.

Clause 104 inserts new Part 10 into the Rail Safety Act 2006. New Part 10 provides for savings and transitionals—Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Act 2013.

New section 111 inserts a savings provision for the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

New section 111(1) provides that on and from the commencement of section 103 of the Transport Legislation Amendment (Rail Safety Local Operations and Other

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Matters) Act 2013, any reference in any Act (other than the Rail Safety Act 2006), regulation, subordinate instrument, or other document whatsoever to the Rail Safety Act 2006 is to be construed as a reference to the Rail Safety (Local Operations) Act 2006, unless the contrary intention appears.

New section 111(2) provides that except as in this Act expressly or by necessary implication provided, all persons, things and circumstances appointed or created by or under the Rail Safety Act 2006 or existing or continuing under this Act immediately before the commencement of section 103 of the Transport Legislation Amendment (Rail Safety Local Operations and Other Matters) Act 2013 continue under and subject to the Rail Safety Act 2006 to have the same status, operation and effect as they respectively would have had if this Act had not been amended by that section.

New section 111(3) provides that nothing in this section limits or otherwise affects the operation of the Interpretation of Legislation Act 1984.

Clause 105 provides for the repeal of Part 11 of the Rail Safety Act 2006. Part 11 set out various savings and transitional provisions which were required when the Rail Safety Act 2006 originally commenced. The Part is now repealed as the provisions are now spent.

PART 3—CONSEQUENTIAL AMENDMENTS TO THE TRANSPORT (COMPLIANCE AND MISCELLANEOUS)

ACT 1983

Part 3 of the Bill makes consequential amendments to the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology in that Act that is consistent with the Rail Safety Act 2006 and the Rail Safety National Law (Victoria).

Clause 106 inserts a definition of accredited rail transport operator to have the same meaning as in the Rail Safety (Local Operations) Act 2006. That is a rail transport operator who is accredited under Part 5 of the Rail Safety (Local Operations) Act 2006.

Clause 107 amends various definitions in 2(1) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

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Clause 107(a) repeals the definitions of accredited rail operator, rail infrastructure operations, rail operations and rolling stock operations. These terms are no longer used.

Clause 107(b) inserts the words "(Local Operations)" into paragraph (a) of the definition of mandatory rail safety decision to reflect the renaming of the Rail Safety Act 2006.

Clause 107(c) replaces the words "rail operator" with the words "rail transport operator" in paragraph (a)(ii) and (iii) of the definition of mandatory rail safety decision.

Clause 107(d) inserts the words "(Local Operations)" into the definition of rail infrastructure manager to reflect the renaming of the Rail Safety Act 2006.

Clause 107(e) inserts the words "(Local Operations)" after "Safety" into paragraph (b) of the definition of relevant transport safety law to reflect the renaming of the Rail Safety Act 2006.

Clause 107(f) inserts the words "(Local Operations)" after "Safety" into the definition of rolling stock operator to reflect the renaming of the Rail Safety Act 2006.

Clause 108 makes a consequential amendment to section 215B(8) of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 109 makes consequential amendments to the definitions in section 228S(1) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006 and to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 110 makes a consequential amendment to section 228U(3) of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 111 makes a consequential amendment to section 228ZB(1)(f) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt the terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

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Clause 112 makes a consequential amendment to section 228ZM(1)(a) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 113 makes a consequential amendment to section 228ZW(2)(ii) of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 114 makes a consequential amendment to section 228ZZA(1)(c) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 115 makes a consequential amendment to section 228ZZC(1)(c) of the Transport (Compliance and Miscellaneous) Act to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 116 makes a consequential amendment to paragraph (b) of the definition of relevant safety law in section 228ZZSA of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 117 makes a consequential amendment to section 228ZZSB(1) and (3) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 118 makes a consequential amendment to section 228ZZSCof the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 119 makes a consequential amendment to section 228ZZSD(1) and (2)(b) of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 120 makes a consequential change to section 228ZZSE of the Transport (Compliance and Miscellaneous) Act 1983 to adopt

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terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 121 makes consequential amendments to section 230A of the Transport (Compliance and Miscellaneous) Act 1983 to adopt terminology used in the Rail Safety National Law (Victoria) and the Rail Safety Act 2006.

Clause 122 makes a consequential amendment to section 230J(1) and (2) of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 123 makes a consequential amendment to section 250 of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

Clause 124 makes a consequential amendment to section 251 of the Transport (Compliance and Miscellaneous) Act 1983 to reflect the renaming of the Rail Safety Act 2006 to the Rail Safety (Local Operations) Act 2006.

PART 4—AMENDMENTS TO THE BUS SAFETY ACT 2009

Part 4 of the Bill makes amendments to the Bus Safety Act 2009 which will provide the Director, Transport Safety with power to exempt certain bus operators from the need for registration or accreditation. These amendments give effect to a recommendation from the Red Tape Commissioner regarding an undue regulatory burden associated with the registration and accreditation requirements for bus operators in certain circumstances. The new Division 7A of Part 4 is modelled on the new Division 5A of Part 5 of the Rail Safety Act 2006, as inserted by clause 81 and maintains a consistent approach to regulating transport safety.

Clause 125 substitutes a new section 22A(1) of the Bus Safety Act 2009. New section 22A(1) provides that an operator of a bus service to which this section applies must not operate the bus service unless the operator—

is registered; or

holds an exemption granted under Division 7A; or

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is exempted by the regulations from the requirement to be registered under this Part.

A penalty of 60 penalty units for a natural person or 300 penalty units for a body corporate applies.

Clause 126 substitutes a new section 24 of the Bus Safety Act 2009.

New section 24 states that an operator of a commercial bus service or a local bus service must not operate the commercial bus service or local bus service unless the operator—

is accredited under this Part in respect of those operations; or

holds an exemption granted under Division 7A; or

is exempted by the regulations from the requirement to be accredited under this Part.

A penalty of 240 penalty units for a natural person or 1200 penalty units for a body corporate applies.

Clause 127 inserts new Division 7A of Part 4 into the Bus Safety Act 2009. New Division 7A provides for exemptions granted by the Safety Director.

New section 52A defines designated provision to mean any or all of the following—

Divisions 1 and 2 (accreditation) of Part 4 of the Bus Safety Act 2009; and

regulations made for the purposes of Division 1 and 2 (if any).

New section 52B provides for accreditation exemptions for operators.

New section 52B(1) provides that an operator of a bus service may apply to the Safety Director for an exemption from a designated provision in respect of a specified bus service carried out, or proposed to be carried out, by or on behalf of the operator.

New section 52B(2) provides that an application must be made in the manner and form approved by the Safety Director and—

must specify the scope and nature of the bus service in respect of which an exemption is sought; and

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New section 52B(3) provides that the Safety Director may require an operator who has applied for an exemption—



New section 52C states what an applicant for an exemption must demonstrate.

The Safety Director must not grant an exemption to an applicant unless satisfied that the applicant has demonstrated—

that the applicant is, or is to be, an operator in relation to the bus service in respect of which the exemption is sought; and

that the applicant has complied with the requirements prescribed by the regulations (if any) for the purposes of this section.

New section 52D provides for the determination of an application for exemption by the Safety Director.

New section 52D(1) provides that subject to this section, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in section 52C—notify the applicant that an exemption from a designated provision has been granted, with or without conditions or restrictions; or

if the Safety Director is not satisfied as to the matters referred to in section 52C—notify the applicant that the application has been refused.

New section 52D(2) provides that an exemption under is subject to—

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any conditions or restrictions prescribed by the regulations for the purposes of this section that are applicable to the exemption; and

any other condition or restriction imposed on the exemption by the Safety Director.

New section 52D(3) provides that notification under this section—


if the exemption has been granted, must specify—


the scope and nature of the bus service, and the manner in which it is to be carried out, in respect of which the exemption is granted; and

any condition or restriction imposed by the Safety Director under this section on the exemption; and


if a condition or restriction has been imposed on the exemption, must include—







New section 52D(4) defines relevant period in relation to an application for the purposes of section 52D to mean—

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New section 52E sets out the process for applying for a variation of an exemption.

New section 52E(1) provides that an operator of a bus service who has been granted an exemption under this Division may, at any time, apply to the Safety Director for a variation of the exemption.

New section 52E(2) provides that an operator of a bus service who has been granted an exemption under this Division must apply to the Safety Director for a variation of the exemption if—

the operator proposes to vary the scope and nature of the bus service in respect of which the exemption has been granted; or

any other variation is proposed in respect of the bus service in respect of which the exemption has been granted that should be reflected in the exemption.

New section 52E(3) provides that an application for variation must be made in the manner and form approved by the Safety Director and—




New section 52E(4) states that the Safety Director may require an applicant for a variation—

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New section 52F provides for the process of determination of applications by the Safety Director.

New section 52F(1) states that subject to section 52F, the Safety Director must, within the relevant period—

if the Safety Director is satisfied as to the matters referred to in section 52C (so far as they are applicable to the proposed variation)—notify the applicant that the exemption has been varied, with or without conditions or restrictions; or


New section 52F(2) states that notification under this section—


if the exemption has been varied, must specify—


the variation to the exemption so far as it applies to the scope and nature of the bus service, or the manner in which it is to be carried out; and

any conditions and restrictions imposed by the Safety Director on the exemption as varied; and


if a condition or restriction has been imposed on the exemption as varied, must include—





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New section 52F(3) defines relevant period in relation to an application for the purposes of section 52F to mean—





New section 52G states that an exemption granted to an operator of a bus service that is varied under new Division 7A of Part 4 of the Bus Safety Act 2009 is subject to any conditions or restrictions prescribed by the regulations (if any) that are applicable to the exemption as varied.

New section 52H provides for variation of conditions or restrictions.

New section 52H(1) provides that an operator of a bus service who has been granted an exemption under Division 7A of Part 4 of the Bus Safety Act 2009 may, at any time, apply to the Safety Director for a variation of a condition or restriction imposed by the Safety Director to which the exemption is subject.

New section 52H(2) provides that an application for variation of a condition or restriction must be made as if it were an application for variation of an exemption under section 52E.

New section 52H(3) provides that the Safety Director must consider the application and, if satisfied as to the matters referred to in sections 52C and 52D (so far as they are applicable to the proposed variation), notify the applicant in accordance with the provisions of this Division applicable to the granting of

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an exemption (so far as is practicable) that the variation has been granted or refused.

New section 52H(4) provides that notification under subsection (3) that a variation has been refused must include the reasons for the decision to refuse to grant the variation and information about the right of review under Part 6.

New section 52I gives the Safety Director powers to make changes to conditions or restrictions on an exemption.

New section 52I(1) provides that the Safety Director may, subject to this section, at any time, vary or revoke a condition or restriction imposed by the Safety Director on an exemption granted to an operator of a bus service under this Division or impose a new condition or restriction.

New section 52I(2) provides that before taking action under this section, the Safety Director must—

give the operator written notice of the action that the Safety Director proposes to take; and

allow the operator to make written representations about the intended action within 28 days (or any other period that the Safety Director and the operator agree on); and


New section 52I(3) states that the Safety Director must, by written notice given to the operator, provide—

details of any action taken under this section; and

a statement of reasons for any action taken under this section; and


New section 52J provides for revocation or suspension of an exemption.

New section 52J(1) provides that this section applies to an operator of a bus service who has been granted an exemption under this Division if—

the Safety Director considers that the operator—

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is no longer able to demonstrate to the satisfaction of the Safety Director the matters referred to in section 52C or to satisfy the conditions, or to comply with the restrictions, of the exemption; or

is not operating the bus service to which the exemption relates, or has not done so for at least the preceding 12 months; or

the operator contravenes the Bus Safety Act 2009 or the regulations.

New section 52J(2) provides that the Safety Director may—

suspend the exemption for a period determined by the Safety Director; or

revoke the exemption with immediate effect or with effect from a specified future date; or

impose conditions or restrictions on the exemption; or

vary conditions or restrictions to which the exemption is subject.

New section 52J(3) provides that before making a decision under section 52J(2), the Safety Director—

must notify the operator in writing—

that the Safety Director is considering making a decision under subsection (2) of the kind, and for the reasons, specified in the notice; and



New section 52J(4) provides that if the Safety Director suspends or revokes the exemption, the Safety Director must include in the notice of suspension or revocation the reasons for the suspension or revocation and information about the right of review under Part 6 of the Bus Safety Act 2009.

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New section 52J(5) provides that the Safety Director may withdraw a suspension of the exemption by written notice given to the operator.

New section 52K states that an operator of a bus service who has been granted an exemption under Division 7A of Part 4 of the Bus Safety Act 2009 must not contravene a condition or restriction of the exemption applying under the Division. A penalty of $20 000 for a natural person or $100 000 for a body corporate applies.

Clause 128 inserts new paragraphs (h)-(m) into section 58(1) of the Bus Safety Act 2009. Section 58(1) provides for review by VCAT of decisions made by the Safety Director.

A person will now be able to apply to VCAT for a review of a decision by the Safety Director to—

refuse accreditation to an operator to operate a commercial bus service or local bus service, including a refusal made by the Safety Director under section 27;

impose a condition on the accreditation of an accredited bus operator;

not vary the accreditation following a request for variation by the accredited bus operator;

vary the accreditation of an accredited bus operator;

suspend or cancel the accreditation of an accredited bus operator;

disqualify the operator from applying for accreditation;

refuse to grant an exemption;

grant an exemption subject to conditions or restrictions;

extend the relevant period of an application for—

an exemption;

a variation of an exemption;

a variation of conditions of or restrictions on an exemption;

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refuse to vary conditions of or restrictions on an exemption;

vary the conditions of or restrictions on an exemption;

revoke or suspend an exemption.

PART 4—REPEAL OF AMENDING ACT

Clause 129 repeals the amending Act on the first anniversary of the first day in which all of its provisions are in operation. The repeal of the amending Act does not affect the continuing operation of the amendments made by the Bill.

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