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RAIL SAFETY NATIONAL LAW (TASMANIA) BILL 2012
CLAUSE NOTES
PART 1 - PREMLIMINARY
Clause 1 Short title
Clause 2 Commencement
The Act commences on a day to be proclaimed.
Clause 3 Interpretation
This clause provides that a reference to the Rail Safety National
Law (Tasmania) is a reference to the provisions that are applied
by clause 4. It also provides that the terms used in the Bill have
the same meaning as in the national law that is being adopted.
PART 2 ADOPTION OF RAIL SAFETY NATIONAL LAW
Clause 4 Application of Rail Safety Law
This clause formally applies the Rail Safety National Law, which
exists in a Schedule to the South Australian Act, as a law of
Tasmania.
Clause 5 Interpretation of certain expressions
Subclause (1) defines certain terms used in the Rail Safety
National Law in order to give them a particular meaning in this
jurisdiction.
Subclause (2) makes it clear that the Office of the National Rail
Safety Regulator (ONRSR) is not a State entity (and therefore
not a Tasmanian Entity) and is not an agency or instrumentality
of the Tasmanian Crown. Employees of the ONRSR are not
State Service officers or State Service employees. This is to
ensure that only one national entity is established in
accordance with section 9 of the Rail Safety National Law.
Clause 6 No double jeopardy
Where an offence has been committed and punished under the
law of a participating jurisdiction and the offence is also an
offence under the Rail Safety National Law (Tasmania), the
offender cannot be punished again for that same offence under
the Rail Safety National Law (Tasmania).
Clause 7 Exclusion of legislation of this jurisdiction
This clause excludes a number of oversight laws of Tasmania
from the National Rail Safety Law (Tasmania) or to instruments
made under that law. The Rail Safety National Law and the
National Rail Safety Regulator are hosted in South Australia.
Therefore the oversight laws of South Australia will apply (see
section 263 of the RSNL). Interpretation provisions are also
included in Schedule 2 of the RSNL, along with Part 3 of this
Bill.
The Acts referred to in this clause apply to a State entity or an
employee of a State entity exercising a function under the Rail
Safety National Law (Tasmania). For example under a service
level agreement.
Clause 8 Amendments to National Law
Any amendments to the Rail Safety National Law will be tabled
in each house of Parliament within 10 sitting days from the date
on which the amendment receives the Royal Assent in South
Australia. This clause does not affect the operation of the
amendment.
PART 3 NATIONAL REGULATIONS
Clause 9 Procedure with respect to national law regulations
Under Part 10 Division 9 of the RSNL, the Governor of South
Australia, acting with the advice and consent of the Executive
Council of South Australia, is nominated as the designated
authority to make the national regulations, on the unanimous
recommendation of the responsible Ministers for each of the
participating jurisdictions.
This clause provides that the national regulations will be notified
in the Gazette and laid before each House of the Tasmanian
Parliament.
If either House of Parliament passes a resolution to disallow a
regulation, the regulation does not cease to have effect in this
jurisdiction unless it is disallowed in a majority of participating
jurisdictions.
PART 4 PROVISIONS RELATING TO DRUG AND ALCOHOL TESTING
Clause 10 Testing for drugs and alcohol
This clause makes provision for carrying out drug and alcohol
testing by the National Rail Safety Regulator in Tasmania.
While the power enabling the Regulator to test rail safety
workers for the presence of a drug or alcohol is set out in Part 3
Division 9 of the RSNL, the testing procedures are included in
each jurisdiction's application Bill.
Subclause (1) aligns testing procedures in Tasmania with the
Road Safety (Alcohol and Drugs) Act 1970. By adopting this
approach it is not necessary to replicate in this Bill a separate
alcohol and drugs testing procedure for rail safety workers.
Subclause (2) applies the provisions specified in subclause 1 to
rail safety workers carrying out, or attempting to carry out rail
safety work.
Subclause (3) specifies the appropriate modifications for the
purposes of the application of the Road Safety (Alcohol and
Drugs) Act 1970 to rail safety workers carrying out, or
attempting to carry out rail safety work.
Clause 11 Concentration of alcohol in breath taken to indicate
concentration of alcohol in blood.
This clause establishes a conversion of concentration of alcohol
in breath to an equivalent concentration in blood.
PART 5 TRANSITIONAL PROVISIONS
Clause 12 Interpretation
Defines the terms "Rail Safety National Law or Law", "relevant
day" and "repealed Act" for the purpose of this Part.
Clause 13 Accreditation
Accreditations, applications for accreditation and suspensions
of accreditation made under the repealed Act will continue
under the Rail Safety National Law
Clause 14 Registration
Registrations of Private Sidings made under the repealed Act
will continue under the Rail Safety National Law. The Regulator
may, in writing, impose a variation or new condition on the rail
infrastructure manager of the private siding.
Clause 15 Notifiable occurrences
A report of a notifiable occurrence under the repealed Act will
continue to have effect as if it were a report of a notifiable
occurrence under the Rail Safety National Law.
An investigation into a notifiable occurrence under the repealed
Act will continue as if it were an investigation under the Rail
Safety National Law.
Clause 16 Notices
Embargo notices, directions, improvement notices, prohibition
notices, infringement notice and enforceable voluntary
undertakings made under the repealed Act continue as if they
were made under the Rail Safety National Law.
Clause 17 Review and appeals
The period within which an applicant could have applied for a
review of a decision made under the repealed Act is
maintained. Within this period the applicant may apply for a
review of the decision under the Rail Safety National Law as if
the decision had been made under it.
Clause 18 Provision of information and assistance by Rail Safety
Regulator
This clause authorises the Rail Safety Regulator under the
repealed Act to provide information and assistance (including
information given in confidence) to the Office of the National
Rail Safety Regulator (ONRSR) for the purpose of the Rail
Safety National Law.
Clause 19 Regulations saving and transitional provisions
Provides the ability to make regulations in Tasmania containing
provisions of a transitional nature, including matters of an
application or savings nature arising as a result of this Act.
Clause 20 Rail safety officers
This clause preserves the appointment of Rail Safety Officers
under the repealed Act so they can perform the functions and
exercise the powers of a Rail Safety Officer under the Rail
Safety National Law. This is limited to a period of 6 months or
until appointed as a Rail Safety Officer under section 135 of the
Rail Safety National Law (whichever occurs first).
Clause 21 Existing Operators under the repealed Act.
Transition provisions under Part 15 of the repealed Act continue
for existing operators for the period they would have continued
under the repealed Act. These are:
Interface co-ordination plans between rail infrastructure
managers and road owners.
Assessment of rail safety worker competence.
PART 6 MISCELLANEOUS
Clause 22 Administration of Act
The administration of this Act is assigned to the Minister for
Infrastructure and the department responsible to that Minister in
relation to administration of this Act is the Department of
Infrastructure, Energy and Resources
Clause 23 Consequential amendments
Schedule 1 lists the consequential amendments. These
replace references to the Rail Safety Act 2009 with a reference
to the Rail Safety National Law (Tasmania) Act 2012:
Section 7A(2) of the Boundary Fences Act 1908
Section 3(1) and section 4(3)(a) of the Emu Bay Railway
(Operation and Acquisition) Act 2009
Section 87(1)(b)(xiv) of the Local Government Act 1993
Section 3(1) of the Police Offences Act 1935
Section 4 of the Rail Company Act 2009
Section 3(1) of the Rail Infrastructure Act 2007
Clause 24 Legislation repealed
This repeals the Rail Safety Act 2009.
Clause 25 Legislation rescinded
This rescinds the Rail Safety Regulations 2010.
Clause 26 Legislation revoked
This revokes:
Rail Safety (Guidelines) Order 2010.
Proclamation under the Rail Safety Act 2009.
Rail Safety (Fees) Notice 2012.